EX-4.1
THE HARTFORD FINANCIAL SERVICES GROUP, INC.
TO
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
JUNIOR SUBORDINATED INDENTURE
INCOME CAPITAL OBLIGATION NOTES due 2067
Dated as of February 12, 2007
THE HARTFORD
TABLE OF CONTENTS
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ARTICLE I
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DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
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SECTION 1.1. Definitions |
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1 |
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SECTION 1.2. Compliance Certificates and Opinions |
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17 |
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SECTION 1.3. Forms of Documents Delivered to Trustee |
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17 |
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SECTION 1.4. Acts of Holders |
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18 |
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SECTION 1.5. Notices, Etc. to Trustee and Company |
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20 |
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SECTION 1.6. Notice to Holders; Waiver |
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21 |
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SECTION 1.7. Conflict with Trust Indenture Act |
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21 |
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SECTION 1.8. Effect of Headings and Table of Contents |
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21 |
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SECTION 1.9. Successors and Assigns |
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21 |
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SECTION 1.10. Separability Clause |
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22 |
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SECTION 1.11. Benefits of Indenture |
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22 |
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SECTION 1.12. Governing Law |
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22 |
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SECTION 1.13. Non-Business Days |
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22 |
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ARTICLE II
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SECURITY FORMS
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SECTION 2.1. Forms Generally |
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22 |
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SECTION 2.2. Restricted Security Legend |
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23 |
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SECTION 2.3. Legend Required in Global Security |
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24 |
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SECTION 2.4. Form of Trustee’s Certificate of Authentication |
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24 |
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ARTICLE III
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THE SECURITIES
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SECTION 3.1. Title and Terms |
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25 |
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SECTION 3.2. Interest |
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29 |
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SECTION 3.3. Repayment of Securities |
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37 |
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SECTION 3.4. Denominations |
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39 |
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SECTION 3.5. Execution, Authentication, Delivery and Dating |
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40 |
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SECTION 3.6. Temporary Securities |
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41 |
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SECTION 3.7. Global Securities |
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41 |
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SECTION 3.8. Registration, Transfer and Exchange Generally,
Certain Transfers and Exchanges; Securities
Act Legends |
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42 |
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SECTION 3.9. Mutilated, Destroyed, Lost and Stolen Securities |
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46 |
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SECTION 3.10. Persons Deemed Owners |
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47 |
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SECTION 3.11. Cancellation |
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48 |
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SECTION 3.12. CUSIP Numbers |
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48 |
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SECTION 3.13. Premium Calculation Agent |
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48 |
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ARTICLE IV
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SATISFACTION AND DISCHARGE
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SECTION 4.1. Satisfaction and Discharge of Indenture |
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48 |
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SECTION 4.2. Application of Trust Money |
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50 |
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ARTICLE V
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REMEDIES
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SECTION 5.1. Events of Default; Security Default |
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SECTION 5.2. Acceleration of Maturity; Rescission and Annulment |
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51 |
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SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee |
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SECTION 5.4. Trustee May File Proofs of Claim |
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SECTION 5.5. Trustee May Enforce Claim Without Possession of Securities |
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53 |
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SECTION 5.6. Application of Money Collected |
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54 |
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SECTION 5.7. Limitation on Suits |
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54 |
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SECTION 5.8. Unconditional Right of Holders to Receive Principal, Premium and Interest |
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55 |
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SECTION 5.9. Restoration of Rights and Remedies |
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55 |
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SECTION 5.10. Rights and Remedies Cumulative |
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55 |
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SECTION 5.11. Delay or Omission Not Waiver |
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56 |
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SECTION 5.12. Control by Holders |
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56 |
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SECTION 5.13. Waiver of Past Defaults |
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56 |
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SECTION 5.14. Undertaking for Costs |
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57 |
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SECTION 5.15. Waiver of Usury, Stay or Extension Laws |
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57 |
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ARTICLE VI
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THE TRUSTEE
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SECTION 6.1. Certain Duties and Responsibilities |
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57 |
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SECTION 6.2. Notice of Defaults |
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58 |
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SECTION 6.3. Certain Rights of Trustee |
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59 |
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SECTION 6.4. Not Responsible for Recitals or Issuance of Securities |
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60 |
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SECTION 6.5. May Hold Securities |
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60 |
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SECTION 6.6. Money Held in Trust |
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60 |
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SECTION 6.7. Compensation and Reimbursement |
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61 |
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SECTION 6.8. Disqualification; Conflicting Interests |
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SECTION 6.9. Corporate Trustee Required; Eligibility |
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61 |
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SECTION 6.10. Resignation and Removal; Appointment of Successor |
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SECTION 6.11. Acceptance of Appointment by Successor |
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63 |
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SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business |
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64 |
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SECTION 6.13. Preferential Collection of Claims Against Company |
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65 |
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SECTION 6.14. Appointment of Authenticating Agent |
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65 |
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ARTICLE VII
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HOLDER’S LISTS AND REPORTS BY TRUSTEE AND COMPANY
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SECTION 7.1. Company to Furnish Trustee Names and Addresses of Holders |
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67 |
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SECTION 7.2. Preservation of Information, Communications to Holders |
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67 |
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SECTION 7.3. Reports by Trustee |
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67 |
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SECTION 7.4. Reports by Company |
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68 |
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SECTION 7.5. Application of Reporting Requirements |
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68 |
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ARTICLE VIII
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CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
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SECTION 8.1. Company May Consolidate, Etc., Only on Certain Terms |
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68 |
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SECTION 8.2. Successor Corporation Substituted |
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69 |
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ARTICLE IX
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SUPPLEMENTAL INDENTURES
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SECTION 9.1. Supplemental Indentures without Consent of Holders |
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70 |
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SECTION 9.2. Supplemental Indentures with Consent of Holders |
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71 |
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SECTION 9.3. Execution of Supplemental Indentures |
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72 |
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SECTION 9.4. Effect of Supplemental Indentures |
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72 |
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SECTION 9.5. Conformity with Trust Indenture Act |
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73 |
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SECTION 9.6. Reference in Securities to Supplemental Indentures |
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73 |
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ARTICLE X
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COVENANTS
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SECTION 10.1. Payment of Principal, Premium and Interest |
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73 |
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SECTION 10.2. Maintenance of Office or Agency |
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SECTION 10.3. Money for Security Payments to be Held in Trust |
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SECTION 10.4. Statement as to Compliance |
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75 |
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SECTION 10.5. Waiver of Certain Covenants |
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75 |
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SECTION 10.6. Original Issue Discount |
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75 |
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ARTICLE XI
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REDEMPTION OF SECURITIES
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SECTION 11.1. Applicability of This Article |
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76 |
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SECTION 11.2. Election to Redeem; Notice to Trustee |
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76 |
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SECTION 11.3. Selection of Securities to be Redeemed |
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77 |
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SECTION 11.4. Notice of Redemption |
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77 |
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SECTION 11.5. Deposit of Redemption Price |
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78 |
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SECTION 11.6. Payment of Securities Called for Redemption |
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78 |
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ARTICLE XII
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SINKING FUNDS
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SECTION 12.1. Applicability of Article |
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79 |
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ARTICLE XIII
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SUBORDINATION OF SECURITIES
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SECTION 13.1. Securities Subordinate to Senior Indebtedness |
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79 |
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SECTION 13.2. No Payment When Senior Indebtedness in Default; Payment
Over of Proceeds Upon Dissolution, Etc. |
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79 |
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SECTION 13.3. Payment Permitted If No Default |
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81 |
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SECTION 13.4. Subrogation to Rights of Holders of Senior Indebtedness |
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81 |
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SECTION 13.5. Provisions Solely to Define Relative Rights |
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82 |
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SECTION 13.6. Trustee to Effectuate Subordination |
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82 |
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SECTION 13.7. No Waiver of Subordination Provisions |
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82 |
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SECTION 13.8. Notice to Trustee |
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83 |
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SECTION 13.9. Reliance on Judicial Order or Certificate of Liquidating Agent |
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84 |
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SECTION 13.10. Trustee Not Fiduciary for Holders of Senior Indebtedness |
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84 |
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SECTION 13.11. Rights of Trustee as Holder of Senior Indebtedness; Preservation
of Trustee’s Rights |
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84 |
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SECTION 13.12. Article Applicable to Paying Agents |
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84 |
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ANNEX A |
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– Form of Securities |
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ANNEX B |
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– Form of Restricted Securities Certificate |
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ANNEX C |
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– Form of Unrestricted Securities Certificate |
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ANNEX D |
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– Form of Officers’ Certificate |
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INDENTURE, dated as of February 12, 2007 between The Hartford Financial Services Group, Inc.,
a corporation duly organized and existing under the laws of the State of Delaware (herein called
the “Company”), having its principal office at Hartford Plaza, Hartford, Connecticut 06115, and
LaSalle Bank National Association, 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 has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of its Income Capital Obligation Notes due 2067 (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 covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1. 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, which are generally
accepted at the date or time of any 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; and
(4) Unless the context otherwise requires, any reference to an “Article” or “Section”
refers to an Article or a Section, as the case may be, of this Indenture.
(5) The words “herein,” “hereof”, “hereunder”, and “hereinafter” and other words of
similar import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
“ABC Trust” means Glen Meadow ABC Trust, a Delaware statutory trust.
“ABC Trust Securities” means the securities issued by the ABC Trust evidencing undivided
beneficial interests in the assets of the ABC Trust in accordance with the terms of the Trust
Agreement.
“ABC Trustee” means LaSalle Bank National Association, a national banking association
incorporated and existing under the laws of the United States of America.
“Act” when used with respect to any Holder has the meaning specified in Section 1.4.
“Actual/360 Basis” means a calculation for the relevant Interest Period or other period where
the actual number of days in the Interest Period or such other period in respect of which the
calculation is being made is divided by 360.
“Additional Interest” means the interest, if any, that shall accrue on any interest on the
Securities, the payment of which has not been made on the applicable Interest Payment Date and
which 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; provided,
however, the ABC Trust shall not be deemed to be an Affiliate of the Company. 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.
“Agent Member” means any member of, or participant in, the Depository.
“Alternative Payment Mechanism” means the obligations and limitations applicable to the
payment of Deferred Interest set forth in Section 3.2(d).
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“APM Maximum Obligation” has the meaning set forth in Section 3.2(d).
“Applicable Procedures” means, with respect to any transfer or transaction involving a Global
Security or beneficial interest therein, the rules and procedures of the Depository for such
Securities, in each case to the extent applicable to such transaction and as in effect from time to
time.
“Applicable Rate” has the meaning set forth in Section 3.2(a).
“Asset Swap Contract” means the ISDA Master Agreement, dated as of February 12, 2007, between
the ABC Trust and the Asset Swap Counterparty, including the Schedule and Credit Support Annex, a
Confirmation related thereto, and a Guarantee by Merrill Lynch & Co., Inc., a Delaware corporation,
of the obligations of the initial Asset Swap Counterparty, dated February 12, 2007, entered into
pursuant thereto, and any asset swap contract subsequently entered into between the ABC Trust and
any substitute Asset Swap Counterparty.
“Asset Swap Counterparty” means Merrill Lynch International under the Asset Swap Contract, or
any substitute or replacement Asset Swap Counterparty that enters into a replacement Asset Swap
Contract with the ABC Trust.
“Authenticating Agent” means any Person authorized by the Trustee pursuant to Section 6.14 to
act on behalf of the Trustee to authenticate the Securities.
“Bankruptcy Event” has the meaning set forth in Section 3.2(g).
“Board of Directors” means 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, or officers of the
Company to which authority to act on behalf of the Board of Directors has been delegated, and to be
in full force and effect on the date of such certification, and delivered to the Trustee.
“Business Day” means any day that is not a Saturday, Sunday or another day on which commercial
banks in The City of New York, New York are generally authorized or obligated by law to close.
“Code” means the Internal Revenue Code of 1986, as amended.
“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.
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“Common Stock” means the common stock, par value $0.01 per share, of the Company.
“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, 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 of the Company, and delivered
to the Trustee or, with respect to Sections 3.5, 3.6, 3.7, 3.8 and 6.3, any other employee of the
Company named in an Officers’ Certificate delivered to the Trustee.
“Corporate Trust Office” means the office of the Trustee at which at any particular time its
corporate trust business shall be principally administered, which office as of the date of this
Indenture is located at 2600 West Beaver Road, Suite 1400, Troy, Michigan 48084.
“Current Stock Market Price” means, as of any date, the closing sale price per share of the
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 average ask prices) on such date
as reported in composite transactions by the New York Stock Exchange or, if the Common Stock is not
listed on the New York Stock Exchange, as reported by the principal United States securities
exchange or The Nasdaq Global Market on which the Common Stock is traded or quoted. If the Common
Stock is not either listed on any United States securities exchange or quoted on The Nasdaq Global
Market on the relevant date, the Current Stock Market Price shall be the last quoted bid price for
the Common Stock in the over-the-counter market on the relevant date as reported by the National
Quotation Bureau or similar organization. If the Common Stock is not so quoted, the Current Stock
Market Price shall be the average of the mid-point of the last bid and ask prices for the Common
Stock on the relevant date from each of at least three nationally recognized independent investment
banking firms selected by the Company for this purpose.
“Defaulted Interest” has the meaning specified in Section 3.2.
“Deferred Interest” means as of any particular time, accrued interest on the Debentures that
was not paid on the applicable Interest Payment Date or at any time thereafter and that has not
been cancelled, and includes Additional Interest thereon accrued to such time.
-4-
“Depository” means, with respect to the Securities issuable or issued in whole or in part in
the form of one or more Global Securities, the Person designated as Depository by the Company
pursuant to Section 3.7.
“Distribution Date” means, with respect to the Pass-Through Trust Securities, each February 15
and August 15 during the period ending on February 15, 2017, commencing on August 15, 2007; each
February 15, May 15, August 15 and November 15 during the period commencing on February 15, 2017
and ending upon February 12, 2067; and the date on which the Pass-Through Trust is liquidated;
provided that if any such day is not a Business Day, the applicable Distribution Date will be the
following Business Day.
“Distribution Rate” means, with respect to the Pass-Through Trust Securities, for
distributions commencing on August 15, 2007, an annualized rate equal to 6.505% paid semi-annually,
for all distribution periods through February 15, 2017, and an annualized rate equal to 3-Month
LIBOR plus 2.125% paid quarterly for any distribution period through February 12, 2067.
“Eligible Equity” means (i) Common Stock and/or (ii) Qualified Warrants that the Company may
sell at its sole discretion.
“Eligible Equity Proceeds” means, as of any date, the net cash proceeds received by the
Company or any Subsidiary during the 180-day period immediately prior to such date from one or more
sales to Persons other than Subsidiaries of the Company of (x) shares of Common Stock, including
treasury stock of the Company and shares of Common Stock sold pursuant to the Company’s dividend
reinvestment plans and employee benefit plans in effect from time to time, and/or (y) Qualified
Warrants that the Company may sell at its sole discretion.
“Face Amount” means, with respect to the Pass-Through Trust Securities, the face amount of
each Pass-Through Trust Security, initially $1,000 per Pass-Through Trust Security, as adjusted
from time to time.
“Fifth Deferral Anniversary” means the date that is five years after the date of commencement
of an Optional Deferral Period, if on such date such Optional Deferral Period has not ended.
“Event of Default” has the meaning specified in Section 5.1.
“Exchange Act” means the Securities Exchange Act of 1934 and any statute successor thereto, in
each case as amended from time to time.
“Final Stated Maturity Date” has the meaning specified in Section 3.1(d).
-5-
“Global Security” means a Security evidencing all or part of the Securities, issued to the
Depository or its nominee, registered in the name of such Depository or its nominee, and bearing
the legend set forth in Section 2.3.
“Government Obligations” means 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 Securities Register.
“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 the Securities established as
contemplated by Section 3.1.
“Intent-Based Replacement Disclosure” has the meaning specified in Section 3.1(d)(ix)(A).
“Interest Payment Date” means the Stated Maturity of an installment of interest on the
Securities.
“Interest Period” means the period from and including any Interest Payment Date to but
excluding the next Interest Payment Date.
“Interest Rate Swap Contract” means the ISDA Master Agreement, dated as of February 12, 2007,
between the ABC Trust and the Interest Rate Swap Counterparty, including the Schedule and Credit
Support Annex, a Confirmation related thereto, and a Guarantee by Merrill Lynch & Co., Inc., a
Delaware corporation, of the obligations of the initial Interest Rate Swap Counterparty, dated
February 12, 2007, entered into pursuant thereto, and any interest rate swap contract subsequently
entered into between the ABC Trust and any substitute Interest Rate Swap Counterparty.
“Interest Rate Swap Counterparty” means Merrill Lynch Capital Services, Inc. under the
Interest Rate Swap Contract, or any substitute or replacement Interest Rate Swap Contract with the
ABC Trust.
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“Investment Company Event” means the receipt by the Company and the ABC Trust of an opinion of
counsel experienced in matters relating to investment companies to the effect that, as a result of
any: change in law or regulation; or change in interpretation or application of law or regulation
by any legislative body, court, governmental agency or regulatory authority, there is more than an
insubstantial risk that the ABC Trust or the Pass-Through Trust is or will be considered an
investment company that is required to be registered under the Investment Company Act of 1940,
which change becomes effective on or after the initial issuance of the Pass-Through Trust
Securities.
“Junior Subordinated Debt” means any obligation of the Company to its creditors, whether now
outstanding or subsequently incurred, where the instrument creating or evidencing the obligations
pursuant to which the obligation provides that it is subordinated and junior in right of payment to
Senior Indebtedness pursuant to subordination provisions substantially similar to those set forth
in this Indenture. “Junior Subordinated Debt” includes the Securities.
“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, England.
“Make-Whole Redemption Amount” means with respect to any principal amount of any Securities to
be redeemed, the sum of the following amounts as determined by the Premium Calculation Agent:
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(i) |
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the excess of (1) the present value of all remaining distributions on a
corresponding Face Amount of Pass-Through Trust Securities on or prior to February 15,
2017, assuming that distributions would have been made on each Distribution Date at
the Distribution Rate and the entire Face Amount of Pass-Through Trust Securities
would have been distributed in redemption of the Pass-Through Trust Securities on
February 15, 2017, discounted to the redemption date on a 30/360 Basis at a discount
rate equal to the Treasury Rate plus a spread of 0.35% over (2) the principal amount
of the Securities redeemed; |
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(ii) |
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plus, solely with respect to Securities held by the ABC Trust, if a net
payment is due by the ABC Trust upon termination of the Interest Rate Swap Contract on
the redemption date, an amount equal to that net payment; and |
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(iii) |
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minus, solely with respect to Securities held by the ABC Trust, if a net
payment is due by the Interest Rate Swap Counterparty to the ABC Trust upon
termination of the Interest Rate Swap Contract on the redemption date, an amount equal
to that net payment; |
provided that the Make-Whole Redemption Amount for any Securities will never be less than zero.
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“Market Disruption Event” means the occurrence or existence of any of the following events or
sets of circumstances:
(a) trading in securities generally on the principal exchange on which the Company’s
securities are listed or traded (the New York Stock Exchange as of the date of this
Indenture) shall have been suspended or materially disrupted or minimum prices shall have
been established on any such exchange or market by the Commission, by 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, Eligible Equity;
(b) the Company would be required to obtain the consent or approval of its
shareholders or a regulatory body (including, without limitation, any securities exchange)
or governmental authority to issue or sell Eligible Equity and such consent or approval has
not yet been obtained even though 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 Eligible Equity would, in the Company’s reasonable judgment, contain
an untrue statement of a material fact or omit to state a material fact required to be
stated in that offering document or necessary to make the statements in that offering
document not misleading and either (a) the disclosure of that event at the time the event
occurs, in the Company’s reasonable judgment, is not otherwise required by law and would
have a material adverse effect on the Company’s business or (b) the disclosure relates to a
previously undisclosed proposed or pending material business transaction, and the Company
has a bona fide business reason for keeping the same confidential or the disclosure of
which would impede the Company’s ability to consummate that transaction, provided that no
single suspension period contemplated by this clause (c) may exceed 90 consecutive days and
multiple suspension periods contemplated by this clause (c) may 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 Eligible Equity would not be in compliance with a rule or regulation of the Commission
(for reasons other than those referred to in the preceding clause (c)) and the Company is
unable to comply with such rule or regulation or such compliance is unduly burdensome,
provided that no single suspension period contemplated by this clause (d) may exceed 90
consecutive days and multiple suspension periods contemplated by this clause (d) may 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
-8-
without limitation as a result of terrorist activities, such that market trading in
the Eligible Equity has been materially disrupted;
(f) 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
Eligible Equity has been disrupted or ceased; or
(g) a banking moratorium shall have been declared by federal or state authorities of
the United States such that market trading in the Eligible Equity has been disrupted or
ceased.
“Maturity” when used with respect to any Security means the date on which the principal of
such Security becomes due and payable as therein or herein provided, whether at the Stated Maturity
or by declaration of acceleration, call for redemption or otherwise.
“Moneyline Telerate Page” means the display on Moneyline Telerate, Inc., or any successor
service, on Telerate Page 3750 or any replacement page or pages on that service.
“Non-Cumulative” has the meaning specified in Section 3.1(d)(ix)(B).
“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 3.1(d) or 10.4 shall be the principal executive, financial or
accounting officer of the Company.
“Opinion of Counsel” means a written opinion of counsel, who may be counsel for (and an
employee of) the Company, and who shall be reasonably acceptable to the Trustee.
“Optional Deferral Period” means each period beginning on an Interest Payment Date with
respect to which the Company elects to defer all or part of any interest payment payable on such
date and ending on the earlier of (i) the tenth anniversary of such Interest Payment Date and (ii)
the next Interest Payment Date on which the Company has paid all Deferred Interest.
“Optional Deferral Provision” has the meaning specified in Section 3.1(d).
“Original Issue Date” means the date of issuance specified as such in each Security.
-9-
“Outstanding” means, when used in reference to any Securities, as of the date of
determination, all Securities theretofore authenticated and delivered under this Indenture, except:
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(i) |
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Securities theretofore cancelled by the Trustee or delivered to the Trustee
for cancellation; |
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(ii) |
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Securities for whose payment or redemption money in the necessary amount has
been theretofore deposited with the Trustee or any Paying Agent in trust 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 |
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(iii) |
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Securities in substitution for or in lieu of which other Securities have
been authenticated and delivered or which have been paid pursuant to Section 3.6,
unless proof satisfactory to the Trustee is presented that any 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
Outstanding Securities have given, made or taken any request, demand, authorization, direction,
notice, consent, waiver, or other action hereunder as of any date, Securities owned by the Company
or any other obligor upon the Securities or any Affiliate of the Company or 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 such other
obligor.
“Pari Passu Securities” means (i) indebtedness the terms of which provide that such
indebtedness ranks equally with the Securities upon the Company’s liquidation; and (ii) guarantees
of indebtedness described in clause (i).
“Pass-Through Trust” means Glen Meadow Pass-Through Trust, a Delaware Statutory Trust.
“Pass-Through Trust Securities” means the ABC Pass-Through Trust Securities due February 12,
2067 issued by the Pass-Through Trust.
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“Paying Agent” means the Trustee or any other Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of the Company.
“Permitted Remedies” has the meaning specified in Section 3.1(d).
“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 the place or places where the principal of (and premium, if any) and
interest on the Securities are payable pursuant to Section 3.3(e).
“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 3.9 in exchange for or
in lieu of a mutilated, lost, destroyed or stolen Security shall be deemed to evidence the same
debt as the mutilated, lost, destroyed or stolen Security.
“Premium Calculation Agent” means the Person appointed by the Company pursuant to Section 3.14
to calculate the Make-Whole Redemption Amount, Special Event Make-Whole Redemption Amount, and, if
required to do so, 6-Month LIBOR and 3-Month LIBOR.
“Proceeding” has the meaning specified in Section 13.2.
“Put Option Agreement” means the Put Option Agreement, dated as of February 12, 2007, among
the Company, the ABC Trust and La Salle Bank National Association, as calculation agent.
“Qualified Warrants” means warrants for Common Stock that (i) have an exercise price greater
than the Current Stock Market Price of the Common Stock, (ii) the Company is not entitled to redeem
for cash and (iii) the holders of such warrants are not entitled to require the Company to
repurchase for cash in any circumstances.
“Ratings Agency Event” means, after the issuance of Securities, a change by any nationally
recognized statistical rating organization within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the
Exchange Act in its criteria for awarding equity credit to securities such as the Securities, which
change results in such rating organization allowing the Securities lower equity credit than the
equity credit that such rating organization previously awarded the Securities and applied
immediately prior to such change.
“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.
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“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 means the date
which is the fifth Business Day next preceding such Interest Payment Date.
“Repayment Date” means the Scheduled Maturity Date and each Interest Payment Date thereafter
until the Company shall have repaid or redeemed all of the Securities.
“Responsible Officer” means when used with respect to the Trustee, any officer assigned to the
Corporate Trust Office, including any managing director, vice president, assistant vice president,
assistant treasurer, assistant secretary or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers, and also, with
respect to a particular matter, any other officer, to whom such matter is referred because of such
officer’s knowledge of and familiarity with the particular subject.
“Restricted Security” means each Security required pursuant to Section 3.8(c) to bear a
Restricted Securities Legend.
“Restricted Securities Certificate” means a certificate substantially in the form set forth in
Annex C.
“Restricted Securities Legend” means a legend substantially in the form of the legend required
in the form of Security set forth in Section 3.8(c) to be placed upon a Restricted Security.
“Rule 144A” means Rule 144A under the Securities Act.
“Scheduled Maturity Date” has the meaning specified in Section 3.1(d).
“Securities” or “Security” means the Company’s Income Capital Obligation Notes due 2067 may
be, authenticated and delivered under this Indenture.
“Securities Act” means the Securities Act of 1933 (or any successor statute), as it may be
amended from time to time.
“Securities Register” and “Securities Registrar” have the respective meanings specified in
Section 3.8.
“Senior Indebtedness” means the principal of (and premium, if any) and interest, if any
(including interest accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company whether or not such claim for post-petition interest is
allowed in such proceeding), on any Indebtedness of the Company, whether incurred on or prior to
the date of this Indenture or thereafter incurred, unless, in the
-12-
instrument creating or evidencing the same or pursuant to which the same is outstanding, it is
provided that such obligations are not superior in right of payment to the Securities or to other
Indebtedness which is pari passu with, or subordinated to, the Securities; provided, however, that
Senior Indebtedness shall not be deemed to include Indebtedness or other monetary obligations to
trade creditors created or assumed by the Company in the ordinary course of business in connection
with the obtaining of goods, materials or services.
“Shares Available for Issuance” has the meaning specified in Section 3.2(d).
“6-Month LIBOR” means, with respect to an Interest Period, the rate obtained from the Asset
Swap Counterparty pursuant to Section 3.2(a); provided that if the Asset Swap Counterparty does not
provide the rate, 6-Month LIBOR means the rate for deposits in U.S. dollars for a 6-month period
that appears on Telerate Page 3750 as of 11:00 a.m., London time, on the day that is two London
Banking Days preceding the first day of such Distribution Period. If such rate does not appear on
Telerate Page 3750, the rate for the first day of such Interest Period will be determined on the
basis of the rates at which deposits in U.S. dollars for are offered by four major banks in the
London interbank market at approximately 11:00 a.m., London time, on the day that is two London
Banking Days preceding the first day of such Interest Period to prime banks in the London interbank
market for a period of 6-months commencing on the first day of such Interest Period and in a
principal amount of not less than a representative amount. The Premium Calculation Agent will
request the principal London office of each such four major banks to provide a quotation of its
rate. If at least two such quotations are provided, the rate for the first day of such Interest
Period will be the arithmetic mean of such quotations. If fewer than two quotations are provided,
as requested, the rate for the first day of such Interest Period will be the arithmetic mean of the
rates quoted by major banks in New York City, selected by the Premium Calculation Agent, at
approximately 11:00 a.m., New York City time, on the first day of such Interest Period for loans in
U.S. dollars to leading European banks for a 6-month period commencing on the first day of such
Interest Period and in a representative amount.
“6-Month LIBOR Period” has the meaning specified in Section 3.2.
“Special Event” means the occurrence of a Tax Event, an Investment Company Event or a Ratings
Agency Event.
“Special Event Make-Whole Redemption Amount” means with respect to any principal amount of any
Securities to be redeemed, the sum of the following amounts as determined by the Premium
Calculation Agent: (i) the excess of (1) the present value of all remaining distributions on a
corresponding Face Amount of Pass-Through Trust Securities on or prior to February 15, 2017,
assuming that distributions would have been made on each Distribution Date at the Distribution Rate
and the entire Face Amount of Pass-Through Trust Securities would have been distributed in
redemption of the Pass-Through Trust Securities on February 15, 2017, discounted to the redemption
date on a
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30/360 Basis at a discount rate equal to the Treasury Rate plus a spread of 0.50% over (2) the
principal amount of the Securities redeemed; (ii) plus, solely with respect to Securities held by
the ABC Trust, if a net payment is due by the ABC Trust upon termination of the Interest Rate Swap
Contract on the redemption date, an amount equal to that net payment; and (iii) minus, solely with
respect to Securities held by the ABC Trust, if a net payment is due by the Interest Rate Swap
Counterparty to the ABC Trust upon termination of the Interest Rate Swap Contract on the redemption
date, an amount equal to that net payment; provided that the “Special Event Make-Whole Redemption
Amount” for any Securities will never be less than zero.
“Special Record Date” for the payment of any Defaulted Interest means a date fixed by the
Trustee pursuant to Section 3.2(e).
“Specified Securities” has the meaning specified in Section 3.1(d)(ix).
“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 date on which the
principal of such Security or such installment of principal or interest is due and payable, in the
case of such principal or installment of principal, as such date may be shortened or extended as
provided pursuant to the terms of this Indenture.
“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 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.
“Successor Security” of any particular Security means every Security issued after, and
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 3.5 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.
“Tax Event” means that the Company will have received 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 prospective change) in, the
laws (or any regulations under those laws) of the United States or any political subdivision or
taxing authority thereof or therein affecting taxation; (ii) official administrative pronouncement
(including a private letter ruling, technical advice memorandum or similar pronouncement) or
judicial decision interpreting or applying the laws or regulations enumerated in the preceding
bullet point, by any court, governmental agency or regulatory authority; or (iii) threatened
challenge asserted in connection with an audit of the Company or any of its subsidiaries, or a
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threatened challenge asserted in writing against any other taxpayer that has raised capital
through the issuance of securities that are substantially similar to the Securities; in each case,
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
of initial issuance of the Pass-Through Trust Securities, there is more than an insubstantial risk
that interest accruable or payable by the Company on the Securities is not, or will not be, within
180 days of the opinion of counsel, deductible, in whole or in part, for U.S. federal income tax
purposes.
“Telerate Page 3750” means the display designated on page 3750 on Moneyline Telerate Page (or
such other page as may replace the 3750 page on the service or such other service as may be
nominated by the British Bankers’ Association for the purpose of displaying London interbank
offered rates for U.S. dollar deposits).
“Tenth Deferral Anniversary” means the date that is ten years after the date of commencement
of an Optional Deferral Period, if on such date such Optional Deferral Period has not ended.
“30/360 Basis” means a calculation for the relevant Interest Period or other period based on
the number of days in the Interest Period or other period divided by 360 (the number of days to be
calculated on the basis of a year of 360 days with twelve 30-day months).
“3-Month LIBOR” means, with respect to an Interest Period, the rate obtained from the Asset
Swap Counterparty pursuant to Section 3.2(a); provided that if the Asset Swap Counterparty does not
provide the rate, 3-Month LIBOR means the rate for deposits in U.S. dollars for a 3-month period
that appears on Telerate Page 3750 as of 11:00 a.m., London time, on the day that is two London
Banking Days preceding the first day of such Interest Period. If such rate does not appear on
Telerate Page 3750, the rate for that Interest Period will be determined on the basis of the rates
at which deposits in U.S. dollars for are offered by four major banks in the London interbank
market at approximately 11:00 a.m., London time, on the day that is two London Banking Days
preceding the first day of such Interest Period to prime banks in the London interbank market for a
period of 3-months commencing on the first day of such Interest Period and in a principal amount of
not less than a representative amount. The Premium Calculation Agent will request the principal
London office of each such four major banks to provide a quotation of its rate. If at least two
such quotations are provided, the rate for that Interest Period will be the arithmetic mean of such
quotations. If fewer than two quotations are provided, as requested, the rate for that Interest
Period will be the arithmetic mean of the rates quoted by major banks in New York City, selected by
the Premium Calculation Agent, at approximately 11:00 a.m., New York City time, on the first day of
such Interest Period for loans in U.S. dollars to leading European banks for a 3-month period
commencing on the first day of such Interest Period and in a representative amount.
“3-Month LIBOR Period” has the meaning specified in Section 3.2.
-15-
“Treasury Dealer” means Merrill Lynch & Co. (or its successor) or, if Merrill Lynch & Co. (or
its successor) refuses to act as Treasury Dealer for this purpose 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 the bid-side price for the Treasury Security as of the third trading
day preceding the redemption date, as set forth in the daily statistical release (or any successor
release) published by the Federal Reserve Bank of New York on that trading day and designated
“Composite 3:30 P.M. Quotations for U.S. Government Securities,” 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
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 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 the semi-annual equivalent yield to maturity of the Treasury Security
that corresponds to the Treasury Price (calculated in accordance with standard market practice and
computed as of the second trading day preceding the 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 subordinated debentures being redeemed in a tender offer
based on a spread to United States Treasury yields.
“Trust Agreement” means the Fourth Amended and Restated Declaration of Trust of Glen Meadow
ABC Trust, dated as of February 12, 2007, among Merrill Lynch, Pierce, Fenner & Smith Incorporated,
a Delaware corporation as depositor, LaSalle Bank National Association, a national banking
association, as trustee, LaSalle National Trust Delaware, a national banking association with its
principal place of business in Delaware, as Delaware trustee, and LaSalle Bank National
Association, a national banking association, as tax matters administrator, as amended or
supplemented from time to time.
“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.
“Trust Indenture Act” means the Trust Indenture Act of 1939 (15 U.S.C. §77aaa through
§77bbbb), as amended and as in effect on the date as of this Indenture, except as provided in
Section 9.5.
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“Unrestricted Securities Certificate” means a certificate substantially in the form set forth
in Annex D.
“Vice President” when used with respect to the Company, means any duly appointed vice
president, whether or not designated by a number or a word or words added before or after the title
“vice president.”
SECTION 1.2. 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 an Officers’ Certificate
stating that all conditions precedent (including covenants, compliance with which constitutes a
condition precedent), if any, provided for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent (including covenants compliance with which constitute a condition precedent),
if any, have been complied with, except that in the case of any such application or request as to
which the furnishing of an Officers’ Certificate or an Opinion of Counsel is specifically required
by any provision of this Indenture relating to such particular application or request, no
additional Officers’ Certificate or Opinion of Counsel 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 10.4) shall include
a statement to the following effect:
(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 1.3. Forms 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
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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 matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an officer or officers,
or management employee of the Company stating that the information with respect to such factual
matters is in the possession of the Company, 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 1.4. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided or permitted by this Indenture to be given, made to 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 6.1) 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 the 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 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
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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 Securities Register.
(e) Any request, demand, authorization, direction, notice, consent, waiver or other action by
the Holder of any Security shall bind every future Holder of the same Security and the Holder of
every Security issued upon the 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 hereinafter in this Section 1.4(f) provided) 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 1.6.
The Trustee may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities entitled to join in the giving or making of (i) any Notice of Default, (ii)
any declaration of acceleration referred to in Section 5.2, (iii) any request to institute
proceedings referred to in Section 5.7(2) or (iv) any direction referred to in Section 5.12. 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
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paragraph shall be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person be cancelled and of
no effect), and nothing in this paragraph shall be construed to render ineffective any action taken
by Holders of the requisite principal amount of Outstanding Securities on the date such action is
taken. Promptly after any record date is set pursuant to this paragraph, the Trustee, at the
Company’s expense, shall cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Company in writing and to each Holder of Securities
in the manner set forth in Section 1.6.
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 1.6, 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.
(g) Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder
with regard to any particular Security may do so with regard to all or any part of the principal
amount of such Security or by one or more duly appointed agents each of which may do so pursuant to
such appointment with regard to all or any part of such principal amount.
SECTION 1.5. 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 the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, or
(2) the Company by the Trustee or any Holder shall be sufficient for every purpose
(except as otherwise provided in Section 5.2) hereunder if in writing and mailed, first
class, postage prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument or at any other address
previously furnished in writing to the Trustee by the Company.
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Neither the Company nor the Trustee shall be deemed to have received any such request, demand,
authorizations, direction, notice, consent, waiver or Act of Holders unless given, furnished or
filed as provided in this Section 1.5.
SECTION 1.6. 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 Securities 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. In case, by reason of the suspension of or irregularities in regular mail service or for
any other reason, it shall be impossible or impracticable to mail notice of any event to Holders
when said notice is required to be given pursuant to any provision of this Indenture or of the
Securities, then any manner of giving such notice as shall be satisfactory to the Trustee shall be
deemed to be a sufficient giving of such notice. 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.
SECTION 1.7. Conflict with Trust Indenture Act.
The Trust Indenture Act shall apply as a matter of contract to this Indenture for purposes of
interpretation, construction and defining the rights and obligations hereunder. If any provision of
this Indenture limits, qualifies or conflicts with the duties imposed by any of Sections 310 to
317, inclusive, of the Trust Indenture Act through operation of Section 3.18(c) thereof, such
imposed duties shall control.
SECTION 1.8. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 1.9. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
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SECTION 1.10. 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 1.11. 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, the holders of
Senior Indebtedness and the Holders of the Securities, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
SECTION 1.12. 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 1.13. Non-Business Days.
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 the Securities) 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 (and no interest shall
accrue for the period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be, until such 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 (in each case with the same force and effect as if made on the Interest
Payment Date or Redemption Date, Maturity or at the Stated Maturity).
ARTICLE II
SECURITY FORMS
SECTION 2.1. Forms Generally.
The Securities shall be in substantially the form set forth in Annex A hereto, with such
appropriate insertions, omissions, substitutions and other variations 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 Depository therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their execution of the
Securities.
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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 or produced by any
combination of these methods, if required by any securities exchange on which the Securities may be
listed, on a steel engraved border or steel engraved borders 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.
Securities distributed to holders of ABC Trust Securities upon the dissolution, winding-up or
liquidation of the ABC Trust, or if any Securities are sold by the ABC Trust at any other time, the
Securities held by persons other than the ABC Trust shall be distributed in the form of one or more
Global Securities registered in the name of a Depository or its nominee, and deposited with the
Securities Registrar, as custodian for such Depository, or held by such Depository, for credit by
the Depository to the respective accounts of the beneficial owners of the Securities represented
thereby (or such other accounts as they may direct).
SECTION 2.2. Restricted Security Legend
Any Restricted Security shall bear a legend in substantially the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO A
PERSON WHO IS (1) A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) KNOWLEDGEABLE, SOPHISTICATED AND EXPERIENCED
IN BUSINESS AND FINANCIAL MATTERS, (3) ABLE AND PREPARED TO BEAR THE ECONOMIC RISK OF INVESTING IN
AND HOLDING THIS SECURITY, (4) A “UNITED STATES PERSON” FOR UNITED STATES FEDERAL INCOME TAX
PURPOSES (OTHER THAN AN “S CORPORATION” AS DEFINED IN SECTION 1361 OF THE INTERNAL REVENUE CODE OF
1986) (THE “CODE”)) AND (5) NOT AN EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION 1361 OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”)) THAT IS SUBJECT TO ERISA, A
PLAN DESCRIBED IN SECTION 4975 OF THE CODE OR AN ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO
INCLUDE PLAN ASSETS OF ANY SUCH PLANS, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF THE STATES AND OTHER JURISDICTIONS OF THE UNITED STATES. THE
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HOLDER OF THIS SECURITY AGREES THAT IT WILL COMPLY WITH THE FOREGOING RESTRICTIONS.
SECTION 2.3. Legend Required in Global Security.
Any Global Security issued hereunder shall bear a legend in substantially the following form:
“THIS SECURITY, IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE
OF A DEPOSITORY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE
NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE
DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY.”
SECTION 2.4. Form of Trustee’s Certificate of Authentication.
The Trustee’s Certificate 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:
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LaSalle Bank National Association, |
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as Trustee |
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By: |
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Authorized Signatory |
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ARTICLE III
THE SECURITIES
SECTION 3.1. Title and Terms.
(a) Aggregate Principal Amount. The aggregate principal amount of Securities which may
be authenticated and delivered under this Indenture is $500,001,000.
(b) Designation. The Securities issuable under this Indenture shall be known and
designated as the “Income Capital Obligation Notes due 2067” of the Company (the “Securities”).
(c) Notes to form Single Series. The Company may from time to time issue Securities
hereunder as provided in Section 3.5 hereof, in each case with such appropriate insertions,
omissions, substitutions and other variations as are 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 the rules of any securities exchange or Depository therefor or as
may, consistently herewith, be determined by the officers executing such Securities, as evidenced
by their execution thereof. Any Securities issued at any time pursuant to this Indenture shall
have, when issued, the same terms and conditions in all respects (or in all respects except for the
first Interest Period thereon, if applicable) as provided herein. Upon issue of any new
Securities, such new Securities and the existing Securities shall form a single series of
Securities.
(d) Scheduled Maturity Date. (i) The principal amount and accrued and unpaid interest
on the Securities shall be payable in full on February 12, 2047, or if such day is not a Business
Day, the following Business Day (the “Scheduled Maturity Date”); provided that in the event the
Company has delivered an Officers’ Certificate to the Trustee pursuant to clause (vii) of this
Section 3.1(d) in connection with the Scheduled Maturity Date, (A) the principal amount of
Securities payable on the Scheduled Maturity Date, if any, shall be the principal amount set forth
in the notice of repayment accompanying such Officers’ Certificate, (B) such principal amount of
Securities shall be repaid on the Scheduled Maturity Date pursuant to Section 3.3, and (C) subject
to clause (ii) of this Section 3.1(d), the remaining Securities shall remain outstanding and shall
be payable on the immediately succeeding Interest Payment Date or such earlier date on which they
are redeemed pursuant to Article XI or shall become due and payable pursuant to Section 5.2. The
entire principal amount of the Securities Outstanding shall be due and payable on the Scheduled
Maturity Date in the event the Company does not deliver such Officers’ Certificate to the Trustee
on or prior to the 10th Business Day immediately preceding the Scheduled Maturity Date.
(ii) In the event the Company has delivered an Officers’ Certificate to the Trustee
pursuant to clause (vii) of this Section 3.1(d) in connection with any
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Interest Payment Date, the principal amount of Securities payable on such Interest
Payment Date shall be the principal amount set forth in the notice of repayment, if any,
accompanying such Officers’ Certificate, such principal amount of Securities shall be
repaid on such Interest Payment Date pursuant to Section 3.3, and the remaining Securities
shall remain Outstanding and shall be payable on the immediately succeeding Interest
Payment Date or such earlier date on which they are redeemed pursuant to Article XI or
shall become due and payable pursuant to Section 5.2 of the Indenture. The entire
principal amount of the Securities outstanding shall be due and payable on any Interest
Payment Date in the event the Company does not deliver an Officers’ Certificate to the
Trustee on or prior to the 10th Business Day immediately preceding such Interest
Payment Date.
(iii) The principal of, and all accrued and unpaid interest on, all outstanding
Securities shall be due and payable on February 12, 2067, or if such day is not a Business
Day, the following Business Day (the “Final Stated Maturity Date”).
(iv) The obligation of the Company to repay the Securities pursuant to this Section
3.1(d) on any date prior to the Final Stated Maturity Date shall be subject to (A) any
obligations under Section 13.2 of the Indenture to the holders of Senior Indebtedness and
(B) its obligations under Section 3.2(d) with respect to the payment of Deferred Interest
on the Securities.
(v) Until the Securities are paid in full, the Company shall use “commercially
reasonable efforts” (as defined in clause (vi) below) subject to a Market Disruption Event
and subject to the Company’s right to redeem Securities pursuant to Article XI:
(A) to raise sufficient net proceeds from the issuance of Specified Securities
during a 180-day period ending on the date, not more than 15 and not less than 10
Business Days prior to the Scheduled Maturity Date, on which the Company delivers
the notice required by Section 3.3 to permit repayment of the Securities in full on
the Scheduled Maturity Date pursuant to clause (i) of this Section 3.1(d); and
(B) if the Company is unable for any reason to raise sufficient proceeds from
the issuance of Specified Securities to permit payment in full on the Scheduled
Maturity Date or any subsequent Interest Payment Date, on which the Company
delivers the notice required by Section 3.3, to raise sufficient net proceeds from
the issuance of Specified Securities to permit repayment of the Securities in full
on such date pursuant to clause (ii) of this Section 3.1(d); and
the Company shall apply any such net proceeds to the repayment of the Securities
as provided in clause (viii) of this Section 3.1(d).
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(vi) For purposes of this Section 3.1(d), “commercially reasonable efforts” to sell
Specified Securities means commercially reasonable efforts to complete the offer and sale
of Specified Securities to Persons other than Subsidiaries in public offerings or private
placements. The Company shall not be considered to have made commercially reasonable
efforts to effect a sale of Specified Securities if it determines not to pursue or complete
such sale due to pricing, coupon, dividend rate or dilution considerations.
(vii) The Company shall, if it has not raised sufficient net proceeds from the issuance
of Specified Securities pursuant to clause (v) above in connection with any Repayment Date,
deliver an Officers’ Certificate to the Trustee (which the Trustee will promptly forward
upon receipt to the ABC Trustee, who shall forward such certificate to the holder of ABC
Trust Securities, and to any Holders other than the ABC Trust) no more than 15 and no less
than 10 Business Days in advance of such Repayment Date stating the amount of net proceeds,
if any, raised pursuant to clause (v) above in connection with such Repayment Date. The
Company shall be excused from its obligation to use commercially reasonable efforts to
sell Specified Securities pursuant to clause (v) above if such Officers’ Certificate
further certifies that: (A) a Market Disruption Event was existing during the entire
Interest Period; or (B) the Company was unable after using commercially reasonable efforts
to raise sufficient net proceeds during the applicable Interest Period to permit repayment
of the Securities on the applicable required Repayment Date. Each Officers’ Certificate
delivered pursuant to this clause (vii), unless no principal amount of Securities is to be
repaid on the applicable Repayment Date, shall be accompanied by a notice of repayment
pursuant to Section 3.3(c) setting forth the principal amount of the Securities to be
repaid on such Repayment Date, which amount shall be determined after giving effect to
clause (viii) of this Section 3.1(d).
(viii) Net proceeds of the issuance of any Specified Securities that the Company is
permitted to apply to repayment of the Securities on any Repayment Date will be applied,
first, to pay Deferred Interest, second, to pay current interest to the
extent not paid from other sources and, third, to repay the principal of
Securities, subject to a minimum principal amount of $5.0 million (or, if less than $5.0
million aggregate principal amount of Securities remain outstanding, the remaining
aggregate outstanding principal amount thereafter) to be repaid on the Scheduled Maturity
Date or any Interest Payment Date; provided that if the Company is obligated to sell
Specified Securities and apply the net proceeds to payments of principal of or interest on
any outstanding securities in addition to the Securities, then 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 Securities and those other securities having the
same Scheduled Maturity Date as the Securities pro rata in accordance with their respective
outstanding principal amounts and none of such net proceeds shall be applied to
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any other securities having a later scheduled maturity date until the principal of and
all accrued and unpaid interest on the Securities has been paid in full.
(ix) For purposes of the Company’s obligation to repay the Securities on the
Scheduled Maturity Date and thereafter as described in this Section 3.1(d), “Specified
Securities” means securities (other than the Securities, Common Stock or securities
convertible into Common Stock) that, in the determination of the Company’s Board of
Directors reasonably construing the terms of the Indenture, satisfy one of the following
criteria:
(A) preferred stock issued by the Company that (i) has no maturity or a
maturity of at least 60 years, (ii) is accompanied by a public statement, 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 Exchange Act prior to or contemporaneously with the issuance of such
securities (“Intent-Based Replacement Disclosure”), that the issuer will redeem or
repurchase such securities only with the proceeds of specified replacement capital
securities that have terms and provisions at the time of redemption or repurchase
that are as or more equity-like than the securities then being redeemed or
repurchased, raised within 180 days prior to the applicable redemption or
repurchase date and (iii) includes a provision in the terms thereof or of the
related transaction agreements to the effect that the issuer of such securities
may, in its sole discretion, defer or skip in whole or in part payment of
distributions on such securities for one or more consecutive distribution periods
of up to ten years without any remedy other than Permitted Remedies (an “Optional
Deferral Provision”);
(B) preferred stock issued by the Company that (i) has no maturity or a
maturity of at least 60 years and (ii) is non-cumulative (“Non-Cumulative”) such
that the Company 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 of the following remedies (“Permitted
Remedies”): (A) rights in favor of the holders of such securities permitting such
holders to elect one or more directors of the Company (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 Company paying distributions on or repurchasing Common Stock or other
securities that rank pari passu with or junior as to distributions to such
securities for so long as distributions on such securities, including unpaid
distributions, remain unpaid;
(C) securities issued by the Company or its Subsidiaries that (i) rank pari
passu with or junior to the Securities upon a liquidation,
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dissolution or winding up of the Company, (ii) have no maturity or a maturity
of at least 60 years, (iii) are accompanied by Intent-Based Replacement Disclosure
and (iv) includes an Optional Deferral Provision;
(D) any other criteria for classes of Specified Securities added by the
Company, in its sole discretion, to the Indenture from time to time in connection
with its entering into a covenant for the benefit of holders of indebtedness of the
Company (senior to the Securities in liquidation) restricting the circumstances
under which the Company or its Subsidiaries can redeem or defease the Securities or
purchase the Securities, the ABC Trust Securities or the Pass-Through Trust
Securities.
The Company may, in its sole discretion, add additional types of securities to the definition
of Specified Securities pursuant to the final clause of paragraph (D) above, whether in connection
with the issuance of the Securities or at any time while the Securities are outstanding, without
the consent of any holder of the Securities, ABC Trust Securities or Pass-Through Trust Securities.
If the Company adds additional types of securities to the definition of Specified Securities in
this manner, it subsequently may remove or modify the descriptions of these types of securities
without the consent of any Holder of the Securities, or any holder of ABC Trust Securities or
Pass-Through Trust Securities, provided that in no circumstances may the Company eliminate
securities of the type described in paragraphs (A)-(C) above without the consent of the Holders of
not less than a majority of the outstanding principal amount of the Securities.
SECTION 3.2. Interest.
(a) Rate of Interest. Each Security shall bear interest at the Applicable Rate. The
Applicable Rate means:
(i) with respect to any Interest Period ending on or prior to February 15, 2017 (the
“6-Month LIBOR Period”) the sum of (x) an amount equal to 6-Month LIBOR for the applicable
Interest Period applied to the average daily aggregate principal balance of Securities
outstanding during such Interest Period, on an Actual/360 Basis, plus (y) an amount equal
to 1.155% per annum applied to the average daily aggregate principal balance of the
Securities outstanding during such Interest Period, on a 30/360 Basis; and (ii) with
respect to any Interest Period commencing on or after February 15, 2017 (the “3-Month LIBOR
Period”) the sum of (x) an amount equal to 3-Month LIBOR for the applicable Interest Period
applied to the average daily aggregate principal balance of Securities outstanding during
such Interest Period, on an Actual/360 Basis, plus (y) an amount equal to 2.125% per annum
applied to the average daily aggregate principal balance of the Securities outstanding
during such Interest Period, on an Actual/360 Basis. The date from which such interest
shall accrue is the date the Securities are issued; and the Interest Payment Dates on which
such interest shall be payable are February 15 and August 15 during the 6-Month LIBOR
Period, and February 15,
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May 15, August 15 and November 15 during the 3-Month LIBOR Period. The first Interest
Payment Date for any Security shall be the first to occur of such dates after the date such
Security is issued. Interest payments not paid when due will themselves accrue Additional
Interest at the Applicable Rate on the amount of unpaid interest, to the extent permitted
by law, compounded semi-annually during the 6-Month LIBOR Period and quarterly during the
3-Month LIBOR Period. The amount of interest accruing will be computed by multiplying the
applicable 6-Month LIBOR or 3-Month LIBOR by a fraction, the numerator of which will be the
actual number of days elapsed during such period and the denominator of which will be 360.
The Premium Calculation Agent shall obtain 6-Month LIBOR or 3-Month LIBOR, as applicable,
from the Asset Swap Counterparty; provided, however, that if the Asset Swap Counterparty
does not provide 6-Month LIBOR or 3-Month LIBOR, within a reasonable period of time, the
Premium Calculation Agent shall make such determination.
(b) To Whom Interest Payable. Interest will be payable to the Person in whose name
the Securities are registered at the close of business on the Regular Record Date next preceding
the Interest Payment Date, except that, interest payable on the Stated Maturity of the principal of
the Securities shall be paid to the Person to whom principal is paid.
(c) Option to Defer Interest Payments.
(i) The Company shall have the right, at any time and from time to time prior to the
Final Stated Maturity Date of the Securities, to defer the payment of interest thereon for
one or more Optional Deferral Periods for no more than five consecutive years without
becoming subject to the obligations provided for in paragraph (d) of this Section 3.2. The
Company shall also have the right, at any time and from time to time prior to the Final
Stated Maturity Date of the Securities, to defer payment of interest thereon for one or
more Optional Deferral Periods for no more than ten consecutive years, without giving rise
to an Event of Default and acceleration hereunder. During an Optional Deferral Period, any
Deferred Interest on the Securities will accrue Additional Interest at the interest rate
applicable to the Securities at such time compounded as of each Interest Payment Date to
the extent permitted by applicable law. No interest will be due and payable on the
Securities until the end of the Optional Deferral Period except upon a redemption of the
Securities during an Optional Deferral Period or upon the payment of current interest (but
only to the extent required by Section this 3.2(c)). The Company may elect to so defer
payment of interest by delivering to the Trustee written notice of such election at least
ten Business Days and not more than 60 Business Days prior to the applicable Interest
Payment Date and the Trustee shall promptly give notice thereof to the Holders.
Notwithstanding the foregoing, no Optional Deferral Period shall extend beyond the Final
Stated Maturity Date of the Securities or, if earlier, the redemption or repayment in full
of the Securities.
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(ii) During any Optional Deferral Period, 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 of the Company’s capital
stock, other than (1) 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 any one or more
employees, officers, directors or consultants, in connection with a dividend
reinvestment or shareholder stock purchase plan or in connection with the issuance
of capital stock of the Company (or securities convertible into or exercisable for
such stock) as consideration in an acquisition transaction entered into prior to
the applicable Optional Deferral Period, (2) as a result of an exchange or
conversion of any class or series of the Company’s capital stock (or any capital
stock of a Subsidiary of the Company) 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 its capital stock, (3) the 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, (4) any declaration of a dividend in connection with the
implementation or amendment of any Company shareholders’ rights plan (or any
successor thereto), or the issuance of rights, stock or other property under any
such rights plan, or the redemption or repurchase of rights in accordance with any
Company shareholders’ rights plan (or any successor thereto), and (5) any dividend
in the form of stock, warrants, options or other rights where the dividend stock or
the stock issuable upon exercise of such warrants, options or other rights is the
same stock as that on which the dividend is being paid or ranks pari passu with or
junior to such stock; or
(B) make any payment of principal of or interest or premium, if any, on or
repay, repurchase or redeem any Pari Passu Securities or debt securities or
guarantees of the Company that rank upon the Company’s liquidation junior to the
Securities, other than any payment of current interest on Pari Passu Securities
that is made pro rata to the amounts of current interest due on such Pari Passu
Securities and the Securities and any payment of deferred interest on Pari Passu
Securities that is made pro rata to the amount of deferred interest accrued and
unpaid on the Pari Passu Securities and the Securities.
(iii) Upon the payment of all Deferred Interest then due on the Securities, the
Company may elect to begin a new Optional Deferral Period, which shall not extend beyond
the Final Stated Maturity Date or, if earlier, the
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redemption or repayment in full of the Securities. After a Tenth Deferral
Anniversary, the Company shall pay all Deferred Interest on the Securities that has not
been cancelled to the extent permitted by applicable law, to the Persons in whose names the
Securities are registered at the close of business on the Regular Record Date with respect
to the Interest Payment Date for such Tenth Deferral Anniversary.
(iv) In the case of any Optional Deferral Period that does not terminate on or prior
to the first anniversary of the commencement of such Optional Deferral Period, the
restrictions set forth in Section 3.2(c)(ii) shall continue in effect in respect of any
redemption, purchase or repurchase of the Company’s securities that rank pari passu with or
junior in interest to the Securities upon our liquidation until the first anniversary of
the termination of such Optional Deferral Period.
(v) The Company may pay current interest on any Interest Payment Date (including an
Interest Payment Date that occurs after commencement of an Optional Deferral Period) from
any source of funds. Except as provided below in paragraph (d), the Company shall not pay
Deferred Interest from any source of funds other than Eligible Equity Proceeds.
(d) Payment of Deferred Interest.
The Company will not pay Deferred Interest on the Securities on any Interest Payment Date
during any Optional Deferral Period from any source other than from Eligible Equity Proceeds.
Notwithstanding the foregoing, at the Final Stated Maturity Date or upon an Event of Default and
acceleration hereunder, the Company may pay unpaid accrued interest without regard to the source of
funds.
(i) Commencing on the earlier of (A) the Fifth Deferral Anniversary and (B) the first
date of any payment of current interest on the Securities during an Optional Deferral
Period, if any Deferred Interest is outstanding, the Company shall continuously use its
“commercially reasonable efforts” (as defined in clause (viii) below) to effect sales of
shares of Common Stock in an amount that will generate sufficient net Eligible Equity
Proceeds to enable the Company to pay in full all Deferred Interest on the Securities then
outstanding. Notwithstanding (and as a qualification to) the foregoing or any other
provision of this Indenture, (x) the Company shall not be obligated to make offers for or
effect sales of Common Stock during the occurrence and continuation of a Market Disruption
Event, and (y) the Company shall not pay interest on the Securities at a time when such
payment would violate a specific prohibition against payment of interest contained in the
terms of any Pari Passu Securities or securities ranking senior to the Securities upon a
liquidation of the Company. The Company’s obligation to use commercially reasonable
efforts to sell Common Stock to pay all
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Deferred Interest on the Securities shall resume at such time as no Market Disruption
Event exists or is continuing.
(ii) The Company is not permitted to sell shares of Common Stock in excess of the
“Shares Available for Issuance”, determined pursuant to this sub-paragraph (ii), for the
purpose of satisfying the Company’s obligations under Section 3.2(d)(i) or otherwise paying
Deferred Interest on the Securities then outstanding. The Company shall use its
commercially reasonable efforts to seek shareholder consent to increase its authorized
shares of Common Stock if, on any Interest Payment Date, its Shares Available for Issuance
fall below the greater of (i) 65 million shares (as adjusted for any stock split, stock
dividend, reclassification, recapitalization, split-up, combination, exchange of shares or
similar transaction); and (ii) the number of shares that the Company would need to issue to
raise sufficient net proceeds (assuming a price per share equal to the average trading
price of its shares over the ten day trading 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 on the Securities plus (2) the amount of additional interest that would
accumulate on the Securities during the next twelve months assuming no payments of interest
are made, or (b) the amount of interest that would accumulate on the Securities during the
period ended on the tenth anniversary of the commencement of the then-current Optional
Deferral Period given the amounts already deferred as of that date, in each of cases (a)
and (b) assuming that interest payable in the future at a floating rate will be computed
utilizing a rate equal to (1) current fixed rate equivalents for the applicable period (as
reasonably determined by the Company based on market quotations) plus (2) 415 basis points
prior to February 15, 2017 and 515 basis points thereafter. The “Shares Available for
Issuance” will be calculated in two steps: (i) the Company will deduct from the number of
its authorized and unissued shares of Common Stock, the maximum number of shares of its
Common Stock that can be issued under existing options, warrants, convertible securities,
any equity-linked contracts and other agreements which require the Company to issue a
determinable number of shares, and (ii) after the Company deducts that number of shares of
Common Stock from the number of authorized and unissued shares of Common Stock, the Company
will allocate on a pro rata basis or such other basis as it determines is appropriate, the
remaining authorized and unissued shares to the Alternative Payment Mechanism and to any
other similar commitment that is of an indeterminate nature and under which the Company is
then required to issue shares of its common stock. If the number of authorized and unissued
shares of Common Stock remaining after the two steps described above is not sufficient to
satisfy the remaining commitments, the Company will be obligated to use Commercially
Reasonable Efforts to seek shareholder consent to increase the number of authorized and
unissued shares of its Common Stock as described above. The Company may modify the
definition of “Shares Available for Issuance” and related provisions in this Section
3.2(d)(ii) without the consent of Holders provided that (i) the Company has determined, in
good faith, that such
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modification is not materially adverse to the Holders, (ii) the rating agencies then
rating the Securities confirm the then current ratings of the Securities and (iii) the
number of shares available for issuance after giving effect to such modification will not
fall below the then applicable Shares Available for Issuance.
(iii) If the Company elects to satisfy its obligation to pay Deferred Interest
pursuant to the Alternative Payment Mechanism by issuing Qualified Warrants, it may only do
so if the total number of shares of its Common Stock underlying such Qualified Warrants
applied to pay interest on the Securities pursuant to the Alternative Payment Mechanism,
together with the total number of shares of its Common Stock underlying all prior issuances
of Qualified Warrants so applied, does not exceed an amount equal to 15% of the total
number of its issued and outstanding shares of Common Stock as of the date of any proposed
issuance.
(iv) Following the earlier of (A) the Fifth Deferral Anniversary and (B) the first
date of any payment of current interest during an Optional Deferral Period, the Company
shall apply the net proceeds received by it from sales of Eligible Equity to the payment of
all amounts owing in respect of Deferred Interest with net proceeds to be paid promptly
after receipt until all amounts owing in respect of Deferred Interest have been paid in
full; provided, however, that the Company shall not be obligated to sell Common Stock or
apply the proceeds of sales thereof to payment of Deferred Interest if a Market Disruption
Event has occurred and is continuing. In the event that net proceeds received by the
Company from one or more sales of Eligible Equity following the earlier of (x) such Fifth
Deferral Anniversary and (y) the date of any payment of current interest during an Optional
Deferral Period are not sufficient to satisfy the full amount of Deferred Interest, such
net proceeds will be paid to the holders of the Securities on a pro rata basis; provided,
however, that, if the Company has outstanding at such time any Pari Passu Securities under
the terms of which the Company is obligated (I) to sell shares of Common Stock and apply
the net proceeds to payment of Deferred Interest (including Additional Interest thereon) or
(II) to apply the proceeds of any Eligible Equity to payment of Deferred Interest
(including Additional Interest thereon), then on any date and for any period the amount of
net proceeds received by the Company from such sales of Eligible Equity and available for
payment of Deferred Interest shall be applied to the Securities and such Pari Passu
Securities on a pro rata basis, based on the total amount then due and taking into account
any net proceeds from the sales of securities other than Eligible Equity that would be
permitted to be applied to the payment of Deferred Interest (including additional interest
thereon) on any such Pari Passu Securities but not on the Securities except and to the
extent the terms of any such Pari Passu Securities would prohibit the Company from doing
so. Notwithstanding the above, the Company shall not be obligated to sell Eligible Equity
or to apply such net proceeds or any portion thereof to the payment of
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Deferred Interest during the occurrence and continuation of Market Disruption Event.
(v) If on any date or for any period the Company pays interest on any class of Pari
Passu Securities in an amount that is less than the full amount of accrued but unpaid
interest, the Company shall make payments on all outstanding classes of Pari Passu
Securities on the same date or for the corresponding period on a pro rata basis (based on
the total amount then due), except and to the extent the terms of such Pari Passu
Securities will prohibit the Company from doing so.
(vi) Notwithstanding anything to the contrary in this Indenture, under no
circumstances will the Company be obligated to sell shares of Qualified Warrants or to
apply the proceeds of any such sale to pay Deferred Interest on the Securities.
(vii) Notwithstanding anything to contrary in this Indenture, the Company will not be
obligated to issue Common Stock prior to the Fifth Deferral Anniversary if the gross
proceeds of any issuance of Eligible Equity applied to pay Deferred Interest (including
Additional Interest thereon) on the Securities pursuant to this Section 3.2(d), together
with the gross proceeds of all prior issuances of Eligible Equity applied since the
commencement of the Optional Deferral Period, would exceed an amount equal to 2% of the
product of (A) the average of the Current Stock Market Prices of the Company’s Common Stock
on the 10 consecutive trading days ending on the fourth trading day immediately preceding
the date of issuance by the Company of Eligible Equity applied to pay Deferred Interest
(including Additional Interest thereon) on the Securities pursuant to this Section 3.2.(d)
and (B) the total number of issued and outstanding shares of the Company’s Common Stock as
of the date of the Company’s most recent publicly available consolidated financial
statements (the “APM Maximum Obligation”). Once the Company reaches the APM Maximum
Obligation for an Optional Deferral Period, the Company will not be obligated to issue more
Eligible Equity pursuant to this Section 3.2(d) prior to the Fifth Deferral Anniversary
even if the Current Stock Market Price of the Company’s Common Stock or the number of
outstanding shares of its Common Stock subsequently increase. The APM Maximum Obligation
will cease to apply following the Fifth Deferral Anniversary, at which point the Company
must repay all Deferred Interest, regardless of the time at which it was deferred, using
proceeds from sales of Eligible Equity, subject to any Market Disruption Event, and the
Shares Available for Issuance. If the APM Maximum Obligation has been reached during an
Optional Deferral Period and the Company subsequently repays all Deferred Interest, the APM
Maximum Obligation will cease to apply at the termination of such Optional Deferral Period
and will not apply again unless and until the Company starts a new Optional Deferral
Period.
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(viii) For purposes of this Section 3.2(d), “commercially reasonable efforts” means,
in connection with an attempted sale by the Company of shares of Common Stock, including
treasury shares, pursuant to the Alternative Payment Mechanism, commercially reasonable
efforts on the part of the Company to complete the sale of Common Stock, including treasury
shares, to third parties that are not Subsidiaries of the Company in public offerings or
private placements; provided that the Company will be deemed to have made such commercially
reasonable efforts for so long as the Company is prevented from selling shares of Common
Stock in accordance with the Alternative Payment Mechanism because the Company did not have
Shares Available for Issuance, regardless of whether the Company makes any offers or sales
during such Market Disruption Event. The Company will not be considered to have used its
commercially reasonable efforts to effect a sale of Common Stock if it determines not to
pursue or complete such sale solely due to pricing, coupon, dividend rate or dilution
considerations.
(e) Payment of Interest; Defaulted Interest. Any interest on any Security which is
payable, but is not timely paid or duly provided for, and is not otherwise deferred by the Company
pursuant to an Optional Deferral Period as described in this Section, on any Interest Payment Date
for Securities (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 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 at the address of such Holder as it appears in the Securities
Register not less than 10 days prior to such Special
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Record Date. The Trustee may, in its discretion, in the name and at the expense of
the Company, cause a similar notice to be published at least once in a newspaper,
customarily published in the English language on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, but such publication shall
not be a condition precedent to the establishment of such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special Record Date therefor having
been mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names the Securities (or their respective Predecessor Securities) are registered 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 in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the Securities
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.
(f) Notices of Market Disruption Events. If during an Optional Deferral Period a
Market Disruption Event has occurred and is continuing, the Company shall give, as promptly as
possible after the Company becomes aware of such occurrence, a written notice to the Trustee,
stating the date on which such Market Disruption Event has occurred, the nature thereof and what
action it will take in connection therewith.
(g) Limitation on Claims in the Event of Bankruptcy, Insolvency or Receivership.
Notwithstanding anything to the contrary in the Indenture, each Holder of a Security, by such
Holder’s acceptance thereof, agrees that upon any payment or distribution of assets to creditors of
the Company upon any liquidation, dissolution, winding up, reorganization, or in connection with
any insolvency, receivership or proceeding under any bankruptcy law (a “Bankruptcy Event”) with
respect to the Company, whether voluntary or not, prior to the Maturity, redemption or repayment of
the Securities, such Holder shall have no claim for, and no right to receive, deferred and unpaid
interest (including Additional Interest thereon) that has not been settled through the application
of the Alternative Payment Mechanism to the extent that the aggregate amount thereof exceeds 25% of
the original principal amount of such Security.
SECTION 3.3. Repayment of Securities.
(a) Repayment. The Company shall, not more than 15 nor less than 10 Business Days
prior to each Repayment Date (unless a shorter notice shall be
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satisfactory to the Trustee), notify the Trustee of the principal amount of Securities to be
repaid on such date pursuant to Section 3.1(d).
(b) Selection of Securities to be Repaid. If less than all the Securities are to be
repaid on any Repayment Date (unless such repayment affects only a single Security), the particular
Securities to be repaid shall be selected not more than 60 days prior to such Repayment Date by the
Trustee, from the Outstanding Securities not previously repaid or called for redemption, by lot or
such other method as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of a portion of the principal amount of any Securities, provided that the
portion of the principal amount of any Securities not repaid shall be in an authorized denomination
(which shall not be less than the minimum authorized denomination) for such Securities.
The Trustee shall promptly notify the Company in writing of the Securities 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 Securities shall
relate, in the case of any Securities repaid or to be repaid only in part, to the portion of the
principal amount of such Securities which has been or is to be repaid. 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 repayment.
(c) Notice of Repayment. Notice of repayment shall be given by first-class mail,
postage prepaid, mailed not later than the 10th day, and not earlier than the 15th day, prior to
the Repayment Date, to each Holder of Securities to be repaid, at the address of such Holder as it
appears in the Securities Register.
Each notice of repayment shall identify the Securities to be repaid (including CUSIP number,
if a CUSIP number has been assigned to the Securities) and shall state:
(i) the Repayment Date;
(ii) if less than all Outstanding Securities are to be repaid, the identification
(and, in the case of partial repayment, the respective principal amounts) of the particular
Securities to be redeemed;
(iii) that on the Repayment Date, the principal amount of the Securities to be repaid
will become due and payable upon each such Securities or portion thereof, and that interest
thereon, if any, shall cease to accrue on and after said date; and
(iv) the place or places where such Securities are to be surrendered for payment of
the principal amount thereof.
Notice of repayment 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.
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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 Securities designated for repayment
as a whole or in part shall not affect the validity of the proceedings for the repayment of any
other Securities.
(d) Deposit of Repayment Amount. Prior to 10:00 a.m. New York City time on the
Repayment Date specified in the notice of repayment given as provided in Section 3.3(c), 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
10.3 of the Indenture) an amount of money sufficient to pay the principal amount of, and any
accrued interest (including Additional Interest) on, all the Securities which are to be repaid on
that date.
(e) Payment of Securities Subject to Repayment. If any notice of repayment has been
given as provided in Section 3.3(c), the Securities or portion of the Securities 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 Securities at a place of
payment in said notice specified, the said securities or the specified portions thereof shall be
paid by the Company at their principal amount, together with accrued interest (including any
Additional Interest) to the Repayment Date; provided, however, that installments of interest whose
Stated Maturity is on or prior to the Repayment Date will be payable to the Holders of such
Securities registered as such at the close of business on the relevant Record Dates according to
their terms and the provisions of the Indenture.
Upon presentation of any Securities repaid in part only, the Company shall execute and the
Trustee shall authenticate and make available for delivery to the Holder thereof, at the expense of
the Company, new Securities or Securities, of authorized denominations, in aggregate principal
amount equal to the portion of the Securities not repaid and so presented and having the same
original issue date, Stated Maturity and terms. If a Global Security is so surrendered, such new
Security will also be a new Global Security.
If any Securities called for repayment shall not be so paid upon surrender thereof, the
principal of such Securities shall, until paid, bear interest from the Repayment Date at the rate
prescribed therefore in the Securities.
SECTION 3.4. Denominations.
The Securities shall be issued in registered form without coupons and shall be issuable in
denominations of $1,000 and any integral multiples thereof.
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SECTION 3.5. 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 and attested by its Treasurer,
any Associate Treasurer, any Assistant Treasurer, its Secretary or any Assistant Secretary. The
signature of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who were at any time the
proper officers of the Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices 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 an Officer’s Certificate in substantially the form of Annex D hereto for the authentication
and delivery of such Securities, and the Trustee in accordance with such Officers’ Certificate
shall authenticate and deliver such Securities.
Notwithstanding the provisions of the preceding paragraph, if all Securities are not to be
originally issued at one time, it shall not be necessary to deliver the Officers’ Certificate
otherwise required pursuant to such preceding paragraph at or prior to the authentication of each
Security of such series if such Officers’ Certificate is delivered at or prior to the
authentication upon original issuance of the first Security 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 officers, 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 3.11, for all purposes of this
Indenture such Security shall be deemed never to have been authenticated and delivered hereunder
and shall never be entitled to the benefits of this Indenture.
Minor typographical and other minor errors in the text of any Security shall not affect the
validity and enforceability of such Security if it has been duly authenticated and delivered by the
Trustee.
The Depository must, at all times while it serves as the Depository, be a clearing agency
registered under the Exchange Act, and any other applicable statute or regulation.
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SECTION 3.6. Temporary Securities.
Pending the preparation of definitive Securities, 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 denomination, substantially
of the tenor of the definitive Securities 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 are issued, the Company will cause definitive Securities 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 designated for that purpose 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 one or more definitive
Securities, of any authorized denominations 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 3.7. Global Securities.
(a) Each Global Security issued under this Indenture shall be registered in the name of the
Depository designated by the Company for such Global Security or a nominee thereof and delivered to
such Depository or a nominee thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(b) Notwithstanding any other provision in this Indenture, no Global Security may be exchanged
in whole or in part for Securities registered, and no transfer of a Global Security in whole or in
part may be registered, in the name of any Person other than the Depository for such Global
Security or a nominee thereof unless (a) such Depository advises the Trustee in writing that such
Depository is no longer willing or able to properly discharge its responsibilities as Depository
with respect to such Global Security, and the Company is unable to locate a qualified successor or
(b) the Company executes and delivers to the Trustee a Company Order stating that the Company
elects to terminate the book-entry system through the Depository.
(c) If any Global Security is to be exchanged for other Securities or cancelled in whole, it
shall be surrendered by or on behalf of the Depository or its nominee to the Securities Registrar
for exchange or cancellation as provided in this Article III. If any Global Security is to be
exchanged for other Securities or cancelled in part, or if another Security is to be exchanged in
whole or in part for a beneficial interest in any Global Security, then either (i) such Global
Security shall be so surrendered for exchange or
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cancellation as provided in this Article III or (ii) the principal amount thereof shall be
reduced or increased by an amount equal to the portion thereof to be so exchanged or cancelled, or
equal to the principal amount of such other Security to be so exchanged for a beneficial interest
therein, as the case may be, by means of an appropriate adjustment made on the records of the
Securities Registrar, whereupon the Trustee, in accordance with the Applicable Procedures, shall
instruct the Depository or its authorized representative to make a corresponding adjustment to its
records. Upon any such surrender or adjustment of a Global Security by the Depository, accompanied
by registration instructions, the Trustee shall, subject to Section 3.7(b) and as otherwise
provided in this Article III, authenticate and deliver any Securities issuable in exchange for such
Global Security (or any portion thereof) in accordance with the instructions of the Depository. The
Trustee shall not be liable for any delay in delivery of such instructions and may conclusively
rely on, and shall be fully protected in relying on, such instructions.
(d) Every Security authenticated and delivered upon registration of transfer of, or in
exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this
Article III, Section 9.6 or Section 11.6 or otherwise, shall be authenticated and delivered in the
form of, and shall be, a Global Security, unless such Security is registered in the name of a
Person other than the Depository for such Global Security or a nominee thereof.
(e) The Depository or its nominee, as registered owner of a Global Security, shall be the
Holder of such Global Security for all purposes under this Indenture and the Securities, and owners
of beneficial interests in a Global Security shall hold such interests pursuant to the Applicable
Procedures. Accordingly, any such owner’s beneficial interest in a Global Security shall be shown
only on, and the transfer of such interest shall be effected only through, records maintained by
the Depository or its nominee or its Agent Members. Neither the Trustee nor the Securities
Registrar shall have any liability in respect of any transfers effected by the Depository.
(f) The rights of owners of beneficial interests in a Global Security shall be exercised only
through the Depository and shall be limited to those established by law and agreements between such
owners and the Depository and/or its Agent Members.
SECTION 3.8. Registration, Transfer and Exchange Generally, Certain Transfers and
Exchanges; Securities Act Legends.
(a) The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register
in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for
the registration of Securities and of transfers and exchanges of Securities. Such register is
herein sometimes referred to as the ‘Securities Register.” The Trustee is hereby appointed
“Securities Registrar” for the purpose of registering Securities and transfers of Securities as
herein provided.
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Upon surrender for registration of transfer of any Security at the office or agency of the
Company designated for that purpose 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
any authorized denominations, of a like tenor and aggregate principal amount, of the same Original
Issue Date and Stated Maturity and having the same terms and bearing such restrictive legends as
may be required by this Indenture.
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 Depository to a nominee
or such Depository, or by a nominee of such Depository to such Depository or another nominee of
such Depository, or by such Depository or any such nominee to a successor Depository or nominee of
such successor Depository.
At the option of the Holder, Securities may be exchanged for other Securities of any
authorized denominations, of a like tenor and aggregate principal amount, of the same Original
Issue Date and Stated Maturity and having the same terms and bearing such restrictive legends as
may be required by this Indenture, 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 Depository notifies the Company that it is unwilling or unable to continue
as Depository or if at any time the Depository shall cease to be a clearing agency registered under
the Exchange Act as provided in Section 303, the Company shall appoint a successor Depository. If a
successor Depository 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 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 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 Depository 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
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such Depository. 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 Depository 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 Depository 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
Depository 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 exchange shall (if so
required by the Company or the Securities Registrar) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Company and the Securities 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.
Neither the Company nor the Trustee shall be required, pursuant to the provisions of this
Section, (a) to issue, register the transfer of or exchange any Security during a period beginning
at the opening of business 15 Business Days before the day of the mailing of a notice of redemption
of any Securities selected for redemption pursuant to Article XI and ending at the close of
business on the day of mailing of notice of redemption or (b) 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 not to be redeemed.
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(b) Notwithstanding any other provision of this Indenture, transfers and exchanges of
Securities and beneficial interests in a Global Security of the kinds specified in this Section
3.8(b) shall be made only in accordance with this Section 3.8(b).
(i) NON-GLOBAL SECURITY TO GLOBAL SECURITY. If the Holder of a Security (other than a
Global Security) wishes at any time to transfer all or any portion of such Security to a
Person who wishes to take delivery thereof in the form of a beneficial interest in a Global
Security, such transfer may be effected only in accordance with the provisions of this
Clause (b)(i) and subject to the Applicable Procedures. Upon receipt by the Securities
Registrar of (A) such Security as provided in Section 3.8(a) and instructions satisfactory
to the Securities Registrar directing that a beneficial interest in the Global Security in
a specified principal amount not greater than the principal amount of such Security be
credited to a specified Agent Member’s account and (B) if the Security to be transferred is
a Restricted Security, a Restricted Securities Certificate duly executed by such Holder or
his attorney duly authorized in writing, then the Securities Registrar shall cancel such
Security (and issue a new Security in respect of any untransferred portion thereof) as
provided in Section 3.6(a) and increase the aggregate principal amount of the Global
Security by the specified principal amount as provided in Section 3.7(c).
(ii) NON-GLOBAL SECURITY TO NON-GLOBAL SECURITY. A Security that is not a Global
Security may be transferred, in whole or in part, to a Person who takes delivery in the
form of another Security that is not a Global Security as provided in Section 3.8(a),
provided that if the Security to be transferred in whole or in part is a Restricted
Security, then the Securities Registrar shall have received a Restricted Securities
Certificate duly executed by the transferor Holder or his attorney duly authorized in
writing.
(iii) EXCHANGES BETWEEN GLOBAL SECURITY AND NON-GLOBAL SECURITY. A beneficial interest
in a Global Security may be exchanged for a Security that is not a Global Security as
provided in Section 3.7.
(c) Except as set forth below, all Securities shall bear a Restricted Securities Legend:
(i) subject to the following Clauses of this Section 3.8(c), a Security or any portion
thereof which is exchanged, upon transfer or otherwise, for a Global Security or any
portion thereof shall bear the Restricted Securities Legend;
(ii) subject to the following Clauses of this Section 3.8(c), a new Security which is
not a Global Security and is issued in exchange for another Security (including a Global
Security) or any portion thereof, upon transfer or otherwise, shall bear a Restricted
Securities Legend;
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(iii) after the date which is three years following the Original Issue Date of a
Security, a new Security (other than a Global Security) which does not bear a Restricted
Securities Legend shall, unless the Securities Registrar is otherwise instructed by the
Company in writing, be issued in exchange for or in lieu of a Restricted Security or any
portion thereof which bears such a legend if the Trustee has received an Unrestricted
Securities Certificate, duly executed by the Holder of such legended Restricted Security or
his attorney duly authorized in writing, and after such date and receipt of such
certificate, the Trustee shall authenticate and deliver such a new Security in exchange for
or in lieu of such other Security as provided in this Article III;
(iv) a new Security which does not bear a Restricted Securities Legend may be issued
in exchange for or in lieu of a Restricted Security or any portion thereof which bears such
a legend if, in the Company’s judgment, placing such a legend upon such new Security is not
necessary to ensure compliance with the registration requirements of the Securities Act,
and the Trustee, at the written direction of the Company in the form of an Officers’
Certificate, shall authenticate and deliver such a new Security as provided in this Article
III;
(v) notwithstanding the foregoing Clauses of this Section 3.8(c), a Successor Security
of a Security that does not bear a Restricted Securities Legend shall not bear such form of
legend unless the Company has reasonable cause to believe that such Successor Security is a
“restricted security” within the meaning of Rule 144, in which case the Trustee, at the
written direction of the Company in the form of an Officers’ Certificate, shall
authenticate and deliver a new Security bearing a Restricted Securities Legend in exchange
for such Successor Security as provided in this Article III; and
(vi) Securities distributed to a holder of ABC Trust Securities upon dissolution of
the ABC Trust shall bear a Restricted Securities Legend if such ABC Trust Securities bear a
similar legend.
SECTION 3.9. 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 Applicable 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
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Security has been acquired by a bona fide purchaser, the 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 Applicable Rate as such
destroyed, lost or stolen Security, and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, the Company in its discretion may, instead of issuing a new Security, pay
such Security.
Upon the issuance of any new Security under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security shall constitute an original additional contractual obligation of the Company, whether or
not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with any and all other
Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost
or stolen Securities.
SECTION 3.10. 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 (subject to Section 3.2) 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.
No holder of any beneficial interest in any Global Security held on its behalf by a Depository
shall have any rights under this Indenture with respect to such Global Security, and such
Depository may be treated by the Company, the Trustee and any agent of the Company or the Trustee
as the owner of such Global Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee
from giving effect to any written certification, proxy or other authorization furnished by a
Depository or impair, as between a Depository and such holders of beneficial interests, the
operation of customary practices governing the exercise of the rights of the Depository (or its
nominee) as Holder of any Security.
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SECTION 3.11. Cancellation.
All Securities surrendered for payment, redemption, registration, 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 canceled by it. The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company may have acquired in
any manner whatsoever, may deliver to the Trustee (or 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 canceled by the Trustee. No Securities
shall be authenticated in lieu of or in exchange for any Securities canceled as provided in this
Section, except as expressly permitted by this Indenture. All canceled Securities shall be
destroyed by the Trustee and the Trustee shall deliver to the Company a certificate of such
destruction.
SECTION 3.12. CUSIP Numbers.
The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and,
if so, the Trustee shall use “CUSIP” numbers in notices of redemption or other related material as
a convenience to Holders; provided that any such notice or other related material may state that no
representation is made as to the correctness of such numbers either as printed on the Securities or
as contained in any notice of redemption or other related material and that reliance may be placed
only on the other identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers.
SECTION 3.13. Premium Calculation Agent.
The Premium Calculation Agent shall be LaSalle Bank National Association or any other firm
appointed by the Company or, if the Premium Calculation Agent so appointed is unwilling or unable
to calculate the Make-Whole Redemption Amount or Special Event Make-Whole Redemption Amount, or, if
required to do so, 6-Month LIBOR or 3-Month LIBOR, an investment banking institution of national
standing appointed by the Company.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1. Satisfaction and Discharge of Indenture.
This Indenture shall, upon Company Request, cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein expressly provided
for and as otherwise provided in this Section 4.1) and the Trustee, on
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demand of and at the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all 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 3.9 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 10.3) 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 Final Stated Maturity Date
within one year of the date of deposit, or
(iii) are to be called for redemption within one year by the Trustee
in the name, and at the expense, of the Company,
and the Company, in the case of Clause (B) (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 in an amount; or (C) a combination thereof, in each case
sufficient, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the Trustee of such
series (but such opinion need only be delivered if Government Obligations have been so
deposited), to pay and discharge, and which shall be applied by the Trustee, to pay and
discharge the entire indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal (and premium, if any) and interest (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 if such amount shall relate to the Final Stated Maturity Date or the Redemption
Date (if relevant for the determination of such amount) (x) the amount of money or
Government Obligations, or a combination thereof, that the Company must irrevocably deposit
or cause to be deposited shall be determined using an assumed Applicable Rate calculated as
of the date of such deposit as calculated by the Company, and (y) the Company must
irrevocably deposit or cause to be deposited any additional money in trust on the Final
Stated Maturity Date or the Redemption Date as necessary to pay the amount due on the
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Final Stated Maturity Date or the Redemption Date, as the case may be, and as determined as
of such date);
(2) the Company has paid or caused to be paid all other sums payable hereunder by the
Company; 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 have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to
the Trustee under Section 6.7, the obligations of the Company to any Authenticating Agent under
Section 6.14 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 4.2 and the last paragraph of Section 10.3 shall survive.
SECTION 4.2. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all money and Government
Obligations deposited with the Trustee pursuant to Section 4.1 and all proceeds of such Government
Obligations and interest therein shall be held in trust and applied by the Trustee, in accordance
with the provisions of the Securities 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
the payment of which such money and Government Obligations have been deposited with or received by
the Trustee.
ARTICLE V
REMEDIES
SECTION 5.1. Events of Default; Security Default.
“Event of Default”, wherever used herein with respect to the Securities, means any one of the
following events that has occurred and is continuing:
(1) default by the Company in the payment of interest, subject to the Company’s right
to defer interest payments pursuant to this Indenture, and the failure to cure such default
within three Business Days after notice of such default by the Trustee or the Asset Swap
Counterparty; or
(2) the Company institutes or has instituted against the Company a proceeding seeking
a judgment of insolvency or bankruptcy or any other relief
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under any bankruptcy or
insolvency law or other similar law affecting creditors’ rights, or a petition is presented
for the winding-up or liquidation of the Company, and, in the case of any such proceeding
or petition instituted or presented against the Company, such proceeding or petition (A)
results in a judgment or insolvency or bankruptcy or the entry of an order for relief or
the making of an order for the winding-up or liquidation of the Company or (B) is not
dismissed, discharged, stayed or restrained in each case within 30 days of the institution
or presentation thereof; or
(3)
a default in the payment of the principal of (or premium, if any, on)
any Security at its Maturity.
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default described in clause (1) or (3) of Section 5.1 occurs and is continuing,
then and in every such case the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities may declare the principal amount and accrued interest
(including Additional Interest) on the Securities 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 of and the accrued interest (including any Additional Interest) on all the
Securities shall become immediately due and payable. Payment of principal and interest (including
any Additional Interest) on the Securities shall remain subordinated to the extent provided in this
Indenture notwithstanding that such amount shall become immediately due and payable as herein
provided. If an Event of Default described in clause (2) of Section 5.1 with respect to Securities
occurs, the principal amount of and accrued interest on all the Securities shall automatically, and
without any declaration or other action on the part of the Trustee or any Holder, become
immediately due and payable.
At any time after such a declaration of acceleration with respect to the Securities 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, 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 installments of interest (including any Additional Interest)
on all the Securities,
(B) the principal of (and premium, if any, on) any Securities which have
become due otherwise than by such declaration of acceleration and interest thereon
at the rate borne by the Securities, and
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(C) all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel; and
(2) all Events of Default with respect to Securities, other than the non-payment of
the principal of the Securities that has become due solely by such acceleration, have been
cured or waived as provided in Section 5.13.
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any installment of 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 the Trustee, for the benefit of the Holders of
such Securities, the whole amount then due and payable on such Securities for principal (and
premium, if any) and interest (including any Additional Interest); and, in addition thereto, all
amounts owing the Trustee under Section 6.7.
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
monies 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 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 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 5.4. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the
Company or any other obligor upon the Securities or the property of the Company or of such other
obligor or their creditors,
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(a) the Trustee (irrespective of whether the principal of the Securities shall then be
due and payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company for the payment of overdue
principal (and premium, if any) or interest (including any Additional Interest)) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal (and premium,
if any) and interest (including any Additional Interest) owing and unpaid in
respect to the Securities and to file such other papers or documents as may be
necessary or advisable and to take any and all actions as are authorized under the
Trust Indenture Act in order to have the claims of the Holders and any predecessor
to the Trustee under Section 6.7 allowed in any such judicial proceedings; and
(ii) in particular, the Trustee shall be authorized to collect and receive any
monies or other property payable or deliverable on any such claims and to
distribute the same in accordance with Section 5.6; 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 5.6, 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 to it and any predecessor Trustee under
Section 6.7.
Nothing herein contained 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 5.5. Trustee May Enforce Claim 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 all the reasonable amounts owing 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.
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SECTION 5.6. Application of Money Collected.
Any money or property collected or to be applied by the Trustee 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;
SECOND: Subject to Article XIII, to the payment of the amounts then due and unpaid upon the
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 the 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.
SECTION 5.7. Limitation on Suits.
No Holder of any Securities shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture or for the appointment of a receiver, assignee, trustee,
liquidator, sequestrator (or other similar official) 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;
(2) the Holders of not less than 25% in aggregate principal amount of the Outstanding
Securities shall 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 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
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(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;
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 itself of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other Holders of Securities, 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 such
Holders.
SECTION 5.8. 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 Article III) 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 right shall not be impaired without the consent of such Holder.
SECTION 5.9. 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 such Holder, then and in every such case the Company,
the Trustee or the Holders shall, subject to any determination in such proceeding, 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 5.10. Rights and Remedies Cumulative.
Except as otherwise provided in the last paragraph of Section 3.9, 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.
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SECTION 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or any Holder of any Security 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 the
Holders, as the case may be.
SECTION 5.12. Control by Holders.
The Holders of not less than a majority in aggregate principal amount of the Outstanding
Securities 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, provided that:
(1) such direction shall not be in conflict with any rule of law or with this
Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction, and
(3) subject to the provisions of Section 6.1, the Trustee shall have the right to
decline to follow such direction if a Responsible Officer or Officers of the Trustee shall,
in good faith, determine that the proceeding so directed would be unjustly prejudicial to
the Holders not joining in any such direction or would involve the Trustee in personal
liability.
SECTION 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal amount of the Outstanding
Securities may, on behalf of the Holders of all the Securities, waive any past default hereunder
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, or
(2) in respect of a covenant or provision hereof which under Article IX cannot be
modified or amended without the consent of the Holder of each Outstanding Security.
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.
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SECTION 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit
of 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 party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit instituted 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, or to 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.
SECTION 5.15. 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 VI
THE TRUSTEE
SECTION 6.1. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2)
in the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions which by any
provisions hereof are specifically required to
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be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the Trustee shall exercise
such of the rights and powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent person would exercise or use under the circumstances in the
conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability
for its own negligent action, its own negligent failure to act, or its own willful misconduct
except that
(1) this Subsection shall not be construed to limit the effect of Subsection (a) of
this Section;
(2) the Trustee shall not he liable for any error of judgment made in good faith by a
Responsible Officer, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action taken or omitted to be
taken by it in good faith in accordance with the direction of Holders pursuant to Section
5.12 relating to the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to the Securities.
(d) 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 there shall be reasonable grounds
for believing that repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(e) 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 6.2. Notice of Defaults.
Within 90 days after actual knowledge by a Responsible Officer of the Trustee of the
occurrence of any default hereunder with respect to the Securities, the Trustee shall transmit by
mail to all Holders of Securities, as their names and addresses appear in the Securities Register,
notice of such default, unless such default shall have been cured or waived; provided, however,
that, except in the case of a default in the payment of the
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principal of (or premium, if any) or
interest (including any Additional Interest) on any Security, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interests of the Holders of 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 Securities.
SECTION 6.3. Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(a) 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;
(b) 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 may be sufficiently evidenced by a Board Resolution;
(c) 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;
(d) the Trustee may consult with counsel and the written advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the Holders pursuant
to this Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might be incurred
by it in compliance with such request or direction;
(f) 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, indenture, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee in its discretion may make such
inquiry or investigation into such
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facts or matters as it may see fit, and, if the Trustee
shall determine to make such inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney;
(g) 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;
(h) the Trustee shall not be under any obligation to take any action that is
discretionary under the provisions of this Indenture;
(i) the Trustee shall not be charged with knowledge of any Event of Default unless
either (i) a Responsible Officer of the Trustee shall have actual knowledge thereof or (ii)
the Trustee shall have received notice thereof in accordance with Section 1.5(1) hereof
from the Company or a Holder; and
(j) no permissive power or authority available to the Trustee shall be construed as a
duty.
SECTION 6.4. 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 the Securities or the proceeds thereof.
SECTION 6.5. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Securities 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 6.8 and 6.13, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Securities
Registrar or such other agent.
SECTION 6.6. 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 otherwise agreed with the Company.
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SECTION 6.7. 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 in such amounts as the Company and the Trustee shall agree from
time to time (which compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) 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 and counsel), except any such expense, disbursement or advance
as maybe attributable to the negligence, willful misconduct or bad faith of it or its
agents or counsel; and
(3) to indemnify the Trustee for, and to hold it harmless against, any loss, liability
or expense (including the reasonable compensation and the expenses and disbursements of its
agents and counsel) incurred without negligence or bad faith, arising out of or in
connection with the acceptance or administration of this trust or the performance of its
duties hereunder, including the reasonable costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance of any of its powers
or duties hereunder.
To secure the Company’s payment obligations in this Section, the Company and the Holders agree
that the Trustee shall have a lien prior to the Securities on all money or property held or
collected by the Trustee.
When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 5.1(2) occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under the Bankruptcy Reform Act of 1978 or any successor
statute.
SECTION 6.8. Disqualification; Conflicting Interests.
The Trustee for the Securities issued hereunder shall be subject to the provisions of Section
310(b) of the Trust Indenture Act as, a matter or contract. Nothing herein shall prevent the
Trustee from filing with the Commission the application referred to in the second to last paragraph
of said Section 310(b).
SECTION 6.9. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a corporation organized and
doing business under the laws of the United States of America or of any
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State or Territory or the
District of Columbia, authorized under such laws to exercise corporate trust powers and subject to
supervision or examination by Federal, State, Territorial or District of Columbia authority having
a combined capital and surplus of at least $50,000,000, subject to supervision or examination by
Federal or State authority. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid 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 published. 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. 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 issued hereunder.
SECTION 6.10. Resignation and Removal; Appointment of Successor.
(a) 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 under Section 6.11.
(b) The Trustee may resign at any time by giving written notice thereof to the Company. If an
instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within
30 days after the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with respect to the
Securities.
(c) The Trustee may be removed at any time with respect to the Securities of any series by Act
of the Holders of not less than a majority in aggregate principal amount of the Outstanding
Securities, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.8 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 6.9 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,
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then, in any such case, (i) the Company, acting pursuant to the authority of a Board Resolution,
may remove the Trustee with respect to all Securities, or (ii) subject to Section 5.14, 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 with respect to all Securities and the appointment of a successor Trustee or Trustees.
(e) 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, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee shall be appointed
by Act of the Holders of not less than a majority in aggregate principal amount of the Outstanding
Securities delivered to the Company and the retiring Trustee, the successor Trustee so appointed
shall, forthwith upon its acceptance of such appointment, become the successor Trustee and
supersede the successor Trustee appointed by the Company. If no successor Trustee shall have been
so appointed by the Company or the Holders and accepted appointment in the manner hereinafter
provided, any Holder who has been a bona fide Holder of a Security for at least Six months may,
subject to Section 5.14, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each removal of the Trustee and each
appointment of a successor Trustee by mailing written notice of such event by first-class mail,
postage prepaid, to the Holders of Securities as their names and addresses appear in the Securities
Register. Each notice shall include the name of the successor Trustee and the address of its
Corporate Trust Office.
SECTION 6.11. Acceptance of Appointment by Successor.
(a) In 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, the Company, the retiring
Trustee and each successor Trustee shall execute and deliver an instrument in writing or an
indenture supplemental hereto wherein each successor Trustee
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shall accept such appointment and
which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm
to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee to which the appointment of such successor Trustee relates, (2) if the retiring
Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee as to which the retiring Trustee is not retiring shall continue to be vested in
the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such instrument in writing or
supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each
such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Trustee; and upon the execution and delivery of
such instrument in writing or 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; 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
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 6.12. 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 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, and in case any Securities shall not have been
authenticated, any successor to the Trustee may authenticate such Securities either in the name of
any predecessor Trustee or in the name of such successor Trustee, and in all cases the certificate
of authentication shall have the full force which it is provided
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anywhere in the Securities or in
this Indenture that the certificate of the Trustee shall have.
SECTION 6.13. 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 6.14. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents which shall be authorized to act on
behalf of the Trustee to authenticate Securities issued upon original issue and upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section 3.9 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 Trustees
certificate of authentication, such reference shall be deemed to include authentication and
delivery 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, or of any State or 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 publishes 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 published. 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
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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 1.6 to all Holders of Securities with
respect to which such Authenticating Agent will serve. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the provision 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 is made pursuant to this Section, the Securities 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.
Dated:
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LaSalle Bank National Association, as Trustee |
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By: |
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as Authenticating Agent |
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Authorized Officer
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ARTICLE VII
HOLDER’S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1. 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 in each year,
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,
excluding from any such list names and addresses received by the Trustee in its capacity as
Securities Registrar.
SECTION 7.2. 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 7.1 and the names and addresses of Holders received by the Trustee in its capacity as
Securities Registrar. The Trustee may destroy any list furnished to it as provided in Section 7.1
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 in 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 the disclosure of information as to the names and addresses of the Holders
made pursuant to the Trust Indenture Act.
SECTION 7.3. Reports by Trustee.
(a) 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.
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(b) Reports so required to be transmitted at stated intervals of not more than 12 months shall
be transmitted no later than 60 days after March 31 in each calendar year, commencing with the
first March 31 after the first issuance of Securities under this Indenture.
(c) A copy of each such report shall, at the time of such transmission to Holders, be filed by
the Trustee with each securities exchange upon which any Securities are listed and also with the
Commission. The Company will notify the Trustee when any Securities are listed on any securities
exchange.
SECTION 7.4. Reports by Company.
The Company shall file with the Trustee and with the Commission, and transmit to Holders, such
information, documents and other reports, and such summaries thereof, as may be required pursuant
to the Trust Indenture Act at the times and in the manner provided in the Trust Indenture Act;
provided that any such information, documents or reports required to be filed with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act shall be filed with the Trustee within
l5 days after the same is required to be filed with the Commission.
SECTION 7.5. Application of Reporting Requirements. Notwithstanding the foregoing
provisions of this Article VII, the requirements set forth in this Article VII shall not apply
until such time as Securities shall have been issued hereunder.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1. Company May Consolidate, Etc., Only on Certain Terms.
(a) Subject to Section 8.1(b), 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 company of any 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 existing under the laws of the United States of America or any State thereof or the
District of Columbia and shall expressly assume, by an indenture supplemental hereto,
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executed and delivered to the Trustee, the due and punctual payment of the principal
of (and premium, if any) and interest (including any 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
(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, any such
supplemental indenture comply with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
(b) Section 8.1(a) shall not apply to (x) 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 (y) 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 8.2. 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 8.1, 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 in the event
of any such consolidation, merger, conveyance, transfer or lease the Company shall be discharged
from 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 IX
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Company 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 issue Securities under this Indenture; or
(4) to add to the covenants of the Company for the benefit of the Holders of the
Securities or to surrender any right or power herein conferred upon the Company; or
(5) to add any additional Events of Default; or
(6) to secure the Securities; or
(7) 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
(7) shall not adversely affect the interests of the Holders of Securities in any material
respect or, in the case of the Securities issued to the ABC Trust and for so long as any of
the corresponding series of ABC Trust Securities issued by the ABC Trust shall remain
outstanding, the holders of such ABC Trust Securities; or
(8) to evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities and to 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, pursuant to the requirements of Section 6.11(b);
or
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(9) to comply with the requirements of the Commission in order to effect or maintain
the qualification of this Indenture under the Trust Indenture Act; or
(10) to modify the provisions in Article Thirteen 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
(11) to conform any provision hereof to the requirements of the Trust Indenture Act or
otherwise as necessary to comply with applicable law; or
(12) to make any change that does not adversely affect the rights of any Holder in any
material respect.
SECTION 9.2. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in aggregate principal amount of
the Outstanding Securities affected by such supplemental indenture, by Act of said Holders
delivered to the Company and the Trustee, the Company, 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 under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby,
(1) except to the extent permitted by Article III or as otherwise specified as
contemplated by Section 3.2 with respect to the deferral of the payment of interest on the
Securities, change the Stated Maturity of the principal of, or any installment of interest
payable (including any Additional Interest) on, any Outstanding Security, or reduce the
principal amount thereof or the rate of interest thereon or reduce any premium payable upon
the redemption thereof, or change the place of payment where, or the coin or currency in
which, any Security or interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the
case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding Securities, 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) provided for in this
Indenture,
(3) modify any of the provisions of this Section, Section 5.13 or Section 10.5, except
to increase any such percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of each
Outstanding Security affected thereby, or
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(4) modify the provisions of Article Thirteen of this Indenture with respect to the
subordination of Outstanding Securities in a manner materially adverse to the Holders;
provided, further, that, in the case of the Securities held by the ABC Trust, so long as any of
Pass-Through Trust Securities remains outstanding, (i) no such modification or amendment shall be
made that adversely affects the holders of such Pass-Through Trust Securities in any material
respect, and no termination or discharge of this Indenture shall occur, and no waiver of any Event
of Default or compliance with any covenant under this Indenture shall be effective, without the
prior consent of the holders of at least a majority of the aggregate Face Amount of such
Pass-Through Trust Securities then outstanding unless and until the principal (and premium, if any)
of the Securities and all accrued and, subject to Article III, unpaid interest (including any
Additional Interest) thereon have been paid in full and (ii) no amendment shall be made to Section
5.8 of this Indenture that would impair the rights of the holders of Pass-Through Trust Securities
without the prior consent of the holders of each Pass-Through Trust Security then outstanding
unless and until the principal (and premium, if any) of the Securities and all accrued and (subject
to Article III) unpaid interest (including any Additional Interest) thereon have been paid in full.
It shall not be necessary for any Act of Holders under this Section to approve the particular
form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve
the substance thereof.
SECTION 9.3. 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 6.1) 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 or immunities under this
Indenture or otherwise or that may subject it to any liability.
SECTION 9.4. 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.
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SECTION 9.5. 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 9.6. 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 Company, bear a notation in form
approved by the Company as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities so modified as to conform, in the opinion of the
Company, 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.
ARTICLE X
COVENANTS
SECTION 10.1. Payment of Principal, Premium and Interest.
The Company covenants and agrees that it will duly and punctually pay the principal of (and
premium, if any) and interest on the Securities in accordance with the terms of the Securities and
this Indenture.
SECTION 10.2. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment, an office or agency where Securities 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, as its agent for said purposes. The Company
will give prompt written notice to the Trustee of any change in the location of any such office or
agency. If at any time the Company shall fail to maintain such 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 of 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 each Place
of Payment for Securities for
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such purposes. The Company will give prompt written notice to the Trustee of any such
designation and any change in the location of any such office or agency.
SECTION 10.3. Money for Security Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it will, on or before each due
date of the principal of (and premium, if any) or interest on any of the Securities, segregate and
hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided, and will promptly notify the Trustee of its failure so to
act.
Whenever the Company shall have one or more Paying Agents, it will, 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 in trust for the
benefit of the Persons entitled to such principal and premium (if any) or interest, and (unless
such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its failure so to
act.
The Company will cause each Paying Agent other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the
provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and premium, if any)
or interest on Securities in trust for the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other obligor upon
the Securities) in the making of any payment of principal (and premium, if any) or
interest;
(3) at any time during the continuance of any such default, upon the written request
of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying
Agent; and
(4) comply with the provisions of the Trust Indenture Act applicable to it as a 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 any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
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Any money or 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 on Company Request to the Company, or (if then held by the Company) shall
(unless otherwise required by mandatory provision of applicable escheat or abandoned or unclaimed
property law) be discharged from such trust; and the Holder of such Security shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying
Agent, before being required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily published on each
Business Day and of general circulation in the Borough of Manhattan, The City of New York, notice
that such money remains unclaimed and that, after a date specified therein, which shall not be less
than 30 days from the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 10.4. Statement as to Compliance.
The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year of
the Company ending after the date that Securities are first issued under this Indenture, 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 10.5. 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 with respect to the Securities, if before or after
the time for such compliance the Holders of at least a majority in aggregate principal amount of
the Outstanding Securities shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision, covenant or condition, but no
such waiver shall extend to or affect such covenant or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of the Company in respect of
any such term, provision, covenant or condition shall remain in full force and effect.
SECTION 10.6. Original Issue Discount.
On or before December 15 of each year during which any Securities are outstanding, the Company
shall furnish to each Paying Agent such information as may be
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reasonably requested by each Paying Agent in order that each Paying Agent may prepare the
information which it is required to report for such year on Internal Revenue Service Forms 1096 and
1099 pursuant to Section 6049 of the Internal Revenue Code of 1986, as amended. Such information
shall include the amount of original issue discount, if any, includible in income for each $1,000
of principal amount at Stated Maturity of outstanding Securities during such year.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1. Applicability of This Article.
The Securities are redeemable subject to the terms and conditions of this Article XI,
(i) at the option of the Company:
(A) in whole or in part, at any time on or after February 15, 2017, at a
redemption price equal to their principal amount plus accrued and unpaid interest
to the date of redemption, provided that if the Securities are not redeemed in
whole, at least $20,000,000 aggregate principal amount of the Securities must
remain outstanding after giving effect to such redemption; and
(B) in whole, but not in part, at any time prior to February 15, 2017,
simultaneously with the termination of the Put Option Agreement unless previously
terminated or exercised in full and the payment of any termination payment due
under the Put Option Agreement, at a redemption price equal to (a) within 180 days
of the occurrence of a Special Event, their principal amount plus any Special Event
Make-Whole Redemption Amount or (b) in cases not involving one of the Special
Events, their principal amount plus any Make-Whole Redemption Amount, in each of
cases (a) and (b) plus accrued and unpaid interest to the date of redemption; and
(ii) mandatorily in whole at their principal amount plus accrued and unpaid interest
to the date of redemption if at any time the Securities are held directly by Holders other
than the ABC Trust and the aggregate outstanding principal amount of the Securities is less
than $20,000,000.
SECTION 11.2. Election to Redeem; Notice to Trustee.
In case of any redemption at the election of the Company of any of the Securities and having
the same terms, the Company shall, not less than 30 nor more than 60 days prior to the Redemption
Date (unless a shorter notice shall be satisfactory to the Trustee),
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notify the Trustee and, in the case of Securities held by the ABC Trust, of such date and of
the principal amount of Securities to be redeemed and provide the additional information required
to be included in the notice or notices contemplated by Section 11.4.
SECTION 11.3. Selection of Securities to be Redeemed.
If less than all the Securities are to be redeemed, the particular Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities not previously called for redemption, by lot or such other 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 (equal to $1,000 or an integral
multiple of $1,000) of any Security. If less than all the Securities 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 60 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities of a 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
partial redemption and the principal amount thereof to be redeemed. 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 Security redeemed or to be redeemed only in part, to
the portion of the principal amount of such Security 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 11.4. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid, mailed not later
than the 30th day, and not earlier than the 60th day, prior to the Redemption Date, to each Holder
of Securities to be redeemed, at the address of such Holder as it appears in the Securities
Register.
Each notice of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price, or, if not then ascertainable, the manner of calculation
thereof;
(c) if less than all Outstanding Securities are to be redeemed, the identification
(and, in the case of partial redemption, the respective principal amounts) of the
particular Securities to be redeemed;
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(d) that on the Redemption Date, the Redemption Price will become due and payable upon
each such Security or portion thereof, and that interest thereon, if any, shall cease to
accrue on and after said date; and
(e) the place or places where such Securities are 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 11.5. Deposit of Redemption Price.
Prior to 11:00 a.m. New York City time on the Redemption Date specified in the notice of
redemption given as provided in Section 11.4, 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 10.3) an amount of money sufficient to pay the
Redemption Price of, and any accrued interest (including Additional Interest) on, all the
Securities which are to be redeemed on that date.
SECTION 11.6. Payment of Securities Called for Redemption.
If any notice of redemption has been given as provided in Section 11.4, the Securities or
portion of Securities 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 at the applicable Redemption Price,
together with accrued interest (including any Additional Interest) to the Redemption Date. On
presentation and surrender of such Securities at a Place of Payment in said notice specified, the
said Securities or the specified portions thereof shall be paid and redeemed by the Company at the
applicable Redemption Price, together with accrued interest (including any Additional Interest) to
the Redemption Date; provided, however, that installments of 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 Regular Record Dates
according to their terms and the provisions of Section 3.2.
Upon presentation of any Security redeemed in part only, the Company shall execute and the
Trustee shall authenticate and deliver to the Holder thereof, at the expense of the Company, a new
Security or Securities, of authorized denominations, in aggregate principal amount equal to the
unredeemed portion of the Security so presented
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and having the same Original Issue Date, Stated Maturity and terms. If a Global Security is so
surrendered, such new Security will also be a new Global Security.
If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal of and premium, if any, on such Security shall, until paid, bear interest
from the Redemption Date at the rate prescribed therefor in the Security.
ARTICLE XII
SINKING FUNDS
SECTION 12.1. Applicability of Article.
The Securities shall not be subject to any sinking fund or analogous provision.
ARTICLE XIII
SUBORDINATION OF SECURITIES
SECTION 13.1. 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 and
subject in right of payment to the prior payment in full of all Senior Indebtedness.
SECTION 13.2. No Payment When Senior Indebtedness in Default; Payment Over of Proceeds
Upon Dissolution, Etc.
In the event that the Company shall default in the payment of any principal of (or premium, if
any) or interest on any Senior Indebtedness when the same becomes due and payable, whether at
maturity or at a date fixed for prepayment or by declaration of acceleration or otherwise, then,
upon written notice of such default to the Company by the holders of Senior Indebtedness or any
trustee therefor, unless and until such default shall have been cured or waived or shall have
ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or
otherwise) shall be made or agreed to be made on account of the principal of (or premium, if any)
or interest on any of the Securities, or in respect of any redemption, repayment, retirement,
purchase or other acquisition of any of the Securities.
In the event of (a) any insolvency, bankruptcy, receivership, liquidation, reorganization,
readjustment, composition or other similar proceedings relating to the Company, its creditors or
its property, (b) any proceeding for the liquidation, dissolution or other winding up of the
Company, voluntary or involuntary, whether or not involving
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insolvency or bankruptcy proceedings, (c) any assignment by the Company for the benefit of
creditors or (d) any other marshalling of the assets of the Company (each such event, if any,
herein sometimes referred to as a “Proceeding”), all Senior Indebtedness (including any interest
thereon accruing after the commencement of any such proceedings) shall first be paid in full before
any payment or distribution, whether in cash, securities or other property, shall be made to any
Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash,
securities or other property (other than securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment the payment of which is subordinate, at
least to the extent provided in this Article XIII, to the payment of all Senior Indebtedness at the
time outstanding and to any securities issued in respect thereof under any such plan of
reorganization or readjustment), which would otherwise (but for this Article XIII) be payable or
deliverable in respect of the Securities of any series shall be paid or delivered directly to the
holders of Senior Indebtedness in accordance with the priorities then existing among such holders
until all Senior Indebtedness (including any interest thereon accruing after the commencement of
any Proceeding) shall have been paid in full.
In the event of any Proceeding, after payment in full of all sums owing with respect to Senior
Indebtedness, the Holders of the Securities, together with the holders of any Pari Passu
Securities, shall be entitled to be paid from the remaining assets of the Company the amounts at
the time due and owing on account of unpaid principal of (and premium, if any) and interest on the
Securities and such other obligations before any payment or other distribution, whether in cash,
property or otherwise, shall be made on account of any capital stock or any obligations of the
Company ranking junior to the Securities and such other obligations.
In the event that, notwithstanding the foregoing, any payment or distribution of any character
or any security, whether in cash, securities or other property (other than securities of the
Company or any other corporation provided for by a plan of reorganization or readjustment the
payment of which is subordinate, at least to the extent provided in these subordination provisions
with respect to the indebtedness evidenced by the Securities, to the payment of all Senior
Indebtedness at the time outstanding and to any securities issued in respect thereof under any such
plan of reorganization or readjustment), shall be received by the Trustee or any Holder in
contravention of any of the terms hereof and before all Senior Indebtedness shall have been paid in
full, such payment or distribution or security shall be received in trust for the benefit of, and
shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness at the
time outstanding in accordance with the priorities then existing among such holders for application
to the payment of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all such
Senior Indebtedness in full. In the event of the failure of the Trustee or any Holder to endorse
or assign any such payment, distribution or security, each holder of Senior Indebtedness is hereby
irrevocably authorized to endorse or assign the same.
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The Trustee and Holders will take such action (including, without limitation, the delivery of
this Indenture to an agent for the holders of Senior Indebtedness or consent to the filing of a
financing statement with respect hereto) as may, in the opinion of counsel designated by the
holders of a majority in principal amount of the Senior Indebtedness at the time outstanding, be
necessary or appropriate to assure the effectiveness of the subordination effected by these
provisions.
The provisions of this Section 13.2 shall not impair any rights, interests, remedies or powers
of any secured creditor of the Company in respect of any security interest the creation of which is
not prohibited by the provisions of this Indenture.
The securing of any obligations of the Company, otherwise ranking on a parity with the
Securities or ranking junior to the Securities, shall not be deemed to prevent such obligations
from constituting, respectively, obligations ranking on a parity with the Securities or ranking
junior to the Securities.
SECTION 13.3. 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 conditions described in the first
paragraph of Section 13.2 or the pendency of any Proceeding referred to in Section 13.2, from
making payments at any time of principal of (and premium, if any) or interest (including Additional
Interest) on the Securities, or (b) the application by the Trustee of any monies 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 the time of such application by the Trustee, it did not have knowledge that such
payment would have been prohibited by the provisions of this Article.
SECTION 13.4. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all amounts due or to become due on 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, 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
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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 13.5. 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, 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 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 13.6. 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 13.7. 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.
Without in any way limiting the generality of the immediately preceding paragraph, the holders
of Senior Indebtedness may, at any time and from to time, without the consent of or notice to the
Trustee or the Holders of the Securities, without incurring responsibility to the Holders of the
Securities and without impairing or releasing the subordination provided in this Article or the
obligations hereunder of the Holders of the Securities to the holders of Senior Indebtedness, do
any one or more of the following:
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(i) change the manner, place or terms of payment or extend the time of payment of, or renew or
alter, Senior Indebtedness, or otherwise amend or supplement in any manner Senior Indebtedness or
any instrument evidencing the same or any agreement under which Senior Indebtedness is outstanding;
(ii) sell, exchange, release or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Indebtedness: (iii) release any Person liable in any manner for the collection of
Senior Indebtedness; and (iv) exercise or refrain from exercising any rights against the Company
and any other Person.
SECTION 13.8. 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 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; provided, however, that if the
Trustee shall not have received the notice provided for in this Section at least two 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 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 two Business Days prior to such date.
Subject to the provisions of Section 6.1, 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 a trustee or attorney-in-fact therefor) to establish that such notice has been
given by a holder of Senior Indebtedness (or a trustee or attorney-in-fact therefor). 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, 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 rights of such Person under this Article, 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.
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SECTION 13.9. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the Company referred to in this Article, the
Trustee, subject to the provisions of Section 6.1, 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.
SECTION 13.10. 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.
SECTION 13.11. 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.
SECTION 13.12. 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.
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.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, and
their respective corporate seals to be hereunto affixed and attested, all as of the day and year
first above written.
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THE HARTFORD FINANCIAL SERVICES GROUP, INC.
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By: |
/s/ John N. Giamalis
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Name: |
John N. Giamalis |
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Title: |
Senior Vice President and Treasurer |
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Attest:
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/s/ Richard G. Costello
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Name: |
Richard G. Costello |
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Vice President and Corporate Secretary |
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LASALLE BANK NATIONAL ASSOCIATION
As Trustee
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By: |
/s/ Robert J. Donaldson
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Name: |
Robert J. Donaldson |
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Assistant Vice President |
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Attest:
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/s/ Robert H. Bockrath II
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Robert H. Bockrath II |
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First Vice President |
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-85-
ANNEX A — Form of Securities
[Add if a Restricted Security:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO A
PERSON WHO IS (1) A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) KNOWLEDGEABLE, SOPHISTICATED AND EXPERIENCED
IN BUSINESS AND FINANCIAL MATTERS, (3) ABLE AND PREPARED TO BEAR THE ECONOMIC RISK OF INVESTING IN
AND HOLDING THIS SECURITY, (4) A “UNITED STATES PERSON” FOR UNITED STATES FEDERAL INCOME TAX
PURPOSES (OTHER THAN AN “S CORPORATION” AS DEFINED IN SECTION 1361 OF THE INTERNAL REVENUE CODE OF
1986) (THE “CODE”)) AND (5) NOT AN EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION 1361 OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”)) THAT IS SUBJECT TO ERISA, A
PLAN DESCRIBED IN SECTION 4975 OF THE CODE OR AN ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO
INCLUDE PLAN ASSETS OF ANY SUCH PLANS, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF THE STATES AND OTHER JURISDICTIONS OF THE UNITED STATES. THE HOLDER OF THIS SECURITY AGREES
THAT IT WILL COMPLY WITH THE FOREGOING RESTRICTIONS.
[Add if a Global Security:
THIS SECURITY, IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED
TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A DEPOSITORY. THIS SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE
DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY.]
Form of
Securities
THE HARTFORD FINANCIAL SERVICES GROUP, INC.
INCOME CAPITAL OBLIGATION NOTES DUE 2067
No.
$
THE HARTFORD FINANCIAL SERVICES GROUP, INC., a corporation duly organized and existing under
the laws of the State of Delaware (hereinafter called the “Company,” which term includes
any successor Person under the Indenture hereinafter referred to), for value received, hereby
promises to pay [ ], or registered assigns, the principal sum of [ ] dollars ($ ) on
February 12, 2067, or if such day is not a Business Day, the following Business Day (the “Final
Stated Maturity Date”); provided that the principal amount of and accrued and unpaid interest
on this Security shall be payable in full on February 12, 2047, or if such day is not a Business
Day, the following Business Day (the “Scheduled Maturity Date”) or any subsequent Interest
Payment Date to the extent set forth in the Indenture hereinafter referred to. The Company further
promises to pay interest on said principal sum from [ ] or from the most recent Interest Payment
Date for which interest has been paid or duly provided for. This Security shall bear interest at
the Applicable Rate as provided in Section 3.2 of the Indenture. The Interest Payment Dates on
which such interest shall be payable are February 15 and August 15 during the 6-Month LIBOR Period,
and February 15, May 15, August 15 and November 15 during the 3-Month LIBOR Period. In the event
any Interest Payment Date is not a Business Day, the interest payable on such day shall be paid on
the following Business Day and no interest will accrue as a result of such postponement. Any
Deferred Interest or interest otherwise unpaid on the relevant Interest Payment Date shall bear
interest, to the extent permitted by law, at the rate of interest applicable on this Security at
such time, from the relevant Interest Payment Date, compounded as of each Interest Payment Date,
until paid in accordance with the Indenture.
The interest installment 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 next preceding the Interest Payment Date.
The Company shall have the right, at any time and from time to time prior to the Final Stated
Maturity Date to defer the payment of interest on this Security as provided in Article III of the
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 his
A-2
behalf to take such actions as may be necessary or appropriate to effectuate the subordination
so provided and (c) appoints the Trustee his attorney-in-fact for any and all such purposes. Each
Holder hereof, by his 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.
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.
A-3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
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The Hartford
Financial Services Group,
Inc.
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By: |
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Name: |
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Certificate of Authentication
This is one of the Securities referred to in the within mentioned Indenture.
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LaSalle Bank National
Association
as Trustee
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By: |
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Name: |
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Title: |
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Dated:
A-4
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 under a Junior Subordinated Indenture, dated as
of February 12, 2007 (the “Indenture”), between the Company and LaSalle Bank National
Association, 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
limited in aggregate principal amount of $500,001,000.
All terms used in this Security that are defined in the Indenture shall have the meanings
assigned to them in the Indenture, as the case may be.
This Security is subject to optional and mandatory redemption as provided in Article XI of the
Indenture.
In the event of redemption or repayment of this Security in part only, a new Security or
Securities for the unredeemed portion hereof will be issued in the name of the Holder hereof upon
the cancellation hereof.
The Indenture contains provisions for satisfaction and discharge of the entire indebtedness of
this Security upon compliance by the Company with certain conditions set forth in the Indenture.
The Company and the Trustee shall have the right at any time to enter into a supplemental
indenture or indentures as provided in Article IX of the Indenture.
Article V of the Indenture permits Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities, under certain circumstances, to waive compliance of past
defaults except a default in the payment of the principal of or premium, if any, or interest on any
of the Securities. Article V of the Indenture also contains provisions permitting Holders of not
less than 25% in aggregate principal amount of the Outstanding Securities to declare the principal
amount of all the Securities, and accrued interest thereto, to be due and immediately payable, if
specified Events of Default arise.
Each Holder, by such Holder’s acceptance hereof, agrees as provided in Section 3.2(g) of the
Indenture, that if a Bankruptcy Event with respect to the Company shall occur prior to the
Maturity, redemption or repayment of this Security, such Holder shall have no claim for, and thus
no right to receive, any deferred interest that has not been paid out of the proceeds of the
issuance of certain securities in accordance with the Indenture to the extent the aggregate amount
of such interest exceeds 25% of the original principal amount of such Security.
A-5
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, places 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 Securities Register, upon surrender of this
Security for registration of transfer at the office or agency of the Company maintained under
Section 10.2 of the Indenture duly endorsed by, or accompanied by written instrument of transfer in
form satisfactory to the Company and the Securities Registrar duly executed by, the Holder hereof
or his attorney duly authorized in writing, and thereupon one or more new Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to the designated
transferee or transferees. 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, assessment
or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, 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.
No recourse shall be had for the payment of the principal of or the interest on this Security,
or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the
Indenture, against any incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor Person, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of the consideration for
the issuance hereof, expressly waived and released.
The Securities are issuable only in registered form without coupons in denominations of $1,000
and any integral multiple thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Securities are exchangeable for like aggregate principal amount of Securities of
a different authorized denomination, as requested by the Holder surrendering the same.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK.
A-6
ANNEX B
Form of Restricted Securities Certificate
ANNEX B — Form of Restricted
Securities Certificate
RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant to Section 3.8(b) of the Indenture)
[ ],
as Securities Registrar
[address]
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Re:
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of [ ]
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(the “Trust”) (the “Securities”) |
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Reference is made to the Indenture, dated as of February 12, 2007 (the “Indenture”), entered
into between The Hartford and LaSalle Bank National Association, as Trustee. Terms used herein and
defined in the Indenture or in Regulation S, Rule 144A or Rule 144 under the U.S. Securities Act of
1933 (the “Securities Act”) are used herein as so defined.
This certificate relates to $ aggregate principal amount of Securities, which
are evidenced by the following certificate(s) (the “Specified Securities”):
CUSIP No(s).
CERTIFICATE No(s).
CURRENTLY IN BOOK-ENTRY FORM: Yes No (check one)
The person in whose name this certificate is executed below (the “Undersigned”) hereby
certifies that either (i) it is the sole beneficial owner of the Specified Securities or (ii) it is
acting on behalf of all the beneficial owners of the Specified Securities and is duly authorized by
them to do so. Such beneficial owner or owners are referred to herein collectively as the “Owner”.
If the Specified Securities are represented by a Global Security, they are held through a
Depository or an Agent Member in the name of the Undersigned, as or on behalf of the Owner. If the
Specified Securities are not represented by a Global Security, they are registered in the name of
the Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be transferred to a person (the
“Transferee”) who will take delivery in the form of a Restricted Security, in connection with such
transfer, the Owner hereby certifies that, unless such transfer is being effected pursuant to an
effective registration statement under the Securities Act, it is being effected in accordance with
Rule 144A under the Securities Act and all
B-1
applicable securities laws of the states of the United States and other jurisdictions.
Accordingly, the Owner hereby further certifies that:
If the transfer is being effected in accordance with Rule 144A:
(A) the Specified Securities are being transferred to a person that the Owner and any
person acting on its behalf reasonably believe is a “qualified institutional buyer” within
the meaning of Rule 144A, acquiring for its own account or for the account of a qualified
institutional buyer; and
(B) the Owner and any person acting on its behalf have taken reasonable steps to
ensure that the Transferee is aware that the Owner may be relying on Rule l44A in
connection with the transfer.
This certificate and the statements contained herein are made for your benefit and the benefit
of the Company and the Initial Purchaser or Initial Purchasers (each as defined in the related
Trust Agreement).
Dated:
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(Print the name of the Undersigned, as such term |
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is defined in the second paragraph of this |
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certificate.) |
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By: |
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Name: |
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(If the Undersigned is a corporation, partnership |
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or fiduciary, the title of the person signing on |
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behalf of the Undersigned must be stated.) |
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B-2
ANNEX C
Form of Restricted Securities Certificate
ANNEX C — Form of Unrestricted
Securities Certificate
UNRESTRICTED SECURITIES CERTIFICATE
(For removal of Restricted Capital Securities Legends pursuant to
Section 3.8(c) of the Indenture)
[ ],
as Securities Registrar
[address]
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Re:
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of [ ],
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(the “Trust”) (the “Securities”) |
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Reference is made to the Indenture, dated as of February 12, 2007 (the “Indenture”), between
The Hartford and LaSalle Bank National Association, as Trustee. Terms used herein and defined in
the Indenture or in Rule 144 under the U.S. Securities Act of 1933 (the “Securities Act”) are used
herein as so defined.
This certificate relates to $ aggregate principal amount of Securities, which are
evidenced by the following certificate(s) (the “Specified Securities”):
CUSIP No(s).
CERTIFICATE No(s).
CURRENTLY IN BOOK-ENTRY FORM: Yes No (check one)
The person in whose name this certificate is executed below (the “Undersigned”) hereby
certifies that either (i) it is the sole beneficial owner of the Specified Securities or (ii) it is
acting on behalf of all the beneficial owners of the Specified Securities and is duly authorized by
them to do so. Such beneficial owner or owners are referred to herein collectively as the “Owner”.
If the Specified Securities are represented by a Global Security, they are held through the
Depository or an Agent Member in the name of the Undersigned, as or on behalf of the Owner. If the
Specified Securities are not represented by a Global Security, they are registered in the name of
the Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be exchanged for Securities bearing no
Restricted Securities Legend pursuant to Section 3.8(c) of the Indenture. In connection with such
exchange, the Owner hereby certifies that the exchange is occurring after a period of at least
three years has elapsed since the date the Specified Securities were acquired from the Company or
from an affiliate (as such term is defined in Rule 144) of the Company, whichever is later, and the
Owner is not, and during the preceding three months has not been, an affiliate of the Company. The
Owner also
C-1
acknowledges that any future transfers of the Specified Securities must comply with all
applicable securities laws of the states of the United States and other jurisdictions.
This certificate and the statements contained herein are made for your benefit and the benefit
of the Company and the Initial Purchasers (as defined in the related Trust Agreement).
Dated:
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(Print the name of the Undersigned, as such term |
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is defined in the second paragraph of this |
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certificate.) |
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By: |
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Name: |
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(If the Undersigned is a corporation, partnership |
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or fiduciary, the title of the person signing on |
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behalf of the Undersigned must be stated.) |
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C-2
ANNEX D
Form of Offices’ Certificate
[Date]
LaSalle Bank National Association
as Trustee under the Indenture
2600 W. Big Beaver Road, Suite 140
Troy, Michigan 48084
Attn: [ ]
The Hartford Financial Services Group, Inc.
Reference is made to the Junior Subordinated Indenture, dated as of February 12, 2007 (the
“Indenture”), between The Hartford Financial Services Group, Inc., a Delaware corporation
(the “Company”), and LaSalle Bank National Association, as trustee (the “Trustee”),
relating to the Income Capital Obligation Notes due 2067 (the “Securities”) of the Company.
Defined terms used herein without definition shall have the meanings assigned to them in the
Indenture.
In accordance with Section 3.5 of the Indenture, the Company hereby requests that you, in your
capacity as Trustee, as of the date hereof, authenticate in the manner provided by the Indenture, a
certificate [in definitive, registered form] [in the form of a Global Note] representing the
Securities registered in the name of [Glen Meadow ABC Trust] [Cede & Co.] bearing the number [ ]
and in the aggregate principal amount of $[ ], as heretofore duly authorized and executed by the
proper officers of the Company and delivered to you as provided in the Indenture[; and hold such
Global Note as custodian for the Depository].
[Name], [Title], and [Name], [Title], of the Company, do hereby certify in the name of and on
behalf of the Company and solely in our capacities as officers of the Company, pursuant to Section
3.5 of the Indenture, as follows:
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Each of the undersigned has read the provisions in the Indenture relating to conditions
precedent to the execution, authentication and delivery of the certificate bearing the number
[ ] representing $[ ] in aggregate principal amount of the Securities and has made such
investigation as the undersigned considered necessary in connection with the delivery hereof; |
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In the opinion of each of the undersigned, the undersigned has made such examination or
investigation as is necessary to enable the undersigned to express |
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an informed opinion as to whether or not the provisions in the Indenture relating to
conditions precedent to the execution, authentication and delivery of said certificate have
been complied with; and |
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In the opinion of each of the undersigned, such provisions have been complied with. |
[Remainder of Page Intentionally Left Blank]
D-2
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of the date first set
forth above.
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THE HARTFORD FINANCIAL
SERVICES GROUP. INC. |
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By: |
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