EXHIBIT 3.76
DECLARATION AND CHARTER
OF
TSI INSURANCE, INC.
Under Article 70 of the Insurance Law of the State of New York
We, the undersigned, being natural persons over the age of
eighteen years, hereby declare our intention to form a pure captive insurance
corporation for the purposes of transacting the kinds of insurance specified in
paragraphs 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 15 (on an excess basis only), 16,
19 and 20 (inland marine portion only) of Section 1113(a) of the Insurance Law
of the State of New York, subject at all times to the limitations on the
business of pure captive insurance companies set forth in Article 70 of the
Insurance Law of the State of New York.
FIRST: The name of the corporation is TSI Insurance, Inc.
SECOND: The nature of the business to be conducted and the
purposes for which the corporation is formed is to transact the kinds of
property and casualty insurance business specified in paragraphs 4, 5, 6, 7, 8,
9, 10, 12, 13, 14, 15 (on an excess basis only), 16, 19 and 20 (inland marine
portion only) of subsection (a) of Section 1113 of the Insurance Law of the
State of New York, subject at all times to the limitations on the business of
pure captive insurance companies set forth in Article 70 of the Insurance Law of
the State of New York, as follows:
"Fire insurance," as authorized by paragraph 4 of Section
1113(a) of the Insurance Law of the State of New York, meaning insurance against
loss of or damage to any property resulting from fire, including loss or damage
incident to the extinguishment of a fire or to the salvaging of property in
connection therewith.
"Miscellaneous property insurance," including insurance
against loss of or damage to property resulting from acts of sabotage or
terrorism, as authorized by paragraph 5 of
Section 1113(a) of the Insurance Law of the State of New York, meaning insurance
against loss of or damage to property resulting from:
(A) lightning, smoke or smudge, windstorm, tornado, cyclone,
earthquake, volcanic eruption, rain, hail, frost and freeze, weather or
climatic conditions, excess or deficiency of moisture, flood, the
rising of the waters of the ocean or its tributaries;
(B) insects, or blights, or disease of such property except
animals;
(C) electrical disturbance causing or concomitant with a fire
or an explosion in public service or public utility property;
(D) bombardment, invasion, insurrection, riot, civil war or
commotion, military or usurped power, any order of a civil authority
made to prevent the spread of a conflagration, epidemic or catastrophe,
vandalism or malicious mischief, strike or lockout, collapse from any
cause, or explosion; but excluding any kind of insurance specified in
paragraph 9 of subsection (a) of Section 1113 of the New York Insurance
Law, except against loss of or damage to property resulting from:
(i) explosion of pressure vessels (except steam
boilers of more than fifteen pounds pressure) in buildings
designed and used solely for residential purposes by not more
than four families,
(ii) explosion of any kind originating outside of the
insured building or outside of the building containing the
property insured,
(iii) explosion of pressure vessels which do not
contain steam or which are not operated with steam coils or
steam jackets, or
(iv) electrical disturbance causing or concomitant
with an explosion in public service or public utility
property; or
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(E) lateral or vertical subsidence of the earth caused by past
or present mining operations.
"Water damage insurance," as authorized by paragraph 6 of
Section 1113(a) of the Insurance Law of the State of New York, meaning insurance
against loss or damage by water or other fluid or substance to any property
resulting from the breakage or leakage of sprinklers, pumps or other apparatus
erected for extinguishing fires or of water pipes or other conduits or
containers, or resulting from casual water entering through leaks or openings in
buildings or by seepage through building walls, but excluding loss or damage
resulting from flood or the rising of the waters of the ocean or its
tributaries; and including insurance against accidental injury of such
sprinklers, pumps, fire apparatus, conduits or containers.
"Burglary and theft insurance," as authorized by paragraph 7
of Section 1113(a) of the Insurance Law of the State of New York, meaning:
(A) insurance against loss of or damage to any property
resulting from burglary, theft, larceny, robbery, forgery, fraud,
vandalism, malicious mischief, confiscation or wrongful conversion,
disposal or concealment by any person, or from any attempt thereof;
(B) insurance against loss of or damage to moneys, coins,
bullion, securities, notes, drafts, acceptances or any other valuable
papers or documents, resulting from any cause, except while in the
custody or possession of and being transported by any carrier for hire
or in the mail; and
(C) insurance of individuals by means of an all-risk type of
policy commonly known as the "Personal Property Floater" against any
kind and all kinds of loss of or damage to, or loss of use of, any
personal property other than merchandise.
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"Glass insurance," as authorized by paragraph 8 of Section
1113(a) of the Insurance Law of the State of New York, meaning insurance against
loss of or damage to glass and its appurtenances resulting from any cause.
"Boiler and machinery insurance," as authorized by paragraph 9
of Section 1113(a) of the Insurance Law of the State of New York, meaning
insurance against loss of or damage to any property of the insured, resulting
from explosion of or injury to:
(A) any boiler, heater or other fired pressure vessel;
(B) any unfired pressure vessel;
(C) pipes or containers connected with any such boilers or
vessels;
(D) any engine, turbine, compressor, pump or wheel;
(E) any apparatus generating, transmitting or using
electricity; or
(F) any other machinery or apparatus connected with or
operated by any such boilers, vessels or machines; and including the
incidental power to make inspections of, and issue certificates of
inspection upon, any such boilers, apparatus, and machinery, whether
insured or otherwise.
"Elevator insurance," as authorized by paragraph 10 of Section
1113(a) of the Insurance Law of the State of New York, meaning insurance against
loss of or damage to any property of the insured, resulting from ownership,
maintenance, or use of elevators, except loss or damage by fire.
"Collision insurance," as authorized by paragraph 12 of
Section 1113(a) of the Insurance Law of the State of New York, meaning insurance
against loss of or damage to any property of the insured resulting from
collision of any other object with such property, but
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excluding collision to or by elevators, or to or by vessels, craft, piers or
other instrumentalities of ocean or inland navigation.
"Personal injury liability insurance," as authorized by
paragraph 13 of Section 1113(a) of the Insurance Law of the State of New York,
meaning insurance against legal liability of the insured, and against loss,
damage or expense incident to a claim of such liability (including the insurer's
obligation to pay medical, hospital, surgical and disability benefits to injured
persons, and funeral and death benefits to dependents, beneficiaries or personal
representatives of persons who are killed, irrespective of legal liability of
the insured), arising out of death or injury of any person; or arising out of
injury to the economic interests of any person, as the result of negligence in
rendering expert, fiduciary or professional service, but excluding any kind of
insurance specified in paragraph 15 except insurance to protect an insured
against liability for indemnification or contribution to a third party held
responsible for injury to the insured's employee arising out of and in the
course of employment when such insurance is written pursuant to this paragraph
and not written pursuant to paragraph 15 of this subsection.
"Property damage liability insurance," as authorized by
paragraph 14 of Section 1113(a) of the Insurance Law of the State of New York,
meaning insurance against legal liability of the insured, and against loss,
damage or expense incident to a claim of such liability, arising out of the loss
or destruction of, or damage to, the property of another person, but not
including any kind of insurance specified in paragraph thirteen, fifteen or
twenty-eight of Section 1113(a) of the Insurance Law of the State of New York.
"Workers' compensation and employers' liability insurance," as
authorized by paragraph 15 of Section 1113(a) of the Insurance Law of the State
of New York, but on an excess basis only, meaning insurance against the legal
liability, under common law or statute or
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assumed by contract, of any employer for the death or disablement of, or injury
to, his employee, including volunteer firefighters' benefit insurance provided
pursuant to the volunteer firefighters' benefit law and including volunteer
ambulance workers' benefit insurance provided pursuant to the volunteer
ambulance workers' law.
"Fidelity and surety insurance," as authorized by paragraph 16
of Section 1113(a) of the Insurance Law of the State of New York, meaning
(A) guaranteeing the fidelity of persons holding positions of
public or private trust; and indemnifying banks, thrifts, brokers and
other financial institutions against loss of money, securities,
negotiable instruments, other specified valuable papers and tangible
items of personal property caused by larceny, misplacement, destruction
or other stated perils including loss while being transported in an
armored motor vehicle or by messenger; and insurance for loss caused by
the forgery of signatures on, or alteration of, specified documents and
valuable papers;
(B) insurance against losses that financial institutions
become legally obligated to pay by reason of loss of customers'
property from safe deposit boxes;
(C) any contract bond; including a bid, payment or maintenance
bond or a performance bond where the bond is guaranteeing the execution
of any contract other than a contract of indebtedness or other monetary
obligation;
(D) an indemnity bond for the benefit of a public body,
railroad or charitable organization; a lost security or utility payment
bond;
(E) becoming surety on, or guaranteeing the performance of,
any lawful contract, not specifically provided for in paragraph sixteen
of Section 1113 (a) of the Insurance Law of the State of New York,
except
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(i) mortgage guaranty insurance, which may only be
written by an insurer authorized to write such insurance
pursuant to Article 65 of the Insurance Law of the State of
New York,
(ii) a contract that falls within the definition of
financial guaranty insurance as set forth in paragraph one of
subsection (a) of Section 6901 of this chapter,
(iii) any insurance contract unless such guaranty is
authorized pursuant to subsection (c) of Section 1114 of
Article 11 of the Insurance Law of the State of New York; or
(iv) service contract reimbursement insurance as
specified in paragraph twenty-eight of subsection (a) of
Section 1113 of the Insurance Law of the State of New York;
(F) becoming surety on, or guaranteeing the performance of,
bonds and undertakings required or permitted in all judicial
proceedings or otherwise by law allowed, including surety bonds
accepted by states and municipal authorities in lieu of deposits as
security for the performance of insurance contracts; and
(G) becoming surety on, or guaranteeing the performance of, a
bond, which shall not exceed a period greater than five years, that
guarantees the payment of a premium, deductible, or self-insured
retention to an insurer issuing a workers' compensation or liability
policy.
"Motor vehicle and aircraft physical damage insurance," as
authorized by paragraph 19 of Section 1113(a) of the Insurance Law of the State
of New York, meaning insurance against loss of or damage to motor vehicles or
aircraft and their equipment resulting
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from any cause; and insurance reimbursing a driver for costs including
replacement car rental, commercial transportation and accommodations resulting
from an automobile accident or mechanical breakdown occurring fifty miles or
more from the driver's principal place of residence or garaging.
"Marine and inland marine insurance," as authorized by
paragraph 20 of Section 1113(a) of the Insurance Law of the State of New York,
but limited to the inland marine portions thereof only, meaning insurance
against any and all kinds of loss of or damage to:
(A) vessels, hulls, craft, aircraft, cars, automobiles,
trailers and vehicles of every kind, and all goods, freights, cargoes,
merchandise, effects, disbursements, profits, moneys, bullion, precious
stones, securities, choses in action, evidences of debt, valuable
papers, bottomry and respondentia interests and all other kinds of
property and interests therein, in respect to, appertaining to or in
connection with any and all risks or perils of navigation, transit, or
transportation, including war risks, on or under any seas or other
waters, on land or in the air, or while being assembled, packed,
crated, baled, compressed or similarly prepared for shipment or while
awaiting the same or during any delays, storage, transshipment, or
reshipment incident thereto, including marine builder's risks and all
personal property floater risks;
(B) person or property in connection with or appertaining to
marine, inland marine, transit or transportation insurance, including
liability for loss of or damage to either, arising out of or in
connection with the construction, repair, operation, maintenance or use
of the subject matter of such insurance (but not including life
insurance or surety bonds nor insurance against loss by reason of
bodily injury to the person arising out of ownership, maintenance or
use of automobiles);
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(C) precious stones, jewels, jewelry, gold, silver and other
precious metals, whether used in business or trade or otherwise and
whether the same be in course of transportation or otherwise; and
(D) bridges, tunnels and other instrumentalities of
transportation and communication (excluding buildings, their
improvements and betterments, furniture and furnishings, fixed contents
and supplies held in storage), including auxiliary facilities and
equipment attendant thereto; piers, wharves, docks and slips; other
aids to navigation and transportation, including dry docks and marine
railways; provided, that the term "inland marine" insurance shall not
include insurance of vessels, crafts, their cargoes, marine builders'
risks, or other similar risks, commonly insured only under ocean marine
insurance policies.
The corporation may conduct business in accordance with any
amendments to such paragraphs of Section 1113 of the Insurance Law of the State
of New York or provisions in substitution therefor which may be hereafter
adopted; and such other kind or kinds of business to the extent necessary or
properly incidental to the kind or kinds of insurance business which the
corporation is authorized to do.
The corporation shall also have all other rights, powers and
privileges now or hereafter authorized or granted by the Insurance Law of the
State of New York or any other law or laws of the State of New York to pure
captive insurance companies having the power to do the kind or kinds of business
hereinabove referred to and any and all rights, powers and privileges of a
corporation now or hereafter granted by the laws of the State of New York and
not prohibited to such pure captive insurance companies.
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THIRD: The principal office of the corporation is to be
located in the County of New York, State of New York.
FOURTH: The number of directors which shall constitute the
whole board of directors shall be not less than three nor more than nine as
fixed from time to time by resolution of the board of directors or by the
shareholders at an annual or special meeting; provided, that no decrease in the
number of directors shall shorten the term of any incumbent director. Until such
a resolution is so adopted by the board of directors or shareholders, the number
of directors shall be three. A majority of the directors shall be citizens and
residents of the United States of America. Not less than two of the directors at
any time shall be residents of the State of New York and all directors shall be
at least eighteen years old.
FIFTH: The aggregate number of shares of stock which the
corporation shall have authority to issue is One Hundred Thousand (100,000)
shares of common stock, par value One Dollar ($1.00) per share. The corporation
shall not issue or sell any additional shares without the prior approval of the
Superintendent of Insurance of the State of New York.
SIXTH: The capital of the corporation shall be One Hundred
Thousand Dollars ($100,000). The corporation shall initially issue and sell One
Hundred Thousand shares of common stock at a price of One Dollar ($1.00) per
share.
SEVENTH: The corporation shall be authorized to indemnify any
and all of its directors, officers, employees and agents, and any other person
or persons, to the fullest extent permitted under the Insurance Law of the State
of New York and, to the extent not inconsistent therewith, the Business
Corporation Law of the State of New York.
EIGHTH: No director shall be personally liable to the
corporation or any of its shareholders for damages for any breach of duty as a
directory; provided, however, that the
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foregoing provision shall not eliminate or limit the liability of a director if
a judgment or other final adjudication adverse to him or her establishes that
his or her acts or omissions were in bad faith or involved intentional
misconduct or any violation of the Insurance Law of the State of New York or a
knowing violation of any other law or that he or she personally gained in fact a
financial profit or other advantage to which he or she was not legally entitled.
NINTH: The by-laws of the corporation may be amended at any
meeting of shareholders by vote of the shareholders holding a majority of all of
the outstanding stock entitled to vote, present either in person or by proxy,
provided notice of the amendment is included in the notice or waiver of notice
of such meeting. The board of directors of the corporation may from time to time
by the vote of a majority of the directors then in office make, adopt, amend,
supplement or repeal by-laws (including by-laws adopted by the shareholders of
the corporation), but the shareholders of the corporation may from time to time
specify provisions of the by-laws that may not be amended or repealed by the
board of directors of the corporation. Any amendment of the by-laws shall be
made subject to Section 7003(d) of the Insurance Law of the State of New York,
as the same may be amended from time to time.
TENTH: This Charter or provisions hereof may be amended at any
time with the approval of the board of directors and the shareholders of the
corporation, but subject to and in accordance with Section 7003(d) of the
Insurance Law of the State of New York, as the same may be amended from time to
time.
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IN WITNESS WHEREOF, the undersigned have executed this
Declaration and Charter this 11th day of December, 2002.
/s/ Peter M. Hosinski
-------------------------------------------
Peter M. Hosinski, Esq., Incorporator
Becker, Glynn, Melamed & Muffly LLP
299 Park Avenue
New York, New York 10171
/s/ Santiago E. Lucero
-------------------------------------------
Santiago E. Lucero, Esq., Incorporator
Becker, Glynn, Melamed & Muffly LLP
299 Park Avenue
New York, New York 10171
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 11th day of December in the year 2002 before me, the
undersigned, personally appeared Peter M. Hosinski, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual
incorporator whose name is subscribed to the within instrument, and acknowledged
to me that he executed the same in his capacity as an incorporator, and that by
his signature on the instrument the individual executed the instrument.
/s/ Lisa S. White
---------------------------------
Notary Public
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 11th day of December in the year 2002 before me, the
undersigned, personally appeared Santiago E. Lucero, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual
incorporator whose name is subscribed to the within instrument, and acknowledged
to me that he executed the same in his capacity as an incorporator, and that by
his signature on the instrument the individual executed the instrument.
/s/ Lisa S. White
----------------------------------
Notary Public
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