UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
November 29, 2005 (November 22, 2005)
THE STANLEY WORKS
(Exact Name of Registrant as Specified in its Charter)
Connecticut 1-5244 06-0548860
--------------------------------------------------------------------------------
(State of Incorporation) (Commission File No.) (IRS Employer
Identification No.)
1000 Stanley Drive
New Britain, Connecticut 06053
(Address of Principal Executive Offices)
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Registrant's telephone number: (860) 225-5111
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
[ ] Written communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Item 1.01. Entry into a Material Definitive Agreement.
On November 22, 2005, The Stanley Works (the "Company") consummated an
offering of 450,000 5.902% Fixed Rate/Floating Rate Enhanced Trust Preferred
Securities (liquidation amount $1,000 per preferred security) (the "Preferred
Securities") through its trust subsidiary, The Stanley Works Capital Trust I
(the "Trust"). The Preferred Securities were sold at a price of 100% of
liquidation amount (or an aggregate gross price of $450 million).
Indenture, First Supplemental Indenture and the Junior Subordinated Debt
Securities underlying the Preferred Securities
In connection with the sale of the Preferred Securities by the Trust,
the Company issued $450,100,000 aggregate principal amount of its 5.902% Fixed
Rate/Floating Rate Junior Subordinated Debt Securities due December 1, 2045
(the "Junior Subordinated Debt Securities") pursuant to a first supplemental
indenture, supplementing an indenture, each dated November 22, 2005, between
the Company and HSBC Bank USA, National Association, as indenture trustee
(together, the "Indenture"). All of the Junior Subordinated Debt Securities
were purchased by the Trust with the proceeds the Trust received from the sale
of the Preferred Securities and the Trust Common Securities (as defined below).
The Junior Subordinated Debt Securities were sold at a price of 100% of
principal amount (or an aggregate gross price of $450.1 million).
The Junior Subordinated Debt Securities are general unsecured junior
subordinated obligations of the Company and are subordinated in right of
payment, to the extent set forth in the Indenture, to all existing and future
Senior Indebtedness (as defined in the Indenture).
The Junior Subordinated Debt Securities bear interest from the date of
issuance on November 22, 2005 to December 1, 2010 (the "Fixed Rate Period") at
the annual rate of 5.902% of their principal amount, payable semi-annually in
arrears on June 1 and December 1 of each year, beginning on June 1, 2006. From
December 1, 2010, the Junior Subordinated Debt Securities will bear interest at
an annual rate reset quarterly of 1.40% plus the highest of the 3-Month LIBOR
Rate, the 10-Year Treasury CMT and the 30-Year Treasury CMT (each as defined in
the Indenture) for the related quarterly interest accrual period, subject to a
limit of 13.25%, payable quarterly on each March 1, June 1, September 1 and
December 1, beginning March 1, 2011.
The Indenture provides that payments of interest are subject to
Optional Deferral and Mandatory Deferral provisions. The Company may elect at
any time and from time to time to exercise its right of "Optional Deferral" to
defer one or more interest payments on the Junior Subordinated Debt Securities.
The Company must provide a notice of its election to defer interest no more
than 60 and no fewer than 15 days prior to the relevant interest payment date.
The Indenture also provides that the Company will be subject to "Mandatory
Deferral" and will not be permitted to pay interest on the Junior Subordinated
Debt Securities in an amount in excess of the New Common Equity Amount (as
defined it the Indenture) on any interest payment date if, on the 30th day prior
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to such interest payment date, the Company does not meet certain financial
ratios. The Indenture requires the Company to pay deferred interest only out of
the net proceeds of sales of its common stock. Each of Optional Deferral and
Mandatory Deferral may not (i) extend beyond the maturity or earlier redemption
of the Junior Subordinated Debt Securities and (ii) continue for more than 10
years, whether because of Optional Deferral or Mandatory Deferral, without all
deferred interest being paid in full.
The Indenture provides that, beginning with the first to occur of (1)
the date that is one year after the first interest payment date for which the
Company was required to defer interest because of Mandatory Deferral and (2)
the date that is five years after the first interest payment date for which the
Company deferred interest because of Optional or Mandatory Deferral, the
Company must use its commercially reasonable efforts to sell shares of its
common stock in an amount that will generate sufficient net proceeds to enable
the Company to pay in full all deferred interest.
The Junior Subordinated Debt Securities are redeemable prior to their
maturity (1) in whole, but not in part, at any time prior to December 1, 2010,
at a redemption price equal to the greater of (x) 100% of the principal amount
of Junior Subordinated Debt Securities being redeemed and (y) as determined by
the Quotation Agent (as defined in the Indenture), the sum of the present
values of remaining scheduled payments of principal and interest thereon to
December 1, 2010, discounted to the redemption date on a semiannual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury
Rate (as defined in the Indenture) plus 0.25%, plus in each case, all accrued
and unpaid interest thereon to but not including the redemption date and (2) in
whole or in part, at any time from time to time on or after December 1, 2010 at
a redemption price equal to the aggregate principal amount of the Junior
Subordinated Debt Securities to be redeemed, plus all accrued and unpaid
interest to but not including the redemption date. There are also certain
redemption provisions in the event certain tax events occur or the Company and
the Trust receive a legal opinion that the Trust may be considered an
investment company under the Investment Company Act of 1940, as amended.
The foregoing description of the Indenture and the Junior Subordinated
Debt Securities does not purport to be complete and is qualified in its
entirety by reference to the full text of the Indenture, including the form of
Junior Subordinated Debt Securities included therein, copies of which are
attached as Exhibits 4.5, 4.6 and 4.7, respectively, to this Current Report on
Form 8-K and are incorporated herein by reference.
The holders of Senior Indebtedness do not have any rights to enforce
any of the covenants contained in the Indenture, other than those that are
contained in Article VI-Subordination that are made expressly for the benefit
of such holders.
Guarantee Agreement
Pursuant to the Preferred Securities Guarantee Agreement, dated
November 22, 2005, between the Company and HSBC Bank USA, National Association,
as guarantee trustee (the "Guarantee Agreement"), the Company irrevocably and
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unconditionally has agreed to pay in full on a subordinated basis "guarantee
payments" to the holders of the Preferred Securities. To the extent not paid by
or on behalf of the Trust, the Company guarantees (1) any accrued and unpaid
distributions required to be paid on the Preferred Securities, to the extent
that the Trust has funds on hand legally and immediately available therefor at
the time; (2) the applicable redemption price with respect to the Preferred
Securities called for redemption, to the extent that the Trust has funds on
hand legally and immediately available therefor at that time and (3) upon a
voluntary or involuntary dissolution, winding-up or liquidation of the Trust
(other than in connection with the distribution of the Junior Subordinated Debt
Securities held by the Trust to the holders of the Preferred Securities), the
lesser of (x) the aggregate of the liquidation amount and all accrued and
unpaid distributions on the Preferred Securities, to the extent the Trust has
funds on hand legally and immediately available therefor at the time and (y)
the amount of assets of the Trust remaining available for distribution to
holders of the Preferred Securities after satisfaction of liabilities to
creditors of the Trust as required by applicable law. The guarantee constitutes
an unsecured obligation of the Company and is subordinate and junior in right
of payment to the extent specified in the Guarantee Agreement, to (i) Senior
Indebtedness and (ii) the Junior Subordinated Debt Securities.
The foregoing description of the Guarantee Agreement does not purport
to be complete and is qualified in its entirety by reference to the full text
of the Guarantee Agreement, a copy of which is attached as Exhibit 4.8 to this
Current Report on Form 8-K and is incorporated herein by reference.
Amended and Restated Declaration of Trust and Preferred Securities
The Preferred Securities were issued pursuant to the Amended and
Restated Declaration of Trust, dated November 22, 2005, among the Trust, the
Company, HSBC Bank USA, National Association, as property trustee and as
Delaware trustee, and the administrative trustees parties thereto (the "Trust
Agreement"). Additionally, pursuant to the Trust Agreement, the Trust issued
trust common securities (the "Trust Common Securities") with a total
liquidation amount of $100,000 to the Company.
The Trust Agreement does not permit the Trust to issue any securities
other than the Preferred Securities and the Trust Common Securities. Both the
Preferred Securities and the Trust Common Securities represent undivided
beneficial interests in the assets of the Trust. The sole assets of the Trust
are the Junior Subordinated Debt Securities. If there is an event of default
under the Trust Agreement, the rights of the holders of the Preferred
Securities will be entitled to priority in right of payment over the holders of
the Trust Common Securities.
The distribution rates and distribution dates for the Preferred
Securities and the Trust Common Securities correspond to the interest payments
and interest payment dates on the Junior Subordinated Debt Securities. The
amount of funds available to the Trust for distribution to holders of the
Preferred Securities is limited to payments under the Junior Subordinated Debt
Securities.
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In the event of Optional Deferral or Mandatory Deferral with respect
to the Junior Subordinated Debt Securities, distributions on the Preferred
Securities will be deferred by the Trust during such interest deferral period.
Distributions to which the holders of the Preferred Securities are entitled
accumulate additional distributions to the extent of the compounded interest
accruing on the Junior Subordinated Debt Securities.
The Preferred Securities have no stated maturity but must be repaid
upon the repayment of the Junior Subordinated Debt Securities at their stated
maturity or upon the earlier redemption of the Junior Subordinated Debt
Securities. When the Company repays or redeems the Junior Subordinated Debt
Securities, the Trust will simultaneously, subject to certain notice
requirements, use the proceeds therefrom to redeem a Like Amount (as defined in
the Trust Agreement) of the Preferred Securities.
The foregoing description of the Trust Agreement and the Preferred
Securities does not purport to be complete and is qualified in its entirety by
reference to the full text of the Trust Agreement, including the form of
Preferred Security included therein, copies of which are attached as Exhibits
4.9 and 4.10, respectively, to this Current Report on Form 8-K and are
incorporated herein by reference.
Registration Right Agreement
In connection with the issuance of the Preferred Securities on
November 22, 2005, the Trust and the Company entered into a registration rights
agreement (the "Registration Rights Agreement") with Citigroup Global Markets
Inc., Goldman, Sachs & Co. and UBS Securities LLC, as representatives of the
initial purchasers of the Preferred Securities for the benefit of the holders
of the Preferred Securities.
In the Registration Rights Agreement, the Trust and the Company have
agreed, at their cost, to (i) by the 210th day following the closing of the
offering on November 22, 2005, file a registration statement with the
Securities and Exchange Commission (the "SEC") with respect to a registered
offering to exchange the Preferred Securities for exchange preferred securities
(the "Exchange Preferred Securities"), which will have terms substantially
identical in all material respects to the Preferred Securities (except that the
Exchange Preferred Securities will not contain terms with respect to transfer
restrictions and interest rate increases) and (ii) by the 300th day after the
closing of the offering of the Preferred Securities, use their best efforts to
cause the exchange offer registration statement to be declared effective under
the Securities Act of 1933, as amended (the "Securities Act"). The Trust and
the Company have agreed to keep the exchange offer open for not less than 20
days (or longer if required by applicable law) after the date notice of the
exchange offer is mailed to the holders of the Preferred Securities.
In addition, the Trust and the Company have agreed, in certain
limited circumstances, to file a shelf registration statement covering
resales of the Preferred Securities and to use their best efforts to cause
the shelf registration statement to be declared effective under the
Securities Act and to keep effective the shelf registration statement until
the earlier of (x) the second anniversary of the closing of the offering of
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the Preferred Securities or (y) the date on which no securities requiring
registration are outstanding.
The Trust and the Company have also agreed that, if (i) they fail to
file a registration statement required by the Registration Rights Agreement by
the date specified for such filing; (ii) any such registration statement has
not been declared effective by the SEC on or prior to the date specified for
such effectiveness; or (iii) the applicable registration statement is declared
effective but thereafter ceases to be effective during the periods such
registration statement is required to be effective as specified in the
Registration Rights Agreement, then the sole remedy to the holders will be that
the Company will be required to pay "registration default damages" in respect
of the Junior Subordinated Debt Securities at an annual amount representing
0.25% of the liquidation amount of the then-outstanding registrable Preferred
Securities, and the Trust will be required to pay corresponding damages on the
registrable Preferred Securities. Following the cure of the registration
defaults, the accrual of the damages on the Junior Subordinated Debt Securities
and the registerable Preferred Securities will cease.
The foregoing description of the Registration Rights Agreement does
not purport to be complete and is qualified in its entirety by reference to the
full text of the Registration Rights Agreement, a copy of which is attached as
Exhibit 4.11 to this Current Report on Form 8-K and is incorporated herein by
reference.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an
Off-Balance Sheet Arrangement of a Registrant.
The description of the terms of the Indenture, the First Supplemental
Indenture, the Junior Subordinated Debt Securities, the Guarantee Agreement,
the Amended and Restated Declaration of Trust, the Preferred Securities and the
Registration Rights Agreement under Item 1.01 above and the Indenture, Form of
Junior Subordinated Debt Securities, the Guarantee Agreement, the Trust
Agreement, Form of Preferred Securities and the Registration Rights Agreement
attached as Exhibits 4.5, 4.6, 4.7, 4.8, 4.9, 4.10 and 4.11, respectively, to
this Current Report on Form 8-K are each incorporated by reference herein.
Item 8.01. Other Events.
On November 22, 2005, The Stanley Works issued a press release
announcing that it had completed the sale of $450 million of Enhanced Trust
Preferred Securities.
A copy of the press release is attached hereto as Exhibit 99.1 and is
incorporated by reference herein.
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Item 9.01. Financial Statements and Exhibits.
(c) Exhibits
Exhibit No. Description
----------- -----------
Exhibit 4.5 Indenture, dated November 22, 2005,
between The Stanley Works (the "Company")
and HSBC Bank USA, National Association, as
indenture trustee
Exhibit 4.6 First Supplemental Indenture, dated
November 22, 2005, between the Company and
HSBC Bank USA, National Association, as
indenture trustee
Exhibit 4.7 Form of 5.902% Fixed Rate/Floating Rate
Junior Subordinated Debt Securities due
December 1, 2045, included in Exhibit 4.6
hereto
Exhibit 4.8 Guarantee Agreement, dated November 22, 2005,
between the Company and HSBC Bank USA,
National Association, as guarantee trustee
Exhibit 4.9 Amended and Restated Declaration of Trust,
dated November 22, 2005, among the Company,
The Stanley Works Capital Trust I (the
"Trust), HSBC Bank USA, as property trustee
and as Delaware trustee and the
administrative trustees party thereto
Exhibit 4.10 Form of 5.902% Fixed Rate/Floating Rate
Enhanced Trust Preferred Securities
(liquidation amount $1,000 per preferred
security), included in Exhibit 4.9 hereto
Exhibit 4.11 Registration Rights Agreement, dated
November 22, 2005, between the Company, the
Trust and Citigroup Global Markets Inc.,
Goldman, Sachs & Co. and UBS Securities LLC,
as representatives of the initial purchasers
Exhibit 99.1 Press Release, dated November 22, 2005
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: November 29, 2005
The Stanley Works
By: /s/ BRUCE H. BEATT
-------------------
Bruce H. Beatt
Vice President, General Counsel and
Secretary
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EXHIBIT INDEX
Exhibit No. Description
----------- -----------
Exhibit 4.5 Indenture, dated November 22, 2005,
between The Stanley Works (the "Company")
and HSBC Bank USA, National Association, as
indenture trustee
Exhibit 4.6 First Supplemental Indenture, dated
November 22, 2005, between the Company and
HSBC Bank USA, National Association, as
indenture trustee
Exhibit 4.7 Form of 5.902% Fixed Rate/Floating Rate
Junior Subordinated Debt Securities due
December 1, 2045, included in Exhibit 4.6
hereto
Exhibit 4.8 Guarantee Agreement, dated November 22, 2005,
between the Company and HSBC Bank USA,
National Association, as guarantee trustee
Exhibit 4.9 Amended and Restated Declaration of Trust,
dated November 22, 2005, among the Company,
The Stanley Works Capital Trust I (the
"Trust), HSBC Bank USA, as property trustee
and as Delaware trustee and the
administrative trustees party thereto
Exhibit 4.10 Form of 5.902% Fixed Rate/Floating Rate
Enhanced Trust Preferred Securities
(liquidation amount $1,000 per preferred
security), included in Exhibit 4.9 hereto
Exhibit 4.11 Registration Rights Agreement, dated
November 22, 2005, between the Company, the
Trust and Citigroup Global Markets Inc.,
Goldman, Sachs & Co. and UBS Securities LLC,
as representatives of the initial purchasers
Exhibit 99.1 Press Release, dated November 22, 2005
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Exhibit 4.5
THE STANLEY WORKS,
Issuer
AND
HSBC BANK USA, NATIONAL ASSOCIATION,
Trustee
INDENTURE
Dated as of November 22, 2005
Junior Subordinated Debt Securities
CROSS-REFERENCE TABLE*
Section of Trust Indenture Section of
Act of 1939, as amended Indenture
----------------------- ---------
310(a) 7.09
310(b) 7.08
7.10
310(c) Inapplicable
311(a) 7.13(a)
311(b) 7.13(b)
311(c) Inapplicable
312(a) 5.01
5.02(a)
312(b) 5.02(b)
312(c) 5.02(c)
313(a) 5.04(a)
313(b) 5.04(b)
313(c) 5.04(a)
5.04(b)
313(d) 5.04(c)
314(a) 5.03
314(b) Inapplicable
314(c) 13.06
314(d) Inapplicable
314(e) 13.06
314(f) Inapplicable
315(a) 7.01(a)
7.02
315(b) 6.07
315(c) 7.01
315(d) 7.01(b)
7.01(c)
315(e) 6.07
316(a) 6.06
8.04
316(b) 6.04
316(c) 8.01
317(a) 6.02
317(b) 4.03
318(a) 13.08
------------------
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* This Cross-Reference Table does not constitute part of the Indenture and
shall not have any bearing on the interpretation of any of its terms or
provisions.
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions of Terms.............................................................1
ARTICLE II
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION
AND EXCHANGE OF DEBT SECURITIES
SECTION 2.01. Designation and Terms of Debt Securities.........................................8
SECTION 2.02. Form of Debt Securities and Trustee's Certificate................................9
SECTION 2.03. Denominations; Provisions for Payment...........................................10
SECTION 2.04. Execution and Authentication....................................................12
SECTION 2.05. Registration of Transfer and Exchange...........................................12
SECTION 2.06. Temporary Securities............................................................13
SECTION 2.07. Mutilated, Destroyed, Lost or Stolen Debt Securities............................14
SECTION 2.08. Cancellation....................................................................15
SECTION 2.09. Benefits of Indenture...........................................................15
SECTION 2.10. Authenticating Agent............................................................15
SECTION 2.11. Global Securities...............................................................16
ARTICLE III
REDEMPTION OF DEBT SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.01. Redemption......................................................................18
SECTION 3.02. Notice of Redemption............................................................18
SECTION 3.03. Payment Upon Redemption.........................................................19
SECTION 3.04. Sinking Fund....................................................................19
SECTION 3.05. Satisfaction of Sinking Fund Payments with Debt Securities......................20
SECTION 3.06. Redemption of Debt Securities for Sinking Fund..................................20
ARTICLE IV
COVENANTS OF THE COMPANY
SECTION 4.01. Payment of Principal, Premium and Interest......................................21
SECTION 4.02. Maintenance of Office or Agency.................................................21
SECTION 4.03. Paying Agents...................................................................21
SECTION 4.04. Appointment to Fill Vacancy in Office of Trustee................................22
SECTION 4.05. Limitation on Dividends; Transactions with Affiliates...........................22
SECTION 4.06. Covenants as to Capital Trust...................................................23
SECTION 4.07. Corporate Existence.............................................................24
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ARTICLE V
SECURITYHOLDERS, LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
SECTION 5.01. Company to Furnish Trustee Names and Addresses of Securityholders...............25
SECTION 5.02. Preservation of Information; Communications with Securityholders................25
SECTION 5.03. Reports by the Company..........................................................25
SECTION 5.04. Reports by the Trustee..........................................................26
ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01. Events of Default...............................................................27
SECTION 6.02. Collection of Indebtedness and Suits for Enforcement by Trustee.................29
SECTION 6.03. Application of Moneys Collected.................................................31
SECTION 6.04. Limitation on Suits.............................................................31
SECTION 6.05. Rights and Remedies Cumulative; Delay or Omission not Waiver....................32
SECTION 6.06. Control by Securityholders......................................................32
SECTION 6.07. Undertaking to Pay Costs........................................................33
SECTION 6.08. Notice of Defaults..............................................................34
ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.01. Certain Duties and Responsibilities of Trustee..................................35
SECTION 7.02. Certain Rights of Trustee.......................................................36
SECTION 7.03. Trustee Not Responsible for Recitals or Issuance of Debt Securities.............38
SECTION 7.04. May Hold Debt Securities........................................................38
SECTION 7.05. Moneys Held in Trust............................................................38
SECTION 7.06. Compensation and Reimbursement..................................................38
SECTION 7.07. Reliance on Officers' Certificate...............................................39
SECTION 7.08. Qualification; Conflicting Interests............................................39
SECTION 7.09. Corporate Trustee Required; Eligibility.........................................39
SECTION 7.10. Resignation and Removal; Appointment of Successor...............................40
SECTION 7.11. Acceptance of Appointment by Successor..........................................41
SECTION 7.12. Merger, Conversion, Consolidation or Succession to Business.....................42
SECTION 7.13. Preferential Collection of Claims Against the Company...........................43
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ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
SECTION 8.01. Evidence of Action by Securityholders...........................................44
SECTION 8.02. Proof of Execution by Securityholders...........................................44
SECTION 8.03. Who May be Deemed Owners........................................................45
SECTION 8.04. Certain Debt Securities Owned by Company Disregarded............................45
SECTION 8.05. Actions Binding on Future Securityholders.......................................45
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without the Consent of Securityholders..................47
SECTION 9.02. Supplemental Indentures with Consent of Securityholders.........................48
SECTION 9.03. Effect of Supplemental Indentures...............................................48
SECTION 9.04. Debt Securities Affected by Supplemental Indentures.............................48
SECTION 9.05. Execution of Supplemental Indentures............................................49
ARTICLE X
SUCCESSOR CORPORATION
SECTION 10.01. Company may Consolidate, Reincorporate, Etc. on Certain Conditions..............50
SECTION 10.02. Successor Corporation Substituted...............................................50
SECTION 10.03. Obligations in the Event of Non-U.S. Merger.....................................51
ARTICLE XI
SATISFACTION, DEFEASANCE AND DISCHARGE
SECTION 11.01. Satisfaction and Discharge......................................................53
SECTION 11.02. Defeasance and Discharge........................................................53
SECTION 11.03. Covenant Defeasance.............................................................54
SECTION 11.04. Deposited Moneys to be Held in Trust............................................55
SECTION 11.05. Payment of Moneys Held by Paying Agents.........................................55
SECTION 11.06. Repayment to Company............................................................55
SECTION 11.07. Reinstatement...................................................................55
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. No Recourse.....................................................................57
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ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. Effect on Successors and Assigns................................................58
SECTION 13.02. Actions by Successor............................................................58
SECTION 13.03. Surrender of Company Powers.....................................................58
SECTION 13.04. Notices.........................................................................58
SECTION 13.05. Governing Law...................................................................58
SECTION 13.06. Treatment of the Debt Securities as Debt........................................58
SECTION 13.07. Compliance Certificates and Opinions............................................58
SECTION 13.08. Payments on Business Days.......................................................59
SECTION 13.09. Conflict with Trust Indenture Act...............................................59
SECTION 13.10. Counterparts....................................................................59
SECTION 13.11. Separability....................................................................59
SECTION 13.12. Assignment......................................................................59
SECTION 13.13. Acknowledgment of Rights........................................................60
ARTICLE XIV
SUBORDINATION OF DEBT SECURITIES
SECTION 14.01. Subordination Terms.............................................................61
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THIS INDENTURE, dated as of November 22, 2005, between THE STANLEY
WORKS, a Connecticut corporation (the "Company") and HSBC BANK USA, NATIONAL
ASSOCIATION, a national banking association, not in its individual capacity but
solely as trustee (the "Trustee"):
W I T N E S S E T H:
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the execution and delivery of this Indenture to provide for the
issuance of unsecured subordinated debt securities (hereinafter referred to as
the "Debt Securities"), in an unlimited aggregate principal amount to be issued
from time to time in one or more series as in this Indenture provided, as
registered Debt Securities without coupons, to be authenticated by the
certificate of the Trustee;
WHEREAS, to provide the terms and conditions upon which the Debt
Securities are to be authenticated, issued and delivered, the Company has duly
authorized the execution of this Indenture; and WHEREAS, all things necessary
to make this Indenture a valid agreement of the Company, in accordance with its
terms, have been done;
NOW, THEREFORE, in consideration of the premises and the purchase of
the Debt Securities by the holders thereof, it is mutually covenanted and
agreed as follows for the equal and ratable benefit of the holders of Debt
Securities:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions of Terms. The terms defined in this Section
(except as in this Indenture otherwise expressly provided or unless the context
otherwise requires) for all purposes of this Indenture and of any indenture
supplemental hereto shall have the respective meanings specified in this
Section and shall include the plural as well as the singular. All other terms
used in this Indenture that are defined in the Trust Indenture Act of 1939, as
amended, or that are by reference in such Act defined in the Securities Act of
1933, as amended (except as herein otherwise expressly provided or unless the
context otherwise requires), shall have the meanings assigned to such terms in
said Trust Indenture Act and in said Securities Act as in force at the date of
the execution of this instrument.
"Acceleration Event of Default" means, with respect to Debt Securities
of a particular series, any event specified in clauses (1) through (6) of
Section 6.01, continued for the period of time, if any, therein designated.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of
1
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Authenticating Agent" means an authenticating agent with respect to
all or any of the series of Debt Securities appointed with respect to all or
such series of the Debt Securities by the Trustee pursuant to Section 2.10.
"Bankruptcy Law" means Title 11, United States Code, or any similar
federal or state law for the relief of debtors.
"Board of Directors" means the board of directors of the Company, or
any duly authorized committee of such board or any officer of the Company duly
authorized by the board of directors of the Company or a duly authorized
committee of that board to adopt resolutions pursuant to a resolution of the
board of directors of the Company.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification; provided that any Board Resolution that is adopted by an officer
of the Company shall be accompanied by a copy of a resolution of either the
board of directors of the Company or a duly authorized committee of that board,
certified as aforesaid, authorizing such officer to take such action.
"Business Day" means a day other than (i) a Saturday or Sunday; and
(ii) a day on which banks in Wilmington, Delaware or New York, New York are
authorized or obligated by law or executive order to remain closed.
"Capital Trust" means a Delaware business trust formed by the Company
for the purpose of purchasing Debt Securities of the Company.
"Certificate" means a certificate signed by the principal executive
officer, the principal financial officer, the treasurer or the principal
accounting officer of the Company. The Certificate need not comply with the
provisions of Section 13.07.
"Commission" means the United States Securities and Exchange
Commission.
"Common Securities" means undivided beneficial interests in the assets
of a Capital Trust, other than Preferred Securities, and which rank pari passu
with Preferred Securities issued by such trust; provided, however, that upon
the occurrence of an Acceleration Event of Default, the rights of holders of
Common Securities to payment in respect of distributions and payments upon
liquidation, redemption and maturity are subordinated to the rights of holders
of Preferred Securities.
2
"Company" means The Stanley Works, a corporation duly organized and
existing under the laws of the State of Connecticut, and, subject to the
provisions of Article X, shall also include its successors and assigns.
"Corporate Trust Office" means the office of the Trustee at which, at
any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at 452 Fifth Avenue,
New York, New York 10018, Attention: Corporate Trust and Loan Agency.
"Covenant Event of Default" means, with respect to Debt Securities of
a particular series, any event specified in clause (7) of Section 6.01,
continued for the period of time therein designated.
"Custodian" means any receiver, trustee, assignee, liquidator, or
similar official under any Bankruptcy Law.
"Declaration" means, in respect of a Capital Trust, the amended and
restated declaration of trust of such Capital Trust or any other governing
instrument of such Trust.
"Debt Securities" means the Debt Securities authenticated and
delivered under this Indenture.
"Default" means any event, act or condition that with notice or lapse
of time, or both, would constitute an Event of Default.
"Defaulted Interest" has the meaning specified in Section 2.03.
"Depositary" means, with respect to Debt Securities of any series for
which the Company shall determine that such Debt Securities will be issued as a
Global Security, The Depository Trust Company, New York, New York, another
clearing agency, or any successor registered as a clearing agency under the
Exchange Act or other applicable statute or regulation, which, in each case,
shall be designated by the Company pursuant to either Section 2.01 or 2.11.
"Event of Default" means an Acceleration Event of Default or a
Covenant Event of Default.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Global Security" means, with respect to any series of Debt
Securities, a Debt Security executed by the Company and delivered by the
Trustee to the Depositary or pursuant to the Depositary's instruction, all in
accordance with the Indenture, which shall be registered in the name of the
Depositary or its nominee.
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"Governmental Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged 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 as a full faith
and credit obligation by the United States of America that, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian with respect to any such
Governmental Obligation or a specific payment of principal of or interest on
any such Governmental Obligation held by such custodian for the account of the
holder of such depositary receipt; provided, however, that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depositary receipt from any amount received by
the custodian in respect of the Governmental Obligation or the specific payment
of principal of or interest on the Governmental Obligation evidenced by such
depositary receipt.
"Gross-Up Payment" has the meaning provided in Section 10.03.
"herein", "hereof" and "hereunder", and other words of similar import,
refer to this Indenture as a whole and not to any particular Article, Section
or other subdivision.
"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 in accordance with the terms hereof.
"Interest Payment Date", when used with respect to any installment of
interest on a Debt Security of a particular series, means the date specified in
such Debt Security or in a Board Resolution or in an indenture supplemental
hereto with respect to such series as the fixed date on which an installment of
interest with respect to Debt Securities of that series is due and payable.
"Junior Securities" means with respect to a series of Debt Securities
(i) any class or series of capital stock of the Company or warrants, options or
rights (including convertible securities) to acquire capital stock of the
Company or (ii) evidence of indebtedness or other obligations of the Company
that rank junior to such series of Debt Securities.
"Non-U.S. Merger" means any transaction or series of transactions
pursuant to which the Company, directly or indirectly, consolidates with,
merges into, sells, leases or conveys all or substantially all of its
properties or assets to, or reincorporates or reorganizes into, another
corporation that is not incorporated or otherwise organized under the laws of
the United States, any state thereof or the District of Columbia.
4
"Officers' Certificate" means a certificate signed by the President or
a Vice President and by the Treasurer or an Assistant Treasurer or the
Controller or an Assistant Controller or the Secretary or an Assistant
Secretary of the Company that is delivered to the Trustee in accordance with
the terms hereof. Each such certificate shall include the statements provided
for in Section 13.07, if and to the extent required by the provisions thereof.
"Opinion of Counsel" means an opinion in writing of legal counsel, who
may be an employee of or counsel for the Company, that is delivered to the
Trustee in accordance with the terms hereof. Each such opinion shall include
the statements provided for in Section 13.07, if and to the extent required by
the provisions thereof.
"Outstanding", when used with reference to Debt Securities of any
series, means, subject to the provisions of Section 8.04, as of any particular
time, all Debt Securities of that series theretofore authenticated and
delivered by the Trustee under this Indenture, except (a) Debt Securities
theretofore canceled by the Trustee or any paying agent, or delivered to the
Trustee or any paying agent for cancellation or that have previously been
canceled; (b) Debt Securities or portions thereof for the payment or redemption
of which moneys or Governmental Obligations in the necessary amount shall have
been deposited in trust with the Trustee or with any paying agent (other than
the Company) or shall have been set aside and segregated in trust by the
Company (if the Company shall act as its own paying agent); provided, however,
that if such Debt Securities or portions of such Debt Securities are to be
redeemed prior to the maturity thereof, notice of such redemption shall have
been given as in Article III provided, or provision satisfactory to the Trustee
shall have been made for giving such notice, (c) Debt Securities in lieu of or
in substitution for which other Debt Securities shall have been authenticated
and delivered pursuant to the terms of Section 2.07; and (d) Debt Securities,
except to the extent provided in Sections 11.02 and 11.03, with respect to
which the Company has effected defeasance and/or covenant defeasance as
provided in Article XI.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, joint-stock company, unincorporated
organization or government or any agency or political subdivision thereof.
"Predecessor Security" of any particular Debt Security means every
previous Debt Security evidencing all or a portion of the same debt and
guarantee as that evidenced by such particular Debt Security; and, for the
purposes of this definition, any Debt Security authenticated and delivered
under Section 2.07 in lieu of a lost, destroyed or stolen Debt Security shall
be deemed to evidence the same debt as the lost, destroyed or stolen Debt
Security.
"Preferred Securities" means undivided beneficial interests in the
assets of Capital Trust, other than Common Securities, and which rank pari
passu with Common Securities issued by such trust; provided, however,
that upon the occurrence of an
5
Acceleration Event of Default, the rights of holders of Common Securities to
payment in respect of distributions and payments upon liquidation, redemption
and otherwise are subordinated to the rights of holders of Preferred
Securities.
"Preferred Securities Guarantee" means any guarantee that the Company
may enter into with a Capital Trust or other Persons that operate directly or
indirectly for the benefit of holders of Preferred Securities of such trust.
"Property Trustee" means the entity performing the functions of the
Property Trustee of a Capital Trust under the applicable Declaration of such
Capital Trust.
"Responsible Officer," when used with respect to the Trustee, means
any officer of the Trustee having direct responsibility for the administration
of this Indenture, or any such officer to whom any corporate trust matter is
referred because of his or her knowledge of and familiarity with the particular
subject.
"Securityholder", "Holder", "holder of Debt Securities", "registered
holder", or other similar term, means the Person or Persons in whose name or
names a particular Debt Security shall be registered on the books of the
Company kept for that purpose in accordance with the terms of this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings set forth in Section 2.05.
"Subsidiary" means, with respect to any Person, (i) any corporation at
least a majority of whose outstanding Voting Stock shall at the time be owned,
directly or indirectly, by such Person or by one or more of its Subsidiaries or
by such Person and one or more of its Subsidiaries, (ii) any general
partnership, joint venture or similar entity, at least a majority of whose
outstanding partnership or similar interests shall at the time be owned by such
Person, or by one or more of its Subsidiaries, or by such Person and one or
more of its Subsidiaries and (iii) any limited partnership of which such Person
or any of its Subsidiaries is a general partner.
"Trustee" means HSBC Bank USA, National Association, not in its
individual capacity, and, subject to the provisions of Article VII, shall also
include its successors and assigns, and, if at any time there is more than one
Person acting in such capacity hereunder, "Trustee" shall mean each such
Person. The term "Trustee," as used with respect to a particular series of Debt
Securities, shall mean the trustee with respect to that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
6
"Trust Securities" means Common Securities and Preferred Securities.
"Voting Stock", as applied to stock of any Person, means shares,
interests, participations or other equivalents in the equity interest (however
designated) in such Person having ordinary voting power for the election of a
majority of the directors (or the equivalent) of such Person, other than
shares, interests, participations or other equivalents having such power only
by reason of the occurrence of a contingency.
7
ARTICLE II
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF DEBT SECURITIES
SECTION 2.01. Designation and Terms of Debt Securities. The aggregate
principal amount of Debt Securities that may be authenticated and delivered
under this Indenture is unlimited. The Debt Securities may be issued in one or
more series up to the aggregate principal amount of Debt Securities of that
series from time to time authorized by or pursuant to a Board Resolution of the
Company or, pursuant to one or more indentures supplemental hereto. Prior to
the initial issuance of Debt Securities of any series, there shall be
established in or pursuant to a Board Resolution of the Company, and set forth
in an Officers' Certificate of the Company, or established in one or more
indentures supplemental hereto:
(1) the title of the series of Debt Security (which shall distinguish
the Debt Securities of that series from all other series of Debt
Securities);
(2) any limit upon the aggregate principal amount of the Debt
Securities of that series that may be authenticated and delivered under
this Indenture (except for Debt Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, other
Debt Securities of that series);
(3) the date or dates on which the principal of the Debt Securities of
that series is payable;
(4) the rate or rates at which the Debt Securities of that series
shall bear interest or the manner of calculation of such rate or rates, if
any;
(5) the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest will be payable or the
manner of determination of such Interest Payment Dates and the record date
for the determination of holders to whom interest is payable on any such
Interest Payment Dates;
(6) the right, if any, to extend the interest payment periods and the
duration of such extension;
(7) the period or periods within which, the price or prices at which,
and the terms and conditions upon which, Debt Securities of that series
may be redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or purchase Debt
Securities of that series pursuant to any sinking fund or analogous
provisions (including payments made in cash in participation of future
sinking fund obligations) or at the option of a holder thereof and the
period or periods within
8
which, the price or prices at which, and the terms and conditions
upon which, Debt Securities of that series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(9) the subordination terms of the Debt Securities of that series;
(10) the form of the Debt Securities of that series, including the
form of the Certificate of Authentication for such series;
(11) if other than denominations of one thousand U.S. dollars ($1,000)
or any integral multiple thereof, the denominations in which the Debt
Securities of that series shall be issuable;
(12) whether and under what circumstances the Company will pay
additional amounts on the Debt Securities of the series to any holder or
any type of holder of a Debt Security or Trust Security in respect of any
tax, assessment or governmental charge and, if so, whether the Company
will have the option to redeem such Debt Securities rather than pay such
additional amounts (and the terms of any such option);
(13) any and all other terms with respect to such series (which terms
shall not be inconsistent with the terms of this Indenture), including any
terms which may be required by or advisable under United States laws or
regulations or advisable in connection with the marketing of Debt
Securities of that series;
(14) whether the Debt Securities are issuable as a Global Security
and, in such case, the identity of the Depositary for such series; and
(15) if applicable, (i) that the Debt Securities of the series, in
whole or any specified part, shall be defeasible pursuant to Section 11.02
or Section 11.03 or both such Sections, (ii) the obligations from which
the Company shall be released in the event of any such defeasance, and
(iii) if other than by a Board Resolution, the manner in which any
election by the Company to defease such Debt Securities shall be
evidenced.
All Debt Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or
pursuant to any such Board Resolution or in any indentures supplemental hereto.
If any of the terms of a series are established by action taken
pursuant to a Board Resolution of the Company, a copy of an appropriate record
of such action shall be certified by the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate of the Company setting forth the terms of such series.
SECTION 2.02. Form of Debt Securities and Trustee's Certificate. The
Debt Securities of any series and the Trustee's certificate of authentication
to be borne by
9
such Debt Securities shall be substantially of the tenor and purport as set
forth in one or more indentures supplemental hereto or as provided in a Board
Resolution of the Company and as set forth in an Officers' Certificate of the
Company, and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed or engraved
thereon as the Company may deem appropriate and as are not inconsistent with
the provisions of this Indenture, or as may be required to comply with any law
or with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which Debt Securities of that series may be
listed, or to conform to usage.
SECTION 2.03. Denominations; Provisions for Payment. The Debt
Securities shall be issuable as registered Debt Securities and in the
denominations of one thousand U.S. dollars ($1,000) or any integral multiple
thereof, subject to Section 2.01(11). The Debt Securities of a particular
series shall bear interest payable on the dates and at the rate specified with
respect to that series. The principal of and the interest on the Debt
Securities of any series, as well as any premium thereon in case of redemption
thereof prior to maturity, shall be payable in the coin or currency of the
United States of America that at the time is legal tender for public and
private debt, at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, the City and State of New York. Each Debt
Security shall be dated the date of its authentication. Subject to Section
2.01(4), interest on the Debt Securities shall be computed on the basis of a
360-day year composed of twelve 30-day months.
The interest installment on any Debt Security that is payable, and is
punctually paid or duly provided for, on any Interest Payment Date for Debt
Securities of that series shall be paid to the Person in whose name said Debt
Security (or one or more Predecessor Debt Securities) is registered at the
close of business on the regular record date for such interest installment. In
the event that any Debt Security of a particular series or portion thereof is
called for redemption and the redemption date is subsequent to a regular record
date with respect to any Interest Payment Date and prior to such Interest
Payment Date, interest on such Debt Security will be paid upon presentation and
surrender of such Debt Security as provided in Section 3.03.
Any interest on any Debt Security that is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date for Debt
Securities of that series (herein called "Defaulted Interest") shall forthwith
cease to be payable to the registered holder on the relevant regular record
date by virtue of having been such holder; and such Defaulted Interest shall be
paid by the Company, at its election, as provided in clause (1) or clause (2)
below:
(1) The Company may make payment of any Defaulted Interest on Debt
Securities to the Persons in whose names such Debt Securities (or their
respective Predecessor Debt 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
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the amount of Defaulted Interest proposed to be paid on each such Debt
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
not be more than 15 nor 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 Securityholder at his or her address
as it appears in the Security Register (as hereinafter defined), not less
than 10 days prior to such special record date. Notice of the proposed
payment of such Defaulted Interest and the special record date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid to
the Persons in whose names such Debt Securities (or their respective
Predecessor Debt Securities) are registered on such special record date
and shall be no longer payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on any Debt
Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Debt Securities may
be listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustees of the proposed payment
pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
Unless otherwise set forth in a Board Resolution of the Company or one
or more indentures supplemental hereto establishing the terms of any series of
Debt Securities pursuant to Section 2.01 hereof, the term "regular record date"
as used in this Section with respect to a series of Debt Securities with
respect to any Interest Payment Date for such series shall mean either the
fifteenth day of the month immediately preceding the month in which an Interest
Payment Date established for such series pursuant to Section 2.01 hereof shall
occur, if such Interest Payment Date is the first day of a month, or the last
day of the month immediately preceding the month in which an Interest Payment
Date established for such series pursuant to Section 2.01 hereof shall occur,
if such Interest Payment Date is the fifteenth day of a month, whether or not
such date is a Business Day.
Subject to the foregoing provisions of this Section, each Debt
Security of a series delivered under this Indenture upon transfer of or in
exchange for or in lieu of any other Debt Security of such series shall carry
the rights to interest accrued and unpaid, and to accrue, that were carried by
such other Debt Security.
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SECTION 2.04. Execution and Authentication. The Debt Securities shall
be signed on behalf of the Company by its President or one of its Vice
Presidents, under its corporate seal attested by its Secretary or one of its
Assistant Secretaries. Signatures may be in the form of a manual or facsimile
signature. The Company may use the facsimile signature of any Person who shall
have been a President or Vice President thereof, or of any Person who shall
have been a Secretary or Assistant Secretary thereof, notwithstanding the fact
that at the time the Debt Securities shall be authenticated and delivered or
disposed of such Person shall have ceased to be the President or a Vice
President, or the Secretary or an Assistant Secretary, of the Company. The seal
of the Company may be in the form of a facsimile of such seal and may be
impressed, affixed, imprinted or otherwise reproduced on the Debt Securities.
The Debt Securities may contain such notations, legends or endorsements
required by law, stock exchange rule or usage. Each Debt Security shall be
dated the date of its authentication by the Trustee.
A Debt Security shall not be valid until authenticated manually by an
authorized signatory of the Trustee, or by an Authenticating Agent. Such
signature shall be conclusive evidence that the Debt Security so authenticated
has been duly authenticated and delivered hereunder and that the holder is
entitled to the benefits of this Indenture.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Debt Securities of any series executed
by the Company to the Trustee for authentication, together with a written order
of the Company for the authentication and delivery of such Debt Securities,
signed by its President or any Vice President and its Treasurer or any
Assistant Treasurer, and the Trustee in accordance with such written order
shall authenticate and deliver such Debt Securities.
In authenticating such Debt Securities and accepting the additional
responsibilities under this Indenture in relation to such Debt Securities, the
Trustee shall be entitled to receive, and (subject to Section 7.01) shall be
fully protected in relying upon, an Opinion of Counsel stating that the form
and terms thereof have been established in conformity with the provisions of
this Indenture.
The Trustee shall not be required to authenticate such Debt Securities
if the issue of such Debt Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Debt Securities and this
Indenture or otherwise in a manner that is not reasonable acceptable to the
Trustee.
SECTION 2.05. Registration of Transfer and Exchange. (a) Debt
Securities of any series may be exchanged upon presentation thereof at the
office or agency of the Company designated for such purpose in the Borough of
Manhattan, the City and State of New York, for other Debt Securities of such
series of authorized denominations, and for a like aggregate principal amount,
upon payment of a sum sufficient to cover any tax or other governmental charge
in relation thereto, all as provided in this Section. In respect of any Debt
Securities so surrendered for exchange,
12
the Company shall execute, the Trustee shall authenticate and such office or
agency shall deliver in exchange therefor the Debt Security or Debt Securities
of the same series that the Securityholder making the exchange shall be
entitled to receive, bearing numbers not contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at its office or
agency designated for such purpose in the Borough of Manhattan, the City and
State of New York, or such other location designated by the Company a register
or registers (herein referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall register
the Debt Securities and the transfers of Debt Securities as in this Article
provided and which at all reasonable times shall be open for inspection by the
Trustee. The registrar for the purpose of registering Debt Securities and
transfer of Debt Securities as herein provided shall be appointed as authorized
by Board Resolution (the "Security Registrar").
Upon surrender for registration of transfer of any Debt Security at
the office or agency of the Company designated for such purpose in the Borough
of Manhattan, the City and State of New York, the Company shall execute, the
Trustee shall authenticate and such office or agency shall deliver in the name
of the transferee or transferees a new Debt Security or Debt Securities of the
same series as the Debt Security presented for a like aggregate principal
amount.
All Debt Securities presented or surrendered for exchange or
registration of transfer, as provided in this Section, shall be accompanied (if
so required by the Company or the Security Registrar) by a written instrument
or instruments of transfer, in form satisfactory to the Company or the Security
Registrar, duly executed by the registered holder or by such holder's duly
authorized attorney in writing.
(c) No service charge shall be made for any exchange or registration
of transfer of Debt Securities, or issue of new Debt Securities in case of
partial redemption of any series, but the Company or the Trustee may require
payment of a sum sufficient to cover any tax or other governmental charge in
relation thereto, other than exchanges pursuant to Section 2.06, Section
3.03(b) and Section 9.04 not involving any transfer.
(d) The Company shall not be required (i) to issue, exchange or
register the transfer of any Debt Securities during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of less than all the Outstanding Debt Securities of the same series
and ending at the close of business on the day of such mailing, nor (ii) to
register the transfer of or exchange any Debt Securities of any series or
portions thereof called for redemption. The provisions of this Section 2.05
are, with respect to any Global Security, subject to Section 2.11 hereof.
SECTION 2.06. Temporary Securities. Pending the preparation of
definitive Debt Securities of any series, the Company may execute, and the
Trustee shall authenticate and deliver, temporary Debt Securities (printed,
lithographed or typewritten)
13
of any authorized denomination. Such temporary Debt Securities shall be
substantially in the form of the definitive Debt Securities in lieu of which
they are issued, but with such omissions, insertions and variations as may be
appropriate for temporary Debt Securities, all as may be determined by the
Company. Every temporary Debt Security of any series shall be executed by the
Company and be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive Debt
Securities of such series. Without unnecessary delay the Company will execute
and will furnish definitive Debt Securities of such series and thereupon any or
all temporary Debt Securities of such series may be surrendered in exchange
therefor (without charge to the holders), at the office or agency of the
Company designated for the purpose in the Borough of Manhattan, the City and
State of New York, and the Trustee shall authenticate and such office or agency
shall deliver in exchange for such temporary Debt Securities an equal aggregate
principal amount of definitive Debt Securities of such series, unless the
Company advises the Trustee to the effect that definitive Debt Securities need
not be executed and furnished until further notice from the Company. Until so
exchanged, the temporary Debt Securities of such series shall be entitled to
the same benefits under this Indenture as definitive Debt Securities of such
series authenticated and delivered hereunder.
SECTION 2.07. Mutilated, Destroyed, Lost or Stolen Debt Securities. In
case any temporary or definitive Debt Security shall become mutilated or be
destroyed, lost or stolen, the Company (subject to the next succeeding
sentence) shall execute, and upon the Company's request the Trustee (subject as
aforesaid) shall authenticate and deliver, a new Debt Security of the same
series, bearing a number not contemporaneously outstanding, in exchange and
substitution for the mutilated Debt Security, or in lieu of and in substitution
for the Debt Security so destroyed, lost or stolen. In every case the applicant
for a substituted Debt Security shall furnish to the Company and the Trustee
such security or indemnity as may be required by them to save each of them
harmless, and, in every case of destruction, loss or theft, the applicant shall
also furnish to the Company and the Trustee evidence to their satisfaction of
the destruction, loss or theft of the applicant's Debt Security and of the
ownership thereof. The Trustee may authenticate any such substituted Debt
Security and deliver the same upon the written request or authorization of any
officer of the Company. Upon the issuance of any substituted Debt Security, 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.
In case any Debt Security that has matured or is about to mature shall become
mutilated or be destroyed, lost or stolen, the Company may, instead of issuing
a substitute Debt Security, pay or authorize the payment of the same (without
surrender thereof except in the case of a mutilated Debt Security) if the
applicant for such payment shall furnish to the Company and the Trustee such
security or indemnity as they may require to save them harmless, and, in case
of destruction, loss or theft, evidence to the satisfaction of the Company and
the Trustee of the destruction, loss or theft of such Debt Security and of the
ownership thereof.
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Every replacement Debt Security issued pursuant to the provisions of
this Section shall constitute an additional contractual obligation of the
Company, whether or not the mutilated, destroyed, lost or stolen Debt Security
shall be found at any time, or be enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and proportionately with any and
all other Debt Securities of the same series duly issued hereunder. All Debt
Securities shall be held and owned upon the express condition that the
foregoing provisions are exclusive with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Debt Securities, and shall preclude (to
the extent lawful) any and all other rights or remedies, notwithstanding any
law or statute existing or hereafter enacted to the contrary with respect to
the replacement or payment of negotiable instruments or other securities
without their surrender.
SECTION 2.08. Cancellation. All Debt Securities surrendered for the
purpose of payment, redemption, exchange or registration of transfer shall, if
surrendered to the Company or any paying agent, be delivered to the Trustee for
cancellation, or, if surrendered to the Trustee, shall be cancelled by it, and
no Debt Securities shall be issued in lieu thereof except as expressly required
or permitted by any of the provisions of this Indenture. On written request of
the Company at the time of such surrender, the Trustee shall deliver to the
Company canceled Debt Securities held by the Trustee. In the absence of such
request the Trustee may dispose of canceled Debt Securities in accordance with
its standard procedures and the Trustee shall maintain a written record of such
disposal. If the Company shall otherwise acquire any of the Debt Securities,
however, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Debt Securities unless and until the same
are delivered to the Trustee for cancellation.
SECTION 2.09. Benefits of Indenture. Nothing in this Indenture or in
the Debt Securities, express or implied, shall give or be construed to give to
any Person, other than the parties hereto and the holders of the Debt
Securities (and, with respect to the provisions of Article XIV, the holders of
Senior Indebtedness) any legal or equitable right, remedy or claim under or in
respect of this Indenture, or under any covenant, condition or provision herein
contained; all such covenants, conditions and provisions being for the sole
benefit of the parties hereto and of the holders of the Debt Securities (and,
with respect to the provisions of Article XIV, the holders of Senior
Indebtedness).
SECTION 2.10. Authenticating Agent. So long as any of the Debt
Securities of any series remain Outstanding, there may be an Authenticating
Agent for any or all such series of Debt Securities which the Trustee shall
have the right to appoint. Said Authenticating Agent shall be authorized to
act on behalf of the Trustee to authenticate Debt Securities of such series
issued upon exchange, transfer or partial redemption thereof, and Debt
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. All references in this Indenture to
the authentication of Debt Securities by the Trustee shall be deemed to
include authentication by an Authenticating Agent for such series. Each
Authenticating Agent shall be acceptable to the Company
15
and shall be a corporation that has a combined capital and surplus, as most
recently reported or determined by it, sufficient under the laws of any
jurisdiction under which it is organized or in which it is doing business to
conduct a trust business, and that is otherwise authorized under such laws to
conduct such business and is subject to supervision or examination by federal
or state authorities. If at any time any Authenticating Agent shall cease to be
eligible in accordance with these provisions, it shall resign immediately.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at any
time (and upon request by the Company shall) terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Company. Upon resignation, termination or
cessation of eligibility of any Authenticating Agent, the Trustee may appoint
an eligible successor Authenticating Agent acceptable to the Company. Any
successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its predecessor
hereunder as if originally named as an Authenticating Agent pursuant hereto.
The Trustee shall have the right to decline to authenticate and
deliver any Debt Securities under this Section if the Trustee in good faith by
its board of directors or board of trustee, executive committee, or a trust
committee of directors or trustees or Responsible Officers shall determine that
such action would expose the Trustee to personal liability to existing holders
of Debt Securities.
SECTION 2.11. Global Securities. (a) If the Company shall establish
pursuant to Section 2.01 that the Debt Securities of a particular series are to
be issued as a Global Security or Securities, then the Company shall execute
and the Trustee shall, in accordance with Section 2.04, authenticate and
deliver, a Global Security that (i) shall represent, and shall be denominated
in an amount equal to the aggregate principal amount of, all of the Outstanding
Debt Securities of such series, (ii) shall be registered in the name of the
Depositary or its nominee, (iii) shall be delivered by the Trustee to the
Depositary or pursuant to the Depositary's instruction and (iv) shall bear a
legend substantially to the following effect: "Except as otherwise provided in
Section 2.11 of the Indenture, this Debt Security may be transferred, in whole
but not in part, only to another nominee of the Depositary or to a successor
Depositary or to a nominee of such successor Depositary."
(b) Notwithstanding the provisions of Section 2.05, the Global
Security or Securities of a series may be transferred, in whole but not in part
and in the manner provided in Section 2.05, only to another nominee of the
Depositary for such series, or to a successor Depositary for such series
selected or approved by the Company or to a nominee of such successor
Depositary.
(c) If at any time the Depositary for a series of the Debt Securities
notifies the Company that it is unwilling or unable to continue as Depositary
for such series or if at any time the Depositary for such
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series shall no longer be registered or in good standing under the Exchange
Act, or other applicable statute or regulation, at a time when the Depositary
is required to be so registered to act as such Depositary and a successor
Depositary for such series is not appointed by the Company within 90 days after
the Company receives such notice or becomes aware of such condition, as the
case may be, this Section 2.11 shall no longer be applicable to the Debt
Securities of such series and the Company will execute, and subject to Section
2.05, the Trustee will authenticate and deliver the Debt Securities of such
series in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Security or Securities of such series in exchange for such
Global Security or Securities. In addition, the Company may at any time
determine that the Debt Securities of any series shall no longer be represented
by a Global Security or Securities and that the provisions of this Section 2.11
shall no longer apply to the Debt Securities of such series. In such event, the
Company will execute and subject to Section 2.05, the Trustee, upon receipt of
an Officers' Certificate evidencing such determination by the Company, will
authenticate and deliver the Debt Securities of such series in definitive
registered form without coupons, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the Global Security
or Securities of such series in exchange for such Global Security or
Securities. Upon the exchange of the Global Security or Securities for such
Debt Securities in definitive registered form without coupons, in authorized
denominations, the Global Security or Securities shall be canceled by the
Trustee. Such Debt Securities in definitive registered form issued in exchange
for the Global Security or Securities pursuant to this Section 2.11(c) shall be
registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee. The Trustee shall deliver such Debt
Securities to the Depositary for delivery to the Persons in whose names such
Debt Securities are so registered.
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ARTICLE III
REDEMPTION OF DEBT SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.01. Redemption. The Company may redeem the Debt Securities
of any series issued hereunder on and after the dates and in accordance with
the terms established for such series pursuant to Section 2.01 hereof.
SECTION 3.02. Notice of Redemption. (a) In case the Company shall
desire to exercise such right to redeem all or, as the case may be, a portion
of the Debt Securities of any series in accordance with the right reserved so
to do, the Company shall, or shall cause the Trustee to, give notice of such
redemption to holders of the Debt Securities of such series to be redeemed by
mailing, first class postage prepaid, a notice of such redemption not less than
30 days and not more than 60 days before the date fixed for redemption of that
series to such holders at their last addresses as they shall appear upon the
Security Register unless a shorter period is specified in the Debt Securities
to be redeemed. Any notice that is mailed in the manner herein provided shall
be conclusively presumed to have been duly given, whether or not the registered
holder receives the notice. In any case, failure duly to give such notice to
the holder of any Debt Security of any series designated for redemption in
whole or in part, or any defect in the notice, shall not affect the validity of
the proceedings for the redemption of any other Debt Securities of such series
or any other series. In the case of any redemption of Debt Securities prior to
the expiration of any restriction on such redemption provided in the terms of
such Debt Securities or elsewhere in this Indenture, the Company shall furnish
the Trustee with an Officers' Certificate evidencing compliance with any such
restriction.
Each such notice of redemption shall specify the date fixed for
redemption and the redemption price at which Debt Securities of that series are
to be redeemed, and shall state that payment of the redemption price of such
Debt Securities to be redeemed will be made at the office or agency of the
Company in the Borough of Manhattan, the City and State of New York, upon
presentation and surrender of such Debt Securities, that interest accrued to
the date fixed for redemption will be paid as specified in said notice, that
from and after said date interest will cease to accrue and that the redemption
is for a sinking fund, if such is the case. If less than all the Debt
Securities of a series are to be redeemed, the notice to the holders of Debt
Securities of that series to be redeemed in whole or in part shall specify the
particular Debt Securities to be so redeemed. In case any Debt Security is to
be redeemed in part only, the notice that relates to such Debt Security shall
state the portion of the principal amount thereof to be redeemed, and shall
state that on and after the redemption date, upon surrender of such Debt
Security, a new Debt Security or Debt Securities of such series in principal
amount equal to the unredeemed portion thereof will be issued.
(b) If less than all the Debt Securities of a series are to be
redeemed, the Company shall give the Trustee at least 45 days' notice in
advance of the date fixed for redemption as to the aggregate principal amount
of Debt Securities of the series to be redeemed, and thereupon the Trustee
shall select, by lot or in such other manner as it
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shall deem appropriate and fair in its discretion and that may provide for the
selection of a portion or portions (equal to one thousand U.S. dollars ($1,000)
or any integral multiple thereof) of the principal amount of such Debt
Securities of a denomination larger than $1,000, the Debt Securities to be
redeemed and shall thereafter promptly notify the Company in writing of the
numbers of the Debt Securities to be redeemed, in whole or in part.
The Company may, if and whenever it shall so elect, by delivery of
instructions signed on its behalf by its President or any Vice President,
instruct the Trustee or any paying agent to call all or any part of the Debt
Securities of a particular series for redemption and to give notice of
redemption in the manner set forth in this Section, such notice to be in the
name of the Company or its own name as the Trustee or such paying agent may
deem advisable. In any case in which notice of redemption is to be given by the
Trustee or any such paying agent, the Company shall deliver or cause to be
delivered to, or permit to remain with, the Trustee or such paying agent, as
the case may be, such Security Register, transfer books or other records, or
suitable copies or extracts therefrom, sufficient to enable the Trustee or such
paying agent to give any notice by mail that may be required under the
provisions of this Section.
SECTION 3.03. Payment Upon Redemption. (a) If the giving of notice of
redemption shall have been completed as above provided, the Debt Securities or
portions of Debt Securities of the series to be redeemed specified in such
notice shall become due and payable on the date and at the place stated in such
notice at the applicable redemption price, together with interest accrued to
the date fixed for redemption and interest on such Debt Securities or portions
of Debt Securities shall cease to accrue on and after the date fixed for
redemption, unless the Company shall default in the payment of such redemption
price and accrued interest with respect to any such Debt Security or portion
thereof. On presentation and surrender of such Debt Securities on or after the
date fixed for redemption at the place of payment specified in the notice, said
Debt Securities shall be paid and redeemed at the applicable redemption price
for such series, together with interest accrued thereon to the date fixed for
redemption (but if the date fixed for redemption is an interest payment date,
the interest installment payable on such date shall be payable to the
registered holder at the close of business on the applicable record date
pursuant to Section 2.03).
(b) Upon presentation of any Debt Security of such series that is to
be redeemed in part only, the Company shall execute and the Trustee shall
authenticate and the office or agency where the Debt Security is presented
shall deliver to the holder thereof, at the expense of the Company, a new Debt
Security or Debt Securities of the same series, of authorized denominations in
principal amount equal to the unredeemed portion of the Debt Security so
presented.
SECTION 3.04. Sinking Fund. The provisions of Sections 3.04, 3.05
and 3.06 shall be applicable to any sinking fund for the retirement of
Debt Securities of a
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series, except as otherwise specified as contemplated by Section 2.01 for Debt
Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Debt Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount
provided for by the terms of Debt Securities of any series is herein referred
to as an "optional sinking fund payment". If provided for by the terms of Debt
Securities of any series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 3.05. Each sinking fund payment
shall be applied to the redemption of Debt Securities of any series as provided
for by the terms of Debt Securities of such series.
SECTION 3.05. Satisfaction of Sinking Fund Payments with Debt
Securities. The Company (i) may deliver Outstanding Debt Securities of a series
(other than any Debt Securities previously called for redemption) and (ii) may
apply as a credit Debt Securities of a series that have been redeemed either at
the election of the Company pursuant to the terms of such Debt Securities or
through the application of permitted optional sinking fund payments pursuant to
the terms of such Debt Securities, in each case in satisfaction of all or any
part of any sinking fund payment with respect to the Debt Securities of such
series required to be made pursuant to the terms of such Debt Securities as
provided for by the terms of such series, provided that such Debt Securities
have not been previously so credited. Such Debt Securities shall be received
and credited for such purpose by the Trustee at the redemption price specified
in such Debt Securities for redemption through operation of the sinking fund
and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 3.06. Redemption of Debt Securities for Sinking Fund. Not less
than 45 days prior to each sinking fund payment date for any series of Debt
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of the series, the portion thereof, if any, that is to be
satisfied by delivering and crediting Debt Securities of that series pursuant
to Section 3.05 and the basis for such credit and will, together with such
Officers' Certificate, deliver to the Trustee any Debt Securities to be so
delivered. Not less than 30 days before each such sinking fund payment date,
the Trustee shall select the Debt Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 3.02 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 3.02. Such notice having been duly
given, the redemption of such Debt Securities shall be made upon the terms and
in the manner stated in Section 3.03.
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ARTICLE IV
COVENANTS OF THE COMPANY
SECTION 4.01. Payment of Principal, Premium and Interest. The Company
will duly and punctually pay or cause to be paid the principal of (and premium,
if any) and interest on the Debt Securities of that series at the time and
place and in the manner provided herein and established with respect to such
Debt Securities.
SECTION 4.02. Maintenance of Office or Agency. So long as any series
of the Debt Securities remain Outstanding, the Company agrees to maintain an
office or agency in the Borough of Manhattan, the City and State of New York,
with respect to each such series and at such other location or locations as may
be designated as provided in this Section 4.02, where (i) Debt Securities of
that series may be presented for payment, (ii) Debt Securities of that series
may be presented as hereinabove authorized for registration of transfer and
exchange, and (iii) notices and demands to or upon the Company in respect of
the Debt Securities of that series and this Indenture may be given or served,
such designation to continue with respect to such office or agency until the
Company shall, by written notice signed by its President or a Vice President
and delivered to the trustee, designate some other office or agency for such
purposes or any of them. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, 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, notices and
demands.
SECTION 4.03. Paying Agents. (a) If the Company shall appoint one or
more paying agents for all or any series of the Debt Securities, other than the
Trustee, the Company will cause each such paying agent to execute and deliver
to the Trustee an instrument in which such agent shall agree with the Trustee,
subject to the provisions of this Section:
(1) that it will hold all sums held by it as such agent for the
payment of the principal of (and premium, if any) or interest on the Debt
Securities of that series (whether such sums have been paid to it by the
Company or by any other obligor of such Debt Securities) in trust for the
benefit of the Persons entitled thereto;
(2) that it will give the Trustee notice of any failure by the Company
to make any payment of the principal of (and premium, if any) or interest
on the Debt Securities of that series when the same shall be due and
payable;
(3) that it will, at any time during the continuance of any failure
referred to in the preceding paragraph (a)(2) above, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such paying agent; and
21
(4) that it will perform all other duties of paying agent as set forth
in this Indenture.
(b) If the Company shall act as its own paying agent with respect to
any series of the Debt Securities, it will on or before each due date of the
principal of (and premium, if any) or interest on Debt Securities of that
series, set aside, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay such principal (and premium, if any)
or interest so becoming due on Debt Securities of that series until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of such action, or any failure by it to take
such action. Whenever the Company shall have one or more paying agents for any
series of Debt Securities, it will, prior to each due date of the principal of
(and premium, if any) or interest on any Debt Securities of that series,
deposit with the 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, premium or interest, and
(unless such paying agent is the Trustee) the Company will promptly notify the
Trustee of this action or failure so to act.
(c) Notwithstanding anything in this Section to the contrary, (i) the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Section 11.06, and (ii) 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 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 terms and conditions 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.
SECTION 4.04. Appointment to Fill Vacancy in Office of Trustee. The
Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so
that there shall at all times be a Trustee hereunder.
SECTION 4.05. Limitation on Dividends; Transactions with Affiliates.
(a) If Debt Securities are issued to a Capital Trust or a trustee of
such trust in connection with the issuance of Trust Securities by such Capital
Trust and (i) the Company shall have given notice of its election to defer
payments of interest on such Debt Securities by extending the interest payment
period as provided in any indenture supplemental hereto and such period, or any
extension thereof, shall be continuing; (ii) the Company shall be prohibited
from paying current interest on such Debt Securities other than in an amount
limited by reference to its prior issuance or sale of equity securities pursuant
to mandatory interest deferral provisions or interest payment restrictions
applicable when the Company has outstanding deferred interest obligations with
respect to the Debt Securities of such series as provided in any indenture
22
supplemental hereto; or (iii) there shall have occurred an event that would
constitute an Acceleration Event of Default, then (A) the Company shall not
declare or pay any dividend, or make any distributions with respect to, or
redeem, purchase or make a liquidation payment with respect to, any of its
capital stock, (B) the Company shall not make any payment of interest,
principal or premium, if any, on or repay, repurchase or redeem any debt
securities (including guarantees) issued by the Company which rank pari passu
with or junior to such Debt Securities and (C) the Company shall not make any
guarantee payments with respect to the foregoing (other than pursuant to the
Preferred Securities Guarantee).
(b) The restrictions contained in paragraph (a) shall not apply to:
(1) the payment of any dividend or distribution within 60 days after
the date of declaration thereof during a period during which the Company
is required to defer interest when due by operation of a provision
limiting interest payments in connection with the Company's performance
under a financial test, if (A) at the date of declaration of such dividend
or distribution the Company was not yet required to defer interest
pursuant to such provision and (B) such payment would have been otherwise
permitted under the provisions of the Indenture;
(2) dividends or distributions payable solely in Junior Securities;
(3) repurchases, redemption or other acquisitions of shares of capital
stock or stock rights in connection with any employment contract, benefit
plan or other similar arrangement with or for the benefit of employees,
officers, directors or consultants;
(4) any exchange, redemption, repayment, repurchase or conversion of
any calls or series of the Company's capital stock or of any of the
Company's debt securities that rank equally, with or junior to such Debt
Securities for any Junior Securities;
(5) the purchase of fractional interests in shares of the Company's
capital stock (a) pursuant to the conversion or exchange provisions of
such capital stock or the security being converted or exchanged or (b) in
connection with any stock split, reclassification or similar transaction;
and
(6) any declaration of a dividend in connection with the
implementation of a shareholders rights plan, or the issuance of stock
under any such plan in the future, or the redemption or repurchase of any
rights pursuant thereto.
SECTION 4.06. Covenants as to Capital Trust. In the event Debt
Securities are issued and sold to a Capital Trust in connection with the
issuance of Trust Securities
23
by such trust, for so long as such Trust Securities remain outstanding, the
Company will (i) maintain 100% direct or indirect ownership of the Common
Securities of such trust; provided, however, that any permitted successor of the
Company under the Indenture may succeed to the Company's ownership of the Common
Securities, (ii) not cause, as sponsor of such trust, or permit, as holder of
Common Securities of such trust, the dissolution, winding- up or termination of
such trust, except in connection with a distribution of Debt Securities as
provided in the Declaration and in connection with certain mergers,
consolidations or amalgamations permitted by the Declaration and (iii) use its
reasonable efforts to cause such trust (a) to remain a business trust, except in
connection with a distribution of Debt Securities, the redemption of all of the
Trust Securities of such Capital Trust or certain mergers, consolidations or
amalgamations, each as permitted by the Declaration of such Capital Trust, and
(b) to otherwise continue to be classified for United States federal income tax
purposes as a grantor trust/fixed investment trust.
SECTION 4.07. Corporate Existence. The Company will, subject to the
provisions of Article X, at all times maintain its corporate existence and
right to carry on business and will duly procure all renewals and extensions
thereof, and, to the extent necessary or desirable in the operation of its
business, will use its best efforts to maintain, preserve and renew all of its
rights, powers, privileges and franchises.
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ARTICLE V
SECURITYHOLDERS, LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 5.01. Company to Furnish Trustee Names and Addresses of
Securityholders. The Company will furnish or cause to be furnished to the
Trustee on a quarterly basis on each regular record date (as defined in Section
2.03) a list, in such form as the Trustee may reasonably require, of the names
and addresses of the holders of each series of Debt Securities as of such
regular record date, provided that the Company shall not be obligated to
furnish or cause to furnish such list at any time that the list shall not
differ in any respect from the most recent list furnished to the Trustee by the
Company and at such other times as the Trustee may request in writing within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished; provided, however, that in either case, no such list need be
furnished for any series for which the Trustee shall be the Security Registrar.
SECTION 5.02. Preservation of Information; Communications with
Securityholders. (a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of the
holders of Debt Securities contained in the most recent list furnished to it as
provided in Section 5.01 and as to the names and addresses of holders of Debt
Securities received by the Trustee in its capacity as Security Registrar (if
acting in such capacity).
(b) The Trustee may destroy any list furnished to it as provided in
Section 5.01 upon receipt of a new list so furnished.
(c) Securityholders may communicate as provided in Section 312(b) of
the Trust Indenture Act with other Securityholders with respect to their rights
under this Indenture or under the Debt Securities.
SECTION 5.03. Reports by the Company. (a) The Company covenants and
agrees to file with the Trustee, within 15 days after the Company is required
to file the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and regulations
prescribe) that the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company
is not required to file information, documents or reports pursuant to either of
such sections, then to file with the Trustee and the Commission, in accordance
with the rules and regulations prescribed from time to time by the Commission,
such of the supplementary and periodic information, documents and reports that
may be required pursuant to Section 13 of the Exchange Act, in respect of a
security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations. Delivery of reports
to the Trustee pursuant to this paragraph (a) is for informational purposes
only and the Trustee's receipt of such
25
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder.
(b) The Company covenants and agrees to file with the Trustee and the
Commission, in accordance with the rules and regulations prescribed from to
time by the Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants provided
for in this Indenture as may be required from time to time by such rules and
regulations.
(c) The Company covenants and agrees to transmit by mail, first class
postage prepaid, or reputable overnight delivery service that provides for
evidence of receipt, to the Securityholders, as their names and addresses
appear upon the Security Register, within 30 days after the filing thereof with
the Trustee, such summaries of any information, documents and reports required
to be filed by the Company pursuant to subsections (a) and (b) of this Section
as may be required by rules and regulations prescribed from time to time by the
Commission.
SECTION 5.04. Reports by the Trustee. (a) On or before July 15 in each
year in which any of the Debt Securities are Outstanding, the Trustee shall
transmit by mail, first class postage prepaid, to the Securityholders, as their
names and addresses appear upon the Security Register, a brief report dated as
of the preceding May 15, if and to the extent required under Section 313(a) of
the Trust Indenture Act.
(b) The Trustee shall comply with Sections 313(b) and 313(c) of the
Trust Indenture Act.
(c) A copy of each such report shall, at the time of such transmission
to Securityholders, be filed by the Trustee with the Company, with each stock
exchange upon which any Debt Securities are listed (if so listed) and also with
the Commission. The Company agrees to notify the Trustee when any Debt
Securities become listed on any stock exchange.
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ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01. Events of Default. (a) Whenever used herein with respect
to Debt Securities of a particular series, "Event of Default" means any one or
more of the following events that has occurred and is continuing:
(1) the Company defaults in the payment of any installment of interest
upon any of the Debt Securities of that series, as and when the same shall
become due and payable, and continuance of such default for a period of 30
days; provided, however, that a valid extension of an interest payment
period by the Company in accordance with the terms of any indenture
supplemental hereto, shall not constitute a default in the payment of
interest for this purpose;
(2) the Company defaults in the payment of the principal of (or
premium, if any, on) any of the Debt Securities of that series as and when
the same shall become due and payable whether at maturity, upon
redemption, by declaration or otherwise, or in any payment required by any
sinking or analogous fund established with respect to that series;
provided, however, that a valid extension of the maturity of such Debt
Securities in accordance with the terms of any indenture supplemental
hereto shall not constitute a default in the payment of principal or
premium, if any;
(3) The Company has deferred interest on the Debt Securities of such
series, whether by election under a voluntary interest deferral provision
or due to a mandatory interest deferral provision applicable to the Debt
Securities of such series, and the Company has failed to pay in full all
deferred interest within ten years of the commencement of such interest
deferral;
(4) the Company pursuant to or within the meaning of any Bankruptcy
Law (i) commences a voluntary case, (ii) consents to the entry of an order
for relief against it in an involuntary case, (iii) consents to the
appointment of a Custodian of it or for all or substantially all of its
property or (iv) makes a general assignment for the benefit of its
creditors;
(5) a court of competent jurisdiction enters an order under any
Bankruptcy Law that (i) is for relief against the Company in an
involuntary case, (ii) appoints a Custodian of the Company for all or
substantially all of its property, or (iii) orders the liquidation of the
Company, and the order or decree remains unstayed and in effect for 90
days; or
(6) in the event Debt Securities are issued and sold to a Capital
Trust or other trust of the Company in connection with the issuance of
Trust Securities by such trust, such trust shall have voluntarily or
involuntarily dissolved, wound-up its business or otherwise terminated
its existence except in connection with (i)
27
the distribution of Debt Securities to holders of Trust Securities in
liquidation of their interests in such trust, (ii) the redemption of all
outstanding Trust Securities of such trust, and (iii) mergers,
consolidations or amalgamations, each as permitted by the Declaration of
such trust.
(7) the Company fails to observe or perform any other of its covenants
or agreements with respect to that series contained in this Indenture or
otherwise established with respect to that series of Debt Securities
pursuant to Section 2.01 hereof (other than a covenant or agreement that
has been expressly included in this Indenture solely for the benefit of
one or more series of Debt Securities other than such series) for a period
of 60 days after the date on which written notice of such failure,
requiring the same to be remedied and stating that such notice is a
"Notice of Default" hereunder, shall have been given to the Company by the
Trustee, by registered or certified mail, or to the Company and the
Trustee by the holders of (i) at least 10% in principal amount of the Debt
Securities of that series at the time Outstanding or (ii) at least 10% in
stated liquidation amount of the Preferred Securities of the Capital
Trust, if any, corresponding to such series;
(b) If an Event of Default described in clause 1, 2, 3 or 6 of this
Section 6.01 with respect to Debt Securities of any series at the time
outstanding occurs and is continuing, unless the principal of all the Debt
Securities of that series shall have already become due and payable, either the
Trustee or the holders of not less than 10% in aggregate principal amount of
the Debt Securities of that series then Outstanding hereunder, by notice in
writing to the Company (and to the Trustee, if given by such Securityholders),
may declare the principal of all the Debt Securities of that series to be due
and payable immediately, and upon any such declaration the same shall become
and shall be immediately due and payable, notwithstanding anything contained in
this Indenture or in the Debt Securities of that series or established with
respect to that series pursuant to Section 2.01 to the contrary. If an Event of
Default specified in clause (4) or (5) of this Section 6.01 occurs or is
continuing, then the principal amount of all the Debt Securities shall ipso
facto become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Securityholder.
(c) At any time after the principal of the Debt Securities of that
series shall have been declared due and payable upon or after the occurrence of
an Acceleration Event of Default, and before any judgment or decree for the
payment of the moneys due shall have been obtained or entered as hereinafter
provided, the holders of a majority in aggregate principal amount of the Debt
Securities of that series then Outstanding hereunder, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if: (i) the Company has paid or deposited with the Trustee a sum
sufficient to pay all matured installments of interest upon all the Debt
Securities of that series and the principal of (and premium, if any, on) any
and all Debt Securities of that series that shall have become due otherwise
than by acceleration (with interest upon such principal and premium, if any,
and, to the extent that such payment is enforceable under applicable law, upon
overdue installments of interest, at the rate per
28
annum expressed in the Debt Securities of that series to the date of such
payment or deposit) and the amount payable to the Trustee under Section 7.06,
and (ii) any and all Events of Default under the Indenture with respect to such
series, other than the nonpayment of principal on Debt Securities of that series
that shall not have become due by their terms, shall have been remedied or
waived as provided in Section 6.06.
No such rescission and annulment of a declaration shall extend to or
shall affect any subsequent default or impair any right consequent thereon.
(d) If a Covenant Event of Default with respect to Debt Securities of
any series at the time outstanding occurs and is continuing, any Holder of Debt
Securities of such series may commence an action against the Company for breach
of such covenant or covenants giving rise thereto, and the holders of (i) not
less than 10% in aggregate principal amount of the Debt Securities of that
series then Outstanding; or (ii) not less than 10% in aggregate stated
liquidation amount of the Preferred Securities, if any, corresponding to such
series of Debt Securities, may direct the Trustee to commence an action against
the Company for breach of such covenant or covenants giving rise thereto.
(e) In case the Trustee shall have proceeded to enforce any right with
respect to Debt Securities of that series under this Indenture and such
proceedings shall have been discontinued or abandoned because of such
rescission or annulment of a declaration or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case the
Company and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the
Company and the Trustee shall continue as though no such proceedings had been
taken.
SECTION 6.02. Collection of Indebtedness and Suits for Enforcement by
Trustee.
(a) The Company covenants that (1) in case it shall default in the
payment of any installment of interest on any of the Debt Securities of a
series, or any payment required by any sinking or analogous fund established
with respect to that series as and when the same shall have become due and
payable, and such default shall have continued for a period of 90 days, or (2)
in case it shall default in the payment of the principal of (or premium, if any,
on) any of the Debt Securities of a series when the same shall have become due
and payable, whether upon maturity of the Debt Securities of a series or upon
redemption or upon declaration or otherwise, then, upon demand of the Trustee,
the Company will pay to the Trustee, for the benefit of the holders of the Debt
Securities of that series, the whole amount that then shall have become due and
payable on all such Debt Securities for principal (and premium, if any) or
interest, or both, as the case may be, with interest upon the overdue principal
(and premium, if any) and (to the extent that payment of such interest is
enforceable under applicable law and, if the Debt Securities are held by a
Capital Trust, without duplication of any other amounts paid by such trust in
respect thereof) upon overdue installments of interest at the rate per annum
29
expressed in the Securities of that series; and, in addition thereto,
such further amount as shall be sufficient to cover the costs and expenses of
collection and the amount payable to the Trustee under Section 7.06.
(b) If the Company shall fail to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or other obligor upon the Debt
Securities of that series and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the Company or
other obligor upon the Debt Securities of that series, wherever situated.
(c) In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, readjustment, arrangement, composition or judicial proceedings
affecting the Company or its creditors or property, the Trustee shall have
power to intervene in such proceedings and take any action therein that may be
permitted by the court and shall (except as may be otherwise provided by law)
be entitled to file such proofs of claim and other papers and documents as may
be necessary or advisable in order to have the claims of the Trustee and of the
holders of Debt Securities of such series allowed for the entire amount due and
payable by the Company under the Indenture at the date of institution of such
proceedings and for any additional amount that may become due and payable by
the Company after such date, and to collect and receive any moneys or other
property payable or deliverable on any such claim, and to distribute the same
after the deduction of the amount payable to the Trustee under Section 7.06;
and any receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the holders of Debt Securities of such series to make
such payments to the Trustee, and, in the event that the Trustee shall consent
to the making of such payments directly to such Securityholders, to pay to the
Trustee any amount due it under Section 7.06.
(d) All rights of action and of asserting claims under this Indenture,
or under any of the terms established with respect to Debt Securities of that
series, may be enforced by the Trustee without the possession of any of such
Debt Securities, or the production thereof at any trial or other proceeding
relative thereto, and any such suit or 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 payment to the Trustee of any
amounts due under Section 7.06, be for the ratable benefit of the holders of
the Debt Securities of such series.
In case of an Event of Default hereunder, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in the Indenture or in aid of
30
the exercise of any power granted in this Indenture, or to enforce any other
legal or equitable right vested in the Trustee by this Indenture or by law.
Nothing contained herein shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Debt Securities of that series or the rights of any holder thereof or to
authorize the Trustee to vote in respect of the claim of any Securityholder in
any such proceeding.
SECTION 6.03. Application of Moneys Collected. Any moneys collected by
the Trustee pursuant to this Article with respect to a particular series of
Debt Securities shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such moneys on account
of principal (or premium, if any) or interest, upon presentation of the Debt
Securities of that series, and notation thereon of the payment, if only
partially paid, and upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection and of all
amounts payable to the Trustee under Section 7.06;
SECOND: To the payment of all Senior Indebtedness of the Company if
and to the extent required by Article XIV; and
THIRD: To the payment of the amounts then due and unpaid upon Debt
Securities of such series for principal (and premium, if any) and
interest, in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Debt Securities for
principal (and premium, if any) and interest, respectively.
SECTION 6.04. Limitation on Suits. No holder of any Debt Security of
any series shall have any right by virtue or by availing of any provision of
this Indenture to institute any suit, action or proceeding in equity or at law
upon or under or with respect to this Indenture or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless (i) such holder
previously shall have given to the Trustee written notice of an Event of
Default and of the continuance thereof with respect to the Debt Securities of
such series specifying such Event of Default, as hereinbefore provided; (ii)
the holders of not less than 10% in aggregate principal amount of the Debt
Securities of such series then Outstanding shall have made written request upon
the Trustee to institute such action, suit or proceeding in its own name as
trustee hereunder; (iii) such holder or holders shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby; and (iv) the Trustee for 60
days after its receipt of such notice, request and offer of indemnity, shall
have failed to institute any such action, suit or proceeding; and (v) during
such 60-day period, the holders of a majority in principal amount of the Debt
Securities of that series do not give the Trustee a direction inconsistent with
the request.
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Notwithstanding anything contained herein to the contrary, any other
provisions of this Indenture, the right of any holder of any Debt Security to
receive payment of the principal of (and premium, if any) and interest on such
Debt Security, as therein provided, on or after the respective due dates
expressed in such Debt Security (or in the case of redemption, on the
redemption date), or to institute suit for the enforcement of any such payment
on or after such respective dates or redemption date, shall not be impaired or
affected without the consent of such holder, and by accepting a Security
hereunder it is expressly understood, intended and covenanted by the taker and
holder of every Security of such series with every other such taker and holder
and the Trustee, that no one or more holders of Debt Securities of such series
shall have any right in any manner whatsoever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of the
holders of any other of such Debt Securities, or to obtain or seek to obtain
priority over or preference to any other such holder, or to enforce any right
under this Indenture, except in the manner herein provided and for the equal,
ratable and common benefit of all holders of Debt Securities of series. For the
protection and enforcement of the provisions of this Section 6.04, each and
every Securityholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity. SECTION 6.05. ...Rights and Remedies
Cumulative; Delay or Omission not Waiver. (a) Except as otherwise provided in
the final sentence of Section 2.07, all powers and remedies given by this
Article to the Trustee or to the Securityholders shall, to the extent permitted
by law, be deemed cumulative and not exclusive of any other powers and remedies
available to the Trustee or the holders of the Debt Securities, by judicial
proceedings or otherwise, to enforce the performance or observance of the
covenants and agreements contained in this Indenture or otherwise established
with respect to such Debt Securities.
(b) No delay or omission of the Trustee or of any holder of any of the
Debt Securities to exercise any right or power accruing upon any Event of
Default occurring and continuing as aforesaid shall impair any such right or
power, or shall be construed to be a waiver of any such default or an
acquiescence therein; and, subject to the provisions of Section 6.04, every
power and remedy given by this Article or by law to the Trustee or the
Securityholders may be exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or by the Securityholders.
SECTION 6.06. Control by Securityholders. The holders of a (i)
majority in aggregate principal amount of the Debt Securities of any series
at the time Outstanding, determined in accordance with Section 8.04, or (ii)
if the Debt Securities of a series are issued to a Capital Trust, holders of
a majority in aggregate stated liquidation amount of the Preferred Securities
of such Capital Trust then outstanding, 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 such series; provided, however, that such direction shall not
be in conflict with any rule of law or with this Indenture or be unduly
prejudicial to the rights of holders of Debt Securities of any other series
at the time Outstanding determined in accordance with
32
Section 8.04. Subject to the provisions of Section 7.01, the Trustee shall have
the right to decline to follow any such direction if the Trustee in good faith
shall, by a Responsible Officer or Officers of the Trustee, determine that the
proceeding so directed would involve the Trustee in personal liability. The
holders of (i) a majority in aggregate principal amount of the Debt Securities
of any series at the time Outstanding affected thereby or (ii) if the Debt
Securities of a series are issued to a Capital Trust, holders of a majority in
aggregate stated liquidation amount of the Preferred Securities of such Capital
Trust then outstanding, determined in accordance with Section 8.04, may on
behalf of the holders of all of the Debt Securities of such series waive any
past default in the performance of any of the covenants contained herein or
established pursuant to Section 2.01 with respect to such series and its
consequences, except (i) a default in the payment of the principal of, or
premium, if any, or interest on, any of the Debt Securities of that series as
and when the same shall become due by the terms of such Debt Securities
otherwise than by acceleration (unless such default has been cured and a sum
sufficient to pay all matured installments of interest and principal and any
premium has been deposited with the Trustee (in accordance with Section
6.01(c)), (ii) a default in the covenants contained in Section 4.06 or (iii) in
respect of a default or violation of a covenant or provision hereof which under
Article IX or the provisions of any indenture supplemental hereto cannot be
amended or modified without the consent of the holders of each Outstanding Debt
Security of such series affected. Upon any such waiver, the default covered
thereby shall deemed to be cured for all purposes of this Indenture and the
Company, the Trustee and the holders of the Debt Securities of such series shall
be restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
SECTION 6.07. Undertaking to Pay Costs. All parties to this Indenture
agree, and each holder of any Debt Securities by such holder's acceptance
thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken 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 6.07 shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder, or group of
Securityholders, holding more than 10% in aggregate principal amount of the
Outstanding Debt Securities of any series (or, with respect to any series of
Debt Securities issued to a Capital Trust, the holder or group of holders of
more than 10% in aggregate stated liquidation amount of the Preferred
Securities of such Capital Trust), or to any suit instituted by any
Securityholder (or, with respect to any series of Debt Securities issued to a
Capital Trust, the holder of a Preferred Security of such Capital Trust) for
the enforcement of the payment of the principal of (or premium, if any) or
interest on any Debt Security of such series, on or after the respective due
dates expressed in such Debt Security or established pursuant to this
Indenture.
33
SECTION 6.08. Notice of Defaults. The Company shall provide written
notice to the Trustee immediately upon becoming aware of any Default or Event
of Default hereunder, and if any such Default or Event of Default affects the
Outstanding Debt Securities of any series of Debt Securities issued to a
Capital Trust or a trustee of such trust, the Company shall immediately provide
a copy of such written notice to the Property Trustee of such Capital Trust.
Within 30 days of the Trustee obtaining actual knowledge of the occurrence of
any Default or Event of Default, the Trustee will transmit notice of such
Default or Event of Default to the holders of the Debt Securities, unless such
Default or Event of Default is cured or waived.
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ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.01. Certain Duties and Responsibilities of Trustee. (a) The
Trustee, prior to the occurrence of an Event of Default with respect to the
Debt Securities of a series and after the curing of all Events of Default with
respect to the Debt Securities of that series that may have occurred, shall
undertake to perform with respect to the Debt Securities of such series such
duties and only such duties as are specifically set forth in this Indenture,
and no implied covenants shall be read into this Indenture against the Trustee.
In case an Event of Default with respect to the Debt Securities of a series has
occurred (that has not been cured or waived), the Trustee shall exercise with
respect to Debt Securities of that series 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 man would exercise or use under the circumstances in the
conduct of his own affairs.
(b) 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) prior to the occurrence of an Event of Default with respect to the
Debt Securities of a series and after the curing or waiving of all such
Events of Default with respect to that series that may have occurred:
(i) the duties and obligations of the Trustee shall with
respect to the Debt Securities of such series be determined solely by
the express provisions of this Indenture, and the Trustee shall not be
liable with respect to the Debt Securities of such series except for
the performance of such duties and obligations as are specifically set
forth in this Indenture, and no implied covenants or obligations shall
be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee,
the Trustee may with respect to the Debt Securities of such series
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any 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 that by any provision hereof are specifically
required to 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 requirement of this Indenture;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
35
(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 the holders of not less than a majority in principal amount
of the Debt Securities of any series at the time Outstanding 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 Debt Securities of
that series; and
(4) None of the provisions contained in this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if there is reasonable ground for
believing that the repayment of such funds or liability is not reasonably
assured to it under the terms of this Indenture or adequate indemnity
against such risk is not reasonably assured to it.
SECTION 7.02. Certain Rights of Trustee. Except as otherwise provided
in Section 7.01:
(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, consent, order, approval, bond, security 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, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by a Board Resolution or an instrument
signed in the name of the Company by the President, or any Vice President and
by the Secretary or an Assistant Secretary or the Treasurer or an Assistant
Treasurer thereof (unless other evidence in respect thereof is specifically
prescribed herein);
(c) 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 or suffered or omitted hereunder
in good faith and in reliance thereon;
(d) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders, pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
that may be incurred therein or thereby; nothing contained herein shall,
however, relieve the Trustee of the obligation, upon the occurrence of an Event
of Default with respect to a series of the Debt Securities (that has not been
cured or waived) to exercise with respect to Debt Securities of that series
such of the rights and powers vested in it by this Indenture, and to use the
same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs;
36
(e) The Trustee shall not be liable for any action taken or omitted to
be taken by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture;
(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, consent, order, approval, bond, security, or
other papers or documents, unless requested in writing so to do by the holders
of not less than a majority in principal amount of the Outstanding Debt
Securities of the particular series affected thereby (determined as provided in
Section 8.04); provided, however, that if the payment within a reasonable time
to the Trustee of the costs, expenses or liabilities likely to be incurred by
it in the making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the terms
of this Indenture, the Trustee may require reasonable indemnity against such
costs, expenses or liabilities as a condition to so proceeding. The reasonable
expense of every such examination shall be paid by the Company or, if paid by
the Trustee, shall be repaid by the Company upon demand;
(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) 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;
(i) The Trustee shall not be required to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers if it shall
have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it; and
(j) The Trustee shall not be deemed to have knowledge or notice of any
Event of Default or defaults with respect to any series of Debt Securities
issued hereunder unless a Responsible Officer of the Trustee shall have actual
knowledge thereof, unless notice of the Event of Default or default is provided
in writing by the Company to the Trustee or unless the holders of not less than
(x) twenty-five percent, in the case of an Acceleration Event of Default, and
(y) ten percent, in the case of a Covenant Event of Default, of the outstanding
Debt Securities of such series give notice of such Event of Default or default
to the Trustee.
(k) The permissive rights of the Trustee enumerated herein shall not
be construed as duties.
37
SECTION 7.03. Trustee Not Responsible for Recitals or Issuance of Debt
Securities. (a) The recitals contained herein and in the Debt Securities shall
be taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same.
(b) The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Debt Securities.
(c) The Trustee shall not be accountable for the use or application by
the Company of any of the Debt Securities or of the proceeds of such Debt
Securities, or for the use or application of any moneys paid over by the
Trustee in accordance with any provision of this Indenture or established
pursuant to Section 2.01, or for the use or application of any moneys received
by any paying agent other than the Trustee.
SECTION 7.04. May Hold Debt Securities. The Trustee or any paying
agent or Security Registrar, in its individual or any other capacity, may
become the owner or pledgee of Debt Securities with the same rights it would
have if it were not Trustee, paying agent or Security Registrar.
SECTION 7.05. Moneys Held in Trust. Subject to the provisions of
Section 11.06, all moneys received by the Trustee shall, until used or applied
as herein provided, be held in trust for the purposes for which they were
received, but 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
moneys received by it hereunder except such as it may agree with the Company to
pay thereon.
SECTION 7.06. Compensation and Reimbursement. (a) The Company
covenants and agrees to pay to the Trustee, and the Trustee shall be entitled
to, such reasonable compensation (which shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust), as the
Company and the Trustee may from time to time agree in writing, for all
services rendered by it in the execution of the trusts hereby created and in
the exercise and performance of any of the powers and duties hereunder of the
Trustee, and, except as otherwise expressly provided herein, the Company will
pay or reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel and of all Persons not
regularly in its employ) except any such expense, disbursement or advance as
may arise from its negligence or bad faith. The Company also covenants to
indemnify the Trustee (and its officers, agents, directors and employees) for,
and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on the part of the Trustee and arising out of
or in connection with the acceptance or administration of this trust, including
the costs and expenses of defending itself against any claim of liability in
the premises.
(b) The obligations of the Company under this Section to compensate
and indemnify the Trustee and to pay or reimburse the Trustee for expenses,
38
disbursements and advances shall constitute additional indebtedness hereunder
and shall survive the satisfaction and discharge of this Indenture. Such
additional indebtedness shall be secured by a lien prior to that of the Debt
Securities upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the benefit of the holders of particular
Debt Securities. When the Trustee incurs expenses after the occurrence of an
Event of Default specified in Section 6.01(4) or (5) with respect to the
Company, the expenses are intended to constitute expenses of administration
under the United States Bankruptcy Code (Title 11 of the United States Code) or
any other similar law for the relief of debtors.
SECTION 7.07. Reliance on Officers' Certificate. Except as otherwise
provided in Section 7.01, whenever in the administration of the provisions of
this Indenture the Trustee shall deem it necessary or desirable that a matter
be proved or established prior to taking or suffering or omitting to take any
action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and established
by an Officers' Certificate delivered to the Trustee and such certificate, in
the absence of negligence or bad faith on the part of the Trustee, shall be
full warrant to the Trustee for any action taken, suffered or omitted to be
taken by it under the provisions of this Indenture upon the faith thereof.
SECTION 7.08. Qualification; Conflicting Interests. If the Trustee has
or shall acquire any "conflicting interest" within the meaning of Section
310(b) of the Trust Indenture Act, the Trustee and the Company shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
SECTION 7.09. Corporate Trustee Required; Eligibility. There shall at
all times be a Trustee with respect to the Debt Securities issued hereunder
which shall at all times be a corporation organized and doing business under
the laws of the United States of America or any State or Territory thereof or
of the District of Columbia, or a corporation or other Person permitted to act
as trustee by the Commission, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least fifty million
U.S. dollars ($50,000,000), and subject to supervision or examination by
Federal, State, Territorial or District of Columbia 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. The Company may not, nor
may any Person directly or indirectly controlling, controlled by, or under
common control with the Company, serve as Trustee. In case at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, the Trustee shall resign immediately in the manner and with the effect
specified in Section 7.10.
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SECTION 7.10. Resignation and Removal; Appointment of Successor. (a)
The Trustee or any successor hereafter appointed, may at any time resign with
respect to the Debt Securities of one or more series by giving written notice
thereof to the Company, and, if the Debt Securities of such series are held by
a Capital Trust, to the property trustee of such Capital Trust, and by
transmitting notice of resignation by mail, first class postage prepaid, to the
Securityholders of such series, as their names and addresses appear upon the
Security Register. Upon receiving such notice of resignation, the Company shall
promptly appoint a successor trustee with respect to Debt Securities of such
series by written instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee. If no successor trustee shall
have been so appointed and have accepted appointment within 30 days after the
mailing of such notice of resignation, the resigning Trustee may, at the
expense of the Company, petition any court of competent jurisdiction for the
appointment of a successor trustee with respect to Debt Securities of such
series, or any Securityholder of that series who has been a bona fide holder of
a Debt Security or Debt Securities for at least six months may, subject to the
provisions of Section 6.08, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor trustee.
Such court may thereupon after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(b) In case at any time any one of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of Section
7.08 after written request therefor by the Company or by any
Securityholder who has been a bona fide holder of a Debt Security or Debt
Securities for at least six months; or
(2) the Trustee shall cease to be eligible in accordance with the
provisions of Section 7.09 and shall fail to resign after written request
therefor by the Company or by any such Securityholder; or
(3) the Trustee shall become incapable of acting, or shall be adjudged
a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding, or
a receiver of the Trustee or of its property shall be appointed or
consented to, or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then, in any such case, the Company may
remove the Trustee with respect to all Debt Securities and appoint a
successor trustee by written instrument, in duplicate, executed by order
of the Board of Directors, one copy of which instrument shall be delivered
to the Trustee so removed and one copy to the successor trustee, or,
subject to the provisions of Section 6.08, unless the Trustee's duty to
resign is stayed as provided herein, any Securityholder who has been a
bona fide holder of a Debt Security or Debt Securities for at least six
months may, on behalf of that holder and all others similarly situated,
petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor
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trustee. Such court may thereupon after such notice, if any, as it
may deem proper and prescribe, remove the Trustee and appoint a successor
trustee.
(c) The holders of a majority in aggregate principal amount of the
Debt Securities of any series at the time Outstanding may at any time remove
the Trustee with respect to such series by so notifying the Trustee and the
Company and may appoint a successor Trustee for such series with the consent of
the Company.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee with respect to the Debt Securities of a series pursuant to
any of the provisions of this Section shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 7.11.
(e) Any successor trustee appointed pursuant to this Section may be
appointed with respect to the Debt Securities of one or more series or all of
such series, and at any time there shall be only one Trustee with respect to
the Debt Securities of any particular series.
SECTION 7.11. Acceptance of Appointment by Successor. (a) In case of
the appointment hereunder of a successor trustee with respect to all Debt
Securities, every such successor trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor trustee all the rights, powers, and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such successor trustee all
property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor trustee with
respect to the Debt Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor trustee with respect to the
Debt Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor
trustee all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Debt Securities of that or those series to which the
appointment of such successor trustee relates, (2) shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Debt Securities of that or those series as to which the retiring Trustee is
not retiring shall continue to be vested in the retiring Trustee, and shall
add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute such
41
Trustees co-trustees of the same trust, 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 that no Trustee shall be
responsible for any act or failure to act on the part of any other Trustee
hereunder; and upon the execution and delivery of such supplemental indenture
the resignation or removal of the retiring Trustee shall become effective to the
extent provided therein, such retiring Trustee shall with respect to the Debt
Securities of that or those series to which the appointment of such successor
trustee relates have no further responsibility for the exercise of rights and
powers or for the performance of the duties and obligations vested in the
Trustee under this Indenture, and each such successor trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Debt
Securities of that or those series to which the appointment of such successor
trustee relates; but, on request of the Company or any successor trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
trustee, to the extent contemplated by such supplemental indenture, the property
and money held by such retiring Trustee hereunder with respect to the Debt
Securities of that or those series to which the appointment of such successor
trustee relates.
(c) Upon request of any such successor trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor trustee shall accept its appointment unless at the
time of such acceptance such successor trustee shall be qualified and eligible
under this Article.
(e) Upon acceptance of appointment by a successor trustee as provided
in this Section, the Company shall transmit notice of the succession of such
trustee hereunder by mail, first class postage prepaid, to the Securityholders,
as their names and addresses appear upon the Security Register. If the Company
fails to transmit such notice within ten days after acceptance of appointment
by the successor trustee, the successor trustee shall cause such notice to be
transmitted at the expense of the Company.
SECTION 7.12. 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 the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided that such
corporation shall be qualified under the provisions of Section 7.08 and
eligible under the provisions of Section 7.09, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding. In case any Debt
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
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and deliver the Debt Securities so authenticated with the same effect as if
such successor Trustee had itself authenticated such Debt Securities.
SECTION 7.13. Preferential Collection of Claims Against the Company.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act,
excluding any creditor relationship described in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent included therein.
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ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
SECTION 8.01. Evidence of Action by Securityholders. Whenever in this
Indenture it is provided that the holders of a majority or specified percentage
in aggregate principal amount of the Debt Securities of a particular series may
take any action (including the making of any demand or request, the giving of
any notice, consent or waiver or the taking of any other action), the fact that
at the time of taking any such action the holders of such majority or specified
percentage of that series have joined therein may be evidenced by any
instrument or any number of instruments of similar tenor executed by such
holders of Debt Securities of that series in Person or by agent or proxy
appointed in writing.
If the Company shall solicit from the Securityholders of any series
any request, demand, authorization, direction, notice, consent, waiver or other
action, the Company may, at its option, as evidenced by an Officers'
Certificate, fix in advance a record date for such series for the determination
of Securityholders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other action, but the Company shall have
no obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action may be given
before or after the record date, but only the Securityholders of record at the
close of business on the record date shall be deemed to be Securityholders for
the purposes of determining whether Securityholders of the requisite proportion
of Outstanding Debt Securities of that series have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other action, and for that purpose the Outstanding Debt Securities of
that series shall be computed as of the record date; provided, however, that no
such authorization, agreement or consent by such Securityholders on the record
date shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record date.
SECTION 8.02. Proof of Execution by Securityholders. Subject to the
provisions of Section 7.01, proof of the execution of any instrument by a
Securityholder (such proof will not require notarization) or his agent or proxy
and proof of the holding by any Person of any of the Debt Securities shall be
sufficient if made in the following manner:
(a) The fact and date of the execution by any such Person of any
instrument may be proved in any reasonable manner acceptable to the
Trustee.
(b) The ownership of Debt Securities shall be proved by the Security
Register of such Debt Securities or by a certificate of the Security
Registrar thereof.
(c) The Trustee may require such additional proof of any matter
referred to in this Section as it shall deem necessary.
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SECTION 8.03. Who May be Deemed Owners. Prior to the due presentment
for registration of transfer of any Debt Security, the Company, the Trustee,
any paying agent and any Security Registrar may deem and treat the Person in
whose name such Debt Security shall be registered upon the books of the Company
as the absolute owner of such Debt Security (whether or not such Debt Security
shall be overdue and notwithstanding any notice of ownership or writing thereon
made by anyone other than the Security Registrar) for the purpose of receiving
payment of or on account of the principal of, premium, if any, and (subject to
Section 2.03) interest on such Debt Security and for all other purposes; and
neither the Company nor the Trustee nor any paying agent nor any Security
Registrar shall be affected by any notice to the contrary.
SECTION 8.04. Certain Debt Securities Owned by Company Disregarded. In
determining whether the holders of the requisite aggregate principal amount of
Debt Securities of a particular series have concurred in any direction, consent
waiver under this Indenture, the Debt Securities of that series that are owned,
directly or indirectly, by the Company or any other obligor on the Debt
Securities of that series or by any Person directly or indirectly controlling
or controlled by or under common control with the Company or any other obligor
on the Debt Securities of that series shall be disregarded and deemed not to be
outstanding for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on any
such direction, consent or waiver, only Debt Securities of such series that the
Trustee actually knows are so owned shall be so disregarded. The Debt
Securities so owned that have been pledged in good faith may be regarded as
outstanding for the purposes of this Section, if the pledgee shall establish to
the satisfaction of the Trustee the pledgee's right so to act with respect to
such Debt Securities and that the pledgee is not a Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or any such other obligor. In case of a dispute as to
such right, any decision by the Trustee taken upon the advice of counsel shall
be full protection to the Trustee.
SECTION 8.05. Actions Binding on Future Securityholders. At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section
8.01, of the taking of any action by the holders of a majority or specified
percentage in aggregate principal amount of the Debt Securities of a
particular series in connection with such action, any holder of a Debt
Security of that series that is shown by the evidence to be included in the
Debt Securities the holders of which have consented to such action may, by
filing written notice with the Trustee, and upon proof of holding as provided
in Section 8.02, revoke such action so far as concerns such Debt Security.
Except as aforesaid, any such action taken by the holder of any Debt Security
shall be conclusive and binding upon such holder and upon all future holders
and owners of such Debt Security, and of any Debt Security issued in exchange
therefor, on registration of transfer thereof or in place thereof,
irrespective of whether or not any notation in regard thereto is made upon
such Debt Security. Any action taken by the holders of a majority or specified
percentage in aggregate principal amount of the Debt Securities of a particular
45
series in connection with such action shall be conclusively binding upon the
Company, the Trustee and the holders of all the Debt Securities of that series.
46
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without the Consent of
Securityholders. In addition to any supplemental indenture otherwise authorized
by this Indenture, the Company and the Trustee may from time to time and at any
time enter into an indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act as then in effect),
without the consent of the Securityholders, for one or more of the following
purposes:
(a) to cure any ambiguity, defect or inconsistency herein or in the
Debt Securities of any series;
(b) to comply with Section 10.01 and Section 10.03;
(c) to provide for uncertificated Debt Securities in addition to or in
place of certificated Debt Securities;
(d) to add to the covenants of the Company for the benefit of the
holders of all or any series of Debt Securities (and if such covenants are
to be for the benefit of less than all series of Debt Securities, stating
that such covenants are expressly being included solely for the benefit of
such series) or to surrender any right or power herein conferred upon the
Company;
(e) to add to, delete from, or revise the conditions, limitations and
restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of Debt Securities, as herein set forth;
(f) to make any change that does not adversely affect the rights of
any Securityholder in any material respect; or
(g) to provide for the issuance of and establish the form and terms
and conditions of the Debt Securities of any series as provided in Section
2.01, to establish the form of any certifications required to be furnished
pursuant to the terms of this Indenture or any series of Debt Securities,
or to add to the rights of the holders of any series of Debt Securities.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, and to make any further
appropriate agreements and stipulations that may be therein contained, but the
Trustee shall not be obligated to enter into any such supplemental indenture
that affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed by the Company and the Trustee without the consent
of the holders of
47
any of the Debt Securities at the time Outstanding notwithstanding
any of the provisions of Section 9.02.
SECTION 9.02. Supplemental Indentures with Consent of Securityholders.
With the consent (evidenced as provided in Section 8.01) of the holders of not
less than a majority in aggregate principal amount of the Debt Securities of
each series affected by such supplemental indenture or indentures at the time
Outstanding, the Company, when authorized by a Board Resolution, and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as then in effect) for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any manner not
covered by Section 9.01 the rights of the holders of the Debt Securities of
such series under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the holders of each Debt Security then
Outstanding and affected thereby, (i) extend the fixed maturity of any Debt
Securities of any series, or reduce the principal amount thereof, or reduce the
rate or extend the time of payment of interest thereon, or reduce any premium
payable upon the redemption thereof, without the consent of the holder of each
Debt Security so affected or (ii) reduce the aforesaid percentage of Debt
Securities, the holders of which are required to consent to any such
supplemental indenture.
It shall not be necessary for the consent of the Securityholders of
any series affected thereby under this Section to approve the particular form
of any proposed supplemental indenture, but it shall be sufficient if such
consent shall approve the substance thereof.
SECTION 9.03. Effect of Supplemental Indentures. Upon the execution of
any supplemental indenture pursuant to the provisions of this Article or of
Section 10.01, this Indenture shall, with respect to such series, be and be
deemed to be modified and amended in accordance therewith and the respective
rights, limitations of rights, obligations, duties and immunities under this
Indenture of the Trustee, the Company and the holders of Debt Securities of the
series affected thereby shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and all
the terms and conditions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this Indenture for any and all
purposes.
SECTION 9.04. Debt Securities Affected by Supplemental Indentures.
Debt Securities of any series affected by a supplemental indenture,
authenticated and delivered after the execution of such supplemental indenture
pursuant to the provisions of this Article or of Section 10.01, may bear a
notation in form approved by the Company, provided such form meets the
requirements of any exchange upon which such series may be listed, as to any
matter provided for in such supplemental indenture. If the Company shall so
determine, new Debt Securities of that series so modified as to conform, in the
48
opinion of the Board of Directors of the Company, to any modification of this
Indenture contained in any, such supplemental indenture may be prepared by the
Company, authenticated by the Trustee and delivered in exchange for the Debt
Securities of that series then outstanding.
SECTION 9.05. Execution of Supplemental Indentures. Upon the request
of the Company, accompanied by a Board Resolution authorizing the execution of
any such supplemental indenture, and upon the filing with the Trustee of
evidence of the consent of Securityholders required to consent thereto as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion but shall not be obligated to enter into
such supplemental indenture. The Trustee, subject to the provisions of Section
7.01, shall receive, in addition to the documents required by Section 13.07, an
Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article is authorized or permitted by, and conforms
to, the terms of this Article and that it is proper for the Trustee under the
provisions of this Article to join in the execution thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall transmit by mail, first class postage prepaid, a notice, setting forth in
general terms the substance of such supplemental indenture, to the
Securityholders of all series affected thereby as their names and addresses
appear upon the Security Register. Any failure of the Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
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ARTICLE X
SUCCESSOR CORPORATION
SECTION 10.01. Company may Consolidate, Reincorporate, Etc. on Certain
Conditions. The Company shall not, directly or indirectly, consolidate with or
merge into, or sell, lease or convey all or substantially all of its assets to,
or reincorporate or otherwise reorganize as, another entity, whether in a
single transaction or a series of related transactions, unless:
(i) the successor or transferee entity is a corporation duly organized
and existing under the laws of its jurisdiction of incorporation;
(ii) the successor or transferee corporation shall expressly assume,
by an indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, the due and punctual payment of the principal
of and any premium and interest on all the Debt Securities and the performance
or observance of every covenant and obligation of this Indenture on the part of
the Company to be performed or observed;
(iii) the Company or the successor corporation, as the case may be,
will not, immediately after giving effect to such transaction, be in default in
the performance of any covenant or condition hereunder;
(iv) if any series of Debt Securities, of which any Debt Securities
are then Outstanding, has been issued to a Capital Trust, such consolidation,
merger, sale, lease, conveyance, or reincorporation or reorganization is
permitted under the Declaration of such Capital Trust, and Preferred Securities
Guarantee with respect to the Preferred Securities issued thereby, and does not
give rise to any breach or violation of such Declaration or Preferred
Securities Guarantee; and
(v) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger, sale,
lease, conveyance, or reincorporation or reorganization and, if a supplemental
indenture is required in connection with such transaction, such supplemental
indenture comply with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
SECTION 10.02. Successor Corporation Substituted. Upon any
consolidation of the Company with, merger of the Company into, or
reincorporation or other reorganization of the Company as, any other Person or
any conveyance, transfer or lease of the properties and assets of the Company
substantially as an entirety in accordance with Section 10.01, the successor
Person formed by such consolidation, into which the Company is merged or
reincorporated or reorganized, or to which such conveyance, transfer or lease
is made shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and thereafter,
50
except in the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Debt Securities.
SECTION 10.03. Obligations in the Event of Non-U.S. Merger. (a) If,
upon or after the occurrence of a "Non-U.S. Merger," the Company or any Capital
Trust is required to withhold, or any holder of Debt Securities or Trust
Securities is required to pay, any present or future amount in respect of
taxes, duties, assessments or other governmental charges on any payment made in
respect of principal of or interest or premium on that holder's Debt Securities
or Trust Securities by any taxing authority that would not have been withheld
or imposed on that payment had the Non-U.S. Merger not occurred, the Company
will pay to that holder an amount (the "Gross-Up Payment") equal to all
additional amounts that may be necessary so that every net payment of
principal, interest and premium to the holder will not be less than the amount
provided for in the Debt Securities or Preferred Securities. The term "net
payment" means the amount the Company will pay to the holder after the
Company's or that holder's payment, deduction or withholding an amount for or
on account of any present or future taxes, duties, assessments or other
governmental charges imposed with respect to that payment by any taxing
authority that would not have been imposed if the Non-U.S. Merger had not
occurred. For purposes of determining the amount of the Gross-Up Payment, to
the extent that any withholding or imposition of any tax, duty, assessment or
other governmental charge is assessed on different taxpayers at different
rates, the rate applicable to each holder of Debt Securities or Preferred
Securities will be the highest marginal rate for the period in which the
Gross-Up Payment is to be made.
Any reference in the Indenture, or the Debt Securities to principal,
interest, premium or any other amount payable in respect of the Debt Securities
also refers to any Gross-Up Payment payable with respect thereto pursuant to
this Section 10.03.
(b) In the event of the occurrence of a Non-U.S. Merger, the successor
Company will enter into an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, pursuant to
which the successor Company will:
(i) irrevocably submit to the non-exclusive jurisdiction of any New
York State or Federal court sitting in The City of New York over any suit,
action or proceeding arising out of or relating to this Indenture or any Debt
Security;
(ii) waive, to the fullest extent permitted by law, any objection
which it may have to the laying of the venue of any such suit, action or
proceeding brought in such a court and any claim that any such suit, action or
proceeding brought in such court has been brought in any inconvenient forum;
(iii) agree that final judgment in any such suit, action or
proceeding brought in such a court shall be conclusive and binding upon the
successor Company and may be enforced in the courts of the jurisdiction of
which the successor Company is subject by a suit upon such judgment, provided
that service of process is effected upon
51
the successor Company in the manner specified in the following paragraph or as
otherwise permitted by law; provided, however, that such covenant will not
constitute a waiver of any right to appeal any such judgment, to seek any stay
or otherwise to seek reconsideration or review of any such judgment or any
stay of execution or levy pending an appeal from, or a suit, action or
proceeding for reconsideration or review of, any such judgment;
(iv) covenant that, as long as any of the Debt Securities remain
Outstanding, it will at all times have an authorized agent in the Borough of
Manhattan, The City of New York upon whom process may be served in any legal
action or proceeding arising out of or relating to the Indenture or any Debt
Security on which service of process shall to the extent permitted by law be
deemed in every respect effective service of process upon the Company in any
such legal action or proceeding (which authorized agent may be CT Corporation
System or its successor); and
(v) consent to process being served in any suit, action or proceeding
of the nature referred to in the preceding clauses by service upon its
designated agent.
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ARTICLE XI
SATISFACTION, DEFEASANCE AND DISCHARGE
SECTION 11.01. Satisfaction and Discharge. If at any time: (a) the
Company shall have delivered to the Trustee for cancellation all Debt
Securities of a series theretofore authenticated (other than any Debt
Securities that shall have been destroyed, lost or stolen and that shall have
been replaced or paid as provided in Section 2.07) and Debt Securities for
whose payment money or Governmental Obligations have theretofore been deposited
in trust or segregated and held in trust by the Company (and thereupon repaid
to the Company or discharged from such trust, as provided in Section 11.06); or
(b) all such Debt Securities of a particular series not theretofore delivered
to the Trustee for cancellation shall have become due and payable, or are by
their terms to become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption, and the Company shall deposit or cause to
be deposited with the Trustee as trust funds the entire amount in moneys or
Governmental Obligations or a combination thereof, sufficient in the opinion of
a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay at maturity or
upon redemption all Debt Securities of that series not theretofore delivered to
the Trustee for cancellation, including principal (and premium, if any) and
interest due or to become due to such date of maturity or date fixed for
redemption, as the case may be, and if the Company shall also pay or cause to
be paid all other sums payable hereunder with respect to such series by the
Company, then if the Company has delivered to the Trustee an Opinion of Counsel
based on the fact that (x) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (y) since the date
hereof, there has been a change in the applicable United States federal income
tax law, in either case to the effect that, and such opinion shall confirm
that, the holders of the Debt Securities of such series will not recognize
income, gain or loss for United States federal income tax purposes as a result
of such deposit, defeasance and discharge and will be subject to United States
federal income tax on the same amount and in the same manner and at the same
times, as would have been the case if such deposit, defeasance and discharge
had not occurred, this Indenture shall thereupon cease to be of further effect
with respect to such series except for the provisions of Sections 2.03, 2.05,
2.07, 4.01, 4.02, 4.03 and 7.10, that shall survive until the date of maturity
or redemption date, as the case may be, and Sections 7.06 and 11.06, that shall
survive to such date and thereafter, and the Trustee, on demand of the Company
and at the cost and expense of the Company shall execute, upon receipt by the
Trustee from the Company of an Officers' Certificate and an Opinion of Counsel
stating that all conditions precedent specified herein relating to the
satisfaction and discharge of this Indenture with respect to such series have
been complied with, proper instruments acknowledging satisfaction of and
discharging this Indenture with respect to such series.
SECTION 11.02. Defeasance and Discharge. If at any time all Debt
Securities of a particular series not heretofore delivered to the Trustee for
cancellation or that have not become due and payable as described in Section
11.01 shall have been paid
53
by the Company by depositing irrevocably with the Trustee as trust funds moneys
or an amount of Governmental Obligations sufficient to pay at maturity or upon
redemption all such Debt Securities of that series not theretofore delivered to
the Trustee for cancellation, including principal (and premium, if any) and
interest due or to become due to such date of maturity or date fixed for
redemption, as the case may be, and if the Company shall also pay or cause to
be paid all other sums payable hereunder by the Company with respect to such
series, then, after the date such moneys or Governmental Obligations, as the
case may be, are deposited with the Trustee, if the Company has delivered to
the Trustee an Opinion of Counsel based on the fact that (x) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling or (y) since the date hereof, there has been a change in the applicable
United States federal income tax law, in either case to the effect that, and
such opinion shall confirm that, the holders of the Debt Securities of such
series will not recognize income, gain or loss for United States federal income
tax purposes as a result of such deposit, defeasance and discharge and will be
subject to United States federal income tax on the same amount and in the same
manner and at the same times, as would have been the case if such deposit,
defeasance and discharge had not occurred, at the option of the Company,
(A) the obligations of the Company under this Indenture with
respect to such series shall cease to be of further effect, except for
the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03, 7.06,
7.10 and 11.06 hereof that shall survive until such Debt Securities
shall mature and be paid; and
(B) if the Debt Securities or series of such Debt Securities
are subordinated to any other obligations of the Company as
contemplated by Section 14.01, provisions with respect to the
subordination of such Debt Securities shall cease to be of further
effect.
Thereafter, notwithstanding the foregoing, Sections 7.06 and 11.06
shall survive. The Company shall deliver to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the discharge of obligations have been complied with.
SECTION 11.03. Covenant Defeasance. If (i) at any time all Debt
Securities of a particular series not heretofore delivered to the Trustee for
cancellation or that have not become due and payable as described in Section
11.01 shall have been paid by the Company by depositing irrevocably with the
Trustee as trust funds moneys or an amount of Governmental Obligations
sufficient to pay at maturity or upon redemption all such Debt Securities of
that series not theretofore delivered to the Trustee for cancellation,
including principal (and premium, if any) and interest due or to become due
to such date of maturity or date fixed for redemption, as the case may be,
(ii) the Company shall also pay or cause to be paid all other sums payable
hereunder by the Company with respect to such series, and (iii) the Company
shall not have exercised its option pursuant to Section 11.02, then, after
the date such moneys or Governmental Obligations, as the case may be, are
deposited with the Trustee, if the Company has
54
delivered to the Trustee an Opinion of Counsel confirming that the holders of
the Debt Securities of such series will not recognize income, gain or loss for
United States federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to United States federal income
tax on the same amount and in the same manner and at the same times, as would
have been the case if such deposit, defeasance and discharge had not occurred,
at the option of the Company, (1) the Company shall be released from its
obligations under any covenants provided pursuant to Section 9.01(d) or 9.01(g)
for the benefit of the holders of such Debt Securities and (2) the occurrence
of any event specified in Section 6.01(7) with respect to any such covenants
provided pursuant to Section 9.01(d) or 9.01(g) shall be deemed not to be or
result in an Event of Default. The Company shall deliver to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the exercise of such option have been complied with.
SECTION 11.04. Deposited Moneys to be Held in Trust. All moneys or
Governmental Obligations deposited with the Trustee pursuant to Section 11.01,
11.02 or 11.03 shall be held in trust and shall be available for payment as
due, either directly or through any paying agent (including the Company acting
as its own paying agent), to the holders of the particular series of Debt
Securities for the payment or redemption of which such moneys or Governmental
Obligations have been deposited with the Trustee.
SECTION 11.05. Payment of Moneys Held by Paying Agents. In connection
with the satisfaction and discharge of this Indenture, all moneys or
Governmental Obligations then held by any paying agent under the provisions of
this Indenture shall, upon demand of the Company, be paid to the Trustee and
thereupon such paying agent shall be released from all further liability with
respect to such moneys or Governmental Obligations.
SECTION 11.06. Repayment to Company. Any moneys or Governmental
Obligations deposited with any paying agent or the Trustee, or then held by the
Company, in trust for payment of principal of or premium or interest on the
Debt Securities of a particular series that are not applied but remain
unclaimed by the holders of such Debt Securities for at least two years after
the date upon which the principal of (and premium, if any) or interest on such
Debt Securities shall have respectively become due and payable, shall be repaid
to the Company on November 30 of each year or (if then held by the Company)
shall be discharged from such trust; and thereupon the paying agent and the
Trustee shall be released from all further liability with respect to such
moneys or Governmental Obligations, and the holder of any of the Debt
Securities entitled to receive such payment shall thereafter, as an unsecured
general creditor, look only to the Company for the payment thereof.
SECTION 11.07. Reinstatement. If the Trustee or any paying agent is
unable to apply any money in accordance with Section 11.01, 11.02 or 11.03 by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the
55
Company's obligations under this Indenture and the holders of Debt Securities
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 3.01 until such time as the Trustee or such Paying Agent is permitted
to apply all such money in accordance with Section 11.01, 11.02 or 11.03.
56
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. No Recourse. No recourse under or upon any obligation,
covenant or agreement of this Indenture, or of any Debt Security, or for any
claim based thereon or otherwise in respect thereof, shall be had against any
incorporator, stockholder, officer or director, past, present or future as
such, of the Company or of any predecessor or successor corporation, either
directly or through the Company or any such predecessor or successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that this Indenture and the obligations issued hereunder
are solely corporate obligations, and that no such personal liability whatever
shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors as such, of the Company or of any
predecessor or successor corporation, or any of them, because of the creation
of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Debt Securities or implied therefrom; and that any and all such personal
liability of every name and nature, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against,
every such incorporator, stockholder, officer or director as such, because of
the creation of the indebtedness hereby authorized, or under or by reason of
the obligations, covenants or agreements contained in this Indenture or in any
of the Debt Securities or implied therefrom, are hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issuance of such Debt Securities.
57
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. Effect on Successors and Assigns. All the covenants,
stipulations, promises and agreements in this Indenture contained by or on
behalf of the Company shall bind successors and assigns, whether so expressed
or not.
SECTION 13.02. Actions by Successor. Any act or proceeding by any
provision of this Indenture authorized or required to be done or performed by
any board, committee or officer of the Company shall and may be done and
performed with like force and effect by the corresponding board, committee or
officer of any corporation that shall at the time be the lawful successor of
the Company.
SECTION 13.03. Surrender of Company Powers. The Company by instrument
in writing executed by authority of 2/3 (two-thirds) of its Board of Directors
and delivered to the Trustee may surrender any of the powers reserved to the
Company, and thereupon such power so surrendered shall terminate both as to the
Company and as to any successor corporation.
SECTION 13.04. Notices. Except as otherwise expressly provided herein,
any notice or demand that by any provision of this Indenture is required or
permitted to be given or served by the Trustee or by the holders of Debt
Securities to or on the Company may be given or served by being deposited first
class postage prepaid in a post-office letterbox addressed (until another
address is filed in writing by the Company with the Trustee), as follows: The
Stanley Works, 1000 Stanley Drive, New Britain Connecticut 06053, Attention:
Treasurer and Corporate Secretary. Any notice, election, request or demand by
the Company or any Securityholder to or upon the Trustee shall be deemed to
have been sufficiently given or made, for all purposes, if given or made in
writing at the Corporate Trust Office of the Trustee.
SECTION 13.05. Governing Law. This Indenture and each Debt Security
shall be deemed to be a contract made under the internal laws of the State of
New York, and for all purposes shall be construed in accordance with the laws
of said State.
SECTION 13.06. Treatment of the Debt Securities as Debt. It is
intended that the Debt Securities will be treated as indebtedness and not as
equity for federal income tax purposes. The provisions of this Indenture shall
be interpreted to further this intention.
SECTION 13.07. Compliance Certificates and Opinions. (a) Upon any
application or demand by the Company to the Trustee to take any action under
any of the provisions of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent 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 have been complied with, except that in the case of any
such application or demand as to which the furnishing of
58
such documents is specifically required by any provision of this Indenture
relating to such particular application or demand, no additional certificate or
opinion need be furnished.
(b) Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant in this Indenture shall include (1) a statement that the Person making
such certificate or opinion has read such covenant or condition; (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 such Person, 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 or not, in the opinion of such
Person, such condition or covenant has been complied with.
SECTION 13.08. Payments on Business Days. Except as provided pursuant
to Section 2.01 pursuant to a Board Resolution, and as set forth in an
Officers' Certificate, or established in one or more indentures supplemental to
this Indenture, in any case where the date of maturity of interest or principal
of any Debt Security or the date of redemption of any Debt Security shall not
be a Business Day, then payment of interest or principal (and premium, if any)
may be made on the next succeeding Business Day with the same force and effect
as if made on the nominal date of maturity or redemption, and no interest shall
accrue for the period after such nominal date.
SECTION 13.09. Conflict with Trust Indenture Act. If and to the extent
that any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act,
such imposed duties shall control.
SECTION 13.10. Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
SECTION 13.11. Separability. In case any one or more of the provisions
contained in this Indenture or in the Debt Securities of any series shall for
any reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other
provisions of this Indenture or of such Debt Securities, but this Indenture and
such Debt Securities shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
SECTION 13.12. Assignment. The Company will have the right at all
times to assign any of its respective rights or obligations under this
Indenture to a direct or indirect wholly-owned Subsidiary of the Company,
provided that, in the event of any such assignment, the Company will remain
liable for all such obligations. Subject to the foregoing, the Indenture is
binding upon and inures to the benefit of the parties thereto
59
and their respective successors and assigns. This Indenture may not otherwise
be assigned by the parties thereto.
SECTION 13.13. Acknowledgment of Rights. The Company acknowledges
that, with respect to any Debt Securities held by a Capital Trust or a trustee
of such trust, if the Property Trustee of such Trust fails to enforce its
rights under this Indenture as the holder of the series of Debt Securities held
as the assets of such Capital Trust, any holder of Preferred Securities may
institute legal proceedings directly against the Company to enforce such
Property Trustee's rights under this Indenture without first instituting any
legal proceedings against such Property Trustee or any other person or entity.
60
ARTICLE XIV
SUBORDINATION OF DEBT SECURITIES
SECTION 14.01. Subordination Terms. The payment by the Company of the
principal of, premium, if any, and interest on any series of Debt Securities
issued hereunder shall be subordinated to the extent set forth in an indenture
supplemental hereto relating to such Debt Securities.
61
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed and attested, all as of the day and year first above written.
THE STANLEY WORKS
By: /s/ Craig A. Douglas
-------------------------------
Name: Craig A. Douglas
Title: Vice President and
Treasurer
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HSBC BANK USA, NATIONAL ASSOCIATION,
as Trustee
By: /s/ Frank J. Godino
-------------------------------
Name: Frank J. Godino
Title: Vice President
/s/ Gloria Alli
-------------------------------
Gloria Alli
Assistant Vice President
|
62
Exhibit 4.6
FIRST SUPPLEMENTAL INDENTURE
Dated as of November 22, 2005
Between
THE STANLEY WORKS
and
HSBC BANK USA, NATIONAL ASSOCIATION,
Trustee
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
Section 1.1 Definition of Terms....................................................................2
Section 1.2 Interpretation........................................................................15
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE NOTES
Section 2.1 Designation and Principal Amount......................................................16
Section 2.2 Maturity..............................................................................16
Section 2.3 Form and Payment......................................................................16
Section 2.4 Global Debt Security..................................................................16
Section 2.5 Interest..............................................................................17
ARTICLE III
REDEMPTION OF THE NOTES
Section 3.1 Optional Redemption...................................................................20
Section 3.2 Special Event Redemption..............................................................20
Section 3.3 Certain Redemption Procedures.........................................................21
Section 3.4 No Sinking Fund.......................................................................21
ARTICLE IV
OPTIONAL AND MANDATORY DEFERRAL OF INTEREST
Section 4.1 Optional Interest Deferral............................................................22
Section 4.2 Mandatory Interest Deferral...........................................................22
Section 4.3 Notice of Deferrals...................................................................23
ARTICLE V
CERTAIN COVENANTS
Section 5.1 Limitation on Payment of Current Interest when Deferred Interest is Outstanding.......25
-i-
|
Section 5.2 Limitation on Source of Payment of Deferred Interest..................................25
Section 5.3 Covenants not to be Construed to Limit Claims.........................................25
Section 5.4 Obligation to Effect Certain Common Stock Sales.......................................25
Section 5.5 Application of Payments to Deferred Interest..........................................26
Section 5.6 Payment of Expenses...................................................................26
Section 5.7 Payment upon Resignation or Removal...................................................27
Section 5.8 Certain Amendments, Modifications and Waivers.........................................27
ARTICLE VI
SUBORDINATION
Section 6.1 Agreement to Subordinate..............................................................28
Section 6.2 Default on Senior Indebtedness........................................................28
Section 6.3 Liquidation; Dissolution; Bankruptcy..................................................28
Section 6.4 Subrogation...........................................................................30
Section 6.5 Trustee to Effectuate Subordination...................................................31
Section 6.6 Notice by the Company.................................................................31
Section 6.7 Rights of the Trustee; Holders of Senior Indebtedness.................................32
Section 6.8 Subordination May Not Be Impaired.....................................................32
Section 6.9 No Right to Rely on Other Covenants...................................................33
ARTICLE VII
FORM OF NOTE
Section 7.1 Form of Debt Security.................................................................34
ARTICLE VIII
ORIGINAL ISSUE OF NOTES
Section 8.1 Original Issue of Debt Securities.....................................................43
ARTICLE IX 44
Section 9.1 Limitation on Claim for Certain Deferred Interest in Bankruptcy.......................44
ARTICLE X
APPLICABILITY OF DEFEASANCE AND COVENANT DEFESANCE
Section 10.1 Applicability of Defeasance and Covenant Defeasance...................................45
-ii-
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ARTICLE XI
MISCELLANEOUS
Section 11.1 Ratification of Indenture.............................................................46
Section 11.2 Trustee Not Responsible for Recitals..................................................46
Section 11.3 Governing Law.........................................................................46
Section 11.4 Separability..........................................................................46
Section 11.5 Counterparts..........................................................................46
|
-iii-
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of November 22, 2005
(this "Supplemental Indenture"), is between The Stanley Works, a Connecticut
corporation (the "Company"), and HSBC Bank USA, National Association, not in
its individual capacity but solely as trustee (the "Trustee") under the
Indenture, dated as of November 22, 2005, between the Company and the Trustee
(the "Indenture").
W I T N E S S E T H:
WHEREAS, the Company executed and delivered the Indenture to the
Trustee to provide for the future issuance of the Company's unsecured junior
subordinated debt securities, to be issued from time to time in one or more
series as might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered
as provided in the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company desires
to provide for the establishment of a new series of its Debt Securities under
the Indenture to be known as its 5.902% Fixed Rate/Floating Rate Junior
Subordinated Debt Securities due 2045 (the "Debt Securities"), the form and
substance of such Debt Securities and the terms, provisions and conditions
thereof to be set forth as provided in the Indenture and this Supplemental
Indenture;
WHEREAS, The Stanley Works Capital Trust I, a Delaware statutory
trust (the "Trust"), has offered to the public $450,000,000 aggregate stated
liquidation amount of its 5.902% Fixed Rate/Floating Rate Enhanced Trust
Preferred Securities (the "Preferred Securities") and has offered to the
Company $100,000 aggregate stated liquidation amount of its trust common
securities (the "Common Securities"), such Preferred Securities and Common
Securities representing undivided beneficial interests in the assets of the
Trust, and proposes to invest the proceeds from such offerings in $450,100,000
aggregate principal amount of the Debt Securities; and
WHEREAS, the Company has requested that the Trustee execute and
deliver this Supplemental Indenture, and all requirements necessary to make
this Supplemental Indenture a valid instrument, in accordance with its terms,
and to make the Debt Securities, when executed by the Company and authenticated
and delivered by the Trustee, the valid obligations of the Company, have been
performed, and the execution and delivery of this Supplemental Indenture has
been duly authorized in all respects.
NOW, THEREFORE, in consideration of the purchase and acceptance of
the Debt Securities by the holders thereof, and for the purpose of setting
forth, as provided in the Indenture, the form and substance of the Debt
Securities and the terms, provisions and conditions thereof, the Company
covenants and agrees with the Trustee as follows:
-1-
ARTICLE I
DEFINITIONS
Section 1.1 Definition of Terms. Unless the context otherwise
requires:
(a) a term defined in the Indenture has the same meaning when used in
this Supplemental Indenture,
(b) a term defined anywhere in this Supplemental Indenture has the
same meaning throughout and
(c) the following terms have the meanings given to them in the
Declaration: (i) Clearing Agency; (ii) Delaware Trustee; (iii) Distributions;
(iv) Property Trustee; and (v) Administrative Trustees.
(d) the following terms have the meanings given to them in the
Registration Rights Agreement: (i) Registration Default; (ii) Registration
Default Damages; (iii) Registered Exchange Offer; and (iv) Shelf Registration
Statement.
(e) All financial terms used in this Supplemental Indenture will be
determined in accordance with GAAP as applied to and reflected in the Company's
consolidated financial statements as of the relevant dates or for the relevant
periods, except as expressly provided in the definitions of the terms set forth
herein.
In addition, the following terms have the following respective
meanings:
"Additional Interest" shall have the meaning set forth in Section
2.5(f).
"Bloomberg" means Bloomberg Financial Markets Commodities News, and
its successors.
"Business Day" means a day other than (i) a Saturday or Sunday; or
(ii) a day on which banks in Wilmington, Delaware or New York, New York are
authorized or obligated by law or executive order to remain closed.
"Calculation Agent" means HSBC Bank USA, National Association, or any
other unaffiliated firm appointed by the Company, acting as Calculation Agent
hereunder.
"Common Securities" shall have the meaning set forth in the recitals
of this Supplemental Indenture.
"Company" shall have the meaning set forth in the preamble of this
Supplemental Indenture.
-2-
"Comparable Treasury Issue" means with respect to any redemption
date, the United States Treasury security selected by the Quotation Agent as
having a maturity comparable to the Remaining Life of Fixed Rate Period that
would be utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities of
comparable maturity to the Remaining Life of Fixed Rate Period. If no United
States Treasury security has a maturity which is within a period from three
months before to three months after December 1, 2010, the two most closely
corresponding United States Treasury securities will be used as the Comparable
Treasury Issue, and the Treasury Rate will be interpolated or extrapolated on a
straight-line basis, rounding to the nearest month using such securities.
"Comparable Treasury Price" means with respect to any redemption
date, (i) the average of five Reference Treasury Dealer Quotations for the
redemption date, after excluding the highest and the lowest Reference Treasury
Dealer Quotations, or (ii) if the Quotation Agent obtains fewer than five
Reference Treasury Dealer Quotations, the average of all such quotations.
"Compounded Interest" shall mean Fixed Rate Compounded Interest and
Floating Rate Compounded Interest.
"Debt Securities" shall have the meaning set forth in the recitals of
this Supplemental Indenture.
"Declaration" means the Amended and Restated Declaration of Trust of
The Stanley Works Capital Trust I, a Delaware statutory trust, dated as of
November 22, 2005.
"Deferred Interest" shall mean Mandatory Deferred Interest and
Optional Deferred Interest.
"Depositary", with respect to the Debt Securities, means The
Depository Trust Company or any successor clearing agency for the Preferred
Securities.
"Designated CMT Maturity Index" means the original period to maturity
of the U.S. Treasury securities (10 years) with respect to which the 10-year
Treasury CMT will be calculated.
"Dissolution Event" means that, by election of the Company, the Trust
is to be dissolved in accordance with the Declaration, and the Debt Securities
held by the Property Trustee are to be distributed to the holders of the Trust
Securities issued by the Trust pro rata in accordance with the Declaration.
"Fifth Deferral Anniversary" has the meaning provided in Section
5.4(a).
"First Mandatory Deferral Anniversary" has the meaning provided in
Section 5.4(a).
-3-
"Fixed Rate" has the meaning provided in Section 2.5(a).
"Fixed Rate Compounded Interest" has the meaning set forth in Section
2.5(g).
"Fixed Rate Period" means, for any Debt Security, the period
commencing on the later of (i) November 22, 2005 and (ii) the initial date of
issuance of such Debt Security, to, but excluding, December 1, 2010.
"Floating Rate" has the meaning provided in Section 2.5(a).
"Floating Rate Compounded Interest" has the meaning set forth in
Section 2.5(g).
"Floating Rate Period" means the period commencing December 1, 2010.
"Foregone Deferred Interest" has the meaning provided in Section 9.1
hereof.
"GAAP" means, at any date or for any period, U.S. generally accepted
accounting principles, as in effect on such date or for such period.
"Indenture" shall have the meaning set forth in the preamble of this
Supplemental Indenture.
"Interest Accrual Period" means a Quarterly Interest Accrual Period
or a Semi-Annual Interest Accrual Period.
"Interest Payment Date" shall mean a Quarterly Interest Payment Date
during the Floating Rate Period and a Semi-Annual Interest Payment Date during
the Fixed Rate Period.
"Investment Company" means an investment company as defined in the
Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time, or any successor legislation.
"Investment Company Event" means that the Company and the Trust shall
have received an opinion of counsel experienced in practice under the
Investment Company Act to the effect that, as a result of the occurrence of an
amendment to, or change (including any announced proposed change) in, the laws
or regulations of the United States or any political subdivision thereof or
therein or any other governmental agency or regulatory authority (a "Change in
1940 Act Law"), there is more than an insubstantial risk that the Trust is or
will be considered an Investment Company which is required to be registered
under the Investment Company Act, which Change in 1940 Act Law becomes
effective on or after November 15, 2005.
-4-
"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 Price" has the meaning provided in Section
3.1(i).
"Mandatory Deferral" has the meaning provided in Section 4.2.
"Mandatory Deferral Period" has the meaning provided in Section 4.2.
A "Mandatory Deferral Trigger Event" shall have occurred on a Trigger
Determination Date if, on such Trigger Determination Date:
(i) the Company's Retained Cash Flow to Total Debt Ratio was less
than 15% as of the end of its most recently completed fiscal quarter for which
the Company has publicly reported its financial statements under the Exchange
Act; or
(ii) the Company's Retained Cash Flow to Total Debt Ratio was less
than 20%, (x) as of the end of its fiscal quarter that is three quarters before
the most recently completed fiscal quarter for which the Company has publicly
reported its financial statements under the Exchange Act, and (y) as of the end
of its most recently completed fiscal quarter for which the Company has
publicly reported its financial statements under the Exchange Act.
For purposes of calculating the Company's Retained Cash Flow to Total
Debt Ratio as of any Trigger Determination Date subsequent to a Trigger
Determination Date on which a Mandatory Deferral Trigger Event has occurred and
with respect to which Mandatory Deferral of interest on the Debt Securities has
occurred and is continuing (but not in other circumstances), pro forma effect
will be given to (i) the intended payment of interest on the Debt Securities on
the first Interest Payment Date to occur after such Trigger Determination Date,
but only to the extent that such payment is attributable to interest initially
accruing during the Semi-Annual Interest Accrual Period or Quarterly Interest
Accrual Period corresponding to such Interest Payment Date, and (ii) the
payment of any dividends reasonably expected to be paid by the Company on its
capital stock during the fiscal quarter immediately succeeding the fiscal
quarter during which such Interest Payment Date occurs. For the avoidance of
doubt, the pro forma additions of interest and dividend payments pursuant to
this paragraph are intended to add a single interest payment in respect of a
Semi-Annual Interest Accrual Period or Quarterly Interest Accrual Period, as
applicable, and a single quarterly dividend payment over the course of the
twelve-month measuring periods tested for purposes of the calculations made
under this definition.
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"Mandatory Deferred Interest" has the meaning provided in Section
4.2.
"Market Disruption Event" means the occurrence or existence of any of
the following events or circumstances:
(i) 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 such shares of its common
stock and such consent or approval has not yet been
obtained notwithstanding the Company's commercially
reasonable efforts to obtain the required consent or
approval;
(ii) trading in securities generally on the New York Stock
Exchange, the American Stock Exchange, the Nasdaq stock
market or any other national securities, futures or options
exchange or in the over-the-counter market or trading in
any securities of the Company (or any options or futures
contract relating to securities of the Company) on any
exchange or in the over-the-counter market shall have been
suspended or the settlement of such trading generally shall
have been 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;
(iii) the United States shall have become engaged in hostilities,
there shall have been an escalation in hostilities
involving the United States, there shall have been a
declaration of a national emergency or war by the United
States or there shall have occurred any other substantial,
national or international calamity or crisis such that
trading in securities generally or trading in any
securities of the Company has been disrupted or suspended;
(iv) an event occurs and is continuing as a result of which the
offering document for such offer and sale of securities
would, in the judgment of the Company, contain an untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading and either (1) the
disclosure of that event at such time, in the judgment of
the Company, would have a material adverse effect on the
Company's business or (2) the disclosure relates to a
previously undisclosed proposed or pending material
development or 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 such transaction, provided that no
single suspension period contemplated by this paragraph
(iv) may exceed 90 consecutive days and multiple
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suspension periods contemplated by this paragraph (iv) may
not exceed an aggregate of 180 days in any 360-day period;
(v) the Company reasonably believes that the offering document
for such offer and sale of securities would not be in
compliance with a rule or regulation of the Commission (for
reasons other than those referred to in paragraph (iv)
above) and the Company is unable to comply with such rule
or regulation or such compliance is impracticable, provided
that no single suspension contemplated by this paragraph
(v) may exceed 90 consecutive days and multiple suspension
periods contemplated by this paragraph (v) may not exceed
an aggregate of 180 days in any 360-day period;
(vi) general domestic or international economic, political or
financial conditions, including without limitation as a
result of terrorist activities, or the effect of
international conditions on the financial markets in the
United States, shall be such as to make it, in the judgment
of the Company, impracticable to proceed with the offer and
sale of the stock;
(vii) a material disruption shall have occurred in commercial
banking or securities settlement or clearing services in
the United States; or
(viii) a banking moratorium shall have been declared by federal or
state authorities of the United States.
"Maturity Date" means the date on which the Debt Securities mature
and on which the principal shall be due and payable together with all accrued
and unpaid interest thereon including Compounded Interest, Additional Interest,
Registration Default Damages and Gross-Up Payments, if any.
"MoneyLine Telerate Page" means the display on Moneyline Telerate,
Inc., or any successor service, on the page or pages specified in this
Supplemental Indenture or any replacement page or pages on that service.
"New Common Equity Amount" means, at any date, (i) the net cash
proceeds (after underwriters' or placement agents' fees, commissions or
discounts and other expenses relating to the issuances), and (ii) the fair
market value of property, other than cash, received by the Company from the
issuance or sale of shares of the Company's common stock, including treasury
shares, during the period commencing on the 90th day prior to such date if, in
the event that such sale of common stock occurred after the Company's notice of
an Optional Deferral or occurrence of a Mandatory Deferral Trigger Event, the
Board of Directors had, prior to the time of such sale, designated the proceeds
of such sale as available for the payment of deferred interest on the Debt
Securities.
"Non Book-Entry Preferred Securities" shall have the meaning set
forth in Section 2.4(b).
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"Optional Deferral" has the meaning provided in Section 4.1.
"Optional Deferral Period" has the meaning provided in Section 4.1.
"Optional Deferred Interest" has the meaning provided in Section 4.1.
"Optional Redemption Price" shall have the meaning set forth in
Section 3.1.
"Pari Debt Securities" means (i) any indebtedness of the Company, the
terms of which (x) permit deferral of interest for a period that is equal to or
exceeds ten years before the holders thereof may require the acceleration of
such indebtedness on account of such interest deferral, (y) limit the source of
funds for payment of deferred interest (other than in the event of repayment at
maturity or earlier redemption or acceleration) by reference to the proceeds of
equity sales and issuances and (z) provide that it ranks equally with the Debt
Securities; and (ii) guarantees by the Company of (x) such indebtedness
described in clause (i) and (y) guarantees of securities similar to the Trust
Securities of financing vehicles similar to the Trust to which such
indebtedness described in clause (i) has been issued.
"Preferred Securities" shall have the meaning set forth in the
recitals of this Supplemental Indenture.
"Preferred Security Certificate" means a certificate representing a
Preferred Security substantially in the form of Exhibit C to the Declaration.
"Purchase Agreement" means the Purchase Agreement, dated November 15,
2005, among the Company, the Trust and the Initial Purchasers of the Preferred
Securities therein named.
"Quarterly Interest Accrual Period" means each period commencing on a
Quarterly Interest Payment Date and continuing to but not including the next
succeeding Quarterly Interest Payment Date (except that the first Quarterly
Interest Accrual Period will commence on December 1, 2010).
"Quarterly Interest Payment Date" means each March 1, June 1,
September 1 and December 1 during the Floating Rate Period, commencing March 1,
2010; provided that if any such day is not Business Day, then the Quarterly
Interest Payment Date shall be the immediately succeeding Business Day.
"Quarterly Interest Rate Determination Date" means the second London
Banking Day immediately preceding the first day of the relevant Quarterly
Interest Accrual Period in the Floating Rate Period.
"Quotation Agent" means Citigroup Global Markets Inc. and its
successors; provided, however, that if the foregoing is no longer a primary
United States
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Government securities dealer in New York City (a "Primary Treasury Dealer"),
the Company will substitute another Primary Treasury Dealer in its place.
"Reference Treasury Dealer" means the Quotation Agent and any other
Primary Treasury Dealer selected by the Quotation Agent after consultation with
the Company.
"Reference Treasury Dealer Quotation" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined
by the Quotation Agent, of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount) quoted
in writing to the Quotation Agent by a Reference Treasury Dealer at 5:00 p.m.,
New York City time, on the third Business Day preceding the redemption date.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of November 22, 2005, among the Company, the Trust and the
Initial Purchasers of the Preferred Securities parties thereto.
"Remaining Life of Fixed Rate Period" means the period of time from
the redemption date to December 1, 2010.
"Retained Cash Flow" means net cash provided by operating activities,
excluding changes in current accounts and current notes receivable, inventory
and trade accounts payable, minus (i) cash dividends on common stock, if any,
and (ii) cash dividends on preferred stock, if any; provided, however, that if
because of a change in GAAP that results in a cumulative effect of a change in
accounting principle applicable to the Company's financial reporting or a
restatement of the Company's historical financial statements, the Company's
Retained Cash Flow is higher or lower than it would have been absent such
change, then, commencing with the fiscal quarter for which such changes in GAAP
become effective, Retained Cash Flow will be calculated on a pro forma basis as
if such change had not occurred.
"Retained Cash Flow to Total Debt Ratio" means, for any reference
fiscal quarter, a fraction expressed as a percentage, the numerator of which is
the Company's Retained Cash Flow for the four most recently completed fiscal
quarters ending with such reference fiscal quarter, and the denominator of
which is the Company's Total Debt as at the end of such reference fiscal
quarter.
"Securities Act" means the Securities Act of 1933, as amended.
"Semi-Annual Interest Accrual Period" means each period commencing on
a Semi-Annual Interest Payment Date and continuing to but not including the
next succeeding Semi-Annual Interest Payment Date (except that the first
Semi-Annual Interest Accrual Period will begin on November 22, 2005 and the
final Semi-Annual Interest Accrual Period will end on December 1, 2010).
-9-
"Semi-Annual Interest Payment Date" means each June 1 and December 1
during the Fixed Rate Period, commencing June 1, 2006; provided that if any
such day is not Business Day, then the Semi-Annual Interest Payment Date shall
be the immediately succeeding Business Day.
"Senior Indebtedness" means any payment in respect of (i)
indebtedness of the Company for money borrowed; (ii) indebtedness of the
Company evidenced by securities, bonds, notes or debentures, including junior
subordinated debt securities, issued under indentures or other similar
instruments other than the Indenture; (iii) all capital lease obligations of
the Company; (iv) all obligations of the Company issued or assumed as the
deferred purchase price of property, all of the Company's conditional sale
obligations and the Company's obligations under any title retention agreement
(but excluding trade accounts payable arising in the ordinary course of
business); (v) all of the obligations of the Company for reimbursement with
respect to any letter of credit, banker's acceptance, security purchase
facility or similar credit transaction; (vi) all obligations of the type
referred to in clauses (i) through (v) of other persons the payment of which
the Company is responsible or liable as obligor, guarantor or otherwise; and
(vii) all obligations of the type referred to in clauses (i) through (vi) of
another person secured by any lien on any property or assets of the Company
(whether or not that obligation has been assumed by the Company); provided,
however, that Senior Indebtedness shall not include: (i) Pari Debt Securities;
(ii) any such indebtedness in the form of trade accounts payable; and (iii) any
such indebtedness of the Company to any of its Subsidiaries.
"Special Event" means an Investment Company Event or a Tax Event.
"Special Redemption Price" shall have the meaning set forth in
Section 3.2.
"Supplemental Indenture" has the meaning provided in the preamble
hereto.
"Tax Event" means that the Company and the Trust shall have received
an opinion of a nationally recognized independent tax counsel experienced in
such matters to the effect that, as a result of (a) any amendment to, or change
(including any announced proposed change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein, or (b) any interpretation or application of, or
pronouncement with respect to, such laws or regulations by any legislative
body, court, governmental or administrative agency or body, or regulatory
authority (including the enactment of any legislation and the publication of
any judicial decision or regulatory or administrative determination), which
amendment or change is effective, or which interpretation, application or
pronouncement is issued or announced, on or after November 15, 2005, there is
more than an insubstantial risk that (i) the Trust is or will be subject to
United States federal income tax with respect to income or gain received,
accrued or realized on or with respect to the
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Debt Securities, (ii) interest payable to the Trust by the Company on the Debt
Securities is not, or will not be, deductible by the Company (or by a member of
the Company's "affiliated group," within the meaning of section 1504 of the
Internal Revenue Code of 1986, as amended, that files a consolidated federal
income tax return with the Company), in whole or in part, for United States
federal income tax purposes, or (iii) the Trust is or will be subject to more
than a de minimis amount of other taxes, duties or other governmental charges.
"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 (or any successor service) for the purpose of displaying London
interbank offered rates for U.S. dollar deposits).
"Telerate Page 7051" means the display on MoneyLine Telerate Page (or
any successor service), on such page (or any other page as may replace such
page on that service), for the purpose of displaying Treasury Constant
Maturities as reported in H.15(519).
"10-year Treasury CMT" means the rate determined in accordance with
the following provisions:
(1) With respect to any Quarterly Interest Rate Determination Date
and the Quarterly Interest Accrual Period that begins
immediately thereafter, the 10-year Treasury CMT means the rate
per annum for deposits for a 10-year period commencing on the
Quarterly Interest Rate Determination Date (displayed on the
Bloomberg interest rate page currently found on page "H15T10Y
Index") most nearly corresponding to Telerate Page 7051
containing the caption "Daily Treasury Constant Maturities from
STAT USA", and the column for the Designated CMT Maturity Index
and the row for the relevant Quarterly Interest Rate
Determination Date.
(2) If such rate is no longer displayed on the page described in (1)
above, or is not so displayed by 3:00 P.M., New York City time,
on the applicable Quarterly Interest Rate Determination Date,
then the 10-year Treasury CMT for such Quarterly Interest Rate
Determination Date will be such treasury constant maturity rate
for the Designated CMT Maturity Index as is published in
H.15(519).
(3) If such rate is no longer displayed on the page described in (2)
above, or if not published by 3:00 P.M., New York City time, on
the applicable Quarterly Interest Rate Determination Date, then
the 10-year Treasury CMT for such Quarterly Interest Rate
Determination Date will be such constant maturity treasury rate
for the Designated CMT Maturity Index (or other United States
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Treasury rate for the Designated CMT Maturity Index) for the
applicable Quarterly Interest Rate Determination Date as may
then be published by either the Board of Governors of the
Federal Reserve System or the United States Department of the
Treasury that the Calculation Agent determines to be comparable
to the rate formerly displayed on the Bloomberg interest rate
page most nearly corresponding to Telerate Page 7051 and
published in H.15(519).
(4) If the information described in (3) above is not provided by
3:00 P.M., New York City time, on the applicable Quarterly
Interest Rate Determination Date, then the 10-year Treasury CMT
for such Quarterly Interest Rate Determination Date will be
calculated by the Calculation Agent and will be a yield to
maturity, based on the arithmetic mean of the secondary market
offered rates as of approximately 3:30 P.M., New York City time,
on such Quarterly Interest Rate Determination Date reported,
according to their written records, by three leading primary
United States government securities dealers in New York City
(each, a "Reference Dealer") selected by the Calculation Agent
after consultation with the Company (from five such Reference
Dealers selected by the Calculation Agent and eliminating the
highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality,
one of the lowest)), for the most recently issued direct
noncallable fixed rate obligations of the United States
("Treasury Debt Securities") with an original maturity of
approximately the Designated CMT Maturity Index and a remaining
term to maturity of not less than such Designated CMT Maturity
Index minus one year.
(5) If the Calculation Agent is unable to obtain three such Treasury
Debt Securities quotations as described in (4) above, the
10-year Treasury CMT for the applicable Quarterly Interest Rate
Determination Date will be calculated by the Calculation Agent
and will be a yield to maturity based on the arithmetic mean of
the secondary market offered rates as of approximately 3:30
P.M., New York City time, on the applicable Quarterly Interest
Rate Determination Date of three Reference Dealers in New York,
New York (from five such Reference Dealers selected by the
Calculation Agent and eliminating the highest quotation (or, in
the event of equality, one of the highest) and the lowest
quotation (or, in the event of equality, one of the lowest)),
for Treasury Debt Securities with an original maturity of the
number of years that is the next highest to the Designated CMT
Maturity Index and a
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remaining term to maturity closest to the Designated CMT Maturity
Index and in an amount of at least $100 million.
(6) If three or four (and not five) of such Reference Dealers are
quoting as set forth above, then the 10-year Treasury CMT will
be based on the arithmetic mean of the offered rates obtained
and neither the highest nor lowest of such quotes will be
eliminated; provided, however, that if fewer than three
Reference Dealers selected by the Calculation Agent are quoting
as set forth above, the 10-year Treasury CMT with respect to the
applicable Quarterly Interest Rate Determination Date will
remain the 10-year Treasury CMT for the immediately preceding
Quarterly Interest Accrual Period. If two Treasury Debt
Securities with an original maturity as described in the second
preceding sentence have remaining terms to maturity equally
close to the Designated CMT Maturity Index, then the quotes for
the Treasury Debt Securities with the shorter remaining term to
maturity will be used.
"30-year Treasury CMT" has the meaning specified under the definition
of 10-year Treasury CMT, except that (i) each reference to "10-year" in the
definition of the "10-year Treasury CMT" will be "30-year" for the purposes of
the "30-year Treasury CMT", (ii) the Designated CMT Maturity Index for the
30-year Treasury CMT shall be 30 years, and (iii) the parenthetical phrase in
clause (1) of such definition shall be replaced with "(the sum of the rate
displayed on the Bloomberg interest rate page currently found on page "H15T20Y
Index" and the extrapolation factor found on page "H15FACT")".
"3-Month LIBOR Rate" means, with respect to any Quarterly Interest
Accrual Period, the rate (expressed as a percentage per annum) for deposits in
U.S. dollars for a 3-month period commencing on the first day of that Quarterly
Interest Accrual Period that appears on Telerate Page 3750 as of 11:00 a.m.
(London time) on the Quarterly Interest Rate Determination Date for that
Quarterly Interest Accrual Period. If such rate does not appear on Telerate
Page 3750, 3-Month LIBOR will be determined on the basis of the rates at which
deposits in U.S. dollars for a 3-month period commencing on the first day of
that Quarterly Interest Accrual Period and in a principal amount of not less
than $1,000,000 are offered to prime banks in the London interbank market by
four major banks in the London interbank market selected by the Calculation
Agent (after consultation with the Company), at approximately 11:00 a.m.,
London time on the Quarterly Interest Rate Determination Date for that
Quarterly Interest Accrual Period. The Calculation Agent will request the
principal London office of each of such banks to provide a quotation of its
rate. If at least two such quotations are provided, 3-Month LIBOR with respect
to that Quarterly Interest Accrual Period will be the arithmetic mean (rounded
upward if
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necessary to the nearest hundredth of 1%, or 0.0001) of such quotations. If
fewer than two quotations are provided, 3-Month LIBOR with respect to that
Quarterly Interest Accrual Period will be the arithmetic mean (rounded upward if
necessary to the nearest hundredth of 1%, or 0.0001) of the rates quoted by
three major banks in New York City selected by the Calculation Agent, at
approximately 11:00 a.m., New York City time, on the first day of that Quarterly
Interest Accrual Period for loans in U.S. dollars to leading European banks for
a 3-month period commencing on the first day of that Quarterly Interest Accrual
Period and in a principal amount of not less than $1,000,000. However, if fewer
than three banks selected by the Calculation Agent to provide quotations are
quoting as described above, 3-Month LIBOR for that Quarterly Interest Accrual
Period will be the same as 3-Month LIBOR as determined for the previous
Quarterly Interest Accrual Period. The establishment of 3-Month LIBOR for each
Quarterly Interest Accrual Period by the Trustee shall (in the absence of
manifest error) be final and binding.
"Total Debt" means the sum of (i) short-term borrowing, (ii) current
maturities of long-term debt, and (iii) long term debt, including the Debt
Securities; provided, however, that if because of a change in GAAP that results
in a cumulative effect of a change in accounting principle applicable to the
Company's financial reporting or a restatement of the Company's historical
financial statements, the Company's Total Debt is higher or lower than it would
have been absent such change, then, commencing with the fiscal quarter for
which such changes in GAAP become effective, Total Debt will be calculated on a
pro forma basis as if such change had not occurred.
"Treasury Rate" means:
(i) the yield, under the heading which represents the average for
the week immediately prior to the date of calculation, appearing
in the most recently published statistical release designated
H.15(519) or any successor publication which is published weekly
by the Federal Reserve and which establishes yields on actively
traded United States Treasury securities adjusted to constant
maturity under the caption "Treasury Constant Maturities," for
the maturity corresponding to the Remaining Life of Fixed Rate
Period (if no maturity is within three months before or after
the Remaining Life of Fixed Rate Period, yields for the two
published maturities most closely corresponding to the Remaining
Life of Fixed Rate Period will be determined and the Treasury
Rate will be interpolated or extrapolated from these yields on a
straight-line basis, rounding to the nearest month), or
(ii) if such release (or any successor release) is not published
during the week preceding the calculation date or does not
contain such yields, the rate per annum equal to the semiannual
equivalent yield to maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for the redemption date,
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in either case calculated on the third Business Day prior to the designated
redemption date.
"Trigger Determination Date" means, with respect to any Interest
Payment Date, the 30th day prior to such interest payment date.
"Trust" shall have the meaning set forth in the recitals of this
Supplemental Indenture.
"Trust Securities" means the Common Securities and the Preferred
Securities.
"Trustee" shall have the meaning set forth in the preamble of this
Supplemental Indenture.
Section 1.2.......Interpretation. Each definition in this Supplemental
Indenture includes the singular and the plural, and references to the neuter
gender include the masculine and feminine where appropriate. References to any
statute mean such statute as amended at the time and include any successor
legislation. The word "or" is not exclusive, and the words "herein," "hereof"
and "hereunder" refer to this Supplemental Indenture as a whole. The headings
to the Articles and Sections are for convenience of reference and shall not
affect the meaning or interpretation of this Supplemental Indenture. References
to Articles and Sections mean the Articles and Sections of this Supplemental
Indenture.
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ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE NOTES
Section 2.1 Designation and Principal Amount. There is hereby
authorized a series of Debt Securities designated the "5.902% Fixed
Rate/Floating Rate Junior Subordinated Debt Securities due 2045," limited in
aggregate principal amount to $450,100,000, which amount shall be as set forth
in any written order of the Company for the authentication and delivery of Debt
Securities pursuant to Section 2.04 of the Indenture.
Section 2.2 Maturity. The Maturity Date will be December 1, 2045.
Section 2.3 Form and Payment. Except as provided in Section 2.4,
the Debt Securities shall be issued in fully registered certificated form
without interest coupons. Principal of and interest (including Compounded
Interest and Additional Interest, if any) and premium, if any, on the Debt
Securities issued in certificated form will be payable, the transfer of such
Debt Securities will be registrable and such Debt Securities will be
exchangeable for Debt Securities bearing identical terms and provisions at the
office or agency of the Trustee in New York, New York, provided, however, that
payment of interest may be made at the option of the Company by check mailed to
the registered holder at such address as shall appear in the Security Register,
except in the case of Debt Securities represented by a Global Security.
Notwithstanding the foregoing, so long as the registered holder of any Debt
Securities is the Property Trustee, the payment of the principal of and
interest (including Compounded Interest and Additional Interest, if any) and
premium, if any, on such Debt Securities held by the Property Trustee will be
made at such place and to such account as may be designated by the Property
Trustee.
Section 2.4 Global Debt Security. In connection with a Dissolution
Event:
(a) the Debt Securities in certificated form may be presented to the
Trustee by the Property Trustee in exchange for a Global Security in an
aggregate principal amount equal to the aggregate principal amount of the Debt
Securities so presented, to be registered in the name of the Depositary, or its
nominee, and delivered by the Trustee to the Depositary for crediting to the
accounts of its participants pursuant to the instructions of the Administrative
Trustees. The Company, upon any such presentation, shall execute a Global
Security in such aggregate principal amount and deliver the same to the Trustee
for authentication and delivery in accordance with the Indenture and this
Supplemental Indenture. Payments on the Debt Securities issued as a Global
Security will be made to the Depositary; and
(b) if any Preferred Securities are held in non book-entry
certificated form, the Debt Securities in certificated form may be presented to
the Trustee by the Property Trustee and any Preferred Security Certificate
which represents Preferred
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Securities other than Preferred Securities held by the Clearing Agency or its
nominee ("Non Book-Entry Preferred Securities") will be deemed to represent
beneficial interests in Debt Securities presented to the Trustee by the Property
Trustee having an aggregate principal amount equal to the aggregate stated
liquidation amount of the Non Book-Entry Preferred Securities until such
Preferred Security Certificates are presented to the Security Registrar for
transfer or reissuance at which time such Preferred Security Certificates will
be cancelled and a Debt Security, registered in the name of the holder of the
Preferred Security Certificate or the transferee of the holder of such Preferred
Security Certificate, as the case may be, with an aggregate principal amount
equal to the aggregate stated liquidation amount of the Preferred Security
Certificate cancelled, will be executed by the Company and delivered to the
Trustee for authentication and delivery in accordance with the Indenture and
this Supplemental Indenture. On issue of such Debt Securities, Debt Securities
with an equivalent aggregate principal amount that were presented by the
Property Trustee to the Trustee will be deemed to have been cancelled.
Section 2.5 Interest. (a) (i) Interest during the Fixed Rate
Period. From the original date of issuance through and including the final day
of the Fixed Rate Period, each Debt Security will bear interest at the per
annum rate of 5.902% (the "Fixed Rate") until the commencement of the Floating
Rate Period or, if earlier, until the principal thereof is paid, and (to the
extent that payment of such interest is enforceable under applicable law) on
any overdue installment of interest at the Fixed Rate, compounded
semi-annually, payable (subject to the provisions of Article IV) semi-annually
in arrears on June 1, and December 1, of each year, commencing on June 1, 2006.
(ii) Interest during the Floating Rate Period. During the Floating
Rate Period, each Outstanding Debt Security will bear interest during each
Quarterly Interest Accrual Period, payable quarterly in arrears on each March
1, June 1, September 1 and December 1, commencing March 1, 2011, at a rate
equal to the lower of (i) 1.40% plus the highest of the (x) 3-Month LIBOR Rate;
(y) 10-Year Treasury CMT, and (z) 30-Year Treasury CMT, as applicable for such
Quarterly Interest Accrual Period and (ii) 13.25% (such rate the "Floating
Rate" with respect to such Quarterly Interest Accrual Period) until the
principal thereof is paid, and (to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at the
Floating Rate prevailing from time to time, compounded quarterly at such
prevailing Floating Rates.
(b) Payment of Interest to Record Holders of the Debt Securities.
Interest on each Debt Security shall be paid to the Person in whose name such
Debt Security or any predecessor Debt Security is registered, at the close of
business on the regular record date for such interest installment, which, in
respect of (i) Debt Securities of which the Property Trustee is the registered
holder and the Preferred
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Securities are in book-entry only form or (ii) a Global Security, shall be the
close of business on the Business Day next preceding that Interest Payment Date.
Notwithstanding the foregoing sentence, if (i) the Debt Securities are held by
the Property Trustee and the Preferred Securities are no longer in book-entry
only form or (ii) the Debt Securities are not represented by a Global Security,
the Company may select a regular record date at least one but not more than 60
Business Days before an Interest Payment Date.
(c) During the Fixed Rate Period, the amount of interest payable on
any interest payment date will be computed on the basis of a 360-day year of
twelve 30-day months, and the amount of interest payable for any period shorter
or longer than a full semi-annual period for which interest is computed, will
be computed on the basis of the actual number of days elapsed in such 180-day
semi-annual period. During the Floating Rate Period, the amount of interest
payable will be computed by multiplying the annual Floating Rate in effect for
the Quarterly Interest Accrual Period or portion thereof in respect of which
the interest payment is made by a fraction, the numerator of which will be the
actual number of days in such Quarterly Interest Accrual Period (or a portion
thereof) (determined by including the first day thereof and excluding the last
day thereof) and the denominator of which will be 365, and multiplying the
product obtained thereby by the principal amount of the Debt Securities.
(d) Otherwise than in connection with the maturity or early
redemption of the Debt Securities or the payment in whole or in part of
deferred or overdue interest on the Debt Securities, interest on the Debt
Securities may be paid only on a Semi-Annual Interest Payment Date during the
Fixed Rate Period and on a Quarterly Interest Payment Date during the Floating
Rate Period. Notwithstanding the preceding sentence, in the event that any
Interest Payment Date is not a Business Day, then payment of interest payable
on such Interest Payment Date will be made on the next succeeding day which is
a Business Day (and, in the case of a Semi-Annual Interest Payment Date,
without any interest or other payment in respect of any such delay).
(e) The Company may, at its option and in accordance with Section
4.03 of the Indenture, appoint a paying agent for the Debt Securities. If a
paying agent has been appointed by the Company, the paying agent, unless the
Company shall otherwise determine and so notify the paying agent, shall
calculate the amount of interest payable on the Debt Securities on each
Interest Payment Date. All certificates, communications, opinions,
determinations, calculations, quotations and decisions given, expressed, made
or obtained for the purposes of the provisions relating to the payment and
calculation of interest on the Debt Securities, by the paying agent, will (in
the absence of willful default, bad faith or manifest error) be binding on the
Trust, the Company, the Trustee and all holders of the Debt Securities, and no
liability will (in the absence of willful default, bad faith or manifest error)
attach to the paying agent in connection with the exercise or non-exercise by
any of them of their powers, duties and discretion.
(f) If a Tax Event has occurred and is continuing at any time while
the Property Trustee is the holder of any Debt Securities, and the Trust or the
Property Trustee is required to pay any taxes, duties, assessments or other
governmental charges of whatever nature (other than withholding taxes) imposed
by the United States, or any
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other taxing authority, then, in any case, the Company will pay as additional
interest ("Additional Interest") on the Debt Securities held by the Property
Trustee, such additional amounts as shall be required so that the net amounts
received and retained by the Trust and the Property Trustee after paying such
taxes, duties, assessments or other governmental charges will be equal to the
amounts the Trust and the Property Trustee would have received had no such
taxes, duties, assessments or other government charges been imposed as a result
of such Tax Event. For purposes of this Section 2.5(f), a Tax Event will have
occurred irrespective of whether the Company or the Trust has received an
opinion of counsel.
(g) To the extent permitted by applicable law, interest not paid when
due hereunder, including, without limitation, all Deferred Interest, will until
paid compound semi-annually at the Fixed Rate on each Interest Payment Date
during the Fixed Rate Period ("Fixed Rate Compounded Interest") and compound
quarterly at the prevailing Floating Rates on each Interest Payment Date during
the Floating Rate Period ("Floating Rate Compounded Interest"). References to
"interest" in the Indenture and this Supplemental Indenture include references
to such Compounded Interest.
(h) In the event of the occurrence of a Registration Default under
Section 8 of the Registration Rights Agreement, the Company shall pay
Registration Default Damages in the form of additional interest on the Debt
Securities at the rate of 0.25% per annum on the principal amount of the Debt
Securities to which such Registration Default applies for so long as such
Registration Default continues. References to "interest" and "deferred
interest" in the Indenture and this Supplemental Indenture include references
to Registration Default Damages.
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ARTICLE III
REDEMPTION OF THE NOTES
Section 3.1 Optional Redemption. Subject to the provisions of
Article III of the Indenture, the Company shall have the right to redeem the
Debt Securities for cash:
(i) in whole, but not in part, at any time prior to December 1,
2010, at a redemption price (the "Make Whole Redemption Price")
equal to the greater of:
(a) 100% of the principal amount of the Debt Securities being
redeemed, and
(b) as determined by the Quotation Agent, the sum of the present
values of remaining scheduled payments of principal and interest
thereon for the Remaining Life of Fixed Rate Period of the Debt
Securities, discounted to the redemption date on a semi-annual
basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate plus 0.25%,
plus, in each case, all accrued and unpaid interest
thereon to but not including the redemption date; and
(ii) in whole or in part in whole or in part, at any time and from
time to time on or after December 1, 2010 at a redemption price
(the "Optional Redemption Price") equal to the aggregate
principal amount of the Debt Securities to be redeemed, plus all
accrued and unpaid interest thereon to but not including the
redemption date.
Section 3.2 Special Event Redemption. If a Special Event has occurred
and is continuing, then the Company shall have the right to redeem the Debt
Securities, in whole, but not in part, for cash within 90 days following the
occurrence of such Special Event at a redemption price (the "Special Redemption
Price") equal to the greater of:
(i) 100% of the principal amount of the Debt Securities being
redeemed, and.
(ii) as determined by the Quotation Agent, the sum of the present
values of remaining scheduled payments of principal and interest
thereon for the Remaining Life of Fixed Rate Period of the Debt
Securities, discounted to the redemption date on a semi-annual
basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate plus 0.50%,
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plus, in each case, all accrued and unpaid interest thereon
to but not including the redemption date.
Notwithstanding the foregoing, if the Company can, or can cause the Trust, to
eliminate a Special Event by either the Company or the Trust, or both of them
together, taking some ministerial action, including, but not limited to making
a filing or an election, or pursuing some other similar reasonable measure
which has no adverse effect on the Trust, the Company or the holders of the
Trust Securities, the Company may not redeem the Debt Securities pursuant to
this Section 3.2 on account of such Special Event.
Section 3.3 Certain Redemption Procedures. Any redemption
pursuant to this Article III will be made upon not less than 30 days' nor more
than 60 days' notice to the registered holder of the Debt Securities. If the
Debt Securities are to be redeemed in part pursuant to clause (ii) of Section
3.1, the Debt Securities will be redeemed pro rata or by lot or by any other
method utilized by the Trustee; provided, that if at the time of redemption,
the Debt Securities are registered as a Global Security, the Depositary shall
determine, in accordance with its procedures, the principal amount of such Debt
Securities beneficially held by each holder of a Debt Security be redeemed. The
Make Whole Redemption Price, Optional Redemption Price or Special Redemption
Price, as applicable, shall be paid prior to 12:00 noon, New York City time, on
the date of such redemption or at such earlier time as the Company determines
and specifies in the notice of redemption, provided the Company shall deposit
with the Trustee an amount sufficient to pay the such redemption price by 10:00
a.m. on the date such redemption price is to be paid.
Section 3.4 No Sinking Fund. The Debt Securities are not
entitled to the benefit of any sinking fund.
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ARTICLE IV
OPTIONAL AND MANDATORY DEFERRAL OF INTEREST
Section 4.1 Optional Interest Deferral. So long as no Acceleration
Event of Default has occurred and is continuing, the Company shall have the
right, at any time and from time to time during the term of the Debt
Securities, to elect to defer payment of interest on the Debt Securities on any
Interest Payment Date, provided that no such deferral may extend beyond the
maturity date of, or redemption date for, the Debt Securities ("Optional
Deferral"). A period of Optional Deferral (an "Optional Deferral Period") will
be deemed to have commenced on the first Interest Payment Date on which
interest is deferred due to such Optional Deferral and end on the first date
thereafter on which all Deferred Interest in respect thereof is paid in full.
The Company may not elect Optional Deferral for an Interest Payment Date, if
the Optional Deferral Period ending on such Interest Payment Date, together
with all consecutive Optional Deferral Periods and Mandatory Deferral Periods,
or combination thereof preceding such elected Optional Deferral Period, with
respect to which any Deferred Interest remains outstanding, would exceed ten
years. Interest on the Debt Securities will continue to accrue and compound
during an Optional Deferral Period. Upon the termination of an Optional
Deferral Period and upon the payment of all Deferred Interest, Registration
Default Damages, Additional Interest and Gross-Up Payments then due, the
Company may select a new period of Optional Deferral, subject to the foregoing
requirements of this Section 4.1. No interest shall be due and payable during
an Optional Deferral Period commenced and continued in accordance with this
Section 4.1, except at the end thereof, but the Company may prepay at any time
all or any portion of the interest accrued during an Optional Deferral Period,
subject to the terms of Sections 5.1 and 5.2.
To the extent permitted by applicable law, interest, the payment of
which has been deferred because of Optional Deferral pursuant to this Section
4.1, will bear interest at the Fixed Rate compounded semi-annually during each
semi-annual accrual period during the Fixed Rate Period and quarterly at the
prevailing Floating Rates during each quarterly interest accrual period during
the Floating Rate Period. At the end of the Optional Deferral Period, the
Company shall pay all interest accrued and unpaid on the Debt Securities,
including any Compounded Interest, Additional Interest, Registration Default
Damages and Gross-Up Payments (together, "Optional Deferred Interest") which
shall be payable to the holders of the Debt Securities in whose names the Debt
Securities are registered in the Security Register on the first record date
after the end of the Optional Deferral Period.
Section 4.2 Mandatory Interest Deferral. Subject to the following
sentence, the Company shall not pay interest on the Debt Securities on any
Interest Payment Date in an amount in excess of the New Common Equity Amount if
a Mandatory Deferral Trigger Event has occurred on the Trigger Determination
Date with respect to such Interest Payment Date. Notwithstanding the occurrence
of a Mandatory Deferral Trigger Event, the Company shall pay all interest due
and payable on the Debt
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Securities (i) on the maturity or earlier redemption thereof, and (ii) on the
first Interest Payment Date to occur following deferral of interest on the Debt
Securities due to Mandatory Deferral, Optional Deferral, or any combination
thereof, that has continued without payment in full of all deferred interest for
consecutive semi-annual and/or quarterly interest accrual periods aggregating to
in excess of ten years. Deferral of interest on the Debt Securities required
under the terms of this Section 4.2 is referred to as "Mandatory Deferral." A
period of Mandatory Deferral (a "Mandatory Deferral Period") will be deemed to
commence on the first Interest Payment Date in respect of which interest
payments are deferred due to Mandatory Deferral and end on the first date
thereafter on which all Deferred Interest in respect thereof is paid in full.
To the extent permitted by applicable law, interest, the payment of
which has been deferred because of Mandatory Deferral pursuant to this Section
4.2, will bear interest at the Fixed Rate compounded semi-annually during each
semi-annual accrual period during the Fixed Rate Period and at the prevailing
Floating Rates compounded quarterly during each quarterly interest accrual
period during the Floating Rate Period. At the end of the Mandatory Deferral
Period, the Company shall pay all interest accrued and unpaid on the Debt
Securities, including any Compounded Interest, Additional Interest,
Registration Default Damages and Gross-Up Payments (together, "Mandatory
Deferred Interest") which shall be payable to the holders of the Debt
Securities in whose names the Debt Securities are registered in the Security
Register on the first record date after the end of the Mandatory Deferral
Period. No interest shall be due and payable during a period of Mandatory
Deferral, except at the end thereof, but the Company may prepay at any time all
or any portion of the interest accrued during a Mandatory Deferral Period,
subject to the terms of Sections 5.1 and 5.2.
Section 4.3 Notice of Deferrals. (a)(i) The Company shall give
notice of any election of an Optional Deferral not fewer than 15 nor more than
60 days prior to the Interest Payment Date for which interest on the Debt
Securities will be deferred.
The notice of election of Optional Deferral, once given, will be
irrevocable and the deferral of interest on the applicable Interest Payment
Date will be considered an Optional Deferral for all purposes under the
Indenture notwithstanding the occurrence of a Mandatory Deferral Trigger Event
on the Trigger Determination Date with respect to such Interest Payment Date if
such notice is provided prior to such Trigger Determination Date.
(ii) If a Mandatory Deferral Trigger Event has occurred as of any
Trigger Determination Date, the Company shall give notice thereof not less than
15 days prior to the related Interest Payment Date. If a Mandatory Deferral
Trigger Event has occurred as of any Trigger Determination Date prior to the
Company's providing of a notice of election of Optional Deferral with respect
to the applicable Interest Payment Date, the Company's subsequent delivery of a
notice of election of Optional Deferral shall be without effect with respect to
the relevant Interest Payment Date.
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(b) If the Property Trustee is the only registered holder of the Debt
Securities at the time the Company provides notice of its election of Optional
Deferral or of the occurrence of a Mandatory Deferral Trigger Event, the
Company shall give its written notice to the Administrative Trustees, the
Property Trustee and the Trustee. If the Property Trustee is not the only
holder of the Debt Securities at the time the Company provides notice of its
election of Optional Deferral or of the occurrence of a Mandatory Deferral
Trigger Event, the Company shall give its written notice to the holders of the
Debt Securities and the Trustee.
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ARTICLE V
CERTAIN COVENANTS
Section 5.1 Limitation on Payment of Current Interest when
Deferred Interest is Outstanding. The Company may not pay on any Interest
Payment Date interest that has accrued on any Debt Security during the
Semi-Annual Interest Accrual Period or Quarterly Interest Accrual Period, as
applicable, immediately preceding such Interest Payment Date, unless the
Company pays therewith all Deferred Interest at such time outstanding on such
Debt Security.
Section 5.2 Limitation on Source of Payment of Deferred
Interest. The Company may not pay Deferred Interest on the Debt Securities on
any Interest Payment Date in an amount that exceeds the New Common Equity
Amount for such Interest Payment Date.
Section 5.3 Covenants not to be Construed to Limit Claims. The
covenants contained in Sections 5.1 and 5.2 hereof shall not be construed to
limit the ability of the holders of the Debt Securities to recover amounts in
case of any receivership, insolvency, liquidation, bankruptcy, reorganization,
readjustment, arrangement, composition or judicial proceeding affecting the
Company and its property.
Section 5.4 Obligation to Effect Certain Common Stock Sales.
(a) Commencing with the first to occur of:
(i) if any Deferred Interest is outstanding due to Mandatory
Deferral, the date that is one year after the first Interest Payment Date for
which the Company was required to defer any payment of interest on the Debt
Securities due to Mandatory Deferral (the "First Mandatory Deferral
Anniversary"), and
(ii) if any Deferred Interest is outstanding due to an Optional
Deferral or Mandatory Deferral, or combination thereof, the date that is five
years after the first Interest Payment Date as of which the Company deferred
payment of interest on the Debt Securities, whether because of Optional
Deferral or Mandatory Deferral and for which Deferred Interest remains
outstanding (the "Fifth Deferral Anniversary"),
the Company shall continuously use its commercially reasonable efforts to
effect sales of shares of its common stock, including treasury shares, in an
amount that will generate sufficient net proceeds to enable the Company to pay
in full all Deferred Interest on the Debt Securities then outstanding; provided
that the Company shall not be obligated to make offers for or effect sales of
its common stock during a Market Disruption Event.
(b) As used in this Section 5.4, the term "commercially reasonable
efforts" means commercially reasonable efforts on the part of the Company to
complete the sale of shares of its common stock, including treasury shares, to
third parties that are not subsidiaries of the Company. The Company will not be
considered to have used its
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commercially reasonable efforts to effect a sale of
stock if it determines to not pursue or complete such sale solely due to
pricing considerations.
(c) Following the First Mandatory Deferral Anniversary or Fifth
Deferral Anniversary, the Company shall apply the net proceeds received by it
from sales of shares of its common stock, including sales of treasury shares,
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. In the event that net proceeds
received by the Company from one or more sales of shares of its common stock
following such First Mandatory Deferral Anniversary or Fifth Deferral
Anniversary are not sufficient to satisfy the full amount of Deferred Interest,
such net proceeds will be paid to the holders of the Debt Securities on a pro
rata basis; provided, that if the Company has outstanding at such time any debt
securities ranking pari passu with the Debt Securities under the terms of which
the Company is obligated to sell shares of its common stock and apply the net
proceeds to payment of deferred interest on such pari passu securities and the
Company at such time is required to apply such proceeds to pay deferred
interest on such pari passu securities, then on any date and for any period the
amount of net proceeds received by the Company from such sales and available
for payment of such deferred interest shall be applied to the Debt Securities
and such pari passu securities on a pro rata basis.
Section 5.5 Application of Payments to Deferred Interest. In
the event that Deferred Interest is outstanding on the Debt Securities due to
Mandatory Deferral and due to Optional Deferral, and an amount applied to the
payment of deferred interest outstanding on the Debt Securities is not
sufficient to repay all such deferred interest in full, such amount shall be
applied on a pro rata basis to interest deferred due to Mandatory Deferral and
interest deferred due to Optional Deferral.
Section 5.6 Payment of Expenses. In connection with the
offering, sale and issuance of the Debt Securities to the Property Trustee in
connection with the sale of the Trust Securities by the Trust, the Company, in
its capacity as borrower with respect to the Debt Securities, shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of the Debt Securities, including commissions to the initial
purchasers thereof payable pursuant to the Purchase Agreement and compensation
of the Trustee under the Indenture in accordance with the provisions of Section
7.06 of the Indenture;
(b) pay all costs and expenses of the Trust (including, but not
limited to, costs and expenses relating to the organization of the Trust, the
offering, sale and issuance of the Trust Securities (including commissions to
the underwriters in connection therewith), the fees and expenses of the
Property Trustee and the Delaware Trustee, the costs and expenses relating to
the operation of the Trust, including without limitation, costs and expenses of
accountants, attorneys, statistical or bookkeeping services, expenses for
printing and engraving and computing or accounting equipment, paying
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agent(s), registrar(s), transfer agent(s), duplicating, travel and telephone and
other telecommunications expenses and costs and expenses incurred in connection
with the acquisition, financing, and disposition of Trust assets); and
(c) pay any and all taxes (other than United States withholding taxes
attributable to the Trust or its assets) and all liabilities, costs and
expenses with respect to such taxes of the Trust.
Section 5.7 Payment upon Resignation or Removal. Upon termination of
this Supplemental Indenture or the Indenture or the removal or resignation of
the Trustee, the Company shall pay to the Trustee all amounts accrued under
Section 7.06 of the Indenture to the date of such termination, removal or
resignation. Upon termination of the Declaration or the removal or resignation
of the Delaware Trustee or the Property Trustee, as the case may be, pursuant
to Section 8.10 of the Declaration, the Company shall pay to the Delaware
Trustee or the Property Trustee, as the case may be, all amounts accrued under
Section 8.06 of the Declaration to the date of such termination, removal or
resignation.
Section 5.8 Certain Amendments, Modifications and Waivers.
Section 5.4 of this Supplemental Indenture may not be amended, modified or
waived without the consent of each holder of Outstanding Debt Securities, or,
if any Debt Securities are held by the Trust, by each holder of the Preferred
Securities outstanding, unless such amendment, modification or waiver
irrevocably eliminates, or a prior amendment, modification or waiver then in
effect irrevocably eliminated, the payment restriction set forth in Section 5.2
hereof.
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ARTICLE VI
SUBORDINATION
Section 6.1 Agreement to Subordinate. The Company covenants and
agrees, and each holder of Debt Securities issued hereunder by such holder's
acceptance thereof likewise covenants and agrees, that all Debt Securities
shall be issued subject to the provisions of this Article VI; and each holder
of a Debt Security, whether upon original issue or upon transfer or assignment
thereof, accepts and agrees to be bound by such provisions.
The payment by the Company of the principal of, premium, if any, and
interest on all Debt Securities issued hereunder shall, to the extent and in
the manner hereinafter set forth, be subordinated and subject in right of
payment to the prior payment in full of all Senior Indebtedness of the Company,
whether outstanding at the date of this Supplemental Indenture or thereafter
incurred.
No provision of this Article VI shall prevent the occurrence of any
default, Covenant Default or Acceleration Event of Default hereunder.
Section 6.2 Default on Senior Indebtedness. In the event and
during the continuation of any default by the Company in the payment of
principal, premium, interest or any other payment due on any Senior
Indebtedness of the Company, or in the event that the maturity of any Senior
Indebtedness of the Company has been accelerated because of a default, then, in
either case, no payment shall be made by the Company with respect to the
principal (including redemption and sinking fund payments) of, or premium, if
any, or interest on the Debt Securities.
In the event that, notwithstanding the foregoing, any payment shall
be received by the Trustee or any holder when such payment is prohibited by the
preceding paragraph of this Section 6.2, such payment shall be held in trust
for the benefit of, and shall be paid over or delivered to, the holders of
Senior Indebtedness or their respective representatives, or to the trustee or
trustees under any indenture pursuant to which any of such Senior Indebtedness
may have been issued, as their respective interests may appear, but only to the
extent that the holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee within 90 days of such payment
of the amounts then due and owing on the Senior Indebtedness and only the
amounts specified in such notice to the Trustee shall be paid to the holders of
Senior Indebtedness.
Section 6.3 Liquidation; Dissolution; Bankruptcy. Upon any
payment by the Company, or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to creditors upon any
dissolution or winding-up or liquidation or reorganization of the Company,
whether voluntary or involuntary or in bankruptcy, insolvency, receivership or
other proceedings, all amounts due upon all Senior Indebtedness of the Company
shall first be paid in full, or payment thereof provided for in money in
accordance with its terms, before any payment is made by the
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Company on account of the principal (and premium, if any) or interest on the
Debt Securities; and upon any such dissolution or winding-up or liquidation or
reorganization, any payment by the Company, or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
which the holders of the Debt Securities or the Trustee would be entitled to
receive from the Company, except for the provisions of this Article VI, shall be
paid by the Company or by any receiver, trustee in bankruptcy, liquidating
trustee, agent or other Person making such payment or distribution, or by the
holders of the Debt Securities or by the Trustee under this Indenture if
received by them or it, directly to the holders of Senior Indebtedness of the
Company (pro rata to such holders on the basis of the respective amounts of
Senior Indebtedness held by such holders, as calculated by the Company) or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior Indebtedness
may have been issued, as their respective interests may appear, to the extent
necessary to pay such Senior Indebtedness in full, in money or money's worth,
after giving effect to any concurrent payment or distribution to or for the
holders of such Senior Indebtedness, before any payment or distribution is made
to the holders of Debt Securities or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, prohibited by the foregoing, shall be received by
the Trustee or the holders of the Debt Securities before all Senior
Indebtedness of the Company is paid in full, or provision is made for such
payment in money in accordance with its terms, such payment or distribution
shall be held in trust for the benefit of and shall be paid over or delivered
to the holders of such Senior Indebtedness or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing such Senior Indebtedness may have been issued,
as their respective interests may appear, as calculated by the Company, for
application to the payment of all Senior Indebtedness of the Company remaining
unpaid to the extent necessary to pay such Senior Indebtedness in full in money
in accordance with its terms, after giving effect to any concurrent payment or
distribution to or for the benefit of the holders of such Senior Indebtedness.
For purposes of this Article VI, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this
Article VI with respect to the Debt Securities to the payment of all Senior
Indebtedness of the Company that may at the time be outstanding, provided that
(i) such Senior Indebtedness is assumed by the new corporation, if any,
resulting from any such reorganization or readjustment, and (ii) the rights of
the holders of such Senior Indebtedness are not, without the consent of such
holders, altered by such reorganization or readjustment. The consolidation of
the Company with, or the merger of the Company into, another corporation or the
liquidation or dissolution of the Company following the conveyance or transfer
of its property as an entirety, or substantially as an entirety, to
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another corporation upon the terms and conditions provided for in Article X of
the Indenture shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section 6.3 if such other corporation
shall, as a part of such consolidation, merger, conveyance or transfer, comply
with the conditions stated in Article X of the Indenture. Nothing in Section 6.2
or in this Section 6.3 shall apply to claims of, or payments to, the Trustee
under or pursuant to Section 7.06 of the Indenture.
Section 6.4 Subrogation. Subject to the payment in full of all
Senior Indebtedness of the Company, the rights of the holders of the Debt
Securities shall be subrogated to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of cash, property or
securities of the Company applicable to such Senior Indebtedness until the
principal of (and premium, if any) and interest on the Debt Securities shall be
paid in full; and, for the purposes of such subrogation, no payments or
distributions to the holders for such Senior Indebtedness of any cash, property
or securities to which the holders of the Debt Securities or the Trustee would
be entitled except for the provisions of this Article VI, and no payment over
pursuant to the provisions of this Article VI, to or for the benefit of the
holders of such Senior Indebtedness by holders of the Debt Securities or the
Trustee, shall, as between the Company, its creditors other than holders of
Senior Indebtedness of the Company, and the holders of the Debt Securities be
deemed to be a payment by the Company to or on account of such Senior
Indebtedness. It is understood that the provisions of this Article VI are and
are intended solely for the purposes of defining the relative rights of the
holders of the Debt Securities, on the one hand, and the holders of such Senior
Indebtedness on the other hand.
Nothing contained in this Article VI or elsewhere in this Indenture
or in the Debt Securities is intended to or shall impair, as between the
Company, its creditors other than the holders of Senior Indebtedness of the
Company, and the holders of the Debt Securities, the obligation of the Company
which is absolute and unconditional, to pay to the holders of the Debt
Securities the principal of (and premium, if any) and interest on the Debt
Securities as and when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative rights of the
holders of the Debt Securities and creditors of the Company, other than the
holders of Senior Indebtedness of the Company, nor shall anything herein or
therein prevent the Trustee or the holder of any Debt Security from exercising
all remedies otherwise permitted by applicable law upon default under the
Indenture, subject to the rights, if any, under this Article VI of the holders
of such Senior Indebtedness in respect of cash, property or securities of the
Company, received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company
referred to in this Article VI, the Trustee, subject to the provisions of
Section 7.01 of the Indenture, and the holders of the Debt Securities, shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction in which such dissolution, winding-up, liquidation or
reorganization proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidation trustee, agent or other Person making such
payment or
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distribution, delivered to the Trustee or to the holders of the Debt Securities,
for the purposes of ascertaining the Persons entitled to participate in such
distribution, the holders of 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 VI.
Section 6.5 Trustee to Effectuate Subordination. Each holder of
a Debt Security by such holder's acceptance thereof authorizes and directs the
Trustee on such holder's behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article VI and
appoints the Trustee such holder's attorney-in-fact for any and all such
purposes.
Section 6.6 Notice by the Company. The Company shall give
prompt written notice to a Responsible Officer of the Trustee of any fact known
to the Company that would prohibit the making of any payment of monies to or by
the Trustee in respect of the Debt Securities pursuant to the provisions of
this Article VI. Notwithstanding the provisions of this Article VI or any other
provision of the Indenture and this Supplemental Indenture, the Trustee shall
not be charged with knowledge of the existence of any facts that would prohibit
the making of any payment of monies to or by the Trustee in respect of the Debt
Securities pursuant to the provisions of this Article VI unless and until a
Responsible Officer of the Trustee shall have received written notice thereof
at the Corporate Trust Office of the Trustee from the Company or a holder or
holders of Senior Indebtedness or from any trustee therefor; and before the
receipt of any such written notice, the Trustee, subject to the provisions of
Section 7.01 of the Indenture, shall be entitled in all respects to assume that
no such facts exist; provided, however, that if the Trustee shall not have
received the notice provided for in this Section 6.6 at least two Business Days
prior to the date upon which by the terms hereof any money may become payable
for any purpose (including, without limitation, the payment of the principal of
(or premium, if any) or interest on any Debt Security), then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power
and authority to receive such money and to apply the same to the purposes for
which they were received, and shall not be affected by any notice to the
contrary that may be received by it within two Business Days prior to such
date.
The Trustee, subject to the provisions of Section 7.01 of the
Indenture, 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 of the
Company (or a trustee on behalf of such holder) to establish that such notice
has been given by a holder of such Senior Indebtedness or a trustee on behalf
of any such holder or holders. 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 such Senior Indebtedness to participate in any payment or
distribution pursuant to this Article VI, the Trustee may request such Person
to furnish evidence to the reasonable satisfaction of the Trustee as to the
amount of such 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
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such Person under this Article VI, 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.
Section 6.7 Rights of the Trustee; Holders of Senior
Indebtedness. The Trustee in its individual capacity shall be entitled to all
the rights set forth in this Article VI in respect of any Senior Indebtedness
at any time 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.
With respect to the holders of Senior Indebtedness of the Company,
the Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article VI, and no implied
covenants or obligations with respect to the holders of such Senior
Indebtedness shall be read into this Indenture against the Trustee. The Trustee
shall not be deemed to owe any fiduciary duty to the holders of such Senior
Indebtedness and, subject to the provisions of Section 7.01 of the Indenture,
the Trustee shall not be liable to any holder of such Senior Indebtedness if it
shall pay over or deliver to holders of Debt Securities, the Company or any
other Person money or assets to which any holder of such Senior Indebtedness
shall be entitled by virtue of this Article VI or otherwise.
Section 6.8 Subordination May Not Be Impaired. No right of any
present or future holder of any Senior Indebtedness of the Company to enforce
subordination as herein provided shall at any time or 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 the
Indenture, regardless of any knowledge thereof that any such holder may have or
otherwise be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness of the Company may, at any time
and from time to time, without the consent of or notice to the Trustee or the
holders of the Debt Securities, without incurring responsibility to the holders
of the Debt Securities and without impairing or releasing the subordination
provided in this Article VI or the obligations hereunder of the holders of the
Debt Securities to the holders of such Senior Indebtedness, do any one or more
the following: (i) change the manner, place or terms of payment or extend the
time of payment of, or renew or alter, such Senior Indebtedness, or otherwise
amend or supplement in any manner such Senior Indebtedness or any instrument
evidencing the same or any agreement under which such Senior Indebtedness is
outstanding; (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing such Senior Indebtedness; (iii)
release any Person liable in any manner for the collection of such Senior
Indebtedness; and (iv) exercise or refrain from exercising any rights against
the Company and any other Person.
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Section 6.9 No Right to Rely on Other Covenants. The holders of Senior
Indebtedness shall not have any rights under the Indenture to enforce any of the
covenants contained in any of the other Articles of this Supplemental Indenture,
including, without limitation, the covenants contained in Section 5.1 hereof
limiting the payment of current interest on the Debt Securities while deferred
interest is outstanding, in Sections 4.2 and 5.2 hereof limiting the source of
funds for payment of Deferred Interest and in Section 5.4 hereof requiring the
Company to use its commercially reasonable efforts to effect certain common
stock sales.
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ARTICLE VII
FORM OF NOTE
Section 7.1 Form of Debt Security. The Debt Securities and the
Trustee's Certificate of Authentication to be endorsed thereon are to be
substantially in the form provided below. If a Dissolution Event occurs, the
Company may at its option add such additional legends to the Debt Securities in
order to facilitate compliance with securities and other applicable laws as it
deems appropriate. In the event that any Debt Security is issued in exchange
for a Predecessor Security in connection with a Registered Exchange Offer, such
Debt Security may be issued, at the discretion of the Company without a
restrictive legend under the Securities Act. If a Debt Security is sold
pursuant to a Shelf Registration Statement or pursuant to an appropriate
exemption under the Securities Act, the Company shall have the right to remove
such legends as it deems appropriate:
(FORM OF FACE OF NOTE)
[If the Debt Security is a "Restricted Security," as such term is
defined in Rule 144 under the Securities Act, insert: THIS DEBT SECURITY HAS
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), OR
THE SECURITIES LAW OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS DEBT
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS DEBT SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH DEBT SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") THAT IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY
AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS DEBT SECURITY (OR ANY PREDECESSOR
OF SUCH DEBT SECURITY) ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THE DEBT SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER
THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER," AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT, THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED
STATES TO NON-U.S. PERSONS IN "OFFSHORE TRANSACTIONS"
-34-
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO
RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER'S AND THE
TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES
(D) AND (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.
[If the Debt Security is to be a Global Security, insert: This Debt
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 Debt Security is exchangeable for Debt 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 no transfer of this Debt
Security (other than a transfer of this Debt Security 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) may be registered except
in limited circumstances.
Unless this Debt Security is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to the issuer or its agent for registration of transfer, exchange or
payment, and any Debt Security issued is registered in the name of Cede & Co.
or such other name as requested by an authorized representative of The
Depository Trust Company and any payment hereon is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an interest
herein.]
No. ______________________ $__________________
CUSIP No.________________
|
THE STANLEY WORKS
5.902% FIXED RATE/FLOATING RATE JUNIOR SUBORDINATED DEBT
SECURITIES DUE 2045
THE STANLEY WORKS, a Connecticut corporation (the "Company", which
term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to _______ or
registered assigns, the principal sum of ____________ Dollars ($___________) on
December 1, 2045 and to pay interest on said principal sum from November 22,
2005 or from the most recent interest payment date (each such date, an
"Interest Payment Date") to which interest has been paid or duly
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provided for. Through the final day of the Fixed Rate Period (or, if earlier,
until the principal thereof is paid), each Outstanding Debt Security will bear
interest at the per annum rate of 5.902% payable (subject to the interest
deferral provisions of Article IV) semi-annually in arrears on June 1 and
December 1 of each year, commencing on June 1, 2006, and (to the extent that
payment of such interest is enforceable under applicable law) on any overdue
installment of interest at such Fixed Rate, compounded semi-annually. During the
Floating Rate Period, each Outstanding Debt Security will bear interest during
each Quarterly Interest Accrual Period, payable (subject to the interest
deferral provisions of Article IV) quarterly in arrears on each March 1, June 1,
September 1 and December 1, commencing March 1, 2011, at the rate equal to the
lower of (i) 1.40% plus the highest of the (x) 3-Month LIBOR Rate; (y) 10-Year
Treasury CMT, and (z) 30-Year Treasury CMT, as applicable for such Quarterly
Interest Accrual Period and (ii) 13.25% (such rate the "Floating Rate" with
respect to such Quarterly Interest Accrual Period) until the principal thereof
is paid, and (to the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at the Floating Rate
prevailing from time to time, compounded quarterly at such prevailing Floating
Rates. During the Fixed Rate Period, the amount of interest payable on any
Semi-Annual Interest Payment Date will be computed on the basis of a 360-day
year of twelve 30-day months, and the amount of interest payable for any period
shorter or longer than a full semi-annual period for which interest is computed,
will be computed on the basis of the actual number of days elapsed in such
180-day semi-annual period. During the Floating Rate Period, the amount of
interest payable for any period will be computed by multiplying the annual
Floating Rate in effect for the Quarterly Interest Accrual Period or portion
thereof in respect of which the interest payment is made by a fraction, the
numerator of which will be the actual number of days in such Quarterly Interest
Accrual Period (or a portion thereof) (determined by including the first day
thereof and excluding the last day thereof) and the denominator of which will be
365, and multiplying the product obtained thereby by the principal amount
hereof. In the event that any date on which interest is payable on this Debt
Security is not a Business Day, then payment of interest payable on such date
will be made on the next succeeding day which is a Business Day (and, in the
case of a Semi-Annual Interest Payment Date, without any interest or other
payment in respect of any such delay). 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 Debt
Security (or one or more Predecessor Securities, as defined in said Indenture)
is registered at the close of business on the regular record date for such
interest installment. In the case of a Global Security or any Debt Securities of
which the Property Trustee is the holder, such regular record date which, in
respect of (i) Debt Securities of which the Property Trustee is the registered
holder and the Preferred Securities are in book-entry only form or (ii) a Global
Security, shall be the close of business on the Business Day next preceding that
Interest Payment Date. Notwithstanding the foregoing sentence, if (i) the Debt
Securities are held by the Property Trustee and the Preferred Securities are no
longer in book-entry only form or (ii) the Debt Securities are not represented
by a Global Security, the Company may select a regular record date at least one
Business Day before an Interest Payment Date. Any such interest installment not
punctually paid or duly
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provided for shall forthwith cease to be payable to the registered holders on
such regular record date, and may be paid to the Person in whose name this Debt
Security (or one or more Predecessor Securities) is registered at the close of
business on a special record date to be fixed by the Trustee for the payment of
such defaulted interest, notice whereof shall be given to the registered holders
of this series of Debt Securities not less than ten (10) days prior to such
special record date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Debt
Securities may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture. The principal of (and
premium, if any) and the interest (including Compounded Interest, Additional
Interest, Registration Default Damages and Gross-Up Payments, if any) on this
Debt Security shall be payable at the office or agency of the Trustee maintained
for that purpose in Wilmington, Delaware, in any coin or currency of the United
States of America which at the time of payment is legal tender for payment of
public and private debts; provided, however, that payment of interest may be
made at the option of the Company by check mailed to the registered holder at
such address as shall appear in the Security Register. Notwithstanding the
foregoing, so long as the holder of this Debt Security is the Property Trustee,
the payment of the principal of (and premium, if any) and interest on this Debt
Security will be made at such place and to such account as may be designated by
the Property Trustee.
The indebtedness evidenced by this Debt Security is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Indebtedness, and this Debt Security is
issued subject to the provisions of the Indenture with respect thereto. Each
holder of this Debt Security, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee on his behalf
to take such action as may be necessary or appropriate to acknowledge or
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, hereby 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.
This Debt Security shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any
purpose until the Certificate of Authentication hereon shall have been signed
by or on behalf of the Trustee.
The provisions of this Debt Security are continued on the reverse
side hereof and such continued provisions shall for all purposes have the same
effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
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Dated:
THE STANLEY WORKS
By:
Name:
Title:
Attest:
By:
Assistant Secretary
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series of Debt
Securities described in the within-mentioned Indenture.
HSBC Bank USA, National Association,
Not in its individual capacity but solely
as Trustee
By: _____________________
Authorized Officer
(FORM OF REVERSE OF NOTE)
This Debt Security is one of a duly authorized series of Debt
Securities of the Company (herein sometimes referred to as the "Debt
Securities"), specified in the Indenture, all issued or to be issued in one or
more series under and pursuant to an Indenture dated as of November 22, 2005,
duly executed and delivered between the Company and HSBC Bank USA, National
Association, not in its individual capacity but solely as trustee (the
"Trustee"), as supplemented by the First Supplemental Indenture thereto, dated
as of November 22, 2005, between the Company and the Trustee (the Indenture, as
so supplemented, the "Indenture"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the holders of the Debt Securities. By the terms of
the Indenture, the Debt Securities are issuable in series which may vary as to
amount, date of maturity, rate of interest and in other respects as provided in
the Indenture.
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Upon the occurrence and continuation of a Tax Event or an Investment
Company Event, as defined below, the Company shall have the right to redeem the
Debt Securities in whole, but not in part, for cash at the principal amount
together with any interest accrued and unpaid thereon (the "Special Redemption
Price") within 90 days following the occurrence of such Special Event. The
Company shall have the right to redeem this Debt Security at the option of the
Company, in whole, but not in part, at any time prior to December 1, 2010 at
the Make Whole Redemption Price. In addition, the Company shall have the right
to redeem this Debt Security at the option of the Company, without premium or
penalty, in whole or in part, from time to time, on or after December 1, 2010
(an "Optional Redemption"), at a redemption price equal to 100% of the
principal amount plus any accrued but unpaid interest, including Additional
Interest, if any, to the date of such redemption (the "Optional Redemption
Price"). The Special Redemption Price, Make Whole Redemption Price or Optional
Redemption Price, as applicable, shall be paid prior to 12:00 noon, New York
time, on the date of such redemption, or at such earlier time as the Company
determines.
Any redemption of the Debt Securities will be made upon not less than
30 days' nor more than 60 days' notice. If the Debt Securities are only
partially redeemed by the Company pursuant to an Optional Redemption, the Debt
Securities will be redeemed pro rata or by lot or by any other method utilized
by the Trustee; provided, that if at the time of redemption, the Debt
Securities are registered as a Global Security, the Depositary shall determine
the principal amount of such Debt Securities beneficially held by each holder
of a Debt Security to be redeemed.
In the event of redemption of this Debt Security in part only, a new
Debt Security or Debt Securities of this series for the unredeemed portion
hereof will be issued in the name of the holder hereof upon the cancellation
hereof.
In case an Acceleration Event of Default, as defined in the
Indenture, shall have occurred and be continuing, the principal of all of the
Debt Securities may be declared, and upon such declaration shall become, due
and payable, in the manner, with the effect and subject to the conditions
provided in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the Debt Securities of each series affected at
the time outstanding, as defined in the Indenture, to execute supplemental
indentures for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or of modifying in any manner the rights of the holders
of the Debt Securities; provided, however, that no such supplemental indenture
shall, without the consent of the holder of each Debt Security so affected, (i)
extend the fixed maturity of any Debt Securities of any series, or reduce the
principal amount thereof, or reduce the rate or extend the time of payment of
interest thereon, or reduce any premium payable upon the redemption thereof;
(ii) amend, modify or waive the Company's covenant to use its commercially
reasonable efforts to effect certain stock
-39-
sales without a prior to simultaneous irrevocable elimination of the restriction
contained in the Indenture of the Company's ability to pay deferred interest
other than from the proceeds of certain stock sales; or (iii) reduce the
aforesaid percentage of Debt Securities, the holders of which are required to
consent to any such supplemental indenture. The Indenture also contains
provisions permitting the holders of a majority in aggregate principal amount of
the Debt Securities of any series at the time outstanding affected thereby, on
behalf of all of the holders of the Debt Securities of such series, to waive any
past default in the performance of any of the covenants contained in the
Indenture, or established pursuant to the Indenture with respect to such series,
and its consequences, except a default in the payment of the principal of or
premium, if any, or interest on any of the Debt Securities of such series. Any
such consent or waiver by the registered holder of this Debt Security (unless
revoked as provided in the Indenture) shall be conclusive and binding upon such
holder and upon all future holders and owners of this Debt Security and of any
Debt Security issued in exchange herefor or in place hereof (whether by
registration of transfer or otherwise), irrespective of whether or not any
notation of such consent or waiver is made upon this Debt Security.
No reference herein to the Indenture and no provision of this Debt
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 Debt Security at the time and place and
at the rate and in the money herein prescribed.
So long as no Acceleration Event of Default has occurred and is
continuing, the Company shall have the right at any time during the term of the
Debt Securities, from time to time, to elect to defer payment of interest on
the Debt Securities on any Interest Payment Date, provided that (i) no such
deferral may extend beyond the maturity date of, or redemption date, for the
Debt Securities and (ii) no Mandatory Deferral Trigger Event with respect to
such Interest Payment Date has occurred prior to the issuance of the Company's
notice of election ("Optional Deferral"). The Company may not elect Optional
Deferral for an Interest Payment Date if the Optional Deferral Period ending on
such Interest Payment Date, together with all consecutive Optional Deferral
Periods and Mandatory Deferral Periods, or combination thereof, preceding such
elected Optional Deferral Period, with respect to which any Deferred Interest
remains outstanding, would exceed ten years. Interest on the Debt Securities
will continue to accrue and compound during an Optional Deferral Period. Upon
the termination of an Optional Deferral Period and upon the payment of all
Deferred Interest, Registration Default Damages, Additional Interest and
Gross-Up Payments then due, the Company may select a new period of Optional
Deferral, subject to the foregoing requirements. No interest shall be due and
payable during a period of Optional Deferral, except at the end thereof, but
the Company may prepay at any time all or any portion of the interest accrued
during an Optional Deferral Period. In the event that the Company provides a
notice of election of Optional Deferral for an Interest Payment Date prior to
the Trigger Determination Date for such Interest Payment Date, the notice of
election of Optional Deferral will control and the deferral of interest on such
Interest Payment Date will be
-40-
considered an Optional Deferral for all purposes notwithstanding the subsequent
occurrence of a Mandatory Deferral Trigger Event on the Trigger Determination
Date with respect to such Interest Payment Date.
Subject to the following sentence, the Company shall not pay interest
on the Debt Securities on any Interest Payment Date in an amount in excess of
the New Common Equity Amount if a Mandatory Deferral Trigger Event has occurred
on the Trigger Determination Date with respect to such Interest Payment Date.
Notwithstanding the occurrence of a Mandatory Deferral Trigger Event, the
Company shall pay all interest due and payable on the Debt Securities (i) on
the maturity or earlier redemption thereof, and (ii) on the first Interest
Payment Date to occur following deferral of interest on the Debt Securities due
to Mandatory Deferral, Optional Deferral, or any combination thereof, that has
continued without payment in full of all deferred interest for consecutive
semi-annual and/or quarterly interest accrual periods aggregating to in excess
of ten years. Deferral of interest on the Debt Securities required under the
terms of the Indenture is referred to as "Mandatory Deferral."
The Company shall give notice of any election of an Optional Deferral
not fewer than 15 nor more than 60 days prior to the Interest Payment Date for
which interest on the Debt Securities will be deferred. If a Mandatory Deferral
Trigger Event has occurred as of any Trigger Determination Date, the Company
shall give notice thereof not less than 15 days prior to the related Interest
Payment Date.
The Company may not pay on any Interest Payment Date interest that
has accrued during the semi-annual interest accrual period or quarterly
interest accrual period, as applicable, immediately preceding such Interest
Payment Date, unless the Company pays therewith all Deferred Interest at such
time outstanding on the Debt Securities. The Company may not pay Deferred
Interest on any Interest Payment Date in an amount that exceeds the New Common
Equity Amount for such Interest Payment Date.
Each Holder of a Debt 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 with respect to the Company, such Holder shall not have a claim for
interest deferred due to Mandatory Deferral and unpaid (and Compounded
Interest, Additional Interest and Gross-Up Payments thereon), to the extent
that the aggregate amount thereof (including Compounded Interest, Additional
Interest and Gross-Up Payments thereon) exceeds 25% of the original principal
amount of the Debt Securities in respect of which such interest was deferred.
As provided in the Indenture and subject to certain limitations
therein set forth, this Debt Security is transferable by the registered holder
hereof on the Security Register of the Company, upon surrender of this Debt
Security for registration of transfer
-41-
at the office or agency of the Trustee in New York, New York accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Company or the Trustee duly executed by the registered holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Debt
Securities of authorized denominations and for the same aggregate principal
amount and series will be issued to the designated transferee or transferees. No
service charge will be made for any such transfer, but the Company or the
Trustee may require payment of a sum sufficient to cover any tax or other
governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Debt
Security, the Company, the Trustee, any paying agent and any Security Registrar
may deem and treat the registered holder hereof as the absolute owner hereof
(whether or not this Debt Security shall be overdue and notwithstanding any
notice of ownership or writing hereon made by anyone other than the Security
Registrar) for the purpose of receiving payment of or on account of the
principal hereof and premium, if any, and interest due hereon and for all other
purposes, and neither the Company nor the Trustee nor any paying agent nor any
Security Registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of
or the interest on this Debt 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 corporation,
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 Debt Securities of this series are issuable only in
registered form without coupons in denominations of $1,000 and any integral
multiple thereof. [This Global Security is exchangeable for Debt Securities in
definitive form only under certain limited circumstances set forth in the
Indenture. Debt Securities of this series so issued 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, Debt Securities of this series are exchangeable
for a like aggregate principal amount of Debt Securities of this series of a
different authorized denomination, as requested by the Holder surrendering the
same.
All terms used in this Debt Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
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ARTICLE VIII
ORIGINAL ISSUE OF NOTES
Section 8.1 Original Issue of Debt Securities. Debt Securities
in the aggregate principal amount of $450,100,000 may, upon execution of this
Supplemental Indenture, be executed by the Company and delivered to the Trustee
for authentication, and the Trustee shall thereupon authenticate and deliver
said Debt Securities to or upon the written order of the Company, signed by its
President or any Vice President and its Treasurer or an Assistant Treasurer,
without any further action by the Company.
-43-
ARTICLE IX
Section 9.1 Limitation on Claim for Certain Deferred Interest
in Bankruptcy. Each holder of a Debt 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 with respect to the Company, such Holder shall not have a claim
for interest deferred due to Mandatory Deferral and unpaid (and Compounded
Interest, Additional Interest and Gross-Up Payments thereon), to the extent
that the aggregate amount thereof (including Compounded Interest, Additional
Interest and Gross-Up Payments thereon) exceeds 25% of the original principal
amount of such Debt Security in respect of which such interest was deferred.
Amounts to which the Holders of the Debt Securities would have been entitled to
receive hereunder, but for operation of this Section 9.1 are referred to as
"Foregone Deferred Interest."
-44-
ARTICLE X
APPLICABILITY OF DEFEASANCE AND COVENANT DEFESANCE
Section 10.1 Applicability of Defeasance and Covenant
Defeasance. The Debt Securities will be subject to defeasance and discharge
pursuant to Sections 11.02 and 11.03 of the Indenture in accordance with the
provisions of Article XI of the Indenture.
-45-
ARTICLE XI
MISCELLANEOUS
Section 11.1 Ratification of Indenture. The Indenture, as
supplemented by this Supplemental Indenture, is in all respects ratified and
confirmed, and this Supplemental Indenture shall be deemed part of the
Indenture in the manner and to the extent herein and therein provided.
Section 11.2 Trustee Not Responsible for Recitals. The recitals
herein contained are made by the Company and not by the Trustee, and the
Trustee assumes no responsibility for the correctness thereof. The Trustee
makes no representation as to the validity or sufficiency of this Supplemental
Indenture.
Section 11.3 Governing Law. This Supplemental Indenture and each
Debt Security shall be deemed to be a contract made under the internal laws of
the State of New York, and for all purposes shall be construed in accordance
with the laws of said State.
Section 11.4 Separability. In case any one or more of the
provisions contained in this Supplemental Indenture or in the Debt Securities
shall for any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provisions of this Supplemental Indenture or of the Debt Securities, but
this Supplemental Indenture and the Debt Securities shall be construed as if
such invalid or illegal or unenforceable provision had never been contained
herein or therein.
Section 11.5 Counterparts. This Supplemental Indenture may be
executed in any number of counterparts each of which shall be an original; but
such counterparts shall together constitute but one and the same instrument.
-46-
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, on the date or dates indicated in the
acknowledgements and as of the day and year first above written.
THE STANLEY WORKS
By: /s/ Craig A. Douglas
---------------------------
Name: Craig A. Douglas
Title: Vice President and Treasurer
|
HSBC BANK USA, NATIONAL ASSOCIATION,
Not in Its Individual Capacity
But Solely as Trustee
By: /s/ Frank J. Godino
---------------------------
Name: Frank J. Godino
Title: Vice President
/s/ Gloria Alli
---------------------------
Gloria Alli
Assistant Vice President
|
-47-
Exhibit 4.8
PREFERRED SECURITIES GUARANTEE AGREEMENT
Between
The Stanley Works
(as Guarantor)
and
HSBC Bank USA, National Association
(as Trustee)
dated as of
November 22, 2005
CROSS-REFERENCE TABLE*
SECTION OF GUARANTEE AGREEMENT
TRUST INDENTURE ACT SECTION OF GUARANTEE
OF 1939, AS AMENDED AGREEMENT
310(a)................................................... 4.01(a)
310(b)................................................... 4.01(c), 2.08
310(c)................................................... Inapplicable
311(a)................................................... 2.02(b)
311(b)................................................... 2.02(b)
311(c)................................................... Inapplicable
312(a)................................................... 2.02(a)
312(b)................................................... 2.02(b)
313...................................................... 2.03
314(a)................................................... 2.04
314(b)................................................... Inapplicable
314(c)................................................... 2.05
314(d)................................................... Inapplicable
314(e)................................................... 1.01, 2.05, 3.02
314(f)................................................... 2.01, 3.02
315(a)................................................... 3.01(d)
315(b)................................................... 2.07
315(c)................................................... 3.01
315(d)................................................... 3.01(d)
316(a)................................................... 1.01, 2.06, 5.04
316(b)................................................... 5.03
316(c)................................................... 9.02
317(a)................................................... Inapplicable
317(b)................................................... Inapplicable
318(a)................................................... 2.01(b)
318(b)................................................... 2.01
318(c)................................................... 2.01(a)
_____________
|
* This Cross-Reference Table does not constitute part of the Guarantee
Agreement and shall not affect the interpretation of any of its terms
or provisions.
TABLE OF CONTENTS
ARTICLE I DEFINITIONS.........................................................1
SECTION 1.01. Definitions..................................................1
ARTICLE II TRUST INDENTURE ACT................................................4
SECTION 2.01. Trust Indenture Act; Application.............................4
SECTION 2.02. Lists of Holders of Securities...............................4
SECTION 2.03. Reports by the Trustee.......................................5
SECTION 2.04. Periodic Reports to Trustee..................................5
SECTION 2.05. Evidence of Compliance with Conditions Precedent.............5
SECTION 2.06. Events of Default; Waiver....................................5
SECTION 2.07. Event of Default; Notice.....................................5
SECTION 2.08. Conflicting Interests........................................6
ARTICLE III POWERS, DUTIES AND RIGHTS OF TRUSTEE..............................6
SECTION 3.01. Powers and Duties of the Trustee.............................6
SECTION 3.02. Certain Rights of Trustee....................................7
SECTION 3.03. Not Responsible for Recitals or Issuance of Preferred
Securities...................................................9
ARTICLE IV TRUSTEE............................................................9
SECTION 4.01. Trustee; Eligibility.........................................9
SECTION 4.02. Appointment, Removal and Resignation of Trustee..............9
ARTICLE V GUARANTEE..........................................................10
SECTION 5.01. Guarantee...................................................10
SECTION 5.02. Waiver of Notice and Demand.................................10
SECTION 5.03. Obligations Not Affected....................................10
SECTION 5.04. Rights of Holders...........................................11
SECTION 5.05. Guarantee of Payment........................................12
SECTION 5.06. Subrogation.................................................12
SECTION 5.07. Independent Obligations.....................................12
ARTICLE VI LIMITATION OF TRANSACTIONS; SUBORDINATION.........................12
SECTION 6.01. Limitation of Transactions..................................12
SECTION 6.02. Subordination...............................................13
ARTICLE VII TERMINATION......................................................13
SECTION 7.01. Termination.................................................13
ARTICLE VIII INDEMNIFICATION.................................................13
SECTION 8.01. Exculpation.................................................13
SECTION 8.02. Indemnification.............................................14
SECTION 8.03. Compensation and Fees.......................................14
ARTICLE IX MISCELLANEOUS.....................................................14
SECTION 9.01. Successors and Assigns......................................14
SECTION 9.02. Amendments..................................................14
i
SECTION 9.03. Notices.....................................................15
SECTION 9.04. Benefit.....................................................16
SECTION 9.05. Interpretation..............................................16
SECTION 9.06. Governing Law...............................................16
SECTION 9.07. Counterparts................................................17
|
ii
PREFERRED SECURITIES GUARANTEE AGREEMENT
This PREFERRED SECURITIES GUARANTEE AGREEMENT ("Guarantee
Agreement"), dated as of November 22, 2005, is between THE STANLEY WORKS, a
Connecticut corporation (the "Company"), as guarantor (the "Guarantor"), and
HSBC Bank USA, National Association, a national banking association, as trustee
(the "Trustee"), for the benefit of the Holders (as defined herein) from time
to time of the Preferred Securities (as defined herein) of The Stanley Works
Capital Trust I, a Delaware statutory business trust (the "Trust").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust
(the "Declaration of Trust"), dated as of November 22, 2005, among HSBC Bank
USA, National Association, as Delaware and Property Trustee, the Administrative
Trustees named therein, the Company, as Sponsor, and the holders of undivided
beneficial interests in the assets of the Trust, the Trust is issuing as of the
date hereof 450,000 preferred securities, having an aggregate liquidation
amount of $450,000,000, designated the 5.902% Fixed Rate/Floating Rate Enhanced
Trust Preferred Securities (together with the New Preferred Securities, the
"Preferred Securities") representing preferred undivided beneficial interests
in the assets of the Trust and having the terms set forth in the Declaration of
Trust;
WHEREAS, the Preferred Securities will be issued by the Trust and the
proceeds from the initial sale thereof to the initial purchasers thereof will
be used to purchase the Debt Securities (as defined in the Declaration of
Trust) of the Company, which will be held by the Trust as trust assets; and
WHEREAS, as incentive for the Holders to purchase the Preferred
Securities, the Guarantor desires to irrevocably and unconditionally agree, to
the extent set forth herein, to pay to the Holders the Guarantee Payments (as
defined herein) and to make certain other payments on the terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of the payment for Preferred
Securities by each Holder (as defined herein) thereof, which payment the
Guarantor hereby agrees shall benefit the Guarantor, the Guarantor executes and
delivers this Guarantee Agreement for the benefit of the Holders from time to
time of the Preferred Securities.
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. As used in this Guarantee Agreement,
the terms set forth below shall, unless the context otherwise requires, have
the following meanings. Capitalized or otherwise defined terms used but not
otherwise defined herein shall have the meanings assigned to such terms in the
Declaration of Trust as in effect on the date hereof.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Common Securities" means the securities representing common
undivided beneficial interests in the assets of the Trust.
"Covered Person" means any Holder or beneficial owner of Preferred
Securities.
"Debt Securities" means the series of junior subordinated debt
securities of the Guarantor designated the "5.902% Fixed Rate/Floating Rate
Junior Subordinated Debt Securities due 2045" held by the Property Trustee (as
defined in the Declaration of Trust) of the Trust.
"Event of Default" means a failure by the Guarantor to perform any of
its payment obligations under this Guarantee Agreement.
"First Supplemental Indenture" means the First Supplemental
Indenture, dated as of November 22, 2005, by and between the Company and HSBC
Bank USA, National Association, as trustee, to the Indenture.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Preferred Securities, to the extent
not paid or made by or on behalf of the Trust: (i) any accrued and unpaid
Distributions (as defined in the Declaration of Trust) that are required to be
paid on such Preferred Securities to the extent the Trust has funds legally
available therefor to make such payment; (ii) the redemption price, including
all accrued and unpaid Distributions to the date of redemption (the "Redemption
Price"), with respect to the Preferred Securities called for redemption by the
Trust to the extent that the Trust has funds legally available therefor to make
such payment; and (iii) upon a voluntary or involuntary dissolution, winding-up
or termination of the Trust (other than in connection with the distribution of
Debt Securities to the Holders), the lesser of (a) the aggregate of the
liquidation amount and all accrued and unpaid distributions on the Preferred
Securities to the date of payment, to the extent the Trust has funds legally
available therefor, and (b) the amount of assets of the Trust remaining
available for distribution to Holders in liquidation of the Trust (in either
case, the "Liquidation Distribution"). For the avoidance of doubt, in the event
of the payment or distribution of assets to creditors of the Guarantor upon any
dissolution, winding up, reorganization, or in connection with any insolvency,
receivership or proceeding under any Bankruptcy Law with respect to the
Guarantor, the term Guarantee Payments shall not include amounts in respect of
Foregone Deferred Interest.
"Holder" means any holder, as registered on the books and records of
the Trust, of any Preferred Securities; provided, however, that in determining
whether the holders of the requisite percentage of Preferred Securities have
given any request, notice, consent or waiver hereunder, "Holder" shall not
include the Guarantor or any subsidiary of the Guarantor.
"Indemnified Person" means the Trustee, any Affiliate of the Trustee,
or any officers, directors, shareholders, members, partners, employees,
representatives, nominees, custodians or agents of the Trustee.
2
"Indenture" means the Indenture, dated as of November 22, 2005,
between the Company and HSBC Bank USA, National Association, as trustee, as
supplemented by the First Supplemental Indenture.
"Majority in liquidation amount of the Preferred Securities" means,
except as provided in the Trust Indenture Act, a vote by Holder(s) of Preferred
Securities of more than 50% of the aggregate liquidation amount (including the
stated amount that would be paid on redemption, liquidation or otherwise, plus
accumulated and unpaid Distributions to the date upon which the voting
percentages are determined) of all Preferred Securities outstanding at the time
of determination.
"New Preferred Securities" means preferred securities issued by the
Trust in exchange for the Preferred Securities initially issued by the Trust in
accordance with the terms of the Registration Rights Agreement.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the Guarantor,
and delivered to the Trustee. Any Officers' Certificate delivered with respect
to compliance with a condition or covenant provided for in this Guarantee
Agreement (other than pursuant to Section 314(d)(4) of the Trust Indenture Act)
shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Other Guarantees" means all guarantees to be issued, by the
Guarantor with respect to the preferred or common securities similar to the
Preferred Securities and the Common Securities (as defined in the Declaration
of Trust), as the case may be, issued by other trusts established, or to be
established, by the Guarantor, in each case similar to the Trust and holding
Pari Debt Securities, as defined in the First Supplemental Indenture.
"Other Indebtedness" means all subordinated notes, debentures or
other indebtedness hereinafter issued by the Guarantor from time to time and
sold to trusts established, or to be established, by the Guarantor, in each
case similar to the Trust.
"Person" means any individual, corporation, estate, partnership,
limited liability company, joint venture, association, trust, unincorporated
organization or government or any agency or political subdivision thereof or
any other entity of whatever nature.
3
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of November 22, 2005, between the Company, the Trust and
the initial purchasers named therein.
"Responsible Officer" means, with respect to the Trustee, any officer
of the Corporate Trust and Agency Group of the Trustee having direct
responsibility for the administration of this Guarantee Agreement and also
means, with respect to a particular corporate trust matter, any other officer
to whom such matter is referred because of that officer's knowledge of and
familiarity with the particular subject.
"Successor Trustee" means a successor Trustee possessing the
qualifications to act as Trustee under Section 4.01.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Trustee" means HSBC Bank USA, National Association, a national
banking association, until a Successor Trustee has been appointed and has
accepted such appointment pursuant to the terms of this Guarantee Agreement and
thereafter means each such Successor Trustee.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01. Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the provisions of the
Trust Indenture Act that are required to be part of this Guarantee Agreement
and shall, to the extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Guarantee
Agreement limits, qualifies or conflicts with the duties imposed by Sections
310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
SECTION 2.02. Lists of Holders of Securities.
(a) The Guarantor shall furnish or cause to be furnished to the
Trustee a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders ("List of Holders") (i) semiannually, not
later than June 1 and December 1 in each year, as of a date not more than 15
days prior to the time such list is furnished, and (ii) at such other times as
the Trustee may request in writing, within 30 days after the receipt by the
Guarantor of any such request, a List of Holders as of a date not more than 15
days prior to the time such list is furnished; provided that, the Guarantor
shall not be obligated to provide such List of Holders at any time the List of
Holders does not differ from the most recent List of Holders given to the
Trustee by the Guarantor or at any time the Trustee is the Securities Registrar
under the Declaration of Trust. The Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
4
(b) The Trustee shall comply with its obligations under Sections
311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.03. Reports by the Trustee. Not later than July 15 of each
year commencing July 15, 2006, the Trustee shall provide to the Holders of the
Preferred Securities such reports as are required by Section 313(a) of the
Trust Indenture Act, if any, in the form and in the manner provided by Section
313 of the Trust Indenture Act. The Trustee shall also comply with the other
requirements of Section 313 of the Trust Indenture Act.
SECTION 2.04. Periodic Reports to Trustee. The Guarantor shall
provide to the Trustee such documents, reports and information as required by
Section 314 of the Trust Indenture Act (if any) in the form, in the manner and
at the times required by Section 314 of the Trust Indenture Act, and shall
provide, within 120 days after the end of each of its fiscal years, the
compliance certificate required by Section 314(a)(4) of the Trust Indenture Act
in the form and in the manner required by such Section. Delivery of reports to
the Trustee pursuant to Section 314(a)(1) of the Trust Indenture Act is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Guarantor's
compliance with any of its covenants hereunder.
SECTION 2.05. Evidence of Compliance with Conditions Precedent. The
Guarantor shall provide to the Trustee such evidence of compliance with the
conditions precedent, if any, provided for in this Guarantee Agreement that
relate to any of the matters set forth in Section 314(c) of the Trust Indenture
Act. Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) may be given in the form of an Officers' Certificate.
SECTION 2.06. Events of Default; Waiver. The Holders of a Majority
in liquidation amount of the Preferred Securities may, by vote, on behalf of
all of the Holders, waive any past Event of Default and its consequences. Upon
such waiver, any such Event of Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Guarantee Agreement, but no such waiver shall extend to any subsequent
or other default or Event of Default or impair any right consequent thereon.
SECTION 2.07. Event of Default; Notice.
(a) The Trustee shall, within 90 days after the occurrence of an
Event of Default, transmit by mail, first class postage prepaid, to the
Holders, notices of all Events of Default known to a Responsible Officer of the
Trustee, unless such defaults have been cured before the giving of such notice,
provided that 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.
(b) The Trustee shall not be deemed to have knowledge of any Event of
Default unless the Trustee shall have received written notice thereof from the
Guarantor or a Holder, or a Responsible Officer charged with the administration
of the Declaration of Trust shall have obtained actual knowledge, of such Event
of Default.
5
SECTION 2.08. Conflicting Interests. The Declaration of Trust
shall be deemed to be specifically described in this Guarantee Agreement for
the purposes of clause (i) of the first proviso contained in Section 310(b) of
the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF TRUSTEE
SECTION 3.01. Powers and Duties of the Trustee.
(a) This Guarantee Agreement shall be held by the Trustee for the
benefit of the Holders, and the Trustee shall not transfer this Guarantee
Agreement to any Person except the Trustee may assign rights hereunder to a
Holder exercising his or her rights pursuant to Section 5.04(b) or to a
Successor Trustee upon acceptance by such Successor Trustee of its appointment
to act as Successor Trustee. The right, title and interest of the Trustee shall
automatically vest in any Successor Trustee, and such vesting and cessation of
title shall be effective whether or not conveyancing documents have been
executed and delivered pursuant to the appointment of such Successor Trustee.
(b) If an Event of Default actually known to a Responsible Officer of
the Trustee has occurred and is continuing, the Trustee shall enforce this
Guarantee Agreement for the benefit of the Holders.
(c) The Trustee, before the occurrence of any Event of Default and
after the curing or waiving of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Guarantee Agreement, and no implied covenants shall be read into this
Guarantee Agreement against the Trustee. In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section 2.06), the
Trustee shall exercise such of the rights and powers vested in it by this
Guarantee Agreement, and use the same degree of care and skill in its exercise
thereof, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(d) No provision of this Guarantee Agreement 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:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Guarantee
Agreement, and the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set
forth in this Guarantee Agreement, and no implied covenants or
obligations shall be read into this Guarantee Agreement against the
Trustee; and
(B) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the
6
Trustee and conforming to the requirements of this Guarantee
Agreement; but in the case of any such certificates or opinions that
by any provision hereof are specifically required to 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
Guarantee Agreement;
(ii) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent facts
upon which such judgment was made;
(iii) 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 the Holders of not less than a Majority in liquidation amount
of the Preferred Securities 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
Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement shall require the
Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if the Trustee shall have
reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this Guarantee
Agreement or adequate indemnity against such risk or liability is not
reasonably assured to it.
SECTION 3.02. Certain Rights of Trustee.
(a) Subject to the provisions of Section 3.01:
(i) 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, sent or
presented by the proper party or parties;
(ii) any direction, order or demand of the Guarantor contemplated by
this Guarantee Agreement shall be sufficiently evidenced by an Officers'
Certificate;
(iii) whenever, in the administration of this Guarantee Agreement,
the Trustee shall deem it desirable that a matter be proved or established
before taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence is herein specifically prescribed) may, in the
absence of bad faith on its part, request and rely upon an Officers'
Certificate which, upon receipt of such request, shall be promptly
delivered by the Guarantor;
(iv) the Trustee may consult with counsel of its choice, and the
advice or opinion of such counsel with respect to legal matters 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 accordance
with such advice or opinion; such counsel may be counsel to the Guarantor
or any of its Affiliates and may include any of its employees; the Trustee
shall
7
have the right at any time to seek instructions concerning the
administration of this Guarantee Agreement from any court of competent
jurisdiction;
(v) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Guarantee Agreement at the request,
order or direction of any Holder, unless such Holder shall have offered to
the Trustee reasonable security or indemnity satisfactory to the Trustee
against the costs, expenses (including attorneys' fees and expenses) and
liabilities that might be incurred by it in complying with such request,
order or direction, including such reasonable advances as may be requested
by the Trustee; provided that nothing contained in this Section 3.02(a)(v)
shall be taken to relieve the Trustee, upon the occurrence of an Event of
Default, of its obligation to exercise the rights and powers vested in it
by this Guarantee Agreement;
(vi) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit;
(vii) 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;
(viii) any action taken by the Trustee or its agents hereunder shall
bind the Holders, and the signature of the Trustee or its agents alone
shall be sufficient and effective to perform any such action; no third
party shall be required to inquire as to the authority of the Trustee to so
act or as to its compliance with any of the terms and provisions of this
Guarantee Agreement, both of which shall be conclusively evidenced by the
Trustee's or its agent's taking such action;
(ix) whenever in the administration of this Guarantee Agreement the
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder, the
Trustee (A) may request instructions from the Holders of a Majority in
liquidation amount of the Preferred Securities, (B) may refrain from
enforcing such remedy or right or taking such other action until such
instructions are received, and (C) shall be protected in acting in
accordance with such instructions; and
(x) the Trustee shall not be liable for any action taken, suffered,
or omitted to be taken by it in good faith, without negligence, and
reasonably believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Guarantee Agreement.
(b) No provision of this Guarantee Agreement shall be deemed to
impose any duty or obligation on the Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such
8
act or acts or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Trustee shall be construed to be
a duty.
SECTION 3.03. Not Responsible for Recitals or Issuance of
Preferred Securities. The recitals contained in this Guarantee Agreement shall
be taken as the statements of the Guarantor, and the Trustee does not assume
any responsibility for their correctness. The Trustee makes no representation
as to the validity or sufficiency of this Guarantee Agreement.
ARTICLE IV
TRUSTEE
SECTION 4.01. Trustee; Eligibility.
(a) There shall at all times be a Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the laws of
the United States of America or any State or Territory thereof or of the
District of Columbia, or a corporation or Person permitted by the
Securities and Exchange Commission to act as an institutional trustee under
the Trust Indenture Act, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least 50 million
U.S. dollars ($50,000,000), and subject to supervision or examination by
Federal, State, Territorial or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of the supervising or examining authority
referred to above, then, for the purposes of this Section 4.01(a)(ii), 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.
(b) If at any time the Trustee shall cease to be eligible to so act
under Section 4.01(a), the Trustee shall immediately resign in the manner and
with the effect set out in Section 4.02(c).
(c) If the Trustee has or shall acquire any "conflicting interest"
within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee
and Guarantor shall in all respects comply with the provisions of Section
310(b) of the Trust Indenture Act, subject to the rights of the Trustee under
the penultimate paragraph thereof.
SECTION 4.02. Appointment, Removal and Resignation of Trustee.
(a) Subject to Section 4.02(b), the Trustee may be appointed or
removed without cause at any time by the Guarantor except during an Event of
Default.
(b) The Trustee shall not be removed in accordance with Section
4.02(a) until a Successor Trustee has been appointed and has accepted such
appointment by written instrument executed by such Successor Trustee and
delivered to the Guarantor.
9
(c) The Trustee appointed to office shall hold office until a
Successor Trustee shall have been appointed or until its removal or
resignation. The Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument in writing executed by the Trustee and
delivered to the Guarantor, which resignation shall not take effect until a
Successor Trustee has been appointed and has accepted such appointment by
instrument in writing executed by such Successor Trustee and delivered to the
Guarantor and the resigning Trustee.
(d) If no Successor Trustee shall have been appointed and accepted
appointment as provided in this Section 4.02 within 60 days after delivery to
the Guarantor of an instrument of resignation, the resigning Trustee may
petition any court of competent jurisdiction for appointment of a Successor
Trustee. Such court may thereupon, after prescribing such notice, if any, as it
may deem proper, appoint a Successor Trustee.
(e) No Trustee shall be liable for the acts or omissions to act of
any Successor Trustee.
(f) Upon termination of this Guarantee Agreement or removal or
resignation of the Trustee pursuant to this Section 4.02, the Guarantor shall
pay to the Trustee all amounts due to the Trustee accrued to the date of such
termination, removal or resignation.
ARTICLE V
GUARANTEE
SECTION 5.01. Guarantee. The Guarantor irrevocably and
unconditionally agrees to pay in full to the Holders the Guarantee Payments
(without duplication of amounts theretofore paid by or on behalf of the Trust),
as and when due, regardless of any defense, right of set-off or counterclaim
which the Trust may have or assert against any Person. The Guarantor's
obligation to make a Guarantee Payment may be satisfied by direct payment of
the required amounts by the Guarantor to the Holders or by causing the Trust to
pay such amounts to the Holders.
SECTION 5.02. Waiver of Notice and Demand. The Guarantor hereby
waives notice of acceptance of this Guarantee Agreement and of any liability to
which it applies or may apply, presentment, demand for payment, any right to
require a proceeding first against the Trust or any other Person before
proceeding against the Guarantor, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
SECTION 5.03. Obligations Not Affected. The obligations, covenants,
agreements and duties of the Guarantor under this Guarantee Agreement shall in
no way be affected or impaired by reason of the happening from time to time of
any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Trust of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be
performed or observed by the Trust;
(b) the extension of time for the payment by the Trust of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Preferred Securities or the extension
of time for the performance of any other
10
obligation under, arising out of, or in connection with, the Preferred
Securities (other than an extension of time for payment of Distributions,
Redemption Price, Liquidation Distribution or other sum payable that results
from the deferral of any interest payment on the Debt Securities permitted by
the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Holders pursuant to the terms of the Preferred
Securities, or any action on the part of the Trust granting indulgence or
extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or readjustment
of debt of, or other similar proceedings affecting, the Trust or any of the
assets of the Trust;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute
a legal or equitable discharge or defense of a guarantor, it being the intent
of this Section 5.03 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.04. Rights of Holders. The Guarantor expressly acknowledges:
(a) The Guarantee Agreement will be deposited with the Trustee to be
held for the benefit of the Holders. The Trustee has the right to enforce this
Guarantee Agreement on behalf of the Holders. The Holders of a Majority in
liquidation amount of the Preferred Securities have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee in respect of this Guarantee Agreement or exercising any trust or
power conferred upon the Trustee under this Guarantee Agreement; provided,
however, that, subject to the duties and responsibilities of the Indenture
Trustee pursuant to the Indenture, the Trustee shall have the right to decline
to follow any such direction if the Trustee shall determine that the action so
directed would be unjustly prejudicial to the Holders not taking part in such
direction or if the Trustee being advised by counsel determines that the action
or proceeding so directed may not lawfully be taken or if the Trustee in good
faith by its board of directors or trustees, executive committee, or a trust
committee of directors or trustees and/or Responsible Officers shall determine
that the action or proceedings so directed would involve the Trustee in
personal liability.
(b) If the Trustee fails to enforce this Guarantee Agreement, any
Holder may institute a legal proceeding directly against the Guarantor to
enforce the Trustee's rights under this Guarantee Agreement, without first
instituting a legal proceeding against the Trust, the Trustee or any other
person or entity. The Guarantor waives any right or remedy to require that any
action be
11
brought first against the Trust or any other person or entity before proceeding
directly against the Guarantor; it being understood and intended that no one or
more of such Holders shall have any right in any manner whatsoever by virtue of,
or by availing of, any provision of this Guarantee Agreement to affect, disturb
or prejudice the rights of any other of such Holders or to obtain or to seek to
obtain priority or preference over any other of such Holders or to enforce any
right under this Guarantee Agreement, except in the manner herein provided and
for the equal and ratable benefit of all such Holders.
SECTION 5.05. Guarantee of Payment. This Guarantee Agreement
creates a guarantee of payment and not of collection.
SECTION 5.06. Subrogation. The Guarantor shall be subrogated to
all (if any) rights of the Holders against the Trust in respect of any amounts
paid to the Holders by the Guarantor under this Guarantee Agreement; provided,
however, that the Guarantor shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise any rights
which it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this Guarantee
Agreement, if, at the time of any such payment, any amounts of Guarantee
Payments are due and unpaid under this Guarantee Agreement. If any amount shall
be paid to the Guarantor in violation of the preceding sentence, the Guarantor
agrees to hold such amount in trust for the Holders and to pay over such amount
to the Holders.
SECTION 5.07. Independent Obligations. The Guarantor acknowledges
that its obligations hereunder are independent of the obligations of the Trust
with respect to the Preferred Securities and that the Guarantor shall be liable
as principal and as debtor hereunder to make Guarantee Payments pursuant to the
terms of this Guarantee Agreement notwithstanding the occurrence of any event
referred to in subsections (a) through (g), inclusive, of Section 5.03 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.01. Limitation of Transactions. So long as any Preferred
Securities remain outstanding, if the Guarantor shall be in default with
respect to its payment of any obligations under this Guarantee Agreement, then
the Guarantor shall not (i) declare or pay any dividend on, make any
distributions with respect to, or redeem, purchase or make a liquidation
payment with respect to, any of the Guarantor's capital stock (other than (x)
repurchases, redemptions or other acquisitions of shares of capital stock of
the Guarantor in connection with any employment contract, benefit plan or other
similar arrangement with or for the benefit of employees, officers, directors
or consultants, (y) as a result of an exchange or conversion of any class or
series of the Guarantor's capital stock for any other class or series of the
Guarantor's capital stock, or (z) the purchase of fractional interests in
shares of the Guarantor's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or exchanged),
(ii) make any payment of principal, interest or premium, if any, on or repay or
repurchase or redeem any debt securities (including guarantees) of the
Guarantor that rank pari passu with or junior in right of payment to the Debt
Securities provided, however, the Guarantor may declare and pay a stock
dividend where the dividend stock is the same stock as that
12
on which the dividend is being paid or (iii) make any guarantee payments with
respect to the foregoing (except with respect to this Guarantee Agreement).
SECTION 6.02. Subordination. The obligations of the Guarantor under
this Guarantee Agreement will constitute unsecured obligations of the Guarantor
and will rank (i) subordinate and junior in right of payment to the Senior
Indebtedness (as defined in the First Supplemental Indenture) to the same
extent and in the same manner as the Debt Securities are subordinated to Senior
Indebtedness pursuant to the Indenture, it being understood that the terms of
Article VI of the Indenture shall apply to the obligations of the Guarantor
under this Guarantee Agreement as if such Article VI were set forth herein in
full and such obligations were substituted for the term "Debt Securities"
appearing in such Article VI, (ii) subordinate and junior in right of payment
to the Debt Securities to the same extent and in the same manner that the Debt
Securities are subordinated to Senior Indebtedness pursuant to the Indenture
and (iii) pari passu with any Other Guarantees.
ARTICLE VII
TERMINATION
SECTION 7.01. Termination. This Guarantee Agreement shall
terminate and be of no further force and effect upon: (i) full payment of the
Redemption Price of all Preferred Securities, (ii) the distribution of the Debt
Securities to the Holders in exchange for all of the Preferred Securities, or
(iii) full payment of the amounts payable in accordance with the Declaration of
Trust upon liquidation of the Trust. Notwithstanding the foregoing, this
Guarantee Agreement will continue to be effective or will be reinstated, as the
case may be, if at any time any Holder must restore payment of any sums paid
with respect to Preferred Securities or under this Guarantee Agreement.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.01. Exculpation.
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Guarantor or any Covered Person for any loss,
damage or claim incurred by reason of any act or omission performed or omitted
by such Indemnified Person in good faith in accordance with this Guarantee
Agreement and in a manner that such Indemnified Person reasonably believed to
be within the scope of the authority conferred on such Indemnified Person by
this Guarantee Agreement or by law, except that an Indemnified Person shall be
liable for any such loss, damage or claim incurred by reason of such
Indemnified Person's negligence or willful misconduct with respect to such acts
or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Guarantor and upon such information, opinions,
reports or statements presented to the Guarantor by any Person as to matters
the Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable
13
care by or on behalf of the Guarantor, including information, opinions, reports
or statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders might properly be paid.
SECTION 8.02. Indemnification. The Guarantor agrees to indemnify
each Indemnified Person for, and to hold each Indemnified Person harmless
against, any and all loss, liability, damage, claim or expense incurred without
negligence, willful misconduct or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses (including reasonable legal fees
and expenses) of defending itself against, or investigating, any claim or
liability in connection with the exercise or performance of any of its powers
or duties hereunder. The obligation to indemnify as set forth in this Section
8.02 shall survive the termination of this Guarantee Agreement.
SECTION 8.03. Compensation and Fees.
The Guarantor agrees:
(a) to pay to the Trustee from time to time reasonable compensation
for all services rendered by the Trustee hereunder in such amounts as the
Guarantor 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); and
(b) except as otherwise expressly provided herein, to reimburse the
Trustee upon request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Guarantee Agreement (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith.
The provisions of this Section 8.03 shall survive the resignation or
removal of the Trustee or the termination of this Guarantee Agreement.
To secure the Guarantor's payment obligations in this Section 8.03
and in Section 8.02, the Guarantor and the Holders agree that the Trustee shall
have a lien prior to the Preferred Securities on all money or property held or
collected by the Trustee. Such lien shall survive the termination of this
Guarantee Agreement.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Successors and Assigns. All guarantees and
agreements contained in this Guarantee Agreement shall bind the successors,
assigns, receivers, trustees and representatives of the Guarantor and shall
inure to the benefit of the Holders of the Preferred Securities then
outstanding.
SECTION 9.02. Amendments. Except with respect to any changes which
do not materially and adversely affect the rights of Holders (in which case no
consent of Holders will be required), this Guarantee Agreement may only be
amended with the prior approval of the Holders
14
of a Majority in liquidation amount of the Preferred Securities. The provisions
of Article 6 of the Declaration of Trust concerning meetings of and voting by
Holders shall apply to the giving of such approval.
SECTION 9.03. Notices. Any notice, request or other communication
required or permitted to be given hereunder shall be in writing, duly signed by
the party giving such notice, and delivered, telecopied or mailed by first
class mail as follows:
(a) if given to the Trustee, to the address set forth below or such
other address as the Trustee may give notice of to the Guarantor and the
Holders:
HSBC Bank USA, National Association
452 Fifth Avenue
New York, NY 10018
Attention: Corporate Trust
Facsimile: (212) 525-1300
(b) if given to the Guarantor, to the address set forth below or such
other address as the Guarantor may give notice of to the Trustee and the
Holders:
The Stanley Works
1000 Stanley Drive
New Britain, Connecticut 06053
Attention: Treasurer
Telecopy: (860) 827-3886
(c) if given to the Trust, in care of the Trustee, or to the Trustee
at the Trust's (and the Trustee's) address set forth below or such other
address as the Trustee on behalf of the Trust may give notice to the Holders:
The Stanley Works Capital Trust I
c/o The Stanley Works
1000 Stanley Drive
New Britain, Connecticut 06053
Attention: Treasurer and Corporate
Secretary
Telecopy: (860) 827-3886
with a copy, in the case of a notice to the Trust (other than a
notice from the Guarantor), to the Guarantor; and
(d) if given to any Holder, at the address set forth on the books and
records of the Trust.
15
All notices hereunder shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
SECTION 9.04. Benefit. This Guarantee Agreement is solely for the
benefit of the Holders and, subject to Section 3.01(a), is not separately
transferable from the Preferred Securities.
SECTION 9.05. Interpretation. In this Guarantee Agreement, unless
the context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement but not
defined in the preamble hereto have the respective meanings assigned to them in
Section 1.01;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or amended
from time to time;
(d) all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Guarantee Agreement unless otherwise defined in this
Guarantee Agreement or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice versa;
and
(g) the masculine, feminine or neuter genders used herein shall
include the masculine, feminine and neuter genders.
SECTION 9.06. Governing Law. THIS GUARANTEE AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS
OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES
THEREOF. THE GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND ANY
COURT IN THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK IN
ANY ACTION, SUIT OR PROCEEDING BROUGHT AGAINST IT AND RELATED TO OR IN
CONNECTION WITH THIS GUARANTEE AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
THEREBY, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE GUARANTOR HEREBY
WAIVES AND AGREES NOT TO ASSERT BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE IN
ANY SUCH SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY
SUBJECT TO THE JURISDICTION OF SUCH COURTS, THAT THE SUIT, ACTION OR PROCEEDING
IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE OF THE SUIT, ACTION
16
OR PROCEEDING IS IMPROPER, OR THAT THIS GUARANTEE AGREEMENT OR ANY DOCUMENT OR
ANY INSTRUMENT REFERRED TO HEREIN OR THE SUBJECT MATTER HEREOF MAY NOT BE
LITIGATED IN OR BY SUCH COURTS. THE GUARANTOR AGREES THAT SERVICE OF PROCESS MAY
BE MADE UPON IT BY CERTIFIED OR REGISTERED MAIL TO THE ADDRESS FOR NOTICES SET
FORTH IN THIS GUARANTEE AGREEMENT OR ANY METHOD AUTHORIZED BY THE LAWS OF NEW
YORK.
SECTION 9.07. Counterparts. 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.
[SIGNATURE PAGE FOLLOWS]
17
THIS GUARANTEE AGREEMENT is executed as of the day and year first
above written.
THE STANLEY WORKS,
as Guarantor
By: /s/ Craig A. Douglas
------------------------------------
Name: Craig A. Douglas
Title: Vice President and Treasurer
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HSBC BANK USA, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Trustee
By: /s/ Frank J. Godino
------------------------------------
Name: Frank J. Godino
Title: Vice President
|
18
Exhibit 4.9
THE STANLEY WORKS CAPITAL TRUST I
AMENDED AND RESTATED
DECLARATION OF TRUST
among
THE STANLEY WORKS,
as Sponsor,
HSBC BANK USA, NATIONAL ASSOCIATION,
as Delaware and Property Trustee,
and
CRAIG A. DOUGLAS,
JEFFREY D. CATALDO,
and DONALD ALLAN,
as Administrative Trustees
Dated as of November 22, 2005
THE STANLEY WORKS CAPITAL TRUST I
TABLE OF CONTENTS
ARTICLE 1
Defined Terms
Section 1.01 Definitions........................................................................................2
ARTICLE 2
Establishment of the Trust
Section 2.01 Name 15
Section 2.02 Offices of the Trustees; Principal Place of Business..............................................15
Section 2.03 Initial Contribution of Trust Property; Organizational Expenses...................................15
Section 2.04 Issuance of the Preferred Securities..............................................................15
Section 2.05 Purchase of Junior Subordinated Debt Securities; Issuance of the Common Securities................15
Section 2.06 Amended and Restated Declaration of Trust.........................................................16
Section 2.07 Authorization to Enter into Certain Transactions..................................................16
Section 2.08 Assets of Trust...................................................................................20
Section 2.09 Title to Trust Property...........................................................................20
Section 2.10 Mergers and Consolidations of the Trust...........................................................20
Section 2.11 Obligations in the Event of Non-U.S. Merger.......................................................21
ARTICLE 3
Payment Account
Section 3.01 Payment Account...................................................................................22
ARTICLE 4
Distributions; Redemption
Section 4.01 Distributions.....................................................................................23
Section 4.02 Redemption........................................................................................25
Section 4.03 Subordination of Common Securities................................................................27
Section 4.04 Payment Procedures................................................................................27
Section 4.05 Tax Returns and Reports...........................................................................27
ARTICLE 5
Trust Securities Certificates
Section 5.01 Initial Ownership.................................................................................28
Section 5.02 The Trust Securities Certificates.................................................................28
Section 5.03 Initial Issuance of Trust Securities Certificates.................................................28
Section 5.04 The Securities Registrar..........................................................................28
Section 5.05 Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates................................28
Section 5.06 Persons Deemed Securityholders....................................................................29
Section 5.07 Access to List of Securityholders' Names and Addresses............................................29
Section 5.08 Maintenance of Office or Agency...................................................................29
Section 5.09 Appointment of Paying Agent.......................................................................30
i
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Section 5.10 Ownership of Common Securities by Sponsor.........................................................30
Section 5.11 Book-Entry Preferred Securities Certificates; Common Securities Certificate.......................30
Section 5.12 Notices to Clearing Agency........................................................................32
Section 5.13 Transfer and Exchange of Preferred Securities.....................................................32
Section 5.14 Rights of Securityholders.........................................................................46
ARTICLE 6
Acts of Securityholders; Meetings; Voting
Section 6.01 Limitations on Voting Rights......................................................................48
Section 6.02 Notice of Meetings................................................................................49
Section 6.03 Meetings of Preferred Securityholders.............................................................49
Section 6.04 Voting Rights.....................................................................................49
Section 6.05 Proxies, etc......................................................................................49
Section 6.06 Securityholder Action by Written Consent..........................................................50
Section 6.07 Record Date for Voting and Other Purposes.........................................................50
Section 6.08 Acts of Securityholders...........................................................................50
Section 6.09 Inspection of Records.............................................................................51
ARTICLE 7
Representations and Warranties of the Property Trustee and Delaware Trustee
Section 7.01 Representations and Warranties of Property Trustee..................................................
Section 7.02 Representations and Warranties of Delaware Trustee................................................52
ARTICLE 8
The Trustees
Section 8.01 Certain Duties and Responsibilities...............................................................54
Section 8.02 Notice of Defaults and Deferrals..................................................................56
Section 8.03 Certain Rights of Property Trustee................................................................56
Section 8.04 Not Responsible for Recitals or Issuance of Securities............................................57
Section 8.05 May Hold Securities...............................................................................57
Section 8.06 Compensation; Fees; Indemnity.....................................................................57
Section 8.07 Trustees Required; Eligibility....................................................................58
Section 8.08 Conflicting Interests...............................................................................
Section 8.09 Co-Trustees and Separate Trustee..................................................................59
Section 8.10 Resignation and Removal; Appointment of Successor.................................................60
Section 8.11 Acceptance of Appointment by Successor............................................................61
Section 8.12 Merger, Conversion, Consolidation or Succession to Business.......................................61
Section 8.13 Preferential Collection of Claims Against Sponsor or Trust........................................62
Section 8.14 Reports by Property Trustee.......................................................................62
Section 8.15 Reports to the Property Trustee...................................................................62
Section 8.16 Evidence of Compliance with Conditions Precedent..................................................63
Section 8.17 Number of Trustees................................................................................63
Section 8.18 Delegation of Power...............................................................................63
Section 8.19 Enforcement of Rights of Property Trustee by Securityholders......................................63
ii
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ARTICLE 9
Termination and Liquidation
Section 9.01 Termination Upon Expiration Date..................................................................65
Section 9.02 Early Termination.................................................................................65
Section 9.03 Termination.......................................................................................65
Section 9.04 Liquidation.......................................................................................65
ARTICLE 10
Miscellaneous Provisions
Section 10.01 Expense Agreement................................................................................68
Section 10.02 Limitation of Rights of Securityholders..........................................................68
Section 10.03 Amendment........................................................................................68
Section 10.04 Separability.....................................................................................69
Section 10.05 Governing Law....................................................................................69
Section 10.06 Successors.......................................................................................69
Section 10.07 Headings.........................................................................................69
Section 10.08 Notice and Demand................................................................................70
Section 10.09 Agreement Not to Petition........................................................................70
Section 10.10 Conflict with Trust Indenture Act................................................................70
Section 10.11 Counterparts.....................................................................................71
Section 10.12 No Preemptive Rights.............................................................................71
EXHIBIT A......... Form of Common Securities Certificate
EXHIBIT B......... Form of Expense Agreement
EXHIBIT C......... Form of Preferred Securities Certificate
EXHIBIT D......... Form of Certificate of Transfer
EXHIBIT E......... Form of Certificate of Exchange
|
iii
AMENDED AND RESTATED DECLARATION OF TRUST
THIS AMENDED AND RESTATED DECLARATION OF TRUST is made as of
November 22, 2005, by and among (i) The Stanley Works, a Connecticut
corporation (the "Sponsor"), (ii) HSBC Bank USA, National Association, a
national banking association duly organized under the laws of the United
States of America, as Delaware trustee and property trustee (the "Delaware
Trustee" and the "Property Trustee"), (iii) Craig A. Douglas, an individual,
Jeffrey D. Cataldo, an individual, and Donald Allan, an individual, as
administrative trustees (each an "Administrative Trustee" and together the
"Administrative Trustees") (the Property Trustee, the Delaware Trustee and the
Administrative Trustees referred to collectively as the "Trustees") and (iv)
the several Holders, as hereinafter defined.
W I T N E S S E T H:
WHEREAS, the Sponsor and the Trustees have heretofore duly
declared and established a statutory trust pursuant to the Delaware Statutory
Trust Act by the entering into that certain Declaration of Trust, dated as of
November 10, 2005 (the "Original Declaration of Trust"), and by the execution
and filing by the Trustees with the Secretary of State of the State of
Delaware of the Certificate of Trust, dated November 10, 2005 (the
"Certificate of Trust"); and
WHEREAS, the parties hereto desire to amend and restate the
Original Declaration of Trust in its entirety as set forth herein to provide
for, among other things, (i) the acquisition by the Trust from the Sponsor of
all of the right, title and interest in the Junior Subordinated Debt
Securities, (ii) the issuance of the Common Securities by the Trust to the
Sponsor, and (iii) the issuance and sale of the Preferred Securities by the
Trust pursuant to the Purchase Agreement.
NOW, THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable consideration,
the sufficiency of which is hereby acknowledged, each party, for the benefit
of the other parties and for the benefit of the Securityholders, hereby amends
and restates the Original Declaration of Trust in its entirety and agrees as
follows:
ARTICLE 1
Defined Terms
Section 1.01 Definitions. For all purposes of this Amended and
Restated Declaration of Trust, except as otherwise expressly provided or
unless the context otherwise requires:
(a) the terms defined in this Article 1 have the meanings assigned to
them in this Article 1 and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Amended and Restated Declaration of Trust; and
(d) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Amended and Restated Declaration of Trust as a
whole and not to any particular Article, Section or other subdivision.
"Acceleration Event of Default" means any one of the following events
(whatever the reason for such Acceleration Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(i) the occurrence of an Indenture Acceleration Event of Default; or
(ii) default by the Trust in the payment of any Distribution when it
becomes due and payable, and continuation of such default for a period of
30 days; provided, however, that distributions deferred due to a
mandatory deferral or optional deferral of any interest payment on the
Junior Subordinated Debt Securities in accordance with the terms of the
Junior Subordinated Indenture shall not be a default or an Event of
Default; or
(iii) default by the Trust in the payment of the applicable
Redemption Price of any Trust Security when it becomes due and payable;
or
(iv) the occurrence of a Bankruptcy Event with respect to the Trust.
"Act" has the meaning specified in Section 6.08.
"Additional Amounts" has the meaning specified in Section 4.01(e).
"Administrative Trustee" means each of the individuals identified as
an "Administrative Trustee" in the preamble to this Amended and Restated
Declaration of Trust solely in their capacities as Administrative Trustees of
the Trust formed and continued hereunder and not
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in their individual
capacities, or such trustee's successor(s) in interest in such capacity, or
any successor "Administrative Trustee" appointed as herein provided.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Amended and Restated Declaration of Trust" means this Amended and
Restated Declaration of Trust, as the same may be modified, amended or
supplemented in accordance with the applicable provisions hereof, including
all exhibits hereto, and including, for all purposes of this Amended and
Restated Declaration of Trust and any modification, amendment or supplement
hereto, the provisions of the Trust Indenture Act that are deemed to be a part
of and govern this Amended and Restated Declaration of Trust and any such
modification, amendment or supplement, respectively.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Book-Entry Preferred Securities
Certificate, the rules and procedures of the Clearing Agency, Euroclear and
Clearstream that apply to such transfer or exchange.
"Bankruptcy Event" means, with respect to any Person:
(i) the entry of a decree or order by a court having jurisdiction in
the premises judging such Person a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement,
adjudication or composition of or in respect of such Person under federal
bankruptcy law or any other applicable federal or state law, or
appointing a receiver, liquidator, assignee, trustee, sequestrator or
other similar official of such Person or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and
the continuance of such decree or order unstayed and in effect for a
period of 60 consecutive days; or
(ii) the institution by such Person of proceedings to be adjudicated
a bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under
federal bankruptcy law or any other applicable federal or state law, or
the consent by it to the filing of such petition or to the appointment of
a receiver, liquidator, assignee, trustee, sequestrator or similar
official of such Person or of any substantial part of its property, or
the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due, or the taking of action by such Person in furtherance of
any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.09.
"Book-Entry Preferred Securities Certificates" means certificates
representing Preferred Securities issued in global, fully registered form to
the Clearing Agency as described in Section 5.11.
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"Business Day" means a day other than (i) a Saturday or a Sunday or
(ii) a day on which banking institutions in Wilmington, Delaware or New York,
New York are authorized or obligated by law, executive order or regulation to
close.
"Certificate Depository Agreement" means the agreement among the
Trust and The Depository Trust Company, as the initial Clearing Agency, dated
November 21, 2005, relating to the Preferred Securities Certificates, as the
same may be amended and supplemented from time to time.
"Certificate of Trust" has the meaning specified in the recitals to
this Amended and Restated Declaration of Trust.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act. The Depository Trust
Company will be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with
the Clearing Agency.
"Clearstream" means Clearstream Banking S.A.
"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.
"Common Securities Certificate" means a certificate evidencing
ownership of a Common Security or Securities, substantially in the form
attached as Exhibit A.
"Common Security" means an undivided beneficial ownership interest in
the assets of the Trust having a Liquidation Amount of $1,000 and having the
rights provided therefor in this Amended and Restated Declaration of Trust,
including the right to receive Distributions and a Liquidation Distribution as
provided herein.
"Corporate Trust Office" means the office of the Property Trustee at
which its corporate trust business shall be principally administered.
"Covenant Event of Default" means a default in the performance, or
breach, of any covenant or warranty of the Trustees in this Amended and
Restated Declaration of Trust (other than a covenant or warranty a default in
whose performance or breach is dealt with in clause (ii) or (iii) of the
definition of Acceleration Event of Default) and continuation of such default
or breach for a period of 60 days after there has been given, by registered or
certified mail, to the Property Trustee by the Holders of at least 10% in
Liquidation Amount of the Outstanding Preferred Securities, a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder.
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"Deferral" has the meaning provided in Section 4.01(e).
"Definitive Preferred Securities Certificates" means either or both
(as the context requires) of (i) Preferred Securities Certificates issued in
certificated, fully registered form as provided in Section 5.11(a) and (ii)
Preferred Securities Certificates issued in certificated, fully registered
form as provided in Section 5.13.
"Delaware Statutory Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from
time to time.
"Delaware Trustee" means the commercial bank or trust company or any
other Person identified as the "Delaware Trustee," which shall initially be
HSBC Bank USA, National Association, solely in its capacity as Delaware
Trustee of the Trust formed and continued hereunder and not in its individual
capacity, or its successor in interest in such capacity, or any successor
Delaware Trustee appointed as herein provided.
"Distribution Date" means a Quarterly Distribution Date or a
Semi-Annual Distribution Date.
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.01.
"Early Termination Event" has the meaning specified in Section 9.02.
"Euroclear" means Euroclear Bank S.A./N.C.
"Event of Default" means an Acceleration Event of Default or a
Covenant Event of Default.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Offer Registration Statement" has the meaning set forth in
the Registration Rights Agreement.
"Exchange Preferred Securities Certificates" means the Preferred
Securities Certificates issued in the Registered Exchange Offer pursuant to
Section 5.13(f) hereof.
"Expense Agreement" means the Agreement as to Expenses and
Liabilities between the Guarantor and the Trust, substantially in the form
attached as Exhibit B, as amended from time to time.
"Expiration Date" has the meaning provided in Section 9.01.
"Fixed Rate" has the meaning provided in Section 4.01(b).
"Fixed Rate Period" means, for any Trust Security, the period
commencing on the later of (i) November 22, 2005 and (ii) the initial date of
issuance of such Trust Security, to, but excluding, December 1, 2010.
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"Floating Rate" has the meaning provided in Section 4.01(b).
"Floating Rate Period" means the period commencing December 1, 2010.
"Foregone Deferred Interest" has the meaning specified in the
Supplemental Indenture.
"Gross-Up Payment" has the meaning provided in Section 2.11.
"Guarantee" means the Enhanced Trust Preferred Securities Guarantee
Agreement executed and delivered by the Guarantor and HSBC Bank USA, National
Association, as Guarantee Trustee, contemporaneously with the execution and
delivery of this Amended and Restated Declaration of Trust, for the benefit of
the Holders of the Preferred Securities, as amended from time to time.
"Guarantee Trustee" means the entity from time to time acting as
trustee pursuant to the Guarantee.
"Guarantor" means the Sponsor, its successors and assigns.
"Indenture Acceleration Event of Default" means an "Acceleration
Event of Default" as defined in the Junior Subordinated Indenture.
"Indenture Covenant Event of Default" means a "Covenant Event of
Default" as defined in the Junior Subordinated Indenture.
"Indenture Event of Default" means an Indenture Acceleration Event of
Default or an Indenture Covenant Event of Default.
"Indenture Redemption Date" means a date on which Junior Subordinated
Debt Securities are redeemed by the Sponsor pursuant to the Junior
Subordinated Indenture, whether upon repayment, in whole or part, at maturity
or upon early redemption (either at the Sponsor's option or pursuant to a
Special Event).
"Indenture Trustee" means the trustee under the Junior Subordinated
Indenture.
"Issue Date" means the initial date of the delivery of the Trust
Securities.
"Junior Subordinated Debt Securities" means the Sponsor's 5.902%
Fixed Rate/Floating Rate Junior Subordinated Debt Securities due 2045 issued
pursuant to the Junior Subordinated Indenture.
"Junior Subordinated Indenture" means the Indenture, dated as of
November 22, 2005, between the Sponsor and the Indenture Trustee, as
heretofore supplemented and as supplemented by the Supplemental Indenture.
"Legal Action" has the meaning specified in Section 2.07(A)(iv).
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"Letter of Transmittal" means the letter of transmittal to be
prepared by the Trust and sent to all Holders of the Preferred Securities for
use by such Holders in connection with the Registered Exchange Offer.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security
interest or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever.
"Like Amount" means (i) Trust Securities having a Liquidation Amount
equal to the principal amount of Junior Subordinated Debt Securities to be
contemporaneously redeemed in accordance with the Junior Subordinated
Indenture and the proceeds of which will be used to pay the applicable
Redemption Price of such Trust Securities and (ii) Junior Subordinated Debt
Securities having an aggregate principal amount equal to the aggregate
Liquidation Amount of the Trust Securities of the Holders to whom such Junior
Subordinated Debt Securities are distributed.
"Liquidation Amount" means the stated amount of $1,000 per Trust
Security.
"Liquidation Date" means the date on which Junior Subordinated Debt
Securities are to be distributed to Holders of Trust Securities in connection
with a dissolution and liquidation of the Trust pursuant to Section 9.04.
"Liquidation Distribution" has the meaning specified in Section
9.04(g).
"Make Whole Redemption Price" means, with respect to a redemption of
Trust Securities, an amount equal to the greater of:
(i) 100% of the principal amount of the Junior Subordinated Debt
Securities being redeemed; and
(ii) as determined by the Quotation Agent, the sum of the present
values of remaining scheduled payments of principal and interest thereon
for the Remaining Life of Fixed Rate Period of the Junior Subordinated
Debt Securities, discounted to the redemption date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the
Treasury Rate plus 0.25%,
plus, in each case, all accrued and unpaid interest on the Junior Subordinated
Debt Securities being redeemed to but not including the redemption date.
"Mandatory Deferral" has the meaning specified in the Supplemental
Indenture.
"Mandatory Deferral Trigger Event" has the meaning specified in the
Supplemental Indenture.
"Maturity Redemption Price" means, with respect to a redemption of
Trust Securities, an amount equal to the principal of and accrued and unpaid
interest on the Junior Subordinated Debt Securities as of the maturity date
thereof.
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"Non-U.S. Merger" means any transaction or series of transactions
pursuant to which the Sponsor, directly or indirectly, consolidates with,
merges into, sells, leases or conveys all or substantially all of its
properties or assets to, or reincorporates or reorganizes into, another
corporation that is not incorporated or otherwise organized under the laws of
the United States, any state thereof or the District of Columbia.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the President or a Vice President,
and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Sponsor, and delivered to the appropriate Trustee. One of
the officers signing an Officers' Certificate given pursuant to Section 8.15
shall be the principal executive, financial or accounting officer of the
Sponsor. An Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Amended and Restated Declaration of
Trust shall include:
(i) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(ii) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(iii) a statement that each such officer has made such examination or
investigation as is necessary, in such officer's opinion, to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(iv) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Trust, the Trustees, the Guarantor or the Sponsor, but not an
employee of the Trust or the Trustees, and who shall be reasonably acceptable
to the Property Trustee. Any Opinion of Counsel pertaining to federal income
tax matters may rely on published rulings of the Internal Revenue Service.
"Optional Deferral" has the meaning specified in the Supplemental
Indenture.
"Optional Redemption Price" means, with respect to a redemption of
Trust Securities, an amount equal to the aggregate principal amount of the
Junior Subordinated Debt Securities to be redeemed plus all accrued and unpaid
interest on the Junior Subordinated Debt Securities being redeemed, to but not
including the redemption date.
"Original Declaration of Trust" has the meaning specified in the
recitals to this Amended and Restated Declaration of Trust.
"Outstanding", when used with respect to Trust Securities, means, as
of the date of determination, all Trust Securities theretofore issued and
delivered under this Amended and Restated Declaration of Trust, except:
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(i) Trust Securities theretofore canceled by the Securities Registrar
or delivered to the Securities Registrar for cancellation;
(ii) Trust Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property Trustee
or any Paying Agent for the Holders of such Trust Securities; provided
that if such Trust Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Amended and Restated
Declaration of Trust; and
(iii) Trust Securities in exchange for or in lieu of which other
Trust Securities have been issued and delivered pursuant to this Amended
and Restated Declaration of Trust;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, Preferred Securities owned by the Sponsor, the Holder of the Common
Securities, the Guarantor, any Administrative Trustee or any Affiliate of the
Sponsor, the Guarantor or any Administrative Trustee shall be disregarded and
deemed not to be Outstanding, except that (a) in determining whether any
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Preferred Securities
which such Administrative Trustee or a Responsible Officer of such Property
Trustee knows to be so owned shall be so disregarded and (b) the foregoing
shall not apply at any time when all of the Outstanding Preferred Securities
are owned by the Sponsor, the Holder of the Common Securities, the Guarantor,
one or more Administrative Trustees and/or any such Affiliate. Preferred
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the
Administrative Trustees the pledgee's right so to act with respect to such
Preferred Securities and that the pledgee is not the Sponsor, the Guarantor or
any Affiliate of the Sponsor or the Guarantor.
"Owner" means each Person who is the owner of a beneficial interest
in a Book-Entry Preferred Securities Certificate as reflected in the records
of the Clearing Agency or, if a Clearing Agency Participant is not the Owner,
then as reflected in the records of a Person maintaining an account with such
Clearing Agency (directly or indirectly, in accordance with the rules of such
Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.09 and shall initially be the Property Trustee.
"Payment Account" means a segregated non-interest-bearing corporate
trust account maintained by the Property Trustee for the benefit of the
Securityholders in which all amounts paid in respect of the Junior
Subordinated Debt Securities will be held and from which the Property Trustee
shall make payments to the Securityholders in accordance with Section 4.01.
"Person" means an individual, corporation, partnership, joint
venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.
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"Preferred Securities Certificate" means a certificate evidencing
ownership of a Preferred Security or Securities, substantially in the form
attached as Exhibit C.
"Preferred Security" means an undivided beneficial ownership interest
in the assets of the Trust having a Liquidation Amount of $1,000 and having
rights provided therefor in this Amended and Restated Declaration of Trust,
including the right to receive Distributions and a Liquidation Distribution as
provided herein.
"Private Placement Legend" means either of the legends set forth in
Section 5.13(g)(i), one of which shall be placed on all Preferred Securities
Certificates issued under this Amended and Restated Declaration of Trust
except where otherwise permitted by the provisions of this Amended and
Restated Declaration of Trust.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee" in the preamble to this Amended and
Restated Declaration of Trust solely in its capacity as Property Trustee of
the Trust formed and continued hereunder and not in its individual capacity,
or its successor in interest in such capacity, or any successor "Property
Trustee" as herein provided.
"Purchase Agreement" means the Purchase Agreement, dated November 15,
2005, among the Sponsor, the Trust and the initial purchasers therein named.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"Quarterly Distribution Accrual Period" means each period commencing
on a Quarterly Distribution Date and continuing to but not including the next
succeeding Quarterly Distribution Date (except that the first Quarterly
Distribution Accrual Period will commence on December 1, 2010).
"Quarterly Distribution Date" has the meaning provided in Section
4.01(a).
"Quotation Agent" has the meaning specified in the Supplemental
Indenture.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Amended
and Restated Declaration of Trust; provided that each Indenture Redemption
Date shall be a Redemption Date for a Like Amount of Trust Securities.
"Redemption Price" means:
(i) in the case of the repayment of the Trust Securities as a result
of the repayment of the Junior Subordinated Debt Securities at maturity,
the Maturity Redemption Price;
(ii) in the case of the redemption of Trust Securities as a result of
the optional redemption of the Junior Subordinated Debt Securities,
pursuant to Section 3.1(i) of the Supplemental Indenture, the Make Whole
Redemption Price;
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(iii) in the case of the redemption of Trust Securities as a result
of the optional redemption of the Junior Subordinated Debt Securities,
pursuant to Section 3.1(ii) of the Supplemental Indenture, the Optional
Redemption Price; and
(iv) in the case of the redemption of Trust Securities as a result of
the optional redemption of the Junior Subordinated Debt Securities upon
the occurrence of a Special Event, pursuant to Section 3.2 of the
Supplemental Indenture, the Special Event Redemption Price.
"Registered Exchange Offer" has the meaning set forth in the
Registration Rights Agreement.
"Registration Default" has the meaning set forth in the Registration
Rights Agreement.
"Registration Default Damages" has the meaning set forth in the
Registration Rights Agreement.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of November 22, 2005, among the Sponsor, the Trust and the
initial purchasers of the Preferred Securities named in the Purchase
Agreement.
"Regulation S" means Regulation S promulgated under the Securities
Act.
"Regulation S Book-Entry Preferred Securities Certificate" means a
Regulation S Temporary Book-Entry Preferred Securities Certificate or a
Regulation S Permanent Book-Entry Preferred Securities Certificate.
"Regulation S Permanent Book-Entry Preferred Securities Certificate"
means a permanent Book-Entry Preferred Securities Certificate in the form of
Exhibit C hereto bearing the appropriate legends and deposited with or on
behalf of and registered in the name of the Clearing Agency or its nominee,
issued in a denomination equal to the Liquidation Amount of the Regulation S
Temporary Book-Entry Preferred Securities Certificate upon expiration of the
Restricted Period.
"Regulation S Temporary Book-Entry Preferred Securities Certificate"
means a temporary Book-Entry Preferred Securities Certificate in the form of
Exhibit C hereto bearing the appropriate legends and deposited with or on
behalf of and registered in the name of the Clearing Agency or its nominee,
issued in a denomination equal to the Liquidation Amount of the Preferred
Securities initially sold in reliance on Rule 903 of Regulation S.
"Relevant Trustee" has the meaning specified in Section 8.10.
"Remaining Life of Fixed Rate Period" has the meaning specified in
the Supplemental Indenture.
"Responsible Officer" means, with respect to the Property Trustee,
any officer of the Corporate Trust and Agency Group of the Trustee having
direct responsibility for the
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administration of this Amended and Restated Declaration of Trust and also means,
with respect to a particular corporate trust matter, any other officer to whom
such matter is referred because of that officer's knowledge of and familiarity
with the particular subject.
"Restricted Book-Entry Preferred Securities Certificate" means a
Book-Entry Preferred Securities Certificate bearing a Private Placement
Legend.
"Restricted Definitive Preferred Securities Certificate" means a
Definitive Preferred Securities Certificate bearing a Private Placement
Legend.
"Restricted Period" means the 40-day distribution compliance period
as defined in Regulation S.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, or any successor legislation.
"Securities Register" and "Securities Registrar" are described in
Section 5.04.
"Securityholder" or "Holder" means a Person in whose name a Trust
Security or Securities is registered in the Securities Register; any such
Person is a beneficial owner within the meaning of the Delaware Statutory
Trust Act.
"Semi-Annual Distribution Date" has the meaning provided in Section
4.01(a).
"Shelf Registration Statement" has the meaning set forth in the
Registration Rights Agreement.
"Special Event" has the meaning specified in the Supplemental
Indenture.
"Special Event Redemption Price" means, with respect to a redemption
of Trust Securities, an amount equal to the greater of:
(i) 100% of the principal amount of the Junior Subordinated Debt
Securities being redeemed; and
(ii) as determined by the Quotation Agent, the sum of the present
values of remaining scheduled payments of principal and interest thereon
for the Remaining Life of Fixed Rate Period of the Junior Subordinated
Debt Securities, discounted to the redemption date on a semiannual basis
(assuming a 360-day year consisting of twelve 30-day months) at the
Treasury Rate plus 0.50%,
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plus, in either case, all accrued and unpaid interest on the Junior
Subordinated Debt Securities, to but not including the redemption date.
"Sponsor" has the meaning specified in the preamble to this Amended
and Restated Declaration of Trust, and includes its successors and assigns.
"Successor Securities" has the meaning specified in Section 2.10.
"Supplemental Indenture" means the First Supplemental Indenture to
the Junior Subordinated Indenture, dated as of November 22, 2005, by and among
the Sponsor and the Indenture Trustee.
"10-Year Treasury CMT" has the meaning specified in the Supplemental
Indenture.
"30-Year Treasury CMT" has the meaning specified in the Supplemental
Indenture.
"3-Month LIBOR Rate" has the meaning specified in the Supplemental
Indenture.
"Treasury Rate" has the meaning specified in the Supplemental
Indenture.
"Trust" means the Delaware statutory trust continued hereby and
identified on the cover page to this Amended and Restated Declaration of
Trust.
"Trustees" means the Persons identified as "Trustees" in the preamble
to this Amended and Restated Declaration of Trust solely in their capacities
as Trustees of the Trust formed and continued hereunder and not in their
individual capacities, or their successor in interest in such capacity, or any
successor trustee appointed as herein provided.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" shall mean, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (i) the Junior Subordinated Debt Securities,
(ii) any cash on deposit in, or owing to, the Payment Account, and (iii) all
proceeds and rights in respect of the foregoing and any other property and
assets for the time being held or deemed to be held by the Property Trustee
pursuant to this Amended and Restated Declaration of Trust.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Preferred Securities Certificates.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Unrestricted Book-Entry Preferred Securities Certificate" means one
or more Book-Entry Preferred Securities Certificates that do not bear and are
not required to bear a Private Placement Legend.
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"Unrestricted Definitive Preferred Securities Certificate" means one
or more Definitive Preferred Securities Certificates that do not bear and are
not required to bear a Private Placement Legend.
"U.S. Person" means a U.S. person as defined in Rule 902(k) under the
Securities Act.
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ARTICLE 2
Establishment of the Trust
Section 2.01 Name. The Trust continued hereby shall be known as "The
Stanley Works Capital Trust I", in which name the Trustees may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and sue and be sued. The Administrative Trustees may
change the name of the Trust from time to time following written notice to the
Holders.
Section 2.02 Offices of the Trustees; Principal Place of Business.
The address of the Property Trustee and the Delaware Trustee is HSBC Bank USA,
National Association, 1201 Market Street, Suite 1001, Wilmington, Delaware
19801, Attention: Corporate Trust Department, or such other address as the
Property Trustee or Delaware Trustee may designate by written notice to the
Securityholders, the Sponsor and the Guarantor. The address of the
Administrative Trustees is c/o The Stanley Works, 1000 Stanley Drive, New
Britain, Connecticut 06053 Attention: Treasurer. The principal place of
business of the Trust is c/o The Stanley Works, 1000 Stanley Drive, New
Britain, Connecticut 06053. The Sponsor may change the principal place of
business of the Trust at any time by giving notice thereof to the Trustees.
Section 2.03 Initial Contribution of Trust Property; Organizational
Expenses. The Delaware Trustee acknowledges receipt in trust from the Sponsor
in connection with the Original Declaration of Trust of the sum of $10, which
constituted the initial Trust Property. The Sponsor shall pay organizational
expenses of the Trust as they arise or shall, upon request of the Trustees,
promptly reimburse the Trustees for any such expenses paid by the Trustees.
The Sponsor shall make no claim upon the Trust Property for the payment of
such expenses.
Section 2.04 Issuance of the Preferred Securities. Contemporaneously
with the execution and delivery of this Amended and Restated Declaration of
Trust, any one of the Administrative Trustees, on behalf of the Trust, shall
execute and deliver to the initial purchasers named in the Purchase Agreement
Preferred Securities Certificates, registered in the name of the nominee of
the initial Clearing Agency, in an aggregate number of 450,000 Preferred
Securities having an aggregate Liquidation Amount of $450,000,000, against
receipt of the aggregate purchase price of such Preferred Securities of
$450,000,000.
Section 2.05 Purchase of Junior Subordinated Debt Securities;
Issuance of the Common Securities. Contemporaneously with the execution and
delivery of this Amended and Restated Declaration of Trust, the Administrative
Trustees, on behalf of the Trust, shall execute and deliver to the Sponsor
Common Securities Certificates, registered in the name of the Sponsor, in an
aggregate number of 100 Common Securities having an aggregate Liquidation
Amount of $100,000, against payment by the Sponsor of such amount.
Contemporaneously therewith, the Administrative Trustees, on behalf of the
Trust, shall purchase from the Sponsor Junior Subordinated Debt Securities,
registered in the name of the Property Trustee, on behalf of the Trust and the
Holders, and having an aggregate principal amount equal to $450,100,000, and,
in satisfaction of the purchase price for such Junior Subordinated Debt
Securities, the Administrative Trustees, on behalf of the Trust, shall deliver
to the Sponsor the sum of $450,100,000.
15
Section 2.06 Amended and Restated Declaration of Trust. The exclusive
purposes and functions of the Trust are (i) to issue and sell the Trust
Securities and use the proceeds from such sale to acquire the Junior
Subordinated Debt Securities, and (ii) to engage in those activities
necessary, incidental, appropriate or convenient thereto. The Sponsor hereby
appoints each of Craig A. Douglas, Jeffrey D. Cataldo and Donald Allan as
Administrative Trustees of the Trust, to have all the rights, powers and
duties to the extent set forth herein. The Property Trustee hereby declares
that it will hold the Trust Property in trust upon and subject to the
conditions set forth herein for the benefit of the Trust and the
Securityholders. The Trustees shall have all rights, powers and duties set
forth herein and in accordance with applicable law with respect to
accomplishing the purposes of the Trust. The Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee have any of
the duties and responsibilities, of the Property Trustee or the Administrative
Trustees set forth herein. The Delaware Trustee shall be one of the Trustees
for the sole and limited purpose of fulfilling the requirements of the
Delaware Statutory Trust Act.
Section 2.07 Authorization to Enter into Certain Transactions. The
Trustees shall conduct the affairs of the Trust in accordance with the terms
of this Amended and Restated Declaration of Trust. Subject to the limitations
set forth in paragraph C of this Section 2.07, and in accordance with the
following paragraphs A and B, the Trustees shall have the authority to enter
into all transactions and agreements determined by the Trustees to be
appropriate in exercising the authority, express (in the case of the Property
Trustee) or implied, otherwise granted to the Trustees under this Amended and
Restated Declaration of Trust, and to perform all acts in furtherance thereof,
including without limitation, the following:
A. As among the Trustees, the Administrative Trustees, acting singly or
jointly, shall have the exclusive power, duty and authority to act on behalf
of the Trust with respect to the following matters:
(i) to acquire the Junior Subordinated Debt Securities with the proceeds
of the sale of the Trust Securities; provided, however, the Administrative
Trustees shall cause legal title to all of the Junior Subordinated Debt
Securities to be vested in, and the Junior Subordinated Debt Securities to be
held of record in the name of, the Property Trustee for the benefit of the
Holders of the Trust Securities;
(ii) to give the Sponsor and the Property Trustee prompt written notice
of the occurrence of any Special Event (as defined in the Supplemental
Indenture) and, at its option, to take any ministerial actions in connection
therewith; provided that the Administrative Trustees shall consult with the
Sponsor and the Property Trustee before taking any ministerial action in
relation to a Special Event;
(iii) to establish a record date with respect to all actions to be taken
hereunder that require a record date be established, including for the
purposes of ss. 316(c) of the Trust Indenture Act and with respect to
Distributions, voting rights, redemptions, and exchanges, and to issue
relevant notices to Holders of the Trust Securities as to such actions and
applicable record dates;
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(iv) to bring or defend, pay, collect, compromise, arbitrate, resort to
legal action, or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 2.07(B)(iv), the Property Trustee
has the power to bring such Legal Action;
(v) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors, and
consultants and pay reasonable compensation for such services;
(vi) to cause the Trust to comply with the Trust's obligations under the
Trust Indenture Act;
(vii) to give the certificate to the Property Trustee required by ss.
314(a)(4) of the Trust Indenture Act, which certificate may be executed by any
Administrative Trustee;
(viii) to take all actions and perform such duties on behalf of the Trust
as may be required of the Administrative Trustees pursuant to the terms of
this Amended and Restated Declaration of Trust;
(ix) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory trust under the laws of the State of
Delaware and of each other jurisdiction in which such existence is necessary
to protect the limited liability of the Holders of the Trust Securities or to
enable the Trust to effect the purposes for which the Trust has been created;
(x) to take all action necessary to cause all applicable tax returns and
tax information reports that are required to be filed with respect to the
Trust to be duly prepared and filed by the Administrative Trustees, on behalf
of the Trust;
(xi) to issue and sell the Trust Securities pursuant to the terms of this
Amended and Restated Declaration of Trust;
(xii) to cause the Trust to enter into, and to execute, deliver and
perform on behalf of the Trust, the Purchase Agreement providing for the sale
of the Preferred Securities, the Registration Rights Agreement providing for
the registered exchange or resale of the Preferred Securities, the Expense
Agreement and the Certificate Depository Agreement and such other agreements
as may be necessary or desirable in connection with the consummation of the
transactions contemplated hereby and thereby;
(xiii) to assist in the registration of the Preferred Securities under
the Securities Act and under state securities or blue sky laws, and the
qualification of this Amended and Restated Declaration of Trust as a trust
indenture under the Trust Indenture Act;
(xiv) to assist in the listing of the Preferred Securities upon such
securities exchanges or national trading markets, if any, as shall be
determined by the Sponsor and, if required, the registration of the Preferred
Securities under the Exchange Act, and the preparation, execution and filing
of all periodic and other reports and other documents pursuant to the
foregoing;
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(xv) to send notices (other than notices of default) and other
information regarding the Trust Securities and the Junior Subordinated Debt
Securities to the Securityholders in accordance with this Amended and Restated
Declaration of Trust;
(xvi) to appoint a Paying Agent (subject to Section 5.09) and Securities
Registrar in accordance with this Amended and Restated Declaration of Trust;
(xvii) to assist in, to the extent provided in this Amended and Restated
Declaration of Trust, the winding up of the affairs of and termination of the
Trust and the preparation, execution and filing of the certificate of
cancellation with the Secretary of State of the State of Delaware; and
(xviii) to take any action incidental to the foregoing as the
Administrative Trustees may from time to time determine is necessary,
appropriate, convenient or advisable to protect and conserve the Trust
Property for the benefit of the Securityholders (without consideration of the
effect of any such action on any particular Securityholder).
B. The Property Trustee shall:
(i) establish and maintain a Payment Account pursuant to Article III or
otherwise in accordance with this Amended and Restated Declaration of Trust;
(ii) engage in such ministerial activities as shall be necessary or
appropriate to effect the redemption of the Trust Securities to the extent the
Junior Subordinated Debt Securities are redeemed or mature;
(iii) upon notice of distribution issued by the Administrative Trustees
in accordance with the terms of this Amended and Restated Declaration of
Trust, engage in such ministerial activities as shall be necessary or
appropriate to effect the distribution pursuant to terms of this Amended and
Restated Declaration of Trust of Junior Subordinated Debt Securities to
Holders of Trust Securities;
(iv) subject to the terms hereof, take any Legal Action which arises out
of or in connection with (x) an Event of Default or Indenture Event of Default
of which a Responsible Officer of the Property Trustee has actual knowledge or
(y) the Property Trustee's duties and obligations under this Amended and
Restated Declaration of Trust or the Trust Indenture Act;
(v) take all actions and perform such duties as may be specifically
required of the Property Trustee pursuant to the terms of this Amended and
Restated Declaration of Trust; and
(vi) to the extent that it is designated as the Securities Registrar, to
register transfers of the Trust Securities and otherwise take action with
respect to the Trust Securities in accordance with this Amended and Restated
Declaration of Trust.
C. So long as this Amended and Restated Declaration of Trust remains in
effect, the Trust (or the Trustees acting on behalf of the Trust) shall not
undertake any business, activities or transaction except as expressly provided
herein or contemplated hereby. In particular, the Trustees, in such capacity,
shall not (i) acquire any investments or engage in any activities not
authorized by this Amended and Restated Declaration of Trust, (ii) sell,
assign, transfer, exchange, pledge, set-off
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or otherwise dispose of any of the Trust Property or interests therein,
including to Securityholders, except as expressly provided herein, (iii) take or
consent to any action that would cause the Trust to fail or cease to qualify as
a grantor trust/fixed investment trust for United States federal income tax
purposes, (iv) incur any indebtedness for borrowed money, (v) take or consent to
any action that would result in the placement of a Lien on any of the Trust
Property, (vi) issue any securities other than the Trust Securities, or (vii)
have any power to, or agree to any action by the Sponsor that would, vary the
investment (within the meaning of Treasury Regulation Section 301.7701-4(c)) of
the Trust or of the Securityholders. The Trustees shall defend all claims and
demands of all Persons at any time claiming any Lien on any of the Trust
Property adverse to the interest of the Trust or the Securityholders in their
capacity as Securityholders.
D. In connection with the issue and sale of the Preferred Securities, the
Sponsor shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the Trust, the following (and any actions
taken by the Sponsor in furtherance of the following prior to the date of this
Amended and Restated Declaration of Trust are hereby ratified and confirmed in
all respects):
(i) to determine the states in which to take appropriate action to
qualify or register for sale all or part of the Preferred Securities and to do
any and all such acts, other than actions which must be taken by or on behalf
of the Trust, and advise the Trustees of actions they must take on behalf of
the Trust, and prepare for execution and filing any documents to be executed
and filed by the Trust or on behalf of the Trust, as the Sponsor deems
necessary or advisable in order to comply with the applicable laws of any such
states;
(ii) to negotiate the terms of the Purchase Agreement providing for the
sale of the Preferred Securities.
(iii) to negotiate the terms of the Registration Rights Agreement
providing for the registered exchange or resale of the Preferred Securities;
(iv) to enter into, and comply with the terms of, the Purchase Agreement
and the Registration Rights Agreement, including, but not limited to,
preparing for filing by the Trust with the Commission any registration
statement or other filing under the Securities Act in relation to the
Preferred Securities and any amendments thereto; and
(v) any other actions necessary, incidental, appropriate or convenient to
carry out any of the foregoing activities.
E. Notwithstanding anything herein to the contrary, the Administrative
Trustees are authorized and directed to conduct the affairs of the Trust and
to operate the Trust so that the Trust will not be deemed to be an "investment
company" required to be registered under the Investment Company Act of 1940,
as amended, or taxed as other than a grantor trust/fixed investment trust for
United States federal income tax purposes and so that the Junior Subordinated
Debt Securities will be treated as indebtedness of the Sponsor for United
States federal income tax purposes. In this connection, the Sponsor and the
Administrative Trustees are authorized to take any action, not inconsistent
with applicable law, the Certificate of Trust or this Amended and Restated
Declaration of Trust, that each of the Sponsor and the Administrative Trustees
determines in its discretion to be
19
necessary or desirable for such purposes, as long as such action does not
materially and adversely affect the interests of the Holders of the Preferred
Securities.
Section 2.08 Assets of Trust. The assets of the Trust shall consist
of the Trust Property.
Section 2.09 Title to Trust Property. Legal title to all Trust
Property shall be vested at all times in the Property Trustee (in its capacity
as such) and shall be held and administered by the Property Trustee for the
benefit of the Securityholders and the Trust in accordance with this Amended
and Restated Declaration of Trust. The right, title and interest of the
Property Trustee to the Junior Subordinated Debt Securities shall vest
automatically in each Person who may thereafter be appointed as Property
Trustee in accordance with the terms hereof, and thereupon, such right, title
and interest shall cease in the predecessor Property Trustee. Such vesting and
cessation of title shall be effective whether or not conveyancing documents
have been executed and delivered.
Section 2.10 Mergers and Consolidations of the Trust. The Trust may
not consolidate, amalgamate, merge with or into, or be replaced by, or convey,
transfer or lease its properties and assets substantially as an entirety to
any corporation or other body, except as described below or otherwise provided
in this Amended and Restated Declaration of Trust. The Trust may at the
request of the Sponsor, with the consent of the Administrative Trustees and
without the consent of the Holders of the Trust Securities, the Delaware
Trustee or the Property Trustee, consolidate, amalgamate, merge with or into,
or be replaced by a trust organized as such under the laws of any state;
provided that (i) such successor entity either (x) expressly assumes all of
the obligations of the Trust with respect to the Trust Securities or (y)
substitutes for the Preferred Securities other securities having substantially
the same terms as the Preferred Securities (herein referred to as the
"Successor Securities") so long as the Successor Securities rank the same as
the Preferred Securities rank in priority with respect to Distributions and
payments upon liquidation, redemption and otherwise, (ii) the Sponsor
expressly appoints a trustee of such successor entity possessing the same
powers and duties as the Property Trustee as the holder of legal title to the
Junior Subordinated Debt Securities, (iii) if the Preferred Securities
(including any Successor Securities) are rated by any nationally recognized
statistical rating organization prior to such transaction, such merger,
consolidation, amalgamation or replacement does not cause the Preferred
Securities (including any Successor Securities) to be downgraded by any such
nationally recognized statistical rating organization, (iv) such merger,
consolidation, amalgamation or replacement does not adversely affect the
rights, preferences and privileges of the Holders of the Trust Securities
(including any Successor Securities) in any material respect, (v) such
successor entity has a purpose substantially identical to that of the Trust,
(vi) prior to such merger, consolidation, amalgamation, or replacement, the
Sponsor and the Property Trustee have received an Opinion of Counsel to the
effect that (A) such merger, consolidation, amalgamation or replacement does
not adversely affect the rights, preferences and privileges of the Holders of
the Trust Securities (including any Successor Securities) in any material
respect and (B) following such merger, consolidation, amalgamation or
replacement, neither the Trust nor such successor entity will be required to
register as an investment company under the Investment Company Act of 1940, as
amended, and (vii) the Sponsor guarantees the obligations of such successor
entity under the Successor Securities at least to the extent provided by the
Guarantee. Notwithstanding the foregoing, the Trust shall not, except with the
consent of Holders of 100% in Liquidation Amount
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of the Trust Securities,
consolidate, amalgamate, merge with or into, or be replaced by any other
entity or permit any other entity to consolidate, amalgamate, merge with or
into, or replace it if such consolidation, amalgamation, merger or replacement
would cause the Trust or the successor entity to be classified as other than a
grantor trust/fixed investment trust for United States federal income tax
purposes.
Section 2.11 Obligations in the Event of Non-U.S. Merger. If, upon or
after the occurrence of a Non-U.S. Merger, the Trust is required to withhold,
or any Securityholder is required to pay, any present or future amount in
respect of taxes, duties, assessments or other governmental charges on any
Distribution on that Holder's Trust Securities by any taxing authority that
would not have been withheld or imposed on that payment had the Non-U.S.
Merger not occurred, the Trust will pay to each Securityholder an amount (the
"Gross-Up Payment") equal to all additional amounts that may be necessary so
that every net Distribution to the Holder will not be less than the amount
provided for herein or in the Preferred Securities. The term "net
Distribution" means the amount the Trust will pay to the Securityholder after
the Trust's or that Securityholder's payment, deduction or withholding an
amount for or on account of any present or future taxes, duties, assessments
or other governmental charges imposed with respect to that payment by any
taxing authority that would not have been imposed if the Non-U.S. Merger had
not occurred. For purposes of determining the amount of the Gross-Up Payment,
to the extent that any withholding or imposition of any tax, duty, assessment
or other governmental charge is assessed on different taxpayers at different
rates, the rate applicable to each Holder of Trust Securities will be the
highest marginal rate for the period in which the Gross-Up Payment is to be
made.
Any reference in this Amended and Restated Declaration of Trust, or
the Trust Securities, to interest, Distributions or any other amount payable
in respect of the Trust Securities also refers to any Gross-Up Payment payable
with respect thereto pursuant to this Section 2.11.
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ARTICLE 3
Payment Account
Section 3.01 Payment Account.
(a) On or prior to the Issue Date, the Property Trustee shall
establish the Payment Account. The Property Trustee (and if deemed necessary
by the Property Trustee, an agent of the Property Trustee) shall have
exclusive control and sole right of withdrawal with respect to the Payment
Account for the purpose of making deposits in and withdrawals from the Payment
Account in accordance with this Amended and Restated Declaration of Trust. All
monies and other property deposited or held from time to time in the Payment
Account shall be held by the Property Trustee in the Payment Account for the
exclusive benefit of the Securityholders and for distribution as herein
provided, including (and subject to) any priority of payments provided for
herein.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal or interest on, and any other
payments or proceeds with respect to, the Junior Subordinated Debt Securities.
Amounts held in the Payment Account shall not be invested by the Property
Trustee pending distribution thereof.
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ARTICLE 4
Distributions; Redemption
Section 4.01 Distributions.
(a) Distributions on the Trust Securities shall be cumulative and
accrue from the Issue Date and, subject to paragraph (e) of this Section 4.01,
shall be payable (i) during the Fixed Rate Period, semi-annually on June 1 and
December 1 of each year, commencing June 1, 2006 (each a "Semi-Annual
Distribution Date"); and (ii) during the Floating Rate Period, quarterly on
March 1, June 1, September 1 and December 1 of each year, commencing March 1,
2011 (each a "Quarterly Distribution Date"). If any date on which
Distributions are otherwise payable on the Trust Securities is not a Business
Day, then the payment of such Distribution shall be made on the next
succeeding day which is a Business Day (and, in the case of a Semi-Annual
Distribution Date, without any interest or other payment in respect of any
such delay).
(b) (i) During the Fixed Rate Period, distributions payable on the
Trust Securities shall be fixed at a rate of 5.902% per annum (the "Fixed
Rate") of the Liquidation Amount of the Trust Securities, such rate being the
rate of interest payable during the Fixed Rate Period on the Junior
Subordinated Debt Securities to be held by the Property Trustee, and (to the
extent that payment of such distributions is enforceable under applicable law)
distributions on any overdue installment of distributions shall accrue at the
Fixed Rate, compounded semi-annually, through the end of the Fixed Rate
Period. (ii) During the Floating Rate Period, distributions on each Trust
Security will accrue during each Quarterly Distribution Accrual Period, at a
rate equal to the lower of (i) 1.40% plus the highest of the (x) 3-Month LIBOR
Rate; (y) 10-Year Treasury CMT, and (z) 30-Year Treasury CMT, as applicable
for such Quarterly Distribution Accrual Period and (ii) 13.25% (such rate the
"Floating Rate" with respect to such Quarterly Distribution Accrual Period,
and such rate being the rate of interest payable during the Floating Rate
Period on the Junior Subordinated Debt Securities to be held by the Property
Trustee) until the stated liquidation amount thereof is paid, and (to the
extent that payment of such distributions is enforceable under applicable law)
distributions on any overdue installment of distributions shall accrue at the
Floating Rate prevailing from time to time, compounded quarterly at such
prevailing Floating Rate.
(c) During the Fixed Rate Period, the amount of distributions payable
on any Distribution Date will be computed on the basis of a 360-day year of
twelve 30-day months, and the amount of distributions payable for any period
shorter or longer than a full semi-annual period for which distributions are
computed will be computed on the basis of the actual number of days elapsed in
such 180-day period. During the Floating Rate Period, the amount of
distributions payable will be computed by multiplying the annual Floating Rate
in effect for the Quarterly Distribution Accrual Period or portion thereof in
respect of which the distribution is made by a fraction, the numerator of
which will be the actual number of days in such Quarterly Distribution Accrual
Period (or a portion thereof) (determined by including the first day thereof
and excluding the last day thereof) and the denominator of which will be 365,
and multiplying the product obtained thereby by the stated liquidation amount
of the Trust Securities.
23
(d) Distributions on the Trust Securities shall be made and shall be
deemed payable on each Distribution Date, but only to the extent that the
Trust has legally and immediately available funds in the Payment Account for
the payment of such Distributions.
(e) An interest payment on the Junior Subordinated Debt Securities
may be deferred (i) in whole at the election of the Sponsor pursuant to
Optional Deferral in accordance with the terms of Section 4.1 of the
Supplemental Indenture permitting Optional Deferral, or (ii) in whole or in
part in accordance with the terms of Section 4.2 of the Supplemental Indenture
limiting interest payments in the case of a Mandatory Deferral (each a
"Deferral"). As a consequence of any such Deferral, Distributions will also be
deferred, in whole or in part, to the extent corresponding to the deferral on
the Junior Subordinated Debt Securities, provided that, to the extent
permitted by applicable law, semi-annual or quarterly Distributions, as
applicable, to the extent not paid as and when due will continue to accrue (i)
during the Fixed Rate Period, at the Fixed Rate, compounded semi-annually on
each Semi-Annual Distribution Date and (ii) during the Floating Rate Period,
at the Floating Rates applicable from time to time, compounded quarterly on
each Quarterly Distribution Date. Amounts added to deferred Distributions due
to such compounding are referred to herein as "Additional Amounts." Deferred
Distributions, together with Additional Amounts, will be distributed to the
Holders of the Trust Securities as received by the Trust at the end of any
Deferral period. Notwithstanding the foregoing, the Trust may distribute
deferred amounts earlier if the Sponsor prepays interest deferred on the
Junior Subordinated Debt Securities prior to the end of any Deferral as
permitted by the Junior Subordinated Indenture.
(f) Distributions, including Additional Amounts, if any, on the Trust
Securities on each Distribution Date shall be payable to the Holders thereof
as they appear on the Securities Register for the Trust Securities on the
relevant record date. While the Preferred Securities are in book-entry only
form, the relevant record dates shall be one Business Day prior to the
relevant payment dates which payment dates correspond to the interest payment
dates on the Junior Subordinated Debt Securities. If the Preferred Securities
are not in book-entry only form, the relevant record dates for the Preferred
Securities shall conform to the rules of any securities exchange on which the
Preferred Securities are listed and, if none, shall be selected by the
Sponsor, which dates shall be at least one Business Day but not more than 60
Business Days before the relevant payment dates, which payment dates shall
correspond to the interest payment dates on the Junior Subordinated Debt
Securities. The relevant record dates for the Common Securities shall be the
same record date as for the Preferred Securities. Distributions payable on the
Trust Securities that are not punctually paid on any Distribution Date as a
result of the Sponsor having failed to make a payment on the Junior
Subordinated Debt Securities will cease to be payable to the Person in whose
name such Trust Securities are registered on the relevant record date, and
such defaulted Distribution will instead be payable to the Person in whose
name such Trust Securities are registered on the special record date or other
specified date determined in accordance with the Junior Subordinated
Indenture.
(g) In the event of the occurrence of a Registration Default under
Section 8 of the Registration Rights Agreement with respect to any Preferred
Security, the Trust shall pay Registration Default Damages in the form of
additional distributions on such Preferred Security at the per annum rate of
0.25% of the Liquidation Amount thereof for so long as such Registration
Default continues in accordance with and subject to the terms of Section 8 of
the Registration
24
Rights Agreement. References to Distributions herein include references to such
Registration Default Damages.
(h) Each holder of a Trust Security, by such holder's acceptance
thereof, agrees that in the event of any payment or distribution of assets to
creditors of the Sponsor or in the event of any liquidation, dissolution,
winding up, reorganization, or in connection with any insolvency, receivership
or proceeding under any Bankruptcy Law with respect to the Sponsor, such
holder shall not have a claim for deferred Distributions on such holder's
Trust Security or to Additional Amounts and Gross-Up Payments in respect
thereof, to the extent that such amounts correspond to Foregone Deferred
Interest on the Junior Subordinated Debt Securities.
(i) Each Trust Security, upon registration of transfer of or in
exchange for or in lieu of any other Trust Security, shall continue to carry
the rights of Distributions accrued (including Additional Amounts, if any) and
unpaid, and to accrue (including Additional Amounts, if any), which were
carried by such Trust Security prior to such registration of transfer or
exchange.
Section 4.02 Redemption.
(a) On each Indenture Redemption Date with respect to the Junior
Subordinated Debt Securities (other than following the distribution of the
Junior Subordinated Debt Securities to the holders of Trust Securities
pursuant to Section 9.04), the Trust will be required to redeem a Like Amount
of Trust Securities at the applicable Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60
days prior to the Redemption Date to each Holder of Trust Securities to be
redeemed, at such Holder's address appearing in the Securities Register. All
notices of redemption shall state:
(i) the Redemption Date;
(ii) the applicable Redemption Price;
(iii) the CUSIP number of the Trust Securities to be redeemed;
(iv) if less than all the Outstanding Trust Securities are to be
redeemed, the total Liquidation Amount of the Trust Securities to be
redeemed; and
(v) that on the Redemption Date the applicable Redemption Price will
become due and payable upon each such Trust Security to be redeemed and
that Distributions thereon will cease to accrue on and after such date.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the applicable Redemption Price with the proceeds from the
contemporaneous redemption of Junior Subordinated Debt Securities. Redemptions
of the Trust Securities shall be made and the applicable Redemption Price
shall be deemed payable on each Redemption Date only to the extent that the
Trust has funds legally and immediately available in the Payment Account for
the payment of such Redemption Price.
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(d) If the Property Trustee gives a notice of redemption in respect
of any Preferred Securities, then, by 2:00 p.m. New York time, on the
Redemption Date, subject to Section 4.02(c), the Property Trustee will, so
long as the Preferred Securities are in book-entry only form, irrevocably
deposit with the Clearing Agency for the Preferred Securities funds sufficient
to pay the applicable Redemption Price. If the Preferred Securities are not in
book-entry only form, the Property Trustee, subject to Section 4.02(c), shall
irrevocably deposit with the Paying Agent funds sufficient to pay the
applicable Redemption Price and will give the Paying Agent irrevocable
instructions to pay such Redemption Price to the Holders thereof upon
surrender of their Preferred Securities Certificates. Notwithstanding the
foregoing, Distributions payable on or prior to the Redemption Date for any
Trust Securities called for redemption shall be payable to the Holders of such
Trust Securities as they appear on the Securities Register for the Trust
Securities on the relevant record dates for the related Distribution Dates. If
notice of redemption shall have been given and funds deposited as required,
then upon the date of such deposit, all rights of Securityholders holding
Trust Securities so called for redemption will cease, except the right of such
Securityholders to receive the applicable Redemption Price, but without
interest, and such Securities will cease to be outstanding. In the event that
any date on which any Redemption Price is payable is not a Business Day, then
payment of the applicable Redemption Price payable on such date shall be made
on the next succeeding day which is a Business Day (and without any interest
or other payment in respect of any such delay). In the event that payment of
the applicable Redemption Price in respect of Trust Securities is improperly
withheld or refused and not paid either by the Trust or by the Guarantor
pursuant to the Guarantee, Distributions on such Trust Securities will
continue to accrue at the then applicable rate, from such Redemption Date
originally established by the Trust for such Trust Securities to the date such
Redemption Price is actually paid, and the actual payment date will be the
Redemption Date for purposes of calculating the applicable Redemption Price.
(e) If less than all the Outstanding Trust Securities are to be
redeemed on a Redemption Date, then, subject to Section 4.03, the particular
Preferred Securities to be redeemed shall be selected on a pro rata basis not
more than 60 days prior to the Redemption Date by the Property Trustee from
the Outstanding Preferred Securities not previously called for redemption, by
such method as the Property Trustee shall deem fair and appropriate and which
may provide for the selection for a redemption of portions (equal to $1,000 or
integral multiple thereof) of the Liquidation Amount of Preferred Securities
of a denomination larger than $1,000. The Property Trustee shall promptly
notify the Securities Registrar in writing of the Preferred Securities
selected for redemption and, in the case of any Preferred Securities selected
for partial redemption, the Liquidation Amount thereof to be redeemed. For all
purposes of this Amended and Restated Declaration of Trust, unless the context
otherwise requires, all provisions relating to the redemption of Preferred
Securities shall relate, in the case of any Preferred Securities redeemed or
to be redeemed only in part, to the portion of the Liquidation Amount of
Preferred Securities which has been or is to be redeemed.
(f) Less than all the Outstanding Trust Securities may not be
redeemed unless all accrued and unpaid Distributions have been paid on all
Trust Securities for all semi-annual and/or quarterly Distribution periods
terminating on or before the date of redemption.
(g) Subject to applicable law (including, without limitation, United
States federal securities laws), the Sponsor, the Guarantor or their
Affiliates may, at any time and from
26
time to time, purchase Outstanding Preferred Securities by tender, in the open
market or by private agreement.
Section 4.03 Subordination of Common Securities.
(a) Payment of Distributions (including Additional Amounts, if any)
on, and the applicable Redemption Price of, the Trust Securities, as the case
may be, shall be made pro rata based on the aggregate Liquidation Amount of
the Trust Securities; provided, however, that if on any Distribution Date or
Redemption Date an Event of Default shall have occurred and be continuing, no
payment of any Distribution (including Additional Amounts, if any) on, or the
applicable Redemption Price of, any Common Security, and no other payment on
account of the redemption, liquidation or other acquisition of Common
Securities, shall be made unless payment in full in cash of all accumulated
and unpaid Distributions (including Additional Amounts, if any) on all
Outstanding Preferred Securities for all distribution periods terminating on
or prior thereto, or in the case of payment of the applicable Redemption Price
the full amount of such Redemption Price on all Outstanding Preferred
Securities, shall have been made or provided for, and all funds immediately
available to the Property Trustee shall first be applied to the payment in
full in cash of all Distributions (including Additional Amounts, if any) on,
or the applicable Redemption Price of, Preferred Securities then due and
payable.
(b) In the case of the occurrence of any Indenture Event of Default,
the Holder of Common Securities will be deemed to have waived the right to act
with respect to any such Indenture Event of Default until the effect of such
Indenture Event of Default with respect to the Preferred Securities have been
cured, waived or otherwise eliminated. Until any such Indenture Event of
Default has been so cured, waived or otherwise eliminated, the Property
Trustee shall act solely on behalf of the Holders of the Preferred Securities
and not the Holder of the Common Securities, and only the Holders of the
Preferred Securities will have the right to direct the Property Trustee to act
on their behalf.
Section 4.04 Payment Procedures. Payments in respect of the Preferred
Securities shall be made by check mailed to the address of the Person entitled
thereto as such address shall appear on the Securities Register or, if the
Preferred Securities are held by a Clearing Agency, such Distributions shall
be made to the Clearing Agency, which shall credit the relevant Persons'
accounts at such Clearing Agency on the applicable distribution dates.
Payments in respect of the Common Securities shall be made in such manner as
shall be mutually agreed between the Property Trustee and the Holder of the
Common Securities.
Section 4.05 Tax Returns and Reports. The Administrative Trustee(s)
shall prepare (or cause to be prepared), at the Sponsor's expense, and file
all United States federal, state and local tax and information returns and
reports required to be filed by or in respect of the Trust. The Administrative
Trustee(s) shall provide or cause to be provided on a timely basis to each
Holder any Internal Revenue Service form required to be so provided in respect
of the Trust Securities.
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ARTICLE 5
Trust Securities Certificates
Section 5.01 Initial Ownership. Upon the creation of the Trust by the
contribution by the Sponsor pursuant to Section 2.03 and until the issuance of
the Trust Securities, and at any time during which no Trust Securities are
outstanding, the Sponsor shall be the sole beneficial owner of the Trust.
Section 5.02 The Trust Securities Certificates. Each of the Trust
Securities Certificates shall be issued in minimum denominations of $1,000 and
integral multiples thereof. The Trust Securities Certificates shall be
executed on behalf of the Trust by manual or facsimile signature of at least
one Administrative Trustee. Trust Securities Certificates bearing the manual
or facsimile signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of the Trust,
shall be validly issued and entitled to the benefits of this Amended and
Restated Declaration of Trust, notwithstanding that such individuals or any of
them shall have ceased to be so authorized prior to the issuance and delivery
of such Trust Securities Certificates or did not hold such offices at the date
of issuance and delivery of such Trust Securities Certificates. A transferee
of a Trust Securities Certificate shall become a Securityholder, and shall be
entitled to the rights and subject to the obligations of a Securityholder
hereunder, upon due registration of such Trust Securities Certificate in such
transferee's name pursuant to Section 5.13.
Section 5.03 Initial Issuance of Trust Securities Certificates. On
the Issue Date, the Administrative Trustees shall cause Trust Securities
Certificates, in an aggregate Liquidation Amount as provided in Sections 2.04
and 2.05, to be executed on behalf of the Trust. No Trust Securities
Certificate shall entitle its holder to any benefit under this Amended and
Restated Declaration of Trust, or shall be valid for any purpose, unless there
shall appear on such Trust Securities Certificate an original signature of one
or more of the Administrative Trustees; such execution shall constitute
conclusive evidence that such Trust Securities Certificate shall have been
duly issued and delivered hereunder. All Trust Securities Certificates shall
be dated the date of their execution.
Section 5.04 The Securities Registrar. The Securities Registrar shall
keep or cause to be kept, at the office or agency maintained pursuant to
Section 5.08, a Securities Register in which, subject to such reasonable
regulations as it may prescribe, the Securities Registrar shall provide for
the registration of Preferred Securities Certificates and the Common
Securities Certificates (subject to Section 5.10 in the case of the Common
Securities Certificates) and registration of transfers and exchanges of
Preferred Securities Certificates as provided pursuant to Section 5.13. The
Property Trustee shall be the initial Securities Registrar. Each Preferred
Securities Certificate surrendered for registration of transfer or exchange
shall be canceled and subsequently disposed of by the Securities Registrar in
accordance with its customary practice.
Section 5.05 Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates. If (i) any mutilated Trust Securities Certificate shall be
surrendered to the Securities Registrar, or if the Securities Registrar shall
receive evidence to its satisfaction of the destruction, loss or theft of any
Trust Securities Certificate and (ii) there shall be delivered to the
Securities Registrar and the
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Administrative Trustees such security or indemnity as may be required by them to
save each of them harmless, then in the absence of notice that such Trust
Securities Certificate shall have been acquired by a protected purchaser, the
Administrative Trustees or any one of them on behalf of the Trust shall execute
and cause to be issued and made available for delivery, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Trust Securities
Certificate, a new Trust Securities Certificate of like class, tenor and
denomination. In connection with the issuance of any new Trust Securities
Certificate under this Section 5.05, the Administrative Trustees or the
Securities Registrar may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection therewith.
Any duplicate Trust Securities Certificate issued pursuant to this Section 5.05
shall constitute conclusive evidence of an ownership interest in the Trust, as
if originally issued, whether or not the lost, stolen or destroyed Trust
Securities Certificate shall be found at any time.
Section 5.06 Persons Deemed Securityholders. Prior to due
presentation of a Trust Securities Certificate for registration of transfer,
the Trustees or the Securities Registrar shall treat the Person in whose name
any Trust Securities Certificate shall be registered in the Securities
Register as the owner of such Trust Securities Certificate for the purpose of
receiving Distributions (subject to Section 4.01) and for all other purposes
whatsoever, and neither the Trustees nor the Securities Registrar shall be
bound by any notice to the contrary.
Section 5.07 Access to List of Securityholders' Names and Addresses.
The Administrative Trustees shall furnish or cause to be furnished to (i) the
Sponsor and the Property Trustee semi-annually, not later than June 1 and
December 1 in each year, and (ii) the Sponsor or the Property Trustee, as the
case may be, within 30 days after receipt by any Administrative Trustee of a
request therefor from the Sponsor or the Property Trustee, as the case may be,
in writing, a list, in such form as the Sponsor or the Property Trustee, as
the case may be, may reasonably require, of the names and addresses of the
Securityholders as of a date not more than 15 days prior to the time such list
is furnished; provided that the Administrative Trustees shall not be obligated
to provide such list at any time such list does not differ from the most
recent list given to the Sponsor and the Property Trustee by the
Administrative Trustees or at any time the Property Trustee is the Securities
Registrar. If three or more Securityholders or one or more Holders of Trust
Securities Certificates evidencing not less than 25% of the aggregate
outstanding Liquidation Amount apply in writing to the Administrative
Trustees, and such application states that the applicants desire to
communicate with other Securityholders with respect to their rights under this
Amended and Restated Declaration of Trust or under the Trust Securities
Certificates and such application is accompanied by a copy of the
communication that such applicants propose to transmit, then the
Administrative Trustees shall, within five Business Days after the receipt of
such application, afford such applicants access during normal business hours
to the current list of Securityholders. Each Holder, by receiving and holding
a Trust Securities Certificate, shall be deemed to have agreed not to hold
either the Sponsor or the Administrative Trustees accountable by reason of the
disclosure of its name and address, regardless of the source from which such
information was derived.
Section 5.08 Maintenance of Office or Agency. The Administrative
Trustees shall maintain in the Borough of Manhattan, New York, or Wilmington,
Delaware, an office or offices or agency or agencies where Preferred
Securities Certificates may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Trustees in
29
respect of the Trust Securities Certificates may be served. The Administrative
Trustees initially designate HSBC Bank USA, National Association, 1201 Market
Street, Suite 1001, Wilmington, Delaware 19801, as its principal agency for such
purposes. The Administrative Trustees shall give prompt written notice to the
Sponsor and to the Securityholders of any change in the location of the
Securities Register or any such office or agency.
Section 5.09 Appointment of Paying Agent. The Paying Agent shall make
Distributions and other payments provided hereby to Securityholders from the
Payment Account and shall report the amounts of such Distributions and
payments to the Property Trustee and the Administrative Trustees. Any Paying
Agent shall have the revocable power to withdraw funds from the Payment
Account for the purpose of making the Distributions and payments provided
hereby. The Administrative Trustees may revoke such power and remove the
Paying Agent if such Trustees determine in their sole discretion that the
Paying Agent shall have failed to perform its obligations under this Amended
and Restated Declaration of Trust in any material respect. The Paying Agent
shall initially be the Property Trustee, and it may choose any co-paying agent
that is acceptable to the Administrative Trustees and the Sponsor. Any Person
acting as Paying Agent shall be permitted to resign as Paying Agent upon 30
days written notice to the Administrative Trustees and the Sponsor. In the
event that a Paying Agent shall resign or be removed, the Administrative
Trustees shall appoint a successor that is acceptable to the Sponsor to act as
Paying Agent (which shall be a bank or trust company). The Administrative
Trustees shall cause such successor Paying Agent or any additional Paying
Agent appointed by the Administrative Trustees to execute and deliver to the
Trustees an instrument in which such successor Paying Agent or additional
Paying Agent shall agree with the Trustees that as Paying Agent, such
successor Paying Agent or additional Paying Agent will hold all sums, if any,
held by it for payment to the Securityholders in trust for the benefit of the
Securityholders entitled thereto until such sums shall be paid to such
Securityholders. The Paying Agent shall return all unclaimed funds to the
Property Trustee and upon removal of a Paying Agent such Paying Agent shall
also return all funds in its possession to the Property Trustee. The
provisions of Sections 8.01, 8.03 and 8.06 shall apply to the Property Trustee
also in its role as Paying Agent, for so long as the Property Trustee shall
act as Paying Agent and, to the extent applicable, to any other paying agent
appointed hereunder. Any reference in this Amended and Restated Declaration of
Trust to the Paying Agent shall include any co-paying agent unless the context
requires otherwise.
Section 5.10 Ownership of Common Securities by Sponsor. On the Issue
Date, the Sponsor shall acquire, and thereafter retain, beneficial and record
ownership of the Common Securities. Any attempted transfer of the Common
Securities, except for transfers by operation of law or to a direct or
indirect wholly-owned subsidiary of the Sponsor or a permitted successor under
the Junior Subordinated Indenture, shall be void. The Administrative Trustees
shall cause each Common Securities Certificate issued to the Sponsor to
contain a legend stating "THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS
PROVIDED IN THE AMENDED AND RESTATED DECLARATION OF TRUST REFERRED TO HEREIN".
Section 5.11 Book-Entry Preferred Securities Certificates; Common
Securities Certificate.
(a) The Preferred Securities Certificates, upon original issuance,
will be issued in the form of certificates representing Book-Entry Preferred
Securities Certificates, to be delivered
30
to The Depository Trust Company, the initial Clearing Agency, by, or on behalf
of, the Trust. Such Preferred Securities Certificates shall initially be
registered on the Securities Register in the name of Cede & Co., the nominee of
the initial Clearing Agency, and no Owner will receive a definitive Preferred
Securities Certificate representing such beneficial owner's interest in such
Preferred Securities, except as provided in Section 5.13. Unless and until
Definitive Preferred Securities Certificates have been issued to Owners pursuant
to Section 5.13:
(i) the provisions of this Section 5.11(a) shall be in full force and
effect;
(ii) the Securities Registrar and the Trustees shall be entitled to
deal with the Clearing Agency for all purposes of this Amended and
Restated Declaration of Trust relating to the Book-Entry Preferred
Securities Certificates (including the payment of principal of and
interest on the Book-Entry Preferred Securities Certificates and the
giving of instructions or directions to Owners of Book-Entry Preferred
Securities Certificates) as the sole Holder of Book-Entry Preferred
Securities Certificates and shall have no obligations to the Owners
thereof;
(iii) to the extent that the provisions of this Section 5.11 conflict
with any other provisions of this Amended and Restated Declaration of
Trust, the provisions of this Section 5.11 shall control; and
(iv) the rights of the Owners of the Book-Entry Preferred Securities
Certificates shall be exercised only through the Clearing Agency and
shall be limited to those established by law and agreements between such
Owners and the Clearing Agency and/or the Clearing Agency Participants.
Pursuant to the Certificate Depository Agreement, unless and until
Definitive Preferred Securities Certificates are issued pursuant to
Section 5.13, the Clearing Agency will make book-entry transfers among
the Clearing Agency Participants and receive and transmit payments on the
Preferred Securities to such Clearing Agency Participants.
(b) Preferred Securities offered and sold in reliance on Regulation S
shall be issued initially in the form of the Regulation S Temporary Book-Entry
Preferred Securities Certificate and shall initially be registered on the
Securities Register in the name of Cede & Co., the nominee of the initial
Clearing Agency, for the accounts of designated agents holding on behalf of
Euroclear or Clearstream. The Restricted Period shall be terminated upon the
receipt by the Administrative Trustees of a written certificate from the
Clearing Agency, together with copies of certificates from Euroclear and
Clearstream, certifying that they have received certification of non-United
States beneficial ownership of 100% of the Liquidation Amount of the
Regulation S Temporary Book-Entry Preferred Securities Certificate (except to
the extent of any beneficial owners thereof who acquired an interest therein
during the Restricted Period pursuant to another exemption from registration
under the Securities Act and who will take delivery of a beneficial ownership
interest in a 144A Book-Entry Preferred Securities Certificate bearing a
Private Placement Legend, all as contemplated by Section 5.13(a)(ii) hereof).
Following the termination of the Restricted Period, beneficial interests in
the Regulation S Temporary Book-Entry Preferred Securities Certificate shall
be exchanged for beneficial interests in Regulation S Permanent Book-Entry
Preferred Securities Certificates pursuant to the Applicable Procedures.
Simultaneously with the issuance of Regulation S Permanent Book-Entry
Preferred Securities Certificates, the
31
Administrative Trustees shall cancel the Regulation S Temporary Book-Entry
Preferred Securities Certificate. The Liquidation Amount of the Regulation S
Temporary Book-Entry Preferred Securities Certificate and the Regulation S
Permanent Book-Entry Preferred Securities Certificates may from time to time be
increased or decreased by adjustments made on the records of the Securities
Registrar and the Clearing Agency or its nominee, as the case may be, in
connection with transfers of interest as hereinafter provided.
(c) The provisions of the "Operating Procedures of the Euroclear
System" and "Terms and Conditions Governing Use of Euroclear" and the "General
Terms and Conditions of Clearstream" and "Customer Handbook" of Clearstream
shall be applicable to transfers of beneficial interests in the Regulation S
Temporary Book-Entry Preferred Securities Certificate and the Regulation S
Permanent Book-Entry Preferred Securities Certificates that are held by
participants through Euroclear or Clearstream.
(d) A single Common Securities Certificate representing the Common
Securities shall be issued to the Sponsor in the form of a definitive Common
Securities Certificate.
Section 5.12 Notices to Clearing Agency. To the extent a notice or
other communication to the Owners is required under this Amended and Restated
Declaration of Trust, unless and until Definitive Preferred Securities
Certificates shall have been issued to Owners pursuant to Section 5.13, the
Trustees shall give all such notices and communications specified herein to be
given to Owners to the Clearing Agency, and shall have no obligations to the
Owners.
Section 5.13 Transfer and Exchange of Preferred Securities.
(a) Transfer and Exchange of Book-Entry Preferred Securities
Certificates. A Book-Entry Preferred Securities Certificate may not be
transferred as a whole except by the Clearing Agency to a nominee of the
Clearing Agency, by a nominee of the Clearing Agency to the Clearing Agency or
to another nominee of the Clearing Agency, or by the Clearing Agency or any
such nominee to a successor Clearing Agency or a nominee of such successor
Clearing Agency. All Book-Entry Preferred Securities Certificates will be
exchanged by the Administrative Trustees for Definitive Preferred Securities
Certificates if (i) the Clearing Agency is unwilling or unable to continue to
act as Clearing Agency or it is no longer a clearing agency registered under
the Exchange Act and, in either case, a successor Clearing Agency is not
appointed by the Administrative Trustees within 120 days after the date of
such notice from the Clearing Agency or (ii) the Sponsor or Trust determines
that the Book-Entry Preferred Securities Certificates (in whole but not in
part) should be exchanged for Definitive Preferred Securities Certificates and
delivers a written notice to such effect to the Trustees; provided that in no
event shall the Regulation S Temporary Book-Entry Preferred Securities
Certificate be exchanged for Definitive Preferred Securities Certificates
prior to the expiration of the Restricted Period. Upon the occurrence of
either of the preceding events in (i) or (ii) above, Definitive Preferred
Securities Certificates shall be issued in such names as the Clearing Agency
shall instruct the Trustees. A Book-Entry Preferred Securities Certificate may
not be exchanged for another Security other than as provided in this Section
5.13(a); however, beneficial interests in a Book-Entry Preferred Securities
Certificate may be transferred and exchanged as provided in Section 5.13(b),
(c) or (f) hereof.
32
(b) Transfer and Exchange of Beneficial Interests in the Book-Entry
Preferred Securities Certificates. The transfer and exchange of beneficial
interests in the Book-Entry Preferred Securities Certificates shall be
effected through the Clearing Agency, in accordance with the provisions of
this Amended and Restated Declaration of Trust and the Applicable Procedures.
Beneficial interests in the Restricted Book-Entry Preferred Securities
Certificates shall be subject to the restrictions set forth herein to the
extent required by the Securities Act. Transfers of beneficial interests in
the Book-Entry Preferred Securities Certificates also shall require compliance
with either subparagraph (i) or (ii) below, as applicable, as well as one or
more of the other following subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Book-Entry Preferred
Securities Certificate. Beneficial interests in any Restricted Book-Entry
Preferred Securities Certificate may be transferred to Persons who take
delivery thereof in the form of a beneficial interest in the same
Restricted Book-Entry Preferred Securities Certificate in accordance with
the transfer restrictions set forth in the Private Placement Legend;
provided that prior to the expiration of the Restricted Period, transfers
of beneficial interests in the Regulation S Temporary Book-Entry
Preferred Securities Certificate may not be made to a U.S. Person or for
the account or benefit of a U.S. Person (other than an initial purchaser
of the Preferred Securities). Beneficial interests in any Unrestricted
Book-Entry Preferred Securities Certificate may be transferred to Persons
who take delivery thereof in the form of a beneficial interest in an
Unrestricted Book-Entry Preferred Securities Certificate. No written
orders or instructions shall be required to be delivered to the
Securities Registrar to effect the transfers described in this Section
5.13(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests in
Book-Entry Preferred Securities Certificates. In connection with all
transfers and exchanges of beneficial interests that are not subject to
Section 5.13(b)(i) above, the transferor of such beneficial interest must
deliver to the Securities Registrar either (A) (1) a written order from a
Clearing Agency Participant given to the Clearing Agency in accordance
with the Applicable Procedures directing the Clearing Agency to credit or
cause to be credited a beneficial interest in another Book-Entry
Preferred Securities Certificate in an amount equal to the beneficial
interest to be transferred or exchanged and (2) instructions given in
accordance with the Applicable Procedures containing information
regarding the Clearing Agency Participant account to be credited with
such increase or (B) (1) a written order from a Clearing Agency
Participant given to the Clearing Agency in accordance with the
Applicable Procedures directing the Clearing Agency to cause to be issued
a Definitive Preferred Securities Certificate in an amount equal to the
beneficial interest to be transferred or exchanged and (2) instructions
given by the Clearing Agency to the Securities Registrar containing
information regarding the Person in whose name such Definitive Preferred
Securities Certificate shall be registered to effect the transfer or
exchange referred to in (1) above; provided that in no event shall
Definitive Preferred Securities Certificates be issued upon the transfer
or exchange of beneficial interests in the Regulation S Temporary
Book-Entry Preferred Securities Certificate prior to the expiration of
the Restricted Period. Upon consummation of a Registered Exchange Offer
in accordance with Section 5.13(f) hereof, the requirements of this
Section 5.13(b)(ii) shall be deemed to have been satisfied upon receipt
by the Securities Registrar of the instructions contained in the Letter
of Transmittal delivered by the Holder of such beneficial interests in
the Restricted Book-Entry Preferred
33
Securities Certificates. Upon satisfaction of all of the requirements for
transfer or exchange of beneficial interests in Book-Entry Preferred
Securities Certificates contained herein or otherwise applicable under the
Securities Act, the Administrative Trustees shall adjust the principal
|
amount of the relevant Book-Entry Preferred Securities Certificates
pursuant to Section 5.13(h) hereof.
(iii) Transfer of Beneficial Interests to Another Restricted
Book-Entry Preferred Securities Certificate. A beneficial interest in any
Restricted Book-Entry Preferred Securities Certificates may be
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Book-Entry Preferred Securities
Certificate if the transfer complies with the requirements of Section
5.13(b)(ii) above and the Securities Registrar receives the following:
(A) if the transferee will take delivery in the form of a
beneficial interest in the 144A Book-Entry Preferred Securities
Certificate, then the transferor must deliver a certificate in the
form of Exhibit D hereto, including the certifications in item (1)
thereof; and
(B) if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Temporary Book-Entry
Preferred Securities Certificate or the Regulation S Book-Entry
Preferred Securities Certificate, then the transferor must deliver a
certificate in the form of Exhibit D hereto, including the
certifications in item (2) thereof.
(iv) Transfer and Exchange of Beneficial Interests in a Restricted
Book-Entry Preferred Securities Certificate for Beneficial Interests in
the Unrestricted Book-Entry Preferred Securities Certificate. A
beneficial interest in any Restricted Book-Entry Preferred Securities
Certificate may be exchanged by any holder thereof for a beneficial
interest in an Unrestricted Book-Entry Preferred Securities Certificate
or transferred to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Book-Entry Preferred Securities
Certificate if the exchange or transfer complies with the requirements of
Section 5.13(b)(ii) above and:
(A) such exchange is effected pursuant to the Registered
Exchange Offer in accordance with the Registration Rights Agreement
and the holder of the beneficial interest to be exchanged certifies
in the applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution of the
Exchange Preferred Securities Certificates or (3) a Person who is an
affiliate (as defined in Rule 144) of the Sponsor;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a broker-dealer pursuant to
the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Securities Registrar receives the following:
34
(1) if the holder of such beneficial interest in a
Restricted Book-Entry Preferred Securities Certificate
proposes to exchange such beneficial interest for a
beneficial interest in an Unrestricted Book-Entry Preferred
Securities Certificate, a certificate from such holder in
the form of Exhibit E hereto, including the certifications
in item (1)(a) thereof; or
(2) if the holder of such beneficial interest in a
Restricted Book-Entry Preferred Securities Certificate
proposes to transfer such beneficial interest to a Person
who shall take delivery thereof in the form of a beneficial
interest in an Unrestricted Book-Entry Preferred Securities
Certificate, a certificate from such holder in the form of
Exhibit D hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (D), an opinion
of counsel to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are no
longer required in order to maintain compliance with the Securities
Act.
If any such transfer is effected pursuant to subparagraph (B) or (D)
above at a time when an Unrestricted Book-Entry Preferred Securities
Certificate has not yet been issued, one or more Unrestricted Book-Entry
Preferred Securities Certificates shall be issued in an aggregate principal
amount equal to the aggregate principal amount of beneficial interests
transferred pursuant to subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Book-Entry Preferred
Securities Certificate cannot be exchanged for, or transferred to Persons who
take delivery thereof in the form of, a beneficial interest in a Restricted
Book-Entry Preferred Securities Certificate.
(c) Transfer or Exchange of Beneficial Interests for Definitive
Preferred Securities Certificates.
(i) Beneficial Interests in Restricted Book-Entry Preferred
Securities Certificates to Restricted Definitive Preferred Securities
Certificates. If any holder of a beneficial interest in a Restricted
Book-Entry Preferred Securities Certificate proposes to exchange such
beneficial interest for a Restricted Definitive Preferred Securities
Certificate or to transfer such beneficial interest to a Person who takes
delivery thereof in the form of a Restricted Definitive Preferred
Securities Certificate, then, upon receipt by the Securities Registrar of
the following documentation:
(A) if the holder of such beneficial interest in a
Restricted Book-Entry Preferred Securities Certificate proposes to
exchange such beneficial interest for a Restricted Definitive
Preferred Securities Certificate, a certificate from such holder in
the form of Exhibit E hereto, including the certifications in item
(2)(a) thereof;
(B) if such beneficial interest is being transferred to a
QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit D hereto, including
the certifications in item (1) thereof;
35
(C) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule
903 or Rule 904 under the Securities Act, a certificate to the effect
set forth in Exhibit D hereto, including the certifications in item
(2) thereof;
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 under the Securities Act,
a certificate to the effect set forth in Exhibit D hereto, including
the certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to the
Trust, a certificate to the effect set forth in Exhibit D hereto,
including the certifications in item (3)(b) thereof; or
(F) if such beneficial interest is being transferred
pursuant to an effective registration statement under the Securities
Act, a certificate to the effect set forth in Exhibit D hereto,
including the certifications in item (3)(c) thereof,
the Administrative Trustees shall cause the aggregate principal
amount of the applicable Book-Entry Preferred Securities Certificates
to be reduced accordingly pursuant to Section 5.13(h) hereof, and the
Person designated in the instructions shall receive a Definitive
Preferred Securities Certificate in the appropriate principal amount.
Any Definitive Preferred Securities Certificate issued in exchange
for a beneficial interest in a Restricted Book-Entry Preferred
Securities Certificate pursuant to this Section 5.13(c) shall be
registered in such name or names and in such authorized denomination
or denominations as the holder of such beneficial interest shall
instruct the Securities Registrar through instructions from the
Clearing Agency and the Clearing Agency Participant. The Trustees
shall deliver such Definitive Preferred Securities Certificates to
the Persons in whose names such Preferred Securities are so
registered. Any Definitive Preferred Securities Certificate issued in
exchange for a beneficial interest in a Restricted Book-Entry
Preferred Securities Certificate pursuant to this Section 5.13(c)(i)
shall bear the Private Placement Legend and shall be subject to all
restrictions on transfer contained therein.
(ii) Beneficial Interests in Regulation S Temporary Book-Entry
Preferred Securities Certificate to Definitive Preferred Securities
Certificates. Notwithstanding Sections 5.13(c)(i)(A) and (C) hereof, a
beneficial interest in a Regulation S Temporary Book-Entry Preferred
Securities Certificate may not be exchanged for a Definitive Preferred
Securities Certificate or transferred to a Person who takes delivery
thereof in the form of a Definitive Preferred Securities Certificate
prior to the expiration of the Restricted Period, except in the case of a
transfer pursuant to an exemption from the registration requirements of
the Securities Act other than Rule 903 or Rule 904.
(iii) Beneficial Interests in Restricted Book-Entry Preferred
Securities Certificates to Unrestricted Definitive Preferred Securities
Certificates. A holder of a beneficial interest in a Restricted
Book-Entry Preferred Securities Certificate may exchange such beneficial
interest for an Unrestricted Definitive Preferred Securities Certificate
or
36
may transfer such beneficial interest to a Person who takes delivery
thereof in the form of an Unrestricted Definitive Preferred Securities
Certificate only if:
(A) such exchange or transfer is effected pursuant to the
Registered Exchange Offer in accordance with the Registration Rights
Agreement and the holder of such beneficial interest, in the case of
an exchange, or the transferee, in the case of a transfer, certifies
in the applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution of the
Exchange Preferred Securities Certificates or (3) a Person who is an
affiliate (as defined in Rule 144) of the Trust;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a broker-dealer pursuant to
the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Securities Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Book-Entry Preferred Securities Certificate
proposes to exchange such beneficial interest for a
Definitive Preferred Securities Certificate that does not
bear the Private Placement Legend, a certificate from such
holder in the form of Exhibit E hereto, including the
certifications in item (1)(b) thereof; or
(2) if the holder of such beneficial interest in a
Restricted Book-Entry Preferred Securities Certificate
proposes to transfer such beneficial interest to a Person
who shall take delivery thereof in the form of a Definitive
Preferred Securities Certificate that does not bear the
Private Placement Legend, a certificate from such holder in
the form of Exhibit D hereto, including the certifications
in item (4) thereof;
and, in each such case set forth in this subparagraph (D), an opinion
of counsel to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are no
longer required in order to maintain compliance with the Securities
Act.
(iv) Beneficial Interests in Unrestricted Book-Entry Preferred
Securities Certificates to Unrestricted Definitive Preferred Securities
Certificates. If any holder of a beneficial interest in an Unrestricted
Book-Entry Preferred Securities Certificate proposes to exchange such
beneficial interest for a Definitive Preferred Securities Certificate or
to transfer such beneficial interest to a Person who takes delivery
thereof in the form of a Definitive Preferred Securities Certificate,
then, upon satisfaction of the conditions set forth in Section
5.13(b)(ii) hereof, the Administrative Trustees shall cause the aggregate
principal amount of the applicable Book-Entry Preferred Securities
Certificate to be reduced accordingly pursuant to Section 5.13(h) hereof,
and the Person designated in the
37
instructions shall receive a Definitive Preferred Securities Certificate in
the appropriate principal amount. Any Definitive Preferred Securities
Certificate issued in exchange for a beneficial interest pursuant to this
Section 5.13(c)(iv) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such beneficial
interest shall instruct the Securities Registrar through instructions from
the Clearing Agency and the Clearing Agency Participant. The Administrative
Trustees shall deliver such Definitive Preferred Securities Certificates to
the Persons in whose names such Preferred Securities Certificates are so
registered. Any Definitive Preferred Securities Certificate issued in
exchange for a beneficial interest pursuant to this Section 5.13(c)(iv)
shall not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Preferred Securities
Certificates for Beneficial Interests.
(i) Restricted Definitive Preferred Securities Certificates to
Beneficial Interests in Restricted Book-Entry Preferred Securities
Certificates. If any Holder of a Restricted Definitive Preferred
Securities Certificate proposes to exchange such Preferred Securities
Certificate for a beneficial interest in a Restricted Book-Entry
Preferred Securities Certificate or to transfer such Restricted
Definitive Preferred Securities Certificates to a Person who takes
delivery thereof in the form of a beneficial interest in a Restricted
Book-Entry Preferred Securities Certificate, then, upon receipt by the
Securities Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Preferred
Securities Certificate proposes to exchange such Preferred Securities
Certificate for a beneficial interest in a Restricted Book-Entry
Preferred Securities Certificate, a certificate from such Holder in
the form of Exhibit E hereto, including the certifications in item
(2)(b) thereof;
(B) if such Restricted Definitive Preferred Securities
Certificate is being transferred to a QIB in accordance with Rule
144A under the Securities Act, a certificate to the effect set forth
in Exhibit D hereto, including the certifications in item (1)
thereof;
(C) if such Restricted Definitive Preferred Securities
Certificate is being transferred to a Non-U.S. Person in an offshore
transaction in accordance with Rule 903 or Rule 904 under the
Securities Act, a certificate to the effect set forth in Exhibit D
hereto, including the certifications and opinion of counsel required
by item (2) thereof, if applicable;
(D) if such Restricted Definitive Preferred Securities
Certificate is being transferred pursuant to an exemption from the
registration requirements of the Securities Act in accordance with
Rule 144 under the Securities Act, a certificate to the effect set
forth in Exhibit D hereto, including the certifications and opinion
of counsel required by item (3)(a) thereof, if applicable;
38
(E) if such Restricted Definitive Preferred Securities
Certificate is being transferred to the Trust, a certificate to the
effect set forth in Exhibit D hereto, including the certifications in
item (3)(b) thereof; or
(F) if such Restricted Definitive Preferred Securities
Certificate is being transferred pursuant to an effective
registration statement under the Securities Act, a certificate to the
effect set forth in Exhibit D hereto, including the certifications in
item (3)(c) thereof,
the Administrative Trustees shall cancel the Restricted Definitive
Preferred Securities Certificate, increase or cause to be increased
the aggregate principal amount of, in the case of clause (A) above,
the appropriate Restricted Book-Entry Preferred Securities
Certificate, in the case of clause (B) above, the 144A Book-Entry
Preferred Securities Certificate, in the case of clause (C) above,
the Regulation S Book-Entry Preferred Securities Certificate, and in
all other cases, the 144A Book-Entry Preferred Securities
Certificate.
(ii) Restricted Definitive Preferred Securities Certificates to
Beneficial Interests in Unrestricted Book-Entry Preferred Securities
Certificates. A Holder of a Restricted Definitive Preferred Securities
Certificate may exchange such Preferred Securities Certificate for a
beneficial interest in an Unrestricted Book-Entry Preferred Securities
Certificate or transfer such Restricted Definitive Preferred Securities
Certificate to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Book-Entry Preferred Securities
Certificate only if:
(A) such exchange or transfer is effected pursuant to the
Registered Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (1) a broker-dealer, (2) a
Person participating in the distribution of the Exchange Preferred
Securities Certificates or (3) a Person who is an affiliate (as
defined in Rule 144) of the Trust;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a broker-dealer pursuant to
the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Securities Registrar receives the following:
(1) if the Holder of such Definitive Preferred
Securities Certificates proposes to exchange such Preferred
Securities Certificates for a beneficial interest in the
Unrestricted Book-Entry Preferred Securities Certificate, a
certificate from such Holder in the form of Exhibit E
hereto, including the certifications in item (1)(c) thereof;
or
(2) if the Holder of such Definitive Preferred
Securities Certificates proposes to transfer such Preferred
Securities Certificates to a
39
Person who shall take delivery thereof in the form of a
beneficial interest in the Unrestricted Book-Entry Preferred
Securities Certificate, a certificate from such Holder in the
form of Exhibit D hereto, including the certifications in item
(4) thereof;
and, in each such case set forth in this subparagraph (D), an opinion
of counsel to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are no
longer required in order to maintain compliance with the Securities
Act.
Upon satisfaction of the conditions of any of the subparagraphs in
this Section 5.13(d)(ii), the Trustee shall cancel the Definitive
Preferred Securities Certificates and increase or cause to be increased
the aggregate principal amount of the Unrestricted Book-Entry Preferred
Securities Certificate.
(iii) Unrestricted Definitive Preferred Securities Certificates to
Beneficial Interests in Unrestricted Book-Entry Preferred Securities
Certificates. A Holder of an Unrestricted Definitive Preferred Securities
Certificate may exchange such Preferred Securities Certificate for a
beneficial interest in an Unrestricted Book-Entry Preferred Securities
Certificate or transfer such Definitive Preferred Securities Certificate
to a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Book-Entry Preferred Securities Certificate
at any time. Upon receipt of a request for such an exchange or transfer,
the Administrative Trustees shall cancel the applicable Unrestricted
Definitive Preferred Securities Certificate and increase or cause to be
increased the aggregate principal amount of one of the Unrestricted
Book-Entry Preferred Securities Certificates.
If any such exchange or transfer from a Definitive Preferred
Securities Certificate to a beneficial interest is effected pursuant to
subparagraphs (ii)(B), (ii)(D) or (iii) above at a time when an
Unrestricted Book-Entry Preferred Securities Certificate has not yet been
issued, one or more Unrestricted Book-Entry Preferred Securities
Certificates in an aggregate principal amount equal to the principal
amount of Definitive Preferred Securities Certificates so transferred
shall be issued.
(e) Transfer and Exchange of Definitive Preferred Securities
Certificates for Definitive Preferred Securities Certificates. Upon request by
a Holder of Definitive Preferred Securities Certificates and such Holder's
compliance with the provisions of this Section 5.13(e), the Securities
Registrar shall register the transfer or exchange of Definitive Preferred
Securities Certificates. Prior to such registration of transfer or exchange,
the requesting Holder shall present or surrender to the Securities Registrar
the Definitive Preferred Securities Certificates duly endorsed or accompanied
by a written instruction of transfer in form satisfactory to the Securities
Registrar duly executed by such Holder or by its attorney, duly authorized in
writing. In addition, the requesting Holder shall provide any additional
certifications, documents and information, as applicable, required pursuant to
the following provisions of this Section 5.13(e).
(i) Restricted Definitive Preferred Securities Certificates to
Restricted Definitive Preferred Securities Certificates. Any Restricted
Definitive Preferred Securities
40
Certificate may be transferred to and registered in the name of Persons who
take delivery thereof in the form of a Restricted Definitive Preferred
Securities Certificate if the Securities Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A under
the Securities Act, then the transferor must deliver a certificate in
the form of Exhibit D hereto, including the certifications in item
(1) thereof;
(B) if the transfer will be made pursuant to Rule 903 or
Rule 904, then the transferor must deliver a certificate in the form
of Exhibit D hereto, including the certifications in item (2)
thereof; and
(C) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities Act,
then the transferor must deliver a certificate in the form of Exhibit
D hereto, including the certifications, certificates and opinion of
counsel required by item (3) thereof, if applicable.
(ii) Restricted Definitive Preferred Securities Certificates to
Unrestricted Definitive Preferred Securities Certificates. Any Restricted
Definitive Preferred Securities Certificate may be exchanged by the
Holder thereof for an Unrestricted Definitive Preferred Securities
Certificate or transferred to a Person or Persons who take delivery
thereof in the form of an Unrestricted Definitive Preferred Securities
Certificate if:
(A) such exchange or transfer is effected pursuant to the
Registered Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (1) a broker-dealer, (2) a
Person participating in the distribution of the Exchange Preferred
Securities Certificates or (3) a Person who is an affiliate (as
defined in Rule 144) of the Trust;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) any such transfer is effected by a broker-dealer
pursuant to the Exchange Offer Registration Statement in accordance
with the Registration Rights Agreement; or
(D) the Securities Registrar receives the following:
(1) if the Holder of such Restricted Definitive
Preferred Securities Certificates proposes to exchange such
Preferred Securities Certificates for an Unrestricted
Definitive Preferred Securities Certificate, a certificate
from such Holder in the form of Exhibit E hereto, including
the certifications in item (1)(d) thereof; or
(2) if the Holder of such Restricted Definitive
Preferred Securities Certificates proposes to transfer such
Preferred Securities to a Person who shall take delivery
thereof in the form of an Unrestricted
41
Definitive Preferred Securities Certificate, a certificate
from such Holder in the form of Exhibit D hereto, including
the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D),
an opinion of counsel in form reasonably acceptable to the
Trust to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions
on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain
compliance with the Securities Act.
(iii) Unrestricted Definitive Preferred Securities Certificates to
Unrestricted Definitive Preferred Securities Certificates. A Holder of
Unrestricted Definitive Preferred Securities may transfer such Preferred
Securities Certificates to a Person who takes delivery thereof in the
form of an Unrestricted Definitive Preferred Securities Certificate. Upon
receipt of a request to register such a transfer, the Securities
Registrar shall register the Unrestricted Definitive Preferred Securities
Certificates pursuant to the instructions from the Holder thereof.
(f) Registered Exchange Offer. Upon the occurrence of the Registered
Exchange Offer in accordance with the Registration Rights Agreement, there
shall be issued (i) one or more Unrestricted Book-Entry Preferred Securities
Certificates in an aggregate stated liquidation amount equal to the stated
liquidation amount of the beneficial interests in the Restricted Book-Entry
Preferred Securities Certificates tendered for acceptance by Persons that
certify in the applicable Letters of Transmittal that (x) they are not
broker-dealers, (y) they are not participating in a distribution of the
Exchange Preferred Securities Certificates and (z) they are not affiliates (as
defined in Rule 144) of the Trust, and accepted for exchange in the Registered
Exchange Offer and (ii) Definitive Book-Entry Preferred Securities in an
aggregate stated liquidation amount equal to the principal amount of the
Restricted Definitive Preferred Securities Certificates accepted for exchange
in the Registered Exchange Offer. Concurrently with the issuance of such
Preferred Securities Certificates, the Administrative Trustees shall cause the
aggregate stated liquidation amount of the applicable Restricted Book-Entry
Preferred Securities to be reduced accordingly, and there shall be delivered
to the Persons designated by the Holders of Definitive Preferred Securities
Certificates so accepted Definitive Preferred Securities Certificates in the
appropriate stated liquidation amount.
(g) Legends. The following legends shall appear on the face of all
Book-Entry Preferred Securities Certificates and Definitive Preferred
Securities Certificates issued unless specifically stated otherwise in the
applicable provisions of this Amended and Restated Declaration of Trust.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each
Book-Entry Preferred Securities Certificate and each Definitive
Preferred Securities Certificate (and all Preferred Securities
Certificates issued in exchange therefor or substitution thereof)
shall bear the legend in substantially the following form:
42
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE
"SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER, SELL
OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") THAT IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY
AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY) ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR
SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER
THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER," AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT, THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED
STATES TO NON-U.S. PERSONS IN "OFFSHORE TRANSACTIONS" WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO RULE 144 UNDER THE
SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER'S AND THE TRUSTEES'
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) AND
(E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED
UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S.
PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES
ACT.
(B) Notwithstanding the foregoing, any Book-Entry Preferred
Securities Certificate or Definitive Preferred Securities Certificate
issued pursuant to subparagraphs (b)(iv), (c)(iii), (c)(iv), (d)(ii),
(d)(iii), (e)(ii), (e)(iii) or (f) of this Section 5.13 (and all
Preferred Securities Certificates issued in exchange therefor or
substitution thereof) shall not bear the Private Placement Legend.
(ii) Legend for all Preferred Securities Certificates. Each Preferred
Securities Certificate shall bear a legend in substantially the following
form:
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS
AND WARRANTS FROM THE DATE ON WHICH THE HOLDER PURCHASES THIS SECURITY THROUGH
AND INCLUDING THE DATE ON WHICH THE
43
HOLDER DISPOSES OF ITS INTEREST IN THIS SECURITY, THAT THE HOLDER IS NOT A PLAN
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974 OR TO
SECTION 4975 OF THE US INTERNAL REVENUE CODE OF 1986, AS AMENDED OR A FIDUCIARY
PURCHASING THIS SECURITY FOR OR WITH THE ASSETS OF SUCH A PLAN.
(iii) Book-Entry Preferred Securities Certificate Legend. Each
Book-Entry Preferred Securities Certificate shall bear a legend in
substantially the following form:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW YORK,
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS BOOK-ENTRY PREFERRED SECURITIES CERTIFICATE SHALL BE LIMITED
TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
BOOK-ENTRY PREFERRED SECURITIES CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE
IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE AMENDED AND RESTATED
DECLARATION OF TRUST REFERRED TO HEREIN.
(iv) Regulation S Temporary Book-Entry Preferred Securities
Certificate Legend. The Regulation S Temporary Book-Entry Preferred
Securities Certificate shall bear a legend in substantially the following
form:
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY BOOK-ENTRY PREFERRED
SECURITIES CERTIFICATE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS
EXCHANGE FOR CERTIFICATED SECURITIES, ARE AS SPECIFIED IN THE AMENDED AND
RESTATED DECLARATION OF TRUST. NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF
THIS REGULATION S TEMPORARY BOOK-ENTRY PREFERRED SECURITIES CERTIFICATE SHALL
BE ENTITLED TO RECEIVE DISTRIBUTIONS HEREON.
THIS REGULATION S TEMPORARY BOOK-ENTRY PREFERRED SECURITIES CERTIFICATE IS
EXCHANGEABLE IN WHOLE OR IN PART FOR ONE OR MORE BOOK-ENTRY PREFERRED
SECURITIES CERTIFICATES ONLY (I) ON OR AFTER THE TERMINATION OF THE 40-DAY
DISTRIBUTION COMPLIANCE PERIOD (AS DEFINED IN REGULATION S UNDER THE
SECURITIES ACT) AND (II) UPON PRESENTATION OF CERTIFICATES (ACCOMPANIED BY AN
OPINION OF COUNSEL, IF APPLICABLE)
44
REQUIRED BY ARTICLE 5 OF THE AMENDED AND RESTATED DECLARATION OF TRUST. UPON
EXCHANGE OF THIS REGULATION S TEMPORARY BOOK-ENTRY PREFERRED SECURITIES
CERTIFICATE FOR ONE OR MORE BOOK-ENTRY PREFERRED SECURITIES CERTIFICATES, THE
ADMINISTRATIVE TRUSTEES SHALL CANCEL THIS REGULATION S TEMPORARY BOOK-ENTRY
PREFERRED SECURITIES CERTIFICATE.
(h) Cancellation and/or Adjustment of Book-Entry Preferred Securities
Certificates. At such time as all beneficial interests in a particular
Book-Entry Preferred Securities Certificate have been exchanged for Definitive
Preferred Securities or a particular Book-Entry Preferred Securities
Certificate has been redeemed, repurchased or canceled in whole and not in
part, each such Book-Entry Preferred Securities Certificate shall be returned
to or retained and canceled by the Administrative Trustees. At any time prior
to such cancellation, if any beneficial interest in a Book-Entry Preferred
Securities Certificate is exchanged for or transferred to a Person who will
take delivery thereof in the form of a beneficial interest in another
Book-Entry Preferred Securities Certificate or for Definitive Preferred
Securities Certificates, the principal amount of Preferred Securities
Certificates represented by such Book-Entry Preferred Securities Certificate
shall be reduced accordingly and an endorsement shall be made on such
Book-Entry Preferred Securities Certificate by the Administrative Trustees or
by the Clearing Agency at the direction of the Administrative Trustees to
reflect such reduction; and if the beneficial interest is being exchanged for
or transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Book-Entry Preferred Securities Certificate,
such other Book-Entry Preferred Securities Certificate shall be increased
accordingly and an endorsement shall be made on such Book-Entry Preferred
Securities Certificate by the Administrative Trustees or by the Clearing
Agency at the direction of the Administrative Trustees to reflect such
increase.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Administrative Trustee shall execute, on behalf of the Trust, Book-Entry
Preferred Securities Certificates and Definitive Preferred Securities
Certificates upon the Trust's order or at the Securities Registrar's
request.
(ii) No service charge shall be made to a holder of a beneficial
interest in a Book-Entry Preferred Securities Certificate or to a Holder
of a Definitive Preferred Securities Certificate for any registration of
transfer or exchange, but the Trust may require payment of a sum
sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith.
(iii) The Securities Registrar shall not be required to register the
transfer of or exchange any Preferred Securities Certificate selected for
redemption in whole or in part, except the unredeemed portion of any
Preferred Securities Certificate being redeemed in part.
(iv) All Book-Entry Preferred Securities Certificates and Definitive
Preferred Securities Certificates issued upon any registration of
transfer or exchange of Book-Entry Preferred Securities Certificates or
Definitive Preferred Securities Certificates shall be the
45
valid obligations of the Trust, evidencing the same obligations, and
entitled to the same benefits under this Amended and Restated Declaration
of Trust, as the Book-Entry Preferred Securities Certificates or Definitive
Preferred Securities Certificates surrendered upon such registration of
transfer or exchange.
(v) The Trust shall not be required (A) to issue, to register the
transfer of or to exchange any Preferred Securities Certificates during a
period beginning at the opening of business 15 days before the day of any
selection of Preferred Securities Certificates for redemption and ending
at the close of business on the day of selection, (B) to register the
transfer of or to exchange any Preferred Securities Certificate so
selected for redemption in whole or in part, except the unredeemed
portion of any Preferred Securities Certificate being redeemed in part or
(C) to register the transfer of or to exchange a Preferred Security
between a record date and the next succeeding Distribution Date.
(vi) Prior to due presentment for the registration of a transfer of
any Preferred Securities Certificate, the Administrative Trustees and the
Trust may deem and treat the Person in whose name any Preferred
Securities Certificate is registered as the absolute owner of such
Preferred Securities Certificate for the purpose of receiving
Distributions on such Preferred Securities Certificates and for all other
purposes, and none of the Administrative Trustees or the Trust shall be
affected by notice to the contrary.
(vii) All certifications, certificates and opinions of counsel
required to be submitted to the Securities Registrar pursuant to this
Section 5.13 to effect a registration of transfer or exchange may be
submitted by facsimile.
(viii) The Property Trustees shall have no obligation or duty to
monitor, determine or inquire as to compliance with any restrictions on
transfer imposed under this Amended and Restated Declaration of Trust or
under applicable law with respect to any transfer of any interest in any
Preferred Securities Certificate (including any transfers between or
among Clearing Agency Participants or beneficial owners of interests in
any Book-Entry Preferred Securities Certificate) other than to require
delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by the
terms of, this Amended and Restated Declaration of Trust, and to examine
the same to determine substantial compliance as to form with the express
requirements hereof.
Section 5.14 Rights of Securityholders. The legal title to the Trust
Property is vested exclusively in the Property Trustee (in its capacity as
such) in accordance with Section 2.09, and the Securityholders shall not have
any right or title therein other than the beneficial ownership interest in the
assets of the Trust conferred by their Trust Securities, and they shall have
no right to call for any partition or division of property, profits or rights
of the Trust except as described below. The Trust Securities shall be personal
property giving only the rights specifically set forth therein and in this
Amended and Restated Declaration of Trust. The Trust Securities shall have no
preemptive or other similar rights and when issued and delivered to
Securityholders against payment of the purchase price therefor, except as
otherwise provided in the Expense Agreement and Section 10.01, will be fully
paid and nonassessable by the Trust and will be entitled to the benefits of
this Amended and Restated Declaration of Trust. Except as otherwise provided
in the
46
Expense Agreement and Section 10.01 with respect to the Holder of the
Common Securities, the Holders of the Trust Securities shall be entitled to
the same limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the
State of Delaware.
47
ARTICLE 6
Acts of Securityholders; Meetings; Voting
Section 6.01 Limitations on Voting Rights.
(a) Except as provided in this Section 6.01, in Sections 2.10, 8.10
or 10.03, in the Junior Subordinated Indenture, and as otherwise required by
law, no Holder of Preferred Securities shall have any right to vote or in any
manner otherwise control the administration, operation and management of the
Trust or the obligations of the parties hereto, nor shall anything herein set
forth, or contained in the terms of the Trust Securities Certificates, be
construed so as to constitute the Securityholders from time to time as
partners or members of an association.
(b) So long as any Junior Subordinated Debt Securities are held by
the Property Trustee, the Trustees shall not (i) direct the time, method and
place of conducting any proceeding for any remedy available to the Indenture
Trustee, or executing any trust or power conferred on the Indenture Trustee
with respect to such Junior Subordinated Debt Securities, (ii) waive any past
default under the Junior Subordinated Indenture, (iii) exercise any right to
rescind or annul a declaration of acceleration that the principal of all the
Junior Subordinated Debt Securities shall be due and payable or (iv) consent
to any amendment, modification or termination of the Junior Subordinated
Indenture or the Junior Subordinated Debt Securities, where such consent shall
be required, or to any other action, as holder of the Junior Subordinated Debt
Securities, under the Junior Subordinated Indenture, without, in each case,
obtaining the prior approval of the Holders of a majority in Liquidation
Amount of the Outstanding Preferred Securities; provided, however, that where
a consent under the Junior Subordinated Indenture would require the consent of
each holder of Junior Subordinated Debt Securities affected thereby, no such
consent shall be given by the Trustees without the prior written consent of
each Holder of Preferred Securities. The Trustees shall not revoke any action
previously authorized or approved by a vote of the Holders of Preferred
Securities, except pursuant to a subsequent vote of the Holders of Preferred
Securities. In addition to obtaining the foregoing approvals of the Holders of
the Preferred Securities, prior to taking any of the foregoing actions, the
Trustees shall, at the expense of the Sponsor, obtain an Opinion of Counsel
experienced in such matters to the effect that the Trust will not be
classified as other than a grantor trust/fixed investment trust for United
States federal income tax purposes on account of such action.
(c) If any proposed amendment to this Amended and Restated
Declaration of Trust provides for, or the Trustees otherwise propose to
effect, (i) any action that would adversely affect the powers, preferences or
special rights of the Preferred Securities, whether by way of amendment to
this Amended and Restated Declaration of Trust or otherwise, or (ii) the
dissolution, winding-up or termination of the Trust, other than pursuant to
the terms of this Amended and Restated Declaration of Trust, then the Holders
of Outstanding Preferred Securities as a class will be entitled to vote on
such amendment or proposal and such amendment or proposal shall not be
effective except with the approval of the Holders of at least a majority in
Liquidation Amount of the Outstanding Preferred Securities. In addition to
obtaining the foregoing approvals of the Holders of the Preferred Securities,
prior to taking any of the foregoing actions, the Trustees shall, at the
expense of the Sponsor, obtain an Opinion of Counsel experienced in such
matters to the
48
effect that the Trust will not be classified as other than a grantor trust/fixed
investment trust for United States federal income tax purposes on account of
such action.
Section 6.02 Notice of Meetings. Notice of all meetings of the
Preferred Securityholders, stating the time, place and purpose of the meeting,
shall be given by the Administrative Trustees pursuant to Section 10.08 to
each Preferred Securityholder of record, at his registered address, at least
15 days and not more than 90 days before the meeting. At any such meeting, any
business properly before the meeting may be so considered whether or not
stated in the notice of the meeting. Any adjourned meeting may be held as
adjourned without further notice.
Section 6.03 Meetings of Preferred Securityholders. No annual meeting
of Securityholders is required to be held. The Administrative Trustees,
however, shall call a meeting of Securityholders to vote on any matter upon
the written request of the Preferred Securityholders of record of 25% of the
Preferred Securities (based upon their Liquidation Amount) and the
Administrative Trustees or the Property Trustee may, at any time in their
discretion, call a meeting of Preferred Securityholders to vote on any matters
as to which Preferred Securityholders are entitled to vote.
Preferred Securityholders of record of 50% of the Preferred
Securities (based upon their Liquidation Amount), present in person or by
proxy, shall constitute a quorum at any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by the
Preferred Securityholders of record present, in person or by proxy, holding
more than a majority of the Preferred Securities (based upon their Liquidation
Amount) held by the Preferred Securityholders of record present, either in
person or by proxy, at such meeting shall constitute the action of the
Securityholders, unless this Amended and Restated Declaration of Trust
requires a greater number of affirmative votes.
Section 6.04 Voting Rights. Securityholders shall be entitled to one
vote for each $1,000 of Liquidation Amount represented by their Trust
Securities in respect of any matter as to which such Securityholders are
entitled to vote.
Section 6.05 Proxies, etc. At any meeting of Securityholders, any
Securityholder entitled to vote may vote by proxy, provided that no proxy
shall be voted at any meeting unless it shall have been placed on file with
the Administrative Trustees, or with such other officer or agent of the Trust
as the Administrative Trustees may direct, for verification prior to the time
at which such vote shall be taken. A Securityholder may grant a proxy by any
means permitted by the General Corporation Law of the State of Delaware.
Pursuant to a resolution of the Property Trustee, proxies may be solicited in
the name of the Property Trustee or one or more officers of the Property
Trustee. Only Securityholders of record shall be entitled to vote. When Trust
Securities are held jointly by several Persons, any one of them may vote at
any meeting in person or by proxy in respect of such Trust Securities, but if
more than one of them shall be present at such meeting in person or by proxy,
and such joint owners or their proxies so present disagree as to any vote to
be cast, such vote shall not be received in respect of such Trust Securities.
A proxy purporting to be executed by or on behalf of a Securityholder shall be
deemed valid unless challenged at or prior to
49
its exercise, and the burden of proving invalidity shall rest on the challenger.
No proxy shall be valid more than three years after its date of execution.
Section 6.06 Securityholder Action by Written Consent. Any action
which may be taken by Securityholders at a meeting may be taken without a
meeting if Securityholders holding at least a majority of all Outstanding
Trust Securities (based upon their Liquidation Amount) entitled to vote in
respect of such action (or such other proportion thereof as shall be required
by any express provision of this Amended and Restated Declaration of Trust)
shall consent to the action in writing.
Section 6.07 Record Date for Voting and Other Purposes. For the
purposes of determining the Securityholders who are entitled to notice of and
to vote at any meeting or by written consent, or to participate in any
Distribution on the Trust Securities in respect of which a record date is not
otherwise provided for in this Amended and Restated Declaration of Trust, or
for the purpose of any other action, the Administrative Trustees may from time
to time fix a date, not more than 60 days prior to the date of any meeting of
Securityholders or the payment of a Distribution or other action, as the case
may be, as a record date for the determination of the identity of the
Securityholders of record for such purposes.
Section 6.08 Acts of Securityholders. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Amended and Restated Declaration of Trust to be given, made
or taken by Securityholders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Securityholders in
person or by an agent appointed in writing; and, except as otherwise expressly
provided herein, such action shall become effective when such instrument or
instruments are delivered to the Administrative Trustees. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Securityholders 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
Amended and Restated Declaration of Trust and (subject to Section 8.01)
conclusive in favor of the Trustees, if made in the manner provided in this
Section 6.08.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a 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 signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other manner which the Trustees deem sufficient.
The ownership of Preferred Securities shall be proved by the
Securities Register.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Securityholder of any Trust Security shall bind
every future Securityholder of the same Trust Security and the Securityholder
of every Trust Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done, omitted or
suffered to
50
be done by the Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled hereunder
to take any action hereunder with regard to any particular Trust Security may
do so with regard to all or any part of the Liquidation Amount of such Trust
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
Liquidation Amount.
If any dispute shall arise between the Securityholders of Trust
Securities and the Administrative Trustees or among such Securityholders or
Trustees with respect to the authenticity, validity or binding nature of any
request, demand, authorization, direction, consent, waiver or other Act of
such Securityholder or Trustee under this Article VI, then the determination
of such matter by the Property Trustee shall be conclusive with respect to
such matter.
Section 6.09 Inspection of Records. Upon reasonable notice to the
Trustees, the records of the Trust, and the records of any Trustee as such
records relate to the Trust, shall be open to inspection by Securityholders
during normal business hours for any purpose reasonably related to such
Securityholder's interest as a Securityholder.
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ARTICLE 7
Representations and Warranties of the Property Trustee and Delaware Trustee
Section 7.01 Representations and Warranties of Property Trustee. The
Trustee that acts as initial Property Trustee represents and warrants to the
Trust and to the Sponsor at the date of this Amended and Restated Declaration
of Trust, and each successor Property Trustee represents and warrants to the
Trust and the Sponsor at the time of the successor Property Trustee's
acceptance of its appointment as Property Trustee that:
(a) The Property Trustee is a national banking association with trust
powers and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Amended and Restated Declaration of
Trust;
(b) The execution, delivery and performance by the Property Trustee
of this Amended and Restated Declaration of Trust has been duly authorized by
all necessary corporate action on the part of the Property Trustee. This
Amended and Restated Declaration of Trust has been duly executed and delivered
by the Property Trustee and constitutes a legal, valid and binding obligation
of the Property Trustee, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, reorganization, moratorium, insolvency, and
other similar laws affecting creditors' rights generally and to general
principles of equity and the discretion of the court (regardless of whether
the enforcement of such remedies is considered in a proceeding in equity or at
law);
(c) The execution, delivery and performance of this Amended and
Restated Declaration of Trust by the Property Trustee does not conflict with
or constitute a breach of the charter or by-laws of the Property Trustee; and
(d) No consent, approval or authorization of, or registration with or
notice to, any Delaware or federal banking authority is required for the
execution, delivery or performance by the Property Trustee of this Amended and
Restated Declaration of Trust.
Section 7.02 Representations and Warranties of Delaware Trustee.
The Trustee that acts as initial Delaware Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Amended and
Restated Declaration of Trust, and each successor Delaware Trustee represents
and warrants to the Trust and the Sponsor at the time of the successor
Delaware Trustee's acceptance of its appointment as Delaware Trustee that:
(a) The Delaware Trustee is duly organized, validly existing and in
good standing under the laws of the State of Delaware, with trust power and
authority to execute and deliver, and to carry out and perform its obligations
under the terms of, this Amended and Restated Declaration of Trust;
(b) The execution, delivery and performance by the Delaware Trustee
of this Amended and Restated Declaration of Trust has been duly authorized by
all necessary corporate action on the part of the Delaware Trustee. This
Amended and Restated Declaration of Trust has been duly executed and delivered
by the Delaware Trustee and constitutes a legal, valid and
52
binding obligation of the Delaware Trustee, enforceable against it in accordance
with its terms, subject to applicable bankruptcy, reorganization, moratorium,
insolvency, and other similar laws affecting creditors' rights generally and to
general principles of equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a proceeding in equity
or at law);
(c) No consent, approval or authorization of, or registration with or
notice to, any Delaware or federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee of this Amended and
Restated Declaration of Trust; and
(d) The Delaware Trustee is a natural person who is a resident of the
State of Delaware or, if not a natural person, an entity which has its
principal place of business in the State of Delaware.
53
ARTICLE 8
The Trustees
Section 8.01 Certain Duties and Responsibilities.
(a) The rights, duties and responsibilities of the Trustees shall be
as provided by this Amended and Restated Declaration of Trust and, in the case
of the Property Trustee, the Trust Indenture Act. Notwithstanding the
foregoing, no provision of this Amended and Restated Declaration of Trust
shall require the Trustees to expend or risk their own funds or otherwise
incur any financial liability in the performance of any of their duties
hereunder, or in the exercise of any of their rights or powers, if they shall
have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to them.
Whether or not therein expressly so provided, every provision of this Amended
and Restated Declaration of Trust relating to the conduct or affecting the
liability of or affording protection to the Trustees shall be subject to the
provisions of this Section 8.01.
(b) All payments made by the Property Trustee in respect of the Trust
Securities shall be made only from the income and proceeds from the Trust
Property and only to the extent that there shall be sufficient income or
proceeds from the Trust Property to enable the Property Trustee to make
payments in accordance with the terms hereof. Each Securityholder, by its
acceptance of a Trust Security, agrees that it will look solely to the income
and proceeds from the Trust Property to the extent available for distribution
to it as herein provided and that the Trustees are not personally liable to it
for any amount distributable in respect of any Trust Security or for any other
liability in respect of any Trust Security. This Section 8.01(b) does not
limit the liability of the Trustees expressly set forth elsewhere in this
Amended and Restated Declaration of Trust or, in the case of the Property
Trustee, in the Trust Indenture Act.
(c) No Trustee shall be liable for its acts or omissions hereunder
except as a result of its own gross negligence (or ordinary negligence in the
case of the Property Trustee) or willful misconduct. To the extent that, at
law or in equity, a Trustee has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to the Securityholders, such
Trustee shall not be liable to the Trust or to any Securityholder for such
Trustee's good faith reliance on the provisions of this Amended and Restated
Declaration of Trust. The provisions of this Amended and Restated Declaration
of Trust, to the extent that they restrict the duties and liabilities of the
Trustees otherwise existing at law or in equity, are agreed by the Sponsor and
the Securityholders to replace such other duties and liabilities of the
Trustees (other than the mandatory duties and liabilities of the Property
Trustee under the Trust Indenture Act).
(d) No provision of this Amended and Restated Declaration of Trust
shall be construed to relieve the Property Trustee from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
54
(i) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
(ii) the Property 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 the Holders of not less than a majority in
Liquidation Amount of the Trust Securities relating to the time, method
and place of conducting any proceeding for any remedy available to the
Property Trustee, or exercising any trust or power conferred upon the
Property Trustee under this Amended and Restated Declaration of Trust;
(iii) the Property Trustee's sole duty with respect to the custody,
safe keeping and physical preservation of the Junior Subordinated Debt
Securities and the Payment Account shall be to deal with such property in
a similar manner as the Property Trustee deals with similar property for
its own account, subject to the protections and limitation on liability
afforded to the Property Trustee under this Amended and Restated
Declaration of Trust and the Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any interest on any
money received by it except as it may otherwise agree with the Sponsor
and money held by the Property Trustee need not be segregated from other
funds held by it except in relation to the Payment Amount maintained by
the Property Trustee pursuant to Section 3.01 and except to the extent
otherwise required by law; and
(v) the Property Trustee shall not be responsible for monitoring the
compliance by the Administrative Trustees or the Sponsor with their
respective duties under this Amended and Restated Declaration of Trust,
nor shall the Property Trustee be liable for the negligence, default or
misconduct of the Administrative Trustees or the Sponsor.
(e) Any direction or act of the Sponsor or the Administrative
Trustees contemplated by this Amended and Restated Declaration of Trust shall
be sufficiently evidenced by an Officers' Certificate;
(f) Whenever in the administration of this Amended and Restated
Declaration of Trust the Property Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or taking any other
action hereunder as to which the Preferred Securityholders are entitled to
vote under the terms of this Amended and Restated Declaration of Trust, the
Property Trustee (i) may request instructions from the Holders of the Trust
Securities which instructions may only be given by the Holders of the same
proportion in Liquidation Amount of the Trust Securities as would be entitled
to direct the Property Trustee under the terms of the Trust Securities in
respect of such remedy, right or action; (ii) may refrain from enforcing such
remedy or right or taking such other action until such instructions are
received; and (iii) shall be protected in acting in accordance with such
instructions; and
(g) Except as otherwise expressly provided by this Amended and
Restated Declaration of Trust, the Property Trustee shall not be under any
obligation to take any action that is discretionary under the provisions of
this Amended and Restated Declaration of Trust. No
55
provision of this Amended and Restated Declaration of Trust shall be deemed to
impose any duty or obligations on the Property Trustee to perform any act or
acts or exercise any right, power, duty or obligation conferred or imposed on
it, in any jurisdiction in which it shall be illegal, or in which the Property
Trustee shall be unqualified or incompetent in accordance with applicable law,
to perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
Section 8.02 Notice of Defaults and Deferrals.
(a) Within 30 days after the occurrence of any Event of Default or
Indenture Covenant Event of Default actually known to the Property Trustee,
the Property Trustee shall transmit, in the manner and to the extent provided
in Section 10.08, notice of such Event of Default or Indenture Covenant Event
of Default to the Securityholders, the Administrative Trustees, the Guarantor
and the Sponsor, unless such Event of Default or Indenture Covenant Event of
Default shall have been cured or waived.
(b) The Property Trustee shall promptly forward to the
Securityholders, in the manner and to the extent provided in Section 10.08,
any notice of an election of Optional Deferral or of the occurrence of a
Mandatory Deferral Trigger Event that it receives pursuant to Section 4.3 of
the Supplemental Indenture.
Section 8.03 Certain Rights of Property Trustee. Subject to the
provisions of Section 8.01 and except as provided by law:
(i) the Property Trustee may conclusively rely and shall be protected
in acting or refraining from acting in good faith upon any resolution,
Opinion of Counsel, certificate, written representation of a Holder or
transferee, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal,
bond or other paper or document reasonably believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(ii) if (A) in performing its duties under this Amended and Restated
Declaration of Trust the Property Trustee is required to decide between
alternative courses of action, or (B) in construing any of the provisions
in this Amended and Restated Declaration of Trust the Property Trustee
finds the same ambiguous or inconsistent with any other provisions
contained herein, or (C) the Property Trustee is unsure of the
application of any provision of this Amended and Restated Declaration of
Trust, then, except as to any matter as to which the Preferred
Securityholders are entitled to vote under the terms of this Amended and
Restated Declaration of Trust, the Property Trustee shall deliver a
notice to the Sponsor requesting written instructions of the Sponsor as
to the course of action to be taken. The Property Trustee shall take such
action, or refrain from taking such action, as the Property Trustee shall
be instructed in writing to take, or to refrain from taking, by the
Sponsor; provided, however, that if the Property Trustee does not receive
such instructions of the Sponsor within ten Business Days after it has
delivered such notice, or such reasonably shorter period of time set
forth in such notice (which to the extent practicable shall not be less
than two Business Days), it may, but shall be under no duty to, take or
refrain from taking such action not inconsistent with this Amended and
Restated Declaration of Trust as
56
it shall deem advisable and in the best interests of the Securityholders,
in which event the Property Trustee shall have no liability except for its
own bad faith, negligence or willful misconduct;
(iii) the Property Trustee may consult with counsel of its selection
and the 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;
(iv) the Property Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Amended and Restated
Declaration of Trust at the request or direction of any of the
Securityholders pursuant to this Amended and Restated Declaration of
Trust, unless such Securityholders shall have offered to the Property
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request
or direction;
(v) the Property 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, consent, order,
approval, bond or other document, unless requested in writing to do so by
one or more Securityholders; and
(vi) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through its agents or attorneys, provided that the Property Trustee shall
be responsible for its own negligence or recklessness with respect to
selection of any agent or attorney appointed by it hereunder.
Section 8.04 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Trust Securities Certificates shall
be taken as the statements of the Trust, and the Trustees do not assume any
responsibility for their correctness. The Trustees shall not be accountable
for the use or application by the Trust of the proceeds of the Trust
Securities in accordance with Section 2.05.
The Property Trustee may conclusively assume that any funds held by
it hereunder are legally available unless a Responsible Officer shall have
received written notice from the Sponsor, any Holder or any other Trustee that
such funds are not legally available.
Section 8.05 May Hold Securities. Except as provided in the
definition of the term "Outstanding" in Article I, any Trustee or any other
agent of the Trustees or the Trust, in its individual or any other capacity,
may become the owner or pledgee of Trust Securities and may otherwise deal
with the Trust with the same rights it would have if it were not a Trustee or
such other agent.
Section 8.06 Compensation; Fees; Indemnity.
The Sponsor agrees:
57
(1) to pay to the Trustees from time to time reasonable compensation
for all services rendered by the Trustees hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements and advances
incurred or made by the Trustees in accordance with any provision of this
Amended and Restated Declaration of Trust (including the reasonable
compensation and the expenses and disbursements of their agents and counsel),
except any such expense, disbursement or advance as may be attributable to
their willful misconduct, negligence or bad faith; and
(3) to indemnify the Trustees for, and to hold the Trustees harmless
against, any and all loss, damage, claims, liability or expense incurred
without willful misconduct, negligence or bad faith on their part, arising out
of or in connection with the acceptance or administration of this Amended and
Restated Declaration of Trust, including the costs and expenses of defending
themselves against any claim or liability in connection with the exercise or
performance of any of their powers or duties hereunder.
The provisions of this Section 8.06 shall survive the resignation or
removal of any Trustee or the termination of this Amended and Restated
Declaration of Trust.
Section 8.07 Trustees Required; Eligibility.
(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a Person that
has a combined capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the purposes
of this Section 8.07, the combined capital and surplus of such Person 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 Property Trustee with
respect to the Trust Securities shall cease to be eligible in accordance with
the provisions of this Section 8.07, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article 8.
(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative Trustee
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized to bind such
entity.
(c) There shall at all times be a Delaware Trustee with respect to
the Trust Securities. The Delaware Trustee shall either be (i) a natural
person who is at least 21 years of age and a resident of the State of Delaware
or (ii) a legal entity authorized to conduct a trust business and with its
principal place of business in the State of Delaware that shall act through
one or more persons authorized to bind such entity.
Section 8.08 Conflicting Interests. If the Property Trustee has or
shall acquire a conflicting interest within the meaning of the Trust Indenture
Act, the Property Trustee shall either eliminate such interest or resign, to
the extent and in the manner provided by, and subject to the provisions of,
the Trust Indenture Act and this Amended and Restated Declaration of Trust. To
the
58
extent permitted by the Trust Indenture Act, the Property Trustee shall not be
deemed to have a conflicting interest by virtue of being trustee under the
Guarantee.
Section 8.09 Co-Trustees and Separate Trustee. At any time or times,
for the purpose of meeting the legal requirements of the Trust Indenture Act
or of any jurisdiction in which any part of the Trust Property may at the time
be located, the Holder of the Common Securities and the Property Trustee shall
have power to appoint, and upon the written request of the Property Trustee,
the Sponsor shall for such purpose join with the Property Trustee in the
execution, delivery and performance of all instruments and agreements
necessary or proper to appoint, one or more Persons approved by the Property
Trustee either to act as co-trustee, jointly with the Property Trustee, of all
or any part of such Trust Property, or to act as separate trustee of any such
Trust Property, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or Persons in the
capacity aforesaid, any property, title, right or power deemed necessary or
desirable, subject to the other provisions of this Section 8.09. If the
Sponsor does not join in such appointment within 15 days after the receipt by
it of a request so to do, or in case an Indenture Acceleration Event of
Default has occurred and is continuing, the Property Trustee alone shall have
power to make such appointment. Any co-trustee or separate trustee appointed
pursuant to this Section 8.09 shall satisfy the requirements of Section 8.07.
Should any written instrument from the Sponsor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged, and
delivered by the Sponsor.
Every co-trustee or separate trustee shall, to the extent permitted
by law, but to such extent only, be appointed subject to the following terms,
namely:
(i) The Trust Securities shall be executed, issued and delivered and
all rights, powers, duties, and obligations hereunder in respect of the
custody of securities, cash and other personal property held by, or
required to be deposited or pledged with, the Trustees hereunder, shall
be exercised, solely by the Trustees.
(ii) The rights, powers, duties, and obligations hereby conferred or
imposed upon the Property Trustee in respect of any property covered by
such appointment shall be conferred or imposed upon and exercised or
performed by the Property Trustee or by the Property Trustee and such
co-trustee or separate trustee jointly, as shall be provided in the
instrument appointing such co-trustee or separate trustee, except to the
extent that under any law of any jurisdiction in which any particular act
is to be performed, the Property Trustee shall be incompetent or
unqualified to perform such act, in which event such rights, powers,
duties, and obligations shall be exercised and performed by such
co-trustee or separate trustee.
(iii) The Property Trustee at any time, by an instrument in writing
executed by it, with the written concurrence of the Sponsor, may accept
the resignation of or remove any co-trustee or separate trustee appointed
under this Section 8.09, and, in case an Indenture Acceleration Event of
Default has occurred and is continuing, the Property Trustee shall have
power to accept the resignation of, or remove, any such co-trustee or
separate trustee
59
without the concurrence of the Sponsor. Upon the written request of the
Property Trustee, the Sponsor shall join with the Property Trustee in the
execution, delivery, and performance of all instruments and agreements
necessary or proper to effectuate such resignation or removal. A successor
to any co-trustee or separate trustee so resigned or removed may be
appointed in the manner provided in this Section 8.09.
(iv) No co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of the Property Trustee, or any
other such trustee hereunder.
(v) The Trustees shall not be liable by reason of any act of a
co-trustee or separate trustee.
(vi) Any Act of Holders delivered to the Property Trustee shall be
deemed to have been delivered to each such co-trustee and separate
trustee.
Section 8.10 Resignation and Removal; Appointment of Successor. No
resignation or removal of any Trustee (the "Relevant Trustee") and no
appointment of a successor Relevant Trustee pursuant to this Article 8 shall
become effective until the acceptance of appointment by the successor Relevant
Trustee in accordance with the applicable requirements of Section 8.11.
The Relevant Trustee may resign at any time by giving written notice
thereof to the Securityholders. If the instrument of acceptance by a successor
Relevant Trustee required by Section 8.11 shall not have been delivered to the
Relevant Trustee within 30 days after the giving of such notice of
resignation, the resigning Relevant Trustee may petition any court of
competent jurisdiction for the appointment of a successor Relevant Trustee.
Unless an Event of Default shall have occurred and be continuing, the
Relevant Trustee may be removed at any time by an Act of the Holder of the
Common Securities, provided, however, that an Administrative Trustee may be
appointed, removed or replaced only by an Act of the Holders of a majority in
Liquidation Amount of the Common Securities. If an Event of Default shall have
occurred and be continuing, the Property Trustee and the Delaware Trustee may
be removed at such time by Act of the Securityholders of a majority in
Liquidation Amount of the Preferred Securities Certificates, delivered to such
Trustee (in its individual capacity and on behalf of the Trust).
If the Relevant Trustee shall resign, be removed or become incapable
of continuing to act as Trustee at a time when no Event of Default shall have
occurred and be continuing, the Holder of the Common Securities, by an Act of
the Holder of the Common Securities delivered to the retiring Relevant
Trustee, shall promptly appoint a successor Relevant Trustee or Trustees, and
the retiring Relevant Trustee shall comply with the applicable requirements of
Section 8.11. If the Delaware Trustee or Property Trustee shall resign, be
removed or become incapable of continuing to act as such at a time when an
Event of Default shall have occurred and be continuing, the Holders of
Preferred Securities, by an Act of the Securityholders of a majority in
Liquidation Amount of the Preferred Securities then outstanding delivered to
the retiring Trustee, shall promptly appoint a successor Delaware Trustee or
Property Trustee, and the Delaware Trustee or Property Trustee shall comply
with the applicable requirements of Section 8.11. If no successor
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Relevant Trustee shall have been so appointed in accordance with this Section
8.10 and accepted appointment in the manner required by Section 8.11, any
Securityholder who has been a Securityholder of Trust Securities for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Relevant
Trustee.
The retiring Relevant Trustee shall give notice of each resignation
and each removal of the Relevant Trustee, and each appointment of a successor
Trustee to all Securityholders in the manner provided in Section 10.08 and
shall give notice to the Sponsor. Each notice shall include the name of the
successor Relevant Trustee and the address of its Corporate Trust Office if it
is the Property Trustee.
Notwithstanding the foregoing or any other provision of this Amended
and Restated Declaration of Trust, in the event any Administrative Trustee or
a Delaware Trustee who is a natural person dies or becomes incompetent or
incapacitated or resigns, the vacancy created by such death, incompetence or
incapacity or resignation may be filled by (i) the act of the remaining
Administrative Trustee or (ii) otherwise by the Sponsor (with the successor in
each case being an individual who satisfies the eligibility requirement for
Administrative Trustees set forth in Section 8.07). Additionally,
notwithstanding the foregoing or any other provision of this Amended and
Restated Declaration of Trust, in the event the Sponsor believes that any
Administrative Trustee has become incompetent or incapacitated, the Sponsor,
by notice to the remaining Trustees, may terminate the status of such Person
as an Administrative Trustee (in which case the vacancy so created will be
filled in accordance with the preceding sentence).
Section 8.11 Acceptance of Appointment by Successor. In case of the
appointment hereunder of a successor Relevant Trustee, every such successor
Relevant Trustee so appointed shall execute, acknowledge and deliver to the
Trust and to the retiring Relevant Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Relevant
Trustee shall become effective and such successor Relevant Trustee, without
any further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Relevant Trustee; but, on the
request of the Sponsor or the successor Relevant Trustee, such retiring
Relevant Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Relevant Trustee all the rights,
powers and trusts of the retiring Relevant Trustee and shall duly assign,
transfer and deliver to such successor Relevant Trustee all property and money
held by such retiring Relevant Trustee hereunder.
Upon request of any such successor Relevant Trustee, the Trust shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights, powers and
trusts referred to in the preceding paragraph.
No successor Relevant Trustee shall accept its appointment unless at
the time of such acceptance such successor Relevant Trustee shall be qualified
and eligible under this Article 8.
Section 8.12 Merger, Conversion, Consolidation or Succession to
Business. Any Person into which the Property Trustee, Delaware Trustee or any
Administrative Trustee which is not a natural person may be merged or
converted or with which it may be consolidated, or
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any Person resulting from
any merger, conversion or consolidation to which such Relevant Trustee shall
be a party, or any Person succeeding to all or substantially all the corporate
trust business of such Relevant Trustee, shall be the successor of such
Relevant Trustee hereunder, provided such Person shall be otherwise qualified
and eligible under this Article 8, without the execution or filing of any
paper or any further act on the part of any of the parties hereto.
Section 8.13 Preferential Collection of Claims Against Sponsor or
Trust. If and when the Property Trustee shall be or become a creditor of the
Sponsor or the Trust (or any other obligor upon the Junior Subordinated Debt
Securities or the Trust Securities), the Property Trustee shall be subject to
the provisions of the Trust Indenture Act regarding the collection of claims
against the Sponsor or Trust (or any such other obligor). For purposes of
Section 311(b)(4) and (6) of the Trust Indenture Act:
(a) "cash transaction" means any transaction in which full payment
for goods or securities sold is made within seven days after delivery of the
goods or securities in currency or in checks or other orders drawn upon banks
or bankers and payable upon demand; and
(b) "self-liquidating paper" means any draft, bill of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred by the
Sponsor or the Trust (or any such obligor) for the purpose of financing the
purchase, processing, manufacturing, shipment, storage or sale of goods, wares
or merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Property Trustee simultaneously with the creation of the
creditor relationship with the Sponsor or the Trust (or any such obligor)
arising from the making, drawing, negotiating or incurring of the draft, bill
of exchange, acceptance or obligation.
Section 8.14 Reports by Property Trustee.
(a) Within 60 days after May 15 of each year commencing with May 15,
2006, if required by Section 313(a) of the Trust Indenture Act, the Property
Trustee shall transmit a brief report dated as of such May 15 with respect to
any of the events specified in such Section 313(a) that may have occurred
since the later of the date of this Amended and Restated Declaration of Trust
or the preceding May 15.
(b) The Property Trustee shall transmit to Securityholders the
reports required by Section 313(b) of the Trust Indenture Act at the times
specified therein.
(c) Reports pursuant to this Section 8.14 shall be transmitted in the
manner and to the Persons required by Sections 313(c) and (d) of the Trust
Indenture Act.
Section 8.15 Reports to the Property Trustee. The Sponsor and the
Administrative Trustees on behalf of the Trust shall provide to the Property
Trustee (i) such documents, reports and information as required by Section 314
of the Trust Indenture Act (if any), and (ii) within 120 days after the end of
each fiscal year of the Sponsor, the compliance certificate required by
Section 314(a)(4) of the Trust Indenture Act in the form and in the manner
required by Section 314 of the Trust Indenture Act. Delivery of reports to the
Property Trustee pursuant to Section 314(a)(1) of the Trust Indenture Act is
for informational purposes only and the Property
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Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Sponsor's compliance with any of its covenants hereunder.
Section 8.16 Evidence of Compliance with Conditions Precedent. Each
of the Sponsor and the Administrative Trustees on behalf of the Trust shall
provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Amended and Restated
Declaration of Trust that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given pursuant to Section 314(c)(1) of the Trust Indenture Act shall comply
with Section 314(e) of the Trust Indenture Act.
Section 8.17 Number of Trustees.
(a) The number of Trustees shall initially be five, provided that the
Sponsor by written instrument may increase or decrease the number of
Administrative Trustees.
(b) If a Trustee ceases to hold office for any reason and the number
of Administrative Trustees is not reduced pursuant to Section 8.17(a), or if
the number of Trustees is increased pursuant to Section 8.17(a), a vacancy
shall occur. The vacancy shall be filled with a Trustee appointed in
accordance with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not
operate to annul the Trust. Whenever a vacancy in the number of Administrative
Trustees shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 8.10, the Administrative
Trustees in office, regardless of their number (and notwithstanding any other
provision of this Amended and Restated Declaration of Trust), shall have all
powers granted to the Administrative Trustees and shall discharge the duties
imposed upon the Administrative Trustees by this Amended and Restated
Declaration of Trust.
Section 8.18 Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21
his or her power for the purpose of executing any documents contemplated in
Section 2.07(A), including any registration statement or amendment thereto
filed with the Commission, or making any other governmental filing; and
(b) The Administrative Trustees shall have power to delegate from
time to time to such of their number the doing of such things and the
execution of such instruments either in the name of the Trust or the names of
the Administrative Trustees or otherwise as the Administrative Trustees may
deem expedient, to the extent such delegation is not prohibited by applicable
law or contrary to the provisions of the Trust, as set forth herein.
Section 8.19 Enforcement of Rights of Property Trustee by
Securityholders.
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(a) If an Acceleration Event of Default occurs and is continuing,
then the Property Trustee may enforce its rights against the Sponsor and the
Guarantor as the holder of the Junior Subordinated Debt Securities and the
Guarantee Trustee under the Guarantee. In addition, the Holders of a majority
in aggregate Liquidation Amount of the Preferred Securities will have the
right to direct the exercise of any trust or power conferred upon the Property
Trustee under this Amended and Restated Declaration of Trust, including the
right to direct the Property Trustee to exercise the remedies available to it
as a holder of the Junior Subordinated Debt Securities, provided that such
direction shall not be in conflict with any rule of law or with this Amended
and Restated Declaration of Trust, and would not involve the Property Trustee
in personal liability in circumstances where reasonable indemnity would not be
adequate. If the Property Trustee fails to enforce its rights under the Junior
Subordinated Debt Securities, a Holder of Preferred Securities may, to the
fullest extent permitted by applicable law, institute a legal proceeding
against the Sponsor or the Guarantor or both to enforce its rights under this
Amended and Restated Declaration of Trust without first instituting any legal
proceeding against the Property Trustee or any other Person, including the
Trust; it being understood and intended that no one or more of such Holders
shall have any right in any manner whatsoever by virtue of, or by availing of,
any provision of this Amended and Restated Declaration of Trust to affect,
disturb or prejudice the rights of any other of such Holders or to obtain or
to seek to obtain priority or preference over any other of such Holders or to
enforce any right under this Amended and Restated Declaration of Trust, except
in the manner herein provided and for the equal and ratable benefit of all
such Holders. Notwithstanding the foregoing, to the fullest extent permitted
by applicable law, if an Acceleration Event of Default has occurred and is
continuing and such Acceleration Event of Default is attributable to the
Sponsor's failure to pay interest, principal or other required payments on the
Junior Subordinated Debt Securities issued to the Trust on the date that
interest, principal or other payment is otherwise payable, a Holder of
Preferred Securities may institute a legal proceeding directly against the
Sponsor or the Guarantor or both, without first instituting a legal proceeding
against or requesting or directing that action be taken by the Property
Trustee or any other Person, for enforcement of payment to such Holder of
principal, interest, or other required payments on the Junior Subordinated
Debt Securities having a principal amount equal to the aggregate stated
liquidation amount of the Preferred Securities of such Holder on or after the
due dates therefor specified or provided for in the Junior Subordinated Debt
Securities.
(b) In the event of a Covenant Event of Default, the Holders of at
least 10% in Liquidation Amount of the Outstanding Preferred Securities may
institute a legal proceeding against the Trust or the Trustees regarding the
Covenant Event of Default and pursue any applicable remedy, it being
understood that the remedy of acceleration of the liquidation amount of the
Preferred Securities or of the principal of the Junior Subordinated Debt
Securities is not provided for hereunder in such circumstance.
(c) In the event of an Indenture Covenant Event of Default, the
Property Trustee shall institute a suit for damages on behalf of the Trust, as
holder of the Junior Subordinated Debt Securities, if so directed by the
Holders of at least 10% in Liquidation Amount of the Outstanding Preferred
Securities.
(d) The Sponsor or the Guarantor shall be subrogated to all rights of
the Holders of Preferred Securities in respect of any amounts paid to such
Holders by the Sponsor or the Guarantor pursuant to this Section 8.19.
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ARTICLE 9
Termination and Liquidation
Section 9.01 Termination Upon Expiration Date. The Trust shall
automatically dissolve and terminate on November 21, 2060 (the "Expiration
Date") or earlier pursuant to Section 9.02.
Section 9.02 Early Termination. Upon the first to occur of any of the
following events (such first occurrence, an "Early Termination Event"), the
Trust shall be dissolved and terminated in accordance with the terms hereof:
(i) the occurrence of a Bankruptcy Event in respect of the Sponsor,
dissolution or liquidation of the Sponsor, or the dissolution of the
Trust pursuant to judicial decree;
(ii) the delivery of written direction to the Property Trustee by the
Sponsor at any time (which direction is optional and wholly within the
discretion of the Sponsor) to terminate the Trust and distribute the
Junior Subordinated Debt Securities to Securityholders as provided in
Section 9.04; and
(iii) the payment at maturity or redemption of all of the Junior
Subordinated Debt Securities, and the consequent payment of the Preferred
Securities.
Section 9.03 Termination. The respective obligations and
responsibilities of the Trust and the Trustees created hereby shall terminate
upon the latest to occur of the following: (a) the distribution of the Junior
Subordinated Debt Securities by the Property Trustee to Securityholders upon
the liquidation of the Trust pursuant to Section 9.04, or, upon the redemption
of all of the Trust Securities pursuant to Section 4.02, the distribution of
all amounts or instruments required to be distributed hereunder upon the final
payment of the Trust Securities; (b) the payment of any expenses owed by the
Trust; (c) the discharge of all administrative duties of the Administrative
Trustees, including the performance of any tax reporting obligations with
respect to the Trust or the Securityholders; and (d) the filing by the Sponsor
of a certificate of cancellation pursuant to the Delaware Statutory Trust Act.
Section 9.04 Liquidation.
(a) If any Early Termination Event specified in clause (i) of Section
9.02 occurs, the Trust shall be liquidated by the Administrative Trustees.
(b) If the Trust automatically terminates upon the occurrence of the
Expiration Date or if any Early Termination Event specified in clause (ii) of
Section 9.02 occurs, the Trust shall be liquidated and the Property Trustee
shall distribute any Junior Subordinated Debt Securities to the
Securityholders as provided in Sections 9.04(c)-(f).
(c) In connection with a distribution of the Junior Subordinated Debt
Securities, each Holder of Trust Securities shall be entitled to receive,
after the satisfaction of liabilities to creditors of the Trust (as evidenced
by a certificate of the Administrative Trustees), a Like Amount of Junior
Subordinated Debt Securities. Notice of liquidation shall be given by the
Trustees by
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first-class mail, postage prepaid, mailed not later than 30 nor more than 60
days prior to the Liquidation Date to each Holder of Trust Securities at such
Holder's address appearing in the Securities Register. All notices of
liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Junior Subordinated Debt Securities; and
(iii) provide such information with respect to the mechanics by which
Holders may exchange Trust Securities Certificates for Junior
Subordinated Debt Securities as the Administrative Trustees or the
Property Trustee shall deem appropriate.
(d) In order to effect the liquidation of the Trust and distribution
of the Junior Subordinated Debt Securities to Securityholders, the Property
Trustee shall establish a record date for such distribution (which shall be
not more than 45 days prior to the Liquidation Date) and, either itself acting
as exchange agent or through the appointment of a separate exchange agent,
shall establish such procedures as it shall deem appropriate to effect the
distribution of Junior Subordinated Debt Securities in exchange for the
Outstanding Trust Securities Certificates.
(e) After the Liquidation Date, (i) the Trust Securities will no
longer be deemed to be Outstanding, (ii) certificates representing a Like
Amount of Junior Subordinated Debt Securities will be issued to Holders of
Trust Securities Certificates, upon surrender of such certificates to the
Administrative Trustees or their agent for exchange, (iii) any Trust
Securities Certificates not so surrendered for exchange will be deemed to
represent a Like Amount of Junior Subordinated Debt Securities, accruing
interest at the rate provided for in the Junior Subordinated Debt Securities
from the last Distribution Date on which a Distribution was made on such Trust
Certificates until such certificates are so surrendered (and until such
certificates are so surrendered, no payments of interest or principal will be
made to Holders of Trust Securities Certificates with respect to such Junior
Subordinated Debt Securities) and (iv) all rights of Securityholders holding
Trust Securities will cease, except the right of such Securityholders to
receive Junior Subordinated Debt Securities upon surrender of Trust Securities
Certificates.
(f) The Sponsor will use its commercially reasonable best efforts to
have the Junior Subordinated Debt Securities that are distributed in exchange
for the Preferred Securities listed on any securities exchange on which the
Preferred Securities are then listed. The Sponsor may elect to have the Junior
Subordinated Debt Securities issued in book-entry form to the Clearing Agency
or its nominee.
(g) In the event that, notwithstanding the other provisions of this
Section 9.04, whether because of an order for dissolution entered by a court
of competent jurisdiction or otherwise, distribution of the Junior
Subordinated Debt Securities in the manner provided herein is determined by
the Administrative Trustees not to be practical, the Trust Property shall be
liquidated, and the Trust shall be dissolved, wound-up or terminated in such
manner as the Administrative Trustees reasonably determine. In such event, the
Holders will be entitled to
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receive out of the assets of the Trust available for distribution to
Securityholders, after satisfaction of liabilities to creditors, an amount equal
to the Liquidation Amount per Trust Security plus accrued and unpaid
Distributions thereon to the date of payment (such amount being the "Liquidation
Distribution"). If such Liquidation Distribution can be paid only in part
because the Trust has insufficient assets available to pay in full the aggregate
Liquidation Distribution, then, subject to the next succeeding sentence, the
amounts payable by the Trust on the Trust Securities shall be paid on a pro rata
basis (based upon Liquidation Amounts). The Holder of the Common Securities will
be entitled to receive Liquidation Distributions upon any such dissolution,
winding-up or termination pro rata (determined as aforesaid) with Holders of
Preferred Securities, except that, if an Event of Default has occurred and is
continuing, the Preferred Securities shall have a priority over the Common
Securities.
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ARTICLE 10
Miscellaneous Provisions
Section 10.01 Expense Agreement. The Sponsor shall, contemporaneously
with the execution and delivery of this Amended and Restated Declaration of
Trust, execute and deliver the Expense Agreement.
Section 10.02 Limitation of Rights of Securityholders. The death or
incapacity of any Person having an interest, beneficial or otherwise, in a
Trust Security shall not operate to terminate this Amended and Restated
Declaration of Trust, nor entitle the legal representatives or heirs of such
Person or any Securityholder for such Person, to claim an accounting, take any
action or bring any proceeding in and for a partition or winding up of the
arrangements contemplated hereby, nor otherwise affect the rights, obligations
and liabilities of the parties hereto or any of them.
Section 10.03 Amendment.
(a) This Amended and Restated Declaration of Trust may be amended
from time to time by the Trustees and the Sponsor, without the consent of any
Securityholders, (i) to cure any ambiguity, correct or supplement any
provision herein which may be inconsistent with any other provision herein, or
to make any other provisions with respect to matters or questions arising
under this Amended and Restated Declaration of Trust, which shall not be
inconsistent with the other provisions of this Amended and Restated
Declaration of Trust, or (ii) to modify, eliminate or add to any provisions of
this Amended and Restated Declaration of Trust to such extent as shall be
necessary to ensure that the Trust will not be classified as other than a
grantor trust/fixed investment trust for United States federal income tax
purposes at any time that any Trust Securities are outstanding; provided,
however, that any such amendment shall not adversely affect in any material
respect the interests of any Securityholder. Any amendments of this Amended
and Restated Declaration of Trust pursuant to this Section 10.03(a) shall
become effective when notice thereof is given to the Securityholders.
(b) Except as provided in Section 6.01(c) and Section 10.03(c), any
provision in this Amended and Restated Declaration of Trust may be amended by
the Trust or the Trustees with (i) the consent of Securityholders representing
not less than a majority (based upon Liquidation Amounts) of the Trust
Securities then Outstanding (such consent being obtained in accordance with
Section 6.03 or 6.06) and (ii) receipt by the Trustees of an Opinion of
Counsel to the effect that such amendment or the exercise of any power granted
to the Trustees in accordance with such amendment will not affect the Trust's
status as a grantor trust/fixed investment trust for United States federal
income tax purposes or the Trust's exemption from status of an "investment
company" under the Investment Company Act of 1940, as amended.
(c) In addition to and notwithstanding any other provision in this
Amended and Restated Declaration of Trust, without the consent of each
Securityholder (such consent being obtained in accordance with Section 6.03 or
6.06), this Amended and Restated Declaration of Trust
68
may not be amended to (i) change the amount or timing of any Distribution on the
Trust Securities or otherwise adversely affect the amount of any Distribution
required to be made in respect of the Trust Securities as of a specified date,
(ii) restrict the right of a Securityholder to institute suit for the
enforcement of any such payment on or after such date, or (iii) change the
consent required pursuant to this Section 10.03.
(d) Notwithstanding any other provisions of this Amended and Restated
Declaration of Trust, the Trustees shall not enter into or consent to any
amendment to this Amended and Restated Declaration of Trust which would cause
the Trust (i) to fail or cease to qualify for the exemption from status of an
"investment company" under the Investment Company Act of 1940, as amended,
afforded by Rule 3a-5 thereunder or (ii) not to be characterized for United
States federal income tax purposes as a grantor trust/fixed investment trust
and each Securityholder not to be treated as owning an undivided beneficial
ownership interest in the Junior Subordinated Debt Securities.
(e) Without the consent of the Sponsor, this Amended and Restated
Declaration of Trust may not be amended in a manner which imposes any
additional obligation on the Sponsor. In executing any amendment permitted by
this Amended and Restated Declaration of Trust, the Trustees shall be entitled
to receive, and (subject to Section 8.03) shall be fully protected in relying
upon an Opinion of Counsel and an Officers' Certificate each stating that the
execution of such amendment is authorized or permitted by this Amended and
Restated Declaration of Trust. Any Trustee may, but shall not be obligated to,
enter into any such amendment which affects such Trustee's own rights, duties,
immunities or liabilities under this Amended and Restated Declaration of Trust
or otherwise.
(f) In the event that any amendment to this Amended and Restated
Declaration of Trust is made, the Administrative Trustees shall promptly
provide to the Sponsor a copy of such amendment.
Section 10.04 Separability. In case any provision in this Amended and
Restated Declaration of Trust or in the Trust Securities Certificates 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 10.05 Governing Law. THIS AMENDED AND RESTATED DECLARATION OF
TRUST AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE TRUST
AND THE TRUSTEES WITH RESPECT TO THIS AMENDED AND RESTATED DECLARATION OF
TRUST AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF DELAWARE.
Section 10.06 Successors. This Amended and Restated Declaration of
Trust shall be binding upon and shall inure to the benefit of any successor to
both the Trust and the Trustees, including any successor by operation of law.
Section 10.07 Headings. The Article and Section headings are for
convenience only and shall not affect the construction of this Amended and
Restated Declaration of Trust.
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Section 10.08 Notice and Demand. Any notice, demand or other
communication which by any provision of this Amended and Restated Declaration
of Trust is required or permitted to be given or served to or upon any
Securityholder or the Sponsor may be given or served in writing by deposit
thereof, first-class postage prepaid, in the United States mail, hand delivery
or facsimile transmission, in each case, addressed, (i) in the case of a
Preferred Securityholder, to such Preferred Securityholder as such
Securityholder's name and address appear on the Securities Register and (ii)
in the case of the Common Securityholder or the Sponsor, to The Stanley Works,
1000 Stanley Drive, New Britain, Connecticut 06053, Attention: Treasurer,
Facsimile No. (860) 827-3886 and to The Stanley Works, 1000 Stanley Drive, New
Britain, Connecticut 06053, Attention: Corporate Secretary. Such notice,
demand or other communication to or upon a Securityholder shall be deemed to
have been sufficiently given or made, for all purposes, upon hand delivery,
mailing or transmission.
Any notice, demand or other communication which by any provision of
this Amended and Restated Declaration of Trust is required or permitted to be
given or served to or upon the Trust or the Trustees shall be given in writing
addressed (until another address is published by the Trust) as follows: (i)
with respect to the Property Trustee and the Delaware Trustee, HSBC Bank USA,
National Association, 452 Fifth Avenue, New York, New York 10018, Attention:
Corporate Trust and Loan Agency, Facsimile No: [?]; and (ii) with respect to
the Administrative Trustees, to them at the addresses above for notices to the
Sponsor, marked Attention: Administrative Trustees of The Stanley Works
Capital Trust I, c/o Treasurer of the Sponsor and Attention: Administrative
Trustees of the Stanley Works Capital Trust I, c/o Corporate Secretary of the
Sponsor. Such notice, demand or other communication to or upon the Trust or
the Trustees shall be deemed to have been sufficiently given or made only upon
actual receipt of the writing by the applicable Trustee.
Section 10.09 Agreement Not to Petition. Each of the Trustees and the
Sponsor agrees for the benefit of the Securityholders that, until at least one
year and one day after the Trust has been terminated in accordance with
Article IX, it shall not file, or join in the filing of, a petition against
the Trust under any bankruptcy, reorganization, arrangement, insolvency,
liquidation or other similar law (including, without limitation, the United
States Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in
the commencement of any proceeding against the Trust under any Bankruptcy Law.
In the event the Sponsor takes action in violation of this Section 10.09, the
Property Trustee agrees, for the benefit of Securityholders, that it shall
file an answer with the bankruptcy court or otherwise properly contest the
filing of such petition by the Sponsor against the Trust or the commencement
of such action and raise the defense that the Sponsor has agreed in writing
not to take such action and should be stopped and precluded therefrom and such
other defenses, if any, as counsel for the Trustees or the Trust may assert.
The provisions of this Section 10.09 shall survive the termination of this
Amended and Restated Declaration of Trust.
Section 10.10 Conflict with Trust Indenture Act.
(a) This Amended and Restated Declaration of Trust is subject to the
provisions of the Trust Indenture Act that are required to be part of this
Amended and Restated Declaration of Trust and shall, to the extent applicable,
be governed by such provisions.
70
(b) The Property Trustee shall be the only Trustee which is a Trustee
for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Amended and
Restated Declaration of Trust by any of the provisions of the Trust Indenture
Act, such required provision shall control.
(d) The application of the Trust Indenture Act to this Amended and
Restated Declaration of Trust shall not affect the nature of the Trust
Securities as equity securities representing undivided beneficial interests in
the assets of the Trust.
Section 10.11 Counterparts. This Amended and Restated Declaration of
Trust may contain more than one counterpart of the signature page and this
Amended and Restated Declaration of Trust may be executed by the affixing of
the signature of each of the Trustees to one of such counterpart signature
pages. All of such counterpart signature pages shall be read as though one,
and they shall have the same force and effect as though all of the signers had
signed a single signature page.
Section 10.12 No Preemptive Rights. Holders of Trust Securities shall
have no preemptive rights to subscribe for any additional securities.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT
ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE
UNCONDITIONAL ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A
BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF
THIS AMENDED AND RESTATED DECLARATION OF TRUST AND AGREEMENT TO THE
SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND THE JUNIOR
SUBORDINATED INDENTURE AND THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER AND
SUCH OTHERS THAT THOSE TERMS AND PROVISIONS SHALL BE BINDING, OPERATIVE AND
EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH OTHERS.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Declaration of Trust or have caused this Amended and Restated
Declaration of Trust to be executed on their behalf, all as of the day and
year first above written.
THE STANLEY WORKS,
as Sponsor
By: /s/ Craig A. Douglas
________________________________
Craig A. Douglas
Vice President and Treasurer
|
HSBC BANK USA, NATIONAL ASSOCIATION,
as Property Trustee and Delaware
Trustee
By: /s/ Frank J. Godino
________________________________
Name: Frank J. Godino
Title: Vice President
/s/ Craig A. Douglas
------------------------------------
Craig A. Douglas,
as Administrative Trustee
/s/ Jeffrey D. Cataldo
------------------------------------
Jeffrey D. Cataldo, as
Administrative Trustee
/s/ Donald Allan
------------------------------------
Donald Allan,
as Administrative Trustee
|
72
EXHIBIT A
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS PROVIDED
IN THE AMENDED AND RESTATED DECLARATION OF TRUST REFERRED TO HEREIN
Certificate Number: C-1 Number of Common Securities: 100
Certificate Evidencing Common Securities
of
The Stanley Works Capital Trust I
5.902% Fixed Rate/Floating Rate Common Securities
(Liquidation amount $1,000 per Common Security)
The Stanley Works Capital Trust I, a statutory trust created under
the laws of the State of Delaware (the "Trust"), hereby certifies that The
Stanley Works, a Connecticut corporation (the "Holder"), is the registered
owner of ONE HUNDRED (100) common securities of the Trust representing
undivided beneficial interests in the assets of the Trust and designated the
5.902% Fixed Rate/Floating Rate Common Securities (liquidation amount $1,000
per Common Security) (the "Common Securities"). In accordance with Section
5.10 of the Amended and Restated Declaration of Trust (as defined below), the
Common Securities are not transferable, except by operation of law, or to a
wholly-owned direct or indirect Subsidiary of the Sponsor, and any attempted
transfer in violation hereof shall be void. The designation, rights,
privileges, restrictions, preferences and other terms and provisions of the
Common Securities are set forth in, and this certificate and the Common
Securities represented hereby are issued and shall in all respects be subject
to the terms and provisions of, the Amended and Restated Declaration of Trust
of the Trust, dated as of November 22, 2005, as the same may be amended from
time to time (the "Amended and Restated Declaration of Trust"), including the
designation of the terms of the Common Securities as set forth therein.
Capitalized terms used herein but not defined shall have the meaning given to
them in the Amended and Restated Declaration of Trust. The Trust will furnish
a copy of the Amended and Restated Declaration of Trust and the Junior
Subordinated Indenture to the Holder without charge upon written request to
the Trust at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Amended
and Restated Declaration of Trust and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Junior Subordinated Debt Securities as indebtedness
and the Common Securities as evidence of indirect beneficial ownership in the
Junior Subordinated Debt Securities.
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IN WITNESS WHEREOF, an Administrative Trustee of the Trust has
executed this certificate this ____ day of ________, _____.
THE STANLEY WORKS CAPITAL TRUST I
By: _________________________________
[Name]
as Administrative Trustee
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[FORM OF REVERSE OF SECURITY]
During the Fixed Rate Period, distributions payable on the Common
Securities shall be fixed at a rate of 5.902% per annum of the Liquidation
Amount of the Common Securities, such rate being the rate of interest payable
during the Fixed Rate Period on the Junior Subordinated Debt Securities to be
held by the Property Trustee, and (to the extent that payment of such
distributions is enforceable under applicable law) distributions on any
overdue installment of distributions shall accrue at the Fixed Rate,
compounded semi-annually, through the end of the Fixed Rate Period. During the
Floating Rate Period, distributions on each Common Security will accrue during
each Quarterly Distribution Accrual Period, at a rate equal to the lower of
(i) 1.40% plus the highest of the (x) 3-Month LIBOR Rate; (y) 10-Year Treasury
CMT, and (z) 30-Year Treasury CMT, as applicable for such Quarterly
Distribution Accrual Period and (ii) 13.25% (such rate the "Floating Rate"
with respect to such Quarterly Distribution Accrual Period, and such rate
being the rate of interest payable during the Floating Rate Period on the
Junior Subordinated Debt Securities to be held by the Property Trustee) until
the stated liquidation amount thereof is paid, and (to the extent that payment
of such distributions is enforceable under applicable law) distributions on
any overdue installment of distributions shall accrue at the Floating Rate
prevailing from time to time, compounded quarterly at such prevailing Floating
Rate. Distributions on the Common Securities shall be made and shall be deemed
payable on each Distribution Date, but only to the extent that the Trust has
legally and immediately available funds in the Payment Account for the payment
of such Distributions. During the Fixed Rate Period, the amount of
distributions payable on any Distribution Date will be computed on the basis
of a 360-day year of twelve 30-day months, and the amount of distributions
payable for any period shorter or longer than a full semi-annual period for
which distributions are computed will be computed on the basis of the actual
number of days elapsed in such 180-day period. During the Floating Rate
Period, the amount of distributions payable will be computed by multiplying
the annual Floating Rate in effect for the Quarterly Distribution Accrual
Period or portion thereof in respect of which the distribution is made by a
fraction, the numerator of which will be the actual number of days in such
Quarterly Distribution Accrual Period (or a portion thereof) (determined by
including the first day thereof and excluding the last day thereof) and the
denominator of which will be 365, and multiplying the product obtained thereby
by the stated liquidation amount hereof.
Distributions on the Common Securities will be cumulative, will
accrue from the Issue Date and, subject to any Deferral, shall be payable (i)
during the Fixed Rate Period, semi-annually on June 1 and December 1 of each
year, commencing June 1, 2006 (each a "Semi-Annual Distribution Date"); and
(ii) during the Floating Rate Period, quarterly on March 1, June 1, September
1 and December 1 of each year, commencing March 1, 2011 (each a "Quarterly
Distribution Date"). Distributions, including Additional Amounts, if any on
the Common Securities on each Distribution Date will be payable to the Holders
thereof as they appear on the Securities Register for the Trust Securities on
the relevant record dates. The relevant record dates for the Common Securities
shall be the same record date as for the Preferred Securities. While the
Preferred Securities remain in book-entry only form, the relevant record dates
shall be one Business Day prior to the relevant payment dates. If the
Preferred Securities are not in book-entry only form, the relevant record
dates for the Preferred Securities shall conform to the rules of any
securities exchange on which the Preferred Securities are listed and, if none,
shall be selected by the Sponsor, which dates shall be at least one Business
Day but not more than 60 Business Days before the relevant payment dates. An
interest payment on the Junior Subordinated
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Debt Securities may be deferred (i) in whole at the election of the Sponsor
pursuant to Optional Deferral in accordance with the terms of Section 4.1 of the
Supplemental Indenture permitting Optional Deferral, or (ii) in whole or in part
in accordance with the terms of Section 4.2 of the Supplemental Indenture
limiting interest payments in the case of a Mandatory Deferral (each a
"Deferral"). As a consequence of any such Deferral, Distributions will also be
deferred, in whole or in part, to the extent corresponding to the deferral on
the Junior Subordinated Debt Securities, provided that semi-annual or quarterly
Distributions, as applicable, to the extent not paid as and when due will
continue to accrue (i) during the Fixed Rate Period, at the Fixed Rate,
compounded semi-annually on each Semi-Annual Distribution Date and (ii) during
the Floating Rate Period, at the Floating Rates applicable from time to time,
compounded quarterly on each Quarterly Distribution Date. Amounts added to
deferred Distributions due to such compounding are referred to herein as
"Additional Amounts." Deferred Distributions, together with Additional Amounts,
will be distributed to the Holders of the Trust Securities as received by the
Trust at the end of any Deferral period. Notwithstanding the foregoing, the
Trust may distribute deferred amounts earlier if the Sponsor prepays interest
deferred on the Junior Subordinated Debt Securities prior to the end of any
Deferral as permitted by the Junior Subordinated Indenture.
The holder hereof, by such holder's acceptance hereof, agrees that in
the event of any payment or distribution of assets to creditors of the Sponsor
upon any liquidation, dissolution, winding up, reorganization, or in
connection with any insolvency, receivership or proceeding under any
Bankruptcy Law with respect to the Sponsor, such holder shall not have a claim
for deferred Distributions and Additional Amounts thereon, to the extent that
such amounts correspond to amounts in respect of Foregone Deferred Interest on
the Junior Subordinated Debt Securities.
If on any Distribution Date or Redemption Date an Event of Default
shall have occurred and be continuing, no payment of any Distribution
(including Additional Amounts, if any) on, or the applicable Redemption Price
of, any Common Security, and no other payment on account of the redemption,
liquidation or other acquisition of Common Securities, shall be made unless
payment in full in cash of all accumulated and unpaid Distributions (including
Additional Amounts, if any) on all Outstanding Preferred Securities for all
distribution periods terminating on or prior thereto, or in the case of
payment of the applicable Redemption Price the full amount of such Redemption
Price on all Outstanding Preferred Securities, shall have been made or
provided for, and all funds immediately available to the Property Trustee
shall first be applied to the payment in full in cash of all Distributions
(including Additional Amounts, if any) on, or the applicable Redemption Price
of, Preferred Securities then due and payable.
Subject to certain conditions set forth in the Amended and Restated
Declaration of Trust and the Junior Subordinated Indenture, the Property
Trustee may, at the direction of the Sponsor, at any time liquidate the Trust
and cause the Junior Subordinated Debt Securities to be distributed to the
holders of the Trust Securities in liquidation of the Trust or, simultaneously
with any redemption of the Junior Subordinated Debt Securities, cause a Like
Amount of the Trust Securities to be redeemed by the Trust.
The Common Securities shall be redeemable as provided in the Amended
and Restated Declaration of Trust.
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common Security
to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Common Securities Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date: ______________________
Signature: __________________
(Sign exactly as your name appears on the other side of this Common
Securities Certificate)
A-5
EXHIBIT B
AGREEMENT AS TO EXPENSES AND LIABILITIES
THIS AGREEMENT AS TO EXPENSES AND LIABILITIES (this "Agreement") is
made as of November 22, 2005, between The Stanley Works, a Connecticut
corporation (the "Company"), and The Stanley Works Capital Trust I, a Delaware
statutory trust (the "Trust").
WHEREAS, the Trust intends to issue its Common Securities (the
"Common Securities") to and receive Junior Subordinated Debt Securities from
the Company, and to issue and sell to the public its 5.902% Fixed
Rate/Floating Rate Enhanced Trust Preferred Securities (the "Preferred
Securities") with such powers, preferences and special rights and restrictions
as are set forth in the Amended and Restated Declaration of Trust of the Trust
dated as of November 22, 2005, as the same may be amended from time to time
(the "Amended and Restated Declaration of Trust"); and
WHEREAS, the Company is the guarantor of the Preferred Securities.
NOW, THEREFORE, in consideration of the purchase by each holder of
the Preferred Securities, which purchase the Company hereby agrees shall
benefit the Company and which purchase the Company acknowledges will be made
in reliance upon the execution and delivery of this Agreement, the Company and
the Trust hereby agree as follows:
ARTICLE I
Section 1.01. Guarantee by the Company. Subject to the terms and
conditions hereof, the Company hereby irrevocably and unconditionally
guarantees to each person or entity to whom the Trust is now or hereafter
becomes indebted or liable (the "Beneficiaries") the full payment, when and as
due, of any and all Obligations (as hereinafter defined) to such
Beneficiaries. As used herein, "Obligations" means any indebtedness, expenses
or liabilities of the Trust, other than obligations of the Trust to pay to
holders of any Preferred Securities, Common Securities or other similar
interests in the Trust the amounts due such holders pursuant to the terms of
the Preferred Securities, Common Securities or such other similar interests,
as the case may be. This Agreement is intended to be for the benefit of, and
to be enforceable by, all such Beneficiaries, whether or not such
Beneficiaries have received notice hereof.
Section 1.02. Term of Agreement. This Agreement shall terminate and
be of no further force and effect upon the date on which there are no
Beneficiaries remaining; provided, however, that this Agreement shall continue
to be effective or shall be reinstated, as the case may be, if at any time any
holder of Preferred Securities or any Beneficiary must restore payment of any
sums paid under the Preferred Securities, under any Obligation, under the
Preferred Securities Guarantee Agreement dated the date hereof between the
Company and HSBC Bank USA, National Association, as guarantee trustee, or
under this Agreement for any reason whatsoever. This Agreement is continuing,
irrevocable, unconditional and absolute.
Section 1.03. Waiver of Notice. The Company hereby waives notice of
acceptance of this Agreement and of any Obligation to which it applies or may
apply, and the Company hereby
B-1
waives presentment, demand for payment, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
Section 1.04. No Impairment. The obligations, covenants, agreements
and duties of the Company under this Agreement shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust of
all or any portion of the Obligations or for the performance of any
other obligation under, arising out of, or in connection with, the
Obligations;
(b) any failure, omission, delay or lack of diligence on the
part of the Beneficiaries to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Beneficiaries with
respect to the Obligations or any action on the part of the Trust
granting indulgence or extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of debt of, or other similar proceedings
affecting, the Trust or any of the assets of the Trust.
There shall be no obligation of the Beneficiaries to give notice to,
or obtain the consent of, the Company with respect to the happening of any of
the foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce this Agreement
directly against the Company and the Company waives any right or remedy to
require that any action be brought against the Trust or any other person or
entity before proceeding against the Company.
ARTICLE II
Section 2.01. Binding Effect. All guarantees and agreements contained
in this Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Company and shall inure to the benefit of the
Beneficiaries.
Section 2.02. Amendment. So long as there remains any Beneficiary or
any Preferred Securities of any series are outstanding, this Agreement shall
not be modified or amended in any manner adverse to such Beneficiary or to the
holders of the Preferred Securities.
Section 2.03. Notices. Any notice, request or other communication
required or permitted to be given hereunder shall be given in writing by
delivering the same against receipt therefor by facsimile transmission
(confirmed by mail), telex or by registered or certified mail, addressed as
follows (and if so given, shall be deemed given when mailed or upon receipt of
an answer-back, if sent by telex):
If to the Company:
The Stanley Works
1000 Stanley Drive
B-2
New Britain, CT 06053
Attention: Treasurer
If to the Trust:
The Stanley Works Capital Trust I
c/o The Stanley Works
1000 Stanley Drive
New Britain, CT 06053
Attention: Treasurer
Section 2.04. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
B-3
THIS AGREEMENT is executed as of the date and year first
above written.
THE STANLEY WORKS
By: ________________________________
Name: Craig A. Douglas
Title: Vice President and Treasurer
THE STANLEY WORKS CAPITAL TRUST I
By: ________________________________
Name: Craig A. Douglas
Title: Administrative Trustee
B-4
EXHIBIT C
[IF THIS PREFERRED SECURITIES CERTIFICATE IS TO BE A BOOK-ENTRY PREFERRED
SECURITIES CERTIFICATE INSERT - UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
TRANSFERS OF THIS BOOK-ENTRY PREFERRED SECURITIES CERTIFICATE SHALL BE LIMITED
TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
BOOK-ENTRY PREFERRED SECURITIES CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE
IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE AMENDED AND RESTATED
DECLARATION OF TRUST REFERRED TO HEREIN.]
[INSERT THE PRIVATE PLACEMENT LEGEND AS FOLLOWS, IF APPLICABLE PURSUANT TO THE
PROVISIONS OF THE AMENDED AND RESTATED DECLARATION OF TRUST - THIS SECURITY
HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES
ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER, SELL
OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") THAT IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY
AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY) ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR
SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER
THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER," AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT, THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE
C-1
UNITED STATES TO NON-U.S. PERSONS IN "OFFSHORE TRANSACTIONS" WITHIN THE MEANING
OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO RULE 144 UNDER THE
SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER'S AND THE TRUSTEES'
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) AND (E)
TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE
THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.]
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS
AND WARRANTS FROM THE DATE ON WHICH THE HOLDER PURCHASES THIS SECURITY THROUGH
AND INCLUDING THE DATE ON WHICH THE HOLDER DISPOSES OF ITS INTEREST IN THIS
SECURITY, THAT THE HOLDER IS NOT A PLAN SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974 OR TO SECTION 4975 OF THE US INTERNAL
REVENUE CODE OF 1986, AS AMENDED OR A FIDUCIARY PURCHASING THIS SECURITY FOR
OR WITH THE ASSETS OF SUCH A PLAN.
[INSERT THE REGULATION S TEMPORARY BOOK ENTRY PREFERRED SECURITIES CERTIFICATE
LEGEND AS FOLLOWS, IF APPLICABLE PURSUANT TO THE PROVISIONS OF THE AMENDED AND
RESTATED DECLARATION OF TRUST - THE RIGHTS ATTACHING TO THIS REGULATION S
TEMPORARY BOOK-ENTRY PREFERRED SECURITIES CERTIFICATE, AND THE CONDITIONS AND
PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED SECURITIES, ARE AS
SPECIFIED IN THE AMENDED AND RESTATED DECLARATION OF TRUST. NEITHER THE HOLDER
NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY BOOK-ENTRY PREFERRED
SECURITIES CERTIFICATE SHALL BE ENTITLED TO RECEIVE DISTRIBUTIONS HEREON.
THIS REGULATION S TEMPORARY BOOK-ENTRY PREFERRED SECURITIES CERTIFICATE IS
EXCHANGEABLE IN WHOLE OR IN PART FOR ONE OR MORE BOOK-ENTRY PREFERRED
SECURITIES CERTIFICATES ONLY (I) ON OR AFTER THE TERMINATION OF THE 40-DAY
DISTRIBUTION COMPLIANCE PERIOD (AS DEFINED IN REGULATION S UNDER THE
SECURITIES ACT) AND (II) UPON PRESENTATION OF CERTIFICATES (ACCOMPANIED BY AN
OPINION OF COUNSEL, IF APPLICABLE) REQUIRED BY ARTICLE 5 OF THE AMENDED AND
RESTATED DECLARATION OF TRUST. UPON EXCHANGE OF THIS REGULATION S TEMPORARY
BOOK-ENTRY PREFERRED SECURITIES CERTIFICATE FOR ONE OR MORE BOOK-ENTRY
PREFERRED SECURITIES CERTIFICATES, THE ADMINISTRATIVE TRUSTEES SHALL CANCEL
THIS REGULATION S TEMPORARY BOOK-ENTRY PREFERRED SECURITIES CERTIFICATE.
C-2
Certificate Number: [ ] Number of Preferred Securities: [ ]
CUSIP NO.: [ ]
ISIN NO.: [ ]
Certificate Evidencing Preferred Securities
of
The Stanley Works Capital Trust I
5.902% Fixed Rate/Floating Rate Enhanced Trust Preferred Securities
(Liquidation amount $1,000 per Preferred Security)
The Stanley Works Capital Trust I, a statutory trust created under
the laws of the State of Delaware (the "Trust"), hereby certifies that Cede &
Co. (the "Holder") is the registered owner of [? (?)] preferred securities of
the Trust representing undivided beneficial interests in the assets of the
Trust and designated The Stanley Works Capital Trust I 5.902% Fixed
Rate/Floating Rate Enhanced Trust Preferred Securities (liquidation amount
$1,000 per Preferred Security) (the "Preferred Securities"). The Preferred
Securities are transferable on the books and records of the Trust, in person
or by a duly authorized attorney, upon surrender of this certificate duly
endorsed and in proper form for transfer as provided in Section 5.13 of the
Amended and Restated Declaration of Trust (as defined below). The designation,
rights, privileges, restrictions, preferences and other terms and provisions
of the Preferred Securities are set forth in, and this certificate and the
Preferred Securities represented hereby are issued and shall in all respects
be subject to the terms and provisions of, the Amended and Restated
Declaration of Trust of the Trust, dated as of November 22, 2005, as the same
may be amended from time to time (the "Amended and Restated Declaration of
Trust"), including the designation of the terms of Preferred Securities as set
forth therein. Capitalized terms used herein but not defined shall have the
meaning given to them in the Amended and Restated Declaration of Trust. The
holder of this certificate is entitled to the benefits of the Guarantee to the
extent provided therein. The Trust will furnish a copy of the Amended and
Restated Declaration of Trust, the Guarantee and the Junior Subordinated
Indenture to the holder of this certificate without charge upon written
request to the Trust at its principal place of business or registered office.
Upon receipt of this certificate, the holder of this certificate is
bound by the Amended and Restated Declaration of Trust and is entitled to the
benefits thereunder.
By acceptance, the holder of this certificate agrees to treat, for
United States federal income tax purposes, the Junior Subordinated Debt
Securities as indebtedness and the Preferred Securities as evidence of
indirect beneficial ownership in the Junior Subordinated Debt Securities.
[If the certificate is the Regulation S Temporary Book-Entry
Preferred Securities Certificate, insert - Until this Regulation S Temporary
Book-Entry Preferred Securities Certificate is exchanged for one or more
Regulation S Permanent Book-Entry Preferred Securities Certificates, the
holder hereof shall not be entitled to receive distributions hereon; until so
exchanged in full, this Regulation S Temporary Book-Entry Preferred Securities
Certificate shall in all other respects
C-3
be entitled to the same benefits as other Preferred Securities under the Amended
and Restated Declaration of Trust.]
C-4
IN WITNESS WHEREOF, an Administrative Trustee of the Trust has
executed this certificate this ____ day of ________, ____.
THE STANLEY WORKS CAPITAL TRUST I
By: _______________________________
[Name]
as Administrative Trustee
C-5
[FORM OF REVERSE OF SECURITY]
During the Fixed Rate Period, distributions payable on the Preferred
Securities shall be fixed at a rate of 5.902% per annum of the Liquidation
Amount of the Preferred Securities, such rate being the rate of interest
payable during the Fixed Rate Period on the Junior Subordinated Debt
Securities to be held by the Property Trustee, and (to the extent that payment
of such distributions is enforceable under applicable law) distributions on
any overdue installment of distributions shall accrue at the Fixed Rate,
compounded semi-annually, through the end of the Fixed Rate Period. During the
Floating Rate Period, distributions on each Preferred Security will accrue
during each Quarterly Distribution Accrual Period, at a rate equal to the
lower of (i) 1.40% plus the highest of the (x) 3-Month LIBOR Rate; (y) 10-Year
Treasury CMT, and (z) 30-Year Treasury CMT, as applicable for such Quarterly
Distribution Accrual Period and (ii) 13.25% (such rate the "Floating Rate"
with respect to such Quarterly Distribution Accrual Period, and such rate
being the rate of interest payable during the Floating Rate Period on the
Junior Subordinated Debt Securities to be held by the Property Trustee) until
the stated liquidation amount thereof is paid, and (to the extent that payment
of such distributions is enforceable under applicable law) distributions on
any overdue installment of distributions shall accrue at the Floating Rate
prevailing from time to time, compounded quarterly at such prevailing Floating
Rate. Distributions on the Preferred Securities shall be made and shall be
deemed payable on each Distribution Date, but only to the extent that the
Trust has legally and immediately available funds in the Payment Account for
the payment of such Distributions. During the Fixed Rate Period, the amount of
distributions payable on any Distribution Date will be computed on the basis
of a 360-day year of twelve 30-day months, and the amount of distributions
payable for any period shorter or longer than a full semi-annual period for
which distributions are computed will be computed on the basis of the actual
number of days elapsed in such 180-day period. During the Floating Rate
Period, the amount of distributions payable will be computed by multiplying
the annual Floating Rate in effect for the Quarterly Distribution Accrual
Period or portion thereof in respect of which the distribution is made by a
fraction, the numerator of which will be the actual number of days in such
Quarterly Distribution Accrual Period (or a portion thereof) (determined by
including the first day thereof and excluding the last day thereof) and the
denominator of which will be 365, and multiplying the product obtained thereby
by the stated liquidation amount hereof.
Distributions on the Preferred Securities will be cumulative, will
accrue from the Issue Date and, subject to any Deferral, shall be payable (i)
during the Fixed Rate Period, semi-annually on June 1 and December 1 of each
year, commencing June 1, 2006 (each a "Semi-Annual Distribution Date"); and
(ii) during the Floating Rate Period, quarterly on March 1, June 1, September
1 and December 1 of each year, commencing March 1, 2011 (each a "Quarterly
Distribution Date"). Distributions, including Additional Amounts, if any on
the Preferred Securities on each Distribution Date will be payable to the
Holders thereof as they appear on the Securities Register for the Trust
Securities on the relevant record dates. While the Preferred Securities remain
in book-entry only form, the relevant record dates shall be one Business Day
prior to the relevant payment dates. If the Preferred Securities are not in
book-entry only form, the relevant record dates for the Preferred Securities
shall conform to the rules of any securities exchange on which the Preferred
Securities are listed and, if none, shall be selected by the Sponsor, which
dates shall be at least one Business Day but not more than 60 Business Days
before the relevant payment dates. An interest payment on the Junior
Subordinated Debt Securities may be deferred (i) in whole at the election of
the Sponsor pursuant to Optional Deferral in accordance
C-6
with the terms of Section 4.1 of the Supplemental Indenture permitting Optional
Deferral, or (ii) in whole or in part in accordance with the terms of Section
4.2 of the Supplemental Indenture limiting interest payments in the case of a
Mandatory Deferral (each a "Deferral"). As a consequence of any such Deferral,
Distributions will also be deferred, in whole or in part, to the extent
corresponding to the deferral on the Junior Subordinated Debt Securities,
provided that semi-annual or quarterly Distributions, as applicable, to the
extent not paid as and when due will continue to accrue (i) during the Fixed
Rate Period, at the Fixed Rate, compounded semi-annually on each Semi-Annual
Distribution Date and (ii) during the Floating Rate Period, at the Floating
Rates applicable from time to time, compounded quarterly on each Quarterly
Distribution Date. Amounts added to deferred Distributions due to such
compounding are referred to herein as "Additional Amounts." Deferred
Distributions, together with Additional Amounts, will be distributed to the
Holders of the Trust Securities as received by the Trust at the end of any
Deferral period. Notwithstanding the foregoing, the Trust may distribute
deferred amounts earlier if the Sponsor prepays interest deferred on the Junior
Subordinated Debt Securities prior to the end of any Deferral as permitted by
the Junior Subordinated Indenture.
The holder hereof, by such holder's acceptance hereof, agrees that in
the event of any payment or distribution of assets to creditors of the Sponsor
upon any liquidation, dissolution, winding up, reorganization, or in
connection with any insolvency, receivership or proceeding under any
Bankruptcy Law with respect to the Sponsor, such holder shall not have a claim
for deferred Distributions and Additional Amounts thereon, to the extent that
such amounts correspond to amounts in respect of Foregone Deferred Interest on
the Junior Subordinated Debt Securities.
In addition to the rights provided to the holders of the Preferred
Securities under the Amended and Restated Declaration of Trust of the Trust,
holders of Preferred Securities that are Registrable Securities (as defined in
the Registration Rights Agreement, dated as of November 22, 2005, among the
Trust, The Stanley Works and the initial purchasers of the Preferred
Securities therein named), shall have all the rights set forth in such
Registration Rights Agreement.
In the event of a Non-U.S. Merger with respect to The Stanley Works,
the holder hereof shall have the right to receive Gross-Up Payments, if and to
the extent such payments are required pursuant to the Junior Subordinated
Indenture.
Subject to certain conditions set forth in the Amended and Restated
Declaration of Trust and the Junior Subordinated Indenture, the Property
Trustee may, at the direction of the Sponsor, at any time liquidate the Trust
and cause the Junior Subordinated Debt Securities to be distributed to the
holders of the Trust Securities in liquidation of the Trust or, simultaneously
with any redemption of the Junior Subordinated Debt Securities, cause a Like
Amount of the Trust Securities to be redeemed by the Trust.
The Preferred Securities shall be redeemable as provided in the
Amended and Restated Declaration of Trust.
C-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Preferred Securities Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date: ______________________
Signature: __________________
(Sign exactly as your name appears on the other side of this Preferred
Securities Certificate)
C-8
EXHIBIT D
FORM OF CERTIFICATE OF TRANSFER
The Stanley Works Capital Trust I
c/o The Stanley Works
1000 Stanley Drive
New Britain, Connecticut 06053
[Registrar address block]
Re: 5.902% Fixed Rate/Floating Rate Enhanced Trust Preferred Securities
Reference is hereby made to the Amended and Restated Declaration of
Trust, dated as of November 22 , 2005 (the "Amended and Restated Declaration
of Trust"), among The Stanley Works, as sponsor, HSBC Bank USA, National
Association, as Delaware and Property Trustee, and Craig A. Douglas, Jeffrey
D. Cataldo, and Donald Allan, as administrative trustees, regarding The
Stanley Works Capital Trust I (the "Trust"). Capitalized terms used but not
defined herein shall have the meanings given to them in the Amended and
Restated Declaration of Trust.
___________________, (the "Transferor") owns and proposes to transfer
the Preferred Security/ies or interest in such Preferred Security/ies
specified in Annex A hereto, in the principal amount of $___________ in such
Preferred Security/ies or interests (the "Transfer"), to
___________________________ (the "Transferee"), as further specified in Annex
A hereto. In connection with the Transfer, the Transferor hereby certifies
that:
[CHECK ALL THAT APPLY]
1.[ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST
IN THE 144A BOOK-ENTRY PREFERRED SECURITIES CERTIFICATE OR A DEFINITIVE
PREFERRED SECURITIES CERTIFICATE PURSUANT TO RULE l44A. The Transfer is being
effected pursuant to and in accordance with Rule 144A under the United States
Securities Act of 1933, as amended (the "Securities Act"), and, accordingly,
the Transferor hereby further certifies that the beneficial interest or
Definitive Preferred Securities Certificate is being transferred to a Person
that the Transferor reasonably believed and believes is purchasing the
beneficial interest or Definitive Preferred Securities Certificate for its own
account, or for one or more accounts with respect to which such Person
exercises sole investment discretion, and such Person and each such account is
a "qualified institutional buyer" within the meaning of Rule l44A in a
transaction meeting the requirements of Rule l44A and such Transfer is in
compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Transfer in accordance with
the terms of the Amended and Restated Declaration of Trust, the transferred
beneficial interest or Definitive Preferred Securities Certificate will be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the 144A Book Entry Preferred Securities Certificate and/or
the Definitive Preferred Securities Certificate and in the Amended and
Restated Declaration of Trust and the Securities Act.
D-1
2. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE REGULATION S TEMPORARY BOOK ENTRY PREFERRED SECURITIES
CERTIFICATE, THE REGULATION S BOOK ENTRY PREFERRED SECURITIES CERTIFICATE OR A
DEFINITIVE PREFERRED SECURITIES CERTIFICATE PURSUANT TO REGULATION S. The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and, accordingly, the Transferor hereby further
certifies that (i) the Transfer is not being made to a person in the United
States and (x) at the time the buy order was originated, the Transferee was
outside the United States or such Transferor and any Person acting on its
behalf reasonably believed and believes that the Transferee was outside the
United States or (y) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling
efforts have been made in contravention of the requirements of Rule 903(b) or
Rule 904(b) of Regulation S under the Securities Act (iii) the transaction is
not part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior to the
expiration of the Restricted Period, the transfer is not being made to a U.S.
Person or for the account or benefit of a U.S. Person (other than an initial
purchaser of the Preferred Securities), which certification is supported by an
opinion of counsel provided by the Transferor or the Transferee (a copy of
which the Transferor has attached to this certification) to the effect that
such Transfer is in compliance with the Securities Act. Upon consummation of
the proposed transfer in accordance with the terms of the Amended and Restated
Declaration of Trust, the transferred beneficial interest or Definitive
Preferred Securities Certificate will be subject to the restrictions on
Transfer enumerated in the Private Placement Legend printed on the Regulation
S Book Entry Preferred Securities Certificate, the Regulation S Temporary Book
Entry Preferred Securities Certificate and/or the Definitive Preferred
Securities Certificate and in the Amended and Restated Declaration of Trust
and the Securities Act.
3. [ ] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN THE 144A BOOK ENTRY PREFERRED SECURITIES CERTIFICATE OR
A DEFINITIVE PREFERRED SECURITIES CERTIFICATE PURSUANT TO ANY PROVISION OF THE
SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The Transfer is being
effected in compliance with the transfer restrictions applicable to beneficial
interests in Restricted Book Entry Preferred Securities Certificates and
Restricted Definitive Preferred Securities Certificates and pursuant to and in
accordance with the Securities Act and any applicable blue sky securities laws
of any state of the United States, and accordingly the Transferor hereby
further certifies that (check one):
(a) [ ] such Transfer is being effected
pursuant to and in accordance with Rule 144 under
the Securities Act, which certification is
supported by an opinion of counsel provided by the
Transferor or the Transferee (a copy of which the
Transferor has attached to this certification) to
the effect that such Transfer is in compliance with
the Securities Act;
or
(b) [ ] such Transfer is being effected to
the Trust;
or
D-2
(c) [ ] such Transfer is being effected
pursuant to an effective registration statement
under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities
Act.
4. [ ] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN AN UNRESTRICTED BOOK ENTRY PREFERRED SECURITIES
CERTIFICATE OR OF AN UNRESTRICTED DEFINITIVE PREFERRED SECURITIES CERTIFICATE.
(a) [ ] Check if Transfer is pursuant to
Rule 144. (i) The Transfer is being effected pursuant
to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer
restrictions contained in the Amended and Restated
Declaration of Trust and any applicable blue sky
securities laws of any state of the United States
and (ii) the restrictions on transfer contained in
the Amended and Restated Declaration of Trust and
the Private Placement Legend are not required in
order to maintain compliance with the Securities
Act. Upon consummation of the proposed Transfer in
accordance with the terms of the Amended and
Restated Declaration of Trust, the transferred
beneficial interest or Definitive Preferred
Securities Certificate will no longer be subject to
the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted
Book Entry Preferred Securities Certificates, on
Restricted Definitive Preferred Securities
Certificates and in the Amended and Restated
Declaration of Trust.
(b) [ ] Check if Transfer is Pursuant to
Regulation S. (i) The Transfer is being effected
pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and in compliance with
the transfer restrictions contained in the Amended
and Restated Declaration of Trust and any
applicable blue sky securities laws of any state of
the United States and (ii) the restrictions on
transfer contained in the Amended and Restated
Declaration of Trust and the Private Placement
Legend are not required in order to maintain
compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance
with the terms of the Amended and Restated
Declaration of Trust, the transferred beneficial
interest or Definitive Preferred Securities
Certificate will no longer be subject to the
restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Book
Entry Preferred Securities Certificates, on
Restricted Definitive Preferred Securities
Certificates and in the Amended and Restated
Declaration of Trust.
D-3
This certificate and the statements contained herein are
made for your benefit and the benefit of the Trust.
[Insert Name of Transferor]
By:
Name:
Title:
Date: ________________________
D-4
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Book Entry Preferred Securities Certificate (CUSIP
_________), or
(ii) [ ] Regulation S Book Entry Preferred Securities Certificate
(CUSIP ________), or
(b) [ ] a Restricted Definitive Preferred Securities Certificate.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) a beneficial interest in the:
(i) [ ] 144A Book Entry Preferred Securities Certificate (CUSIP
_________), or
(ii) [ ] Regulation S Book Entry Preferred Securities
Certificate (CUSIP ________), or
(iii) [ ] Unrestricted Book Entry Preferred Securities
Certificate (CUSIP _________); or
(b) [ ] a Restricted Definitive Preferred Securities
Certificate; or
(c) [ ] an Unrestricted Definitive Preferred Securities
Certificate,
in accordance with the terms of the Amended and Restated Declaration of Trust.
D-5
EXHIBIT E
FORM OF CERTIFICATE OF EXCHANGE
The Stanley Works Capital Trust I
c/o The Stanley Works
1000 Stanley Drive
New Britain, Connecticut 06053
[Registrar address block]
Re: 5.902% Fixed Rate/Floating Rate Enhanced Trust Preferred Securities
(CUSIP ___________________)
Reference is hereby made to the Amended and Restated Declaration of
Trust, dated as of November 22, 2005 (the "Amended and Restated Declaration of
Trust"), among The Stanley Works, as sponsor, HSBC Bank USA, National
Association, as Delaware and Property Trustee, and Craig A. Douglas, Jeffrey
D. Cataldo, and Donald Allan, as administrative trustees, regarding The
Stanley Works Capital Trust I (the "Trust"). Capitalized terms used but not
defined herein shall have the meanings given to them in the Amended and
Restated Declaration of Trust.
__________________________, (the "Owner") owns and proposes to
exchange the Preferred Security/ies or interest in such Preferred Security/ies
specified herein, in the principal amount of $____________ in such Preferred
Security/ies or interests (the "Exchange"). In connection with the Exchange,
the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE PREFERRED SECURITIES
CERTIFICATES OR BENEFICIAL INTERESTS IN A RESTRICTED BOOK ENTRY PREFERRED
SECURITIES CERTIFICATE FOR UNRESTRICTED DEFINITIVE PREFERRED SECURITIES
CERTIFICATES OR BENEFICIAL INTERESTS IN AN UNRESTRICTED BOOK ENTRY PREFERRED
SECURITIES CERTIFICATE
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
BOOK ENTRY PREFERRED SECURITIES CERTIFICATE TO BENEFICIAL INTEREST IN AN
UNRESTRICTED BOOK ENTRY PREFERRED SECURITIES CERTIFICATE. In connection with
the Exchange of the Owner's beneficial interest in a Restricted Book Entry
Preferred Securities Certificate for a beneficial interest in an Unrestricted
Book Entry Preferred Securities Certificate in an equal principal amount, the
Owner hereby certifies (i) the beneficial interest is being acquired for the
Owner's own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Book Entry
Preferred Securities Certificates and pursuant to and in accordance with the
United States Securities Act of 1933, as amended (the "Securities Act"), (iii)
the restrictions on transfer contained in the Amended and Restated Declaration
of Trust and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial interest
in
E-1
an Unrestricted Book Entry Preferred Securities Certificate is being
acquired in compliance with any applicable blue sky securities laws of any
state of the United States.
(b) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
BOOK ENTRY PREFERRED SECURITIES CERTIFICATE TO UNRESTRICTED DEFINITIVE
PREFERRED SECURITIES CERTIFICATE. In connection with the Exchange of the
Owner's beneficial interest in a Restricted Book Entry Preferred Securities
Certificate for an Unrestricted Definitive Preferred Securities Certificate,
the Owner hereby certifies (i) the Definitive Preferred Securities Certificate
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Book Entry Preferred Securities Certificates and
pursuant to and in accordance with the Securities Act, (iii) the restrictions
on transfer contained in the Amended and Restated Declaration of Trust and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act and (iv) the Definitive Preferred Securities Certificate is
being acquired in compliance with any applicable blue sky securities laws of
any state of the United States.
(c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE PREFERRED
SECURITIES CERTIFICATE TO BENEFICIAL INTEREST IN AN UNRESTRICTED BOOK ENTRY
PREFERRED SECURITIES CERTIFICATE. In connection with the Owner's Exchange of a
Restricted Definitive Preferred Securities Certificate for a beneficial
interest in an Unrestricted Book Entry Preferred Securities Certificate, the
Owner hereby certifies (i) the beneficial interest is being acquired for the
Owner's own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to Restricted Definitive
Preferred Securities Certificates and pursuant to and in accordance with the
Securities Act, (iii) the restrictions on transfer contained in the Amended
and Restated Declaration of Trust and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
beneficial interest is being acquired in compliance with any applicable blue
sky securities laws of any state of the United States.
(d) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE PREFERRED
SECURITIES CERTIFICATE TO UNRESTRICTED DEFINITIVE PREFERRED SECURITIES
CERTIFICATE. In connection with the Owner's Exchange of a Restricted
Definitive Preferred Securities Certificate for an Unrestricted Definitive
Preferred Securities Certificate, the Owner hereby certifies (i) the
Unrestricted Definitive Preferred Securities Certificate is being acquired for
the Owner's own account without transfer, (ii) such Exchange has been effected
in compliance with the transfer restrictions applicable to Restricted
Definitive Preferred Securities Certificates and pursuant to and in accordance
with the Securities Act, (iii) the restrictions on transfer contained in the
Amended and Restated Declaration of Trust and the Private Placement Legend are
not required in order to maintain compliance with the Securities Act and (iv)
the Unrestricted Definitive Preferred Securities Certificate is being acquired
in compliance with any applicable blue sky securities laws of any state of the
United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE PREFERRED SECURITIES
CERTIFICATES OR BENEFICIAL INTERESTS IN RESTRICTED BOOK ENTRY PREFERRED
SECURITIES CERTIFICATES FOR RESTRICTED DEFINITIVE
E-2
PREFERRED SECURITIES CERTIFICATES OR BENEFICIAL INTERESTS IN RESTRICTED BOOK
ENTRY PREFERRED SECURITIES CERTIFICATES.
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
BOOK ENTRY PREFERRED SECURITIES CERTIFICATE TO RESTRICTED DEFINITIVE PREFERRED
SECURITIES CERTIFICATE. In connection with the Exchange of the Owner's
beneficial interest in a Restricted Book Entry Preferred Securities
Certificate for a Restricted Definitive Preferred Securities Certificate with
an equal principal amount, the Owner hereby certifies that the Restricted
Definitive Preferred Securities Certificate is being acquired for the Owner's
own account without transfer. Upon consummation of the proposed Exchange in
accordance with the terms of the Amended and Restated Declaration of Trust,
the Restricted Definitive Preferred Securities Certificate issued will
continue to be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Definitive Preferred
Securities Certificate and in the Amended and Restated Declaration of Trust
and the Securities Act.
(b) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE PREFERRED
SECURITIES CERTIFICATE TO BENEFICIAL INTEREST IN A RESTRICTED BOOK ENTRY
PREFERRED SECURITIES CERTIFICATE. In connection with the Exchange of the
Owner's Restricted Definitive Preferred Securities Certificate for a
beneficial interest in the [CHECK ONE] 144A Book Entry Preferred Securities
Certificate or Regulation S Book Entry Preferred Securities Certificate with
an equal principal amount, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's own account without transfer and
(ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Restricted Book Entry Preferred Securities
Certificates and pursuant to and in accordance with the Securities Act, and in
compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Exchange in accordance with
the terms of the Amended and Restated Declaration of Trust, the beneficial
interest issued will be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the relevant Restricted Book Entry
Preferred Securities Certificate and in the Amended and Restated Declaration
of Trust and the Securities Act.
E-3
This certificate and the statements contained herein are made for
your benefit and the benefit of the Trust.
[Insert Name of Owner]
By:
Name:
Title:
Date: ________________________
E-4
Exhibit 4.11
THE STANLEY WORKS CAPITAL TRUST I
The Stanley Works
5.902% Fixed Rate/Floating Rate Enhanced Trust Preferred Securities
REGISTRATION RIGHTS AGREEMENT
November 22, 2005
Citigroup Global Markets Inc.
Goldman, Sachs & Co.
UBS Securities LLC
as Representatives of the Initial Purchasers
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
The Stanley Works Capital Trust I, a statutory trust formed under the
laws of the State of Delaware (the "Trust"), proposes to issue and sell to
certain purchasers (the "Initial Purchasers"), for whom you (the
"Representatives") are acting as representatives, its 5.902% Fixed Rate/Floating
Rate Enhanced Trust Preferred Securities (the "Preferred Securities"), to be
guaranteed by The Stanley Works, a corporation organized under the laws of the
State of Connecticut (the "Guarantor"), upon the terms set forth in the Purchase
Agreement among the Guarantor, the Trust and the Representatives dated November
15, 2005 (the "Purchase Agreement") relating to the initial purchase (the
"Initial Purchase") of the Preferred Securities. To induce the Initial
Purchasers to enter into the Purchase Agreement and to satisfy a condition to
your obligations thereunder, the Trust and the Guarantor agree with you for your
benefit and the benefit of the Holders from time to time, including the Initial
Purchasers, as follows:
1. Definitions. Capitalized terms used herein without definition shall
have their respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the following capitalized defined terms shall have the following
meanings:
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Affiliate" shall have the meaning specified in Rule 405 under the Act
and the terms "controlling" and "controlled" shall have meanings correlative
thereto.
"Broker-Dealer" shall mean any broker or dealer registered as such
under the Exchange Act.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York, New York.
"Closing Date" shall mean the date of the first issuance of the
Securities.
"Commission" shall mean the Securities and Exchange Commission.
"Debentures" shall mean the Guarantor's 5.902% Fixed Rate/Floating Rate
Junior Subordinated Debt Securities due 2045.
"Deferral Period" shall have the meaning indicated in Section 4(k)(ii)
hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Exchange Offer Registration Period" shall mean the one-year period
following the consummation of the Registered Exchange Offer, exclusive of any
period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" shall mean a registration
statement of the Guarantor and the Trust on an appropriate form under the Act
with respect to the Registered Exchange Offer, and all amendments and
supplements to such registration statement, including post-effective amendments
thereto, in each case including the Prospectus contained therein, all exhibits
thereto and all material incorporated by reference therein.
"Exchanging Dealer" shall mean any Holder (which may include any
Initial Purchaser) that is a Broker-Dealer and elects to exchange for New
Securities any Securities that it acquired for its own account as a result of
market-making activities or other trading activities (but not directly from the
Guarantor or the Trust or any of their Affiliates) for New Securities.
"Final Memorandum" shall mean the offering memorandum, dated November
15, 2005, relating to the Securities, including any and all exhibits thereto and
any information incorporated by reference therein as of such date.
"Guarantee" shall mean the Guarantor's guarantee of the Securities, as
set forth in the Guarantee Agreement.
"Guarantee Agreement" shall mean the Guarantee Agreement, dated as of
November 22, 2005, between the Guarantor and HSBC Bank USA, National
Association, as Guarantee Trustee, as the same may be amended from time to time
in accordance with the terms thereof.
"Holders" shall mean the holders of the Securities (including the
Initial Purchasers).
2
"Indenture" shall mean the Indenture, dated as of November 22, 2005,
between the Guarantor and HSBC Bank USA, National Association, as trustee, as
supplemented by the First supplemental Indenture thereto, as the same may be
amended from time to time in accordance with the terms thereof.
"Initial Purchase" shall have the meaning set forth in the preamble
hereto.
"Initial Purchasers" shall have the meaning set forth in the preamble
hereto.
"Losses" shall have the meaning set forth in Section 6(d) hereof.
"Majority Holders" shall mean, on any date, Holders of a majority of
the aggregate liquidation amount of Securities registered under a Registration
Statement.
"Managing Underwriters" shall mean the investment banker or investment
bankers and manager or managers that administer an Underwritten Offering, if
any, under a Registration Statement.
"NASD Rules" shall mean the Conduct Rules and the By-Laws of the
National Association of Securities Dealers, Inc.
"New Debentures" shall mean debt securities of the Guarantor identical
in all material respects to the Debentures (except that the transfer
restrictions shall be modified or eliminated, as appropriate) to be issued under
the New Indenture.
"New Guarantee" shall mean the Guarantor's guarantee of the New
Securities under the Guarantee.
"New Securities" shall mean preferred securities of the Trust identical
in all material respects to the Preferred Securities (except that the transfer
restrictions shall be modified or eliminated, as appropriate) to be issued under
the New Trust Agreement, provided that if the Trust is dissolved and Debentures
distributed to the holders of the Preferred Securities, in accordance with the
terms of the Trust Agreement, "New Securities" shall mean the New Debentures.
"Prospectus" shall mean the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Securities or the New Securities covered by such
Registration Statement, together with the Debentures or New Debentures and
Guarantee or New Guarantee corresponding thereto, and all amendments and
supplements thereto, including any and all exhibits thereto and any information
incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble
hereto.
"Registered Exchange Offer" shall mean the proposed offer by the Trust
and the Guarantor for the Trust to issue and deliver to the Holders of the
Securities that are not
3
prohibited by any law or policy of the Commission from participating in such
offer, in exchange for the Securities, a like aggregate liquidation amount of
the New Securities, which shall be guaranteed by the New Guarantee and in
respect of which the Trust shall hold a like aggregate principal amount of New
Debentures.
"Registrable Securities" shall mean (i) each Security until the
earliest date that (A) such Security has been registered under a Registration
Statement and disposed of under such Registration Statement, (B) such Security
has been distributed to the public pursuant to Rule 144 under the Act or (C)
such Security is eligible to be sold without volume or manner of sale
limitations pursuant to paragraph (k) of rule 144 under the Act or (ii) any New
Security, the resale of which by the holders thereof requires compliance with
the prospectus delivery requirements of the Act.
"Registration Default Damages" shall have the meaning set forth in
Section 8 hereof.
"Registration Statement" shall mean any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Securities or
the New Securities pursuant to the provisions of this Agreement, any amendments
and supplements to such registration statement, including post-effective
amendments (in each case including the Prospectus contained therein), all
exhibits thereto and all material incorporated by reference therein.
"Securities" shall mean the Preferred Securities, provided that if the
Trust is dissolved and Debentures distributed to the Holders of such Preferred
Securities in accordance with the terms of the Trust Agreement, the term
"Securities" shall refer to the Debentures.
"Shelf Registration" shall mean a registration effected pursuant to
Section 3 hereof.
"Shelf Registration Period" has the meaning set forth in Section 3(b)
hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Guarantor and the Trust pursuant to the provisions of Section 3
hereof which covers some or all of the Securities or New Securities, as
applicable, on an appropriate form under Rule 415 under the Act, or any similar
rule that may be adopted by the Commission, and all amendments and supplements
to such registration statement, including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Trust Agreement" shall mean the Amended and Restated Declaration of
Trust, dated as of November 22, 2005, relating to the issuance of the Securities
and the common securities of the Trust, as the same may be amended from time to
time in accordance with the terms thereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission promulgated thereunder.
4
"Trustee" shall mean the trustee with respect to the Debentures under
the Indenture.
"underwriter" shall mean any underwriter of Securities in connection
with an Underwritten Offering thereof under a Shelf Registration Statement.
"Underwritten Offering" shall mean any offering of Securities under a
Shelf Registration Statement, in connection with which the Guarantor and the
Trust, in their sole discretion, have agreed in writing to participate in an
underwriting arrangement.
2. Registered Exchange Offer. (a) The Guarantor and the Trust shall
prepare and, not later than 210 days following the Closing Date, shall file with
the Commission the Exchange Offer Registration Statement with respect to the
Registered Exchange Offer. The Guarantor and the Trust shall use their best
efforts to cause the Exchange Offer Registration Statement to become effective
under the Act within 300 days of the Closing Date.
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Guarantor and the Trust shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer to
enable each Holder electing to exchange Securities for New Securities (assuming
that such Holder is not an Affiliate of the Guarantor or the Trust, acquires the
New Securities in the ordinary course of such Holder's business, has no
arrangements with any person to participate in the distribution of the New
Securities and is not prohibited by any law or policy of the Commission from
participating in the Registered Exchange Offer) to trade such New Securities
from and after their receipt without any limitations or restrictions under the
Act and without material restrictions under the securities laws of a substantial
proportion of the several states of the United States.
(c) In connection with the Registered Exchange Offer, the Guarantor and
the Trust shall:
(i) mail to each registered Holder a copy of the Prospectus
forming part of the Exchange Offer Registration Statement, together
with an appropriate letter of transmittal and related documents and
provide to all nominees (including the Depositary Trust Company) such
number of copies thereof as they request in order to deliver the same
to beneficial holders;
(ii) keep the Registered Exchange Offer open for not less
than 20 Business Days after the date notice thereof is mailed to the
Holders (or, in each case, longer if required by applicable law);
(iii) use their reasonable best efforts to keep the Exchange
Offer Registration Statement continuously effective, supplemented and
amended as required, under the Act to ensure (subject to Section 4(k)
hereof) that it is available for sales of New Securities by Exchanging
Dealers during the Exchange Offer Registration Period;
5
(iv) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan in New York
City, which may be the Property Trustee or an Affiliate thereof;
(v) permit Holders to withdraw tendered Securities at any
time prior to the close of business, New York time, on the last
Business Day on which the Registered Exchange Offer is open;
(vi) prior to effectiveness of the Exchange Offer
Registration Statement, provide a supplemental letter to the Commission
(A) stating that the Guarantor and the Trust are conducting the
Registered Exchange Offer in reliance on the position of the Commission
in Exxon Capital Holdings Corporation (pub. avail. May 13, 1988),
Morgan Stanley and Co., Inc. (pub. avail. June 5, 1991) and Brown &
Wood LLP (pub. avail. February 7, 1997); and (B) including a
representation that neither the Guarantor nor the Trust has entered
into any arrangement or understanding with any person to distribute the
New Securities to be received in the Registered Exchange Offer and
that, to the best of the Guarantor's and the Trust's information and
belief, each Holder participating in the Registered Exchange Offer is
acquiring the New Securities in the ordinary course of business and has
no arrangement or understanding with any person to participate in the
distribution of the New Securities; and
(vii) comply in all respects with all applicable laws
relating to the Registered Exchange Offer.
(d) As soon as practicable after the close of the Registered Exchange
Offer, the Guarantor and the Trust shall:
(i) accept for exchange all Securities tendered and not
validly withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Property Trustee for cancellation in
accordance with Section 4(s) all Securities so accepted for exchange;
(iii) cause the Property Trustee promptly to authenticate and
deliver to each Holder of Securities a liquidation amount of New
Securities equal to the liquidation amount of the Securities of such
Holder so accepted for exchange;
(iv) deliver to the Trustee for cancellation Debentures in an
aggregate principal amount equal to the aggregate liquidation amount of
Securities cancelled in accordance with clause (ii) above; and
(v) cause the Indenture Trustee to promptly authenticate and
deliver to the Property Trustee a principal amount of New Debentures
equal to such liquidation amount of the Securities accepted for
exchange.
(e) Each Holder hereby acknowledges and agrees that any Broker-Dealer
and any such Holder using the Registered Exchange Offer to participate in a
distribution of the New
6
Securities (x) could not under Commission policy as in effect on the date of
this Agreement rely on the position of the Commission in Exxon Capital Holdings
Corporation (pub. avail. May 13, 1988), Morgan Stanley and Co., Inc. (pub.
avail. June 5, 1991), as interpreted in the Commission's letter to Shearman &
Sterling dated July 2, 1993 and similar no-action letters (including, Brown &
Wood LLP (pub. avail. February 7, 1997)); and (y) must comply with the
registration and prospectus delivery requirements of the Act in connection with
any secondary resale transaction, which must be covered by an effective
registration statement, with a Prospectus or prospectus supplement containing
the selling security holder information required by Item 507 or 508, as
applicable, of Regulation S-K under the Act if the resales are of New Securities
obtained by such Holder in exchange for Securities acquired by such Holder
directly from the Guarantor or the Trust or one of their respective Affiliates.
Accordingly, each Holder participating in the Registered Exchange Offer shall be
required to represent to the Guarantor and the Trust that, at the time of the
consummation of the Registered Exchange Offer:
(i) any New Securities received by such Holder will be
acquired in the ordinary course of business;
(ii) such Holder will have no arrangement or understanding
with any person to participate in the distribution of the Securities or
the New Securities within the meaning of the Act;
(iii) such Holder is not an Affiliate of the Guarantor or the
Trust; and
(iv) if such Holder is a broker-dealer, that it will receive
New Securities for its own account in exchange for the Securities that
were acquired as a result of marked-making activities or other trading
activities and that it will be required to acknowledge that it will
deliver a prospectus in connection with any resale of such New
Securities.
(f) If any Initial Purchaser determines that it is not eligible to
participate in the Registered Exchange Offer with respect to the exchange of
Securities constituting any portion of an unsold allotment, at the request of
such Initial Purchaser, the Guarantor and the Trust shall issue and deliver to
such Initial Purchaser or the person purchasing New Securities registered under
a Shelf Registration Statement as contemplated by Section 3 hereof from such
Initial Purchaser, in exchange for such Securities, a like principal amount of
New Securities. The Guarantor and the Trust shall use their best efforts to
cause the CUSIP Service Bureau to issue the same CUSIP number for such New
Securities as for New Securities issued pursuant to the Registered Exchange
Offer.
3. Shelf Registration. (a) If (i) due to any change in law or
applicable interpretations thereof by the Commission's staff, the Guarantor
determines upon advice of its outside counsel that it or the Trust is not
permitted to effect the Registered Exchange Offer as contemplated by Section 2
hereof; (ii) for any other reason the Registered Exchange Offer is not
consummated within 300 days of the date hereof; (iii) any Initial Purchaser so
requests with respect to Securities that are not eligible to be exchanged for
New Securities in the Registered Exchange Offer and that are held by it
following consummation of the Registered Exchange Offer, provided that such
request shall be made to the Guarantor and the Trust in writing prior to
7
the 20th day following the consummation of the Registered Exchange Offer; (iv)
any Holder (other than an Initial Purchaser) notifies the guarantor and the
Trust in writing prior to the 20th day following consummation of the Registered
Exchange Offer that is not eligible to participate in the Registered Exchange
Offer; or (v) in the case of any Initial Purchaser that participates in the
Registered Exchange Offer or acquires New Securities pursuant to Section 2(f)
hereof, such Initial Purchaser notifies the Guarantor and the Trust in writing
prior to the 20th day following consummation of the Registered Exchange Offer
that it has not received freely tradeable New Securities in exchange for
Securities constituting any portion of an unsold allotment (it being understood
that (x) the requirement that an Initial Purchaser deliver a Prospectus
containing the information required by Item 507 or 508 of Regulation S-K under
the Act in connection with sales of New Securities acquired in exchange for such
Securities shall result in such New Securities being not "freely tradeable"; and
(y) the requirement that an Exchanging Dealer deliver a Prospectus in connection
with sales of New Securities acquired in the Registered Exchange Offer in
exchange for Securities acquired as a result of market-making activities or
other trading activities shall not result in such New Securities being not
"freely tradeable"), the Guarantor and the Trust shall effect a Shelf
Registration Statement in accordance with subsection (b) below.
(b) (i) The Guarantor and the Trust shall as promptly as practicable
(but in no event more than 90 days after so required or requested pursuant to
this Section 3), use their reasonable best efforts to file with the Commission
and shall use their reasonable best efforts to cause to be declared effective
under the Act, within 180 days after so required or requested, a Shelf
Registration Statement relating to the offer and sale of the Securities or the
New Securities, as applicable, together with the Debentures or New Debentures
underlying such Securities or New Securities and the Guarantee or New Guarantee
of the Securities or New Securities, by the Holders of the Securities or the New
Securities from time to time in accordance with the methods of distribution
elected by such Holders and set forth in such Shelf Registration Statement;
provided, however, that no Holder (other than an Initial Purchaser) shall be
entitled to have the Securities held by it covered by such Shelf Registration
Statement unless such Holder agrees in writing to be bound by all of the
provisions of this Agreement applicable to such Holder; and provided further,
that with respect to New Securities received by an Initial Purchaser in exchange
for Securities constituting any portion of an unsold allotment, the Guarantor
and the Trust may, if permitted by then-current rules or regulations, or
then-current interpretations by the Commission's staff, file a post-effective
amendment or prospectus supplement to the Exchange Offer Registration Statement
containing the information required by Item 507 or 508 of Regulation S-K, as
applicable, in satisfaction of its obligations under this subsection with
respect thereto, and any such Exchange Offer Registration Statement, as so
amended or supplemented, shall be referred to herein as, and governed by the
provisions herein applicable to, a Shelf Registration Statement.
(ii) The Guarantor and the Trust shall use their reasonable
best efforts to keep the Shelf Registration Statement continuously
effective, supplemented and amended as required by the Act, in order to
permit the Prospectus forming part thereof to be usable by Holders for
a period the "Shelf Registration Period") from the date the Shelf
Registration Statement is declared effective by the Commission until
the earlier of (A) the second anniversary after the Closing Date or (B)
the date upon which no Registrable Securities are outstanding. Both the
8
Guarantor and the Trust shall be deemed not to have used their
reasonable best efforts to keep the Shelf Registration Statement
effective during the Shelf Registration Period if either voluntarily
takes any action that would result in Holders of Securities covered
thereby not being able to offer and sell such Securities at any time
during the Shelf Registration Period, unless such action is (x)
required by applicable law or (y) otherwise undertaken by the Guarantor
or the Trust in good faith and for valid business reasons (not
including avoidance of the Guarantor and the Trust's obligations
hereunder), including the acquisition or divestiture of assets, and the
Guarantor and the Trust promptly thereafter comply with the
requirements of Section 4(k) hereof, if applicable.
(iii) The Guarantor and the Trust shall cause the Shelf
Registration Statement and the related Prospectus and any amendment or
supplement thereto, as of the effective date of the Shelf Registration
Statement or such amendment or supplement, (A) to comply in all
material respects with the applicable requirements of the Act; and (B)
not to contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary in order to
make the statements therein (in the case of the Prospectus, in the
light of the circumstances under which they were made) not misleading.
4. Additional Registration Procedures. In connection with any Shelf
Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply.
(a) The Guarantor and the Trust shall:
(i) furnish to each of the Representatives and to one counsel
for the Initial Purchasers, not less than five Business Days prior to
the filing thereof with the Commission, a copy of any Exchange Offer
Registration Statement and any Shelf Registration Statement, and each
amendment thereof and each amendment or supplement, if any, to the
Prospectus included therein, and shall give due consideration to such
comments as the Representatives propose;
(ii) include the information set forth in Annex A hereto on
the facing page of the Exchange Offer Registration Statement or on the
cover page of the Prospectus included therein, in Annex B hereto in the
forepart of the Exchange Offer Registration Statement in a section
setting forth details of the Exchange Offer, in Annex C hereto in the
underwriting or plan of distribution section of the Prospectus
contained in the Exchange Offer Registration Statement, and in Annex D
hereto in the letter of transmittal delivered pursuant to the
Registered Exchange Offer or, in each such case, substantially similar
information;
(iii) if requested by an Initial Purchaser, include the
information required by Item 507 or 508 of Regulation S-K, as
applicable, in the Prospectus contained in the Exchange Offer
Registration Statement; and
9
(iv) in the case of a Shelf Registration Statement, include
therein or in a related prospectus supplement the names of the Holders
known to the Guarantor that propose to sell Securities pursuant to the
Shelf Registration Statement as selling security holders.
(b) The Guarantor and the Trust shall ensure that:
(i) any Registration Statement and any amendment thereto and
any Prospectus forming part thereof and any amendment or supplement
thereto complies in all material respects with the Act; and
(ii) any Registration Statement and any amendment thereto
does not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(c) The Guarantor on behalf of itself and the Trust, shall advise the
Representatives, the Holders of Securities covered by any Shelf Registration
Statement and any Exchanging Dealer under any Exchange Offer Registration
Statement that has provided in writing to the Guarantor a telephone or facsimile
number and address for notices, and, if requested by any Representative or any
such Holder or Exchanging Dealer, shall confirm such advice in writing (which
notice pursuant to clauses (ii) through (v) hereof shall be accompanied by an
instruction to suspend the use of the Prospectus until the Guarantor and the
Trust shall have remedied the basis for such suspension):
(i) when a Registration Statement and any amendment thereto
has been filed with the Commission and when the Registration Statement
or any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for any amendment or
supplement to the Registration Statement or the Prospectus or for
additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose;
(iv) of the receipt by the Guarantor or the Trust of any
notification with respect to the suspension of the qualification of the
securities included therein for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires any change in
the Registration Statement or the Prospectus so that, as of such date,
they (A) do not contain any untrue statement of a material fact and (B)
do not omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the
Prospectus, in the light of the circumstances under which they were
made) not misleading(.)
10
(d) The Guarantor and the Trust shall use their reasonable best efforts
to obtain the withdrawal of any order suspending the effectiveness of any
Registration Statement at the earliest practicable time.
(e) The Guarantor and the Trust shall furnish to each Holder of
Securities covered by any Shelf Registration Statement that so requests, without
charge, at least one copy of such Shelf Registration Statement and any
post-effective amendment thereto, including all material incorporated therein by
reference, and, if the Holder so requests in writing, all exhibits thereto
(including exhibits incorporated by reference therein).
(f) The Guarantor and the Trust shall, during the Shelf Registration
Period, deliver to each Holder of Securities covered by any Shelf Registration
Statement, without charge, as many copies of the Prospectus (including the
Preliminary Prospectus) included in such Shelf Registration Statement and any
amendment or supplement thereto as such Holder may reasonably request. The
Guarantor and the Trust each consents to the use of the Prospectus or any
amendment or supplement thereto by each of the selling Holders of Securities in
connection with the offering and sale of the Securities covered by the
Prospectus, or any amendment or supplement thereto, included in the Shelf
Registration Statement, subject to Section 4(k)(ii) hereof.
(g) The Guarantor and the Trust shall furnish to each Exchanging Dealer
which so requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto, including all
material incorporated by reference therein, and, if the Exchanging Dealer so
requests in writing, all exhibits thereto (including exhibits incorporated by
reference therein).
(h) The Guarantor and the Trust shall promptly deliver to each Initial
Purchaser, each Exchanging Dealer and each other person required to deliver a
Prospectus during the Exchange Offer Registration Period, without charge, as
many copies of the Prospectus included in such Exchange Offer Registration
Statement and any amendment or supplement thereto as any such person may
reasonably request. The Guarantor and the Trust each consents to the use of the
Prospectus or any amendment or supplement thereto by any Initial Purchaser, any
Exchanging Dealer and any such other person that may be required to deliver a
Prospectus following the Registered Exchange Offer in connection with the
offering and sale of the New Securities covered by the Prospectus, or any
amendment or supplement thereto, included in the Exchange Offer Registration
Statement.
(i) Prior to the Registered Exchange Offer or any other offering of
Securities pursuant to any Registration Statement, the Guarantor and the Trust
shall arrange, if necessary, for the qualification of the Securities or the New
Securities for sale under the laws of such jurisdictions as any Holder shall
reasonably request in writing and shall maintain such qualification in effect so
long as required to enable the offer and sale in such jurisdictions of the
Securities or new Securities covered by such Registration Statement; provided
that in no event shall the Guarantor or the Trust be obligated to qualify to do
business in any jurisdiction where it is not then so qualified or to take any
action that would subject it to service of process in suits, other than those
arising out of the Initial Placement, the Registered Exchange Offer or any
11
offering pursuant to a Shelf Registration Statement, in any such jurisdiction
where it is not then so subject.
(j) The Guarantor and the Trust shall cooperate with the Holders of
Securities to facilitate the timely preparation and delivery of certificates
representing New Securities or Securities to be issued or sold pursuant to any
Registration Statement free of any restrictive legends and in such denominations
and registered in such names as Holders may request prior to the closing of
sales of such New Securities or Securities pursuant to such Shelf Registration
Statement.
(k) (i) Upon the occurrence of any event contemplated by subsections
(c)(ii) through (v) above, the Guarantor and the Trust shall promptly (or within
the time period provided for by clause (ii) hereof, if applicable) prepare a
post-effective amendment to the applicable Registration Statement or an
amendment or supplement to the related Prospectus or file any other required
document so that, as thereafter delivered to Initial Purchasers of the
securities included therein, the Prospectus will not include an untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. In such circumstances,
the period of effectiveness of the Exchange Offer Registration Statement
provided for in Section 2 shall be extended by the number of days from and
including the date of the giving of a notice of suspension pursuant to Section
4(c) to and including the date when the Initial Purchasers, the Holders of the
Securities and any known Exchanging Dealer shall have received such amended or
supplemented Prospectus pursuant to this Section.
(ii) Upon the occurrence of any event contemplated by
subsections (c)(ii) through (v) above, the Guarantor and the Trust may
direct in writing the Initial Purchasers, the Holders of the Securities
and any known Exchanging Dealer to forthwith discontinue the
disposition of Registrable Securities and use of the prospectus
pursuant to the Shelf Registration Statement applicable to such
Registrable Securities until such time as such Initial Purchasers,
Holders and Exchanging Dealers shall have received or obtained copies
of an amended or supplemented prospectus in accordance with subsection
(k)(i) above, and such Initial Purchasers, Holders and Exchanging
Dealers shall promptly comply with such written direction upon receipt
thereof.
(iii) Upon the occurrence or existence of any pending
corporate development or any other material event or circumstance that,
in the reasonable judgment of the Guarantor, makes it appropriate to
suspend the availability of a Shelf Registration Statement and the
related Prospectus, the Guarantor and the Trust shall give notice
(without notice of the nature or details of such events) to the Holders
that the availability of the Shelf Registration is suspended and, upon
actual receipt of any such notice, each Holder agrees not to sell any
Registrable Securities pursuant to the Shelf Registration until such
Holder's receipt of copies of the supplemented or amended Prospectus
provided for in Section 3(i) hereof, or until it is advised in writing
by the Guarantor that the Prospectus may be used, and has received
copies of any additional or supplemental filings that are
12
incorporated or deemed incorporated by reference in such Prospectus.
The period during which the availability of the Shelf Registration and
any Prospectus is suspended (the "Deferral Period") shall not exceed 30
days in any three-month period or 60 days in any twelve-month period.
(l) Not later than the effective date of any Registration Statement,
the Guarantor shall provide a CUSIP number for the Securities or the New
Securities, as the case may be, registered under such Registration Statement and
provide the Property Trustee, or if the Trust shall have been theretofore
dissolved and Debentures distributed to the holders of the Securities, the
Indenture Trustee, with printed certificates for such Securities or New
Securities, in a form eligible for deposit with The Depository Trust Company.
(m) The Guarantor and the Trust shall comply with all applicable rules
and regulations of the Commission.
(n) The Guarantor and the Trust shall cause each of the Indenture, the
Trust Agreement and the Guarantee Agreement to be qualified under the Trust
Indenture Act in a timely manner.
(o) The Guarantor and the Trust may require each Holder of Securities
to be sold pursuant to any Shelf Registration Statement to furnish to the
Guarantor and the Trust such information regarding the Holder and the
distribution of such Securities as the Guarantor and the Trust may, from time to
time, reasonably require for inclusion in such Registration Statement. The
Guarantor and the Trust may exclude from such Shelf Registration Statement the
Securities of any Holder that fails to furnish such information within a
reasonable time after receiving such request and shall have no liability to such
Holder under Section 8 hereof as a consequence of such exclusion.
(p) In the case of any Shelf Registration Statement, the Guarantor and
the Trust shall enter into customary agreements and take all other appropriate
actions in order to expedite or facilitate the registration or the disposition
of the Securities. In connection with any Underwritten Offering, the Guarantor
and the Trust shall enter into an underwriting agreement containing
indemnification provisions and procedures no less favorable than those set forth
in Section 6 hereof. In connection with any Shelf Registration Statement, each
Holder of Securities hereby covenants and agrees not to use any free writing
prospectus (as defined in Rule 405 under the Act) without the prior written
consent of the Guarantor.
(q) Each Holder of Securities hereby covenants and agrees not to use
any free writing prospectus (as defined in Rule 405 under the Act) without the
prior written consent of the Guarantor and the Trust.
(r) In the case of any Shelf Registration Statement, the Guarantor and
the Trust shall:
(i) make reasonably available for inspection by the Holders
of Securities to be registered thereunder, any underwriter
participating in any Underwritten Offering pursuant to such
Registration Statement, and any attorney,
13
accountant or other agent retained by the Holders or any such
underwriter all relevant financial and other records and pertinent
corporate documents of the Guarantor and its subsidiaries and the
Trust; provided, however, that if any information is designated in
writing by the Company, in good faith, as confidential at the time of
delivery of such information, the Holders and such attorney, accountant
or other agent, shall agree to keep such information confidential
unless such disclosure is made in connection with a court proceeding or
is required by applicable law, regulation or judicial process or at the
request of any regulatory entity, governmental agency or authority or
self-regulatory agency of securities exchange having or asserting
regulatory powers over any such recipient's activities, or such
information is or becomes available to the public generally or through
a third party, other than by such Holder, attorney, accountant or other
agent, without an accompanying obligation of confidentiality;
(ii) cause the Guarantor's officers, directors, employees,
accountants and auditors and the Trust's Administration Trustees to
supply all relevant information reasonably requested by the Holders or
any such underwriter, attorney, accountant or agent in connection with
any such Registration Statement as is customary for similar due
diligence examinations; provided, however, that if any information is
designated in writing by the Company, in good faith, as confidential at
the time of delivery of such information, the Holders and such
attorney, accountant or other agent, shall agree to keep such
information confidential unless such disclosure is made in connection
with a court proceeding or is required by applicable law, regulation or
judicial process or at the request of any regulatory entity,
governmental agency or authority or self-regulatory agency of
securities exchange having or asserting regulatory powers over any such
recipient's activities, or such information is or becomes available to
the public generally or through a third party, other than by such
Holder, attorney, accountant or other agent, without an accompanying
obligation of confidentiality;
(iii) in the case of an Underwritten Offering, make such
representations and warranties to the Holders of Securities registered
thereunder and the underwriters, if any, in form, substance and scope
as are customarily made by issuers to underwriters in primary
underwritten offerings and covering matters including, but not limited
to, those set forth in the Purchase Agreement;
(iv) in the case of an Underwritten Offering, obtain opinions
of counsel to the Guarantor and the Trust and updates thereof (which
counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the Managing Underwriters, if any) addressed to each
selling Holder and the underwriters, if any, covering such matters as
are customarily covered in opinions requested in underwritten offerings
and such other matters as may be reasonably requested by such Holders
and underwriters;
(v) in the case of an Underwritten Offering, obtain "comfort"
letters and updates thereof from the independent certified public
accountants of the Guarantor and the Trust (and, if necessary, any
other independent certified public
14
accountants of any subsidiary of the Guarantor or of any business
acquired by the Guarantor for which financial statements and financial
data are, or are required to be, included in the Registration
Statement), addressed to each selling Holder of Securities registered
thereunder and the underwriters, if any, in customary form and covering
matters of the type customarily covered in "comfort" letters in
connection with primary underwritten offerings; and
(vi) in the case of an Underwritten Offering, deliver such
documents and certificates as may be reasonably requested by the
Majority Holders or the Managing Underwriters, if any, including those
to evidence compliance with Section 4(k) and with any customary
conditions contained in the underwriting agreement or other agreement
entered into by the Guarantor and the Trust.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this paragraph (q)
shall be performed at (A) the effectiveness of such Registration Statement and
each post-effective amendment thereto; and (B) each closing under any
underwriting or similar agreement as and to the extent required thereunder.
(s) In the case of any Exchange Offer Registration Statement, the
Guarantor and the Trust shall, if requested by an Initial Purchaser, or by a
broker dealer that holds Securities that were acquired as a result of market
making or other trading activities:
(i) make reasonably available for inspection by the
requesting party, and any attorney, accountant or other agent retained
by the requesting party, all relevant financial and other records,
pertinent corporate documents and properties of the Guarantor and its
subsidiaries and the Trust; provided, however, that if any information
is designated in writing by the Company, in good faith, as confidential
at the time of delivery of such information, the Holders and such
attorney, accountant or other agent, shall agree to keep such
information confidential unless such disclosure is made in connection
with a court proceeding or is required by applicable law, regulation or
judicial process or at the request of any regulatory entity,
governmental agency or authority or self-regulatory agency of
securities exchange having or asserting regulatory powers over any such
recipient's activities, or such information is or becomes available to
the public generally or through a third party, other than by such
Holder, attorney, accountant or other agent, without an accompanying
obligation of confidentiality;
(ii) cause the Guarantor's officers, directors, employees,
accountants and auditors and the Trust's Administrative Trustees to
supply all relevant information reasonably requested by the requesting
party or any such attorney, accountant or agent in connection with any
such Registration Statement as is customary for similar due diligence
examinations; provided, however, that if any information is designated
in writing by the Company, in good faith, as confidential at the time
of delivery of such information, the Holders and such attorney,
accountant or other agent, shall agree to keep such information
confidential unless such disclosure is made in connection with a court
proceeding or is required by applicable law, regulation or judicial
process or at the request of
15
any regulatory entity, governmental agency or authority or
self-regulatory agency of securities exchange having or asserting
regulatory powers over any such recipient's activities, or such
information is or becomes available to the public generally or through
a third party, other than by such Holder, attorney, accountant or other
agent, without an accompanying obligation of confidentiality;
(iii) in the case of an Underwritten Offering, make such
representations and warranties to the requesting party, in form,
substance and scope as are customarily made by issuers to underwriters
in primary underwritten offerings and covering matters including, but
not limited to, those set forth in the Purchase Agreement;
(iv) in the case of an Underwritten Offering, obtain opinions
of counsel to the Guarantor and the Trust and updates thereof (which
counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the requesting party and its counsel, addressed to the
requesting party, covering such matters as are customarily covered in
opinions requested in underwritten offerings and such other matters as
may be reasonably requested by the requesting party or its counsel;
(v) in the case of an Underwritten Offering, obtain
"comfort" letters and updates thereof from the independent certified
public accountants of the Guarantor and the Trust (and, if necessary,
any other independent certified public accountants of any subsidiary of
the Guarantor or of any business acquired by the Guarantor for which
financial statements and financial data are, or are required to be,
included in the Registration Statement), addressed to the requesting
party, in customary form and covering matters of the type customarily
covered in "comfort" letters in connection with primary underwritten
offerings, or if requested by the requesting party or its counsel in
lieu of a "comfort" letter, an agreed-upon procedures letter under
Statement on Auditing Standards No. 35, covering matters requested by
the requesting party or its counsel; and
(vi) deliver such documents and certificates as may be
reasonably requested by the requesting party or its counsel, including
those to evidence compliance with Section 4(k) and with conditions
customarily contained in underwriting agreements.
The foregoing actions set forth in clauses (iii), (iv), (v), and (vi) of this
Section shall be performed at the close of the Registered Exchange Offer and the
effective date of any post-effective amendment to the Exchange Offer
Registration Statement.
(t) If a Registered Exchange Offer is to be consummated, upon delivery
of the Securities by Holders to the Trust or the Guarantor (or to such other
person as directed by the Trust or the Guarantor) in exchange for the New
Securities, the Trust or the Guarantor shall mark, or caused to be marked, on
the Securities so exchanged that such Securities are being cancelled in exchange
for the New Securities. Concurrently with such exchange of Securities, upon
delivery of corresponding Debentures to the Guarantor (or to such other person
as directed
16
by the Guarantor) in exchange for New Debentures, the Guarantor shall mark or
cause to be marked, on the Debentures so exchanged that such Debentures are
being cancelled in exchange for New Debentures. In no event shall the Securities
or Debentures be marked as paid.
(u) The Guarantor and the Trust shall each use its reasonable best
efforts if the Securities have been rated prior to the initial sale of such
Securities and continue to be rated immediately prior to the effective date of a
Registration Statement, to confirm such ratings will apply to the Securities or
the New Securities, as the case may be, immediately following the effective date
of such Registration Statement.
(v) In the event that any Broker-Dealer shall underwrite any Securities
or participate as a member of an underwriting syndicate or selling group or
"assist in the distribution" (within the meaning of the NASD Rules) thereof in
connection with an Underwritten Offering, whether as a Holder of such Securities
or as an underwriter, a placement or sales agent or a broker or dealer in
respect thereof, or otherwise, the Guarantor and the Trust shall assist such
Broker-Dealer in complying with the NASD Rules.
(w) The Guarantor and the Trust shall use its best efforts to take all
other steps necessary to effect the registration under the Act of the Securities
or the New Securities, as the case may be, covered by a Registration Statement.
5. Registration Expenses. The Guarantor shall bear all expenses
incurred in connection with the performance of its and the Trust's obligations
under Sections 2, 3 and 4 hereof and, in the event of any Shelf Registration
Statement in which any of the Initial Purchasers is named as a selling security
holder, will reimburse such Initial Purchasers for the reasonable fees and
disbursements of one firm or counsel (which shall initially be Sullivan &
Cromwell LLP, but which may be another nationally recognized law firm
experienced in securities matters designated by such Initial Purchasers) to act
as counsel for such Initial Purchasers in connection therewith, and, in the case
of any Exchange Offer Registration Statement at the time of filing of which any
Initial Purchasers holds an unsold allotment, will reimburse the Initial
Purchasers for the reasonable fees and disbursements of one firm or counsel
acting in connection therewith.
6. Indemnification and Contribution. (a) The Guarantor and the Trust,
jointly and severally, agree to indemnify and hold harmless each Holder of
Securities or New Securities, as the case may be, covered by any Registration
Statement, each Initial Purchaser and, with respect to any Prospectus delivery
as contemplated in Section 4(h) hereof, each Exchanging Dealer, the directors,
officers, employees, Affiliates and agents of each such Holder, Initial
Purchaser or Exchanging Dealer and each person who controls any such Holder,
Initial Purchaser or Exchanging Dealer within the meaning of either Section 15
of the Exchange Act or Section 20 of the Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement as originally filed or in any
amendment thereof, or in any preliminary Prospectus or the Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or
17
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein (in the case of any preliminary
Prospectus or the Prospectus, in the light of the circumstances under which they
were made) not misleading, and agrees to reimburse each such indemnified party,
as incurred, for any legal or other expenses reasonably incurred by it in
connection with investigating or defending any such loss, claim, damage,
liability, action; provided, however, that neither the Guarantor or the Trust
will be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission (x) made therein in reliance
upon and in conformity with written information furnished to the Guarantor by or
on behalf of the party claiming indemnification specifically for inclusion
therein or (y) contained in any free writing prospectus used by an indemnified
party without the prior written consent of the Guarantor; and provided further,
that the Guarantor and the Trust shall not be liable to any Holder (or director,
officer, employee, or agent of such Holder or any person controlling such
Holder) with respect to any preliminary prospectus to the extent that any such
loss, claim, damage or liability of such Holder results from the fact that such
Holder sold Securities to a person as to whom it shall be established that there
was not sent or given, at or prior to such sale, a copy of a later dated
prospectus (including a free writing prospectus), if the Guarantor or the Trust
had previously furnished copies thereof in sufficient quantity to such Holder
and sufficiently in advance of such sale to allow for distribution by the date
of such sale, and the loss, claim, damage or liability of such Holder Initial
Purchaser results from an untrue statement or alleged untrue statement or
omission or alleged omission of a material fact contained in or omitted from
such initial prospectus, which was identified in writing at such time to such
Holder and corrected in such later dated prospectus, and such correction would
have cured the defect giving rise to such loss, claim, damage or liability and
provided further, that the Guarantor and the Trust shall not be liable to any
Holder (or director, officer, employee, or agent of such Holder or any person
controlling such Holder) and this indemnity and any reimbursement agreement
shall not inure to the benefit of any Holder (or director, officer, employee, or
agent of such Holder or any person controlling such Holder) from whom the person
asserting any such loss, claim, damage or liability purchased Securities or New
Securities during a Deferral Period. This indemnity agreement shall be in
addition to any liability that the Guarantor and the Trust may otherwise have.
The Guarantor and the Trust also agree, jointly and severally, in the
case of Underwritten Offerings, to indemnify as provided in this Section 6(a) or
contribute as provided in Section 6(d) hereof to Losses of each underwriter, if
any, of Securities or New Securities, as the case may be, registered under a
Shelf Registration Statement, their directors, officers, employees, Affiliates
or agents and each person who controls such underwriter on substantially the
same basis as that of the indemnification of the Initial Purchasers and the
selling Holders provided in this Section 6(a) and shall, if requested by any
Holder, enter into an underwriting agreement reflecting such agreement, as
provided in Section 4(p) hereof.
(b) Each Holder of securities covered by a Registration Statement
(including each Initial Purchaser that is a Holder, in such capacity) severally
and not jointly agrees to indemnify and hold harmless the Guarantor, the Trust,
each of the Guarantor's directors, each of the Guarantor's officers and each of
the Trust's Administrative Trustees who signs such Registration Statement and
each person who controls the Guarantor or the Trust within the meaning of either
the Act or the Exchange Act, and to reimburse them for expenses, in each case
18
to the same extent as the foregoing indemnity and reimbursement agreement from
the Guarantor and the Trust to each such Holder, but only (i) with reference to
written information relating to such Holder furnished to the Guarantor or the
Trust by or on behalf of such Holder specifically for inclusion in the documents
referred to in the foregoing indemnity, (ii) with reference to any loss, claim,
damage or liability arising out of or based upon any untrue statement of a
material fact or omission to state a material fact or alleged untrue statement
or omission contained in a free writing prospectus used by such Holder without
the prior written consent of the Guarantor and (iii) with reference to any loss,
claim, damage or liability arising out of or based upon any untrue statement or
omission or alleged untrue statement contained in a prospectus that was used by
a Holder during a Deferral Period. This indemnity agreement will be in addition
to any liability that any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 6
or notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses; and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel (including
local counsel) of the indemnifying party's choice at the indemnifying party's
expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel,
other than local counsel if not appointed by the indemnifying party, retained by
the indemnified party or parties except as set forth below); provided, however,
that such counsel shall be satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel (including
local counsel) to represent the indemnified party in an action, the indemnified
party shall have the right to employ separate counsel (including local counsel),
and the indemnifying party shall bear the reasonable fees, costs and expenses of
not more than one such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest; (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties that are different from or additional to those available to the
indemnifying party; (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such action; or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
19
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section is unavailable to or insufficient to hold harmless an indemnified
party for any reason, then each applicable indemnifying party shall have a joint
and several obligation to contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending any loss, claim, liability, damage or
action) (collectively "Losses") to which such indemnified party may be subject
in such proportion as is appropriate to reflect the relative benefits received
by such indemnifying party, on the one hand, and such indemnified party, on the
other hand, from the sale of securities which resulted in such Losses; provided,
however, that in no case shall any Initial Purchaser be responsible, in the
aggregate, for any amount in excess of the net proceeds received by such Holder
from the sale of securities which resulted in such Losses. If the allocation
provided by the immediately preceding sentence is unavailable for any reason,
the indemnifying party and the indemnified party shall contribute in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of such indemnifying party, on the one hand, and such
indemnified party, on the other hand, in connection with the statements or
omissions which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Guarantor and the Trust shall be deemed
to be equal to the total net proceeds from the Initial Placement received by the
Trust (before deducting expenses) as set forth in the Final Memorandum. Relative
fault shall be determined by reference to, among other things, whether any
untrue or any alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information provided by the
indemnifying party, on the one hand, or by the indemnified party, on the other
hand, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The parties agree that it would not be just and equitable if
contribution were determined by pro rata allocation (even if the Holders were
treated as one entity for such purpose) or any other method of allocation which
does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section, each person who
controls a Holder within the meaning of either the Act or the Exchange Act and
each director, officer, employee and agent of such Holder shall have the same
rights to contribution as such Holder, and each person who controls the
Guarantor or the Trust within the meaning of either the Act or the Exchange Act,
each officer of the Guarantor or Administrative Trustee of the Trust who shall
have signed the Registration Statement and each director of the Guarantor shall
have the same rights to contribution as the Guarantor and the Trust, subject in
each case to the applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section will remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder or
the Guarantor, the Trust or any of the indemnified persons referred to in this
Section 6, and will survive the sale by a Holder of securities covered by a
Registration Statement.
7. Underwritten Registrations. (a) If any of the Securities or New
Securities, as the case may be, covered by any Shelf Registration Statement are
to be sold in an Underwritten Offering, the Managing Underwriters shall be
selected by the Majority Holders.
20
(b) No person may participate in any Underwritten Offering pursuant to
any Shelf Registration Statement, unless such person (i) agrees to sell such
person's Securities or New Securities, as the case may be, on the basis
reasonably provided in any underwriting arrangements approved by the persons
entitled hereunder to approve such arrangements; and (ii) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
8. Registration Defaults. If any of the following events shall occur,
then (x) the Guarantor agrees that it shall pay the amounts described below as
liquidated damages on the Debentures to the Holders thereof and (y) the Trust
agrees that it shall pay corresponding amounts as liquidated damages on the
then-outstanding Registrable Securities to the holders thereof (in each case,
the "Registration Default Damages"):
(a) if any Registration Statement required by this Agreement is not
filed with the Commission on or prior to the date specified for such filing in
this Agreement, then Registration Default Damages shall accrue on the Debentures
at a rate of 0.25% per annum of the liquidation amount of the then-outstanding
Registrable Securities until such filing occurs;
(b) if any Registration Statement required by this Agreement is not
declared effective by the Commission on or prior to the date by which reasonable
best efforts are to be used to cause such effectiveness under this Agreement,
then commencing on the day after such specified date, Registration Default
Damages shall accrue on the Debentures at a rate of 0.25% per annum of the
then-outstanding Registrable Securities until such Registration Statement is
declared effective; or
(c) if any Registration Statement required by this Agreement has been
declared effective but ceases to be effective at any time at which it is
required to be effective under this Agreement, then commencing on the day the
Registration Statement ceases to be effective, Registration Default Damages
shall accrue on the Debentures at a rate of 0.25% per annum of the
then-outstanding Registrable Securities until such Registration Statement
becomes effective or ceases to be required hereunder;
provided, however, that (1) upon the filing of the Registration Statement (in
the case of paragraph (a) above), (2) upon the effectiveness of the Registration
Statement (in the case of paragraph (b) above), or (3) upon the effectiveness of
the Registration Statement which had ceased to remain effective (in the case of
paragraph (c) above), Registration Default Damages shall cease to accrue. The
Registration Default Damages set forth in this Section 8 shall be the sole and
exclusive remedy available to holders of Debentures or Securities as a
consequence of the occurrence of any of the events described in paragraphs (a)
through (c) above.
9. No Inconsistent Agreements. Neither the Guarantor nor the Trust has
entered into, and each of the Guarantor and the Trust agrees not to enter into,
any agreement with respect to its securities that is inconsistent with the
rights granted to the Holders herein or that otherwise conflicts with the
provisions hereof.
21
10. Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, unless the Guarantor and the Trust have
obtained the written consent of the Holders of a majority in aggregate principal
amount of the then-outstanding Registrable Securities.
11. Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
facsimile or courier guaranteeing overnight or same-day delivery:
(a) if to a Holder, at the most current address given by such holder to
the Trust or the Guarantor in accordance with the provisions of this Section 11,
which address initially is, with respect to each Holder, the address of such
Holder maintained by the Registrar under the Trust Agreement;
(b) if to the Representatives, initially at the address or addresses
set forth in the Purchase Agreement; and
(c) if to the Guarantor or the Trust, initially at the addresses
therefor as set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given when received.
The Initial Purchasers, the Guarantor or the Trust by notice to the
other parties may designate additional or different addresses for subsequent
notices or communications.
12. Successors. This Agreement shall inure to the benefit of and be
binding upon the parties hereto, their respective successors and assigns,
including, without the need for an express assignment or any consent by the
Guarantor or the Trust thereto, subsequent Holders and the indemnified persons
referred to in Section 6 hereof. The Guarantor and the Trust each hereby agrees
to extend the benefits of this Agreement to any Holder as if an original party
hereto.
13. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
14. Headings. The section headings used herein are for convenience only
and shall not affect the construction hereof.
15. Applicable Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed in the State of New York. The parties hereto each
hereby waive any right to trial by jury in any action, proceeding or
counterclaim arising out of or relating to this Agreement.
16. Severability. In the event that any one of more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in
22
any respect for any reason, the validity, legality and enforceability of any
such provision in every other respect and of the remaining provisions hereof
shall not be in any way impaired or affected thereby, it being intended that all
of the rights and privileges of the parties shall be enforceable to the fullest
extent permitted by law.
17. Securities Held by the Guarantor and the Trust, etc. Whenever the
consent or approval of Holders of a specified percentage of principal amount of
Securities or New Securities is required hereunder, Securities or New
Securities, as applicable, held by the Guarantor, the Trust or their respective
Affiliates (other than subsequent Holders of Securities or New Securities if
such subsequent Holders are deemed to be Affiliates solely by reason of their
holdings of such Securities or New Securities) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
23
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Trust, the Guarantor and the several Initial Purchasers.
Very truly yours,
The Stanley Works
By: /s/ Craig A. Douglas
-------------------------------
Name: Craig A. Douglas
Title: Vice President and
Treasurer
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Stanley Works Capital Trust I
By: /s/ Craig A. Douglas
-------------------------------
Name: Craig A. Douglas
Title: Administrative Trustee
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The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
Citigroup Global Markets Inc.
Goldman, Sachs & Co.
UBS Securities LLC
By: Citigroup Global Markets Inc.
By /s/ Brian Bednarsky
------------------------------
Name: Brian Bednarsky
Title: Director
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For themselves and the other several Initial Purchasers named in Schedule I to
the Purchase Agreement.
24
ANNEX A
Each broker-dealer that receives new securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such new securities. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Act. This prospectus, as it may be amended or supplemented from
time to time, may be used by a broker-dealer in connection with resales of new
securities received in exchange for securities where such securities were
acquired by such broker-dealer as a result of market-making activities or other
trading activities. The Guarantor and the Trust have agreed that, starting on
the expiration date and ending on the close of business one year after the
expiration date, they will make this prospectus available to any broker-dealer
for use in connection with any such resale. See "Plan of Distribution".
A-1
ANNEX B
Each broker-dealer that receives new securities for its own account in
exchange for securities, where such securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such new securities. See "Plan of Distribution".
B-1
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives new securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such new securities. This
prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of new securities received in
exchange for securities where such securities were acquired as a result of
market-making activities or other trading activities. The Company and the Trust
have agreed that, starting on the expiration date and ending on the close of
business one year after the expiration date, it will make this prospectus, as
amended or supplemented, available to any broker-dealer for use in connection
with any such resale. In addition, until __________, ______, all dealers
effecting transactions in the new securities may be required to deliver a
prospectus.
Neither the Company nor the Trust will receive any proceeds from any
sale of new securities by broker-dealers. New securities received by
broker-dealers for their own account pursuant to the Exchange Offer may be sold
from time to time in one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the new securities or
a combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer and/or the purchasers of any such new
securities. Any broker-dealer that resales new securities that were received by
it for its own account pursuant to the Exchange Offer and any broker or dealer
that participates in a distribution of such new securities may be deemed to be
an "underwriter" within the meaning of the Act and any profit of any such resale
of new securities and any commissions or concessions received by any such
persons may be deemed to be underwriting compensation under the Act. The Letter
of Transmittal states that by acknowledging that it will deliver and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it is
an "underwriter" within the meaning of the Act.
For a period of one year after the expiration date, the Company and the
Trust will promptly send additional copies of this prospectus and any amendment
or supplement to this prospectus to any broker-dealer that requests such
documents in the Letter of Transmittal. The Company has agreed to pay all
expenses incident to the Exchange Offer (including, in some cases, the expenses
of one firm or counsel for the Initial Purchasers) and will indemnify the
holders of the securities (including any broker-dealers) against certain
liabilities, including liabilities under the Act.
[If applicable, add information required by Regulation S-K Items 507
and/or 508.] D-1
C-1
ANNEX D
Rider A
PLEASE FILL IN YOUR NAME AND ADDRESS BELOW IF YOU ARE A BROKER-DEALER AND WISH
TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name: ______________________________
Address: ______________________________
______________________________
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Rider B
If the undersigned is not a Broker-Dealer, the undersigned represents that it
acquired the New Securities in the ordinary course of its business, it is not
engaged in, and does not intend to engage in, a distribution of New Securities
and it has no arrangements or understandings with any person to participate in a
distribution of the New Securities. If the undersigned is a Broker-Dealer that
will receive New Securities for its own account in exchange for Securities, it
represents that the Securities to be exchange for New Securities were acquired
by it as a result of market-making activities or other trading activities and
acknowledges that it will deliver a prospectus in connection with any resale of
such New Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Act.
D-1
STANLEY
WORKS COMPLETES SALE OF ENHANCED TRUST
PREFERRED SECURITIES
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New
Britain, CT, November 22, 2005 –
The Stanley Works (NYSE: SWK) announced today
that it has completed the sale of $450 million of Enhanced Trust Preferred Securities. Net
proceeds are expected to be used toward the pending acquisitions of Facom Tools and
National Hardware.
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These
securities and underlying junior subordinated debt securities (collectively, the
“securities”) feature a 40-year term and an initial coupon rate of 5.902%, which
is fixed for 5 years, and can be redeemed after five years.
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The
securities have not been and may not be registered under the Securities Act of 1933, as
amended (the “Act”) and may not be offered or sold in the United States absent
registration or applicable exemption from such registration. The securities are being
offered in the United States only to qualified institutional buyers pursuant to Rule 144A
under the Act and outside the United States pursuant to Regulation S under the Act.
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This
press release does not constitute an offer to sell or the solicitation of an offer to buy
any of the securities.
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Contact:
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Gerry Gould, V. P. - Investor Relations
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(860) 827-3833 or ggould@stanleyworks.com
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