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
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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
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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
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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).
6
"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.
9
"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
11
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;
17
(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
18
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
20
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.
22
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
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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
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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.
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(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)
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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
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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.
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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:
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(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
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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
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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.
69
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]
71
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.
A-1
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
A-2
[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
A-3
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.
A-4
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