Exhibit 4(b)(iii)
EXHIBIT 4(B)(iii)
DECLARATION OF TRUST
OF
FLEET CAPITAL TRUST III
Dated as of November 1, 1996
TABLE OF CONTENTS
ARTICLE I DEFINITIONS Page
SECTION 1.1 Definitions 1
ARTICLE II ORGANIZATION
SECTION 2.1 Name 4
SECTION 2.2 Office 4
SECTION 2.3 Purpose 4
SECTION 2.4 Authority 4
SECTION 2.5 Title to Property of the Trust 4
SECTION 2.6 Powers of the Trustees 5
SECTION 2.7 Filing of Certificate of Trust 6
SECTION 2.8 Duration of Trust. 6
SECTION 2.9 Responsibilities of the Sponsor 6
SECTION 2.10 Declaration Binding on Securities Holders 7
ARTICLE III TRUSTEES
SECTION 3.1 Trustees 7
SECTION 3.2 Regular Trustees 7
SECTION 3.3 Delaware Trustee 8
SECTION 3.4 Institutional Trustee. 9
SECTION 3.5 Not Responsible for Recitals or Sufficiency of
Declaration. 9
ARTICLE IV LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES,
TRUSTEES OR OTHERS
SECTION 4.1 Exculpation 9
SECTION 4.2 Fiduciary Duty 9
SECTION 4.3 Indemnification 11
SECTION 4.4 Outside Businesses 15
ARTICLE V AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 Amendments 15
SECTION 5.2 Termination of Trust 15
SECTION 5.3 Governing Law 16
SECTION 5.4 Headings 16
SECTION 5.5 Successors and Assigns 16
SECTION 5.6 Partial Enforceability 16
SECTION 5.7 Counterparts 16
DECLARATION OF TRUST
OF
FLEET CAPITAL TRUST III
November 1, 1996
DECLARATION OF TRUST ("Declaration") dated and effective as of
November 1, 1996 by the Trustees (as defined herein), the Sponsor (as defined
herein), and by the holders, from time to time, of undivided beneficial
interests in the Trust to be issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor desire to establish a trust (the
"Trust") pursuant to the Delaware Business Trust Act for the purpose of either
(i) issuing and selling the Preferred Securities (as defined herein) and
investing the proceeds thereof in certain Debentures of the Debenture Issuer (as
both terms are defined herein) OR (ii) issuing and offering the Preferred
Securities in an Exchange (as defined herein) and investing the Parent Shares
received in certain Debentures; and
NOW, THEREFORE, it being the intention of the parties hereto that the Trust
constitute a business trust under the Business Trust Act and that this
Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the exclusive benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions.
Unless the context otherwise requires:
(a) capitalized terms used in this Declaration but not
defined in the preamble above have the respective
meanings assigned to them in this Section 1.1;
(b) a term defined anywhere in this Declaration has the
same meaning throughout;
(c) all references to "the Declaration" or "this
Declaration" are to this Declaration of Trust as
modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles and
Sections are to Articles and Sections of this
Declaration unless otherwise specified; and
(e) a reference to the singular includes the plural and
vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of the
Securities Act or any successor rule thereunder.
"Business Day" means any day other than a day on which banking institutions
in New York, New York are authorized or required by law to close.
"Business 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, or any
successor legislation.
"Commission" means the Securities and Exchange Commission.
"Common Security" means a security representing an undivided beneficial
interest in the assets of the Trust with such terms as may be set out in any
amendment to this Declaration.
"Company Indemnified Person" means (a) any Regular Trustee; (b) any
Affiliate of any Regular Trustee; (c) any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Regular Trustee;
or (d) any employee or agent of the Trust or its Affiliates.
"Covered Person" means (a) any officer, director, shareholder, partner,
member, representative, employee or agent of (i) the Trust or (ii) the Trust's
Affiliates and (b) any holder of Securities.
"Debenture Issuer" means the Parent in its capacity as the issuer of the
Debentures under the Indenture.
"Debentures" means the series of Debentures to be issued by the Debenture
Issuer and acquired by the Trust.
"Debenture Trustee" means The First National Bank of Chicago, as trustee
under the Indenture until a successor is appointed thereunder, and thereafter
means such successor trustee.
"Delaware Trustee" has the meaning set forth in Section 3.1.
"Exchange" means the exchange of Parent Shares for Preferred Securities,
which exchange may include a cash or cash tender offer component.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time or any successor legislation.
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"Fiduciary Indemnified Person" has the meaning set forth in Section 4.3(b).
"Indemnified Person" means a Company Indemnified Person or a Fiduciary
Indemnified Person.
"Indenture" means the indenture to be entered into between the Parent and
the Debenture Trustee and any indenture supplemental thereto pursuant to which
the Debentures are to be issued.
"Institutional Trustee" has the meaning set forth in Section 3.4.
"Parent" means Fleet Financial Group, Inc., a Rhode Island corporation, or
any successor entity in a merger.
"Parent Shares" means depositary shares representing a fraction of an
interest in a series of preferred stock, $1.00 par value, of the Parent which
are exchanged for Preferred Securities in an Exchange.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Preferred Security" means a security representing an undivided beneficial
interest in the assets of the Trust with such terms as may be set out in any
amendment to this Declaration.
"Regular Trustee" means any Trustee other than the Delaware Trustee and the
Institutional Trustee.
"Securities" means the Common Securities and the Preferred Securities.
"Securities Act" means the Securities Act of 1933, as amended from time to
time, or any successor legislation.
"Sponsor" means the Parent in its capacity as sponsor of the Trust.
"Trustee" or "Trustees" means each Person who has signed this Declaration
as a trustee, so long as such Person shall continue in office in accordance with
the terms hereof, and all other Persons who may from time to time be duly
appointed, qualified and serving as Trustees in accordance with the provisions
hereof, and references herein to a Trustee or the Trustees shall refer to such
Person or Persons solely in their capacity as trustees hereunder.
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ARTICLE II
ORGANIZATION
SECTION 2.1 Name.
The Trust created by this Declaration is named "Fleet Capital Trust III."
The activities of the Trust may be conducted under the name of the Trust or any
other name deemed advisable by the Regular Trustees.
SECTION 2.2 Office.
The address of the principal office of the Trust is c/o Fleet Financial
Group, Inc., One Federal Street, Boston, Massachusetts 02110. At any time, the
Regular Trustees may designate another principal office.
SECTION 2.3 Purpose.
The exclusive purposes and functions of the Trust are either (a) to issue
and sell the Securities and use the proceeds from such sale to acquire the
Debentures or (b) (i) to issue the Preferred Securities in exchange for validly
tendered Parent Shares and deliver such Parent Shares to the Debenture Issuer in
consideration for its deposit in the Trust of Debentures and (ii) to issue the
Common Securities to the Parent in exchange for cash and to invest the proceeds
thereof and in each case to engage in only those other activities necessary or
incidental thereto. The Trust shall not borrow money, issue debt or reinvest
proceeds derived from investments, pledge any of its assets, or otherwise
undertake (or permit to be undertaken) any activity that would cause the Trust
not to be classified for United States federal income tax purposes as a grantor
trust.
SECTION 2.4 Authority.
Subject to the limitations provided in this Declaration, the Regular
Trustees shall have exclusive and complete authority to carry out the purposes
of the Trust. An action taken by the Regular Trustees in accordance with their
powers shall constitute the act of and serve to bind the Trust. In dealing with
the Regular Trustees acting on behalf of the Trust, no person shall be required
to inquire into the authority of the Regular Trustees to bind the Trust. Persons
dealing with the Trust are entitled to rely conclusively on the power and
authority of the Regular Trustees as set forth in this Declaration.
SECTION 2.5 Title to Property of the Trust.
Legal title to all assets of the Trust shall be vested in the Trust.
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SECTION 2.6 Powers of the Trustees.
The Regular Trustees shall have the exclusive power and authority to cause
the Trust to engage in the following activities:
(a) to issue the Preferred Securities and the Common
Securities in accordance with this Declaration, in
connection with either the sale or the exchange of the
Preferred Securities; provided, however, that the Trust
may issue no more than one series of Preferred
Securities and no more than one series of Common
Securities, and, provided further, that there shall be
no interests in the Trust other than the Securities and
the issuance of the Securities shall be limited to the
simultaneous issuance of both Preferred Securities and
Common Securities;
(b) in connection with the issue and either sale or
exchange of the Preferred Securities, at the direction
of the Sponsor, to:
(i) execute and file with the Commission one or more
registration statements on Form S-3 or Form S-4
prepared by the Sponsor, including any and all
amendments thereto in relation to the Preferred
Securities;
(ii) execute and file any documents prepared by the
Sponsor, or take any acts as determined by the
Sponsor to be necessary in order to qualify or
register all or part of the Preferred Securities
in any State in which the Sponsor has determined
to qualify or register such Preferred Securities
for sale or exchange;
(iii) execute and file an application, prepared by the
Sponsor, to the New York Stock Exchange or any
other national stock exchange or the Nasdaq Stock
Market's National Market for listing or quotation
upon notice of issuance of any Preferred
Securities;
(iv) execute and file with the Commission a
registration statement on Form 8-A, including any
amendments thereto, prepared by the Sponsor
relating to the registration of the Preferred
Securities under Section 12(b) of the Exchange
Act;
(v) prepare, execute and file with the Commission an
Issuer Tender Offer Statement on Schedule 13E-3 or
Schedule 13E-4, as necessary, or any other
appropriate document or schedule, and any
amendments thereto;
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(vi) execute and enter into an underwriting agreement
and pricing agreement providing for the sale of
the Preferred Securities; and
(vii) execute and enter into one or more dealer manager
agreements, depositary agreements, exchange agent
agreements, information agent agreements or other
agreements as may be required in connection with
an Exchange or the tender offer component of such
Exchange.
(c) to employ or otherwise engage employees and agents (who
may be designated as officers with titles) and
managers, contractors, advisors, and consultants and
provide for reasonable compensation for such services;
(d) to incur expenses which are necessary or incidental to
carry out any of the purposes of this Declaration; and
(e) to execute all documents or instruments, perform all
duties and powers, and do all things for and on behalf
of the Trust in all matters necessary or incidental to
the foregoing.
SECTION 2.7 Filing of Certificate of Trust.
On or after the date of execution of this Declaration, the Trustees shall
cause the filing of the Certificate of Trust for the Trust in the form attached
hereto as Exhibit A with the Secretary of State of the State of Delaware.
SECTION 2.8 Duration of Trust.
The Trust, absent termination pursuant to the provisions of Section 5.2,
shall have existence for fifty-five (55) years from the date hereof.
SECTION 2.9 Responsibilities of the Sponsor.
In connection with the issue and sale of the Preferred Securities, the
Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) to prepare for filing by the Trust with the Commission
one or more registration statements on Form S-3 or Form
S-4 in relation to the Preferred Securities, including
any amendments thereto;
(b) to determine the States in which to take appropriate
action to qualify or register for sale or exchange of
all or part of the Preferred Securities and to do any
and all such acts, other than
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actions which must be taken by the Trust, and advise the
Trust of actions it must take, and prepare for execution and
filing any documents to be executed and filed by the Trust,
as the Sponsor deems necessary or advisable in order to
comply with the applicable laws of any such States;
(c) to prepare for filing by the Trust an application to
the New York Stock Exchange or any other national stock
exchange or the Nasdaq National Market for listing or
quotation upon notice of issuance of any Preferred
Securities;
(d) to prepare for filing by the Trust with the Commission
a registration statement on Form 8-A relating to the
registration of the class of Preferred Securities under
Section 12(b) of the Exchange Act, including any
amendments thereto;
(e) to prepare for filing by the Trust with the Commission
an Issuer Tender Offer Statement on Schedule 13E-3 or
Schedule 13E-4, as necessary, or any other appropriate
document or schedule and any amendments thereto;
(f) to negotiate the terms of an underwriting agreement and
pricing agreement providing for the sale of the
Preferred Securities; and
(g) to negotiate the terms of one or more dealer manager
agreements, depositary agreements, exchange agent
agreements, information agent agreements or other
agreements as may be required in connection with an
Exchange or the tender offer component of such
Exchange.
SECTION 2.10 Declaration Binding on Securities Holders.
Every Person by virtue of having become a holder of a Security or any
interest therein in accordance with the terms of this Declaration, shall be
deemed to have expressly assented and agreed to the terms of, and shall be bound
by, this Declaration.
ARTICLE III
TRUSTEES
SECTION 3.1 Trustees.
The number of Trustees initially shall be four (4), and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Sponsor. The Sponsor is entitled to appoint or
remove without cause any Trustee at any time; provided, however, that the number
of Trustees shall in no event be less than two (2); provided further that one
Trustee, in the case of a natural person, shall be a person who is a resident of
the
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State of Delaware or that, if not a natural person, is an entity which has its
principal place of business in the State of Delaware (the "Delaware Trustee");
provided further that there shall be at least one trustee who is an employee or
officer of, or is affiliated with the Parent (a "Regular Trustee").
SECTION 3.2 Regular Trustees.
The initial Regular Trustees shall be Eugene M. McQuade, Douglas L. Jacobs
and John R. Rodehorst.
(a) except as expressly set forth in this Declaration, any
power of the Regular Trustees may be exercised by, or
with the consent of, any one such Regular Trustee.
(b) unless otherwise determined by the Regular Trustees,
and except as otherwise required by the Business Trust
Act, any Regular Trustee is authorized to execute on
behalf of the Trust any documents which the Regular
Trustees have the power and authority to cause the
Trust to execute pursuant to Section 2.6; and
(c) a Regular 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
purposes of signing any documents which the Regular
Trustees have power and authority to cause the Trust to
execute pursuant to Section 2.6.
SECTION 3.3 Delaware Trustee.
The initial Delaware Trustee shall be First Chicago Delaware Inc.
Notwithstanding any other provision of this Declaration, the Delaware
Trustee shall not be entitled to exercise any of the powers, nor shall the
Delaware Trustee have any of the duties and responsibilities of the Regular
Trustees described in this Declaration. The Delaware Trustee shall be a Trustee
for the sole and limited purpose of fulfilling the requirements of Section 3807
of the Business Trust Act. Notwithstanding anything herein to the contrary, the
Delaware Trustee shall not be liable for the acts or omissions to act of the
Trust or of the Regular Trustees except such acts as the Delaware Trustee is
expressly obligated or authorized to undertake under this Declaration or the
Business Trust Act and except for the gross negligence or willful misconduct of
the Delaware Trustee.
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SECTION 3.4 Institutional Trustee.
Prior to the issuance of the Preferred Securities and Common Securities,
the Sponsor shall appoint another trustee (the "Institutional Trustee") meeting
the requirements of an eligible trustee of the Trust Indenture Act of 1939, as
amended, by the execution of an amendment to this Declaration executed by the
Regular Trustees, the Sponsor, the Institutional Trustee and the Delaware
Trustee.
SECTION 3.5 Not Responsible for Recitals or Sufficiency of Declaration.
The recitals contained in this Declaration shall be taken as the statements
of the Sponsor, and the Trustees do not assume any responsibility for their
correctness. The Trustees make no representations as to the value or condition
of the property of the Trust or any part thereof. The Trustees make no
representations as to the validity or sufficiency of this Declaration.
ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any
Covered Person for any loss, damage or claim incurred
by reason of any act or omission performed or omitted
by such Indemnified Person in good faith on behalf of
the Trust and in a manner such Indemnified Person
reasonably believed to be within the scope of the
authority conferred on such Indemnified Person by this
Declaration or by law, except that an Indemnified
Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's
negligence or willful misconduct with respect to such
acts or omissions; and
(b) An Indemnified Person shall be fully protected in
relying in good faith upon the records of the Trust and
upon such information, opinions, reports or statements
presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such
other Person's professional or expert competence and
who has been selected with reasonable care by or on
behalf of the Trust, including information, opinions,
reports or statements as to the value and amount of the
assets, liabilities, profits, losses, or any other
facts pertinent to the existence and amount of assets
from which distributions to holders of Securities might
properly be paid.
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SECTION 4.2 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified
Person has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to any
other Covered Person, an Indemnified Person acting
under this Declaration shall not be liable to the Trust
or to any other Covered Person for its good faith
reliance on the provisions of this Declaration. The
provisions of this Declaration, to the extent that they
restrict the duties and liabilities of an Indemnified
Person otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other
duties and liabilities of such Indemnified Person;
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises
between Covered Persons; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an
Indemnified Person shall act in a manner that is, or
provides terms that are, fair and reasonable to the
Trust or any holder of Securities, the Indemnified
Person shall resolve such conflict of interest, take
such action or provide such terms, considering in each
case the relative interest of each party (including its
own interest) to such conflict, agreement, transaction
or situation and the benefits and burdens relating to
such interests, any customary or accepted industry
practices, and any applicable generally accepted
accounting practices or principles. In the absence of
bad faith by the Indemnified Person, the resolution,
action or term so made, taken or provided by the
Indemnified Person shall not constitute a breach of
this Declaration or any other agreement contemplated
herein or of any duty or obligation of the Indemnified
Person at law or in equity or otherwise; and
(c) Whenever in this Declaration an Indemnified Person is
permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be
entitled to consider such interests and factors as
it desires, including its own interests, and shall
have no duty or obligation to give any
consideration to any interest of or factors
affecting the Trust or any other Person; or
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(ii) in its "good faith" or under another express
standard, the Indemnified Person shall act under
such express standard and shall not be subject to
any other or different standard imposed by this
Declaration or by applicable law.
SECTION 4.3 Indemnification.
(a) (i) The Debenture Issuer shall indemnify, to the full
extent permitted by law, any Company Indemnified
Person who was or is a party or is threatened to
be made a party to any threatened, pending or
completed action, suit or proceeding, whether
civil, criminal, administrative or investigative
(other than an action by or in the right of the
Trust) by reason of the fact that he is or was a
Company Indemnified Person against expenses
(including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably
incurred by him in connection with such action,
suit or proceeding if he acted in good faith and
in a manner he reasonably believed to be in or not
opposed to the best interests of the Trust, and,
with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a
presumption that the Company Indemnified Person
did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the
best interests of the Trust, and, with respect to
any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
(ii) The Debenture Issuer shall indemnify, to the full
extent permitted by law, any Company Indemnified
Person who was or is a party or is threatened to
be made a party to any threatened, pending or
completed action or suit by or in the right of the
Trust to procure a judgment in its favor by reason
of the fact that he is or was a Company
Indemnified Person against expenses (including
attorneys' fees) actually and reasonably incurred
by him in connection with the defense or
settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of
the Trust and except that no such indemnification
shall be made in respect of any claim, issue or
matter as to which such Company
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Indemnified Person shall have been adjudged to be
liable to the Trust unless and only to the extent that
the Court of Chancery of Delaware or the court in which
such action or suit was brought shall determine upon
application that, despite the adjudication of liability
but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity
for such expenses which such Court of Chancery or such
other court shall deem proper.
(iii) To the extent that a Company Indemnified Person
shall be successful on the merits or otherwise
(including dismissal of an action without
prejudice or the settlement of an action without
admission of liability) in defense of any action,
suit or proceeding referred to in paragraphs (i)
and (ii) of this Section 4.3(a), or in defense of
any claim, issue or matter therein, he shall be
indemnified, to the full extent permitted by law,
against expenses (including attorneys' fees)
actually and reasonably incurred by him in
connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii)
of this Section 4.3(a) (unless ordered by a court)
shall be made by the Debenture Issuer only as
authorized in the specific case upon a
determination that indemnification of the Company
Indemnified Person is proper in the circumstances
because he has met the applicable standard of
conduct set forth in paragraphs (i) and (ii).
Such determination shall be made (1) by the
Regular Trustees by a majority vote of a quorum
consisting of such Regular Trustees who were not
parties to such action, suit or proceeding, (2) if
such a quorum is not obtainable, or, even if
obtainable, if a quorum of disinterested Regular
Trustees so directs, by independent legal counsel
in a written opinion, or (3) by the Common
Security Holder of the Trust.
(v) Expenses (including attorneys' fees) incurred by a
Company Indemnified Person in defending a civil,
criminal, administrative or investigative action,
suit or proceeding referred to in paragraphs (i)
and (ii) of this Section 4.3(a) shall be paid by
the Debenture Issuer in advance of the final
disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of
such Company Indemnified Person to repay such
amount if it shall ultimately be determined that
he is not entitled to be indemnified by the
Debenture Issuer as
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authorized in this Section 4.3(a). Notwithstanding the
foregoing, no advance shall be made by the Debenture
Issuer if a determination is reasonably and promptly
made (i) by the Regular Trustees by a majority vote of
a quorum of disinterested Regular Trustees, (ii) if
such a quorum is not obtainable, or, even if
obtainable, if a quorum of disinterested Regular
Trustees so directs, by independent legal counsel in a
written opinion or (iii) the Common Security Holder of
the Trust, that, based upon the facts known to the
Regular Trustees, counsel or the Common Security Holder
at the time such determination is made, such Company
Indemnified Person acted in bad faith or in a manner
that such person did not believe to be in or not
opposed to the best interests of the Trust, or, with
respect to any criminal proceeding, that such Company
Indemnified Person believed or had reasonable cause to
believe his conduct was unlawful. In no event shall
any advance be made in instances where the Regular
Trustees, independent legal counsel or Common Security
Holder reasonably determine that such person
deliberately breached his duty to the Trust or its
Common or Preferred Security Holders.
(vi) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other
paragraphs of this Section 4.3(a) shall not be
deemed exclusive of any other rights to which
those seeking indemnification and advancement of
expenses may be entitled under any agreement, vote
of stockholders or disinterested directors of the
Debenture Issuer or Preferred Security Holders of
the Trust or otherwise, both as to action in his
official capacity and as to action in another
capacity while holding such office. All rights to
indemnification under this Section 4.3(a) shall be
deemed to be provided by a contract between the
Debenture Issuer and each Company Indemnified
Person who serves in such capacity at any time
while this Section 4.3(a) is in effect. Any
repeal or modification of this Section 4.3(a)
shall not affect any rights or obligations then
existing.
(vii) The Debenture Issuer or the Trust may purchase and
maintain insurance on behalf of any person who is
or was a Company Indemnified Person against any
liability asserted against him and incurred by him
in any such capacity, or arising out of his status
as such, whether or not the Debenture Issuer would
have the power to indemnify
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him against such liability under the provisions of this
Section 4.3(a).
(viii) For purposes of this Section 4.3(a), references to
"the Trust" shall include, in addition to the
resulting or surviving entity, any constituent
entity (including any constituent of a
constituent) absorbed in a consolidation or
merger, so that any person who is or was a
director, trustee, officer or employee of such
constituent entity, or is or was serving at the
request of such constituent entity as a director,
trustee, officer, employee or agent of another
entity, shall stand in the same position under the
provisions of this Section 4.3(a) with respect to
the resulting or surviving entity as he would have
with respect to such constituent entity if its
separate existence had continued.
(ix) The indemnification and advancement of expenses
provided by, or granted pursuant to, this Section
4.3(a) shall, unless otherwise provided when
authorized or ratified, continue as to a person
who has ceased to be a Company Indemnified Person
and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(b) The Debenture Issuer agrees to indemnify (i) the
Delaware Trustee, (ii) any Affiliate of the Delaware
Trustee, and (iii) any officers, directors,
shareholders, members, partners, employees,
representatives, nominees, custodians or agents of the
Delaware Trustee (each of the Persons in (i) through
(iii) being referred to as a "Fiduciary Indemnified
Person") for, and to hold each Fiduciary Indemnified
Person harmless against, any loss, liability or expense
incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder,
including the costs and expenses (including reasonable
legal fees and expenses) of defending itself against,
or investigating, any claim or liability in connection
with the exercise or performance of any of its powers
or duties hereunder. The obligation to indemnify as set
forth in this Section 4.3(b) shall survive the
termination of this Declaration.
SECTION 4.4 Outside Businesses.
Any Covered Person, the Sponsor and the Delaware Trustee may engage in or
possess an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the business of the
Trust, and the Trust and the holders of Securities shall have no rights by
virtue of this Declaration in and to such independent ventures or the income or
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profits derived therefrom and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. No Covered Person, the Sponsor or the Delaware Trustee shall be
obligated to present any particular investment or other opportunity to the Trust
even if such opportunity is of a character that, if presented to the Trust,
could be taken by the Trust, and any Covered Person, the Sponsor and the
Delaware Trustee shall have the right to take for its own account (individually
or as a partner or fiduciary) or to recommend to others any such particular
investment or other opportunity. Any Covered Person and the Delaware Trustee may
engage or be interested in any financial or other transaction with the Sponsor
or any Affiliate of the Sponsor, or may act as depositary for, trustee or agent
for or may act on any committee or body of holders of, securities or other
obligations of the Sponsor or its Affiliates.
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 Amendments.
At any time before the issue of any Securities, this Declaration may be
amended by, and only by, a written instrument executed by all of the Regular
Trustees and the Sponsor.
SECTION 5.2 Termination of Trust.
(a) The Trust shall terminate and be of no further force or
effect:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of dissolution or
its equivalent with respect to the Sponsor or the
revocation of the Sponsor's charter or of the
Trust's certificate of trust;
(iii) upon the entry of a decree of judicial dissolution
of the Sponsor, or the Trust; and
(iv) before the issue of any Securities, with the
consent of all of the Regular Trustees and the
Sponsor; and
(b) As soon as is practicable after the occurrence of an
event referred to in Section 5.2(a), the Trustees shall
file a certificate of cancellation with the Secretary
of State of the State of Delaware.
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SECTION 5.3 Governing Law.
This Declaration and the rights of the parties hereunder shall be governed
by and interpreted in accordance with the laws of the State of Delaware and all
rights and remedies shall be governed by such laws without regard to principles
of conflict of laws.
SECTION 5.4 Headings.
Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or any
provision hereof.
SECTION 5.5 Successors and Assigns.
Whenever in this Declaration any of the parties hereto is named or referred
to, the successors and assigns of such party shall be deemed to be included, and
all covenants and agreements in this Declaration by the Sponsor and the Trustees
shall bind and inure to the benefit of their respective successors and assigns,
whether so expressed.
SECTION 5.6 Partial Enforceability.
If any provision of this Declaration, or the application of such provision
to any Person or circumstance, shall be held invalid, the remainder of this
Declaration, or the application of such provision to persons or circumstances
other than those to which it is held invalid, shall not be affected thereby.
SECTION 5.7 Counterparts.
This Declaration may contain more than one counterpart of the signature
page and this Declaration 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. signature page.
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IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
/s/ Eugene M. McQuade
--------------------------------------------
Name: Eugene M. McQuade
Title: Trustee
/s/ Douglas Jacobs
--------------------------------------------
Name: Douglas Jacobs
Title: Trustee
/s/ John R. Rodehorst
--------------------------------------------
Name: John R. Rodehorst
Title: Trustee
FIRST CHICAGO DELAWARE INC.,
as Trustee
/s/ Steven M. Wagner
-------------------------------------------
Name: Steven M. Wagner
Title: Trustee
FLEET FINANCIAL GROUP, INC.,
as Sponsor
/s/ Eugene M. McQuade
------------------------------------------
Name: Eugene M. McQuade
Title: Executive Vice President and
Chief Financial Officer
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EXHIBIT A
CERTIFICATE OF TRUST
OF
FLEET CAPITAL TRUST III
This Certificate of Trust of Fleet Capital Trust III dated November 1,
1996, is hereby duly executed and filed by the undersigned, as trustees of
Fleet Capital Trust III, for the purpose of forming a business trust under
the Delaware Business Trust Act, 12 Del. C. Section 3801 et. seq. The
undersigned hereby certify as follows:
1. NAME. The name of the business trust formed hereby (the "Trust") is
"Fleet Capital Trust III."
2. DELAWARE TRUSTEE. The name and business address of the trustee of the
Trust which has its principal place of business in the State of Delaware, as
required by 12 Del. C. Sec. 3807 (a), is First Chicago Delaware Inc., a Delaware
corporation, 300 King Street, Wilmington, Delaware 19801.
3. EFFECTIVE DATE. This Certificate of Trust shall be effective as of
the date of its filing.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust at the
time of filing of this Certificate of Trust, have executed this Certificate of
Trust as of the date first above written.
/s/ Eugene M. McQuade
-------------------------------------------
Name: Eugene M. McQuade
Title: Trustee
/s/ Douglas Jacobs
-------------------------------------------
Name: Douglas Jacobs
Title: Trustee
/s/ John R. Rodehorst
-------------------------------------------
Name: John R. Rodehorst
Title: Trustee
[SIGNATURES CONTINUED ON NEXT PAGE]
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FIRST CHICAGO DELAWARE INC.,
as Trustee
/s/ Steven M. Wagner
-------------------------------------------
Name: Steven M. Wagner
Title: Trustee
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