EXHIBIT 4.5
AMENDED AND RESTATED DECLARATION
OF TRUST
BANKBOSTON CAPITAL TRUST III
Dated as of _______, 1997
TABLE OF CONTENTS
Page
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions . . . . . . . . . . . . . . . . . 2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application . . . . . . 9
SECTION 2.2 Lists of Holders of Securities . . . . . . . 9
SECTION 2.3 Reports by the Property Trustee . . . . . . . 10
SECTION 2.4 Periodic Reports to Property Trustee . . . . 10
SECTION 2.5 Evidence of Compliance with Conditions
Precedent . . . . . . . . . . . . . . . . . . 10
SECTION 2.6 Events of Default; Waiver . . . . . . . . . . 10
SECTION 2.7 Event of Default; Notice . . . . . . . . . . 12
ARTICLE III
ORGANIZATION
SECTION 3.1 Name . . . . . . . . . . . . . . . . . . . . 13
SECTION 3.2 Office . . . . . . . . . . . . . . . . . . . 13
SECTION 3.3 Purpose . . . . . . . . . . . . . . . . . . . 14
SECTION 3.4 Authority . . . . . . . . . . . . . . . . . . 14
SECTION 3.5 Title to Property of the Trust . . . . . . . 14
SECTION 3.6 Powers and Duties of the Administrative
Trustees . . . . . . . . . . . . . . . . . . 14
SECTION 3.7 Prohibition of Actions by the Trust and the
Trustees . . . . . . . . . . . . . . . . . . 18
SECTION 3.8 Powers and Duties of the Property Trustee . . 19
SECTION 3.9 Certain Duties and Responsibilities of the
Property Trustee . . . . . . . . . . . . . . 21
SECTION 3.10 Certain Rights of Property Trustee . . . . . 23
SECTION 3.11 Delaware Trustee . . . . . . . . . . . . . . 26
SECTION 3.12 Execution of Documents . . . . . . . . . . . 26
SECTION 3.13 Not Responsible for Recitals or Issuance of
Securities . . . . . . . . . . . . . . . . . 26
SECTION 3.14 Duration of Trust . . . . . . . . . . . . . . 26
SECTION 3.15 Mergers . . . . . . . . . . . . . . . . . . . 26
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities . . . 28
SECTION 4.2 Responsibilities of the Sponsor . . . . . . . 28
SECTION 4.3 Right to Proceed . . . . . . . . . . . . . . 29
ARTICLE V
TRUSTEES
i
SECTION 5.1 Number of Trustees: Appointment of Co-
Trustee . . . . . . . . . . . . . . . . . . . 29
SECTION 5.2 Delaware Trustee . . . . . . . . . . . . . . 30
SECTION 5.3 Property Trustee; Eligibility . . . . . . . . 30
SECTION 5.4 Certain Qualifications of Administrative
Trustees and Delaware Trustee Generally . . . 32
SECTION 5.5 Administrative Trustees . . . . . . . . . . . 32
SECTION 5.6 Delaware Trustee. . . . . . . . . . . . . . . 32
SECTION 5.7 Appointment, Removal and Resignation of
Trustees . . . . . . . . . . . . . . . . . . 33
Page
SECTION 5.8 Vacancies among Trustees . . . . . . . . . . 34
SECTION 5.9 Effect of Vacancies . . . . . . . . . . . . . 34
SECTION 5.10 Meetings . . . . . . . . . . . . . . . . . . 35
SECTION 5.11 Delegation of Power . . . . . . . . . . . . . 35
Section 5.12 Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . 36
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions . . . . . . . . . . . . . . . . 36
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities . . . 37
SECTION 7.2 Execution and Authentication . . . . . . . . 37
SECTION 7.3 Form and Dating . . . . . . . . . . . . . . . 38
SECTION 7.4 Registrar and Paying Agent . . . . . . . . . 40
SECTION 7.5 Paying Agent to Hold Money in Trust . . . . . 40
SECTION 7.6 Replacement Securities . . . . . . . . . . . 40
SECTION 7.7 Outstanding Capital Securities . . . . . . . 41
SECTION 7.8 Capital Securities in Treasury . . . . . . . 41
SECTION 7.9 Temporary Securities . . . . . . . . . . . . 41
SECTION 7.10 Cancellation . . . . . . . . . . . . . . . . 43
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1 Termination of Trust . . . . . . . . . . . . 43
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities . . . . . . . . . . . 44
SECTION 9.2 Transfer Procedures and Restrictions . . . . 45
SECTION 9.3 Deemed Security Holders . . . . . . . . . . . 49
SECTION 9.4 Book Entry Interests . . . . . . . . . . . . 49
SECTION 9.5 Notices to Clearing Agency . . . . . . . . . 50
SECTION 9.6 Appointment of Successor Clearing Agency . . 50
ii
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability . . . . . . . . . . . . . . . . . . 50
SECTION 10.2 Exculpation . . . . . . . . . . . . . . . . . 51
SECTION 10.3 Fiduciary Duty . . . . . . . . . . . . . . . 51
SECTION 10.4 Indemnification . . . . . . . . . . . . . . . 52
SECTION 10.5 Outside Businesses . . . . . . . . . . . . . 56
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year . . . . . . . . . . . . . . . . . 56
SECTION 11.2 Certain Accounting Matters . . . . . . . . . 56
SECTION 11.3 Banking . . . . . . . . . . . . . . . . . . . 57
SECTION 11.4 Withholding . . . . . . . . . . . . . . . . . 57
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments . . . . . . . . . . . . . . . . . 58
SECTION 12.2 Meetings of the Holders of Securities;
Action by Written Consent . . . . . . . . . . 60
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Property
Trustee . . . . . . . . . . . . . . . . . . . 62
SECTION 13.2 Representations and Warranties of Delaware
Trustee . . . . . . . . . . . . . . . . . . . 63
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices . . . . . . . . . . . . . . . . . . . 63
SECTION 14.2 Governing Law . . . . . . . . . . . . . . . . 65
SECTION 14.3 Intention of the Parties . . . . . . . . . . 65
SECTION 14.4 Headings . . . . . . . . . . . . . . . . . . 65
SECTION 14.5 Successors and Assigns . . . . . . . . . . . 65
SECTION 14.6 Partial Enforceability . . . . . . . . . . . 65
SECTION 14.7 Counterparts . . . . . . . . . . . . . . . . 65
ANNEX I TERMS OF SECURITIES . . . . . . . . . . . . . I-1
EXHIBIT A-1 FORM OF CAPITAL SECURITY CERTIFICATE . . . A1-1
EXHIBIT A-2 FORM OF COMMON SECURITY CERTIFICATE . . . . A2-1
EXHIBIT B SPECIMEN OF DEBENTURE . . . . . . . . . . . . B-1
EXHIBIT C PURCHASE AGREEMENT . . . . . . . . . . . . . C-1
iii
CROSS-REFERENCE TABLE*
Section of
Trust Indenture Act Section of
of 1939, as amended Declaration
310(a) . . . . . . . . . . . . . . . . .
310(c) . . . . . . . . . . . . . . . . .
311(c) . . . . . . . . . . . . . . . . .
312(a) . . . . . . . . . . . . . . . . .
312(b) . . . . . . . . . . . . . . . . .
313 . . . . . . . . . . . . . . . . . . .
314(a) . . . . . . . . . . . . . . . . .
314(b) . . . . . . . . . . . . . . . . .
314(c) . . . . . . . . . . . . . . . . .
314(d) . . . . . . . . . . . . . . . . .
314(f) . . . . . . . . . . . . . . . . .
315(a) . . . . . . . . . . . . . . . . .
315(c) . . . . . . . . . . . . . . . . .
315(d) . . . . . . . . . . . . . . . . .
316(a) . . . . . . . . . . . . . . . . .
316(c) . . . . . . . . . . . . . . . . .
_______________
* This Cross-Reference Table does not constitute part
of the Declaration and shall not affect the
interpretation of any of its terms or provisions.
iv
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
BANKBOSTON CAPITAL TRUST III
_______, 1997
AMENDED AND RESTATED DECLARATION OF TRUST
("Declaration") dated and effective as of _______, 1997, 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 established
BankBoston Capital Trust III (the "Trust"), a trust formed under
the Delaware Business Trust Act pursuant to a Declaration of
Trust dated as of May 14, 1997 (the "Original Declaration"), and
a Certificate of Trust filed with the Secretary of State of the
State of Delaware on May 14, 1997, for the sole purpose of
issuing and selling certain securities representing undivided
beneficial interests in the assets of the Trust and investing the
proceeds thereof in certain Debentures of the Debenture Issuer
(each as hereinafter defined);
WHEREAS, as of the date hereof, no interests in the
Trust have been issued;
WHEREAS, all of the Trustees and the Sponsor, by this
Declaration, amend and restate each and every term and provision
of the Original Declaration; and
NOW, THEREFORE, it being the intention of the parties
hereto to continue the Trust as a business trust under the
Business Trust Act, that the Original Declaration be amended and
restated in its entirety as provided herein 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 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
INTERPRETATION AND 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 as modified,
supplemented or amended from time to time;
(d) all references in this Declaration to Articles and
Sections and Annexes and Exhibits are to Articles and
Sections of and Annexes and Exhibits to this Declaration
unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the
same meaning when used in this Declaration unless otherwise
defined in this Declaration or unless the context otherwise
requires; and
(f) a reference to the singular includes the plural
and vice versa.
"Administrative Trustee" has the meaning set forth in
Section 5.1.
"Affiliate" has the same meaning as given to that term
in Rule 405 under the Securities Act or any successor rule
thereunder.
"Agent" means any Paying Agent or Registrar.
"Authorized Officer" of a Person means any other Person
that is authorized to legally bind such former Person.
"Book Entry Interest" means a beneficial interest in a
Global Certificate registered in the name of a Clearing Agency or
its nominee, ownership and transfers of which shall be maintained
and made through book entries by a Clearing Agency as described
in Section 9.4.
"Business Day" means any day other than a Saturday or a
Sunday or a day on which banking institutions in the City of New
2
York or Boston, Massachusetts are authorized or required by law
or executive order to close.
"Business Trust Act" means Chapter 38 of Title 12 of
the Delaware Code, 12 Del. Code SECTION3801 et seq., as it may be
amended from time to time, or any successor legislation.
"Capital Security Beneficial Owner" means, with respect
to a Book Entry Interest, a Person who is the beneficial owner of
such Book Entry Interest, as reflected on the books of the
Clearing Agency, or on the books of a Person maintaining an
account with such Clearing Agency (directly as a Clearing Agency
Participant or as an indirect participant, in each case in
accordance with the rules of such Clearing Agency).
"Capital Securities" has the meaning specified in
Section 7.1(a).
"Capital Securities Guarantee" means the guarantee
agreement dated as of _______, 1997 of Sponsor in respect of the
Capital Securities.
"Clearing Agency" means an organization registered as a
"Clearing Agency" pursuant to Section 17A of the Exchange Act
that is acting as depositary for the Capital Securities and in
whose name or in the name of a nominee of that organization shall
be registered a Global Certificate and which shall undertake to
effect book-entry transfers and pledges of the Capital
Securities.
"Clearing Agency Participant" means a broker, dealer,
bank, other financial institution or other Person for whom from
time to time the Clearing Agency effects book entry transfers and
pledges of securities deposited with the Clearing Agency.
"Closing Time" means the "Closing Time" under the
Purchase Agreement.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time, or any successor legislation.
"Commission" means the United States Securities and
Exchange Commission as from time to time constituted, or if any
time after the execution of this Declaration such Commission is
not existing and performing the duties now assigned to it under
applicable Federal securities laws, then the body performing such
duties at such time.
"Common Securities" has the meaning specified in
Section 7.1(a).
3
"Common Securities Guarantee" means the guarantee
agreement dated as of _______, 1997 of the Sponsor in respect of
the Common Securities.
"Company Indemnified Person" means (a) any
Administrative Trustee; (b) any Affiliate of any Administrative
Trustee; (c) any officers, directors, shareholders, members,
partners, employees, representatives or agents of any
Administrative Trustee; or (d) any officer, employee or agent of
the Trust or its Affiliates.
"Corporate Trust Office" means the office of the
Property Trustee at which the corporate trust business of the
Property Trustee shall, at any particular time, be principally
administered, which office at the date of execution of this
Agreement is located at 101 Barclay Street, 21 West, New York,
New York 10286.
"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 BankBoston Corporation, a
Massachusetts corporation, or any successor entity resulting from
any consolidation, amalgamation, merger or other business
combination, in its capacity as issuer of the Debentures under
the Indenture.
"Debenture Trustee" means The Bank of New York, a New
York banking corporation, as trustee under the Indenture until a
successor is appointed thereunder, and thereafter means such
successor trustee.
"Debentures" means the Floating Rate Junior
Subordinated Deferrable Interest Debentures due ______, 2027 of
the Debenture Issuer issued pursuant to the Indenture.
"Default" means an event, act or condition that with
notice of lapse of time, or both, would constitute an Event of
Default.
"Definitive Capital Securities" shall have the meaning
set forth in Section 7.3(c).
"Delaware Trustee" has the meaning set forth in Section
5.2.
"Direct Action" shall have the meaning set forth in
Section 3.8(e).
4
"Distribution" means a distribution payable to Holders
of Securities in accordance with Section 6.1.
"DTC" means The Depository Trust Company, the initial
Clearing Agency.
"Event of Default" in respect of the Securities means
an Event of Default (as defined in the Indenture) that has
occurred and is continuing in respect of the Debentures.
"Exchange Act" means the Securities Exchange Act of
1934, as amended from time to time, or any successor legislation.
"Federal Reserve Board" means the Board of Governors of
the Federal Reserve System.
"Fiduciary Indemnified Person" has the meaning set
forth in Section 10.4(b).
"Global Capital Securities" has the meaning set forth
in Section 7.3(a).
"Holder" means a Person in whose name a Security is
registered, such Person being a beneficial owner within the
meaning of the Business Trust Act.
"Indemnified Person" means a Company Indemnified Person
or a Fiduciary Indemnified Person.
"Indenture" means the Indenture dated as of _______,
1997, among the Debenture Issuer and the Debenture Trustee, as
amended from time to time.
"Investment Company" means an investment company as
defined in the Investment Company Act.
"Investment Company Act" means the Investment Company
Act of 1940, as amended from time to time, or any successor
legislation.
"Legal Action" has the meaning set forth in Section
3.6(g).
"Majority in liquidation amount" means, with respect to
the Trust Securities, except as provided in the terms of the
Capital Securities or by the Trust Indenture Act, Holder(s) of
outstanding Trust Securities voting together as a single class
or, as the context may require, Holders of outstanding Capital
Securities or Holders of outstanding Common Securities voting
separately as a class, who are the record owners of more than 50%
of the aggregate liquidation amount (including the stated amount
that would be paid on redemption, liquidation or otherwise, plus
5
accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Securities
of the relevant class.
"Ministerial Action" has the meaning set forth in Annex
I hereto.
"Officers' Certificate" means, with respect to any
Person, a certificate signed by the Chairman, a Vice Chairman,
the Chief Executive Officer, the President, a Vice President, the
Comptroller, the Executive Director, Global Treasury, the Clerk
or an Assistant Clerk, or the Secretary or an Assistant Secretary
of such Person. Any Officers' Certificate delivered with respect
to compliance with a condition or covenant provided for in this
Declaration shall include:
(a) a statement that each officer signing the
Certificate has read the covenant or condition and the
definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in
rendering the Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion,
is necessary to enable such officer to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether, in the opinion of each
such officer, such condition or covenant has been complied
with.
"Opinion of Counsel" shall mean a written opinion of
counsel, who may be an employee of the Sponsor, and who shall be
acceptable to the Property Trustee.
"Paying Agent" has the meaning specified in Section
7.4.
"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.
"Property Trustee" has the meaning set forth in Section
5.3(a).
"Property Trustee Account" has the meaning set forth in
Section 3.8(c).
6
"Purchase Agreement" means the Purchase Agreement for
the offering and sale of Capital Securities in the form of
Exhibit C.
"Quorum" means a majority of the Administrative
Trustees or, if there are only two Administrative Trustees, both
of them.
"Registrar" has the meaning set forth in Section 7.4.
"Regulatory Capital Event" means that the Debenture
Issuer shall have received an opinion of independent bank
regulatory counsel experienced in such matters to the effect
that, as a result of (a) any amendment to, or change (including
any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any rules,
guidelines or policies of the Federal Reserve Board or (b) any
official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which
amendment or change is effective or such pronouncement or
decision is announced on or after the date of original issuance
of the Capital Securities, the Capital Securities do not
constitute, or within 90 days of the date thereof, will not
constitute, Tier I Capital (or its then equivalent); provided,
however, that the distribution of the Capital Securities in
connection with the liquidation of the Trust by the Sponsor,
shall not in and of itself constitute a Regulatory Capital Event
unless such liquidation shall have occurred in connection with a
Tax Event.
"Related Party" means, with respect to the Sponsor, any
direct or indirect wholly owned subsidiary of the Sponsor or any
other Person that owns, directly or indirectly, 100% of the
outstanding voting securities of the Sponsor.
"Responsible Officer" means, with respect to the
Property Trustee, any officer within the Corporate Trust Office
of the Property Trustee, including any vice-president, any
assistant vice-president, any assistant secretary, any assistant
treasurer or other officer of the Corporate Trust Office of the
Property Trustee customarily performing functions similar to
those performed by any of the above designated officers 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.
"Rule 3a-5" means Rule 3a-5 under the Investment
Company Act, or any successor rule or regulation.
"Securities" or "Trust Securities" means the Common
Securities and the Capital Securities.
7
"Securities Act" means the Securities Act of 1933, as
amended from time to time, or any successor legislation.
"Securities Guarantees" means the Common Securities
Guarantee and the Capital Securities Guarantee.
"Special Event" means either a Regulatory Capital Event
or a Tax Event.
"Sponsor" means BankBoston Corporation, a Massachusetts
corporation, or any successor entity resulting from any merger,
consolidation, amalgamation or other business combination, in its
capacity as sponsor of the Trust.
"Super Majority" has the meaning set forth in Section
2.6(a)(ii).
"Tax Event" shall mean the receipt by the Trust and the
Debenture Issuer of an opinion of counsel experienced in such
matters to the effect that, as a result of any amendment to, or
change (including any announced prospective change) in, the laws
or any regulations thereunder of the United States or any
political subdivision or taxing authority thereof or therein or
as a result of any official administrative pronouncement or
judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or which
pronouncement or decision is announced on or after _______, 1997,
there is more than an insubstantial risk that (i) the Trust is,
or will be within 90 days of the date of such opinion, subject to
United States Federal income tax with respect to income received
or accrued on the Debentures, (ii) interest payable by the
Debenture Issuer on the Debentures is not, or within 90 days of
the date of such opinion, will not be, deductible by the
Debenture Issuer, in whole or in part, for United States Federal
income tax purposes, or (iii) the Trust is, or will be within 90
days of the date of such opinion, subject to more than a de
minimis amount of other taxes, duties or other governmental
charges.
"10% in liquidation amount" means, with respect to the
Trust Securities, except as provided in the terms of the Capital
Securities or by the Trust Indenture Act, Holder(s) of
outstanding Trust Securities voting together as a single class
or, as the context may require, Holders of outstanding Capital
Securities or Holders of outstanding Common Securities voting
separately as a class, who are the record owners of 10% or more
of the aggregate liquidation amount (including the stated amount
that would be paid on redemption, liquidation or otherwise, plus
accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Securities
of the relevant class.
8
"Treasury Regulations" means the income tax
regulations, including temporary and proposed regulations,
promulgated under the Code by the United States Treasury, as such
regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"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.
"Trust Indenture Act" means the Trust Indenture Act of
1939, as amended from time to time, or any successor legislation.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of
the Trust Indenture Act that are required to be part of this
Declaration and shall, to the extent applicable, be governed by
such provisions.
(b) The Property Trustee shall be the only Trustee
which is a Trustee for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this
Declaration limits, qualifies or conflicts with the duties
imposed by SECTIONSECTION 310 to 317, inclusive, of the Trust
Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to
this Declaration shall not affect the nature of the Securities as
equity securities representing undivided beneficial interests in
the assets of the Trust.
SECTION 2.2 Lists of Holders of Securities.
(a) Each of the Sponsor and the Administrative
Trustees on behalf of the Trust shall provide the Property
Trustee, unless the Property Trustee is Registrar for the
Securities (i) within 14 days after November 15 and May 15 of
each year, a list, in such form as the Property Trustee may
reasonably require, of the names and addresses of the Holders of
the Securities ("List of Holders") as of such record date,
provided that neither the Sponsor nor the Administrative Trustees
on behalf of
9
the Trust shall be obligated to provide such List of
Holders at any time the List of Holders does not differ from the
most recent List of Holders given to the Property Trustee by the
Sponsor and the Administrative Trustees on behalf of the Trust,
and (ii) at any other time, within 30 days of receipt by the
Trust of a written request for a List of Holders as of a date no
more than 14 days before such List of Holders is given to the
Property Trustee. The Property Trustee shall preserve, in as
current a form as is reasonably practicable, all information
contained in Lists of Holders given to it or which it receives in
the capacity as Paying Agent (if acting in such capacity),
provided that the Property Trustee may destroy any List of
Holders previously given to it on receipt of a new List of
Holders.
(b) The Property Trustee shall comply with its
obligations under SECTIONSECTION 311(a), 311(b) and 312(b) of the Trust
Indenture Act.
SECTION 2.3 Reports by the Property Trustee.
Within 60 days after December 15 of each year,
commencing December 15, 1997, the Property Trustee shall provide
to the Holders of the Capital Securities such reports as are
required by SECTION 313 of the Trust Indenture Act, if any, in the form
and in the manner provided by SECTION 313 of the Trust Indenture Act.
The Property Trustee shall also comply with the requirements of SECTION
313(d) of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Property Trustee.
Each of the Sponsor and the Administrative Trustees on
behalf of the Trust shall provide to the Property Trustee such
documents, reports and information as are required by SECTION 314 (if
any) and the compliance certificate required by SECTION 314 of the
Trust Indenture Act in the form, in the manner and at the times
required by SECTION 314 of the Trust Indenture Act.
SECTION 2.5 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 provided for
in this Declaration that relate to any of the matters set forth
in SECTION 314(c) of the Trust Indenture Act. Any certificate or
opinion required to be given by an officer pursuant to SECTION
314(c)(1) of the Trust Indenture Act may be given in the form of
an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver.
10
(a) The Holders of a Majority in liquidation amount
of Capital Securities may, by vote, on behalf of the Holders of
all of the Capital Securities, waive any past Event of Default in
respect of the Capital Securities and its consequences, provided
that, if the underlying Event of Default under the Indenture:
(i) is not waivable under the Indenture, the Event
of Default under the Declaration shall also not be waivable;
or
(ii) requires the consent or vote of greater than a
majority in aggregate principal amount of the holders of the
Debentures (a "Super Majority") to be waived under the
Indenture, the Event of Default under the Declaration may
only be waived by the vote of the Holders of at least the
proportion in aggregate liquidation amount of the Capital
Securities that the relevant Super Majority represents of
the aggregate principal amount of the Debentures
outstanding.
The foregoing provisions of this Section 2.6(a) shall be in lieu
of SECTION 316(a)(1)(B) of the Trust Indenture Act and such
SECTION 316(a)(1)(B) of the Trust Indenture Act is hereby expressly
excluded from this Declaration and the Securities, as permitted
by the Trust Indenture Act. Upon such waiver, any such default
shall cease to exist, and any Event of Default with respect to
the Capital Securities arising therefrom shall be deemed to have
been cured, for every purpose of this Declaration, but no such
waiver shall extend to any subsequent or other default or an
Event of Default with respect to the Capital Securities or impair
any right consequent thereon. Any waiver by the Holders of the
Capital Securities of an Event of Default with respect to the
Capital Securities shall also be deemed to constitute a waiver by
the Holders of the Common Securities of any such Event of Default
with respect to the Common Securities for all purposes of this
Declaration without any further act, vote, or consent of the
Holders of the Common Securities.
(b) The Holders of a Majority in liquidation amount
of the Common Securities may, by vote, on behalf of the Holders
of all of the Common Securities, waive any past Event of Default
with respect to the Common Securities and its consequences,
provided that, if the underlying Event of Default under the
Indenture:
(i) is not waivable under the Indenture, except
where the Holders of the Common Securities are deemed to
have waived such Event of Default under the Declaration as
provided below in this Section 2.6(b), the Event of Default
under the Declaration shall also not be waivable; or
11
(ii) requires the consent or vote of a Super Majority
to be waived, except where the Holders of the Common
Securities are deemed to have waived such Event of Default
under the Declaration as provided below in this Section
2.6(b), the Event of Default under the Declaration may only
be waived by the vote of the Holders of at least the
proportion in aggregate liquidation amount of the Common
Securities that the relevant Super Majority represents of
the aggregate principal amount of the Debentures
outstanding;
provided further, each Holder of Common Securities will be deemed
to have waived any such Event of Default and all Events of
Default with respect to the Common Securities and its
consequences if all Events of Default with respect to the Capital
Securities have been cured, waived or otherwise eliminated, and
until such Events of Default have been so cured, waived or
otherwise eliminated, the Property Trustee will be deemed to be
acting solely on behalf of the Holders of the Capital Securities
and only the Holders of the Capital Securities will have the
right to direct the Property Trustee in accordance with the terms
of the Securities. The foregoing provisions of this Section
2.6(b) shall be in lieu of SECTIONS 316(a)(1)(A) and 316(a)(1)(B) of
the Trust Indenture Act and such SECTIONS 316(a)(1)(A) and 316(a)(1)(B)
of the Trust Indenture Act are hereby expressly excluded from
this Declaration and the Securities, as permitted by the Trust
Indenture Act. Subject to the foregoing provisions of this
Section 2.6(b), upon such waiver, any such default shall cease to
exist and any Event of Default with respect to the Common
Securities arising therefrom shall be deemed to have been cured
for every purpose of this Declaration, but no such waiver shall
extend to any subsequent or other default or Event of Default
with respect to the Common Securities or impair any right
consequent thereon.
(c) A waiver of an Event of Default under the
Indenture by the Property Trustee, at the direction of the
Holders of the Capital Securities, constitutes a waiver of the
corresponding Event of Default under this Declaration. The
foregoing provisions of this Section 2.6(c) shall be in lieu of
SECTION 316(a)(1)(B) of the Trust Indenture Act and such
SECTION 316(a)(1)(B) of the Trust Indenture Act is hereby expressly
excluded from this Declaration and the Securities, as permitted by
the Trust Indenture Act.
SECTION 2.7 Event of Default; Notice.
(a) The Property Trustee shall, within 90 days after
the occurrence of an Event of Default, transmit by mail, first
class postage prepaid, to the Holders of the Securities, notices
of all defaults with respect to the Securities actually known to
a Responsible Officer of the Property Trustee, unless such
defaults have been cured before the giving of such notice (the
term "defaults" for the purposes of this Section 2.7(a) being
hereby defined to be an Event of Default as defined in the Indenture
12
not including any periods of grace provided for therein and irrespective of
the giving of any notice provided therein); provided that, except for a
default in the payment of principal of (or premium, if any) or interest on
any of the Debentures, the Property Trustee shall be protected in
withholding such notice if and so long as a Responsible Officer of the
Property Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders of the Securities.
(b) The Property Trustee shall not be deemed to have
knowledge of any default except:
(i) a default under Sections 5.01(a) and 5.01(b) of
the Indenture; or
(ii) any default as to which the Property Trustee
shall have received written notice or of which a Responsible
Officer of the Property Trustee charged with the
administration of the Declaration shall have actual
knowledge.
(c) Within five Business Days after the occurrence
of any Event of Default actually known to a Responsible Officer
of the Property Trustee, the Property Trustee shall transmit
notice of such Event of Default to the holders of the Capital
Securities, the Administrative Trustees and the Sponsor, unless
such Event of Default shall have been cured or waived. The
Sponsor and the Administrative Trustees shall file annually with
the Property Trustee a certification as to whether or not they
are in compliance with all the conditions and covenants
applicable to them under this Declaration.
ARTICLE III
ORGANIZATION
SECTION 3.1 Name.
The Trust is named "BankBoston Capital Trust III" as
such name may be modified from time to time by the Administrative
Trustees following written notice to the Holders of Securities.
The Trust's activities may be conducted under the name of the
Trust or any other name deemed advisable by the Administrative
Trustees.
SECTION 3.2 Office.
The address of the principal office of the Trust is c/o
BankBoston Corporation, P.O. Box 2016, Boston, Massachusetts
02106-2016. On ten Business Days written notice to the Holders
of Securities, the Administrative Trustees may designate another
principal office.
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SECTION 3.3 Purpose.
The exclusive purposes and functions of the Trust are
(a) to issue and sell Securities, (b) use the proceeds from the
sale of the Securities to acquire the Debentures, and (c) except
as otherwise limited herein, to engage in only those other
activities necessary, advisable or incidental thereto. The Trust
shall not borrow money, issue debt or reinvest proceeds derived
from investments, mortgage or 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 3.4 Authority.
Subject to the limitations provided in this Declaration
and to the specific duties of the Property Trustee, the
Administrative Trustees shall have exclusive and complete
authority to carry out the purposes of the Trust. An action
taken by the Administrative Trustees in accordance with their
powers shall constitute the act of and serve to bind the Trust
and an action taken by the Property Trustee on behalf of the
Trust in accordance with its powers shall constitute the act of
and serve to bind the Trust. In dealing with the Trustees acting
on behalf of the Trust, no person shall be required to inquire
into the authority of the Trustees to bind the Trust. Persons
dealing with the Trust are entitled to rely conclusively on the
power and authority of the Trustees as set forth in this
Declaration.
SECTION 3.5 Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the
Debentures and the Property Trustee Account or as otherwise
provided in this Declaration, legal title to all assets of the
Trust shall be vested in the Trust. The Holders shall not have
legal title to any part of the assets of the Trust, but shall
have an undivided beneficial interest in the assets of the Trust.
SECTION 3.6 Powers and Duties of the Administrative
Trustees.
The Administrative Trustees shall have the exclusive
power, duty and authority to cause the Trust to engage in the
following activities:
(a) to issue and sell the Capital Securities and the
Common Securities in accordance with this Declaration; provided,
however, that (i) the Trust may issue no more than one series of
Capital Securities and no more than one series of Common
Securities, (ii) there shall be no interests in the Trust other
than the Securities, and (iii) the issuance of Securities shall be
14
limited to a simultaneous issuance of both Capital Securities
and Common Securities at any Closing Time,
(b) in connection with the issue and sale of the
Capital Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission the
registration statement on Form S-3 prepared by the Sponsor,
including any amendments thereto, pertaining to the Capital
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
Capital Securities in any State in which the Sponsor has
determined to qualify or register such Capital Securities
for sale;
(iii) at the direction of the Sponsor, 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 of the Capital Securities;
(iv) execute and deliver letters, documents, or
instruments with DTC and other Clearing Agencies relating to
the Capital Securities;
(v) if required, 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 Capital Securities under Section
12(b) or 12(g) of the Exchange Act;
(vi) execute and enter into the Purchase Agreement
providing for the sale of the Capital Securities; and
(vii) execute and file any agreement, certificate or
other document which such Administrative Trustee deems
necessary or appropriate in connection with the issuance and
sale of the Capital Securities;
(c) to acquire the Debentures with the proceeds of
the sale of the Capital Securities and the Common Securities;
provided, however, that the Administrative Trustees shall cause
legal title to the Debentures to be held of record in the name of
the Property Trustee for the benefit of the Holders of the
Capital Securities and the Holders of Common Securities;
(d) to cause the Trust to enter into such agreements
and arrangements as may be necessary or desirable in connection
with the sale of Capital Securities to the underwriters thereof
15
and the consummation thereof, and to take all action, and
exercise all discretion, as may be necessary or desirable in
connection with the consummation thereof;
(e) to give the Sponsor and the Property Trustee
prompt written notice of the occurrence of a Special Event;
(f) to establish a record date with respect to all
actions to be taken hereunder that require a record date be
established, including and with respect to, for the purposes of
SECTION316(c) of the Trust Indenture Act, Distributions, voting rights,
redemptions and exchanges, and to issue relevant notices to the
Holders of Capital Securities and Holders of Common Securities as
to such actions and applicable record dates;
(g) to take all actions and perform such duties as
may be required of the Administrative Trustees pursuant to the
terms of the Securities;
(h) 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 3.8(e), the Property Trustee has the exclusive power
to bring such Legal Action;
(i) 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;
(j) to cause the Trust to comply with the Trust's
obligations under the Trust Indenture Act;
(k) to give the certificate required by SECTION 314(a)(4)
of the Trust Indenture Act to the Property Trustee, which
certificate may be executed by any Administrative Trustee;
(l) to incur expenses that are necessary or
incidental to carry out any of the purposes of the Trust;
(m) to act as, or appoint another Person to act as,
Registrar for the Securities or to appoint a Paying Agent for the
Securities as provided in Section 7.4 except for such time as
such power to appoint a Paying Agent is vested in the Property
Trustee;
(n) to give prompt written notice to the Property
Trustee and to Holders of the Securities of any notice received
from the Debenture Issuer of its election to defer payments of
interest on the Debentures by extending the interest payment
period under the Indenture;
16
(o) 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;
(p) 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 business 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
Capital Securities or to enable the Trust to effect the purposes
for which the Trust was created;
(q) to take any action, not inconsistent with this
Declaration or with applicable law, that the Administrative
Trustees determine in their discretion to be necessary or
desirable in carrying out the activities of the Trust as set out
in this Section 3.6, including, but not limited to:
(i) causing the Trust not to be deemed to be an
Investment Company required to be registered under the
Investment Company Act;
(ii) causing the Trust to be classified for United
States Federal income tax purposes as a grantor trust; and
(iii) cooperating with the Debenture Issuer to ensure
that the Debentures will be treated as indebtedness of the
Debenture Issuer for United States Federal income tax
purposes; and
(r) 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.
The Administrative Trustees must exercise the powers
set forth in this Section 3.6 in a manner that is consistent with
the purposes and functions of the Trust set out in Section 3.3,
and the Administrative Trustees shall not take any action that is
inconsistent with the purposes and functions of the Trust set
forth in Section 3.3.
Subject to this Section 3.6, the Administrative
Trustees shall have none of the powers or the authority of the
Property Trustee set forth in Section 3.8.
Any expenses incurred by the Administrative Trustees
pursuant to this Section 3.6 shall be reimbursed by the Debenture
Issuer.
17
SECTION 3.7 Prohibition of Actions by the Trust and the
Trustees.
(a) The Trust shall not, and the Trustees (including
the Property Trustee) shall not, engage in any activity other
than as required or authorized by this Declaration. The Trust
shall not:
(i) invest any proceeds received by the Trust from
holding the Debentures, but shall distribute all such
proceeds to Holders of Securities pursuant to the terms of
this Declaration and of the Securities;
(ii) acquire any assets other than as expressly
provided herein;
(iii) possess Trust property for other than a Trust
purpose;
(iv) make any loans or incur any indebtedness other
than loans represented by the Debentures;
(v) possess any power or otherwise act in such a way
as to vary the Trust assets or the terms of the Securities
in any way whatsoever;
(vi) issue any securities or other evidences of
beneficial ownership of, or beneficial interest in, the
Trust other than the Securities; or
(vii) other than as provided in this Declaration or
Annex I, (A) direct the time, method and place of conducting
any proceeding with respect to any remedy available to the
Debenture Trustee, or exercising any trust or power
conferred upon the Debenture Trustee with respect to the
Debentures, (B) waive any past default that is waivable
under the Indenture, (C) exercise any right to rescind or
annul any declaration that the principal of all the
Debentures shall be due and payable, or (D) consent to any
amendment, modification or termination of the Indenture or
the Debentures where such consent shall be required unless
the Trust shall have received an opinion of a nationally
recognized independent tax counsel experienced in such
matters to the effect that such modification will not cause
more than an insubstantial risk that for United States
Federal income tax purposes the Trust will not be classified
as a grantor trust.
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SECTION 3.8 Powers and Duties of the Property Trustee.
(a) The legal title to the Debentures shall be owned
by and held of record in the name of the Property Trustee in
trust for the benefit of the Holders of the Securities. The
right, title and interest of the Property Trustee to the
Debentures shall vest automatically in each Person who may
hereafter be appointed as Property Trustee in accordance with
Section 5.7. Such vesting and cessation of title shall be
effective whether or not conveyancing documents with regard to
the Debentures have been executed and delivered.
(b) The Property Trustee shall not transfer its
right, title and interest in the Debentures to the Administrative
Trustees or to the Delaware Trustee (if the Property Trustee does
not also act as Delaware Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest
bearing trust account (the "Property Trustee Account") in
the name of and under the exclusive control of the Property
Trustee on behalf of the Holders of the Securities and, upon
the receipt of payments of funds made in respect of the
Debentures held by the Property Trustee, deposit such funds
into the Property Trustee Account and make payments to the
Holders of the Capital Securities and Holders of the Common
Securities from the Property Trustee Account in accordance
with Section 6.1. Funds in the Property Trustee Account
shall be held uninvested until disbursed in accordance with
this Declaration. The Property Trustee Account shall be an
account that is maintained with a banking institution the
rating on whose long-term unsecured indebtedness is at least
equal to the rating assigned to the Capital Securities by a
"nationally recognized statistical rating organization", as
that term is defined for purposes of Rule 436(g)(2) under
the Securities Act;
(ii) engage in such ministerial activities as shall
be necessary or appropriate to effect the redemption of the
Capital Securities and the Common Securities to the extent
the Debentures are redeemed or mature; and
(iii) upon written notice of distribution issued by
the Administrative Trustees in accordance with the terms of
the Securities, engage in such ministerial activities as
shall be necessary or appropriate to effect the distribution
of the Debentures to Holders of Securities upon the
occurrence of certain events.
19
(d) The Property Trustee shall take all actions and
perform such duties as may be specifically required of the
Property Trustee pursuant to the terms of the Securities.
(e) Subject to Section 3.9(a), the Property Trustee
shall take any Legal Action which arises out of or in connection
with an Event of Default of which a Responsible Officer of the
Property Trustee has actual knowledge or the Property Trustee's
duties and obligations under this Declaration or the Trust
Indenture Act and if such Property Trustee shall have failed to
take such Legal Action, the Holders of the Capital Securities may
take such Legal Action, to the same extent as if such Holders of
Capital Securities held an aggregate principal amount of
Debentures equal to the aggregate liquidation amount of such
Capital Securities, without first proceeding against the Property
Trustee or the Trust; provided however, that if an Event of
Default has occurred and is continuing and such event is
attributable to the failure of the Debenture Issuer to pay the
principal of or premium, if any, or interest on the Debentures on
the date such principal, premium, if any, or interest is
otherwise payable (or in the case of redemption, on the
redemption date), then a Holder of Capital Securities may
directly institute a proceeding for enforcement of payment to
such Holder of the principal of or premium, if any, or interest
on the Debentures having a principal amount equal to the
aggregate liquidation amount of the Capital Securities of such
Holder (a "Direct Action") on or after the respective due date
specified in the Debentures. In connection with such Direct
Action, the rights of the Holders of the Common Securities will
be subrogated to the rights of such Holder of Capital Securities
to the extent of any payment made by the Debenture Issuer to such
Holder of Capital Securities in such Direct Action. Except as
provided in the preceding sentences, the Holders of Capital
Securities will not be able to exercise directly any other remedy
available to the holders of the Debentures.
(f) The Property Trustee shall not resign as a
Trustee unless either:
(i) the Trust has been completely liquidated and the
proceeds of the liquidation distributed to the Holders of
Securities pursuant to the terms of the Securities; or
(ii) a Successor Property Trustee has been appointed
and has accepted that appointment in accordance with Section
5.7.
(g) The Property Trustee shall have the legal power
to exercise all of the rights, powers and privileges of a holder
of Debentures under the Indenture and, if an Event of Default
actually known to a Responsible Officer of the Property Trustee
occurs and is continuing, the Property Trustee shall, for the
20
benefit of Holders of the Securities, enforce its rights as
holder of the Debentures subject to the rights of the Holders
pursuant to the terms of such Securities.
(h) The Property Trustee shall be authorized to
undertake any actions set forth in SECTION 317(a) of the Trust
Indenture Act.
(i) For such time as the Property Trustee is the
Paying Agent, the Property Trustee may authorize one or more
Persons to act as additional Paying Agents and to pay
Distributions, redemption payments or liquidation payments on
behalf of the Trust with respect to all securities and any such
Paying Agent shall comply with SECTION 317(b) of the Trust Indenture
Act. Any such additional Paying Agent may be removed by the
Property Trustee at any time the Property Trustee remains as
Paying Agent and a successor Paying Agent or additional Paying
Agents may be (but are not required to be) appointed at any time
by the Property Trustee.
(j) Subject to this Section 3.8, the Property
Trustee shall have none of the duties, liabilities, powers or the
authority of the Administrative Trustees set forth in Section
3.6.
The Property Trustee must exercise the powers set forth
in this Section 3.8 in a manner that is consistent with the
purposes and functions of the Trust set out in Section 3.3, and
the Property Trustee shall not take any action that is
inconsistent with the purposes and functions of the Trust set out
in Section 3.3.
SECTION 3.9 Certain Duties and Responsibilities of the
Property Trustee.
(a) The Property Trustee, before the occurrence of
any Event of Default and after the curing of all Trust Events of
Default that may have occurred, shall undertake to perform only
such duties as are specifically set forth in this Declaration and
in the Securities and no implied covenants shall be read into
this Declaration against the Property Trustee. In case an Event
of Default has occurred (that has not been cured or waived
pursuant to Section 2.6) of which a Responsible Officer of the
Property Trustee has actual knowledge, the Property Trustee shall
exercise such of the rights and powers vested in it by this
Declaration, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(b) No provision of this Declaration shall be
construed to relieve the Property Trustee from liability for its own
21
negligent action, its own negligent failure to act, or its
own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default
and after the curing or waiving of all such Events of
Default that may have occurred:
(A) the duties and obligations of the Property
Trustee shall be determined solely by the express
provisions of this Declaration and in the Securities
and the Property Trustee shall not be liable except for
the performance of such duties and obligations as are
specifically set forth in this Declaration and in the
Securities, and no implied covenants or obligations
shall be read into this Declaration against the
Property Trustee; and
(B) in the absence of bad faith on the part of
the Property Trustee, the Property Trustee may
conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein,
upon any certificates or opinions furnished to the
Property Trustee and conforming to the requirements of
this Declaration; provided, however, that in the case
of any such certificates or opinions that by any
provision hereof are specifically required to be
furnished to the Property Trustee, the Property Trustee
shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this
Declaration;
(ii) the Property Trustee shall not be liable for any
error of judgment made in good faith by a Responsible
Officer of the Property Trustee, unless it shall be proved
that the Property Trustee was negligent in ascertaining the
pertinent facts;
(iii) 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
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 Declaration;
(iv) no provision of this Declaration shall require
the Property Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any
of its rights or powers, if it shall have reasonable grounds
for believing that the repayment of such funds or liability
is not reasonably assured to it under the terms of this
Decla-
22
ration or indemnity reasonably satisfactory to the
Property Trustee against such risk or liability is not
reasonably assured to it;
(v) the Property Trustee's sole duty with respect to
the custody, safe keeping and physical preservation of the
Debentures and the Property Trustee 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 limitations on liability
afforded to the Property Trustee under this Declaration and
the Trust Indenture Act;
(vi) the Property Trustee shall have no duty or
liability for or with respect to the value, genuineness,
existence or sufficiency of the Debentures or the payment of
any taxes or assessments levied thereon or in connection
therewith;
(vii) the Property Trustee shall not be liable for any
interest on any money received by it except as it may
otherwise agree in writing with the Sponsor. Money held by
the Property Trustee need not be segregated from other funds
held by it except in relation to the Property Trustee
Account maintained by the Property Trustee pursuant to
Section 3.8(c)(i) and except to the extent otherwise
required by law; and
(viii) the Property Trustee shall not be responsible
for monitoring the compliance by the Administrative Trustees
or the Sponsor with their respective duties under this
Declaration, nor shall the Property Trustee be liable for
any default or misconduct of the Administrative Trustees or
the Sponsor.
SECTION 3.10 Certain Rights of Property Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may conclusively rely and
shall be fully protected in acting or refraining from acting
upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to
have been signed, sent or presented by the proper party or
parties;
(ii) any direction or act of the Sponsor or the
Administrative Trustees contemplated by this Declaration may
be sufficiently evidenced by an Officers' Certificate;
23
(iii) whenever in the administration of this
Declaration, the Property Trustee shall deem it desirable
that a matter be proved or established before taking,
suffering or omitting any action hereunder, the Property
Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part,
request and conclusively rely upon an Officers' Certificate
which, upon receipt of such request, shall be promptly
delivered by the Sponsor or the Administrative Trustees;
(iv) the Property Trustee shall have no duty to see
to any recording, filing or registration of any instrument
(including any financing or continuation statement or any
filing under tax or securities laws) or any rerecording,
refiling or registration thereof;
(v) the Property Trustee may consult with counsel or
other experts of its selection and the advice or opinion of
such counsel and experts with respect to legal matters or
advice within the scope of such experts' area of expertise
shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with such advice
or opinion, such counsel may be counsel to the Sponsor or
any of its Affiliates, and may include any of its employees.
The Property Trustee shall have the right at any time to
seek instructions concerning the administration of this
Declaration from any court of competent jurisdiction;
(vi) the Property Trustee shall be under no
obligation to exercise any of the rights or powers vested in
it by this Declaration at the request or direction of any
Holder, unless such Holder shall have provided to the
Property Trustee security and indemnity, reasonably
satisfactory to the Property Trustee, against the costs,
expenses (including reasonable attorneys' fees and expenses
and the expenses of the Property Trustee's agents, nominees
or custodians) and liabilities that might be incurred by it
in complying with such request or direction, including such
reasonable advances as may be requested by the Property
Trustee provided, that, nothing contained in this Section
3.10(a)(vi) shall be taken to relieve the Property Trustee,
upon the occurrence of an Event of Default, of its
obligation to exercise the rights and powers vested in it by
this Declaration;
(vii) 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, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other
paper or document, but the Property Trustee, in its
discretion,
24
may make such further inquiry or investigation into such
facts or matters as it may see fit;
(viii) the Property Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents, custodians,
nominees or attorneys and the Property Trustee shall not be
responsible for any misconduct or negligence on the part of
any agent or attorney appointed with due care by it
hereunder;
(ix) any action taken by the Property Trustee or its
agents hereunder shall bind the Trust and the Holders of the
Securities, and the signature of the Property Trustee or its
agents alone shall be sufficient and effective to perform
any such action and no third party shall be required to
inquire as to the authority of the Property Trustee to so
act or as to its compliance with any of the terms and
provisions of this Declaration, both of which shall be
conclusively evidenced by the Property Trustee's or its
agent's taking such action;
(x) whenever in the administration of this
Declaration the Property Trustee shall deem it desirable to
receive instructions with respect to enforcing any remedy or
right or taking any other action hereunder, the Property
Trustee (i) may request instructions from the Holders of the
Securities which instructions may only be given by the
Holders of the same proportion in liquidation amount of the
Securities as would be entitled to direct the Property
Trustee under the terms of the 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
conclusively relying on or acting in or accordance with such
instructions;
(xi) except as otherwise expressly provided by this
Declaration, the Property Trustee shall not be under any
obligation to take any action that is discretionary under
the provisions of this Declaration; and
(xii) the Property Trustee shall not be liable for any
action taken, suffered, or omitted to be taken by it in good
faith, without negligence, and reasonably believed by it to
be authorized or within the discretion or rights or powers
conferred upon it by this Declaration.
(b) No provision of this Declaration shall be deemed
to impose any duty or obligation 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
25
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 3.11 Delaware Trustee.
Notwithstanding any other provision of this Declaration
other than Section 5.2, 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 Administrative
Trustees or the Property Trustee described in this Declaration.
Except as set forth in Section 5.2, the Delaware Trustee shall be
a Trustee for the sole and limited purpose of fulfilling the
requirements of SECTION3807 of the Business Trust Act.
SECTION 3.12 Execution of Documents.
Unless otherwise determined by the Administrative
Trustees, and except as otherwise required by the Business Trust
Act or provided herein, any Administrative Trustee is authorized
to execute on behalf of the Trust any documents that the
Administrative Trustees have the power and authority to execute
pursuant to this Declaration.
SECTION 3.13 Not Responsible for Recitals or Issuance of
Securities.
The recitals contained in this Declaration and the
Securities 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 or the Securities.
SECTION 3.14 Duration of Trust.
The Trust, unless terminated pursuant to the provisions
of Article VIII hereof, shall have existence up to _______, 2028.
SECTION 3.15 Mergers.
(a) The Trust may not merge with or into,
consolidate, amalgamate, or be replaced by, or convey, transfer
or lease its properties and assets substantially as an entirety
to any Person, except as described in Section 3.15(b) and (c).
(b) The Trust may, at the request of the Sponsor,
with the consent of the Administrative Trustees or, if there are
26
more than two, a majority of the Administrative Trustees and
without the consent of the Holders of the Securities, the
Delaware Trustee or the Property Trustee, merge with or into,
consolidate, amalgamate, or be replaced by, or convey, transfer
or lease its properties and assets as an entirety or
substantially as an entirety to, a trust organized as such under
the laws of any State; provided that:
(i) such successor entity (the "Successor Entity")
either:
(A) expressly assumes all of the obligations of
the Trust under the Securities; or
(B) substitutes for the Securities other
securities having substantially the same terms as the
Securities (the "Successor Securities") so long as the
Successor Securities rank the same as the Securities
rank with respect to Distributions and payments upon
liquidation, redemption and otherwise;
(ii) the Sponsor expressly appoints a trustee of the
Successor Entity that possesses the same powers and duties
as the Property Trustee as the Holder of the Debentures;
(iii) the Successor Securities are listed, or any
Successor Securities will be listed upon notification of
issuance, on any national securities exchange or with
another organization on which the Capital Securities are
then listed or quoted;
(iv) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not cause
the Capital Securities (including any Successor Securities)
to be downgraded by any nationally recognized statistical
rating organization;
(v) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of
the Holders of the Securities (including any Successor
Securities) in any material respect (other than with respect
to any dilution of such Holders' interests in the new
entity);
(vi) such Successor Entity has a purpose identical to
that of the Trust;
(vii) prior to such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease,
the Sponsor has received an opinion of an independent
counsel to the Trust experienced in such matters to the
effect that:
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(A) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges
of the Holders of the Securities (including any
Successor Securities) in any material respect (other
than with respect to any dilution of the Holders'
interest in the new entity); and
(B) following such merger, consolidation,
amalgamation, replacement, conveyance, transfer or
lease, neither the Trust nor the Successor Entity will
be required to register as an Investment Company; and
(viii) the Sponsor or any permitted successor or
assignee owns all of the common securities of such Successor
Entity and guarantees the obligations of such Successor
Entity under the Successor Securities at least to the extent
provided by the Capital Securities Guarantee and the Common
Securities Guarantee.
(c) Notwithstanding Section 3.15(b), the Trust shall
not, except with the consent of Holders of 100% in liquidation
amount of the Securities, consolidate, amalgamate, merge with or
into, or be replaced by, or convey, transfer or lease its
properties and assets as an entirety or substantially as an
entirety to, any other entity or permit any other entity to
consolidate, amalgamate, merge with or into, or replace it if
such consolidation, amalgamation, merger, replacement,
conveyance, transfer or lease would cause the Trust or the
Successor Entity not to be classified as a grantor trust for
United States Federal income tax purposes.
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities.
At the Closing Time, the Sponsor will purchase all of
the Common Securities then issued by the Trust, in an amount at
least equal to 3% of the capital of the Trust, at the same time
as the Capital Securities are issued and sold.
SECTION 4.2 Responsibilities of the Sponsor.
In connection with the issue and sale of the Capital
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 a registration statement on Form S-3 in relation to
the Capital Securities, including any amendments thereto;
28
(b) to determine the States in which to take
appropriate action to qualify or register for sale all or part of
the Capital Securities and to do any and all such acts, other
than 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) if deemed necessary or advisable by the Sponsor,
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 of the Capital
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 Capital Securities under Section 12(b) or
12(g) of the Exchange Act, including any amendments thereto; and
(e) to negotiate the terms of the Purchase Agreement
providing for the sale of the Capital Securities.
SECTION 4.3 Right to Proceed.
The Sponsor acknowledges the rights of the Holders of
Capital Securities, in the event that a failure of the Trust to
pay Distributions on the Capital Securities is attributable to
the failure of the Company to pay interest or principal on the
Debentures, to institute a proceeding directly against the
Debenture Issuer for enforcement of its payment obligations on
the Debentures.
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees: Appointment of Co-Trustee.
The number of Trustees initially shall be five (5),
and:
(a) at any time before the issuance of any
Securities, the Sponsor may, by written instrument, increase or
decrease the number of Trustees; and
(b) after the issuance of any Securities, the number
of Trustees may be increased or decreased by vote of the Holders
of a majority in liquidation amount of the Common Securities
voting as a class at a meeting of the Holders of the Common
Securities;
29
provided, however, that, the number of Trustees shall in no event
be less than two (2); provided further that (1) one Trustee, in
the case of a natural person, shall be a person who is a resident
of the 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"); (2) there shall be at least
one Trustee who is an employee or officer of, or is affiliated
with the Sponsor (an "Administrative Trustee"); and (3) one
Trustee shall be the Property Trustee for so long as this
Declaration is required to qualify as an indenture under the
Trust Indenture Act, and such Trustee may also serve as Delaware
Trustee if it meets the applicable requirements. Notwithstanding
the above, unless an Event of Default shall have occurred and be
continuing, 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's property may at the
time be located, the Holders of a Majority in liquidation amount
of the Common Securities acting as a class at a meeting of the
Holders of the Common Securities, and the Administrative Trustees
shall have power to appoint one or more persons either to act as
a co-trustee, jointly with the Property Trustee, of all or any
part of the Trust's property, or to act as separate trustee of
any such 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 such capacity any property, title, right or
power deemed necessary or desirable, subject to the provisions of
this Declaration. In case an Event of Default has occurred and
is continuing, the Property Trustee alone shall have power to
make any such appointment of a co-trustee.
SECTION 5.2 Delaware Trustee.
If required by the Business Trust Act, one Trustee (the
"Delaware Trustee") shall be:
(a) a natural person who is a resident of the State
of Delaware; or
(b) if not a natural person, an entity which has its
principal place of business in the State of Delaware, and
otherwise meets the requirements of applicable law,
provided that, if the Property Trustee has its principal place of
business in the State of Delaware and otherwise meets the
requirements of applicable law, then the Property Trustee shall
also be the Delaware Trustee and Section 3.11 shall have no
application.
SECTION 5.3 Property Trustee; Eligibility.
30
(a) There shall at all times be one Trustee (the
"Property Trustee") which shall act as Property Trustee which
shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business
under the laws of the United States of America or any State
or Territory thereof or of the District of Columbia, or a
corporation or Person permitted by the Commission to act as
an institutional trustee under the Trust Indenture Act,
authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least 50
million U.S. dollars ($50,000,000), and subject to
supervision or examination by Federal, State, Territorial or
District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant
to law or to the requirements of the supervising or
examining authority referred to above, then for the purposes
of this Section 5.3(a)(ii), the combined capital and surplus
of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report
of condition so published.
(b) If at any time the Property Trustee shall cease
to be eligible to so act under Section 5.3(a), the Property
Trustee shall immediately resign in the manner and with the
effect set forth in Section 5.7(c).
(c) If the Property Trustee has or shall acquire any
"conflicting interest" within the meaning of SECTION 310(b) of the
Trust Indenture Act, the Property Trustee and the Holder of the
Common Securities (as if it were the obligor referred to in SECTION
310(b) of the Trust Indenture Act) shall in all respects comply
with the provisions of SECTION 310(b) of the Trust Indenture Act.
(d) The Capital Securities Guarantee shall be deemed
to be specifically described in this Declaration for purposes of
clause (i) of the first provision contained in Section 310(b) of
the Trust Indenture Act.
(e) The initial Property Trustee shall be:
The Bank of New York
101 Barclay Street
New York, New York 10286
Attention: Corporate Trust Trustee
Administration
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SECTION 5.4 Certain Qualifications of Administrative
Trustees and Delaware Trustee Generally.
Each Administrative Trustee and the Delaware Trustee
(unless the Property Trustee also acts as Delaware 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 Authorized
Officers.
SECTION 5.5 Administrative Trustees.
The initial Administrative Trustees shall be:
Robert T. Jefferson
Kathleen M. McGillycuddy
Craig V. Starble
(a) Except as expressly set forth in this
Declaration and except if a meeting of the Administrative
Trustees is called with respect to any matter over which the
Administrative Trustees have power to act, any power of the
Administrative Trustees may be exercised by, or with the consent
of, any one such Administrative Trustee.
(b) Unless otherwise determined by the
Administrative Trustees, and except as otherwise required by the
Business Trust Act or applicable law, any Administrative Trustee
is authorized to execute on behalf of the Trust any documents
which the Administrative Trustees have the power and authority to
cause the Trust to execute pursuant to Section 3.6; and
(c) An 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
purposes of signing any documents which the Administrative
Trustees have power and authority to cause the Trust to execute
pursuant to Section 3.6.
SECTION 5.6 Delaware Trustee.
The initial Delaware Trustee shall be:
The Bank of New York (Delaware)
23 White Clay Center
Route 273
Newark, Delaware 19711
32
SECTION 5.7 Appointment, Removal and Resignation of
Trustees.
(a) Subject to Section 5.7(b), Trustees may be
appointed or removed without cause at any time:
(i) until the issuance of any Securities, by written
instrument executed by the Sponsor;
(ii) unless an Event of Default shall have occurred
and be continuing after the issuance of any Securities, by
vote of the Holders of a Majority in liquidation amount of
the Common Securities voting as a class at a meeting of the
Holders of the Common Securities; and
(iii) if an Event of Default shall have occurred and
be continuing after the issuance of the Securities, with
respect to the Property Trustee or the Delaware Trustee, by
vote of Holders of a Majority in liquidation amount of the
Capital Securities voting as a class at a meeting of Holders
of the Capital Securities.
(b) (i) The Trustee that acts as Property Trustee
shall not be removed in accordance with Section 5.7(a) until a
Successor Property Trustee has been appointed and has accepted
such appointment by written instrument executed by such Successor
Property Trustee and delivered to the Administrative Trustees and
the Sponsor; and
(ii) the Trustee that acts as Delaware Trustee shall
not be removed in accordance with this Section 5.7(a) until
a successor Trustee possessing the qualifications to act as
Delaware Trustee under Sections 5.2 and 5.4 (a "Successor
Delaware Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor
Delaware Trustee and delivered to the Administrative
Trustees and the Sponsor.
(c) A Trustee appointed to office shall hold office
until his successor shall have been appointed or until his death,
removal or resignation. Any Trustee may resign from office
(without need for prior or subsequent accounting) by an
instrument in writing signed by the Trustee and delivered to the
Sponsor and the Trust, which resignation shall take effect upon
such delivery or upon such later date as is specified therein;
provided, however, that:
(i) No such resignation of the Trustee that acts as
the Property Trustee shall be effective:
(A) until a Successor Property Trustee has been
appointed and has accepted such appointment by instru-
33
ument executed by such Successor Property Trustee
and delivered to the Trust, the Sponsor and the
resigning Property Trustee; or
(B) until the assets of the Trust have been
completely liquidated and the proceeds thereof
distributed to the holders of the Securities; and
(ii) no such resignation of the Trustee that acts as
the Delaware Trustee shall be effective until a Successor
Delaware Trustee has been appointed and has accepted such
appointment by instrument executed by such Successor
Delaware Trustee and delivered to the Trust, the Sponsor and
the resigning Delaware Trustee.
(d) The Holders of the Common Securities shall use
their best efforts to promptly appoint a Successor Delaware
Trustee or Successor Property Trustee, as the case may be, if the
Property Trustee or the Delaware Trustee delivers an instrument
of resignation in accordance with this Section 5.7.
(e) If no Successor Property Trustee or Successor
Delaware Trustee shall have been appointed and accepted
appointment as provided in this Section 5.7 within 60 days after
delivery of an instrument of resignation or removal, the Property
Trustee or Delaware Trustee resigning or being removed, as
applicable, may petition any court of competent jurisdiction for
appointment of a Successor Property Trustee or Successor Delaware
Trustee. Such court may thereupon, after prescribing such
notice, if any, as it may deem proper and prescribe, appoint a
Successor Property Trustee or Successor Delaware Trustee, as the
case may be.
(f) No Property Trustee or Delaware Trustee shall be
liable for the acts or omissions to act of any Successor Property
Trustee or Successor Delaware Trustee, as the case may be.
SECTION 5.8 Vacancies among Trustees.
If a Trustee ceases to hold office for any reason and
the number of Trustees is not reduced pursuant to Section 5.1, or
if the number of Trustees is increased pursuant to Section 5.1, a
vacancy shall occur. A resolution certifying the existence of
such vacancy by the Administrative Trustees or, if there are more
than two, a majority of the Administrative Trustees shall be
conclusive evidence of the existence of such vacancy. The
vacancy shall be filled with a Trustee appointed in accordance
with Section 5.7.
SECTION 5.9 Effect of Vacancies.
34
The death, resignation, retirement, removal,
bankruptcy, dissolution, liquidation, 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 5.7, the Administrative Trustees in office, regardless of
their number, shall have all the powers granted to the
Administrative Trustees and shall discharge all the duties
imposed upon the Administrative Trustees by this Declaration.
SECTION 5.10 Meetings.
If there is more than one Administrative Trustee,
meetings of the Administrative Trustees shall be held from time
to time upon the call of any Administrative Trustee. Regular
meetings of the Administrative Trustees may be held at a time and
place fixed by resolution of the Administrative Trustees. Notice
of any in-person meetings of the Administrative Trustees shall be
hand delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight courier) not less than
24 hours before such meeting. Notice of any telephonic meetings
of the Administrative Trustees or any committee thereof shall be
hand delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight courier) not less than
24 hours before a meeting. Notices shall contain a brief
statement of the time, place and anticipated purposes of the
meeting. The presence (whether in person or by telephone) of an
Administrative Trustee at a meeting shall constitute a waiver of
notice of such meeting except where an Administrative Trustee
attends a meeting for the express purpose of objecting to the
transaction of any activity on the ground that the meeting has
not been lawfully called or convened. Unless provided otherwise
in this Declaration, any action of the Administrative Trustees
may be taken at a meeting by vote of a majority of the
Administrative Trustees present (whether in person or by
telephone) and eligible to vote with respect to such matter,
provided that a Quorum is present, or without a meeting by the
unanimous written consent of the Administrative Trustees. In the
event there is only one Administrative Trustee, any and all
action of such Administrative Trustee shall be evidenced by a
written consent of such Administrative Trustee.
SECTION 5.11 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 3.6,
including any registration statement or amendment thereto filed
with the Commission, or making any other governmental filing; and
35
(b) the Administrative Trustees shall have power to
delegate from time to time to such of their number or to officers
of the Trust 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 5.12 Merger, Conversion, Consolidation or Succession
to Business.
Any corporation into which the Property Trustee or the
Delaware Trustee or any Administrative Trustee that is not a
natural person, as the case may be, may be merged or converted or
with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the
Property Trustee or the Delaware Trustee, as the case may be,
shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Property
Trustee or the Delaware Trustee, as the case may be, shall be the
successor of the Property Trustee or the Delaware Trustee, as the
case may be, hereunder, provided such corporation shall be
otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part
of any of the parties hereto.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions.
Holders shall receive Distributions in accordance with
the applicable terms of the relevant Holder's Securities. If and
to the extent that the Debenture Issuer makes a payment of
interest (including Compounded Interest (as defined in the
Indenture) and Additional Interest (as defined in the
Indenture)), premium and/or principal on the Debentures held by
the Property Trustee (the amount of any such payment being a
"Payment Amount"), the Property Trustee shall and is directed, to
the extent funds are available for that purpose, to make a
distribution (a "Distribution") of the Payment Amount to Holders.
36
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.
(a) The Administrative Trustees shall on behalf of
the Trust issue one class of capital securities representing
undivided beneficial interests in the assets of the Trust having
such terms as are set forth in Annex I (the "Capital Securities")
and one class of common securities representing undivided
beneficial interests in the assets of the Trust having such terms
as are set forth in Annex I (the "Common Securities"). The Trust
shall issue no securities or other interests in the assets of the
Trust other than the Capital Securities and the Common
Securities.
(b) The consideration received by the Trust for the
issuance of the Securities shall constitute a contribution to the
capital of the Trust and shall not constitute a loan to the
Trust.
(c) Upon issuance of the Securities as provided in
this Declaration, the Securities so issued shall be deemed to be
validly issued, fully paid and non-assessable.
(d) Every Person, by virtue of having become a
Holder or a Capital Security Beneficial Owner 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.
SECTION 7.2 Execution and Authentication.
(a) The Securities shall be signed on behalf of the
Trust by an Administrative Trustee. In case any Administrative
Trustee of the Trust who shall have signed any of the Securities
shall cease to be such Administrative Trustee before the
Securities so signed shall be delivered by the Trust, such
Securities nevertheless may be delivered as though the person who
signed such Securities had not ceased to be such Administrative
Trustee; and any Securities may be signed on behalf of the Trust
by such persons who, at the actual date of execution of such
Security, shall be the Administrative Trustees of the Trust,
although at the date of the execution and delivery of the
Declaration any such person was not such a Administrative
Trustee.
(b) One Administrative Trustee shall sign the
Capital Securities for the Trust by manual or facsimile
signature. Unless otherwise determined by the Trust, such
signature shall, in the case of Common Securities, be a manual
signature.
37
A Capital Security shall not be valid until
authenticated by the manual signature of an authorized signatory
of the Property Trustee. The signature shall be conclusive
evidence that the Capital Security has been authenticated under
this Declaration.
Upon a written order of the Trust signed by one
Administrative Trustee, the Property Trustee shall authenticate
the Capital Securities for original issue. The aggregate number
of Capital Securities outstanding at any time shall not exceed
the number set forth in the Terms in Annex I hereto except as
provided in Section 7.6.
The Property Trustee may appoint an authenticating
agent acceptable to the Trust to authenticate Capital Securities.
An authenticating agent may authenticate Capital Securities
whenever the Property Trustee may do so. Each reference in this
Declaration to authentication by the Property Trustee includes
authentication by such agent. An authenticating agent has the
same rights as the Property Trustee to deal with the Sponsor or
an Affiliate.
SECTION 7.3 Form and Dating.
The Capital Securities and the Property Trustee's
certificate of authentication shall be substantially in the form
of Exhibit A-1 and the Common Securities shall be substantially
in the form of Exhibit A-2, each of which is hereby incorporated
in and expressly made a part of this Declaration. Certificates
representing the Securities may be printed, lithographed or
engraved or may be produced in any other manner as is reasonably
acceptable to the Administrative Trustees, as evidenced by their
execution thereof. The Securities may have letters, CUSIP or
other numbers, notations or other marks of identification or
designation and such legends or endorsements required by law,
stock exchange rule, agreements to which the Trust is subject, if
any, or usage (provided that any such notation, legend or
endorsement is in a form acceptable to the Trust). The Trust at
the direction of the Sponsor shall furnish any such legend not
contained in Exhibit A-1 to the Property Trustee in writing.
Each Capital Security shall be dated the date of its
authentication. The terms and provisions of the Securities set
forth in Annex I and the forms of Securities set forth in
Exhibits A-1 and A-2 are part of the terms of this Declaration
and to the extent applicable, the Property Trustee and the
Sponsor, by their execution and delivery of this Declaration,
expressly agree to such terms and provisions and to be bound
thereby.
(a) Global Securities. The Capital Securities shall
be issued in the form of one or more permanent global Securities
in definitive, fully registered form without Distribution coupons
with the appropriate global legends set forth in Exhibit A-1
38
hereto (a "Global Capital Security"), which shall be deposited on
behalf of the purchasers of the Capital Securities represented
thereby with the Property Trustee, at its New York office, as
custodian for the Clearing Agency, and registered in the name of
the Clearing Agency or a nominee of the Clearing Agency, duly
executed by the Trust and authenticated by the Property Trustee
as hereinafter provided. The number of Capital Securities
represented by the Global Capital Security may from time to time
be increased or decreased by adjustments made on the records of
the Property Trustee and the Clearing Agency or its nominee as
hereinafter provided.
(b) Book-Entry Provisions. This Section 7.3(b)
shall apply only to the Global Capital Securities and such other
Capital Securities in global form as may be authorized by the
Trust to be deposited with or on behalf of the Clearing Agency.
The Trust shall execute and the Property Trustee shall,
in accordance with this Section 7.3, authenticate and make
available for delivery initially one or more Global Capital
Securities that (i) shall be registered in the name of Cede & Co.
or other nominee of such Clearing Agency and (ii) shall be
delivered by the Trustee to such Clearing Agency or pursuant to
such Clearing Agency's written instructions or held by the
Property Trustee as custodian for the Clearing Agency.
Members of, or participants in, the Clearing Agency
("Participants") shall have no rights under this Declaration with
respect to any Global Capital Security held on their behalf by
the Clearing Agency or by the Property Trustee as the custodian
of the Clearing Agency or under such Global Capital Security, and
the Clearing Agency may be treated by the Trust, the Property
Trustee and any agent of the Trust or the Property Trustee as the
absolute owner of such Global Capital Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Trust, the Property Trustee or any agent of the Trust
or the Property Trustee from giving effect to any written
certification, proxy or other authorization furnished by the
Clearing Agency or impair, as between the Clearing Agency and its
Participants, the operation of customary practices of such
Clearing Agency governing the exercise of the rights of a holder
of a beneficial interest in any Global Capital Security.
(c) Definitive Capital Securities. Except as
provided in Section 7.9, owners of beneficial interests in a
Global Capital Security will not be entitled to receive physical
delivery of certificated Capital Securities ("Definitive Capital
Securities").
39
SECTION 7.4 Registrar and Paying Agent.
The Trust shall maintain in the Borough of Manhattan,
The City of New York, (i) an office or agency where Capital
Securities may be presented for registration of transfer
("Registrar") and (ii) an office or agency where Capital
Securities may be presented for payment ("Paying Agent"). The
Registrar shall keep a register of the Capital Securities and of
their transfer. The Trust may appoint the Registrar and the
Paying Agent and may appoint one or more co-registrars and one or
more additional paying agents in such other locations as it shall
determine. The term "Registrar" includes any additional
registrar and the term "Paying Agent" includes any additional
paying agent. The Trust may change any Paying Agent, Registrar
or co-registrar without prior notice to any Holder. The Paying
Agent shall be permitted to resign as Paying Agent upon 30 days'
written notice to the Administrative Trustees. The Trust shall
notify the Property Trustee of the name and address of any Agent
not a party to this Declaration. If the Trust fails to appoint
or maintain another entity as Registrar or Paying Agent, the
Property Trustee shall act as such. The Trust or any of its
Affiliates may act as Paying Agent or Registrar. The Trust shall
act as Paying Agent, Registrar and co-registrar for the Common
Securities.
The Trust initially appoints the Property Trustee as
Registrar and Paying Agent for the Capital Securities.
SECTION 7.5 Paying Agent to Hold Money in Trust.
The Trust shall require each Paying Agent other than
the Property Trustee to agree in writing that the Paying Agent
will hold in trust for the benefit of Holders or the Property
Trustee all money held by the Paying Agent for the payment of
liquidation amounts or Distributions on the Securities, and will
notify the Property Trustee if there are insufficient funds for
such purpose. While any such insufficiency continues, the
Property Trustee may require a Paying Agent to pay all money held
by it to the Property Trustee. The Trust at any time may require
a Paying Agent to pay all money held by it to the Property
Trustee and to account for any money disbursed by it. Upon
payment over to the Property Trustee, the Paying Agent (if other
than the Trust or an Affiliate of the Trust) shall have no
further liability for the money. If the Trust or the Sponsor or
an Affiliate of the Trust or the Sponsor acts as Paying Agent, it
shall segregate and hold in a separate trust fund for the benefit
of the Holders all money held by it as Paying Agent.
SECTION 7.6 Replacement Securities.
If the holder of a Security claims that the Security
has been lost, destroyed or wrongfully taken or if such Security
is mutilated and is surrendered to the Trust or in the case of
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the Capital Securities to the Property Trustee, the Trust shall
issue and the Property Trustee shall authenticate a replacement
Security if the Property Trustee's and the Trust's requirements,
as the case may be, are met. An indemnity bond must be provided
by the Holder which, in the judgment of the Property Trustee, is
sufficient to protect the Trustees, the Sponsor or any
authenticating agent from any loss which any of them may suffer
if a Security is replaced. The Trust may charge such holder for
its expenses in replacing a Security.
Every replacement Security is an additional beneficial
interest in the Trust.
SECTION 7.7 Outstanding Capital Securities.
The Capital Securities outstanding at any time are all
the Capital Securities authenticated by the Property Trustee
except for those cancelled by it, those delivered to it for
cancellation, and those described in this Section as not
outstanding.
If a Capital Security is replaced, paid or purchased
pursuant to Section 7.6 hereof, it ceases to be outstanding
unless the Property Trustee receives proof satisfactory to it
that the replaced, paid or purchased Capital Security is held by
a bona fide purchaser.
If Capital Securities are considered paid in accordance
with the terms of this Declaration, they cease to be outstanding
and Distributions on them shall cease to accumulate.
A Capital Security does not cease to be outstanding
because one of the Trust, the Sponsor or an Affiliate of the
Sponsor holds the Security.
SECTION 7.8 Capital Securities in Treasury.
In determining whether the Holders of the required
amount of Securities have concurred in any direction, waiver or
consent, Capital Securities owned by the Trust, the Sponsor or an
Affiliate of the Sponsor, as the case may be, shall be
disregarded and deemed not to be outstanding, except that for the
purposes of determining whether the Property Trustee shall be
fully protected in relying on any such direction, waiver or
consent, only Securities which a Responsible Officer of the
Property Trustee actually knows are so owned shall be so
disregarded.
SECTION 7.9 Temporary Securities.
(a) Until Definitive Securities are ready for
delivery, the Trust may prepare and, in the case of the Capital
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Securities, the Property Trustee shall authenticate temporary
Securities. Temporary Securities shall be substantially in the
form of Definitive Securities but may have variations that the
Trust considers appropriate for temporary Securities. Without
unreasonable delay, the Trust shall prepare and, in the case of
the Capital Securities, the Property Trustee shall authenticate
Definitive Securities in exchange for temporary Securities.
(b) A Global Capital Security deposited with the
Clearing Agency or with the Property Trustee as custodian for the
Clearing Agency pursuant to Section 7.3 shall be transferred to
the beneficial owners thereof in the form of certificated Capital
Securities only if such transfer complies with Section 9.2 and
(i) the Clearing Agency notifies the Company that it is unwilling
or unable to continue as Clearing Agency for such Global Capital
Security or if at any time such Clearing Agency ceases to be a
"clearing agency" registered under the Exchange Act and a
clearing agency is not appointed by the Sponsor within 90 days of
such notice, (ii) a Default or an Event of Default has occurred
and is continuing or (iii) the Trust at its sole discretion
elects to cause the issuance of certificated Capital Securities.
(c) Any Global Capital Security that is transferable
to the beneficial owners thereof in the form of certificated
Capital Securities pursuant to this Section 7.9 shall be
surrendered by the Clearing Agency to the Property Trustee
located in the Borough of Manhattan, The City of New York, to be
so transferred, in whole or from time to time in part, without
charge, and the Property Trustee shall authenticate and make
available for delivery, upon such transfer of each portion of
such Global Capital Security, an equal aggregate liquidation
amount of Securities of authorized denominations in the form of
certificated Capital Securities. Any portion of a Global Capital
Security transferred pursuant to this Section shall be registered
in such names as the Clearing Agency shall direct.
(d) Subject to the provisions of Section 7.9(c), the
Holder of a Global Capital Security may grant proxies and
otherwise authorize any person, including Participants and
persons that may hold interests through Participants, to take any
action which such Holder is entitled to take under this
Declaration or the Securities.
(e) In the event of the occurrence of any of the
events specified in Section 7.9(b), the Trust will promptly make
available to the Property Trustee a reasonable supply of
certificated Capital Securities in fully registered form without
distribution coupons.
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SECTION 7.10 Cancellation.
The Trust at any time may deliver Capital Securities to
the Property Trustee for cancellation. The Registrar and Paying
Agent shall forward to the Property Trustee any Capital
Securities surrendered to them for registration of transfer,
redemption, exchange or payment. The Property Trustee shall
promptly cancel all Capital Securities, surrendered for
registration of transfer, redemption, exchange, payment,
replacement or cancellation and shall dispose of cancelled
Capital Securities as the Trust directs, provided that the
Property Trustee shall not be obligated to destroy Capital
Securities. The Trust may not issue new Capital Securities to
replace Capital Securities that it has paid or that have been
delivered to the Property Trustee for cancellation.
SECTION 7.11 CUSIP Numbers.
The Trust in issuing the Capital Securities may use
"CUSIP" numbers (if then generally in use), and, if so, the
Property Trustee shall use "CUSIP" numbers in notices of
redemption as a convenience to Holders of Capital Securities;
provided that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on
the Capital Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other
identification numbers printed on the Capital Securities, and any
such redemption shall not be affected by any defect in or
omission of such numbers. The Sponsor will promptly notify the
Property Trustee of any change in the CUSIP numbers.
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1 Termination of Trust.
(a) The Trust shall automatically terminate:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of dissolution
or liquidation or its equivalent with respect to the
Sponsor; or the revocation of the Sponsor's charter and the
expiration of 90 days after the date of revocation without a
reinstatement thereof;
(iii) following the distribution of a Like Amount of
the Debentures to the Holders of the Securities, provided
that, the Property Trustee has received written notice from
the Sponsor directing the Property Trustee to terminate the
Trust (which direction is optional, and except as otherwise
43
expressly provided below, within the discretion of the
Sponsor) and provided, further, that such direction and such
distribution is conditioned on (i) the prior approval of the
Federal Reserve Board if such approval is then required
under applicable capital guidelines or policies of the
Federal Reserve Board, (ii) the Administrative Trustees'
receipt of an opinion of an independent tax counsel
experienced in such matters (a "No Recognition Opinion"),
which opinion may rely on published rulings of the Internal
Revenue Service, to the effect that the Holders of the
Securities will not recognize any gain or loss for United
States Federal income tax purposes as a result of the
dissolution of the Trust and the distribution of Debentures;
(iv) upon the entry of a decree of judicial
dissolution of the Trust by a court of competent
jurisdiction;
(v) when all of the Securities shall have been
called for redemption and the amounts necessary for
redemption thereof shall have been paid to the Holders in
accordance with the terms of the Securities;
(vi) upon the repayment of the Debentures or at such
time as no Debentures are outstanding; or
(vii) the expiration of the term of the Trust provided
in Section 3.14.
(b) As soon as is practicable after the occurrence
of an event referred to in Section 8.1(a), the Administrative
Trustees shall file a certificate of cancellation with the
Secretary of State of the State of Delaware.
(c) The provisions of Section 3.9 and Article X
shall survive the termination of the Trust.
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities.
(a) Securities may only be transferred, in whole or
in part, in accordance with the terms and conditions set forth in
this Declaration and in the terms of the Securities. Any
transfer or purported transfer of any Security not made in
accordance with this Declaration shall be null and void.
(b) Subject to this Article IX, Capital Securities
shall be freely transferable.
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(c) The Sponsor may not transfer the Common
Securities.
(d) The Administrative Trustees shall provide for
the registration of Securities and of the transfer of Securities,
which will be effected without charge but only upon payment (with
such indemnity as the Administrative Trustees may require) in
respect of any tax or other governmental charges that may be
imposed in relation to it. Upon surrender for registration of
transfer of any Securities, the Administrative Trustees shall
cause one or more new Securities to be issued in the name of the
designated transferee or transferees. Every Security surrendered
for registration of transfer shall be accompanied by a written
instrument of transfer in form satisfactory to the Administrative
Trustees duly executed by the Holder or such Holder's attorney
duly authorized in writing. Each Security surrendered for
registration of transfer shall be canceled by the Administrative
Trustees. A transferee of a Security shall be entitled to the
rights and subject to the obligations of a Holder hereunder upon
the receipt by such transferee of a Security. By acceptance of a
Security, each transferee shall be deemed to have agreed to be
bound by this Declaration.
SECTION 9.2 Transfer Procedures and Restrictions
(a) Transfer and Exchange of Definitive Capital
Securities. When Definitive Capital Securities are presented to
the Registrar or co-Registrar
(x) to register the transfer of such Definitive
Capital Securities; or
(y) to exchange such Definitive Capital Securities
which became mutilated, destroyed, defaced, stolen or lost,
for an equal number of Definitive Capital Securities,
the Registrar or co-registrar shall register the transfer or make
the exchange as requested if its reasonable requirements for such
transaction are met; provided, however, that the Definitive
Capital Securities surrendered for transfer or exchange shall be
duly endorsed or accompanied by a written instrument of transfer
in form reasonably satisfactory to the Trust and the Registrar or
co-registrar, duly executed by the Holder thereof or his attorney
duly authorized in writing.
(b) Transfer of a Definitive Capital Security for a
Beneficial Interest in a Global Capital Security. Upon receipt
by the Property Trustee of a Definitive Capital Security, duly
endorsed or accompanied by appropriate instruments of transfer,
in form satisfactory to the Property Trustee, together with
written instructions directing the Property Trustee to make, or
to direct the Clearing Agency to make, an adjustment on its books
45
and records with respect to the Global Capital Security to
reflect an increase in the number of the Capital Securities
represented by such Global Capital Security, then the Property
Trustee shall cancel such Definitive Capital Security and cause,
or direct the Clearing Agency to cause, the aggregate number of
Capital Securities represented by the appropriate Global Capital
Security to be increased accordingly. If no Global Capital
Securities are then outstanding, the Trust shall issue and the
Property Trustee shall authenticate, upon written order of any
Administrative Trustee, an appropriate number of Capital
Securities in global form.
(c) Transfer and Exchange of Global Capital
Securities. Subject to Section 9.02(d), the transfer and
exchange of Global Capital Securities or beneficial interests
therein shall be effected through the Clearing Agency, in
accordance with this Declaration (including applicable
restrictions on transfer set forth herein, if any) and the
procedures of the Clearing Agency therefor.
(d) Transfer of a Beneficial Interest in a Global
Capital Security for a Definitive Capital Security.
(i) Any person having a beneficial interest in a
Global Capital Security may upon request, but only upon 20
days prior notice to the Property Trustee, and if
accompanied by the information specified below, exchange
such beneficial interest for a Definitive Capital Security
representing the same number of Capital Securities. Upon
receipt by the Property Trustee from the Clearing Agency or
its nominee on behalf of any Person having a beneficial
interest in a Global Capital Security of written
instructions or such other form of instructions as is
customary for the Clearing Agency or the person designated
by the Clearing Agency as having such a beneficial interest
in a Global Capital Security, then the Property Trustee will
cause the aggregate number of Capital Securities represented
by Global Capital Securities to be reduced on its books and
records and, following such reduction, the Trust will
execute and the Property Trustee will authenticate and make
available for delivery to the transferee a Definitive
Capital Security.
(ii) Definitive Capital Securities issued in exchange
for a beneficial interest in a Global Capital Security
pursuant to this Section 9.2(d) shall be registered in such
names and in such authorized denominations as the Clearing
Agency, pursuant to instructions from its Participants or
indirect participants or otherwise, shall instruct the
Property Trustee in writing. The Property Trustee shall
deliver such Capital Securities to the persons in whose
names such Capital Securities are so registered in
accordance with such instructions of the Clearing Agency.
46
(e) Restrictions on Transfer and Exchange of Global
Capital Securities. Notwithstanding any other provisions of this
Declaration (other than the provisions set forth in subsection
(f) of this Section 9.2), a Global Capital Security may not be
transferred as a whole except by the Clearing Agency to a nominee
of the Clearing Agency or 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.
(f) Authentication of Definitive Capital Securities.
If at any time:
(i) there occurs a Default or an Event of Default
which is continuing, or
(ii) the Trust, in its sole discretion, notifies the
Property Trustee in writing that it elects to cause the
issuance of Definitive Capital Securities under this
Declaration,
then the Trust will execute, and the Property Trustee, upon
receipt of a written order of the Trust signed by one
Administrative Trustee requesting the authentication and delivery
of Definitive Capital Securities to the Persons designated by the
Trust, will authenticate and make available for delivery
Definitive Capital Securities, equal in number to the number of
Capital Securities represented by the Global Capital Securities,
in exchange for such Global Capital Securities.
(g) Cancellation or Adjustment of Global Capital
Security. At such time as all beneficial interests in a Global
Capital Security have either been exchanged for Definitive
Capital Securities to the extent permitted by this Declaration or
redeemed, repurchased or canceled in accordance with the terms of
this Declaration, such Global Capital Security shall be returned
to the Clearing Agency for cancellation or retained and canceled
by the Property Trustee. At any time prior to such cancellation,
if any beneficial interest in a Global Capital Security is
exchanged for Definitive Capital Securities, Capital Securities
represented by such Global Capital Security shall be reduced and
an adjustment shall be made on the books and records of the
Property Trustee (if it is then the custodian for such Global
Capital Security) with respect to such Global Capital Security,
by the Property Trustee or the Securities Custodian, to reflect
such reduction.
(h) Obligations with Respect to Transfers and
Exchanges of Capital Securities.
(i) To permit registrations of transfers and
exchanges, the Trust shall execute and the Property Trustee
shall authenticate Definitive Capital Securities and Global
47
Capital Securities at the Registrar's or co-Registrar's
request in accordance with the terms of this Declaration.
(ii) Registrations of transfers or exchanges will be
effected without charge, but only upon payment (with such
indemnity as the Trust or the Sponsor may require) in
respect of any tax or other governmental charge that may be
imposed in relation to it.
(iii) The Registrar or co-registrar shall not be
required to register the transfer of or exchange of (a)
Capital Securities during a period beginning at the opening
of business 15 days before the day of mailing of a notice of
redemption or any notice of selection of Capital Securities
for redemption and ending at the close of business on the
day of such mailing; or (b) any Capital Security so selected
for redemption in whole or in part, except the unredeemed
portion of any Capital Security being redeemed in part.
(iv) Prior to the due presentation for registrations
of transfer of any Capital Security, the Trust, the Property
Trustee, the Paying Agent, the Registrar or any co-registrar
may deem and treat the person in whose name a Capital
Security is registered as the absolute owner of such Capital
Security for the purpose of receiving Distributions on such
Capital Security and for all other purposes whatsoever, and
none of the Trust, the Property Trustee, the Paying Agent,
the Registrar or any co-registrar shall be affected by
notice to the contrary.
(v) All Capital Securities issued upon any transfer
or exchange pursuant to the terms of this Declaration shall
evidence the same security and shall be entitled to the same
benefits under this Declaration as the Capital Securities
surrendered upon such transfer or exchange.
(i) No Obligation of the Property Trustee.
(i) The Property Trustee shall have no
responsibility or obligation to any beneficial owner of a
Global Capital Security, a Participant in the Clearing
Agency or other Person with respect to the accuracy of the
records of the Clearing Agency or its nominee or of any
Participant thereof, with respect to any ownership interest
in the Capital Securities or with respect to the delivery to
any Participant, beneficial owner or other Person (other
than the Clearing Agency) of any notice (including any
notice of redemption) or the payment of any amount, under or
with respect to such Capital Securities. All notices and
communications to be given to the Holders and all payments
to be made to Holders under the Capital Securities shall be
given or made only to or upon the order of the registered
Holders
48
(which shall be the Clearing Agency or its nominee in the case of
a Global Capital Security). The rights of beneficial owners in
any Global Capital Security shall be exercised only through the
Clearing Agency subject to the applicable rules and procedures of
the Clearing Agency. The Property Trustee may conclusively rely
and shall be fully protected in relying upon information
furnished by the Clearing Agency or any agent thereof with
respect to its Participants and any beneficial owners.
(ii) The Property Trustee and Registrar shall have no
obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under
this Declaration or under applicable law with respect to any
transfer of any interest in any Capital Security (including
any transfers between or among Clearing Agency Participants
or beneficial owners in any Global Capital Security) 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 Declaration, and to examine the same to determine
substantial compliance as to form with the express
requirements hereof.
SECTION 9.3 Deemed Security Holders.
The Trustees may treat the Person in whose name any
Security shall be registered on the books and records of the
Trust as the sole owner of such Security for purposes of
receiving Distributions and for all other purposes whatsoever
and, accordingly, shall not be bound to recognize any equitable
or other claim to or interest in such Security on the part of any
Person, whether or not the Trust shall have actual or other
notice thereof.
SECTION 9.4 Book Entry Interests.
Global Capital Securities shall initially be registered
on the books and records of the Trust in the name of Cede & Co.,
the nominee of the Clearing Agency, and no Capital Security
Beneficial Owner will receive a definitive Capital Security
Certificate representing such Capital Security Beneficial Owner's
interests in such Global Capital Securities, except as provided
in Section 9.2. Unless and until definitive, fully registered
Capital Securities certificates have been issued to the Capital
Security Beneficial Owners pursuant to Section 9.2:
(a) the provisions of this Section 9.4 shall be in
full force and effect;
(b) the Trust and the Trustees shall be entitled to
deal with the Clearing Agency for all purposes of this
49
Declaration (including the payment of Distributions on the
Global Capital Securities and receiving approvals, votes or
consents hereunder) as the Holder of the Capital Securities
and the sole holder of the Global Certificates and shall
have no obligation to the Capital Security Beneficial
Owners;
(c) to the extent that the provisions of this
Section 9.4 conflict with any other provisions of this
Declaration, the provisions of this Section 9.4 shall
control; and
(d) the rights of the Capital Security Beneficial
Owners shall be exercised only through the Clearing Agency
and shall be limited to those established by law and
agreements between such Capital Security Beneficial Owners
and the Clearing Agency and/or the Clearing Agency
Participants and receive and transmit payments of
Distributions on the Global Certificates to such Clearing
Agency Participants. DTC will make book entry transfers
among the Clearing Agency Participants.
SECTION 9.5 Notices to Clearing Agency.
Whenever a notice or other communication to the Capital
Security Holders is required under this Declaration, the Trustees
shall give all such notices and communications specified herein
to be given to the Holders of Global Capital Securities to the
Clearing Agency, and shall have no notice obligations to the
Capital Security Beneficial Owners.
SECTION 9.6 Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its
services as securities depositary with respect to the Capital
Securities, the Administrative Trustees may, in their sole
discretion, appoint a successor Clearing Agency with respect to
such Capital Securities.
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability.
(a) Except as expressly set forth in this
Declaration, the Securities Guarantees and the terms of the
Securities, the Sponsor shall not be:
(i) personally liable for the return of any portion
of the capital contributions (or any return thereon) of the
50
Holders of the Securities which shall be made solely from
assets of the Trust; and
(ii) be required to pay to the Trust or to any Holder
of Securities any deficit upon dissolution of the Trust or
otherwise.
(b) The Sponsor shall be liable for all of the debts
and obligations of the Trust (other than with respect to the
Securities) to the extent not satisfied out of the Trust's
assets.
(c) Pursuant to SECTION 3803(a) of the Business Trust Act,
the Holders of the Capital 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.
SECTION 10.2 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 gross negligence or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected
in relying in good faith upon the records of the 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.
SECTION 10.3 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
51
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 (other than the duties imposed on
the Property Trustee under the Trust Indenture Act), 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 any 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.
(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
(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 10.4 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
52
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 and expenses), 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 and
expenses) 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 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 10.4(a), or in defense of any
claim, issue or matter therein, he shall be indemnified, to
the full extent permitted by law, against expenses
(includ-
53
ing attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(iv) Any indemnification under paragraphs (i) and
(ii) of this Section 10.4(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 Administrative
Trustees by a majority vote of a quorum consisting of such
Administrative 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
Administrative 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 and
expenses) 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 10.4(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
authorized in this Section 10.4(a). Notwithstanding the
foregoing, no advance shall be made by the Debenture Issuer
if a determination is reasonably and promptly made (i) by
the Administrative Trustees by a majority vote of a quorum
of disinterested Administrative Trustees, (ii) if such a
quorum is not obtainable, or, even if obtainable, if a
quorum of disinterested Administrative 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 Administrative 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 Administrative Trustees, independent
legal counsel or Common Security Holder reasonably determine
that such person deliberately breached his duty to the Trust
or its Common or Capital Security Holders.
(vi) The indemnification and advancement of expenses
54
provided by, or granted pursuant to, the other paragraphs of
this Section 10.4(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 Capital 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 10.4(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
10.4(a) is in effect. Any repeal or modification of this
Section 10.4(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 him
against such liability under the provisions of this Section
10.4(a).
(viii) For purposes of this Section 10.4(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 10.4(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 10.4(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 the (i)
Property Trustee, (ii) the Delaware Trustee, (iii) any Affiliate
of the Property Trustee and the Delaware Trustee, and (iv) any
officers, directors, shareholders, members, partners, employees,
representatives, custodians, nominees or agents of the Property
Trustee and the Delaware Trustee (each of the Persons in (i)
through (iv) being referred to as a "Fiduciary Indemnified
55
Person") for, and to hold each Fiduciary Indemnified Person
harmless against, any and all loss, liability, damage, claim or
expense including taxes (other than taxes based on the income of
such Fiduciary Indemnified Person) 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 10.4(b) shall survive the
satisfaction and discharge of this Declaration.
SECTION 10.5 Outside Businesses.
Any Covered Person, the Sponsor, the Delaware Trustee
and the Property 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 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, the
Delaware Trustee, or the Property 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, the Delaware Trustee and the
Property 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, the Delaware Trustee and the Property 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 act on any committee or
body of holders of, securities or other obligations of the
Sponsor or its Affiliates.
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be
the calendar year, or such other year as is required by the Code.
SECTION 11.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust,
the Administrative Trustees shall keep, or cause to be kept, full
56
books of account, records and supporting documents, which shall
reflect in reasonable detail, each transaction of the Trust. The
books of account shall be maintained on the accrual method of
accounting, in accordance with generally accepted accounting
principles, consistently applied. The Trust shall use the
accrual method of accounting for United States Federal income tax
purposes. The books of account and the records of the Trust
shall be examined by and reported upon as of the end of each
Fiscal Year of the Trust by a firm of independent certified
public accountants selected by the Administrative Trustees.
(b) The Administrative Trustees shall cause to be
prepared and delivered to each of the Holders of Securities,
within 90 days after the end of each Fiscal Year of the Trust,
annual financial statements of the Trust, including a balance
sheet of the Trust as of the end of such Fiscal Year, and the
related statements of income or loss;
(c) The Administrative Trustees shall cause to be
duly prepared and delivered to each of the Holders of Securities,
any annual United States Federal income tax information
statement, required by the Code, containing such information with
regard to the Securities held by each Holder as is required by
the Code and the Treasury Regulations. Notwithstanding any right
under the Code to deliver any such statement at a later date, the
Administrative Trustees shall endeavor to deliver all such
information statements within 30 days after the end of each
Fiscal Year of the Trust.
(d) The Administrative Trustees shall cause to be
duly prepared and filed with the appropriate taxing authority, an
annual United States Federal income tax return, on a Form 1041 or
such other form required by United States Federal income tax law,
and any other annual income tax returns required to be filed by
the Administrative Trustees on behalf of the Trust with any state
or local taxing authority.
SECTION 11.3 Banking.
The Trust shall maintain one or more bank accounts in
the name and for the sole benefit of the Trust; provided,
however, that all payments of funds in respect of the Debentures
held by the Property Trustee shall be made directly to the
Property Trustee Account and no other funds of the Trust shall be
deposited in the Property Trustee Account. The sole signatories
for such accounts shall be designated by the Administrative
Trustees; provided, however, that the Property Trustee shall
designate the signatories for the Property Trustee Account.
SECTION 11.4 Withholding.
The Trust and the Administrative Trustees shall comply
57
with all withholding requirements under United States Federal,
state and local law. The Trust shall request, and the Holders
shall provide to the Trust, such forms or certificates as are
necessary to establish an exemption from withholding with respect
to each Holder, and any representations and forms as shall
reasonably be requested by the Trust to assist it in determining
the extent of, and in fulfilling, its withholding obligations.
The Administrative Trustees shall file required forms with
applicable jurisdictions and, unless an exemption from
withholding is properly established by a Holder, shall remit
amounts withheld with respect to the Holder to applicable
jurisdictions. To the extent that the Trust is required to
withhold and pay over any amounts to any authority with respect
to Distributions or allocations to any Holder, the amount
withheld shall be deemed to be a Distribution in the amount of
the withholding to the Holder. In the event of any claimed over
withholding, Holders shall be limited to an action against the
applicable jurisdiction. If the amount required to be withheld
was not withheld from actual Distributions made, the Trust may
reduce subsequent Distributions by the amount of such
withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments.
(a) Except as otherwise provided in this Declaration
or by any applicable terms of the Securities, this Declaration
may only be amended by a written instrument approved and executed
by:
(i) the Administrative Trustees (or if there are
more than two Administrative Trustees a majority of the
Administrative Trustees);
(ii) if the amendment affects the rights, powers,
duties, obligations or immunities of the Property Trustee,
the Property Trustee; and
(iii) if the amendment affects the rights, powers,
duties, obligations or immunities of the Delaware Trustee,
the Delaware Trustee.
(b) No amendment shall be made, and any such
purported amendment shall be void and ineffective:
(i) unless, in the case of any proposed amendment,
the Property Trustee shall have first received an Officers'
Certificate from each of the Trust and the Sponsor that such
amendment is permitted by, and conforms to, the terms of
this Declaration (including the terms of the Securities);
58
(ii) unless, in the case of any proposed amendment
which affects the rights, powers, duties, obligations or
immunities of the Property Trustee, the Property Trustee
shall have first received:
(A) an Officers' Certificate from each of the
Trust and the Sponsor that such amendment is permitted
by, and conforms to, the terms of this Declaration
(including the terms of the Securities); and
(B) an opinion of counsel (who may be counsel
to the Sponsor or the Trust) that such amendment is
permitted by, and conforms to, the terms of this
Declaration (including the terms of the Securities),
provided, however, that the Property Trustee shall not be
required to sign any such amendment, and
(iii) to the extent the result of such amendment would
be to:
(A) cause the Trust to fail to continue to be
classified for purposes of United States Federal income
taxation as a grantor trust;
(B) reduce or otherwise adversely affect the
powers of the Property Trustee in contravention of the
Trust Indenture Act; or
(C) cause the Trust to be deemed to be an
Investment Company required to be registered under the
Investment Company Act;
(c) At such time after the Trust has issued any
Securities that remain outstanding, any amendment that would
adversely affect the rights, privileges or preferences of any
Holder of Securities may be effected only with such additional
requirements as may be set forth in the terms of such Securities;
(d) Section 9.1(c) and this Section 12.1 shall not
be amended without the consent of all of the Holders of the
Securities;
(e) Article Four shall not be amended without the
consent of the Holders of a Majority in liquidation amount of the
Common Securities and;
(f) The rights of the holders of the Common
Securities under Article Five to increase or decrease the number
of, and appoint and remove Trustees shall not be amended without
the consent of the Holders of a Majority in liquidation amount of
the Common Securities; and
59
(g) Notwithstanding Section 12.1(c), this
Declaration may be amended without the consent of the Holders of
the Securities to:
(i) cure any ambiguity, correct or supplement any
provision in this Declaration that may be inconsistent with
any other provision of this Declaration or to make any other
provisions with respect to matters or questions arising
under this Declaration which shall not be inconsistent with
the other provisions of the Declaration; and
(ii) to modify, eliminate or add to any provisions of
the Declaration to such extent as shall be necessary to
ensure that the Trust will be classified for United States
Federal income tax purposes as a grantor trust at all times
that any Securities are outstanding or to ensure that the
Trust will not be required to register as an Investment
Company under the Investment Company Act.
provided, however, that in the case of clause (i), such action
shall not adversely affect in any material respect the interests
of the Holders of the Securities, and any amendments of this
Declaration shall become effective when notice thereof is given
to the Holders of the Securities.
SECTION 12.2 Meetings of the Holders of Securities; Action by
Written Consent.
(a) Meetings of the Holders of any class of
Securities may be called at any time by the Administrative
Trustees (or as provided in the terms of the Securities) to
consider and act on any matter on which Holders of such class of
Securities are entitled to act under the terms of this
Declaration, the terms of the Securities or the rules of any
stock exchange on which the Capital Securities are listed or
admitted for trading. The Administrative Trustees shall call a
meeting of the Holders of such class if directed to do so by the
Holders of at least 10% in liquidation amount of such class of
Securities. Such direction shall be given by delivering to the
Administrative Trustees one or more notice in a writing stating
that the signing Holders of Securities wish to call a meeting and
indicating the general or specific purpose for which the meeting
is to be called. Any Holders of Securities calling a meeting
shall specify in writing the Security Certificates held by the
Holders of Securities exercising the right to call a meeting and
only those Securities specified shall be counted for purposes of
determining whether the required percentage set forth in the
second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the
terms of the Securities, the following provisions shall apply to
meetings of Holders of Securities:
60
(i) notice of any such meeting shall be given to all
the Holders of Securities having a right to vote thereat at
least seven days and not more than 60 days before the date
of such meeting. Whenever a vote, consent or approval of
the Holders of Securities is permitted or required under
this Declaration or the rules of any stock exchange on which
the Capital Securities are listed or admitted for trading,
such vote, consent or approval may be given at a meeting of
the Holders of Securities. Any action that may be taken at
a meeting of the Holders of Securities may be taken without
a meeting if a consent in writing setting forth the action
so taken is signed by the Holders of Securities owning not
less than the minimum amount of Securities in liquidation
amount that would be necessary to authorize or take such
action at a meeting at which all Holders of Securities
having a right to vote thereon were present and voting.
Prompt notice of the taking of action without a meeting
shall be given to the Holders of Securities entitled to vote
who have not consented in writing. The Administrative
Trustees may specify that any written ballot submitted to
the Security Holder for the purpose of taking any action
without a meeting shall be returned to the Trust within the
time specified by the Administrative Trustees;
(ii) each Holder of a Security may authorize any
Person to act for it by proxy on all matters in which a
Holder of Securities is entitled to participate, including
waiving notice of any meeting, or voting or participating at
a meeting. No proxy shall be valid after the expiration of
11 months from the date thereof unless otherwise provided in
the proxy. Every proxy shall be revocable at the pleasure
of the Holder of Securities executing it. Except as
otherwise provided herein, all matters relating to the
giving, voting or validity of proxies shall be governed by
the General Corporation Law of the State of Delaware
relating to proxies, and judicial interpretations
thereunder, as if the Trust were a Delaware corporation and
the Holders of the Securities were stockholders of a
Delaware corporation;
(iii) each meeting of the Holders of the Securities
shall be conducted by the Administrative Trustees or by such
other Person that the Administrative Trustees may designate;
and
(iv) unless the Business Trust Act, this Declaration,
the terms of the Securities, the Trust Indenture Act or the
listing rules of any stock exchange on which the Capital
Securities are then listed or trading, otherwise provides,
the Administrative Trustees, in their sole discretion, shall
establish all other provisions relating to meetings of
Holders of Securities, including notice of the time, place
or purpose of any meeting at which any matter is to be voted
on
61
by any Holders of Securities, waiver of any such notice,
action by consent without a meeting, the establishment of a
record date, quorum requirements, voting in person or by
proxy or any other matter with respect to the exercise of
any such right to vote.
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 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 Declaration, 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 New York banking
corporation with trust powers and authority to execute and
deliver, and to carry out and perform its obligations under the
terms of, this Declaration;
(b) The execution, delivery and performance by the
Property Trustee of the Declaration has been duly authorized by
all necessary corporate action on the part of the Property
Trustee. The Declaration 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
Declaration 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 New York State or Federal
banking authority is required for the execution, delivery or
performance by the Property Trustee of this Declaration.
62
SECTION 13.2 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 Declaration, 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 Declaration;
(b) The execution, delivery and performance by the
Delaware Trustee of this Declaration has been duly authorized by
all necessary corporate action on the part of the Delaware
Trustee. This Declaration has been duly executed and delivered
by the Delaware Trustee and constitutes a legal, valid and
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 Federal banking authority is
required for the execution, delivery or performance by the
Delaware Trustee of this Declaration; 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.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices.
All notices provided for in this Declaration shall be
in writing, duly signed by the party giving such notice, and
shall be delivered, telecopied or mailed by first class mail, as
follows:
(a) if given to the Trust, in care of the
Administrative Trustees at the Trust's mailing address set forth
below
63
(or such other address as the Trust may give notice of to the Holders
of the Securities):
BankBoston Capital Trust III
P.O. Box 2016
Boston, Massachusetts 02106-2016
Attention: Kathleen M. McGillycuddy,
Administrative Trustee
(b) if given to the Delaware Trustee, at the mailing
address set forth below (or such other address as Delaware
Trustee may give notice of to the Holders of the Securities):
The Bank of New York (Delaware)
23 White Clay Center
Route 273
Newark, Delaware 19711
Attention: Corporate Trust Department
(c) if given to the Property Trustee, at the
Property Trustee's mailing address set forth below (or such other
address as the Property Trustee may give notice of to the Holders
of the Securities):
The Bank of New York
101 Barclay Street, 21 West
New York, New York 10283
Attention: Corporate Trust
Trustee Administration
(d) if given to the Holder of the Common Securities,
at the mailing address of the Sponsor set forth below (or such
other address as the Holder of the Common Securities may give
notice to the Trust):
BankBoston Corporation
100 Federal Street, MA BOS 01-25-01
Boston, Massachusetts 02110
Attention: Gary A. Spiess, General Counsel
(e) if given to any other Holder, at the address set
forth on the books and records of the Trust.
All such notices shall be deemed to have been given
when received in person, telecopied with receipt confirmed, or
mailed by first class mail, postage prepaid except that if a
notice or other document is refused delivery or cannot be
delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been
64
delivered on the date of such refusal or inability to deliver.
SECTION 14.2 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 14.3 Intention of the Parties.
It is the intention of the parties hereto that the
Trust be classified for United States Federal income tax purposes
as a grantor trust. The provisions of this Declaration shall be
interpreted to further this intention of the parties.
SECTION 14.4 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 14.5 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 14.6 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 14.7 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.
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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.
__________________________________
Robert T. Jefferson, as
Administrative Trustee
__________________________________
Craig V. Starble, as Administrative
Trustee
__________________________________
Kathleen M. McGillycuddy, as
Administrative Trustee
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By:
------------------------------
Name:
Title:
THE BANK OF NEW YORK
as Property Trustee
By:
------------------------------
Name:
Title:
BANKBOSTON CORPORATION
as Sponsor
By:
------------------------------
Name: Kathleen M. McGillycuddy
Title: Executive Director,
Global Treasury
66
ANNEX I
TERMS OF
FLOATING RATE CAPITAL SECURITIES
FLOATING RATE COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated
Declaration of Trust, dated as of _______, 1997 (as amended from
time to time, the "Declaration"), the designation, rights,
privileges, restrictions, preferences and other terms and
provisions of the Capital Securities and the Common Securities
(collectively, the "Securities") are set out below (each
capitalized term used but not defined herein has the meaning set
forth in the Declaration or, if not defined in such Declaration,
as defined in the Indenture):
1. Designation and Number.
(a) Capital Securities. 250,000 Capital Securities of
the Trust, with an aggregate liquidation amount with respect to
the assets of the Trust of two hundred fifty million dollars
($250,000,000), and with a liquidation amount with respect to the
assets of the Trust of $1,000 per security, are hereby designated
for the purposes of identification only as "Floating Rate Capital
Securities" (the "Capital Securities"). The certificates
evidencing the Capital Securities shall be substantially in the
form of Exhibit A-1 to the Declaration, with such changes and
additions thereto or deletions therefrom as may be required by
ordinary usage, custom or practice or to conform to the rules of
any stock exchange or quotation system on which the Capital
Securities are listed or quoted.
(b) Common Securities. 7,732 Common Securities of the
Trust with an aggregate liquidation amount with respect to the
assets of the Trust of seven million seven hundred thirty-two
thousand dollars ($7,732,000) and with a liquidation amount with
respect to the assets of the Trust of $1,000 per security, are
hereby designated for the purposes of identification only as
"Floating Rate Common Securities" (the "Common Securities"). The
certificates evidencing the Common Securities shall be
substantially in the form of Exhibit A-2 to the Declaration, with
such changes and additions thereto or deletions therefrom as may
be required by ordinary usage, custom or practice.
2. Distributions.
(a) Distributions on each Security will be payable at
a rate per annum equal to LIBOR plus ____% (the "Distribution
Rate") of the liquidation amount of $1,000 per Security (the
"Liquidation Amount"), such rate being the rate of interest
pay-
I-1
able on the Debentures to be held by the Property Trustee.
LIBOR and the amount payable in respect of a Distribution for a
Distribution Period (as defined herein) will be calculated by the
Calculation Agent in the same manner as LIBOR and the interest
payable in respect of each Interest Period for the Debentures, as
set forth in the Indenture. Distributions in arrears for more
than one quarterly period will bear additional distributions
thereon compounded quarterly at the applicable periodic
Distribution Rate (to the extent permitted by applicable law).
The term "Distributions", as used herein, includes any such
additional distributions unless otherwise stated. A Distribution
is payable only to the extent that payments are made in respect
of the Debentures held by the Property Trustee and to the extent
the Property Trustee has funds on hand legally available
therefor.
(b) Distributions on the Securities will be
cumulative, will accumulate from the most recent date to which
Distributions have been paid or, if no Distributions have been
paid, from _______, 1997, to but excluding the related
Distribution Date (as defined herein) and will be payable
quarterly in arrears on _______, _______, _______, and _______ of
each year, commencing on _______, 1997 (each, a "Distribution
Date"), except as otherwise described below. The amount of
Distributions payable for any Distribution Period will be
computed on the basis of the actual number of days elapsed in
such period and a year of 360 days. "Distribution Period" means
the period from and including a Distribution Date (or _______,
1997, in the case of the first Distribution Period) to but
excluding the next Distribution Date. If a Distribution Date is
not a Business Day, then such Distribution Date and the first day
of the next succeeding Distribution Period will be the next
succeeding Business Day, except if such Business Day is in the
next succeeding calendar month, such Distribution Date and the
first day of the next succeeding Distribution Period will be the
immediately preceding Business Day. As long as no Event of
Default has occurred and is continuing under the Indenture, the
Debenture Issuer has the right under the Indenture to defer
payments of interest by extending the interest payment period at
any time and from time to time on the Debentures for a period not
exceeding 20 consecutive quarterly periods, including the first
such quarterly period during such period (each an "Extension
Period"), during which Extension Period no interest shall be due
and payable on the Debentures, provided that no Extension Period
shall extend beyond the Maturity Date of the Debentures. As a
consequence of such deferral, Distributions will also be
deferred. Despite such deferral, quarterly Distributions will
continue to accumulate with additional interest thereon (to the
extent permitted by applicable law but not at a rate greater than
the rate at which interest is then accruing on the Debentures) at
the Distribution Rate then in effect compounded quarterly during
any such Extension Period. At the end of the Extension Period,
all accrued and unpaid Distributions (but only to the extent
payments are made in respect of the
I-2
Debentures held by the Property Trustee and to the extent the Property
Trustee has funds available therefor) will be payable to the Holders
as they appear on the books and records of the Trust on the first
record date after the end of the Extension Period. Prior to the
termination of any such Extension Period, the Debenture Issuer may
further defer payments of interest by further extending such Extension
Period; provided that such Extension Period, together with all such
previous and further extensions within such Extension Period, may not
exceed 20 consecutive quarterly periods, including the first quarterly
period during such Extension Period, or extend beyond the Maturity
Date of the Debentures. Upon the termination of any Extension Period
and the payment of all amounts then due, the Debenture Issuer may
commence a new Extension Period, subject to the above requirements.
(c) Distributions on the Securities will be payable to
the Holders thereof as they appear on the books and records of
the Trust on the [first day of the month in which] the relevant
Distribution Date occurs, which Distribution Dates correspond to
the interest payment dates on the Debentures. Subject to any
applicable laws and regulations and the provisions of the
Declaration, each such payment in respect of the Capital
Securities will be made as described under the heading
"Description of Capital Securities -- Form, Denomination, Book-
Entry Procedures and Transfer" in the Prospectus dated _______,
1997, of the Debenture Issuer and the Trust relating to the
Securities and the Debentures. The relevant record dates for the
Common Securities shall be the same as the record dates for the
Capital Securities. Distributions payable on any Securities that
are not punctually paid on any Distribution Date, as a result of
the Debenture Issuer having failed to make a payment under the
Debentures, will cease to be payable to the Holder on the
relevant record date, and such defaulted Distribution will
instead be payable to the Person in whose name such Securities
are registered on the special record date or other specified date
determined in accordance with the Indenture.
(d) The Bank of New York shall act as Calculation
Agent to determine LIBOR and calculate the Distribution Rate of,
and the amount of Distributions payable on, the Securities for
each Distribution Period pursuant to the terms set forth herein
and in the Securities.
(e) In the event that there is any money or other
property held by or for the Trust that is not accounted for
hereunder, such property shall be distributed Pro Rata (as
defined herein) among the Holders of the Securities.
I-3
3. Liquidation Distribution Upon Dissolution.
In the event of any termination of the Trust or the
Sponsor otherwise gives notice of its election to liquidate the
Trust pursuant to Section 8.1(a)(iii) of the Declaration, the
Trust shall be liquidated by the Administrative Trustees as
expeditiously as the Administrative Trustees determine to be
possible by distributing, after satisfaction of liabilities to
creditors of the Trust as provided by applicable law, to the
Holders of the Securities a Like Amount (as defined below) of the
Debentures, unless such distribution is determined by the
Property Trustee not to be practicable, in which event such
Holders will be entitled to receive out of the assets of the
Trust legally available for distribution to Holders, after
satisfaction of liabilities to creditors of the Trust as provided
by applicable law, an amount equal to the aggregate of the
liquidation amount of $1,000 per Security plus accumulated and
unpaid Distributions thereon to the date of payment (such amount
being the "Liquidation Distribution").
"Like Amount" means (i) with respect to a redemption of
the Securities, Securities having a Liquidation Amount equal to
the principal amount of Debentures to be paid in accordance with
their terms and (ii) with respect to a distribution of Debentures
upon the liquidation of the Trust, Debentures having a principal
amount equal to the Liquidation Amount of the Securities of the
Holder to whom such Debentures are distributed.
If, upon any such liquidation, the Liquidation
Distribution can be paid only in part because the Trust has
insufficient assets on hand legally available to pay in full the
aggregate Liquidation Distribution, then the amounts payable
directly by the Trust on the Securities shall be paid on a Pro
Rata basis.
4. Redemption and Distribution.
(a) Upon the repayment of the Debentures in whole or
in part, at maturity or upon early redemption in accordance with
the terms thereof, the proceeds from such repayment shall be
simultaneously applied by the Property Trustee (subject to the
Property Trustee having received notice no later than 45 days
prior to such repayment) to redeem a Like Amount of the
Securities at a redemption price equal to (i) in the case of the
repayment of the Debentures at maturity, the Maturity Redemption
Price (as defined below), (ii) in the case of the optional
redemption of the Debentures upon the occurrence and continuation
of a Special Event, the Early Redemption Price (as defined below)
and (iii) in the case of the optional redemption of the
Debentures other than as a result of the occurrence and
continuance of a Special Event, the Early Redemption Price. The
Maturity Redemption Price and the Early Redemption Price are
referred to collectively as the "Redemption Price". Holders will
be given
I-4
not less than 30 nor more than 60 days notice of such redemption.
(b) (i) "Maturity Redemption Price" shall mean a price
equal to 100% of the Liquidation Amount of the Securities to be
redeemed plus accumulated and unpaid Distributions thereon, if
any, to the date of redemption.
(ii) Early Redemption Price" shall mean a price equal
to 100% of the Liquidation Amount of the Securities to be
redeemed plus accumulated and unpaid Distributions thereon, if
any, to the date of redemption.
(c) On and from the date fixed by the Administrative
Trustees for any distribution of Debentures and liquidation of
the Trust: (i) the Securities will no longer be deemed to be
outstanding, (ii) the Clearing Agency or its nominee (or any
successor Clearing Agency or its nominee), as the Holder of the
Capital Securities, will receive a registered global certificate
or certificates representing the Debentures to be delivered upon
such distribution and any certificates representing Securities
not held by the Clearing Agency or its nominee (or any successor
Clearing Agency or its nominee) will be deemed to represent
beneficial interests in a Like Amount of Debentures until such
certificates are presented to the Debenture Issuer or its agent
for transfer or reissue.
(d) The Trust may not redeem fewer than all the
outstanding Securities unless all accumulated and unpaid
Distributions have been paid on all Securities for all quarterly
Distribution periods terminating on or before the date of
redemption.
(e) The procedure with respect to redemptions or
distributions of Debentures shall be as follows:
(i) Notice of any redemption of, or notice of
distribution of Debentures in exchange for, the Securities
(a "Redemption/Distribution Notice") will be given by the
Trust by mail to each Holder of Securities to be redeemed or
exchanged not fewer than 30 nor more than 60 days before the
date fixed for redemption or exchange thereof which, in the
case of a redemption, will be the date fixed for redemption
of the Debentures. For purposes of the calculation of the
date of redemption or exchange and the dates on which
notices are given pursuant to this Section 4(f)(i), a
Redemption/ Distribution Notice shall be deemed to be given
on the day such notice is first mailed by first-class mail,
postage prepaid, to Holders of Securities. Each
Redemption/Distribution Notice shall be addressed to the
Holders of Securities at the address of each such Holder
appearing in the books and records of the Trust. No defect
in the Redemption/Distribution Notice or in the mailing of
either thereof with respect to any Holder shall affect the
validity of the
I-5
redemption or exchange proceedings with respect to any other
Holder.
(ii) In the event that fewer than all the outstanding
Securities are to be redeemed, the Securities to be redeemed
shall be redeemed Pro Rata from each Holder of Capital
Securities, it being understood that, in respect of Capital
Securities registered in the name of and held of record by
the Clearing Agency or its nominee (or any successor
Clearing Agency or its nominee) or any nominee, the
distribution of the proceeds of such redemption will be made
to the Clearing Agency and disbursed by such Clearing Agency
in accordance with the procedures applied by such agency or
nominee.
(iii) If Securities are to be redeemed and the Trust
gives a Redemption/Distribution Notice, (which notice will
be irrevocable), then (A) with respect to Capital Securities
issued in book-entry form, by 12:00 noon, New York City
time, on the redemption date, provided that the Debenture
Issuer has paid the Property Trustee a sufficient amount of
cash in connection with the related redemption or maturity
of the Debentures by 10:00 a.m., New York City time, on the
maturity date or the date of redemption, as the case
requires, the Property Trustee will deposit irrevocably with
the Clearing Agency or its nominee (or successor Clearing
Agency or its nominee) funds sufficient to pay the
applicable Redemption Price with respect to such Capital
Securities and will give the Clearing Agency irrevocable
instructions and authority to pay the Redemption Price to
the relevant Clearing Agency Participants, and (B) with
respect to Capital Securities issued in certificated form
and Common Securities, provided that the Debenture Issuer
has paid the Property Trustee a sufficient amount of cash in
connection with the related redemption or maturity of the
Debentures, the Property Trustee will pay the relevant
Redemption Price to the Holders of such Securities by check
mailed to the address of the relevant Holder appearing on
the books and records of the Trust on the redemption date.
If a Redemption/Distribution Notice shall have been given
and funds deposited as required, if applicable, then
immediately prior to the close of business on the date of
such deposit, or on the redemption date, as applicable,
Distributions will cease to accumulate on the Securities so
called for redemption and all rights of Holders of such
Securities so called for redemption will cease, except the
right of the Holders of such Securities to receive the
Redemption Price, but without interest on such Redemption
Price, and such Securities shall cease to be outstanding.
(iv) Payment of accumulated and unpaid Distributions
on the Redemption Date of the Securities will be subject to
I-6
the rights of Holders of Securities on the close of business
on a regular record date in respect of a Distribution Date
occurring on or prior to such Redemption Date.
Neither the Administrative Trustees nor the Trust shall
be required to register or cause to be registered the transfer of
(i) any Securities beginning on the opening of business 15 days
before the day of mailing of a notice of redemption or any notice
of selection of Securities for redemption or (ii) any Securities
selected for redemption except the unredeemed portion of any
Security being redeemed. If any date fixed for redemption of
Securities is not a Business Day, then payment of the Redemption
Price payable on such date will be made on the next succeeding
day that is a Business Day (and without any interest or other
payment in respect of any such delay), with the same force and
effect as if made on such date fixed for redemption. If payment
of the Redemption Price in respect of any Securities is
improperly withheld or refused and not paid either by the
Property Trustee or by the Sponsor as guarantor pursuant to the
relevant Securities Guarantee, Distributions on such Securities
will continue to accumulate from the original redemption date to
the actual date of payment, in which case the actual payment date
will be considered the date fixed for redemption for purposes of
calculating the Redemption Price.
(v) Redemption/Distribution Notices shall be sent by
the Property Trustee on behalf of the Trust to (A) in
respect of the Capital Securities, the Clearing Agency or
its nominee (or any successor Clearing Agency or its
nominee) if the Global Certificates have been issued or, if
Definitive Capital Security Certificates have been issued,
to the Holder thereof, and (B) in respect of the Common
Securities to the Holder thereof.
(vi) Subject to the foregoing and applicable law
(including, without limitation, United States Federal
securities laws and banking laws), provided the acquiror is
not the Holder of the Common Securities or the obligor under
the Indenture, the Sponsor or any of its subsidiaries may at
any time and from time to time purchase outstanding Capital
Securities by tender, in the open market or by private
agreement.
5. Voting Rights - Capital Securities.
(a) Except as provided under Sections 5(b) and 7 and
as otherwise required by law and the Declaration, the Holders of
the Capital Securities will have no voting rights.
(b) So long as any Debentures 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
I-7
the Debenture Trustee, or executing any trust or power conferred
on such Debenture Trustee with respect to the Debentures, (ii)
waive any past default that is waivable under Section 5.07 of the
Indenture, (iii) exercise any right to rescind or annul a
declaration of acceleration of the maturity of the principal of
the Debentures or (iv) consent to any amendment, modification or
termination of the Indenture or the Debentures, where such
consent shall be required, without, in each case, obtaining the
prior approval of the Holders of a majority in liquidation amount
of all outstanding Capital Securities; provided, however, that
where a consent under the Indenture would require the consent of
each holder of Debentures affected thereby, no such consent shall
be given by the Property Trustee without the prior approval of
each Holder of the Capital Securities. The Trustees shall not
revoke any action previously authorized or approved by a vote of
the Holders of the Capital Securities except by subsequent vote
of such Holders. The Property Trustee shall notify each Holder
of Capital Securities of any notice of default with respect to
the Debentures. In addition to obtaining the foregoing approvals
of such Holders of the Capital Securities, prior to taking any of
the foregoing actions, the Trustees shall obtain an opinion of
counsel experienced in such matters to the effect that the Trust
will not be classified as an association taxable as a corporation
for United States Federal income tax purposes on account of such
action.
If an Event of Default under the Declaration has
occurred and is continuing and such event is attributable to the
failure of the Debenture Issuer to pay principal of or premium,
if any, or interest on the Debentures on the date such principal,
premium, if any, or interest is otherwise payable (or in the case
of redemption, on the redemption date), then a Holder of Capital
Securities may directly institute a proceeding for enforcement of
payment to such Holder of the principal of or premium, if any, or
interest on a Like Amount of Debentures (a "Direct Action") on or
after the respective due date specified in the Debentures. In
connection with such Direct Action, the rights of the Common
Securities Holder will be subrogated to the rights of such Holder
of Capital Securities to the extent of any payment made by the
Debenture Issuer to such Holder of Capital Securities in such
Direct Action. Except as provided in the second preceding
sentence, the Holders of Capital Securities will not be able to
exercise directly any other remedy available to the holders of
the Debentures.
Any approval or direction of Holders of Capital
Securities may be given at a separate meeting of Holders of
Capital Securities convened for such purpose, at a meeting of all
of the Holders of Securities in the Trust or pursuant to written
consent. The Property Trustees will cause a notice of any
meeting at which Holders of Capital Securities are entitled to
vote, or of any matter upon which action by written consent of
such
I-8
Holders is to be taken, to be mailed to each Holder of record of
Capital Securities. Each such notice will include a statement setting
forth (i) the date of such meeting or the date by which such action is
to be taken, (ii) a description of any resolution proposed for
adoption at such meeting on which such Holders are entitled to vote or
of such matter upon which written consent is sought and (iii)
instructions for the delivery of proxies or consents.
No vote or consent of the Holders of the Capital
Securities will be required for the Trust to redeem and cancel
Capital Securities or to distribute the Debentures in accordance
with the Declaration and the terms of the Securities.
Notwithstanding that Holders of Capital Securities are
entitled to vote or consent under any of the circumstances
described above, any of the Capital Securities that are owned by
the Sponsor or any Affiliate of the Sponsor shall not be entitled
to vote or consent and shall, for purposes of such vote or
consent, be treated as if they were not outstanding.
6. Voting Rights - Common Securities.
(a) Except as provided under Sections 6(b), 6(c), and
7 as otherwise required by law and the Declaration, the Holders
of the Common Securities will have no voting rights.
(b) Unless a Debenture Event of Default shall have
occurred and be continuing, any Trustee may be removed at any
time by the holder of the Common Securities. If a Debenture
Event of Default has occurred and is continuing, the Property
Trustee and the Delaware Trustee may be removed at such time by
the holders of a majority in liquidation amount of the
outstanding Capital Securities. In no event will the holders of
the Capital Securities have the right to vote to appoint, remove
or replace the Administrative Trustees, which voting rights are
vested exclusively in the Sponsor as the holder of the Common
Securities. No resignation or removal of a Trustee and no
appointment of a successor trustee shall be effective until the
acceptance of appointment by the successor trustee in accordance
with the provisions of the Declaration.
(c) So long as any Debentures 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 Debenture Trustee, or executing any trust or power conferred
on such Debenture Trustee with respect to the Debentures, (ii)
waive any past default that is waivable under Section 5.07 of the
Indenture, (iii) exercise any right to rescind or annul a
declaration of acceleration of the maturity of the principal of
the Debentures or (iv) consent to any amendment, modification or
termination of the Indenture or the Debentures, where such
I-9
consent shall be required, without, in each case, obtaining the
prior approval of the Holders of a majority in liquidation amount
of all outstanding Common Securities; provided, however, that
where a consent under the Indenture would require the consent of
each holder of Debentures affected thereby, no such consent shall
be given by the Property Trustee without the prior approval of
each Holder of the Common Securities. The Trustees shall not
revoke any action previously authorized or approved by a vote of
the Holders of the Common Securities except by subsequent vote of
such Holders. The Property Trustee shall notify each Holder of
Common Securities of any notice of default with respect to the
Debentures. In addition to obtaining the foregoing approvals of
such Holders of the Common Securities, prior to taking any of the
foregoing actions, the Trustees shall obtain an opinion of
counsel experienced in such matters to the effect that the Trust
will not be classified as an association taxable as a corporation
for United States Federal income tax purposes on account of such
action.
If an Event of Default under the Declaration has
occurred and is continuing and such event is attributable to the
failure of the Debenture Issuer to pay principal of or premium,
if any, or interest on the Debentures on the date such principal,
premium, if any, or interest is otherwise payable (or in the case
of redemption, on the redemption date), then a Holder of Common
Securities may institute a Direct Action for enforcement of
payment to such Holder of the principal of or premium, if any, or
interest on a Like Amount of Debentures on or after the
respective due date specified in the Debentures. In connection
with Direct Action, the rights of the Common Securities Holder
will be subordinated to the rights of such Holder of Capital
Securities to the extent of any payment made by the Debenture
Issuer to such Holder of Common Securities in such Direct Action.
Except as provided in the second preceding sentence, the Holders
of Common Securities will not be able to exercise directly any
other remedy available to the holders of the Debentures.
Any approval or direction of Holders of Common
Securities may be given at a separate meeting of Holders of
Common Securities convened for such purpose, at a meeting of all
of the Holders of Securities in the Trust or pursuant to written
consent. The Administrative Trustees will cause a notice of any
meeting at which Holders of Common Securities are entitled to
vote, or of any matter upon which action by written consent of
such Holders is to be taken, to be mailed to each Holder of
record of Common Securities. Each such notice will include a
statement setting forth (i) the date of such meeting or the date
by which such action is to be taken, (ii) a description of any
resolution proposed for adoption at such meeting on which such
Holders are entitled to vote or of such matter upon which written
consent is sought and (iii) instructions for the delivery of
proxies or consents.
I-10
No vote or consent of the Holders of the Common
Securities will be required for the Trust to redeem and cancel
Common Securities or to distribute the Debentures in accordance
with the Declaration and the terms of the Securities.
7. Amendments to Declaration and Indenture.
In addition to the requirements set out in Section 12.1
of the Declaration, the Declaration may be amended from time to
time by the Sponsor, the Property Trustee and the Administrative
Trustees, without the consent of the Holders of the Securities
(i) to cure any ambiguity, correct or supplement any provisions
in the Declaration that may be inconsistent with any other
provisions, or to make any other provisions with respect to
matters or questions arising under the Declaration which shall
not be inconsistent with the other provisions of the Declaration,
or (ii) to modify, eliminate or add to any provisions of the
Declaration to such extent as shall be necessary to ensure that
the Trust will be classified for United States Federal income tax
purposes as a grantor trust at all times that any Securities are
outstanding or to ensure that the Trust will not be required to
register as an "Investment Company" under the Investment Company
Act; provided, however, that in the case of clause (i), such
action shall not adversely affect in any material respect the
interests of any Holder of Securities, and any amendments of the
Declaration shall become effective when notice thereof is given
to the holders of the Securities. The Declaration may be amended
by the Trustees and the Sponsor with (i) the consent of Holders
representing a majority in liquidation amount of all outstanding
Securities, 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 for United
States Federal income tax purposes or the Trust's exemption from
status as an Investment Company under the Investment Company Act,
provided that, without the consent of each Holder of Trust
Securities, the Declaration 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 or (ii) restrict the right of a holder of Trust
Securities to institute suit for the enforcement of any such
payment on or after such date.
8. Pro Rata.
A reference in these terms of the Securities to any
payment, distribution or treatment as being "Pro Rata" shall mean
pro rata to each Holder of Securities according to the aggregate
liquidation amount of the Securities held by the relevant Holder
in relation to the aggregate liquidation amount of all Securities
outstanding unless, in relation to a payment, an Event of Default
I-11
under the Declaration has occurred and is continuing, in which
case any funds available to make such payment shall be paid first
to each Holder of the Capital Securities pro rata according to
the aggregate liquidation amount of Capital Securities held by
the relevant Holder relative to the aggregate liquidation amount
of all Capital Securities outstanding, and only after
satisfaction of all amounts owed to the Holders of the Capital
Securities, to each Holder of Common Securities pro rata
according to the aggregate liquidation amount of Common
Securities held by the relevant Holder relative to the aggregate
liquidation amount of all Common Securities outstanding.
9. Ranking.
The Capital Securities rank pari passu with the Common
Securities and payment thereon shall be made Pro Rata with the
Common Securities, except that, if an Event of Default under the
Declaration occurs and is continuing, no payments in respect of
Distributions on, or payments upon liquidation, redemption or
otherwise with respect to, the Common Securities shall be made
until the Holders of the Capital Securities shall be paid in full
the Distributions, Redemption Price, Liquidation Distribution and
other payments to which they are entitled at such time.
10. Acceptance of Securities Guarantee and Indenture.
Each Holder of Capital Securities and Common
Securities, by the acceptance thereof, agrees to the provisions
of the Capital Securities Guarantee and the Common Securities
Guarantee, respectively, including the subordination provisions
therein and to the provisions of the Indenture.
11. No Preemptive Rights.
The Holders of the Securities shall have no preemptive
rights to subscribe for any additional securities.
12. Miscellaneous.
These terms constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration, the
Capital Securities Guarantee or the Common Securities Guarantee
(as may be appropriate), the Indenture (including any
supplemental indenture) to a Holder without charge on written
request to the Sponsor at its principal place of business.
I-12
EXHIBIT A-1
FORM OF CAPITAL SECURITY CERTIFICATE
[FORM OF FACE OF SECURITY]
[IF THIS CAPITAL SECURITY IS A GLOBAL CAPITAL SECURITY,
INSERT: THIS CAPITAL SECURITY IS A GLOBAL CAPITAL SECURITY
WITHIN THE MEANING OF THE DECLARATION HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (THE
"CLEARING AGENCY") OR A NOMINEE OF THE CLEARING AGENCY. THIS
CAPITAL SECURITY IS EXCHANGEABLE FOR CAPITAL SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE CLEARING AGENCY
OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
DECLARATION AND NO TRANSFER OF THIS CAPITAL SECURITY (OTHER THAN
A TRANSFER OF THIS CAPITAL SECURITY AS A WHOLE BY THE CLEARING
AGENCY TO A NOMINEE OF THE CLEARING AGENCY OR BY A NOMINEE OF THE
CLEARING AGENCY TO THE CLEARING AGENCY OR ANOTHER NOMINEE OF THE
CLEARING AGENCY) MAY BE REGISTERED EXCEPT IN LIMITED
CIRCUMSTANCES.
UNLESS THIS CAPITAL SECURITY IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55
WATER STREET, NEW YORK, NEW YORK) TO THE TRUST OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CAPITAL
SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY AND ANY PAYMENT HEREON IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY A PERSON IS WRONGFUL SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS SECURITY IS NOT A SAVINGS OR DEPOSIT ACCOUNT OR
OTHER OBLIGATION OF A BANK AND IS NOT INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
A1-1
Certificate Number Number of Capital Securities
CUSIP NO. __________
Certificate Evidencing Capital Securities
of
BANKBOSTON CAPITAL TRUST III
Floating Rate Capital Securities
(liquidation amount $1,000 per Capital Security)
BANKBOSTON CAPITAL TRUST III, a statutory business
trust formed under the laws of the State of Delaware (the
"Trust"), hereby certifies that ______________ (the "Holder") is
the registered owner of __________ securities of the Trust
representing undivided beneficial interests in the assets of the
Trust designated the Floating Rate Capital Securities
(liquidation amount $1,000 per Capital Security) (the "Capital
Securities"). The Capital 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. The designation, rights, privileges,
restrictions, preferences and other terms and provisions of the
Capital Securities represented hereby are issued and shall in all
respects be subject to the provisions of the Amended and Restated
Declaration of Trust of the Trust dated as of _______, 1997, as
the same may be amended from time to time (the "Declaration"),
including the designation of the terms of the Capital Securities
as set forth in Annex I to the Declaration. Capitalized terms
used but not defined herein shall have the meaning given them in
the Declaration. The Sponsor will provide a copy of the
Declaration, the Capital Securities Guarantee and the Indenture
to a Holder without charge upon written request to the Trust at
its principal place of business.
Upon receipt of this certificate, the Holder is bound
by the Declaration and is entitled to the benefits thereunder and
to the benefits of the Capital Securities Guarantee to the extent
provided therein.
By acceptance, the Holder agrees to treat, for United
States Federal income tax purposes, the Debentures as
indebtedness and the Capital Securities as evidence of indirect
beneficial ownership in the Debentures.
A1-2
IN WITNESS WHEREOF, the Trust has executed this
certificate this ____ day of __________, ____.
BANKBOSTON CAPITAL TRUST III
By:________________________________
Name:
Administrative Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Capital Securities referred to in
the within-mentioned Declaration.
Dated: ,
THE BANK OF NEW YORK,
as Property Trustee
By:
Authorized Signatory
A1-3
[FORM OF REVERSE OF SECURITY]
Distributions on each Capital Security will be payable
at a rate per annum equal to LIBOR plus ____% (the "Distribution
Rate") of the stated Liquidation Amount of $1,000 per Capital
Security, such rate being the rate of interest payable on the
Debentures to be held by the Property Trustee. LIBOR and the
amount payable in respect of a Distribution for a Distribution
Period will be calculated by the Calculation Agent in the same
manner as LIBOR and the interest payable in respect of each
Interest Period for the Debentures, as set forth in the
Indenture. Distributions in arrears for more than one quarterly
period will bear additional distributions thereon compounded
quarterly at the applicable periodic Distribution Rate (to the
extent permitted by applicable law). The term "Distributions",
as used herein, includes any such additional distributions unless
otherwise stated. A Distribution is payable only to the extent
that payments are made in respect of the Debentures held by the
Property Trustee and to the extent the Property Trustee has funds
on hand legally available therefor.
Distributions on the Capital Securities will be
cumulative, will accumulate from the most recent date to which
Distributions have been paid or, if no Distributions have been
paid, from _______, 1997, to but excluding the related
Distribution Date (as defined herein) and will be payable
quarterly in arrears on _______, _______, _______, and _______ of
each year, commencing on _______, 1997 (each, a "Distribution
Date"), except as otherwise described below and in the
Declaration. The amount of Distributions payable for any
Distribution Period will be computed on the basis of the actual
number of days elapsed in such period and a year of 360 days.
"Distribution Period" means the period from and including a
Distribution Date (or _______, 1997, in the case of the first
Distribution Period) to but excluding the next Distribution Date.
If a Distribution Date is not a Business Day, then such
Distribution Date and the first day of the next succeeding
Distribution Period will be the next succeeding Business Day,
except if such Business Day is in the next succeeding calendar
month, such Distribution Date and the first day of the next
succeeding Distribution Period will be the immediately preceding
Business Day. As long as no Event of Default has occurred and is
continuing under the Indenture, the Debenture Issuer has the
right under the Indenture to defer payments of interest by
extending the interest payment period at any time and from time
to time on the Debentures for a period not exceeding 20
consecutive quarterly periods, including the first such quarterly
period during such period (each an "Extension Period"), during
which Extension Period no interest shall be due and payable on
the Debentures, provided that no Extension Period shall extend
beyond the Maturity Date of the Debentures. As a consequence of
such deferral, Distributions will also be deferred. Despite such
deferral, quarterly Distributions will con-
A1-4
tinue to accumulate with additional interest thereon (to the extent
permitted by applicable law but not at a rate greater than the rate at
which interest is then accruing on the Debentures) at the Distribution
Rate then in effect compounded quarterly during any such Extension
Period. At the end of the Extension Period, all accrued and unpaid
Distributions (but only to the extent payments are made in respect of
the Debentures held by the Property Trustee and to the extent the
Property Trustee has funds available therefor) will be payable to the
Holders as they appear on the books and records of the Trust on the
first record date after the end of the Extension Period. Prior to the
termination of any such Extension Period, the Debenture Issuer may
further defer payments of interest by further extending such Extension
Period; provided that such Extension Period, together with all such
previous and further extensions within such Extension Period, may not
exceed 20 consecutive quarterly periods, including the first quarterly
period during such Extension Period, or extend beyond the Maturity
Date of the Debentures. Upon the termination of any Extension Period
and the payment of all amounts then due, the Debenture Issuer may
commence a new Extension Period, subject to the above requirements.
Subject to the prior approval of the Federal Reserve
Board if such approval is then required under applicable law or
capital guidelines or policies of the Federal Reserve Board and
to certain other conditions set forth in the Declaration and the
Indenture, the Property Trustee may, at the direction of the
Sponsor, at any time liquidate the Trust and cause the Debentures
to be distributed to the holders of the Securities in liquidation
of the Trust or, simultaneous with any redemption of the
Debentures, cause a Like Amount of the Securities to be redeemed
by the Trust.
The Capital Securities shall be redeemable as provided
in the Declaration.
A1-5
_____________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Capital Security Certificate to:
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
(Insert assignee's social security or tax identification number)
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
_________________________________________________________________
_________________________________________________________________
___________________________________________________________ agent
to transfer this Capital Security 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
Capital Security Certificate)
Signature Guarantee*: ___________________________________
___________________________________
* Signature must be guaranteed by an "eligible guarantor
institution" that is a bank, stockbroker, savings and loan
association or credit union meeting the requirements of the
Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee
program" as may be determined by the Registrar in addition
to, or in substitution for, STAMP, all in accordance with
the Securities and Exchange Act of 1934, as amended.
A1-6
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number Number of Common Securities
Certificate Evidencing Common Securities
of
BankBoston Capital Trust III
Floating Rate Common Securities
(liquidation amount $1,000 per Common Security)
BANKBOSTON CAPITAL TRUST III, a statutory business
trust formed under the laws of the State of Delaware (the
"Trust"), hereby certifies that BankBoston Corporation (the
"Holder") is the registered owner of __________ common securities
of the Trust representing undivided beneficial interests in the
assets of the Trust designated the Floating Rate Common
Securities (liquidation amount $1,000 per Common Security) (the
"Common Securities"). The Common Securities are not
transferable. The designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Common
Securities represented hereby are issued and shall in all
respects be subject to the provisions of the Amended and Restated
Declaration of Trust of the Trust dated as of _______, 1997, as
the same may be amended from time to time (the "Declaration"),
including the designation of the terms of the Common Securities
as set forth in Annex I to the Declaration. Capitalized terms
used but not defined herein shall have the meaning given them in
the Declaration. The Sponsor will provide a copy of the
Declaration, the Common Securities Guarantee and the Indenture
(including any supplemental indenture) to a Holder without charge
upon written request to the Sponsor at its principal place of
business.
Upon receipt of this certificate, the Sponsor is bound
by the Declaration and is entitled to the benefits thereunder and
to the benefits of the Common Securities Guarantee to the extent
provided therein.
By acceptance, the Holder agrees to treat, for United
States Federal income tax purposes, the Debentures as
indebtedness and the Common Securities as evidence of indirect
beneficial ownership in the Debentures.
A2-1
THIS SECURITY IS NOT A SAVINGS OR DEPOSIT ACCOUNT OR
OTHER OBLIGATION OF A BANK AND IS NOT INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
IN WITNESS WHEREOF, the Trust has executed this
certificate this ___ day of , ____.
BANKBOSTON CAPITAL TRUST III
By:________________________________
Name:
Administrative Trustee
A2-2
[FORM OF REVERSE OF SECURITY]
Distributions on each Common Security will be payable
at a rate per annum equal to LIBOR plus ____% (the "Distribution
Rate") of the stated Liquidation Amount of $1,000 per Common
Security, such rate being the rate of interest payable on the
Debentures to be held by the Property Trustee. LIBOR and the
amount payable in respect of a Distribution for a Distribution
Period will be calculated by the Calculation Agent in the same
manner as LIBOR and the interest payable in respect of each
Interest Period for the Debentures, as set forth in the
Indenture. Distributions in arrears for more than one quarterly
period will bear additional distributions thereon compounded
quarterly at the applicable periodic Distribution Rate (to the
extent permitted by applicable law). The term "Distributions",
as used herein, includes any such additional distributions unless
otherwise stated. A Distribution is payable only to the extent
that payments are made in respect of the Debentures held by the
Property Trustee and to the extent the Property Trustee has funds
on hand legally available therefor.
Distributions on the Common Securities will be
cumulative, will accumulate from the most recent date to which
Distributions have been paid or, if no Distributions have been
paid, from _______, 1997, to but excluding the related
Distribution Date (as defined herein) and will be payable
quarterly in arrears on _______, _______, _______, and _______ of
each year, commencing on _______, 1997 (each, a "Distribution
Date"), except as otherwise described below and in the
Declaration. The amount of Distributions payable for any
Distribution Period will be computed on the basis of the actual
number of days elapsed in such period and a year of 360 days.
"Distribution Period" means the period from and including a
Distribution Date (or _______, 1997, in the case of the first
Distribution Period) to but excluding the next Distribution Date.
If a Distribution Date is not a Business Day, then such
Distribution Date and the first day of the next succeeding
Distribution Period will be the next succeeding Business Day,
except if such Business Day is in the next succeeding calendar
month, such Distribution Date and the first day of the next
succeeding Distribution Period will be the immediately preceding
Business Day. As long as no Event of Default has occurred and is
continuing under the Indenture, the Debenture Issuer has the
right under the Indenture to defer payments of interest by
extending the interest payment period at any time and from time
to time on the Debentures for a period not exceeding 20
consecutive quarterly periods, including the first such quarterly
period during such period (each an "Extension Period"), during
which Extension Period no interest shall be due and payable on
the Debentures, provided that no Extension Period shall extend
beyond the Maturity Date of the Debentures. As a consequence of
such deferral, Distributions will also be deferred. Despite such
deferral, quarterly Distributions will continue to accumulate
with additional interest thereon (to the extent permitted by
applicable law but not at a rate greater than the rate at which
interest is then accruing on the Debentures) at
A2-3
the Distribution Rate then in effect compounded quarterly during any
such Extension Period. At the end of the Extension Period, all accrued
and unpaid Distributions (but only to the extent payments are made in
respect of the Debentures held by the Property Trustee and to the
extent the Property Trustee has funds available therefor) will be
payable to the Holders as they appear on the books and records of the
Trust on the first record date after the end of the Extension Period.
Prior to the termination of any such Extension Period, the Debenture
Issuer may further defer payments of interest by further extending
such Extension Period; provided that such Extension Period, together
with all such previous and further extensions within such Extension
Period, may not exceed 20 consecutive quarterly periods, including the
first quarterly period during such Extension Period, or extend beyond
the Maturity Date of the Debentures. Upon the termination of any
Extension Period and the payment of all amounts then due, the
Debenture Issuer may commence a new Extension Period, subject to the
above requirements.
Subject to the prior approval of the Federal Reserve
Board if such approval is then required under applicable law or
capital guidelines or policies of the Federal Reserve Board and
to certain other conditions set forth in the Declaration and the
Indenture, the Property Trustee may, at the direction of the
Sponsor, at any time liquidate the Trust and cause the Debentures
to be distributed to the holders to the Securities in liquidation
of the Trust or, simultaneous with any redemption of the
Debentures, cause a Like Amount of the Securities to be redeemed
by the Trust.
The Common Securities shall be redeemable as provided
in the Declaration.
A2-4