Exhibit 4.34
AMENDED AND RESTATED DECLARATION
OF TRUST
BANK ONE CAPITAL III
Dated as of August 30, 2000
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I INTERPRETATION AND DEFINITIONS.......................................... 2
SECTION 1.1 Definitions..................................................... 2
ARTICLE II TRUST INDENTURE ACT.................................................... 10
SECTION 2.1 Trust Indenture Act; Application................................ 10
SECTION 2.2 Lists of Holders of Securities.................................. 10
SECTION 2.3 Reports by the Institutional Trustee............................ 11
SECTION 2.4 Periodic Reports to Institutional Trustee....................... 11
SECTION 2.5 Evidence of Compliance with Conditions Precedent................ 11
SECTION 2.6 Events of Default; Waiver....................................... 11
SECTION 2.7 Event of Default; Notice........................................ 13
ARTICLE III ORGANIZATION.......................................................... 14
SECTION 3.1 Name............................................................ 14
SECTION 3.2 Office.......................................................... 14
SECTION 3.3 Purpose......................................................... 14
SECTION 3.4 Authority....................................................... 14
SECTION 3.5 Title to Property of the Trust.................................. 15
SECTION 3.6 Powers and Duties of the Regular Trustees....................... 15
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees............ 18
SECTION 3.8 Powers and Duties of the Institutional Trustee.................. 19
SECTION 3.9 Certain Duties and Responsibilities of the Institutional
Trustee....................................................... 21
SECTION 3.10 Certain Rights of Institutional Trustee......................... 23
SECTION 3.11 Delaware Trustee................................................ 25
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................................................................ 28
SECTION 4.1 Sponsor's Purchase of Common Securities......................... 28
SECTION 4.2 Responsibilities of the Sponsor................................. 29
ARTICLE V TRUSTEES................................................................ 29
SECTION 5.1 Number of Trustees.............................................. 29
SECTION 5.2 Delaware Trustee................................................ 30
SECTION 5.3 Institutional Trustee; Eligibility.............................. 30
SECTION 5.4 Certain Qualifications of Regular Trustees and Delaware Trustee
Generally..................................................... 31
SECTION 5.5 Regular Trustees................................................ 31
i
SECTION 5.6 Delaware Trustee................................................ 32
SECTION 5.7 Appointment, Removal and Resignation of Trustees................ 32
SECTION 5.8 Vacancies among Trustees........................................ 33
SECTION 5.9 Effect of Vacancies............................................. 34
SECTION 5.10 Meetings........................................................ 34
SECTION 5.11 Delegation of Power............................................. 35
SECTION 5.12 Merger, Conversion, Consolidation or Succession to Business..... 35
SECTION 5.13 Appointment of Authenticating Agent............................. 35
ARTICLE VI DISTRIBUTIONS.......................................................... 37
SECTION 6.1 Distributions................................................... 37
ARTICLE VII ISSUANCE OF SECURITIES................................................ 37
SECTION 7.1 General Provisions Regarding Securities......................... 37
SECTION 7.2 Execution and Delivery of Securities Certificates............... 38
SECTION 7.3 Paying Agent.................................................... 39
ARTICLE VIII TERMINATION OF TRUST................................................. 39
SECTION 8.1 Termination of Trust............................................ 39
ARTICLE IX TRANSFER OF INTERESTS.................................................. 40
SECTION 9.1 Transfer of Securities.......................................... 40
SECTION 9.2 Transfer of Certificates........................................ 41
SECTION 9.3 Deemed Security Holders......................................... 42
SECTION 9.4 Book Entry Interests............................................ 42
SECTION 9.5 Notices to Clearing Agency...................................... 43
SECTION 9.6 Appointment of Successor Clearing Agency........................ 43
SECTION 9.7 Definitive Preferred Security Certificates...................... 43
SECTION 9.8 Mutilated, Destroyed, Lost or Stolen Certificates............... 44
SECTION 9.9 Maintenance of Office or Agency................................. 45
ARTICLE X LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES,
TRUSTEES OR OTHERS........................................................... 45
SECTION 10.1 Liability....................................................... 45
SECTION 10.2 Exculpation..................................................... 46
SECTION 10.3 Fiduciary Duty.................................................. 46
SECTION 10.4 Indemnification................................................. 47
SECTION 10.5 Outside Businesses.............................................. 50
SECTION 10.6 Compensation; Fees.............................................. 51
ARTICLE XI ACCOUNTING............................................................. 51
SECTION 11.1 Fiscal Year..................................................... 51
SECTION 11.2 Certain Accounting Matters...................................... 51
SECTION 11.3 Banking......................................................... 52
ARTICLE XII AMENDMENTS AND MEETINGS............................................... 53
SECTION 12.1 Amendments...................................................... 53
SECTION 12.2 Meetings of the Holders of Securities; Action by Written
Consent....................................................... 55
ii
ARTICLE XIII REPRESENTATIONS OF INSTITUTIONAL TRUSTEEAND DELAWARE
TRUSTEE........................................................................ 56
SECTION 13.1 Representations and Warranties of Institutional Trustee......... 56
-------------------------------------------------------
SECTION 13.2 Representations and Warranties of Delaware Trustee.............. 57
--------------------------------------------------
ARTICLE XIVMISCELLANEOUS............................................................ 58
SECTION 14.1 Notices......................................................... 58
-------
SECTION 14.2 Governing Law................................................... 59
-------------
SECTION 14.3 Intention of the Parties........................................ 59
------------------------
SECTION 14.4 Headings........................................................ 59
--------
SECTION 14.5 Successors and Assigns.......................................... 59
----------------------
SECTION 14.6 Partial Enforceability.......................................... 60
----------------------
SECTION 14.7 Counterparts.................................................... 60
------------
iii
ANNEX I TERMS OF SECURITIES................................ I-1
EXHIBIT A-1 FORM OF PREFERRED SECURITY CERTIFICATE............. A1-1
EXHIBIT A-2 FORM OF COMMON SECURITY CERTIFICATE................ A2-1
EXHIBIT B SPECIMEN OF DEBENTURE.............................. B-1
EXHIBIT C UNDERWRITING AGREEMENT............................. C-1
iv
CROSS-REFERENCE TABLE*
Section of
Trust Indenture Act Section of
of 1939, as amended Declaration
- ------------------- -----------
310(a)............................................. 5.3(a)
310(c)............................................. Inapplicable
311(c)............................................. Inapplicable
312(a)............................................. 2.2(a)
312(b)............................................. 2.2(b)
313................................................ 2.3
314(a)............................................. 2.4
314(b)............................................. Inapplicable
314(c)............................................. 2.5
314(d)............................................. Inapplicable
314(f)............................................. Inapplicable
315(a)............................................. 3.9(b)
315(c)............................................. 3.9(a)
315(d)............................................. 3.9(a)
316(a)............................................. Annex I
316(c)............................................. 3.6(e)
_______________
* This Cross-Reference Table does not constitute part of the Declaration and
shall not affect the interpretation of any of its terms or provisions.
v
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
BANK ONE CAPITAL III
August 30, 2000
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") dated and
-----------
effective as of August 30, 2000 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 assets of the Trust to be issued pursuant to this
Declaration;
WHEREAS, the Delaware Trustee, the Regular Trustees and the Sponsor
created BANK ONE Capital III (the "Trust"), a business trust under the Delaware
-----
Business Trust Act pursuant to a Declaration of Trust dated as of June 17, 1999
(the "Original Declaration"), and a Certificate of Trust, dated June 17, 1999,
--------------------
filed with the Secretary of State of the State of Delaware on June 16, 1999 (the
"Original Certificate"), 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;
WHEREAS, the Original Certificate was amended and restated and such
amended and restated Certificate of Trust was filed with the Secretary of State
of Delaware on August 1, 2000;
WHEREAS, as of the date hereof, no interests in the Trust have been
issued;
WHEREAS, the parties hereto, 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 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.
2
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.
"Affiliate" has the same meaning as given to that term in Rule 405 of
---------
the Securities Act or any successor rule thereunder.
"Agent" means any Paying Agent.
-----
"Authenticating Agent" has the meaning set forth in Section 5.13.
--------------------
"Authorized Officer" of a Person means any Person that is authorized
------------------
to bind such Person.
"Bank" means Bank One Trust Company, N.A., a national banking
----
association, and any successor thereto.
"Book Entry Interest" means a beneficial interest in a Global
-------------------
Certificate, ownership and transfers of which shall be maintained and made
through book entries by a Clearing Agency as described in Section 9.4.
3
"Business Day" means a day other than (a) a Saturday or Sunday, (b) a
------------
day on which banking institutions in The City of New York or the City of Chicago
are authorized or required by law or executive order to remain closed, or (c) a
day on which the Institutional Trustee's Corporate Trust Office or the Corporate
Trust Office of the Debenture Trustee is closed for business.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
------------------
Code, 12 Del. Code '3801 et seq., as it may be amended from time to time, or any
------------ -- ---
successor legislation.
"Capital Treatment Event" has the meaning set forth in Annex I hereto.
----------------------- -------
"Certificate" means a Common Security Certificate or a Preferred
-----------
Security Certificate.
"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 Preferred 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 Preferred
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 Date" means the "Closing Time" and each "Date of Delivery"
------------ ------------ ----------------
under the Underwriting Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from time
----
to time, or any successor legislation.
"Commission" means the Securities and Exchange Commission.
----------
"Common Securities" has the meaning specified in Section 7.1.(a).
-----------------
"Common Securities Guarantee" means the guarantee agreement to be
---------------------------
dated as of August 30, 2000, of the Sponsor in respect of the Common Securities.
"Common Security Certificate" means a definitive certificate in fully
---------------------------
registered form representing a Common Security substantially in the form of
Exhibit A-2.
- -----------
4
"Company Indemnified Person" means (a) any Regular Trustee; (b) any
--------------------------
Affiliate of any Regular Trustee; (c) any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Regular Trustee;
or (d) any officer, employee or agent of the Trust or its Affiliates.
"Comparable Treasury Issue" means with respect to any redemption date,
-------------------------
the United States Treasury security selected by the Quotation Agent as having a
maturity comparable to the Remaining Life that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the Remaining
Life. If no United States Treasury security has a maturity which is within a
period from three months before to three months after September 1, 2030, the two
most closely corresponding United States Treasury securities will be used as the
Comparable Treasury Issue, and the Treasury Rate will be interpolated or
extrapolated on a straight-line basis, rounding to the nearest month using such
securities.
"Comparable Treasury Price" means (a) the average of five Reference
-------------------------
Treasury Dealer Quotations for the redemption date, after excluding the highest
and the lowest Reference Treasury Dealer Quotations, or (b) if the Debenture
Trustee obtains fewer than five Reference Treasury Dealer Quotations, the
average of all such quotations.
"Corporate Trust Office" means (i) when used with respect to the
----------------------
Institutional Trustee, the principal corporate trust office of the Institutional
Trustee located in New York, New York which on the date of this Declaration is
450 West 33rd Street, New York, New York 10001 - Attention: Capital Markets
Fiduciary Services, (ii) when used with respect to the Debenture Trustee, its
Principal Corporate Trust Office as defined in the Indenture, and (iii) when
used with respect to the Bank, the principal office of the Bank located in
Chicago, Illinois which on the date of this Declaration is 1 Bank One Plaza,
Chicago, Illinois 60670 - Attention: Corporate Trust Administration.
"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 BANK ONE CORPORATION, a Delaware corporation,
----------------
or any successor entity resulting from any consolidation, amalgamation, merger,
conversion or other business combination, in its capacity as issuer of the
Debentures under the Indenture.
"Debenture Trustee" means The Chase Manhattan Bank, a New York banking
-----------------
corporation, as trustee under the Indenture until a successor is appointed
thereunder, and thereafter means such successor trustee.
5
"Debentures" means the series of Debentures to be issued by the
----------
Debenture Issuer under the Indenture to be held by the Institutional Trustee, a
specimen certificate for such series of Debentures being Exhibit B.
---------
"Delaware Trustee" has the meaning set forth in Section 5.2.
----------------
"Definitive Preferred Security Certificates" has the meaning set forth
------------------------------------------
in Section 9.4.
"Direct Action" has the meaning set forth in Section 3.8(e).
-------------
"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" or "Declaration Event of Default" in respect of the
---------------- ----------------------------
Securities means an Event of Default (as defined in the Indenture) 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" means the Board of Governors of the Federal Reserve
---------------
System.
"Fiduciary Indemnified Person" has the meaning set forth in Section
----------------------------
10.4(b).
"Fiscal Year" has the meaning set forth in Section 11.1.
-----------
"Floating Rate Declaration" means that certain Amended and Restated
-------------------------
Declaration of Trust relating to Bank One Capital IV, dated as of August 30,
2000, by and among the Sponsor, The Chase Manhattan Bank, as Institutional
Trustee, Chase Manhattan Bank USA, National Association, as Delaware Trustee,
and the Regular Trustees named therein.
"Floating Rate Guarantee" means that certain Preferred Securities
-----------------------
Guarantee Agreement dated as of August 30, 2000, by and between the Sponsor and
The Chase Manhattan Bank, as Trustee.
"Global Certificate" has the meaning set forth in Section 9.4.
------------------
6
"Holder" means a Person in whose name a Certificate representing 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 January 1, 1997, among the
---------
Debenture Issuer and the Debenture Trustee, and any indenture supplemental
thereto pursuant to which the Debentures are to be issued.
"Institutional Trustee" means the Trustee meeting the eligibility
---------------------
requirements set forth in Section 5.3.
"Institutional Trustee Account" has the meaning set forth in Section
-----------------------------
3.8(c).
"Investment Company" means an investment company as defined in the
------------------
Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940, as
----------------------
amended from time to time, or any successor legislation.
"Investment Company Event" has the meaning set forth in Annex I
------------------------ -------
hereto.
"Legal Action" has the meaning set forth in Section 3.6(g).
------------
"List of Holders" has the meaning set forth in Section 2.2.
---------------
"Majority in liquidation amount of the Securities" means, except as
------------------------------------------------
provided in the terms of the Preferred Securities or by the Trust Indenture Act,
Holder(s) of outstanding Securities voting together as a single class or, as the
context may require, Holders of outstanding Preferred 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
accrued and unpaid Distributions to the date upon which the voting percentages
are determined) of all outstanding Securities of the relevant class.
"1999 Declaration" means that certain Amended and Restated Declaration
----------------
of Trust relating to Bank One Capital I, dated as of September 20, 1999, by and
among the Sponsor, The Chase Manhattan Bank, as Institutional Trustee, Chase
Manhattan Bank USA, National Association (successor to Chase Manhattan Bank
Delaware), as Delaware Trustee, and the Regular Trustees named therein.
7
"1999 Guarantee" means that certain Preferred Securities Guarantee
--------------
Agreement, dated as of September 20, 1999, by and between the Sponsor and The
Chase Manhattan Bank, as Trustee.
"1997 Declaration" means that certain Amended and Restated Declaration
----------------
of Trust relating to First Chicago NBD Capital I, dated as of January 31, 1997,
by and among the Sponsor, The Chase Manhattan Bank, as Institutional Trustee,
Chase Manhattan Bank USA, National Association (successor to Chase Manhattan
Bank Delaware), as Delaware Trustee, and the Regular Trustees named therein.
"1997 Guarantee" means that certain Preferred Securities Guarantee
--------------
Agreement dated as of January 31, 1997, by and between the Sponsor and The Chase
Manhattan Bank, as trustee.
"Officers' Certificate" means, with respect to any Person, a
---------------------
certificate signed by two Authorized Officers 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 Officer's 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 Officer's 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.
"Paying Agent" has the meaning specified in Section 3.8(h).
------------
"Person" means a legal person, including any individual, corporation,
------
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Preferred Securities" has the meaning specified in Section 7.1(a).
--------------------
"Preferred Securities Guarantee" means the guarantee agreement to be
------------------------------
dated as of August 30, 2000, of the Sponsor in respect of the Preferred
Securities.
8
"Preferred 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).
"Preferred Security Certificate" means a certificate representing a
------------------------------
Preferred Security substantially in the form of Exhibit A-1.
-----------
"Quorum" means a majority of the Regular Trustees or, if there are
------
only two Regular Trustees, both of them.
"Quotation Agent" means Salomon Smith Barney Inc. and its successors;
---------------
provided, however, that if the foregoing is no longer a primary United States
Government securities dealer in New York City, (a "Primary Treasury Dealer") the
Sponsor will substitute another Primary Treasury Dealer in its place.
"Reference Treasury Dealer" means the Quotation Agent and any other
-------------------------
Primary Treasury Dealer selected by the Debenture Trustee after consultation
with the Sponsor.
"Reference Treasury Dealer Quotation" means, with respect to each
-----------------------------------
Reference Treasury Dealer and any redemption date, the average, as determined by
the Debenture Trustee, of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount) quoted in
writing to the Debenture Trustee by a Reference Treasury Dealer at 5:00 p.m.,
New York City time, on the third Business Day preceding the redemption date.
"Regular Trustee" has the meaning set forth in Section 5.1.
---------------
"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.
"Remaining Life" means the period of time from the redemption date to
--------------
September 1, 2030.
"Responsible Officer" means, when used with respect to the
-------------------
Institutional Trustee or the Delaware Trustee, as the case may be, any officer
assigned to the Corporate Trust Office of the Institutional Trustee or the
corporate trust office of the Delaware Trustee, as the case may be, including
any managing director, vice president, assistant vice president, senior trust
officer, trust officer, assistant treasurer, assistant secretary or any other
officer of the Institutional Trustee or the Delaware Trustee, as the case may
be, customarily performing functions similar to those performed by any of the
above designated officers, and also, with respect to a particular matter, any
other officer,
9
to whom such matter is referred because of such 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" means the Common Securities and the Preferred Securities.
----------
"Securities Act" means the Securities Act of 1933, as amended from
--------------
time to time or any successor legislation.
"Securities Guarantees" means the Common Securities Guarantee and the
---------------------
Preferred Securities Guarantee.
"Securities Register" has the meaning set forth in Section 9.2.
-------------------
"Securities Registrar" has the meaning set forth Section 9.2.
--------------------
"Series A Declaration" means that certain Amended and Restated Trust
--------------------
Agreement relating to First Chicago NBD Institutional Capital A, dated as of
December 3, 1996, by and among, the Sponsor, The Chase Manhattan Bank, as
property trustee, and Chase Manhattan Bank Delaware, as Delaware trustee.
"Series B Declaration" means that certain Amended and Restated Trust
--------------------
Agreement relating to First Chicago NBD Institutional Capital B, dated as of
December 5, 1996, by and among, the Sponsor, The Chase Manhattan Bank, as
property trustee, and Chase Manhattan Bank Delaware, as Delaware trustee.
"Series A Guarantee" means that certain Guarantee Agreement, dated as
------------------
of December 3, 1996, by and between the Sponsor and The Chase Manhattan Bank, as
trustee.
"Series B Guarantee" means that certain Guarantee Agreement, dated as
------------------
of December 5, 1996, by and between the Sponsor and The Chase Manhattan Bank, as
trustee.
"Special Event" has the meaning set forth in Annex I hereto.
------------- -------
"Sponsor" means BANK ONE CORPORATION, a Delaware corporation, or any
-------
successor entity resulting from any merger, consolidation, amalgamation,
conversion or other business combination, in its capacity as sponsor of the
Trust.
"Successor Entity" has the meaning set forth in Section 3.15(b).
----------------
10
"Successor Institutional Trustee" has the meaning set forth in Section
-------------------------------
3.8(f)(ii).
"Successor Securities" has the meaning set forth in Section 3.15(b).
--------------------
"Super Majority" has the meaning set forth in Section 2.6(a)(ii).
--------------
"Tax Event" has the meaning set forth in Annex I hereto.
---------
"10% in liquidation amount of the Securities" means, except as
-------------------------------------------
provided in the terms of the Preferred Securities or by the Trust Indenture Act,
Holder(s) of outstanding Securities voting together as a single class or, as the
context may require, Holders of outstanding Preferred 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.
"Treasury Rate" means
-------------
(1) the yield, under the heading which represents the average for the
week immediately prior to the date of calculation, appearing in the most
recently published statistical release designated H.15(519) or any
successor publication which is published weekly by the Federal Reserve and
which establishes yields on actively traded United States Treasury
securities adjusted to constant maturity under the caption "Treasury
Constant Maturities", for the maturity corresponding to the Remaining Life
(if no maturity is within three months before or after the Remaining Life,
yields for the two published maturities most closely corresponding to the
Remaining Life will be determined and the Treasury Rate will be
interpolated or extrapolated from these yields on a straight-line basis,
rounding to the nearest month) or
(2) if such release (or any successor release) is not published during
the week preceding the calculation date or does not contain such yields,
the rate per annum equal to the semiannual equivalent yield to maturity of
the Comparable Treasury Issue, calculated using a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal to
the Comparable Treasury Price for the redemption date.
The Treasury Rate will be calculated on the third Business Day preceding the
redemption date.
"Treasury Regulations" means the income tax regulations, including
--------------------
temporary and proposed regulations, promulgated under the Code by the United
States
11
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.
"2000 Declaration" means that certain Amended and Restated Declaration
----------------
of Trust relating to Bank One Capital II, dated as August 8, 2000, by and among
the Sponsor, The Chase Manhattan Bank, as Institutional Trustee, Chase Manhattan
Bank USA, National Association, as Delaware Trustee, and the Regular Trustees
named therein.
"2000 Guarantee" means that certain Preferred Securities Guarantee
--------------
Agreement, dated as of August 8, 2000, by and between the Sponsor and The Chase
Manhattan Bank, as Trustee.
"Underwriting Agreement" means the Underwriting Agreement for the
----------------------
offering and sale of Preferred Securities substantially in the form of Exhibit
-------
C.
- -
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 Institutional 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 '' 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
12
(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 Regular Trustees on behalf of the
Trust shall provide the Institutional Trustee (i) within 14 days after each
record date for payment of Distributions, a list, in such form as the
Institutional 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 Regular Trustees on behalf of 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 Institutional
Trustee by the Sponsor and the Regular 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 Institutional Trustee. The Institutional 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 Institutional
-------- ----
Trustee may destroy any List of Holders previously given to it on receipt of a
new List of Holders.
(b) The Institutional Trustee shall comply with its obligations under
'' 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Institutional Trustee.
------------------------------------
Within 60 days after November 15 of each year commencing in 2000, the
Institutional Trustee shall provide to the Holders of the Preferred Securities
such reports as are required by ' 313(a) of the Trust Indenture Act, if any, in
the form and in the manner provided by ' 313 of the Trust Indenture Act. The
Institutional Trustee shall also comply with the other requirements of ' 313 of
the Trust Indenture Act. The Sponsor shall promptly notify the Institutional
Trustee when the Preferred Securities are listed on any stock exchange.
SECTION 2.4 Periodic Reports to Institutional Trustee.
-----------------------------------------
Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide to the Institutional Trustee such documents, reports and
information as required by ' 314 of the Trust Indenture Act (if any) and the
compliance certificate required by ' 314(a)(4) of the Trust Indenture Act in the
form, in the manner and at the times required by ' 314(a)(4) of the Trust
Indenture Act, such compliance certificate to be delivered annually on or before
120 days after the end of each fiscal year of the Sponsor.
13
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
------------------------------------------------
Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide to the Institutional Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Declaration that relate to
any of the matters set forth in 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to 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.
-------------------------
(a) The Holders of a Majority in liquidation amount of Preferred
Securities may, by vote, on behalf of the Holders of all of the Preferred
Securities, waive any past Event of Default in respect of the Preferred
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
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
liquidation amount of the Preferred 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 '
316(a)(1)(B) of the Trust Indenture Act and such ' 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
Preferred 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 Preferred
Securities or impair any right consequent thereon. Any waiver by the Holders of
the Preferred Securities of an Event of Default with respect to the Preferred
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.
The Holders of a Majority in liquidation amount of the Securities
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Institutional Trustee or to direct
the exercise of any trust or
14
power conferred upon the Institutional Trustee, including the right to direct
the Institutional Trustee to exercise the remedies available to it as a holder
of the Debentures; provided, however, that (subject to the provisions of Section
-------- -------
3.9) the Institutional Trustee shall have the right to decline to follow any
such direction if the Institutional Trustee shall determine that the action so
directed would be unjustly prejudicial to the Holders not taking part in such
direction or if the Institutional Trustee, being advised by counsel, determines
that the action or proceeding so directed may not lawfully be taken or if the
Institutional Trustee, in good faith, by its board of directors or trustees,
executive committee, or a trust committee of directors or trustees, and/or
Responsible Officers, shall determine that the action or proceeding so directed
would involve the Institutional Trustee in personal liability.
(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
(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 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 until all Events of Default with respect to the
Preferred Securities have been cured, waived or otherwise eliminated, and until
such Events of Default have been so cured, waived or otherwise eliminated, the
Institutional Trustee will be deemed to be acting solely on behalf of the
Holders of the Preferred Securities and only the Holders of the Preferred
Securities will have the right to direct the Institutional Trustee in accordance
with the terms of the Securities. The foregoing provisions of this Section
2.6(b) shall be in lieu of '' 316(a)(1)(A) and 316(a)(1)(B) of the Trust
Indenture Act and such '' 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
15
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
Institutional Trustee at the direction of the Holders of the Preferred
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 ' 316(a)(1)(B) of the Trust Indenture Act and such ' 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 Institutional 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 Institutional
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, 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 or in the
payment of any sinking fund installment established for the Debentures, the
Institutional Trustee shall be protected in withholding such notice if and so
long as a Responsible Officer of the Institutional Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders of the Securities.
(b) The Institutional Trustee shall not be deemed to have knowledge
of any default except:
(i) so long as the Institutional Trustee is a Paying Agent, a default
under Sections 7.01(i) and 7.01(ii) of the Indenture; or
(ii) any default as to which the Institutional Trustee shall have
received written notice or of which a Responsible Officer of the
Institutional Trustee charged with the administration of the Declaration
shall have actual knowledge.
16
ARTICLE III
ORGANIZATION
SECTION 3.1 Name.
----
The Trust is named "BANK ONE Capital III", as such name may be
modified from time to time by the Regular 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 Regular Trustees.
SECTION 3.2 Office.
------
The address of the principal office of the Trust is c/o BANK ONE
CORPORATION, 1 Bank One Plaza, Chicago, Illinois 60670. On ten Business Days
written notice to the Holders of Securities, the Regular Trustees may designate
another principal office.
SECTION 3.3 Purpose.
-------
The exclusive purposes and functions of the Trust are (a) to issue and
sell Securities and use the proceeds from such sale to acquire the Debentures,
and (b) except as otherwise limited herein, to engage in only those other
activities necessary, or incidental thereto. The Trust shall not borrow money,
issue debt or reinvest proceeds derived from investments, pledge any of its
assets, or otherwise undertake (or permit to be undertaken) any activity that
would cause the Trust not to be classified for United States federal income tax
purposes as a grantor trust.
SECTION 3.4 Authority.
---------
Subject to the limitations provided in this Declaration and to the
specific duties of the Institutional Trustee, the Regular Trustees shall have
exclusive and complete authority to carry out the purposes of the Trust. An
action taken by the Regular Trustees in accordance with their powers shall
constitute the act of and serve to bind the Trust and an action taken by the
Institutional 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.
17
SECTION 3.5 Title to Property of the Trust.
------------------------------
Except as provided in Section 3.8 with respect to the Debentures and
the Institutional 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 Regular Trustees.
-----------------------------------------
The Regular 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 Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however, that the
-------- -------
Trust may issue no more than one series of Preferred Securities and no more
than one series of Common Securities, and, provided further, that there
-------- -------
shall be no interests in the Trust other than the Securities, and the
issuance of Securities shall be limited to a simultaneous issuance of both
Preferred Securities and Common Securities on the Closing Date;
(b) in connection with the issue and sale of the Preferred
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 Preferred Securities;
(ii) execute and file any documents prepared by the Sponsor, or
take any acts as determined by the Sponsor to be necessary in order to
qualify or register all or part of the Preferred Securities in any
State in which the Sponsor has determined to qualify or register such
Preferred Securities for sale;
(iii) execute and file an application, prepared by the Sponsor,
to the New York Stock Exchange, Inc. or any other national stock
exchange or the Nasdaq Stock Market's National Market for listing upon
notice of issuance of any Preferred Securities;
(iv) execute and file with the Commission a registration
statement on Form 8-A, including any amendments thereto, prepared by
the Sponsor, relating to the registration of the Preferred Securities
under Section 12(b) of the Exchange Act;
18
(v) execute and enter into the Underwriting Agreement providing
for the sale of the Preferred Securities; and
(vi) to execute and file any agreement, certificate or other
document which such Regular Trustee deems necessary or appropriate in
connection with the issuance and sale of the Preferred Securities;
(c) to acquire the Debentures with the proceeds of the sale of the
Preferred Securities and the Common Securities; provided, however, that the
-------- -------
Regular Trustees shall cause legal title to the Debentures to be held of
record in the name of the Institutional Trustee for the benefit of the
Holders of the Preferred Securities and the Holders of Common Securities.
(d) to give the Sponsor and the Institutional Trustee prompt written
notice of the occurrence of a Special Event;
(e) 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 '316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue
relevant notices to the Holders of Preferred Securities and Holders of
Common Securities as to such actions and applicable record dates;
(f) to take all actions and perform such duties as may be required of
the Regular Trustees pursuant to the terms of the Securities;
(g) 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
------------
Institutional Trustee has the exclusive power to bring such Legal Action;
(h) 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;
(i) to cause the Trust to comply with the Trust's obligations under
the Trust Indenture Act;
(j) to give the certificate required by ' 314(a)(4) of the Trust
Indenture Act to the Institutional Trustee, which certificate may be
executed by any Regular Trustee;
(k) to incur expenses that are necessary or incidental to carry out
any of the purposes of the Trust;
19
(l) if duly appointed pursuant to the provisions herein, to act as
registrar, transfer agent or Paying Agent for the Securities;
(m) to give prompt written notice to the 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;
(n) 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;
(o) 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 Preferred Securities or to enable the Trust to effect the purposes for
which the Trust was created;
(p) to take any action, not inconsistent with this Declaration or
with applicable law, that the Regular 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,
provided that such action does not adversely affect the interests of Holders;
- -------- ----
and
(q) 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 Regular Trustees, on behalf
of the Trust.
The Regular 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 Regular Trustees shall not take any
action that is inconsistent with the purposes and functions of the Trust set
forth in Section 3.3.
20
Subject to this Section 3.6, the Regular Trustees shall have none of
the powers or the authority of the Institutional Trustee set forth in Section
3.8.
Any expenses incurred by the Regular Trustees pursuant to this Section
3.6 shall be reimbursed by the Debenture Issuer.
The Regular Trustees shall take all actions on behalf of the Trust
that are not specifically required by this Declaration to be taken by any other
Trustee.
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees.
----------------------------------------------------
(a) The Trust shall not, and the Trustees (including the
Institutional Trustee) shall not, engage in any activity other than as required
or authorized by this Declaration. In particular, the Trust shall not and the
Trustees (including the Institutional Trustee) shall cause the Trust not to:
(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 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
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.
21
SECTION 3.8 Powers and Duties of the Institutional Trustee.
----------------------------------------------
(a) The legal title to the Debentures shall be owned by and held of
record in the name of the Institutional Trustee in trust for the benefit of the
Holders of the Securities. The right, title and interest of the Institutional
Trustee to the Debentures shall vest automatically in each Person who may
hereafter be appointed as Institutional 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 Institutional Trustee shall not transfer its right, title and
interest in the Debentures to the Regular Trustees or to the Delaware Trustee
(if the Institutional Trustee does not also act as Delaware Trustee).
(c) The Institutional Trustee shall:
(i) establish and maintain a segregated non-interest bearing trust
account (the "Institutional Trustee Account") in the name of and under the
-----------------------------
exclusive control of the Institutional 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 Institutional Trustee, deposit or cause to be
deposited such funds into the Institutional Trustee Account and make or
cause to be made payments to the Holders of the Preferred Securities and
Holders of the Common Securities from the Institutional Trustee Account in
accordance with Section 6.1. Funds in the Institutional Trustee Account
shall be held uninvested until disbursed in accordance with this
Declaration. The Institutional Trustee Account shall be maintained with
the Bank in its trust department so long as the Bank is a Paying Agent; if
the Bank is not a Paying Agent, the Institutional Trustee Account will be
maintained at the Institutional Trustee or at its direction. The
Institutional Trustee shall not be liable to any Person for the acts or
omissions of the Bank in connection with the administration of the
Institutional Trustee Account, unless such acts or omissions were taken or
made at the express instructions of the Institutional Trustee. The Sponsor
shall cause the Bank to (i) promptly advise the Institutional Trustee of
all deposits and withdrawals from the Institutional Trustee Account and of
any failure by the Bank to receive from the Debenture Issuer any payments
on the Debentures when due, (ii) provide the Institutional Trustee with
monthly reports as to the activity in the Institutional Trustee Account and
(iii) permit the Institutional Trustee to have access to the Bank's records
with respect to the Institutional Trustee Account upon reasonable request
therefor;
(ii) engage in such ministerial activities as shall be necessary or
appropriate to effect the redemption of the Preferred Securities and the
Common Securities to the extent the Debentures are redeemed or mature; and
22
(iii) upon written notice of distribution issued by the Regular
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 special events (as may be defined in the terms of the
Securities) arising from a change in law or a change in legal
interpretation or other specified circumstances pursuant to the terms of
the Securities.
(d) The Institutional Trustee shall take all actions and perform
such duties as may be specifically required of the Institutional Trustee
pursuant to the terms of the Securities.
(e) The Institutional Trustee may take any Legal Action which arises
out of or in connection with an Event of Default of which a Responsible Officer
of the Institutional Trustee has knowledge or the Institutional Trustee's duties
and obligations under this Declaration or the Trust Indenture Act and if such
Institutional Trustee shall have failed to take such Legal Action after a
written request from a Holder of the Preferred Securities, then such Holder of
the Preferred Securities may, to the fullest extent permitted by law, take such
Legal Action, to the same extent as if such Holders of Preferred Securities held
a principal amount of Debentures equal to the liquidation amount of such
Preferred Securities, without first proceeding against the Institutional 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 interest or principal on the Debentures on the date such interest or
principal is otherwise payable (or in the case of redemption, on the redemption
date), then a Holder of Preferred Securities may directly institute a proceeding
for enforcement of payment to such Holder of the principal of or interest on the
Debentures having a principal amount equal to the aggregate liquidation amount
of the Preferred 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 Holders of the Common Securities will be subrogated to the rights
of such Holder of Preferred Securities to the extent of any payment made by the
Issuer to such Holder of Preferred Securities in such Direct Action. Except as
provided in the preceding sentences, the Holders of Preferred Securities will
not be able to exercise directly any other remedy available to the holders of
the Debentures.
(f) The Institutional 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 Institutional Trustee has been appointed and has
accepted that appointment in accordance with Section 5.7 (a "Successor
---------
Institutional Trustee").
---------------------
23
(g) The Institutional 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 Institutional Trustee occurs and is continuing, the Institutional Trustee
shall, for the 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 Institutional Trustee may authorize one or more Persons
(each, a "Paying Agent") 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 ' 317(b) of the Trust Indenture Act. Any
Paying Agent may be removed by the Institutional Trustee at any time and a
successor Paying Agent or additional Paying Agents may be appointed at any time
by the Institutional Trustee.
(i) Subject to this Section 3.8, the Institutional Trustee shall have
none of the duties, liabilities, powers or the authority of the Regular Trustees
set forth in Section 3.6.
The Institutional 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 Institutional 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 Institutional Trustee.
----------------------------------------------------------------
(a) The Institutional Trustee, before the occurrence of any Event of
Default and after the curing of all 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 Institutional 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 Institutional Trustee has actual
knowledge, the Institutional 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.
24
(b) No provision of this Declaration shall be construed to relieve
the Institutional Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of 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 Institutional Trustee
shall be determined solely by the express provisions of this
Declaration and in the Securities and the Institutional 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 or the Securities against the Institutional
Trustee; and
(B) in the absence of bad faith on the part of the Institutional
Trustee, the Institutional 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
Institutional Trustee and conforming to the requirements of this
Declaration; but in the case of any such certificates or opinions that
by any provision hereof are specifically required to be furnished to
the Institutional Trustee, the Institutional 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 Institutional Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Institutional
Trustee, unless it shall be proved that the Institutional Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Institutional 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 Institutional
Trustee, or exercising any trust or power conferred upon the Institutional
Trustee under this Declaration;
(iv) no provision of this Declaration shall require the Institutional
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 Declaration or indemnity
reasonably satisfactory to the Institutional Trustee against such risk or
liability is not reasonably assured to it;
25
(v) the Institutional Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and the
Institutional Trustee Account shall be to deal with such property in a
similar manner as the Institutional Trustee deals with similar property for
its own account, subject to the protections and limitations on liability
afforded to the Institutional Trustee under this Declaration and the Trust
Indenture Act;
(vi) the Institutional 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 Institutional 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 Institutional Trustee need not be
segregated from other funds held by it except in relation to the
Institutional Trustee Account maintained by the Institutional Trustee
pursuant to Section 3.8(c)(i) and except to the extent otherwise required
by law; and
(viii) the Institutional Trustee shall not be responsible for
monitoring the compliance by the Regular Trustees or the Sponsor with their
respective duties under this Declaration, nor shall the Institutional
Trustee be liable for any default or misconduct of the Regular Trustees or
the Sponsor.
SECTION 3.10 Certain Rights of Institutional Trustee.
---------------------------------------
(a) Subject to the provisions of Section 3.9:
(i) the Institutional 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 Regular Trustees
contemplated by this Declaration shall be sufficiently evidenced by an
Officers' Certificate;
(iii) whenever in the administration of this Declaration, the
Institutional Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder, the
Institutional 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
26
which, upon receipt of such request, shall be promptly delivered by the
Sponsor or the Regular Trustees;
(iv) the Institutional 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 Institutional 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 Institutional 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 Institutional 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 Institutional Trustee security and indemnity, reasonably
satisfactory to the Institutional Trustee, against the costs, expenses
(including attorneys' fees and expenses and the expenses of the
Institutional 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 Institutional
Trustee provided, that, nothing contained in this Section 3.10(a)(vi) shall
be taken to relieve the Institutional 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 Institutional 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 Institutional Trustee, in
its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit;
(viii) the Institutional 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 Institutional
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;
27
(ix) any action taken by the Institutional Trustee or its agents
hereunder shall bind the Trust and the Holders of the Securities, and the
signature of the Institutional 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 Institutional
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 Institutional Trustee's or its agent's taking such action;
(x) whenever in the administration of this Declaration the
Institutional Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Institutional 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 Institutional 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
Institutional Trustee shall not be under any obligation to take any action
that is discretionary under the provisions of this Declaration; and
(xii) the Institutional Trustee shall not be liable for any action
taken, suffered, or omitted to be taken by it in good faith 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 Institutional Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Institutional 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 Institutional
Trustee shall be construed to be a duty.
SECTION 3.11 Delaware Trustee.
----------------
28
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 Regular Trustees or the Institutional 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 ' 3807 of the
Business Trust Act. It is expressly understood and agreed by the parties hereto
that in fulfilling its obligations as Delaware Trustee hereunder on behalf of
the Trust (i) any agreements or instruments executed and delivered by Chase
Manhattan Bank USA, National Association are executed and delivered not in its
individual capacity but solely as Delaware Trustee under this Declaration in the
exercise of the powers and authority conferred and vested in it, (ii) each of
the representations, undertakings and agreements herein made on the part of the
Trust is made and intended not as representations, warranties, covenants,
undertakings and agreements by Chase Manhattan Bank USA, National Association in
its individual capacity but is made and intended for the purpose of binding only
the Trust, and (iii) under no circumstances shall Chase Manhattan Bank USA,
National Association in its individual capacity be personally liable for the
payment of any indebtedness or expenses of the Trust or be liable for the breach
or failure of any obligation, representation, warranty or covenant made or
undertaken by the Trust under this Declaration, except if such breach or failure
is due to any gross negligence or willful misconduct of the Delaware Trustee.
SECTION 3.12 Execution of Documents.
----------------------
Except as otherwise required by the Business Trust Act or provided
herein, any Regular Trustee is authorized to execute on behalf of the Trust any
documents that the Regular Trustees have the power and authority to execute
pursuant to Section 3.6.
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, the Debentures or the Securities.
SECTION 3.14 Duration of Trust.
-----------------
The Trust, unless dissolved pursuant to the provisions of Article VIII
hereof, shall have existence for fifty-five (55) years from the Closing Date.
29
SECTION 3.15 Mergers.
-------
(a) The Trust may not consolidate, amalgamate, merge with or into,
or be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body, except as
described in Section 3.15(b) and (c) or Sections 3 and 4 of Annex I attached
hereto.
(b) The Trust may, with the consent of the Regular Trustees or, if
there are more than two, a majority of the Regular Trustees and without the
consent of the Holders of the Securities, the Delaware Trustee or the
Institutional Trustee, consolidate, amalgamate, merge with or into, or be
replaced by, or convey, transfer or lease its property and assets substantially
as an entirety, 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 Debenture Issuer expressly acknowledges a trustee of the
Successor Entity that possesses the same powers and duties as the
Institutional Trustee as the holder of the Debentures;
(iii) the Preferred Securities or any 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 Preferred Securities are then listed or quoted;
(iv) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause the Preferred 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 substantially 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 a
nationally recognized independent counsel to the Trust experienced in such
matters to the effect that:
(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;
(C) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease the Trust (or the Successor
Entity) will continue to be classified as a grantor trust for United
States federal income tax purposes; and
(viii) the Sponsor guarantees the obligations of such Successor
Entity under the Successor Securities at least to the extent provided by
the Preferred 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 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 to
be classified as other than a grantor trust for United States federal income tax
purposes.
31
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities.
---------------------------------------
On the Closing Date the Sponsor will purchase all of the Common
Securities issued by the Trust which, on such date, will be in an amount at
least equal to 3% of the capital of the Trust. Such purchase will occur at the
same time as the Preferred Securities are sold.
SECTION 4.2 Responsibilities of the Sponsor.
-------------------------------
In connection with the issue and sale of the Preferred Securities, the
Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) at the sole discretion of the Sponsor, to prepare for filing by
the Trust with the Commission a registration statement on Form S-3 in
relation to the Preferred Securities, including any amendments thereto;
(b) to determine the States in which to take appropriate action to
qualify or register for sale all or part of the Preferred 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) at the sole discretion of 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 upon
notice of issuance of any Preferred Securities;
(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the
Preferred Securities under Section 12(b) or 12(g) of the Exchange Act,
including any amendments thereto; and
(e) to negotiate the terms of the Underwriting Agreement providing
for the sale of the Preferred Securities.
32
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees.
------------------
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; 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
(a "Regular Trustee"); and (3) one Trustee shall be the Institutional
---------------
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.
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 Institutional Trustee has its principal place of business
- -------- ----
in the State of Delaware and otherwise meets the requirements of applicable law,
then the Institutional Trustee shall also be the Delaware Trustee and Section
3.11 shall have no application.
33
SECTION 5.3 Institutional Trustee; Eligibility.
----------------------------------
(a) There shall at all times be one Trustee which shall act as
Institutional 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 Institutional Trustee shall cease to be
eligible to so act under Section 5.3(a), the Institutional Trustee shall
immediately resign in the manner and with the effect set forth in Section
5.7(c).
(c) If the Institutional Trustee has or shall acquire any
"conflicting interest" within the meaning of 310(b) of the Trust Indenture Act,
the Institutional Trustee and the Holders of the Common Securities (as if it
were the obligor referred to in 310(b) of the Trust Indenture Act) shall in all
respects comply with the provisions of 310(b) of the Trust Indenture Act. To the
extent permitted by the Trust Indenture Act, the Institutional Trustee shall not
be deemed to have a conflicting interest with respect to the Securities of any
series by virtue of being Institutional Trustee with respect to the Securities
of any particular series of Securities other than that series or by virtue of
being trustee under the Indentures originally dated as of November 15, 1996 and
January 1, 1997, between the Sponsor and the Institutional Trustee.
(d) The Preferred Securities Guarantee, the Series A Declaration, the
Series B Declaration, the 1997 Declaration, the 1999 Declaration, the 2000
Declaration, the Floating Rate Declaration, the Series A Guarantee, the Series
B Guarantee, the 1997 Guarantee, the 1999 Guarantee, the 2000 Guarantee and the
Floating Rate Guarantee shall be deemed to be specifically described in this
Declaration for purposes of clause (i) of the first proviso contained in Section
310(b) of the Trust Indenture Act.
34
(e) The initial Institutional Trustee shall be:
The Chase Manhattan Bank
SECTION 5.4 Certain Qualifications of Regular Trustees and Delaware Trustee
---------------------------------------------------------------
Generally.
---------
Each Regular Trustee and the Delaware Trustee (unless the Institutional 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 Regular Trustees.
----------------
The initial Regular Trustees shall be:
Laurence Goldman
M. Eileen Kennedy
Charles W. Scharf
(a) Except as expressly set forth in this Declaration and except if a
meeting of the Regular Trustees is called with respect to any matter over which
the Regular Trustees have power to act, any power of the Regular Trustees may be
exercised by, or with the consent of, any one such Regular Trustee.
(b) Except as otherwise required by the Business Trust Act or
applicable law, any Regular Trustee is authorized to execute on behalf of the
Trust any documents which the Regular Trustees have the power and authority to
cause the Trust to execute pursuant to Section 3.6; and
(c) A Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purposes of signing any documents which the Regular Trustees
have power and authority to cause the Trust to execute pursuant to Section 3.6.
SECTION 5.6 Delaware Trustee.
-----------------
The Delaware Trustee shall be:
Chase Manhattan Bank USA, National Association
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 except during an event of default:
35
(i) until the issuance of any Securities, by written instrument
executed by the Sponsor; and
(ii) 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.
(b)(i) The Trustee that acts as Institutional Trustee shall not be
removed in accordance with Section 5.7(a) until a Successor Institutional
Trustee has been appointed and has accepted such appointment by written
instrument executed by such Successor Institutional Trustee and delivered to the
Regular 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 Regular 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 Institutional
Trustee shall be effective:
(A) until a Successor Institutional Trustee has been appointed
and has accepted such appointment by instrument executed by such
Successor Institutional Trustee and delivered to the Trust, the
Sponsor and the resigning Institutional 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.
36
(d) The Holders of the Common Securities shall use their best efforts
to promptly appoint a Successor Delaware Trustee or Successor Institutional
Trustee as the case may be if the Institutional Trustee or the Delaware Trustee
delivers an instrument of resignation in accordance with this Section 5.7.
(e) If no Successor Institutional 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 Institutional Trustee or Delaware Trustee resigning or being
removed, as applicable, may petition any court of competent jurisdiction for
appointment of a Successor Institutional 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 Institutional Trustee or Successor
Delaware Trustee, as the case may be.
(f) No Institutional Trustee or Delaware Trustee shall be liable for
the acts or omissions to act of any Successor Institutional 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 Regular Trustees or, if there
are more than two, a majority of the Regular 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.
-------------------
The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee shall
not operate to dissolve, terminate or annul the Trust. Whenever a vacancy in
the number of Regular Trustees shall occur, until such vacancy is filled by the
appointment of a Regular Trustee in accordance with Section 5.7, the Regular
Trustees in office, regardless of their number, shall have all the powers
granted to the Regular Trustees and shall discharge all the duties imposed upon
the Regular Trustees by this Declaration.
SECTION 5.10 Meetings.
--------
If there is more than one Regular Trustee, meetings of the Regular
Trustees may be held from time to time upon the call of any Regular Trustee.
Regular meetings of the Regular Trustees may be held at a time and place fixed
by resolution of the Regular Trustees. Notice of any in-person meetings of the
Regular Trustees shall be hand delivered or otherwise delivered in writing
(including by facsimile, with a hard
37
copy by overnight courier) not less than 48 hours before such meeting. Notice of
any telephonic meetings of the Regular 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 a
Regular Trustee at a meeting shall constitute a waiver of notice of such meeting
except where a Regular 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 Regular Trustees may be taken at a meeting by
vote of a majority of the Regular 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
Regular Trustees. Notwithstanding the foregoing, any action which may be taken
at a meeting of the Regular Trustees (or a committee thereof) may be taken
pursuant to a unanimous written consent of the Regular Trustees (or committee
thereof), the execution of such consent to be deemed a waiver by such Regular
Trustee of any prior notice required in connection with such action. In the
event there is only one Regular Trustee, any and all action of such Regular
Trustee shall be evidenced by a written consent of such Regular Trustee.
SECTION 5.11 Delegation of Power.
-------------------
(a) Any Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the 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
(b) the Regular 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 Regular Trustees or otherwise as the Regular 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 Institutional Trustee or the Delaware
Trustee, as the case may be, may be merged or converted or with which either may
be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Institutional 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 Institutional Trustee or
the Delaware Trustee, as the case may be, shall be the successor of the
Institutional Trustee or the Delaware Trustee, as the case may be, hereunder,
provided such corporation shall be otherwise qualified and eligible under
38
this Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto (other than, in the case of the Successor
Delaware Trustee, the filing of a certificate of amendment of the Certificate of
Trust of the Trust in the office of the Secretary of State of the State of
Delaware).
SECTION 5.13 Appointment of Authenticating Agent.
-----------------------------------
The Institutional Trustee may appoint an authenticating agent or
agents (each, an "Authenticating Agent"), which may include any Affiliate of the
Sponsor, with respect to the Securities which shall be authorized to act on
behalf of the Institutional Trustee to authenticate the Securities issued upon
original issue and upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 9.2, and Securities so authenticated shall be
entitled to the benefits of this Declaration and shall be valid and obligatory
for all purposes as if authenticated by the Institutional Trustee hereunder.
Wherever reference is made in this Declaration to the authentication and
delivery of the Securities by the Institutional Trustee or the Institutional
Trustee's certificate of authentication, such reference shall be deemed also to
include authentication and delivery on behalf of the Institutional Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Sponsor and shall at all times be a corporation organized and doing business
under the laws of the United States of America, or of any State or Territory or
the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of an Authenticating Agent shall be the successor
Authenticating Agent hereunder, provided such corporation shall be otherwise
eligible under this Section, without the execution or filing of any paper or any
further act on the part of the Institutional Trustee or the Authenticating
Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Institutional Trustee and to the Sponsor. The
Institutional Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating Agent and to the
Sponsor. Upon receiving such a notice
39
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Institutional Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Sponsor and shall give
notice of such appointment in the manner provided in Section 14.1 to all holders
of Securities. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provision of this Section.
The Sponsor agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment is made pursuant to this Section, the Securities may
have endorsed thereon, in addition to the Institutional Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
This is one of the Securities referred to in the within mentioned
Declaration.
Dated:
As Institutional Trustee
By:______________________________
As Authenticating Agent
By:______________________________
Authorized Officer
40
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions.
-------------
Holders shall receive Distributions (as defined herein) in accordance
with the applicable terms of the relevant Holder's Securities. Distributions
shall be made on the Preferred Securities and the Common Securities in
accordance with the preferences set forth in their respective terms. If and to
the extent that the Debenture Issuer makes a payment of interest (including
Compounded Interest (as defined in the Indenture) and Additional Sums (as
defined in the Indenture)), premium and/or principal on the Debentures held by
the Institutional Trustee (the amount of any such payment being a "Payment
-------
Amount"), the Institutional Trustee shall and is directed, to the extent funds
- ------
are available for that purpose, to make or cause to be made a distribution (a
"Distribution") of the Payment Amount to Holders.
------------
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.
---------------------------------------
(a) The Regular Trustees shall on behalf of the Trust issue one class
of preferred securities representing undivided beneficial interests in the
assets of the Trust having such terms as are set forth in Annex I (the
-------
"Preferred 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
Preferred Securities and the Common Securities.
(b) The Certificates shall be signed on behalf of the Trust by a
Regular Trustee. Such signature shall be the manual or facsimile signature of
any present or any future Regular Trustee. In case any Regular Trustee of the
Trust who shall have signed (either by manual or facsimile signature) any of the
Securities shall cease to be such Regular Trustee before the Certificates so
signed shall be delivered by the Trust, such Certificates nevertheless may be
delivered as though the person who signed such Certificates had not ceased to be
such Regular Trustee; and any Certificate may be signed on behalf of the Trust
by such persons who, at the actual date of execution of such Security, shall be
the Regular Trustees of the Trust, although at the date of the execution and
delivery of the Declaration any such person was not such a Regular Trustee.
Certificates shall be printed, lithographed or engraved or may be produced in
any other manner as is reasonably acceptable to the Regular Trustees, as
evidenced by their execution thereof, and may have such letters, numbers or
other marks of identification or designation and such legends or endorsements as
the Regular Trustees may deem appropriate, or as may be required to comply with
any law or with any rule or
41
regulation of any stock exchange on which Securities may be listed, or to
conform to usage.
(c) 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.
(d) 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.
(e) Every Person, by virtue of having become a Holder or a Preferred
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 Delivery of Securities Certificates.
-------------------------------------------------
At the time of delivery of the Securities, the Regular Trustees shall
cause Certificates to be authenticated by the Institutional Trustee on behalf of
the Trust and delivered to or upon the written order of the Trust, signed by two
Regular Trustees without further corporate action by the Sponsor, in authorized
denominations.
A Security shall not be valid until authenticated by the manual
signature of an authorized officer of the Institutional Trustee. Such signature
shall be conclusive evidence that the Security has been authenticated under this
Declaration. The Institutional Trustee's certificates of authentication shall
be substantially in the form set forth in Exhibits A-1 and A-2.
------------ ---
42
SECTION 7.3 Paying Agent.
------------
The Paying Agent shall make Distributions to Holders from the
Institutional Trustee Account and shall report the amounts of such Distributions
to the Institutional Trustee and the Regular Trustees. Any Paying Agent shall
have the revocable power to withdraw funds from the Institutional Trustee
Account for the purpose of making the Distributions referred to above. The
Institutional Trustee may revoke such power and remove the Paying Agent in its
sole discretion. The Paying Agent shall initially be the Bank, and any co-
paying agent chosen by the Bank, and reasonably acceptable to the Regular
Trustees. Any Person acting as Paying Agent shall be permitted to resign as
Paying Agent upon 30 days' written notice to the Regular Trustees and the
Institutional Trustee. In the event that the Bank shall no longer be the Paying
Agent or a successor Paying Agent shall resign or its authority to act be
revoked, the Institutional Trustee shall appoint a successor that is reasonably
acceptable to the Regular Trustees to act as Paying Agent (which shall be a bank
or trust company). Such successor Paying Agent or any additional Paying Agent
shall execute and deliver to the Trustees an instrument in which such successor
Paying Agent or additional Paying Agent shall agree with the Trustees that as
Paying Agent, such successor Paying Agent or additional Paying Agent will hold
all sums, if any, held by it for payment to the Holders in trust for the benefit
of the Holders of Securities entitled thereto until such sums shall be paid to
such Holders, will give the Institutional Trustee notice of any default by the
Trust (or any other obligor on the Securities) in the making of any payment on
the Securities and will, at any time during the continuance of any such default,
upon the written request of the Institutional Trustee, forthwith pay to the
Institutional Trustee all sums so held in trust by such Paying Agent. The
Paying Agent shall return all unclaimed funds to the Institutional Trustee and
upon removal of a Paying Agent such Paying Agent shall also return all funds in
its possession to the Institutional Trustee. The provisions of Sections 3.9,
3.10 and 10.4 herein shall also apply to the Bank in its role as Paying Agent,
for so long as the Bank shall act as Paying Agent and, to the extent applicable,
to any other Paying Agent appointed hereunder. Any reference in this
Declaration to the Paying Agent shall include any co-paying agent unless the
context requires otherwise.
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1 Termination of Trust.
--------------------
(a) The Trust shall dissolve on August 30, 2055 or if earlier:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of dissolution or its equivalent
with respect to the Sponsor; upon having obtained the consent of a Majority
in
43
liquidation amount of the Securities affected thereby voting together as a
single class to dissolve the Trust or the revocation of the Sponsor's
charter and the expiration of 90 days after the date of revocation without
a reinstatement thereof;
(iii) upon the dissolution of the Trust in accordance with the terms
of the Securities and the distribution of all of the Debentures endorsed
thereon in exchange for all of the Securities;
(iv) upon the entry of a decree of judicial dissolution of the Holder
of the Common Securities, the Sponsor or the Trust;
(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; or
(vi) before the issuance of any Securities, with the consent of all
of the Regular Trustees and the Sponsor.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.1(a) and completion of the winding up of the Trust, the
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
dissolution and 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, to the fullest extent
permitted by law, be null and void.
(b) Subject to this Article IX, Preferred Securities shall be freely
transferable.
(c) Except in connection with the transactions permitted by Article
Ten of the Indenture, the Sponsor may not transfer the Common Securities.
44
SECTION 9.2 Transfer of Certificates.
------------------------
The Institutional Trustee shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 9.9, a register or registers for
the purpose of registering Certificates and transfers and exchanges of Preferred
Securities Certificates (the "Securities Register") in which, the registrar
-------------------
designated by the Institutional Trustee (the "Securities Registrar") with the
--------------------
reasonable consent of the Regular Trustees, subject to such reasonable
regulations as it may prescribe, shall provide for the registration of Preferred
Securities Certificates and Common Securities Certificates (subject to Section
9.1(c) in the case of the Common Securities Certificates) and registration of
transfers and exchanges of Preferred Securities Certificates as herein provided.
The Bank shall be the initial Securities Registrar.
Upon surrender for registration of transfer of any Preferred
Securities Certificate at the office or agency maintained pursuant to Section
9.9, the Regular Trustees or any one of them shall execute, and the
Institutional Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Preferred Securities
Certificates in authorized denominations of a like aggregate liquidation amount
dated the date of such authentication.
The Preferred Securities Certificates shall be dated the date of their
authentication.
The Securities Registrar shall not be required to register the
transfer of (i) any Preferred Securities beginning at the opening of business 15
days before the day of mailing of a notice of redemption and ending at the close
of business on the day of such mailing or (ii) any Preferred Securities selected
for redemption except the unredeemed portion of any Preferred Security being
redeemed in part. At the option of a Holder, Preferred Securities Certificates
may be exchanged for other Preferred Securities Certificates in authorized
denominations of the same class and of a like aggregate liquidation amount upon
surrender of the Preferred Securities Certificates to be exchanged at the office
or agency maintained pursuant to Section 9.9.
Every Preferred Securities Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Securities Registrar duly
executed by the Holder or his attorney duly authorized in writing. Each
Preferred Securities Certificate surrendered for registration of transfer or
exchange shall be cancelled and subsequently disposed of by the Institutional
Trustee in accordance with its customary practice.
No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but the Securities Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange Preferred Securities
Certificates.
45
The provisions of Sections 3.9, 3.10 and 10.4 herein shall also apply
to the Bank in its role as Securities Registrar, for so long as the Bank shall
act as Securities Registrar.
SECTION 9.3 Deemed Security Holders.
-----------------------
The Trustees and the Securities Registrar may treat the Person in
whose name any Certificate shall be registered on the books and records of the
Trust as the sole holder of such Certificate and of the Securities represented
by such Certificate 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 Certificate or in the Securities
represented by such Certificate on the part of any Person, whether or not the
Trust, the Trustees or the Securities Registrar shall have actual or other
notice thereof.
SECTION 9.4 Book Entry Interests.
--------------------
Unless otherwise specified in the terms of the Preferred Securities,
the Preferred Securities Certificates, on original issuance, will be issued in
the form of one or more, fully registered, global Preferred Security
Certificates (each a "Global Certificate"), to be delivered to DTC, the initial
------------------
Clearing Agency, or its custodian, by, or on behalf of, the Trust. Such Global
Certificates shall initially be registered on the books and records of the Trust
in the name of Cede & Co., the nominee of DTC, and no Preferred Security
Beneficial Owner will receive a definitive Preferred Security Certificate
representing such Preferred Security Beneficial Owner's interests in such Global
Certificates, except as provided in Section 9.7. Unless and until definitive,
fully registered Preferred Security Certificates (the "Definitive Preferred
--------------------
Security Certificates") have been issued to the Preferred Security Beneficial
- ---------------------
Owners pursuant to Section 9.7:
(a) the provisions of this Section 9.4 shall be in full force and
effect;
(b) the Trust, the Trustees, the Securities Registrar and the Paying
Agent shall be entitled to deal with the Clearing Agency for all purposes
of this Declaration (including the payment of Distributions on the Global
Certificates and receiving approvals, votes or consents hereunder) as the
Holder of the Preferred Securities and the sole holder of the Global
Certificates and shall have no obligation to the Preferred 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 Preferred Security Beneficial Owners shall be
exercised only through the Clearing Agency and shall be limited to those
46
established by law and agreements between such Preferred Security
Beneficial Owners and the Clearing Agency and/or the Clearing Agency
Participants and the Clearing Agency shall 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 Preferred Security
Holders is required under this Declaration, unless and until Definitive
Preferred Security Certificates shall have been issued to the Preferred Security
Beneficial Owners pursuant to Section 9.7, the Trustees shall give all such
notices and communications specified herein to be given to the Preferred
Security Holders to the Clearing Agency, and shall have no notice obligations to
the Preferred 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 Preferred Securities or is no longer
able to properly discharge its functions, the Regular Trustees may, in their
sole discretion, appoint a successor Clearing Agency with respect to such
Preferred Securities.
SECTION 9.7 Definitive Preferred Security Certificates.
------------------------------------------
If:
(a) a Clearing Agency elects to discontinue its services or is no
longer able to properly discharge its functions as securities depositary
with respect to the Preferred Securities and a successor Clearing Agency is
not appointed within 90 days after such discontinuance or after the Regular
Trustees become aware of such inability pursuant to Section 9.6; or
(b) the Regular Trustees elect after consultation with the Sponsor to
terminate the book entry system through the Clearing Agency with respect to
the Preferred Securities,
then:
(c) Definitive Preferred Security Certificates shall be prepared by
the Regular Trustees on behalf of the Trust with respect to such Preferred
Securities; and
(d) upon surrender of the Global Certificates by the Clearing Agency,
accompanied by registration instructions, the Regular Trustees shall cause
Definitive Certificates to be delivered to Preferred Security Beneficial
Owners in
47
accordance with the instructions of the Clearing Agency. Neither the
Trustees nor the Trust, or any agents thereof shall be liable for any delay
in delivery of such instructions and each of them may conclusively rely on
and shall be protected in relying on, said instructions of the Clearing
Agency. The Definitive Preferred Security Certificates shall be printed,
lithographed or engraved or may be produced in any other manner as is
reasonably acceptable to the Regular Trustees, as evidenced by their
execution thereof, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements as the
Regular Trustees may deem appropriate, or as may be required to comply with
any law or with any rule or regulation made pursuant thereto or with any
rule or regulation of any stock exchange on which Preferred Securities may
be listed, or to conform to usage.
SECTION 9.8 Mutilated, Destroyed, Lost or Stolen Certificates.
-------------------------------------------------
If:
(a) any mutilated Certificates should be surrendered to the
Institutional Trustee or the Securities Registrar or if the Institutional
Trustee or the Securities Registrar shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Institutional Trustee, the
Securities Registrar and the Regular Trustees such security or indemnity as
may be required by them to keep each of them harmless,
then, in the absence of notice that such Certificate shall have been acquired by
a bona fide purchaser, any Regular Trustee on behalf of the Trust shall execute,
and upon any Regular Trustee's request, the Institutional Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like denomination.
In connection with the issuance of any new Certificate under this Section 9.8,
the Regular Trustees, Institutional Trustee or Securities Registrar may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection therewith. Any duplicate Certificate issued
pursuant to this Section shall constitute conclusive evidence of an ownership
interest in the relevant Securities, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
48
SECTION 9.9 Maintenance of Office or Agency.
-------------------------------
The Institutional Trustee shall designate, with the consent of the
Regular Trustees, which consent shall not be unreasonably withheld, an office or
offices or agency or agencies where Preferred Securities Certificates may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Trustees in respect of the Securities may be served. The
Corporate Trust Office of the Bank is initially designated the office for such
purpose. The Regular Trustees or the Institutional Trustee shall give prompt
written notice to the Sponsor and to the Holders of any change in the location
of the Securities Register or any such office or agency.
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 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 Holder of the Common Securities 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 3803(a) of the Business Trust Act, the Holders of
the Preferred 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.
49
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 with
respect to the Institutional Trustee, 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, if selected by such Indemnified Person, has been selected by
such Indemnified Person 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 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 Institutional 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 and any Indemnified Person; 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,
50
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 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.
51
(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 (including 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 Regular Trustees by a majority vote of a quorum consisting of such
Regular Trustees who were not parties to such action, suit or proceeding,
(2) if such a quorum is not obtainable, or, even if obtainable, if a quorum
of disinterested Regular Trustees so directs, by independent legal counsel
in a written opinion, or (3) by the Common Security Holder of the Trust.
(v) Expenses (including attorneys' fees 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
52
reasonably and promptly made (i) by the Regular Trustees by a majority vote
of a quorum of disinterested Regular Trustees, (ii) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of disinterested Regular
Trustees so directs, by independent legal counsel in a written opinion or
(iii) the Common Security Holder of the Trust, that, based upon the facts
known to the Regular Trustees, counsel or the Common Security Holder at the
time such determination is made, such Company Indemnified Person acted in
bad faith or in a manner that such Person did not believe to be in or not
opposed to the best interests of the Trust, or, with respect to any
criminal proceeding, that such Company Indemnified Person believed or had
reasonable cause to believe his conduct was unlawful. In no event shall any
advance be made in instances where the Regular Trustees, independent legal
counsel or Common Security Holder reasonably determine that such person
deliberately breached his duty to the Trust or its Common or Preferred
Security Holders.
(vi) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other paragraphs of this Section 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 Preferred Security Holders of the Trust or otherwise, both as to
action in his official capacity and as to action in another capacity while
holding such office. All rights to indemnification under this Section
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.
53
(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) Institutional
Trustee, (ii) the Delaware Trustee, (iii) any Affiliate of the Institutional
Trustee and the Delaware Trustee, and (iv) any officers, directors,
shareholders, members, partners, employees, representatives, custodians,
nominees or agents of the Institutional Trustee and the Delaware Trustee (each
of the Persons in (i) through (iv) being referred to as a "Fiduciary Indemnified
---------------------
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 or 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
Institutional Trustee (subject to Section 5.3 (c)) 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 Institutional 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 Institutional 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 Institutional 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.
54
SECTION 10.6 Compensation; Fees.
------------------
The Sponsor agrees:
(a) to pay to the Trustees from time to time reasonable compensation
for all services rendered by them hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust); and
(b) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements and advances
incurred or made by the Trustees in accordance with any provision of this
Declaration (including the reasonable compensation and the expenses and
disbursements of their respective agents and counsel), except any such expense,
disbursement or advance as may be attributable to their respective negligence or
bad faith.
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 Regular
Trustees shall keep, or cause to be kept, full 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.
(b) The Regular 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 Regular Trustees shall
endeavor to deliver all such statements within 30 days after the end of each
Fiscal Year of the Trust.
(c) The Regular 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
55
any other annual income tax returns required to be filed by the Regular 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 Institutional Trustee shall be made
directly to the Institutional Trustee Account and no other funds of the Trust
shall be deposited in the Institutional Trustee Account. The sole signatories
for such accounts shall be designated by the Regular Trustees; provided,
--------
however, that the Institutional Trustee shall designate the signatories for the
- -------
Institutional Trustee Account.
SECTION 11.4 Withholding.
-----------
The Trust, the Regular Trustees and the Paying Agent shall comply 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 Regular 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 Regular Trustees (or, if there are more than two Regular
Trustees a majority of the Regular Trustees);
56
(ii) if the amendment affects the rights, powers, duties, obligations
or immunities of the Institutional Trustee, the Institutional 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 the Institutional 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); and
(ii) 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
Institutional 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 IV shall not be amended without the consent of the
Holders of a Majority in liquidation amount of the Securities;
(f) the rights of the holders of the Common Securities under Article
V 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 Securities; and
57
(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;
(ii) correct or supplement any provision in this Declaration that may
be defective or 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 other
provisions of this Declaration;
(iii) add to the covenants, restrictions or obligations of the
Sponsor;
(iv) to conform to any change in Rule 3a-5 or written change in
interpretation or application of Rule 3a-5 by any legislative body, court,
government agency or regulatory authority which amendment does not have a
material adverse effect on the right, preferences or privileges of the
Holders; and
(v) to modify, eliminate or add to any provisions of this
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.
(h) The Institutional Trustee and the Delaware Trustee may, but
shall not be obligated to, sign any amendment which affects their respective
rights, powers, duties, obligations or immunities under this Declaration or
otherwise.
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 Regular 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 Preferred
Securities are listed or admitted for trading. The Regular 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 Regular Trustees one or more notices 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.
58
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of Holders of
Securities:
(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 Preferred
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 Regular 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 Regular
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 Regular Trustees or by such other Person that the Regular
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 Preferred Securities are then listed or trading,
otherwise provides, the Regular 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 by any Holders of Securities, waiver
of any such notice, action by consent without a meeting, the
59
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 INSTITUTIONAL TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Institutional Trustee.
-------------------------------------------------------
The Trustee that acts as initial Institutional Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Institutional Trustee represents and warrants to the Trust and
the Sponsor at the time of the Successor Institutional Trustee's acceptance of
its appointment as Institutional Trustee that:
(a) the Institutional Trustee is a New York banking corporation with
trust powers and authority under the laws of the State of New York 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 Institutional
Trustee of the Declaration has been duly authorized by all necessary
corporate action on the part of the Institutional Trustee. The Declaration
has been duly executed and delivered by the Institutional Trustee, and it
constitutes a legal, valid and binding obligation of the Institutional
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 Institutional Trustee does not conflict with or constitute a breach of
the charter or by-laws of the Institutional 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 Institutional Trustee, of
this Declaration.
60
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 United States of America, 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 Delaware Trustee has authorized the performance of its
obligations under the Certificate of Trust and the Declaration. The
Declaration under Delaware law 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.
(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.
61
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 Regular Trustees at the
Trust's mailing address set forth below (or such other address as the Trust
may give notice of to the Holders of the Securities and the Institutional
Trustee):
BANK ONE Capital III
c/o BANK ONE CORPORATION
1 Bank One Plaza
Chicago, Illinois 60670
Attention: Treasurer
Telecopy: (312) 732-3366
(b) if given to the Delaware Trustee, at the mailing address set
forth below (or such other address as the Delaware Trustee may give notice
of to the Holders of the Securities):
Chase Manhattan Bank USA, National Association
1201 Market Street
Wilmington, Delaware 19801
Attention: Capital Markets Fiduciary Services
(c) if given to the Institutional Trustee, at the Institutional
Trustee's mailing address set forth below (or such other address as the
Institutional Trustee may give notice of to the Holders of the Securities):
The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Attention: Capital Markets Fiduciary Services
62
(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):
BANK ONE CORPORATION
1 Bank One Plaza
Chicago, Illinois 60670
Attention: Treasurer
(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 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.
63
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.
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
64
__________________________________________
Laurence Goldman, as Regular Trustee
__________________________________________
M. Eileen Kennedy, as Regular Trustee
__________________________________________
Charles W. Scharf, as Regular Trustee
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION
as Delaware Trustee
By:_______________________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Institutional Trustee
By:_______________________________________
Name:
Title:
BANK ONE CORPORATION,
as Sponsor and Debenture Issuer
By:_______________________________________
Name: Charles W. Scharf
Title: Chief Financial Officer and
Executive
Vice President
ANNEX I
TERMS OF
8.750% PREFERRED SECURITIES
8.750% COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration of
Trust, dated as of August 30, 2000 (as amended from time to time, the
"Declaration"), the designation, rights, privileges, restrictions, preferences
-----------
and other terms and provisions of the Preferred Securities and the Common
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 Prospectus referred to below):
1. Designation and Number.
----------------------
(a) Preferred Securities. Preferred Securities of the Trust with an
--------------------
aggregate liquidation amount with respect to the assets of the Trust of four
hundred seventy five million dollars ($475,000,000) and a liquidation amount
with respect to the assets of the Trust of $1,000 per preferred security, are
hereby designated for the purposes of identification only as "8.750% Preferred
Securities" (the "Preferred Securities"). The Preferred Security Certificates
--------------------
evidencing the Preferred 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 on which the Preferred Securities
are listed.
(b) Common Securities. Common Securities of the Trust with an
-----------------
aggregate liquidation amount with respect to the assets of the Trust of fourteen
million six hundred ninety-one thousand dollars ($14,691,000) and a liquidation
amount with respect to the assets of the Trust of $1,000 per common security,
are hereby designated for the purposes of identification only as "Common
Securities" (the "Common Securities"). The Common Security 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.
-------------
I-2
(a) Distributions payable on each Security will be at a fixed rate
per annum of 8.750% (the "Distribution Rate") of the stated liquidation amount
-----------------
of $1,000 per Security. Distributions in arrears for more than one semiannual
period will bear interest thereon compounded semiannually at the Distribution
Rate (to the extent permitted by applicable law). The term "Distributions" as
-------------
used herein includes such cash distributions and any such interest payable
unless otherwise stated. A Distribution is payable only to the extent that
payments are made in respect of the Debentures held by the Institutional Trustee
and to the extent the Institutional Trustee has funds available therefor. The
amount of Distributions payable for any period will be computed for any full
semiannual distribution period on the basis of a 360-day year of twelve 30-day
months, and for any period shorter than a full semiannual Distribution period
for which Distributions are computed, Distributions will be computed on the
basis of the actual number of days elapsed in a partial month in such period.
(b) Distributions on the Securities will be cumulative, will accrue
from August 30, 2000, and will be payable semiannually in arrears, on March 1
and September 1 of each year, commencing on March 1, 2001, except as otherwise
described below (each, a "Distribution Date"). The Debenture Issuer has the
-----------------
right under the Indenture to defer payments of interest by extending the
interest payment period from time to time on the Debentures for a period not
exceeding 10 consecutive semiannual periods (each an "Extension Period"), during
----------------
which Extension Period no interest shall be due and payable on the Debentures,
provided that no Extension Period shall end on a day other than an interest
- -------- ----
payment date for the Debentures or shall extend beyond the date of maturity of
the Debentures. As a consequence of such deferral, Distributions will also be
deferred. Despite such deferral, semiannual Distributions will continue to
accrue with interest thereon (to the extent permitted by applicable law) at the
Distribution Rate compounded semiannually 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
Institutional Trustee and to the extent the Institutional Trustee has funds
available therefor) will be payable to the Holders of the Securities in whose
names the Securities are registered in the Security Register on the record date
relating to the Distribution Date on which the Extension Period ends. 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 thereof may not exceed 10 consecutive semiannual periods 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. The
Regular Trustees will give notice to each Holder of any Extension Period upon
their receipt of notice thereof from the Debenture Issuer.
(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 relevant
record dates. While the Preferred Securities remain in book-entry only form,
the relevant
I-3
record dates shall be one Business Day prior to the relevant payment dates which
payment 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 Preferred Securities will be
made as described under the heading "Description of the Preferred Securities B
Book-Entry Only Issuance B The Depository Trust Company" in the Prospectus
Supplement dated August 23, 2000 to the Prospectus dated July 26, 2000
(together, the "Prospectus"), of the Trust included in the Registration
----------
Statement on Form S-3 of the Sponsor, the Trust and certain other business
trusts. The relevant record dates for the Common Securities shall be the same
record date as for the Preferred Securities when the Preferred Securities are
not in book-entry only form. If the Preferred Securities shall not continue to
remain in book-entry only form, the relevant record dates for the Preferred
Securities shall be February 15 or August 15, as the case may be. Payments in
respect of Preferred Securities held in certificated form will be made by check
mailed to the Holder entitled thereto. Distributions payable on any Securities
that are not punctually paid on any Distribution payment date, as a result of
the Debenture Issuer having failed to make a payment under the Debentures, will
cease to be payable to the Person in whose name such Securities are registered
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. If any Distribution Date is not a Business Day, then payment of the
Distribution payable on such date will be made on the next succeeding day that
is a Business Day, in each case with the same force and effect as if made on
such date.
(d) 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.
3. Liquidation Distribution Upon Dissolution.
-----------------------------------------
In the event of any voluntary or involuntary dissolution, winding-up
or termination of the Trust, the Holders of the Securities on the date of the
dissolution, winding-up or termination, as the case may be, will be entitled to
receive out of the assets of the Trust available for distribution to Holders of
Securities after satisfaction of liabilities of creditors an amount equal to the
aggregate of the stated liquidation amount of $1,000 per Security plus accrued
and unpaid Distributions thereon to the date of payment (such amount being the
"Liquidation Distribution"), unless, in connection with such dissolution,
------------------------
winding-up or termination, Debentures in an aggregate stated principal amount
equal to the aggregate stated liquidation amount of such Securities, with an
interest rate equal to the Distribution Rate of, and bearing accrued and unpaid
interest in an amount equal to the accrued and unpaid Distributions on, such
Securities, shall be distributed on a Pro Rata basis to the Holders of the
Securities in exchange for such Securities. Prior to any such Liquidation
Distribution, the Debenture Issuer will obtain any required regulatory approval.
I-4
If, upon any such dissolution, the Liquidation Distribution can be
paid only in part because the Trust has insufficient assets 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, whether
at maturity or upon redemption (either at the option of the Debenture Issuer, in
accordance with the Indenture, or pursuant to a Special Event as described
below), the proceeds from such repayment or payment shall be simultaneously
applied to redeem Securities having an aggregate liquidation amount equal to the
aggregate principal amount of the Debentures so repaid or redeemed. At maturity,
the repayment amount on the Securities shall be equal to the aggregate
liquidation amount of $1,000 per Security, plus accrued and unpaid distributions
to the maturity date. Upon a redemption, the Redemption Price for the Securities
shall be (a) in the case of an optional redemption, the greater of, (1) 100% of
the principal amount of the Debentures being redeemed or (2) as determined by
the Quotation Agent, the sum of the present values of scheduled payments of
principal and interest on the Debentures for the Remaining Life, discounted to
the redemption date on a semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate plus .500%, in either case, plus
accrued and unpaid interest to the redemption date (the "Optional Redemption
Price") or (b) in the case of a redemption pursuant to a Special Event, the
greater of (1) 100% of the principal amount of the Debentures being redeemed or
(2) as determined by the Quotation Agent, the sum of the present values of
scheduled payments of principal and interest on the Debentures for the Remaining
Life, discounted to the redemption date on a semiannual basis (assuming a 360-
day year consisting of twelve 30-day months) at the Treasury Rate plus .750%, in
either case, plus accrued and unpaid interest to the redemption date (the
"Special Event Redemption Price"). Holders will be given not less than 30 nor
more than 60 days notice of such redemption. Prior to any such redemption, the
Debenture Issuer will obtain any required regulatory approval.
(b) In the case of an optional redemption, if fewer than all the
outstanding Securities are to be so redeemed, the Common Securities and the
Preferred Securities will be redeemed Pro Rata and the Preferred Securities to
be redeemed will be as described in Section 4(f)(ii) below.
(c) Subject to the prior approval of the Federal Reserve if such
approval is then required under applicable law, rules, guidelines or policies of
the Federal Reserve, the Regular Trustees at any time shall have the right to
dissolve the Trust and, after satisfaction of the claims of creditors, cause the
Debentures held by the Institutional Trustee, having an aggregate principal
amount equal to the aggregate stated liquidation amount of, with an interest
rate identical to the Coupon Rate of, and accrued on unpaid interest equal to
accrued and unpaid distributions on, and having the same record date
I-5
for payment as the Securities, to be distributed to the Holders of the
Securities in liquidation of such Holders' interests in the trust on a Pro Rata
basis.
(d) If, at any time, a Tax Event, an Investment Company Event or a
Capital Treatment Event (each as defined below and each a "Special Event") shall
-------------
occur and be continuing, the Debenture Issuer shall have the right at any time,
upon not less than 30 nor more than 60 days notice, to redeem the Debentures in
whole or in part for cash within 90 days following the occurrence of such
Special Event (or, if the approval of the Federal Reserve Board is then required
for such redemption, on such later date as promptly as practicable after such
approval is obtained), and, following such redemption, Securities with an
aggregate liquidation amount equal to the aggregate principal amount of the
Debentures so redeemed shall be redeemed by the Trust at the Special Event
Redemption Price on a Pro Rata basis.
A "Tax Event" means the receipt by the Trust of an opinion of counsel
---------
to the Sponsor 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 the date of issuance of
the Preferred Securities under the Declaration, 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
Sponsor on the Debentures is not, or within 90 days of such opinion, will not
be, deductible by the Sponsor, 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 the opinion, subject to more than a de minimis amount of other taxes, duties
or other governmental charges.
"Investment Company Event" means that the Regular Trustees shall have
------------------------
received an opinion of a nationally recognized independent counsel experienced
in practice under the Investment Company Act (an "Investment Company Event
------------------------
Opinion") to the effect that, as a result of the occurrence of a change in law
- -------
or regulation or a written change in interpretation or application of law or
regulation by any legislative body, court, governmental agency or regulatory
authority (a "Change in 1940 Act Law"), there is a more than an insubstantial
----------------------
risk that the Trust is or will be considered an Investment Company which is
required to be registered under the Investment Company Act, which Change in 1940
Act Law becomes effective on or after the date of issuance of the Preferred
Securities.
A "Capital Treatment Event" means the reasonable determination by the
-----------------------
Sponsor that, as a result of the occurrence 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 thereof or
therein, or as a result of any official
I-6
or administrative pronouncement or action or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
such pronouncement, action or decision is announced on or after the date of
issuance of the Preferred Securities under the Declaration, there is more than
an insubstantial risk that the Sponsor will not be entitled to treat an amount
equal to the liquidation amount of the Preferred Securities as "Tier I Capital"
(or the then equivalent thereof) for purposes of the capital adequacy guidelines
of the Federal Reserve, as then in effect and applicable to the Sponsor.
On and from the date fixed by the Regular Trustees for any
distribution of Debentures and dissolution of the Trust: (i) the Securities
will no longer be deemed to be outstanding, (ii) The Depository Trust Company
(the "Depository") or its nominee (or any successor Clearing Agency or its
----------
nominee), as the record Holder of the Preferred Securities, will receive a
registered global certificate or certificates representing the Debentures to be
delivered upon such distribution and any certificates representing Securities,
except for certificates representing Preferred Securities held by the Depository
or its nominee (or any successor Clearing Agency or its nominee), will be deemed
to represent beneficial interests in the Debentures having an aggregate
principal amount equal to the aggregate stated liquidation amount of, with an
interest rate identical to the Coupon Rate of, and accrued and unpaid interest
equal to accrued and unpaid Distributions on such Securities until such
certificates are presented to the Debenture Issuer or its agent for transfer or
reissue.
(e) The Trust may not redeem fewer than all the outstanding
Securities unless all accrued and unpaid Distributions have been paid on all
Securities for all semiannual Distribution periods terminating on or before the
date of redemption.
(f) If the Debentures are distributed to the Holders of the
Securities, pursuant to the terms of the Indenture, the Debenture Issuer will
use its best efforts to cause the Debentures to be listed on the New York Stock
Exchange or on such other exchanges as the Preferred Securities were listed
immediately prior to the distribution of the Debentures.
(g) If a partial redemption of the Debentures would result in the
delisting of the Preferred Securities issued by the Trust from any national
securities exchange or other organization on which the Preferred Securities are
then listed, the Debenture Issuer shall not be permitted to effect such partial
redemption and may only redeem the Debentures in whole.
(h) The procedure with respect to redemptions and distributions of
Debentures shall be as follows:
I-7
(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 redemption or exchange proceedings with respect
to any other Holder.
(ii) All notices of redemption shall state:
(a) the redemption date;
(b) the Redemption Price;
(c) the CUSIP number;
(d) if fewer than all the outstanding Securities are to be
redeemed, the identification and the total liquidation amount of the
particular Securities to be redeemed; and
(e) that on the redemption date the Redemption Price will
become due and payable upon each such Security to be redeemed and that
Distributions thereon will cease to accrue on and after said date.
(iii) 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 Preferred Securities, it being understood that, in
respect of Preferred Securities registered in the name of and held of
record by the Depository 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 each Clearing Agency Participant (or Person on
whose behalf such nominee holds such securities) in accordance with the
procedures applied by such agency or nominee.
(iv) If Securities are to be redeemed and the Trust gives a
Redemption/Distribution Notice, which notice may only be issued if the
Debentures are to be redeemed as set out in this Section 4 (which notice
will be irrevocable), then (A) while the Preferred Securities are in book-
entry only form,
I-8
with respect to the Preferred Securities, by 12:00 noon, New York City
time, on the redemption date, provided that by 10 a.m. New York City time,
on that date the Debenture Issuer has paid the Institutional Trustee or
other holder of the Institutional Trustee Account a sufficient amount of
cash in connection with the related redemption or maturity of the
Debentures, the Institutional Trustee or the Paying Agent will deposit
irrevocably with the Depository or its nominee (or successor Clearing
Agency or its nominee) funds sufficient to pay the applicable Redemption
Price with respect to the Preferred Securities and will give the Depository
irrevocable instructions and authority to pay the Redemption Price to the
Holders of the Preferred Securities, and (B) with respect to Preferred
Securities issued in definitive form and Common Securities, provided that
the Debenture Issuer has paid the Institutional Trustee or the holder of
the Institutional Trustee Account a sufficient amount of cash in connection
with the related redemption or maturity of the Debentures, the
Institutional Trustee or the Paying Agent 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 on and after the
redemption date, Distributions will cease to accrue 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. Neither the Regular 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 and ending at the close of business on
the day of such mailing or (ii) any Securities selected for redemption
except the unredeemed portion of any Security being redeemed in part. 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) except that, if such Business
Day falls in the next calendar year, such payment will be made on the
immediately preceding Business Day, in each case 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 Institutional Trustee or by the Sponsor
as guarantor pursuant to the relevant Securities Guarantee, Distributions
on such Securities will continue to accrue 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 Regular
Trustees on behalf of the Trust to (A) in respect of the Preferred
Securities, the Depository or its nominee (or any successor Clearing Agency
or its nominee) if the Global Certificates have been issued or, if
Definitive Preferred Security
I-9
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 Preferred Securities by
tender, in the open market or by private agreement.
(vii) Upon presentation of any Security redeemed in part only, the
Regular Trustee on behalf of the Trust shall execute and the Institutional
Trustee shall authenticate and deliver to the Holder thereof a new Security
in aggregate liquidation amount equal to the unredeemed portion of the
Security so presented and having the same original issue date, stated
maturity and terms.
5. Voting Rights - Preferred Securities.
------------------------------------
(a) Except as provided under Sections 5(b) and 7 and as otherwise
required by law and the Declaration, the Holders of the Preferred Securities
will have no voting rights.
(b) Subject to the requirements set forth in this paragraph and
Section 2.6(a), the Holders of a majority in aggregate liquidation amount of the
Preferred Securities, voting separately as a class may direct the time, method,
and place of conducting any proceeding for any remedy available to the
Institutional Trustee, or exercising any trust or power conferred upon the
Institutional Trustee under the Declaration, including the right to direct the
Institutional Trustee, as holder of the Debentures, to (i) exercise the remedies
available under the Indenture to holders of the Debentures, including the right
to direct the time method and place of conducting any proceeding for any remedy
available to the Debenture Trustee, or exercising any trust or power conferred
on the Debenture Trustee with respect to the Debentures, (ii) waive any past
default and its consequences that is waivable under Section 7.13 of the
Indenture, (iii) exercise any right to rescind or annul a declaration that the
principal of all the Debentures shall be due and payable, or (iv) consent to any
amendment, modification or termination of the Indenture or the Debentures where
such consent of the holders of the Debentures would be required, provided,
--------
however, that, where a consent under the Indenture would require the consent or
- -------
act of the Holders of greater than a majority of the Holders in principal amount
of Debentures affected thereby, (a "Super Majority"), the Institutional Trustee
--------------
may only give such consent or take such action at the written direction of the
Holders of at least the proportion in liquidation amount of the Preferred
Securities which the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding. The Institutional Trustee shall
not revoke any action previously authorized or approved by a vote of the Holders
of the Preferred Securities. Other than with respect to directing the time,
method and place of
I-10
conducting any remedy available to the Institutional Trustee or the Debenture
Trustee as set forth above, the Institutional Trustee shall not take any action
in accordance with the directions of the Holders of the Preferred Securities
under this paragraph unless the Institutional Trustee has obtained an opinion of
nationally recognized independent tax counsel experienced in such matters to the
effect that for the purposes of United States federal income tax the Trust will
not be classified as other than a grantor trust on account of such action. If a
Declaration Event of Default has occurred and is continuing and such event is
attributable to the failure of the Debenture Issuer to pay interest or principal
on the Debentures on the date such interest or principal is otherwise payable
(or in the case of redemption, on the redemption date), then a holder of
Preferred Securities may directly institute a proceeding for enforcement of
payment to such Holder of the principal of or interest on the Debentures having
a principal amount equal to the aggregate liquidation amount of the Preferred
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
Common Securities Holder will be subrogated to the rights of such holder of
Preferred Securities to the extent of any payment made by the Issuer to such
holder of Preferred Securities in such Direct Action. Except as provided in the
preceding sentences and Section 3.8 (e) of the Declaration, the Holders of
Preferred Securities will not be able to exercise directly any other remedy
available to the holders of the Debentures. Any amount payable pursuant to the
Declaration to any Holder of a Preferred Security shall be reduced by the amount
of any corresponding payment such Holder has directly received pursuant to such
Direct Action.
Any approval or direction of Holders of Preferred Securities may be
given at a separate meeting of Holders of Preferred Securities convened for such
purpose, at a meeting of all of the Holders of Securities in the Trust or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Preferred 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 Preferred 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 Preferred Securities will be
required for the Trust to redeem and cancel Preferred Securities or to
distribute the Debentures in accordance with the Declaration and the terms of
the Securities.
Notwithstanding that Holders of Preferred Securities are entitled to
give, make or take requests, demands, authorizations, directions, notices,
consents, waivers or other actions under any of the circumstances described in
this Declaration, any of the Preferred Securities that are owned by the Sponsor
or any Affiliate of the Sponsor shall not be entitled to give, make or take any
such action and shall, for purposes of such action, be treated as if they were
not outstanding, except that (a) in determining
I-11
whether any Trustee shall be protected in relying on any such request, demand,
authorization, direction, notice, consent or waiver, only Securities that a
Responsible Officer of such Trustee actually knows to be so owned shall be so
disregarded and (b) the foregoing shall not apply at any time when all of the
outstanding Securities are owned by the Sponsor or any Affiliate.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Declaration to be given, made or
taken by Holders of Preferred Securities may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such Holders in
person or by an agent duly appointed in writing; and, except as otherwise
expressly provided herein, such action shall become effective when such
instrument or instruments are delivered to the Institutional Trustee. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Declaration and (subject to Section 3.9) conclusive in favor of the Trustees, if
made in the manner provided herein.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which any Trustee receiving the same deems sufficient.
The ownership of Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Preferred Security shall bind every future
Holder of the same Preferred Security and the Holder of every Preferred Security
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by the
Trustees or the Trust in reliance thereon, whether or not notation of such
action is made upon such Preferred Security.
Without limiting the foregoing, a Holder entitled hereunder to take
any action hereunder with regard to any particular Preferred Security may do so
with regard to all or any part of the liquidation amount of such Preferred
Security or by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any part of such liquidation
amount.
I-12
If any dispute shall arise between the Holders of Preferred Securities
and Trustees or among such Holders or Trustees with respect to the authenticity,
validity or binding nature of any request, demand, authorization, direction,
consent, waiver or other Act of such Holder or Trustee hereunder, then the
determination of such matter by the Institutional Trustee shall be conclusive
with respect to such matter.
6. Voting Rights - Common Securities.
---------------------------------
(a) Except as provided under Sections 6(b), (c), 7(a) and (b), or as
otherwise required by law and the Declaration, the Holders of the Common
Securities will have no voting rights.
(b) The Holders of the Common Securities are entitled, in accordance
with Article V of the Declaration, to vote to appoint, remove or replace any
Trustee or to increase or decrease the number of Trustees.
(c) Subject to Section 2.6 of the Declaration and only after the
Event of Default with respect to the Preferred Securities has been cured,
waived, or otherwise eliminated and subject to the requirements of the second to
last sentence of this paragraph, the Holders of a Majority in liquidation amount
of the Common Securities, voting separately as a class, may direct the time,
method, and place of conducting any proceeding for any remedy available to the
Institutional Trustee, or exercising any trust or power conferred upon the
Institutional Trustee under the Declaration, including (i) directing the time,
method, place of conducting any proceeding for any remedy available to the
Debenture Trustee, or exercising any trust or power conferred on the Debenture
Trustee with respect to the Debentures, (ii) waive any past default and its
consequences that is waivable under Section 7.13 of the Indenture, (iii)
exercise any right to rescind or annul a declaration that the principal of all
the Debentures shall be due and payable, or (iv) consent to any amendment,
modification or termination of the Indenture or the Debentures where such
consent of the holders of the Debentures would be required, provided that, where
-------- ----
a consent or action under the Indenture would require the consent or act of the
Holders of a Super Majority, the Institutional Trustee may only give such
consent or take such action at the written direction of the Holders of at least
the proportion in liquidation amount of the Common Securities which the relevant
Super Majority represents of the aggregate principal amount of the Debentures
outstanding. Pursuant to this Section 6(c), the Institutional Trustee shall not
revoke any action previously authorized or approved by a vote of the Holders of
the Preferred Securities. Other than with respect to directing the time, method
and place of conducting any remedy available to the Institutional Trustee or the
Debenture Trustee as set forth above, the Institutional Trustee shall not take
any action in accordance with the directions of the Holders of the Common
Securities under this paragraph unless the Institutional Trustee has obtained an
opinion of nationally recognized independent tax counsel experienced in such
matters to the effect that for the purposes of United States federal income tax
the Trust will not be classified as other than a grantor trust on account of
such action. If the Institutional Trustee fails to enforce its rights under the
I-13
Declaration, any Holder of Common Securities may, to the fullest extent
permitted by law institute a legal proceeding directly against any Person to
enforce the Institutional Trustee's rights under the Declaration, without first
instituting a legal proceeding against the Institutional Trustee or any other
Person.
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 Regular 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.
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.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Declaration to be given, made or
taken by Holders of Common Securities may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Holders or in
person or by an agent duly appointed in writing, and except as otherwise
expressly provided herein, such action shall become effective when such
instrument or instruments are delivered to the Institutional Trustee. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
---
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Declaration and (subject to Section 3.9) conclusive in favor of the Trustees, if
made in the manner provided herein.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which any Trustee receiving the same deems sufficient.
The ownership of Securities shall be proved by the Securities
Register.
I-14
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Common Security shall bind every future Holder
of the same Common Security and the Holder of every Common Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustees or
the Trust in reliance thereon, whether or not notation of such action is made
upon Common Security.
Without limiting the foregoing, a Holder entitled hereunder to take
any action hereunder with regard to any particular Common Security may do so
with regard to all or any part of the liquidation amount of such Common Security
or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such liquidation amount.
If any dispute shall arise between the Holders of Common Securities
and the Trustees or among such Holders or Trustees with respect to the
authenticity, validity or binding nature of any request, demand, authorization,
direction, consent, waiver or other Act of such Holder or Trustee hereunder,
then the determination of such matter by the Institutional Trustee shall be
conclusive with respect to such matter.
7. Amendments to Declaration and Indenture.
---------------------------------------
(a) In addition to any requirements under Section 12.1 of the
Declaration, if any proposed amendment to the Declaration provides for, or the
Regular Trustees otherwise propose to effect, (i) any action that would
adversely affect the powers, privileges, preferences or special rights of the
Securities, whether by way of amendment to the Declaration or otherwise, or (ii)
the dissolution, winding-up or termination of the Trust, other than as described
in Section 8.1 of the Declaration, then the Holders of Securities voting
together as a single class, will be entitled to vote on such amendment or
proposal (but not on any other amendment or proposal) and such amendment or
proposal shall not be effective except with the approval of the Holders of at
least a Majority in liquidation amount of the Securities, affected thereby;
provided, however, that if any amendment or proposal referred to in clause (i)
- -------- -------
above would adversely affect only the Preferred Securities or only the Common
Securities, then only the affected class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of a Majority in liquidation amount of such class of
Securities.
(b) In the event the consent of the Institutional Trustee as the
holder of the Debentures is required under the Indenture with respect to any
amendment, modification or termination of the Indenture or the Debentures, the
Institutional Trustee shall request the written direction of the Holders of the
Securities with respect to such amendment, modification or termination and shall
vote with respect to such amendment, modification or termination as directed by
a Majority in liquidation amount of the Securities voting together as a single
class; provided, however, that where
-------- -------
I-15
a consent under the Indenture would require the consent of the holders of a
Super Majority, the Institutional Trustee may only give such consent at the
direction of the Holders of at least the proportion in liquidation amount of the
Securities which the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding; provided, further, that the
-------- -------
Institutional Trustee shall not take any action in accordance with the
directions of the Holders of the Securities under this Section 7(b) unless the
Institutional Trustee has obtained an opinion of nationally recognized
independent tax counsel experienced in such matters to the effect that for the
purposes of United States federal income tax the Trust will not be classified as
other than a grantor trust on account of such action.
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
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
Preferred Securities pro rata according to the aggregate liquidation amount of
Preferred Securities held by the relevant Holder relative to the aggregate
liquidation amount of all Preferred Securities outstanding, and only after
satisfaction of all amounts owed to the Holders of the Preferred 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. In any such
proration the Trust may make such adjustments as may be appropriate in order
that only Securities in authorized denominations shall be redeemed.
9. Ranking.
-------
The Preferred 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 the
rights of Holders of the Common Securities to payment in respect of
Distributions and payments upon liquidation, redemption and otherwise are
subordinated to the rights to payment of the Holders of the Preferred
Securities.
10. Acceptance of Securities Guarantee and Indenture.
------------------------------------------------
Each Holder of Preferred Securities and Common Securities, by the
acceptance thereof, agrees to the provisions of the Preferred Securities
Guarantee and the Common Securities Guarantee, respectively, including the
subordination provisions therein and to the provisions of the Indenture.
I-16
11. No Preemptive Rights.
--------------------
The Holders of the Securities shall have no preemptive or similar
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 Preferred
Securities Guarantee or the Common Securities Guarantee (as may be appropriate),
and the Indenture to a Holder without charge on written request to the Sponsor
at its principal place of business.
I-17
EXHIBIT A-1
FORM OF PREFERRED SECURITY CERTIFICATE
[This Preferred Security is a Global Certificate within the meaning of
the Declaration hereinafter referred to and is registered in the name of The
Depository Trust Company (the "Depositary") or a nominee of the Depositary.
----------
This Preferred Security is exchangeable for Preferred Securities registered in
the name of a person other than the Depositary or its nominee only in the
limited circumstances described in the Declaration and no transfer of this
Preferred Security (other than a transfer of this Preferred Security as a whole
by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary) may be
registered except in limited circumstances.
Unless this Preferred 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 Preferred 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.]/1/
_____________
/1/ Insert in Global Certificates only.
A1-1
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.
Certificate Number Preferred Securities
CUSIP NO.___________________
Certificate Evidencing Preferred Securities
of
BANK ONE CAPITAL III
8.750% Preferred Securities
(liquidation amount $1,000 per Preferred Security)
BANK ONE CAPITAL 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 _________________ preferred securities
------
of the Trust representing undivided beneficial interests in the assets of the
Trust designated the 8.750% Preferred Securities (liquidation amount $1,000 per
Preferred Security) (the "Preferred Securities"). The Preferred Securities are
--------------------
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer. The designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Preferred 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 August 30, 2000, as the same may be amended from time to time (the
"Declaration"), including the designation of the terms of the Preferred
- ------------
Securities as set forth in Annex I to the Declaration. Capitalized terms used
herein but not defined shall have the meaning given them in the Declaration.
The Holder is entitled to the benefits of the Preferred Securities Guarantee to
the extent provided therein. The Sponsor will provide a copy of the
Declaration, the Preferred 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.
A1-2
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Debentures as indebtedness and the Preferred Securities
as evidence of indirect beneficial ownership in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this ____
day of .
BANK ONE CAPITAL III
By:_________________________________
Name: Charles W. Scharf
Title: Regular Trustee
A1-3
CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Declaration.
Dated:
THE CHASE MANHATTAN BANK,
as Institutional Trustee
By:__________________________
Authorized Officer
A1-4
[FORM OF REVERSE OF SECURITY]
Distributions will be payable on each Preferred Security at a fixed
rate per annum of 8.750% (the "Distribution Rate") of the stated liquidation
-----------------
amount of $1,000 per Preferred Security. Distributions in arrears for more than
one semiannual period will bear interest thereon compounded semiannually at the
Distribution Rate (to the extent permitted by applicable law). The term
"Distributions" as used herein includes such cash distributions and any such
- --------------
interest payable unless otherwise stated. A Distribution is payable only to the
extent that payments are made in respect of the Debentures held by the
Institutional Trustee and to the extent the Institutional Trustee has funds
available therefor. The distribution amount payable for each distribution
period will be calculated as provided in the Declaration.
Except as otherwise described below, distributions on the Preferred
Securities will be cumulative, will accrue from August 30, 2000, and will be
payable semiannually in arrears, on March 1 and September 1 of each year,
commencing on March 1, 2001 to the Holders thereof as they appear on the books
and records of the Trust on the relevant record dates. While the Preferred
Securities remain in book-entry only form, the relevant record dates shall be
one Business Day prior to the relevant payment dates. If the Preferred
Securities shall not continue to remain in book-entry only form, the relevant
record dates for the Preferred Securities shall be February 15 or August 15, as
the case may be. The Debenture Issuer has the right under the Indenture to
defer payments of interest by extending the interest payment period from time to
time on the Debentures for a period not exceeding 10 consecutive semiannual
periods (each an "Extension Period"), provided that no Extension Period shall
---------------- -------- ----
end on a day other than an interest payment date for the Debentures or shall
extend beyond the date of the maturity of the Debentures. As a consequence of
such deferral, Distributions will also be deferred. Despite such deferral,
semiannual Distributions will continue to accrue with interest thereon (to the
extent permitted by applicable law) at the Distribution Rate compounded
semiannually 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 Institutional Trustee and to
the extent the Institutional Trustee has funds available therefor) will be
payable to the Holders of the Securities in whose names the Securities are
registered in the Security Register on the record date relating to the
Distribution Date on which the Extension Period ends. 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 thereof
may not exceed 10 consecutive semiannual periods 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.
A1-5
Subject to the prior approval of the Federal Reserve if such approval
is then required under applicable law, rules, guidelines or policies of the
Federal Reserve, the Regular Trustees shall have the right at any time to
dissolve the Trust and cause, after satisfaction of the creditors of the Trust,
the Debentures to be distributed to the holders of the Securities in liquidation
of the Trust.
The Preferred Securities shall be redeemable as provided in the Declaration.
A1-6
______________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
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 Preferred 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 Preferred 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
A1-7
________________________________________________________________________________
in addition to, or in substitution for, STAMP, all in accordance with
the Securities and Exchange Act of 1934, as amended.]
A1-7
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
EXCEPT AS PROVIDED IN THE DECLARATION (AS DEFINED BELOW),
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number Common Securities
Certificate Evidencing Common Securities
of
BANK ONE CAPITAL III
8.750% Common Securities
(liquidation amount $1,000 per Common Security)
BANK ONE CAPITAL III, a statutory business trust formed under the laws
of the State of Delaware (the "Trust"), hereby certifies that BANK ONE
------
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 8.750% Common Securities (liquidation amount $1,000 per
Common Security) (the "Common Securities"). Except as provided in the
-----------------
Declaration (as defined below), 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 August 30, 2000, 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 herein but not defined shall have the meaning given them
in the Declaration. The Holder is entitled to the benefits of the Common
Securities Guarantee to the extent provided therein. The Sponsor will provide a
copy of the Declaration, the Common Securities Guarantee and the 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.
THIS SECURITY IS NOT A SAVINGS OR DEPOSIT ACCOUNT OR OTHER OBLIGATION
OF A BANK AND IS NOT INSURED BY THE FEDERAL
A2-1
DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
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.
IN WITNESS WHEREOF, the Trust has executed this certificate this
___ day of.
BANK ONE CAPITAL III
By:_______________________________
Name: Charles W. Scharf
Title: Regular Trustee
CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Declaration.
Dated: __________
THE CHASE MANHATTAN BANK,
as Institutional Trustee
By:__________________
Authorized Officer
A2-2
[FORM OF REVERSE OF SECURITY]
Distributions will be payable on each Common Security at a fixed rate
per annum of 8.750% (the "Distribution Rate") of the stated liquidation
-----------------
amount of $1,000 per Common Security. Distributions in arrears for more than
one semiannual period will bear interest thereon compounded semiannually at the
Distribution Rate (to the extent permitted by applicable law). The term
"Distributions" as used herein includes such cash distributions and any such
- --------------
interest payable unless otherwise stated. A Distribution is payable only to the
extent that payments are made in respect of the Debentures held by the
Institutional Trustee and to the extent the Institutional Trustee has funds
available therefor. The distribution amount payable for each distribution
period will be calculated as provided in the Declaration.
Except as otherwise described below, distributions on the Common
Securities will be cumulative, will accrue from August 30, 2000, and will be
payable semiannually in arrears, on March 1 and September 1 of each year,
commencing on March 1, 2001 to the Holders thereof as they appear on the books
and records of the Trust on the relevant record dates. While the Common
Securities remain in book-entry only form, the relevant record dates shall be
one Business Day prior to the relevant payment dates. If the Common Securities
shall not continue to remain in book-entry only form, the relevant record dates
for the Common Securities shall be February 15 and August 15 as the case may be.
The Debenture Issuer has the right under the Indenture to defer payments of
interest by extending the interest payment period from time to time on the
Debentures for a period not exceeding 10 consecutive semiannual periods (each an
"Extension Period"), provided that no Extension Period shall end on a day
---------------- -------- ----
other than an interest payment date for the Debentures or shall extend beyond
the date of the maturity of the Debentures. As a consequence of such deferral,
Distributions will also be deferred. Despite such deferral, semiannual
Distributions will continue to accrue with interest thereon (to the extent
permitted by applicable law) at the Distribution Rate compounded semiannually
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 Institutional Trustee and to the extent
the Institutional Trustee has funds available therefor) will be payable to the
Holders of the Securities in whose names the Securities are registered in the
Security Register on the record date relating to the Distribution Date on which
the Extension Period ends. 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 thereof may not exceed 10
consecutive semiannual periods 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.
A2-3
Subject to the prior approval of the Federal Reserve if such approval
is then required under applicable law, rules, guidelines or policies of the
Federal Reserve, the Regular Trustees shall have the right at any time to
dissolve the Trust and cause, after satisfaction of creditors of the Trust, the
Debentures to be distributed to the holders of the Securities in liquidation of
the Trust.
The Common Securities shall be redeemable as provided in the Declaration.
A2-4
EXHIBIT B
SPECIMEN OF DEBENTURE
B-1
EXHIBIT C
UNDERWRITING AGREEMENT
August 23, 2000
C-1