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EXHIBIT 2.3
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
FLEET CAPITAL TRUST VII
Dated as of September 17, 2001
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TABLE OF CONTENTS
Page
ARTICLE I INTERPRETATION AND DEFINITIONS.................................. 1
SECTION 1.1 DEFINITIONS................................................. 1
ARTICLE II TRUST INDENTURE ACT............................................ 8
SECTION 2.1 TRUST INDENTURE ACT; APPLICATION............................ 8
SECTION 2.2 LISTS OF HOLDERS OF SECURITIES.............................. 8
SECTION 2.3 REPORTS BY THE INSTITUTIONAL TRUSTEE........................ 9
SECTION 2.4 PERIODIC REPORTS TO INSTITUTIONAL TRUSTEE................... 9
SECTION 2.5 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT............ 10
SECTION 2.6 EVENTS OF DEFAULT; WAIVER................................... 10
SECTION 2.7 EVENT OF DEFAULT; NOTICE.................................... 12
ARTICLE III ORGANIZATION.................................................. 13
SECTION 3.1 NAME........................................................ 13
SECTION 3.2 OFFICE...................................................... 13
SECTION 3.3 PURPOSES.................................................... 13
SECTION 3.4 AUTHORITY................................................... 13
SECTION 3.5 TITLE TO PROPERTY OF THE TRUST.............................. 14
SECTION 3.6 POWERS AND DUTIES OF THE REGULAR TRUSTEES................... 14
SECTION 3.7 PROHIBITION OF ACTIONS BY THE TRUST AND THE TRUSTEES........ 16
SECTION 3.8 POWERS AND DUTIES OF THE INSTITUTIONAL TRUSTEE.............. 17
SECTION 3.9 CERTAIN DUTIES AND RESPONSIBILITIES OF THE INSTITUTIONAL
TRUSTEE................................................................. 19
SECTION 3.10 CERTAIN RIGHTS OF THE INSTITUTIONAL TRUSTEE................ 21
SECTION 3.11 DELAWARE TRUSTEE........................................... 23
SECTION 3.12 EXECUTION OF DOCUMENTS..................................... 23
SECTION 3.13 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES..... 23
SECTION 3.14 DURATION OF TRUST.......................................... 24
SECTION 3.15 MERGERS.................................................... 24
ARTICLE IV SPONSOR........................................................ 25
SECTION 4.1 SPONSOR'S PURCHASE OF COMMON SECURITIES..................... 25
SECTION 4.2 RESPONSIBILITIES OF THE SPONSOR............................. 25
SECTION 4.3 RIGHT TO PROCEED............................................ 26
SECTION 4.4 EXPENSES.................................................... 26
ARTICLE V TRUSTEES........................................................ 27
SECTION 5.1 NUMBER OF TRUSTEES.......................................... 27
SECTION 5.2 DELAWARE TRUSTEE............................................ 27
SECTION 5.3 INSTITUTIONAL TRUSTEE; ELIGIBILITY.......................... 28
SECTION 5.4 CERTAIN QUALIFICATIONS OF THE REGULAR TRUSTEES AND THE
DELAWARE TRUSTEE GENERALLY.............................................. 29
SECTION 5.5 REGULAR TRUSTEES............................................ 29
SECTION 5.6 APPOINTMENT, REMOVAL AND RESIGNATION OF TRUSTEES............ 29
SECTION 5.7 VACANCIES AMONG TRUSTEES.................................... 31
SECTION 5.8 EFFECT OF VACANCIES......................................... 31
SECTION 5.9 MEETINGS.................................................... 31
SECTION 5.10 DELEGATION OF POWER........................................ 31
SECTION 5.11 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS 32
ARTICLE VI DISTRIBUTIONS.................................................. 32
SECTION 6.1 DISTRIBUTIONS............................................... 32
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ARTICLE VII ISSUANCE OF SECURITIES........................................ 32
SECTION 7.1 GENERAL PROVISIONS REGARDING SECURITIES..................... 32
SECTION 7.2 PAYING AGENT................................................ 34
ARTICLE VIII TERMINATION OF TRUST......................................... 34
SECTION 8.1 TERMINATION OF TRUST........................................ 34
ARTICLE IX TRANSFER OF INTERESTS.......................................... 35
SECTION 9.1 TRANSFER OF SECURITIES...................................... 35
SECTION 9.2 TRANSFER OF CERTIFICATES.................................... 35
SECTION 9.3 DEEMED SECURITY HOLDERS..................................... 37
SECTION 9.4 BOOK-ENTRY INTERESTS........................................ 37
SECTION 9.5 NOTICES TO DEPOSITORY INSTITUTION........................... 38
SECTION 9.6 APPOINTMENT OF SUCCESSOR DEPOSITORY INSTITUTION............. 38
SECTION 9.7 DEFINITIVE PREFERRED SECURITY CERTIFICATES.................. 38
SECTION 9.8 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES........... 39
ARTICLE X LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR
OTHERS.................................................................... 40
SECTION 10.1 LIABILITY.................................................. 40
SECTION 10.2 EXCULPATION................................................ 40
SECTION 10.3 FIDUCIARY DUTY............................................. 40
SECTION 10.4 INDEMNIFICATION............................................ 41
SECTION 10.5 OUTSIDE BUSINESSES......................................... 44
SECTION 10.6 COMPENSATION; FEES......................................... 44
ARTICLE XI ACCOUNTING..................................................... 45
SECTION 11.1 FISCAL YEAR................................................ 45
SECTION 11.2 CERTAIN ACCOUNTING MATTERS................................. 45
SECTION 11.3 BANKING.................................................... 46
SECTION 11.4 WITHHOLDING................................................ 46
ARTICLE XII AMENDMENTS AND MEETINGS....................................... 46
SECTION 12.1 AMENDMENTS................................................. 46
SECTION 12.2 MEETINGS OF THE HOLDERS OF SECURITIES; ACTION BY WRITTEN
CONSENT.................................................... 48
ARTICLE XIII REPRESENTATIONS OF INSTITUTIONAL TRUSTEE AND DELAWARE TRUSTEE 49
SECTION 13.1 REPRESENTATIONS AND WARRANTIES OF INSTITUTIONAL TRUSTEE.... 49
SECTION 13.2 REPRESENTATIONS AND WARRANTIES OF DELAWARE TRUSTEE......... 50
ARTICLE XIV MISCELLANEOUS................................................. 51
SECTION 14.1 NOTICES.................................................... 51
SECTION 14.2 GOVERNING LAW.............................................. 52
SECTION 14.3 INTENTION OF THE PARTIES................................... 52
SECTION 14.4 HEADINGS................................................... 52
SECTION 14.5 SUCCESSORS AND ASSIGNS..................................... 52
SECTION 14.6 PARTIAL ENFORCEABILITY..................................... 52
SECTION 14.7 COUNTERPARTS............................................... 52
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CROSS-REFERENCE TABLE*
Section of
Trust Indenture Act Section of
of 1939, as amended Declaration
------------------- -----------
310(a) 5.3(a)
310(b) 5.3(c)
310(c) Inapplicable
311(a) and (b) 5.3(c)
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(e) 2.5
314(f) Inapplicable
315(a) 3.9(b)
315(b) 2.7(a)
315(c) 3.9(a)
315(d) 3.9(b)
316(a) and (b) 2.6 and Annex I (Sections 5
and 6)
316(c) 3.6(e)
317(a) 3.8(c)
317(b) 3.8(h)
* This Cross-Reference Table does not constitute part of the Declaration and
shall not affect the interpretation of any of its terms or provisions.
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AMENDED AND RESTATED
DECLARATION OF TRUST
OF
FLEET CAPITAL TRUST VII
September 17, 2001
THIS AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") is dated
and effective as of September 17, 2001 by the Trustees (as defined herein), the
Sponsor (as defined herein) and by the holders, from time to time, of undivided
beneficial interests in the Trust to be issued pursuant to this Declaration.
WHEREAS, the Trustees (or their predecessors) and the Sponsor established
Fleet Capital Trust VII (the "Trust"), a statutory business trust under the
Business Trust Act (as defined herein), pursuant to a Declaration of Trust,
dated as of March 16, 1998, as amended by First Amendment to Declaration of
Trust, dated as of October 21, 1999 (the "Original Declaration"), and a
Certificate of Trust filed with the Secretary of State of the State of Delaware
on March 16, 1998, as amended to date (the "Certificate of Trust") 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 (both as defined herein);
and
WHEREAS, as of the date hereof, no Securities have been issued; and
WHEREAS, all of the Trustees and the Sponsor, by this Declaration, hereby
amend and restate each and every term and provision of the Original Declaration.
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 constitutes 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, subject to the provisions of this Declaration.
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions.
Unless the context otherwise requires:
(a) capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this Section
1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to this
Declaration as modified, supplemented or amended from time to time;
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(d) all references in this Declaration to Articles, Sections, Annexes and
Exhibits are to Articles and Sections of, and Annexes and Exhibits to, this
Declaration;
(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.
"Additional Interest" has the meaning set forth in Section 2(d) of Annex
I.
"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.
"Authorized Officer" of a Person means any executive officer, president,
vice-president, assistant vice-president, treasurer, assistant treasurer,
secretary, assistant secretary or other officer of such Person generally
authorized to bind such Person.
"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 Depository Institution as described in Section 9.4.
"Business Day" means any day other than a day on which federal or State
banking institutions in the Borough of Manhattan, New York, New York are
authorized or obligated by law, executive order or regulation to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code,
12 Del. Code Section 3801 et seq., as it may be amended from time to time, or
any successor legislation.
"Certificate" means a Common Security Certificate or a Preferred
Security Certificate.
"Certificate of Trust" has the meaning set forth in the first recital
hereto.
"Closing Date" means the "Closing Time" and each "Date of Delivery" as
defined in the Purchase 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 set forth in Section 7.1(a).
"Common Securities Guarantee" means the guarantee agreement to be dated as
of September 17, 2001 of the Sponsor in respect of the Common Securities.
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"Common Security Certificate" means a definitive certificate in fully
registered form representing a Common Security substantially in the form of
Exhibit A-2.
"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.
"Compound Interest" has the meaning set forth in Section 2(a) of Annex I.
"Corporate Trust Office" means the office of the Institutional Trustee at
which the corporate trust business of the Institutional Trustee shall, at any
particular time, be principally administered, which office at the date of
execution of this Agreement is located at 101 Barclay Street, Floor 21W, New
York, New York 10286.
"Covered Person" means: (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii)
the Trust's Affiliates; and (b) any Holder of Securities.
"Coupon Rate" has the meaning set forth in Section 2(a) of Annex I.
"Creditor" has the meaning set forth in Section 4.4.
"Debenture Issuer" means FleetBoston Financial Corporation, a Rhode Island
corporation, in its capacity as issuer of the Debentures under the Indenture.
"Debentures" means the 7.20% Junior Subordinated Deferrable Interest
Debentures due 2031 issued by the Debenture Issuer to the Trust.
"Debt Trustee" means The Bank of New York, as trustee under the Indenture
until a successor is appointed thereunder, and thereafter means such successor
trustee.
"Declaration" has the meaning set forth in the preamble hereto.
"Delaware Trustee" has the meaning set forth in Section 5.2.
"Definitive Preferred Security Certificates" has the meaning set forth in
Section 9.4.
"Depository Institution" shall mean DTC, another clearing agency, or any
successor registered as a clearing agency under the Exchange Act, or other
applicable statute or regulation, which, in each case, shall be designated by
the Debenture Issuer pursuant to either Section 2.03 or 2.11 of the Indenture.
"Depository Institution Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Depository
Institution effects book-entry transfers and pledges of securities deposited
with the Depository Institution.
"Direct Action" has the meaning set forth in Section 3.8(e).
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"Distribution" means a distribution payable to Holders of Securities in
accordance with Section 6.1.
"Distribution Payment Date" has the meaning set forth in Section 2(b) of
Annex I.
"DTC" means The Depository Trust Company, the initial Depository
Institution.
"Event of Default" in respect of the Securities means an Event of Default
under the Indenture which has occurred and is continuing in respect of the
Debentures.
"Exchange Act" means the Securities and Exchange Act of 1934, as amended
from time to time, or any successor legislation.
"Extension Period" has the meaning set forth in Section 2(b) of Annex I.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System.
"Fiduciary Indemnified Person" has the meaning set forth in Section
10.4(b).
"Fiscal Year" has the meaning set forth in Section 11.1.
"Global Certificate" has the meaning set forth in Section 9.4.
"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 June 30, 2000, among the
Debenture Issuer and the Debt 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.
"Legal Action" has the meaning set forth in Section 3.6(g).
"Liquidation" has the meaning set forth in Section 3 of Annex I.
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"Liquidation Distribution" has the meaning set forth in Section 3 of Annex
I.
"List of Holders" has the meaning set forth in Section 2.2(a).
"Majority in liquidation amount of Preferred Securities" means, except as
provided in the terms of the Preferred Securities set forth in Annex I hereto 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.
"NYSE" means the New York Stock Exchange, Inc.
"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 Authorized Officer signing the Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each Authorized Officer in rendering the
Certificate;
(c) a statement that each such Authorized Officer has made such
examination or investigation as, in such Authorized Officer's opinion, is
necessary to enable such Authorized 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 Authorized
Officer, such condition or covenant has been complied with.
"Original Declaration" has the meaning set forth in the first recital
hereto.
"Paying Agent" has the meaning set forth in Section 7.2.
"Payment Amount" has the meaning set forth in Section 6.1.
"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 Guarantee Trustee" means The Bank of New York, as trustee under
the Preferred Securities Guarantee until a successor is appointed thereunder,
and thereafter means such successor trustee.
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"Preferred Securities" has the meaning set forth in Section 7.1(a).
"Preferred Securities Guarantee" means the guarantee agreement to be dated
as of September 17, 2001 of the Sponsor in respect of the Preferred Securities.
"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 Depository Institution, or on the books of a
Person maintaining an account with such Depository Institution (directly as a
Depository Institution Participant or as an indirect participant, in each case
in accordance with the rules of such Depository Institution).
"Preferred Security Certificate" means a certificate representing a
Preferred Security substantially in the form of Exhibit A-1.
"Prepayment Price" has the meaning set forth in Section 4(b) of Annex I.
"Pro Rata" has the meaning set forth in Section 8 of Annex I.
"Prospectus" means the prospectus included in the Shelf Registration
Statement at the time the Shelf Registration Statement was declared effective,
as amended or supplemented by any prospectus supplement and by all other
amendments, including post-effective amendments, and supplements thereto, and
all other material incorporated by reference therein.
"Purchase Agreement" means the Purchase Agreement for the offering and
sale of Preferred Securities in the form of Exhibit C.
"Quorum" means a majority of the Regular Trustees or, if there are only
two Regular Trustees, both of them.
"Redemption/Distribution Notice" has the meaning set forth in Section
4(f)(i) of Annex I.
"Redemption Price" shall have the meaning set forth in Section 4(a) of
Annex I.
"Regular Trustee" has the meaning set forth in Section 5.1.
"Regulatory Capital Event" has the meaning set forth in Section 4(c) of
Annex I.
"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.
"Resignation Request" has the meaning set forth in Section 5.6(c).
"Responsible Officer" means, with respect to the Institutional Trustee,
any officer within the Corporate Trust Office of the Institutional Trustee,
including any vice president, any assistant vice president, any assistant
secretary, any assistant treasurer or other officer of the Corporate Trust
Office of the Institutional Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular
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corporate trust matter, any other officer to whom such matter is referred
because of that officer's knowledge of and familiarity with the particular
subject.
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act.
"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.
"Shelf Registration Statement" means the registration statement (File No.
333-36444) relating to the registration for sale the Securities that has been
filed with the Commission pursuant to this Declaration, and all amendments
(including post-effective amendments) thereto, and all exhibits and material
incorporated by reference therein.
"Special Event" has the meaning set forth in Section 4(c) of Annex I.
"Sponsor" means FleetBoston Financial Corporation, a Rhode Island
corporation, or any successor entity in a merger, consolidation or amalgamation,
in its capacity as sponsor of the Trust.
"Stated Maturity" has the meaning set forth in Section 4(a) of Annex I.
"Successor Delaware Trustee" has the meaning set forth in Section
5.6(b)(ii).
"Successor Entity" has the meaning set forth in Section 3.15(b)(i).
"Successor Institutional Trustee" has the meaning set forth in Section
5.6(b)(i).
"Successor Securities" has the meaning set forth in Section 3.15(b)(i)(B).
"Super Majority" has the meaning set forth in Section 2.6(a)(ii).
"Tax Event" has the meaning set forth in Section 4(c) of Annex I hereto.
"10% in liquidation amount" means, except as provided in the terms of the
Preferred Securities set forth in Annex I hereto 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 in 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.
"Transfer Agent" has the meaning set forth in Section 9.2(e).
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"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Trust" has the meaning set forth in the first recital hereto.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
from time to time, or any successor legislation.
"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.
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 Sections 310 to 317,
inclusive, of the Trust Indenture Act, the duties imposed by the Trust Indenture
Act shall control.
(d) The application of the Trust Indenture Act to this Declaration shall
not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
SECTION 2.2 Lists of Holders of Securities.
(a) Each of the Sponsor and the 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 ("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 15 days before such List of Holders is given to the
Institutional Trustee.
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The Institutional Trustee shall preserve, in as current a form as is reasonably
practicable, all information contained in the Lists of Holders given to it or
which it receives in its 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
Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Institutional Trustee.
(a) The Institutional Trustee shall transmit to Holders such reports
concerning the Institutional Trustee and its actions under this Indenture as may
be required pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant thereto. If required by Section 313(a) of the Trust Indenture
Act, the Institutional Trustee shall, within sixty days after each April 15
following the date of this Indenture deliver to Holders a brief report which
complies with the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Institutional Trustee with each stock exchange, if any,
upon which the Securities are listed, with the Commission and with the Trust.
The Trust will promptly notify the Institutional Trustee when the Securities are
listed on any stock exchange and of any delisting thereof.
SECTION 2.4 Periodic Reports to Institutional Trustee.
(a) Each of the Sponsor and the Regular Trustees on behalf of the Trust
covenants and agrees to file with the Institutional Trustee, within 15 days
after the Trust is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Trust may be required to file with
the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or,
if the Trust is not required to file information, documents or reports pursuant
to either of such sections, then to file with the Institutional Trustee and the
Commission, in accordance with rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Exchange Act in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and
regulations.
(b) Each of the Sponsor and the Regular Trustees on behalf of the Trust
covenants and agrees to file with the Institutional Trustee and the Commission,
in accordance with the rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with respect to
compliance by the Trust with the conditions and covenants provided for in this
Declaration as may be required from time to time by such rules and regulations.
(c) Each of the Sponsor and the Regular Trustees on behalf of the Trust
covenants and agrees to transmit by mail to all holders of Securities, as the
names and addresses of such holders
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appear upon the security register, within 30 days after the filing thereof with
the Institutional Trustee, such summaries of any information, documents and
reports required to be filed by the Trust pursuant to subsections (a) and (b) of
this Section 2.4 as may be required by rules and regulations prescribed from
time to time by the Commission.
(d) Each of the Sponsor and the Regular Trustees on behalf of the Trust
covenants and agrees to furnish to the Institutional Trustee within 120 days of
the end of each fiscal year, the compliance certificate required by Section
314(a)(4) of the Trust Indenture Act.
(e) Delivery of such reports, information and documents to the
Institutional Trustee is for informational purposes only and the Institutional
Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Trust's compliance with any of its covenants hereunder
(as to which the Institutional Trustee is entitled to rely exclusively on
Officers' Certificates).
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 Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) may be given in the form of an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver.
(a) Subject to Section 2.6(c), 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, then the Event of Default under the
Declaration may be waived only 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; or
(iii) requires the consent or vote of each holder of Debentures to
be waived under the Indenture, then the Event of Default under the
Declaration may be waived only by each Holder of Preferred Securities.
The foregoing provisions of this Section 2.6(a) shall be in lieu of
Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of
the Trust Indenture Act is hereby expressly excluded from this Declaration and
the Securities, as permitted by the Trust Indenture
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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.
(b) Subject to Section 2.6(c), 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), then the
Event of Default under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of (A) a Super Majority to be
waived, then the Event of Default under the Declaration may be waived only
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
or (B) each holder of Debentures to be waived, then the Event of Default
under the Declaration may only be waived by each Holder of Preferred
Securities, 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); 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 set forth in Annex I hereto.
If any Event of Default with respect to the Preferred Securities is waived
by the Holders of Preferred Securities as provided in this Declaration,
the Holders of Common Securities agree that such waiver shall also
constitute the waiver of such Event of Default with respect to the Common
Securities for all purposes under this Declaration without any further
act, vote or consent of the Holders of the Common Securities. Subject to
the foregoing provisions of this Section 2.6(b), upon such waiver, any
such default shall cease to exist and any Event of Default with respect to
the Common Securities arising therefrom shall be deemed to have been cured
for every purpose of this Declaration, but no such waiver shall extend to
any subsequent or other default or Event of Default with respect to the
Common Securities or impair any right consequent thereon. The foregoing
provisions of this Section 2.6(b)
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shall be in lieu of Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust
Indenture Act and such Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust
Indenture Act are hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act. Subject to the
foregoing provisions of this Section 2.6(b), upon such waiver, any such
default shall cease to exist and any Event of Default with respect to the
Common Securities arising therefrom shall be deemed to have been cured for
every purpose of this Declaration, but no such waiver shall extend to any
subsequent or other default or Event of Default with respect to the Common
Securities or impair any right consequent thereon.
(c) The right of any Holder to receive payment of Distributions in
accordance with this Declaration and the terms of the Securities set forth in
Annex I on or after the respective payment dates therefor, or to institute suit
for the enforcement of any such payment on or after such payment dates, shall
not be impaired without the consent of each such Holder.
(d) A waiver of an Event of Default under the Indenture by the
Institutional Trustee at the written 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(d) shall be in lieu of
Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of
the Trust Indenture Act is hereby expressly excluded from this Declaration and
the Securities, as permitted by the Trust Indenture Act.
SECTION 2.7 Event of Default; Notice.
(a) The Institutional Trustee shall, within 90 days after the occurrence
of an Event of Default, transmit by mail, first class postage prepaid, to the
Holders, notice of all defaults with respect to the Securities actually known to
a Responsible Officer, 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, 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 in good faith determines that the
withholding of such notice is in the interests of the Holders; and provided
further, that in the case of any default of the character specified in Section
5.01(c) of the Indenture, no such notice to Holders shall be given until at
least 60 days after the occurrence thereof but shall be given within 90 days
after such occurrence.
(b) The Institutional Trustee shall not be deemed to have knowledge of any
default except:
(i) a default under Sections 5.01(a) or (b) of the Indenture; or
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(ii) any default as to which the Institutional Trustee shall have
received written notice or of which a Responsible Officer charged with the
administration of the Declaration shall have actual knowledge.
ARTICLE III
ORGANIZATION
SECTION 3.1 Name.
The Trust continued by this Declaration is named "Fleet Capital Trust
VII," as such name may be modified from time to time by the Regular Trustees
following written notice to the Holders. 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 FleetBoston
Financial Corporation, 100 Federal Street, Boston, Massachusetts 02110. Upon ten
(10) Business Days' written notice to the Holders of Securities, the Regular
Trustees may designate another principal office.
SECTION 3.3 Purposes.
The exclusive purposes and functions of the Trust are (i) to issue (a) its
Preferred Securities pursuant to the Purchase Agreement in exchange for cash and
(b) its Common Securities to the Sponsor in exchange for cash, and to use the
aggregate proceeds of the sale of the Securities to purchase the Debentures,
(ii) to enter into such agreements and arrangements as may be necessary in
connection with the issuance and sale of the Securities and to take all actions,
and exercise such discretion, as may be necessary or desirable in connection
with the issuance and sale of the Securities and to file such registration
statements or make such other filings under the Securities Act, the Exchange Act
or State securities or "Blue Sky" laws as may be necessary or desirable in
connection with the offer and the issuance and sale of the Securities, and (iii)
except as otherwise limited herein, to engage in only those other activities
necessary or incidental thereto. As more specifically provided in Section 3.7,
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. Any
action taken by the Regular Trustees in accordance with their powers shall
constitute the act of and serve to bind the Trust and any 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
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dealing with the Trust are entitled to rely conclusively on the power and
authority of the Trustees as set forth in this Declaration.
SECTION 3.5 Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the Debentures and the
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 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 one-time
simultaneous issuance of both Preferred Securities and Common Securities on the
Closing Date;
(b) in connection with the issue of the Preferred Securities, at the
direction of the Sponsor, to:
(i) execute and file with the Commission one or more registration
statements on Form S-3 prepared by the Sponsor, including any and all
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 NYSE or any other national stock exchange or the NASDAQ Stock Market's
National Market for listing or quotation upon notice of issuance of any
Preferred Securities;
(iv) execute and file with the Commission a registration statement
on Form 8-A, including any amendments thereto, prepared by the Sponsor,
relating to the registration of the Preferred Securities under Section
12(b) of the Exchange Act;
(v) execute and enter into the Purchase Agreement providing for the
sale of the Preferred Securities; and
(vi) execute and deliver letters, documents or instruments with DTC.
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(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;
(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 Section 316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue relevant
notices to the Holders of 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 set forth in Annex I
hereto;
(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 Section 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;
(l) to act as, or appoint another Person to act as, registrar, transfer
agent and paying agent for the Securities;
(m) to give prompt written notice to the Holders 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
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such existence is necessary to protect the limited liability of the Holders 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 actions do 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 shall 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.
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 cause the Trust not to, engage in any activity other than in
connection with the purposes of the Trust or 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 pursuant to
the terms of this Declaration and of the Securities;
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(ii) acquire any assets other than as expressly provided herein;
(iii) possess Trust property for other than a Trust purpose;
(iv) make any investments, other than investments 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;
(vii) incur any indebtedness for borrowed money; or
(viii) other than as provided in this Declaration or Annex I hereto,
(A) direct the time, method and place of exercising any trust or power
conferred upon the Debt 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 held in the Trust shall be due and payable, or (D) consent to
any amendment, modification or termination of the Indenture or the
Debentures if such action would cause the Trust to be classified for
United States federal income tax purposes as other than a grantor trust or
would cause the Trust to be deemed an Investment Company required to be
registered under the Investment Company Act.
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. 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 5.6. 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
and, upon the receipt of payments of funds made in respect of the
Debentures held by the Institutional Trustee, deposit such funds into the
Institutional Trustee Account and make payments to the Holders from the
Institutional Trustee Account in accordance with Section 6.1. Funds in the
Institutional
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Trustee Account shall be held uninvested until disbursed in accordance
with this Declaration;
(ii) engage in such ministerial activities as shall be necessary or
appropriate to effect the redemption of the Securities to the extent the
Debentures are redeemed or mature; and
(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 in accordance with the
provisions of the Indenture.
(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 shall take any Legal Action which arises out
of or in connection with (i) an Event of Default of which a Responsible Officer
has actual knowledge or (ii) the Institutional Trustee's duties and obligations
under this Declaration or the Trust Indenture Act. If the Institutional Trustee
fails to enforce its rights under the Debentures after a Holder of Preferred
Securities has made a written request, such Holder may institute a legal
proceeding against the Debenture Issuer to enforce the Institutional Trustee's
rights under the Debentures without first instituting any legal proceeding
against the Institutional Trustee or any other person or entity. Notwithstanding
the foregoing, 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. Notwithstanding any payments
made to such Holder of Preferred Securities by the Debenture Issuer in
connection with a Direct Action, the Debenture Issuer shall remain obligated to
pay the principal of or interest on the Debentures held by the Trust or the
Institutional Trustee of the Trust, and the Debenture Issuer shall be subrogated
to the rights of the Holder of such Preferred Securities with respect to
payments on the Preferred Securities. Except as provided in the preceding
sentences and in the Preferred Securities Guarantee, 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 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 5.6.
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(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
occurs and is continuing, the Institutional Trustee shall, for the benefit of
Holders, 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 Section 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, in each case without prior notice to the Holders.
The Paying Agent may perform such functions whenever the Institutional Trustee
may do so. Each reference in this Declaration to payment to the Holders by the
Institutional Trustee includes such payment by a Paying Agent. A Paying Agent
has the same rights as the Institutional Trustee to deal with the Sponsor or an
Affiliate, and itself may be the Trust, an Affiliate of the Trust or a Related
Party of the Sponsor. The Institutional Trustee is hereby appointed to initially
act as Paying Agent for the Securities.
(i) The Institutional Trustee shall give prompt written notice to the
Holders of the Securities of any notice received by it from the Debenture Issuer
of the Debenture Issuer's election to defer payments of interest on the
Debentures by extending the interest payment period with respect thereto.
(j) The Institutional Trustee shall notify all Holders of the Preferred
Securities of any notice of default received from the Debt Trustee with respect
to the Debentures. Such notice shall state that such event of default under the
Indenture also constitutes an Event of Default hereunder.
(k) 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 shall exercise the powers set forth in this
Section 3.8 and in Sections 3.9 and 3.10 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 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 has actual knowledge, the Institutional Trustee shall
exercise such of the rights and powers vested in it by
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this Declaration, and use the same degree of care and skill in their exercise,
as a prudent person would exercise or use under the circumstances in the conduct
of his or her own affairs.
(b) No provision of this Declaration shall be construed to relieve the
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 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 no implied covenants
or obligations shall be read into this Declaration 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, 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 adequate
indemnity against such risk is not reasonably assured to it;
(v) the Institutional Trustee's sole duty with respect to the
custody, safekeeping and physical preservation of the Debentures and the
Institutional Trustee
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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 the Institutional Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Institutional Trustee may conclusively rely and shall be
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, bond, debenture 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 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
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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, which 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, order or direction of any Holder, unless such Holder shall
have provided to the Institutional Trustee security and indemnity
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,
consent, order, approval, bond, debenture, coupon 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;
(ix) any action taken by the Institutional Trustee or its agents
hereunder shall bind the Trust and the Holders; 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 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 accordance with such instructions;
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(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 may request that the Trust deliver
an Officers' Certificate setting forth the names of individuals and/or
titles of officers authorized at such time to take specified actions
pursuant to this Declaration, which Officers' Certificate may be signed by
any person authorized to sign an Officers' Certificate, including any
person specified as so authorized in any such certificate previously
delivered and not superseded.
(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.
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 Section 3807 of
the Business Trust Act. Notwithstanding anything herein to the contrary, the
Delaware Trustee shall not be liable for the acts or omissions to act of the
Trust or of the Regular Trustees except for such acts as the Delaware Trustee is
expressly obligated or authorized to undertake under this Declaration or the
Business Trust Act and except for the gross negligence or willful misconduct of
the Delaware Trustee.
SECTION 3.12 Execution of Documents.
Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act or applicable law, any one of the
Regular Trustees is authorized to execute on behalf of the Trust any documents
which 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 or the Securities.
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SECTION 3.14 Duration of Trust.
The Trust, unless terminated pursuant to the provisions of Article VIII
hereof, shall have existence until March 16, 2053.
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).
(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, the Institutional Trustee or the Delaware Trustee, consolidate,
amalgamate, merge with or into, or be replaced by a trust organized as such
under the laws of any State of the United States; provided that:
(i) if the Trust is not the survivor, 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 Preferred Securities other securities
having substantially the same terms as the Preferred Securities (the
"Successor Securities") so long as the Successor Securities rank the
same as the Preferred 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 or replacement 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 or replacement does not
adversely affect the rights, preferences and privileges of the Holders
(including any Successor Securities) in any material respect (other than
with respect to any dilution of such Holders' interests in the Successor
Entity);
(vi) such Successor Entity has a purpose identical to that of the
Trust;
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(vii) prior to such merger, consolidation, amalgamation or
replacement, the Debenture Issuer 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 or replacement
does not adversely affect the rights, preferences and privileges of
the Holders (including any Successor Securities) in any material
respect (other than with respect to any dilution of the Holders'
interest in the Successor Entity);
(B) following such merger, consolidation, amalgamation or
replacement, neither the Trust nor the Successor Entity will be
required to register as an Investment Company; and
(C) following such merger, consolidation, amalgamation or
replacement, the Trust (or the Successor Entity) will be treated 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 any other entity or permit any
other entity to consolidate, amalgamate, merge with or into, or replace it, if
such consolidation, amalgamation, merger or replacement would cause the Trust or
Successor Entity to be classified as other than a grantor trust for United
States federal income tax purposes.
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, in an amount at least equal to 3% of the total capital of
the Trust, at the same time as the Preferred Securities are issued pursuant to
the Purchase Agreement.
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) to prepare for filing by the Trust with the Commission one or more
registration statements on Form S-3 in relation to the Preferred Securities,
including any amendments thereto;
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(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) if so determined by the Sponsor, to prepare for filing by the Trust an
application to the NYSE or any other national stock exchange or the NASDAQ
National Market for listing or quotation upon notice of issuance of the
Preferred Securities;
(d) if so determined by the Sponsor, 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) of the Exchange
Act, including any amendments thereto; and
(e) to negotiate the terms of the Purchase Agreement providing for the
issuance of the Preferred Securities.
SECTION 4.3 Right to Proceed.
The Sponsor acknowledges the rights of the Holders to institute a Direct
Action as set forth in Section 3.8(e) hereto.
SECTION 4.4 Expenses.
In connection with the offering, sale and issuance of the Debentures to
the Institutional Trustee and in connection with the sale of the Securities by
the Trust, the Debenture Issuer, in its capacity as borrower with respect to the
Debentures, shall:
(a) pay all costs and expenses relating to the offering, sale and issuance
of the Debentures, including commissions to the underwriters payable pursuant to
the Purchase Agreement and compensation, reimbursement and indemnification of
the Trustee under the Indenture in accordance with the provisions of Section
6.06 of the Indenture;
(b) be responsible for and shall pay all debts and obligations (other than
with respect to the Securities) and all costs and expenses of the Trust
(including, but not limited to, costs and expenses relating to the organization,
maintenance and dissolution of the Trust, the offering, sale and issuance of the
Securities (including commissions to the underwriters in connection therewith),
the fees and expenses (including reasonable counsel fees and expenses) of the
Institutional Trustee, the Delaware Trustee and the Regular Trustees (including
any amounts payable under Article X of this Declaration), the costs and expenses
relating to the operation of the Trust, including without limitation, costs and
expenses of accountants, attorneys, statistical or bookkeeping services,
expenses for printing and engraving and computing or accounting equipment,
paying agent(s), registrar(s), transfer agent(s), duplicating, travel and
telephone and other telecommunications expenses and costs and expenses incurred
in connection with the acquisition, financing and disposition of Trust assets
and the enforcement by the Institutional Trustee of the rights of the Holders of
the Preferred Securities);
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(c) be primarily liable for any indemnification obligations arising with
respect to this Declaration; and
(d) pay any and all taxes (other than United States withholding taxes
attributable to the Trust or its assets) and all liabilities, costs and expenses
with respect to such taxes of the Trust.
The Debenture Issuer's obligations under this Section 4.4 shall be for the
benefit of, and shall be enforceable by, any person to whom such debts,
obligations, costs, expenses and taxes are owed (a "Creditor") whether or not
such Creditor has received notice hereof. Any such Creditor may enforce the
Debenture Issuer's obligations under this Section 4.4 directly against the
Debenture Issuer and the Debenture Issuer irrevocably waives any right of remedy
to require that any such Creditor take any action against the Trust or any other
Person before proceeding against the Debenture Issuer. The Debenture Issuer
agrees to execute such additional agreements as may be necessary or desirable in
order to give full effect to the provisions of this Section 4.4.
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees.
(a) The number of Trustees initially shall be five. At any time before the
issuance of any Securities, the Sponsor may, by written instrument, increase or
decrease the number of Trustees. 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; and provided further that
(i) 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"); (ii) there shall be at least one Trustee who is an employee
or officer of, or is affiliated with the Sponsor (a "Regular Trustee"); and
(iii) 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.
(b) Any action taken by Holders of Common Securities pursuant to this
Article V shall be taken at a meeting of Holders of Common Securities convened
for such purpose or by written consent of such Holders.
(c) Except as otherwise provided herein, no amendment may be made to this
Section 5.1 which would change any rights with respect to the number, existence
or appointment and removal of Trustees, except with the consent of each Holder
of Common Securities.
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
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(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.
The initial Delaware Trustee shall be The Bank of New York (Delaware), an
affiliate of the Institutional Trustee, until removed or replaced in accordance
with Section 5.6.
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 $50,000,000 (US), 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 5.6(c).
(c) If the Institutional Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act or
becomes a creditor of the Sponsor during the time periods specified in Section
311 of the Trust Indenture Act, the Institutional Trustee and the Holder of the
Common Securities (as if it were the obligor referred to in Section 310(b) of
the Trust Indenture Act) shall in all respects comply with the provisions of
Section 310(b) and 311 of the Trust Indenture Act, as applicable.
(d) The Preferred Securities Guarantee shall be deemed to be specifically
described in this Declaration for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
(e) The initial Institutional Trustee shall be The Bank of New York until
removed or replaced in accordance with Section 5.6.
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SECTION 5.4 Certain Qualifications of the Regular Trustees and the
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 Eugene M. McQuade, Douglas L.
Jacobs and John R. Rodehorst.
(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) Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act or applicable law, any one of the
Regular Trustees is authorized to execute on behalf of the Trust any documents
which the Regular Trustees have the power and authority to execute pursuant to
Section 3.6.
(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 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 5.6(b), Trustees may be appointed or removed
without cause at any time except during an Event of Default:
(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) The Trustee that acts as
(i) Institutional Trustee shall not be removed in accordance with
Section 5.6(a) until a successor institutional Trustee possessing the
qualifications to act as Institutional Trustee under Section 5.3(a) (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, the Sponsor
and the Institutional Trustee being removed; and
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(ii) Delaware Trustee shall not be removed in accordance with this
Section 5.6(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, the Sponsor and the Delaware Trustee being removed.
(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 (a "Resignation Request") 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.
(d) The Holders of the Common Securities shall use their best efforts to
promptly appoint a Successor Institutional Trustee or Successor Delaware Trustee
as the case may be if the Institutional Trustee or the Delaware Trustee delivers
a Resignation Request in accordance with this Section 5.6.
(e) If no Successor Institutional Trustee or Successor Delaware Trustee
shall have been appointed and accepted appointment as provided in this Section
5.6 within 60 days after delivery of a notice of removal or a Resignation
Request, the Institutional Trustee or Delaware Trustee resigning or being
removed, as applicable, may petition, at the expense of the Sponsor, 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.
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SECTION 5.7 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 5.6.
SECTION 5.8 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 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 5.6, 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 5.9 Meetings.
If there is more than one Regular Trustee, meetings of the Regular
Trustees shall 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 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. 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 5.10 Delegation of Power.
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
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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 5.11 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 this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions.
Holders shall receive Distributions in accordance with the applicable
terms of the relevant Holder's Securities as set forth in Annex I. If and to the
extent that the Debenture Issuer makes a payment of interest (including Compound
Interest and Additional Interest), 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 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 (the "Preferred Securities"), representing undivided
beneficial interests in the assets of the Trust having such terms as are set
forth in Annex I (which terms are incorporated by reference in, and made a part
of, this Declaration as if specifically set forth herein) and one class of
common securities (the "Common Securities"), representing undivided beneficial
interests in the assets of the Trust having such terms as are set forth in Annex
I (which terms are incorporated by reference in, and made a part of, this
Declaration as if specifically set forth herein). 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 two Regular
Trustees. Such signature shall be the manual or facsimile signature of any
present or any future Regular Trustees. Typographical and other minor errors or
defects in any such reproduction of any such signature shall not affect the
validity of any Security. In case any Regular Trustee of the Trust
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who shall have signed 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 regulation of any stock
exchange on which Securities may be listed, or to conform to usage. Pending the
preparation of definitive Preferred Securities, the Regular Trustees on behalf
of the Trust may execute and upon written order of any Regular Trustee, the
Institutional Trustee shall authenticate, temporary Preferred Securities
(printed, lithographed or typewritten), substantially in the form of the
definitive Preferred Securities in lieu of which they are issued, but with such
omissions, insertions and variations as may be appropriate for temporary
Preferred Securities all as may be determined by the Regular Trustees on behalf
of the Trust upon the same conditions and in substantially the same manner, and
with like effect, as definitive Preferred Securities. Without unnecessary delay,
the Regular Trustees on behalf of the Trust will execute and furnish and upon
written order of any Regular Trustee the Institutional Trustee shall
authenticate, definitive Preferred Securities and thereupon any or all temporary
Preferred Securities may be surrendered to the transfer agent and registrar in
exchange therefor (without charge to the Holders).
(c) At the time of the delivery of the Preferred 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 Preferred Security shall not be valid
until authenticated by the manual signature of an authorized signatory of the
Institutional Trustee. The signature shall be conclusive evidence that the
Preferred Security has been authenticated under this Declaration.
The Institutional Trustee may appoint an authenticating agent acceptable
to the Trust to authenticate Preferred Securities. An authenticating agent may
authenticate Preferred Securities whenever the Institutional Trustee may do so.
Each reference in this Declaration to authentication by the Institutional
Trustee includes authentication by such agent. An authenticating agent has the
same rights as the Institutional Trustee to deal with the Sponsor or an
Affiliate, and may itself be an Affiliate of the Trust or a Related Party of the
Sponsor. The Institutional Trustee hereby appoints The Bank of New York to
initially act as authenticating agent for the Securities.
(d) 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.
(e) Upon issuance of the Securities as provided in this Declaration, the
Securities so issued shall be deemed to be validly issued, fully paid and
nonassessable.
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(f) 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 Paying Agent.
In the event that the Preferred Securities are not in book-entry only
form, the Trust shall maintain in the Borough of Manhattan, The City of New
York, State of New York, an office or agency where the Preferred Securities may
be presented for payment ("Paying Agent"). The Trust may appoint the Paying
Agent and may appoint one or more additional paying agents in such other
locations as it shall determine. The term "Paying Agent" includes any additional
paying agent. The Trust may change any Paying Agent without prior notice to any
Holder. The Trust shall notify the Institutional Trustee of the name and address
of any Agent not a party to this Declaration. If the Trust fails to appoint or
maintain another entity as Paying Agent, the Institutional Trustee shall act as
such. The Trust or any of its Affiliates may act as Paying Agent. The Bank of
New York shall initially act as Paying Agent for the Preferred Securities and
the Common Securities. Any 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 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. 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 Declaration and the Trust shall terminate and be of no further
force or effect:
(i) on March 16, 2053, the expiration of the term of the
Trust;
(ii) upon the bankruptcy of the Sponsor or the Trust;
(iii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor, the filing of a certificate of
cancellation with respect to the Trust after having obtained the
consent of the Holders of at least a Majority in liquidation amount of
the Securities voting together as a single class to file such
certificate of cancellation, or
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the revocation of the Sponsor's charter and the expiration of 90 days
after the date of revocation without a reinstatement thereof;
(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, including
any Additional Interest or Compound Interest, shall have been paid to
the Holders in accordance with the terms of the Securities;
(vi) upon the distribution of all of the Debentures to the
Holders in exchange for all of the Securities in accordance with the
terms of the Securities; or
(vii) 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), the Regular Trustees shall file a certificate of
cancellation with the Secretary of State of the State of Delaware.
(c) The provisions of Section 3.9 and Article X shall survive the
termination of the Trust.
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities.
(a) Securities may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in this Declaration and in
the terms of the Securities. Any transfer or purported transfer of any Security
not made in accordance with this Declaration shall be null and void.
(b) Subject to this Article IX, Preferred Securities shall be freely
transferable.
(c) The Sponsor may not transfer the Common Securities.
SECTION 9.2 Transfer of Certificates.
(a) The Regular Trustees shall provide for the registration of
Certificates and of transfers of Certificates, which will be effected without
charge but only upon payment (with such indemnity as the Regular Trustees may
require) in respect of any tax or other government charges that may be imposed
in relation to it. Upon surrender for registration of transfer of any
Certificate, the Regular Trustees shall cause one or more new Certificates to be
issued and authenticated by the Institutional Trustee in the name of the
designated transferee or transferees. Every Certificate surrendered for
registration of transfer shall be accompanied by a written instrument of
transfer in form satisfactory to the Regular Trustees duly executed by the
Holder or
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such Holder's attorney duly authorized in writing. Each Certificate surrendered
for registration of transfer shall be canceled by the Regular Trustees. A
transferee of a Certificate shall be entitled to the rights and subject to the
obligations of a Holder hereunder upon the receipt by such transferee of a
Certificate. By acceptance of a Certificate, each transferee shall be deemed to
have agreed to be bound by this Declaration.
(b) Upon receipt by the Institutional Trustee of a Definitive Preferred
Security Certificate, duly endorsed or accompanied by appropriate instruments of
transfer, in form satisfactory to the Institutional Trustee, requesting transfer
of such Definitive Preferred Security Certificate for a beneficial interest in a
Global Certificate, the Institutional Trustee shall cancel such Definitive
Preferred Security Certificate and cause, or direct the Depository Institution
to cause, the aggregate number of Preferred Securities represented by the
appropriate Global Certificate to be increased accordingly. If no Global
Certificates are then outstanding, the Trust shall issue and the Institutional
Trustee shall authenticate, upon written order of any Regular Trustee, an
appropriate number of Preferred Securities in global form.
(c) Upon receipt by the Institutional Trustee from the Depository
Institution or its nominee on behalf of any Person having a beneficial interest
in a Global Certificate of written instructions or such other form of
instructions as is customary for the Depository Institution or the person
designated by the Depository Institution, requesting transfer of a beneficial
interest in a Global Certificate for a Definitive Preferred Security
Certificate, then the Institutional Trustee or the securities custodian, at the
direction of the Institutional Trustee, will cause, in accordance with the
standing instructions and procedures existing between the Depository Institution
and the securities custodian, the aggregate principal amount of the Global
Certificate to be reduced on its books and records and, following such
reduction, the Trust will execute and the Institutional Trustee will
authenticate and deliver to the transferee a Definitive Preferred Security
Certificate.
Definitive Preferred Security Certificates issued in exchange for a
beneficial interest in a Global Certificate shall be registered in such names
and in such authorized denominations as the Depository Institution, pursuant to
instructions from its Depository Institution Participants or indirect
participants or otherwise, shall instruct the Institutional Trustee. The
Institutional Trustee shall deliver such Preferred Securities to the persons in
whose names such Preferred Securities are so registered in accordance with the
instructions of the Depository Institution.
(d) Notwithstanding any other provisions of this Declaration, a Global
Certificate may not be transferred as a whole except by the Depository
Institution to a nominee of the Depository Institution or another nominee of the
Depository Institution or by the Depository Institution or any such nominee to a
successor Depository Institution or a nominee of such successor Depository
Institution.
(e) The Institutional Trustee may appoint a transfer agent and
registrar ("Transfer Agent") acceptable to the Trust to perform the functions
set forth in this Section 9.2. The Transfer Agent may perform such functions
whenever the Institutional Trustee may do so. Each reference in this Declaration
to registration and transfer of Preferred Securities by the Institutional
Trustee includes such activities by the Transfer Agent. The Transfer Agent has
the same rights as the Institutional Trustee to deal with the Sponsor or an
Affiliate, and itself may be
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the Trust, an Affiliate of the Trust or a Related Party of the Sponsor. The
Institutional Trustee hereby appoints The Bank of New York to initially act as
Transfer Agent for the Preferred Securities.
SECTION 9.3 Deemed Security Holders.
The Trustees 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 shall have
actual or other notice thereof.
SECTION 9.4 Book-Entry Interests.
Unless otherwise specified in the terms of the Preferred Securities set
forth in Annex I, the Preferred Securities Certificates, on original issuance,
will be executed and issued by the Trust and authenticated by the Institutional
Trustee in the form of one or more, fully-registered, global Preferred Security
Certificates (each a "Global Certificate"), to be delivered to DTC, the initial
Depository Institution, 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 DTC or its nominee, 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 and the Trustees shall be entitled to deal with the
Depository Institution, with respect to such Preferred Security Beneficial
Owners, 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 such Preferred Securities and the sole
holder of the Global Certificates and shall have no obligation to such 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 such Preferred Security Beneficial Owners shall be
exercised only through the Depository Institution and shall be limited to those
established by law and agreements between such Preferred Security Beneficial
Owners and the Depository Institution and/or the Depository Institution
Participants. The Depository Institution will make book-entry transfers among
the Depository Institution Participants and receive and transmit payments of
Distributions on the Global Certificates to such Depository Institution
Participants.
Depository Institution Participants shall have no rights under this
Declaration with respect to any Global Certificate held on their behalf by the
Depository Institution or by the Institutional
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Trustee as the custodian of the Depository Institution or under such Global
Certificate, and the Depository Institution may be treated by the Trust, the
Institutional Trustee and any agent of the Trust or the Institutional Trustee as
the absolute owner of such Global Certificate for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Trust, the
Institutional Trustee or any agent of the Trust or the Institutional Trustee
from giving effect to any written certification, proxy or other authorization
furnished by the Depository Institution or impair, as between the Depository
Institution and its Depository Institution Participants, the operation of
customary practices of such Depository Institution governing the exercise of the
rights of a holder of a beneficial interest in any Global Certificate.
At such time as all beneficial interests in a Global Certificate have
either been exchanged for Definitive Preferred Security Certificates to the
extent permitted by this Declaration or redeemed, repurchased or canceled in
accordance with the terms of this Declaration, such Global Certificate shall be
returned to the Depository Institution for cancellation or retained and canceled
by the Institutional Trustee. At any time prior to such cancellation, if any
beneficial interest in a Global Certificate is exchanged for Definitive
Preferred Security Certificates, or if Definitive Preferred Security
Certificates are exchanged for a beneficial interest in a Global Certificate,
Preferred Securities represented by such Global Certificate shall be reduced or
increased and an adjustment shall be made on the books and records of the
Institutional Trustee (if it is then the securities custodian for such Global
Certificate) with respect to such Global Certificate, by the Institutional
Trustee or the securities custodian, to reflect such reduction or increase.
SECTION 9.5 Notices to Depository Institution.
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 Regular Trustees shall give all
such notices and communications specified herein to be given to the Preferred
Security Holders to the Depository Institution, and shall have no notice
obligations to the Preferred Security Beneficial Owners.
SECTION 9.6 Appointment of Successor Depository Institution.
If any Depository Institution elects to discontinue its services as
securities depositary with respect to the Preferred Securities, the Regular
Trustees may, in their sole discretion, appoint a successor Depository
Institution with respect to such Preferred Securities.
SECTION 9.7 Definitive Preferred Security Certificates.
If:
(a) a Depository Institution elects to discontinue its services as
securities depositary with respect to the Preferred Securities and a successor
Depository Institution is not appointed within 90 days after such discontinuance
pursuant to Section 9.6;
(b) a Depository Institution ceases to be a clearing agency under the
Exchange Act; or
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(c) the Sponsor elects in its sole discretion to terminate the
book-entry system through the Depository Institution with respect to some or all
of the Preferred Securities,
then:
(d) Definitive Preferred Security Certificates shall be prepared by the
Regular Trustees on behalf of the Trust with respect to such Preferred
Securities; and
(e) upon surrender of the Global Certificates by the Depository
Institution, accompanied by registration instructions, the Regular Trustees
shall cause Definitive Preferred Security Certificates to be delivered to
Preferred Security Beneficial Owners in accordance with the instructions of the
Depository Institution. Neither the Trustees nor the Trust 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
Depository Institution. 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 Regular
Trustees, or if the Regular Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Regular Trustees, the Institutional
Trustee or any authenticating agent 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 deliver and the Institutional Trustee shall authenticate, 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 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.
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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 which
shall be made solely from assets of the Trust; and
(ii) be required to pay to the Trust or to any Holder any
deficit upon dissolution of the Trust or otherwise.
(b) The Debenture Issuer shall be liable for all of the debts and
obligations of the Trust (other than with respect to the Securities) to the
extent not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the Holders
shall be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.
SECTION 10.2 Exculpation.
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Trust or any Covered Person for any loss, damage
or claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's gross negligence or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in conclusively
relying in good faith upon the records of the Trust and upon such information,
opinions, reports or statements presented to the Trust by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Trust, including information, opinions,
reports or statements as to the value and amount of the assets, liabilities,
profits, losses, or any other facts pertinent to the existence and amount of
assets from which Distributions to Holders 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
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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
an Indemnified Person and any Covered Persons; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified Person
shall act in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any Holder,
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 reasonable attorneys'
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably
believed to be in or
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not opposed to the best interests of the Trust, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea
of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the Company Indemnified Person did not act in good
faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Trust, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his
conduct was unlawful.
(ii) The Debenture Issuer shall indemnify, to the full
extent permitted by law, any Company Indemnified Person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Trust to procure a
judgment in its favor by reason of the fact that he is or was a Company
Indemnified Person against expenses (including reasonable attorneys'
fees) actually and reasonably incurred by him in connection with the
defense or settlement of such action or suit if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the
best interests of the Trust and except that no such indemnification
shall be made in respect of any claim, issue or matter as to which such
Company 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, such Company Indemnified
Person shall be indemnified, to the full extent permitted by law,
against expenses (including reasonable attorneys' fees) actually and
reasonably incurred by such Company Indemnified Person 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.
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(v) Expenses (including reasonable attorneys' fees)
incurred by a Company Indemnified Person in defending a civil,
criminal, administrative or investigative action, suit or proceeding
referred to in paragraphs (i) and (ii) of this Section 10.4(a) shall be
paid by the Debenture Issuer in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking by or on
behalf of such Company Indemnified Person to repay such amount if it
shall ultimately be determined that he is not entitled to be
indemnified by the Debenture Issuer as authorized in this Section
10.4(a). Notwithstanding the foregoing, no advance shall be made by the
Debenture Issuer if a determination is reasonably and promptly made (i)
by the 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) by the
Debenture Issuer, that, based upon the facts known to the Regular
Trustees, counsel or the Debenture Issuer, as the case may be, 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 Debenture Issuer reasonably
determine that such person deliberately breached his duty to the Trust
or its 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 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.
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(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) incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including the
costs and expenses (including reasonable legal fees and expenses) of defending
itself against or investigating any claim (regardless of who has asserted such
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 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 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.
SECTION 10.6 Compensation; Fees
The Sponsor agrees:
(a) to pay to the Trustees from time to time such compensation as the
Trust and the Trustees shall agree to in writing for all services rendered by
them hereunder (which compensation shall not be limited by any provision of law
in regard to compensation of a trustee of an express trust);
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(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; and
(c) the provisions of this Section 10.6 shall survive the termination
of this Declaration and the resignation or removal of the Trustees.
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. The books of account and the records
of the Trust shall be examined by and reported upon as of the end of each Fiscal
Year of the Trust by a firm of independent certified public accountants selected
by the Regular Trustees. The books and records of the Trust, together with a
copy of the Declaration and a certified copy of the Certificate of Trust, and
any amendment thereto shall at all times be maintained at the principal office
of the Trust and shall be open for inspection for any examination by any Holder
or its duly authorized representative for any purpose reasonably related to its
interest in the Trust during normal business hours.
(b) The Regular Trustees shall cause to be prepared and delivered to
each of the Holders, within 90 days after the end of each Fiscal Year of the
Trust, annual financial statements of the Trust, including a balance sheet of
the Trust as of the end of such Fiscal Year, and the related statements of
income or loss;
(c) The Regular Trustees shall cause to be duly prepared and delivered
to each of the Holders, 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.
(d) 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
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form required by United States federal income tax law, and 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 and the Regular Trustees 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);
(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;
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(b) No amendment shall be made, and any such purported amendment shall
be void and ineffective:
(i) unless, in the case of any proposed amendment, the
Institutional Trustee shall have first received an Officers'
Certificate from each of the Trust and the Sponsor that such amendment
is permitted by, and conforms to, the terms of this Declaration
(including the terms of the Securities);
(ii) unless, in the case of any proposed amendment which
affects the rights, powers, duties, obligations or immunities of the
Institutional Trustee, 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
(iii) to the extent the result of such amendment would be to:
(A) cause the trust to fail to continue to be
classified for purposes of United States federal income
taxation as a grantor trust;
(B) reduce or otherwise adversely affect the powers
of the 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 may be effected only with such additional requirements
as may be set forth in the terms of such Securities;
(d) Sections 4.4, 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 Common 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 Common Securities; and
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(g) Notwithstanding Section 12.1(c), this Declaration may be amended
without the consent of the Holders 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;
(iii) add to the covenants, restrictions or obligations of the
Sponsor;
(iv) 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) preserve the status of the Trust as a grantor trust for
federal income tax purposes.
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 calls in a writing stating that
the signing Holders wish to call a meeting and indicating the general or
specific purpose for which the meeting is to be called. Any Holders calling a
meeting shall specify in writing the Certificates held by the Holders exercising
the right to call a meeting and only those Securities specified shall be counted
for purposes of determining whether the required percentage set forth in the
second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of Holders:
(i) notice of any such meeting shall be given to all the
Holders having a right to vote thereat at least 7 days and not more
than 60 days before the date of such meeting. Whenever a vote, consent
or approval of the Holders 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. Any action that may
be taken at a meeting of the Holders may be taken without a meeting if
a consent in writing setting forth the action so taken is signed by the
Holders 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 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 entitled to vote who have not
consented
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in writing. The Regular Trustees may specify that any written ballot
submitted to the Holders 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 may authorize any Person to act for it by
proxy on all matters in which a Holder 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 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 were stockholders of a Delaware
corporation;
(iii) each meeting of the Holders 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, including notice of the time, place or purpose of any
meeting at which any matter is to be voted on by any Holders, waiver of
any such notice, action by consent without a meeting, the establishment
of a record date, quorum requirements, voting in person or by proxy or
any other matter with respect to the exercise of any such right to
vote.
ARTICLE XIII
REPRESENTATIONS OF 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, duly organized, validly existing and in good standing under the
laws of the State of New York, with trust power and authority to execute and
deliver, and to carry out and perform its obligations under the terms of, this
Declaration;
(b) the execution, delivery and performance by the Institutional
Trustee of this Declaration has been duly authorized by all necessary corporate
action on the part of the Institutional Trustee. This Declaration has been duly
executed and delivered by the Institutional Trustee, and constitutes the legal,
valid and binding obligation of the Institutional Trustee,
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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;
(d) no consent, approval or authorization of, or registration with or
notice to, any State or federal banking authority is required for the execution,
delivery or performance by the Institutional Trustee, of this Declaration;
(e) on the Closing Date, the Institutional Trustee will be the record
holder of the Debentures and the Institutional Trustee has not knowingly created
any liens or encumbrances on such Debentures; and
(f) the Institutional Trustee satisfies the qualifications set forth in
Section 5.3.
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 a Delaware corporation, duly organized,
validly existing and in good standing under the laws of the State of Delaware,
with authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Declaration;
(b) the Delaware Trustee has been authorized to perform its obligations
under the Certificate of Trust and this 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 State or Federal banking authority is required for the execution,
delivery or performance by the Delaware Trustee, of this Declaration; and
(d) the Delaware Trustee is a natural person who is a resident of the
State of Delaware or, if not a natural person, an entity which has its principal
place of business in the State of Delaware.
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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):
Fleet Capital Trust VII
c/o FleetBoston Financial Corporation
100 Federal Street
Boston, Massachusetts 02110
Attention: General Counsel
(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):
The Bank of New York (Delaware)
White Clay Center
Route 273
Newark, Delaware 19711
Attention: Corporate Trust Trustee Administration
(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):
The Bank of New York
101 Barclay Street, Floor 21W
New York, New York 10286
Attention: Corporate Trust Trustee Administration
(d) if given to the Holder of the Common Securities, at the mailing
address of the Sponsor set forth below (or such other address as the Holder of
the Common Securities may give notice to the Trust):
FleetBoston Financial Corporation
100 Federal Street
Boston, Massachusetts 02110
Attention: General Counsel
(e) if given to any other Holder, at the address set forth on the books
and records of the Trust.
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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.
SECTION 14.6 Partial Enforceability.
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of
this Declaration, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 14.7 Counterparts.
This Declaration may contain more than one counterpart of the signature
page and this Declaration may be executed by the affixing of the signature of
each of the Trustees to one of such counterpart signature pages. All of such
counterpart signature pages shall be read as though one, and they shall have the
same force and effect as though all of the signers had signed a single signature
page.
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IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
/s/ EUGENE M. MCQUADE
-------------------------------------
Eugene M. McQuade, as Regular Trustee
/s/ DOUGLAS L. JACOBS
-------------------------------------
Douglas L. Jacobs, as Regular Trustee
/s/ JOHN R. RODEHORST
-------------------------------------
John R. Rodehorst, as Regular Trustee
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
/s/ MICHAEL SANTINO
-------------------------------------
Name: Michael Santino, SVP
Title: Authorized Signatory
THE BANK OF NEW YORK,
as Institutional Trustee
/s/ MARIE E. TRIMBOLI
-------------------------------------
Name: Marie E. Trimboli
Title: Assistant Vice President
FLEETBOSTON FINANCIAL CORPORATION
as Sponsor
/s/ EUGENE M. MCQUADE
-------------------------------------
Name: Eugene M. McQuade
Title: Vice Chairman and
Chief Financial Officer
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ANNEX I
TERMS OF 7.20% PREFERRED SECURITIES
TERMS OF 7.20% COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration of
Trust, dated as of September 17, 2001 (as amended from time to time, the
"Declaration"), the designation, rights, privileges, restrictions, preferences
and other terms and provisions of the Securities are set out below (each
capitalized term used but not defined herein has the meaning set forth in the
Declaration or, if not defined in the Declaration, as defined in the
Prospectus):
1. Designation and Number.
(a) Preferred Securities. 20,000,000 Preferred Securities of the Trust
with an aggregate stated liquidation amount with respect to the assets of the
Trust of five hundred million dollars ($500,000,000) and a stated liquidation
amount with respect to the assets of the Trust of $25 per preferred security,
are hereby designated for the purposes of identification only as "7.20% Capital
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. 618,557 Common Securities of the Trust with an
aggregate stated liquidation amount with respect to the assets of the Trust of
fifteen million four hundred and sixty-three thousand nine hundred and
twenty-five dollars ($15,463,925) and a stated liquidation amount with respect
to the assets of the Trust of $25 per common security, are hereby designated for
the purposes of identification only as "7.20% 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.
(c) The Preferred Securities and the Common Securities (referred to
collectively as the "Securities") represent undivided beneficial interests in
the assets of the Trust.
(d) In connection with the purchase of the Securities, the Sponsor will
deposit in the Trust, and the Trust will purchase, respectively, as trust
assets, Debentures of the Sponsor having an aggregate principal amount of up to
five hundred fifteen million four hundred and sixty-three thousand nine hundred
and twenty-five dollars ($515,463,925), and bearing interest at an annual rate
equal to the annual Distribution rate on the Securities and having payment and
redemption provisions which correspond to the payment and redemption provisions
of the Securities.
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2. Distributions.
(a) Distributions payable on each Security will be fixed at a rate per
annum of 7.20% (the "Coupon Rate") of the stated liquidation amount of $25 per
Security, such rate being the rate of interest payable on the Debentures to be
held by the Institutional Trustee. Distributions in arrears for more than one
quarter will bear interest thereon compounded quarterly at the Coupon Rate
("Compound Interest") (to the extent permitted by applicable law). The term
"Distributions" as used herein includes such cash distributions and any such
interest (including Additional Interest and Compound Interest) payable unless
otherwise stated. A Distribution will be made by the Institutional Trustee only
to the extent that payments are made in respect of the Debentures held by the
Institutional Trustee and to the extent the Trust has funds available in the
Institutional Trustee Account. The amount of Distributions payable for any
period will be computed for any full quarterly Distribution period on the basis
of a 360-day year of twelve 30-day months, and for any period shorter than a
full quarterly Distribution period for which Distributions are computed,
Distributions will be computed on the basis of the actual number of days elapsed
per calendar month (but not to exceed 30 days in any month).
(b) Distributions on the Securities will be cumulative, will accrue
from September 17, 2001 and, except as otherwise described below, will be
payable quarterly in arrears, on March 15, June 15, September 15 and December 15
of each year, commencing on December 15, 2001 when, as and if available for
payment, except as otherwise described below (each, a "Distribution Payment
Date"). So long as the Debenture Issuer shall not be in default in the payment
of interest on the Debentures, the Debenture Issuer has the right under the
Indenture to defer payments of interest on the Debentures by extending the
interest payment period from time to time on the Debentures for a period not
exceeding 20 consecutive quarters (each an "Extension Period"), during which
Extension Period no interest shall be due and payable on the Debentures,
provided that no Extension Period shall last beyond the Stated Maturity of the
Debentures. As a consequence of such deferral, Distributions will also be
deferred. Despite such deferral, quarterly Distributions will continue to accrue
with interest thereon (to the extent permitted by applicable law) at the Coupon
Rate compounded quarterly to the extent permitted by law during any such
Extension Period. Prior to the termination of any such Extension Period, the
Debenture Issuer may further extend such Extension Period; provided that such
Extension Period, together with all such previous and further extensions
thereof, may not exceed 20 consecutive quarters or extend beyond the Stated
Maturity of the Debentures. Any interest accrued on the Debentures during an
Extension Period shall be paid Pro Rata to holders of Debentures on the first
payment date following the Extension Period and the Payment Amount shall be paid
Pro Rata to the Holders on the first Distribution Payment Date following the
Extension Period. 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. In the event that the Debenture
Issuer exercises this right, then (i) the Debenture Issuer shall not declare or
pay any dividend on, make a distribution with respect to, or redeem, purchase or
acquire, or make a liquidation payment with respect to, any of its capital stock
(other than (a) purchases or acquisitions of shares of its common stock in
connection with the satisfaction by the Debenture Issuer of its obligations
under any employee benefit plans or any other contractual obligation of the
Debenture Issuer (other than a contractual obligation ranking pari passu with or
junior to the Debentures), (b) as a result of a reclassification of the
Debenture Issuer's capital stock or the
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exchange or conversion of one class or series of the Debenture Issuer's capital
stock for another class of the Debenture Issuer's capital stock or (c) the
purchase of fractional interests in shares of the Debenture Issuer's capital
stock pursuant to the conversion or exchange provisions of such capital stock or
the security being converted or exchanged), (ii) the Debenture Issuer shall not
make any payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities issued by the Debenture Issuer that
rank pari passu with or junior to such Debentures and (iii) the Debenture Issuer
shall not make any guarantee payments with respect to the foregoing (other than
pursuant to the Preferred Securities Guarantee).
(c) Distributions on the Securities will be payable promptly by the
Institutional Trustee upon receipt of immediately available funds to the Holders
thereof as they appear on the books and records of the Trust on the relevant
record dates, which will be, as long as the Preferred Securities remain in
book-entry form, one Business Day prior to the relevant payment date and, in the
event the Preferred Securities are not in book-entry form, the 1st day of the
month in which the relevant payment date occurs. The record dates and
distribution dates shall be the same as the record dates and payment dates on
the Debentures. 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 the corresponding interest payment on the Debentures, will
forthwith 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 established by the Regular Trustees, which record date
shall correspond to the special record date or other specified date determined
in accordance with the Indenture; provided, however, that Distributions shall
not be considered payable on any Distribution Payment Date falling within an
Extension Period unless the Debenture Issuer has elected to make a full or
partial payment of interest accrued on the Debentures on such Distribution
Payment Date. Distributions on the Securities will be paid by the Trust. All
Distributions paid with respect to the Securities shall be paid on a Pro Rata
basis to Holders thereof entitled thereto. If any date on which Distributions
are payable on the Securities 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 (and without any interest or other payment in respect of any
such delay) except that, if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such date.
(d) If at any time while the Institutional Trustee is the Holder of any
Securities, the Trust or the Institutional Trustee is required to pay any taxes,
duties, assessments or governmental charges of whatever nature (other than
withholding taxes) imposed by the United States, or any other taxing authority,
then, in any such case, the Debenture Issuer will pay as additional interest
("Additional Interest") on the Securities held by the Institutional Trustee,
such amounts as shall be required so that the net amounts received and retained
by the Trust and the Institutional Trustee after paying any such taxes, duties,
assessments or other governmental charges will be equal to the amounts the Trust
and the Institutional Trustee would have received had no such taxes, duties,
assessments or other governmental charges been imposed.
(e) In the event that there is any money or other property held by or
for the Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata among the Holders.
A-2
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3. Liquidation Distribution Upon Dissolution.
In the event of any voluntary or involuntary liquidation, dissolution,
winding-up or termination of the Trust (each a "Liquidation"), the Holders on
the date of the Liquidation will be entitled to receive Pro Rata out of the
assets of the Trust available for distribution to Holders after satisfaction of
liabilities of creditors distributions in an amount equal to the aggregate of
the stated liquidation amount of $25 per Security plus accrued and unpaid
Distributions thereon to the date of payment (such amount being the "Liquidation
Distribution"), unless, in connection with such Liquidation, Debentures in an
aggregate stated principal amount equal to the aggregate stated liquidation
amount of such Securities, with an interest rate equal to the Coupon 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 in exchange for such Securities.
4. Redemption and Distribution.
(a) Redemption of the Securities will occur simultaneously with any
repayment of the Debentures. The Debentures will mature on December 15, 2031
unless extended to a date not later than December 15, 2050 or accelerated to an
earlier date, in either case, as provided in this Section 4 (as such date may be
extended or accelerated, the "Stated Maturity").
If a Tax Event occurs, then the Company will have the right prior to
the termination of the Trust, to accelerate the Stated Maturity of the
Debentures to the minimum extent required in order to allow for the payments of
interest (including Additional Interest) in respect of the Debentures to
continue to be tax deductible for the Company for United States federal income
tax purposes, but in no event shall the resulting Stated Maturity of the
Debentures be less than 15 years from the date of original issuance thereof. The
Stated Maturity may be accelerated only if, (a) in the opinion of counsel to the
Company, experienced in such matters, (i) after advancing the Stated Maturity,
interest paid on the Debentures will be deductible for United States federal
income tax purposes and (ii) accelerating the Stated Maturity will not result in
a taxable event to the holders of the Preferred Securities, and (b) the Company
has received the prior approval of the Federal Reserve Board to accelerate the
Stated Maturity of the Debentures if such approval is then required under
applicable law, rules, guidelines and policies.
The Company may extend the Stated Maturity of the Debentures to a
date no later than December 15, 2050 so long as at the time such election is
made and at the time such extension commences (x) no Event of Default has
occurred and is continuing; (y) the Trust is not in arrears on payments of
distributions on its Preferred Securities and no deferred distributions have
accumulated on its Preferred Securities and (z) the Debentures are, and after
such extension will be, rated at least BBB- by Standard & Poor's Ratings
Services, at least Baa3 by Moody's Investors Service, Inc. or at least the
equivalent by any other nationally recognized statistical rating organization.
The Debentures are prepayable as set forth in this Section 4. Upon the
repayment of the Debentures in whole or in part, whether at maturity or upon
redemption, the proceeds from such
A-3
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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 the Redemption Price. Securities redeemed
upon maturity of the Debentures will be redeemed at a redemption price of $25
per Security plus an amount equal to accrued and unpaid Distributions thereon at
the date of redemption, payable in cash (the "Redemption Price"). If fewer than
all the outstanding Securities are to be so redeemed, the Securities will be
redeemed Pro Rata and the Preferred Securities to be redeemed will be as
described in Section 4(f)(ii) below. Any prepayment of the Debentures and
related redemption of Preferred Securities under subsection (b) below may
require the prior approval of the Federal Reserve Board if such approval is then
required under applicable law, rules, guidelines or policies.
(b) The Debentures are prepayable prior to the Stated Maturity at the
option of the Company (i) in whole or in part, from time to time, on or after
September 17, 2006 or (ii) at any time prior to September 17, 2006, in whole but
not in part, upon the occurrence and continuation of a Special Event, in either
case at a prepayment price (the "Prepayment Price") equal to 100% of the
principal amount thereof, plus accrued and unpaid interest thereon (including
Additional Interest and Compound Interest, if any) to the date of prepayment.
(c) The following terms used herein shall be defined as follows:
"Regulatory Capital Event" means that the Debenture Issuer shall have
received an opinion of independent bank regulatory counsel experienced in such
matters to the effect that, as a result of (a) any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any rules, guidelines or policies of the
Federal Reserve Board or (b) any official administrative pronouncement or
judicial decision interpreting or applying such laws or regulations, which
amendment or change is effective or such pronouncement or decision is announced
on or after the Issue Date, the Preferred Securities do not constitute, or
within 90 days of the date thereof, will not constitute, Tier 1 capital (or its
equivalent) for purposes of the Federal Reserve Board's capital guidelines for
bank holding companies; provided, however, that the distribution of the
Debentures in connection with the liquidation of the Trust by the Debenture
Issuer and the treatment thereafter of the Debentures as other than Tier 1
capital shall not in and of itself constitute a Regulatory Capital Event unless
such liquidation shall have occurred in connection with a Tax Event.
"Special Event" means a Tax Event or a Regulatory Capital Event, as the
case may be.
"Tax Event" means that the Regular Trustees shall have received an
opinion of a nationally recognized independent tax counsel experienced in such
matters to the effect that, as a result of (a) any amendment to, or change
(including any announced prospective change) in, the laws or any regulations
thereunder of the United States or any political subdivision or taxing authority
thereof or therein or (b) any official administrative pronouncement or judicial
decision interpreting or applying such laws or regulations, which amendment or
change is effective or such pronouncement or decision is announced on or after
the date of the original issuance of the Securities, 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 on the
Debentures is not, or within 90
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days of the date thereof will not be, deductible by the Company, 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 thereof, subject to more than a de minimis
amount of other taxes, duties or other governmental charges.
(d) 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 quarterly Distribution periods terminating on or before the date of
redemption.
(e) The Debenture Issuer will have the right at any time to liquidate
the Trust and cause the Debentures to be distributed to the Holders, subject to
the prior approval of the Federal Reserve Board if such approval is then
required under applicable law, rules, guidelines or policies. If the Debentures
are distributed to the Holders and the Preferred Securities are then listed on
an exchange, the Debenture Issuer will use its best efforts to cause the
Debentures to be listed on the NYSE or on such other exchange as the Preferred
Securities are then listed.
On the date fixed for any distribution of Debentures upon dissolution
of the Trust, (i) the Preferred Securities will no longer be deemed to be
outstanding, (ii) the Depository Institution 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 (iii) any certificates representing Preferred Securities not
held by the Depository Institution or its nominee will be deemed to represent
Debentures having an aggregate principal amount equal to the aggregate stated
liquidation amount of, with an interest rate identical to the distribution rate
of, and accrued and unpaid interest equal to accrued and unpaid distributions
on, such Preferred Securities until such certificates are presented to the
Debenture Issuer or its agent for transfer or reissuance.
(f) Redemption or Distribution Procedures.
(i) Notice of any redemption of the Debentures, 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.
Each Redemption/Distribution Notice shall be addressed to the
Holders 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) 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, it being
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understood that, in respect of Preferred Securities registered in
the name of and held of record by the Depository Institution or
its nominee, the distribution of the proceeds of such redemption
will be made to each Depository Institution Participant (or
Person on whose behalf such nominee holds such securities) in
accordance with the procedures applied by such agency or nominee.
(iii) If Securities are to be redeemed and the Trust gives a
Redemption/Distribution Notice, which notice may only be issued
if the Debentures are redeemed as set out in this Section 4
(which notice will be irrevocable), then by 12:00 noon, New York
City time, on the redemption date, the Debenture Issuer will
deposit with one or more paying agents an amount of money
sufficient to redeem on the redemption date all the Securities so
called for redemption at the Redemption Price. If a
Redemption/Distribution Notice shall have been given and funds
deposited as required, if applicable, then immediately prior to
the close of business on the date of such deposit, or on the
redemption date, as applicable, distributions will cease to
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. On presentation and surrender of such
Securities at a place of payment specified in said notice, the
said Securities or the specified portions thereof shall be paid
and redeemed by the Trust at the Redemption Price. Neither the
Regular Trustees nor the Trust shall be required to register or
cause to be registered the transfer of any Securities that have
been so called for redemption. 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.
(iv) The Trust shall not be required to (i) issue, or register the
transfer or exchange of, any Securities during a period beginning
at the opening of business 15 days before the mailing of a notice
of redemption of Securities and ending at the close of business
on the day of the mailing of the relevant notice of redemption
and (ii) register the transfer or exchange of any Securities so
selected for redemption, in whole or in part, except the
unredeemed portion of any Securities being redeemed in part.
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(v) Subject to the foregoing and applicable law (including, without
limitation, United States federal securities laws and regulations
of the Federal Reserve Board), 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.
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 the immediately following
paragraph, the Holders of a majority in aggregate liquidation amount of the
Preferred Securities, voting separately as a class, 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 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 to it under the Indenture as holder of the
Debentures, (ii) waive any past Event of Default and its consequences that is
waivable under Section 5.07 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 shall be required; provided,
however, that, where a consent or action under the Indenture would require the
consent or act of a Super Majority, only the Holders of at least such Super
Majority in aggregate liquidation amount of the Preferred Securities may direct
the Institutional Trustee to give such consent or take such action; and provided
further, that where a consent or action under the Indenture is only effective
against each holder of Debentures who has consented thereto, such consent or
action will only be effective against a holder of Preferred Securities who
directs the Institutional Trustee to give such consent or take such action. The
Institutional Trustee shall not revoke any action previously authorized or
approved by a vote of the Holders of the Preferred Securities. If the
Institutional Trustee fails to enforce its rights under the Debentures after a
holder of record of Preferred Securities has made a written request, such holder
of record of Preferred Securities may institute a legal proceeding directly
against the Debenture Issuer to enforce the Institutional Trustee's rights under
the Debentures without first instituting any legal proceeding against the
Institutional Trustee or any other person or entity. Notwithstanding the
foregoing, 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 institute a Direct Action 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 on or after the respective due date specified in the Debentures.
Notwithstanding any payments made to such Holder of Preferred Securities by the
Debenture Issuer in connection with a Direct Action, the Debenture Issuer shall
remain obligated to pay the principal of or interest on the Debentures held by
the Trust or the Institutional Trustee of the Trust, and the Debenture Issuer
shall be subrogated to the rights of the Holder of such Preferred
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Securities with respect to payments on the Preferred Securities to the extent of
any payments made by the Debenture Issuer to such Holder in any 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.
Except with respect to directing the time, method and place of
conducting a proceeding for a remedy, the Institutional Trustee shall not take
any of the actions described in clauses (i) through (iv) above unless the
Institutional Trustee has obtained an opinion of a nationally-recognized tax
counsel experienced in such matters to the effect that, as a result of such
action, the Trust will not fail to be classified as a grantor trust for United
States federal income tax purposes.
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
vote or consent under any of the circumstances described above, any of the
Preferred Securities that are owned by the Sponsor or any Affiliate of the
Sponsor shall not be entitled to vote or consent and shall, for purposes of such
vote or consent, be treated as if they were not outstanding.
Holders of the Preferred Securities will have no rights to appoint or
remove the Trustees, who may be appointed, removed or replaced solely by the
Sponsor, as Holder of all of the Common Securities.
6. Voting Rights - Common Securities.
(a) Except as provided under Sections 6(b), (c) and 7 and 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
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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 Debt Trustee, or exercising any trust or power
conferred on the Debt Trustee with respect to the Debentures, (ii) waive any
past default and its consequences that is waivable under Section 5.07 of the
Indenture or (iii) exercise any right to rescind or annul a declaration that the
principal of all the Debentures shall be due and payable; provided that, where a
consent or action under the Indenture would require the consent or act of a
Super Majority of holders of Debentures affected thereby 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; and provided further, that where
a consent or action under the Indenture would require the consent or action of
each holder of Debentures, each holder of Preferred Securities must direct the
Institutional Trustee to give such consent or take such action. 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.
Except with respect to directing the time, method and place of conducting a
proceeding for a remedy, 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 a
nationally recognized tax counsel experienced in such matters to the effect
that, as a result of such action, the Trust will not fail to be classified as a
grantor trust for United States federal income tax purposes. If the
Institutional Trustee fails to enforce its rights under the Declaration, any
Holder of Common Securities may 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.
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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, 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 outstanding 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 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 on the Indenture, 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 a consent under the Indenture would require the
consent 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; and
provided, further, that where a consent or action under the Indenture is only
effective against each holder of Debentures who has consented thereto, such
consent or action will only be effective against a holder of Preferred
Securities who directs the Institutional Trustee to give such consent or take
such action; and 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 a nationally recognized 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.
(c) Notwithstanding the foregoing, no amendment or modification may be
made to the Declaration if such amendment or modification would (i) cause the
Trust to be classified for purposes of United States federal income taxation as
other than a grantor trust, (ii) reduce or otherwise adversely affect the powers
of the Institutional Trustee or (iii) cause the Trust to be deemed an
"investment company" which is required to be registered under the Investment
Company Act.
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
according to the aggregate stated liquidation
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amount of the Securities held by the relevant Holder in relation to the
aggregate stated 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 stated liquidation amount of Preferred Securities held by the
relevant Holder relative to the aggregate stated 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 stated liquidation amount of
Common Securities held by the relevant Holder relative to the aggregate stated
liquidation amount of all Common Securities outstanding.
9. Ranking.
The Preferred Securities rank pari passu, and payment thereon shall be
made Pro Rata, with the Common Securities except that, where an Event of Default
occurs and is continuing, the rights of Holders of the Common Securities to
receive payment of periodic Distributions and payments upon liquidation,
redemption and otherwise will be subordinated to the rights of the Holders of
the Preferred Securities.
10. Listing.
The Regular Trustees shall use their best efforts to cause the
Preferred Securities to be listed for quotation on the NYSE.
11. 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.
12. No Preemptive Rights.
The Holders shall have no preemptive rights to subscribe for any
additional securities.
13. 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.
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EXHIBIT A-1
IF THE PREFERRED SECURITY IS A GLOBAL CERTIFICATE, INSERT-THIS PREFERRED
SECURITY IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE DECLARATION OF TRUST
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST
COMPANY (THE "DEPOSITORY") OR A NOMINEE OF THE DEPOSITORY. THIS PREFERRED
SECURITY IS EXCHANGEABLE FOR PREFERRED SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE DECLARATION OF TRUST AND NO TRANSFER OF THIS
PREFERRED SECURITY (OTHER THAN A TRANSFER OF THIS PREFERRED SECURITY AS A WHOLE
BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE
DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE
REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THE PREFERRED SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY 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 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 BECAUSE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
FORM OF PREFERRED SECURITY CERTIFICATE
Certificate Number [ ] Number of Preferred Securities [ ]
CUSIP No. [ ]
Certificate Evidencing Preferred Securities
of
FLEET CAPITAL TRUST VII
7.20% Capital Securities
(liquidation amount $25 per Capital Security)
FLEET CAPITAL TRUST VII, 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 7.20% Capital Securities (liquidation amount
$25 per Capital 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
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Amended and Restated Declaration of Trust of the Trust dated as of September 17,
2001, 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.
In addition, the Holder is deemed to have (i) agreed to the terms of
the Indenture and the Debentures, including that the Debentures are subordinate
and junior in right of payment to all present and future Senior Indebtedness and
Other Financial Obligations (as defined in the Indenture) as and to the extent
provided in the Indenture and (ii) agreed to the terms of the Preferred
Securities Guarantee, including that the Preferred Securities Guarantee is
subordinate and junior in right of payment to all other liabilities of the
Sponsor, including the Debentures, except those made pari passu or subordinate
by their terms, and pari passu with the most senior preferred or preference
stock now or hereafter issued by the Sponsor and with any guarantee now or
hereafter entered into by the Sponsor in respect of any preferred or preference
stock of any Affiliate of the Sponsor.
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.
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.
Unless the Institutional Trustee's Certificate of Authentication hereon
has been properly executed, these Preferred Securities shall not be entitled to
any benefit under the Declaration or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Trust has executed this certificate this ___
day of ____________.
FLEET CAPITAL TRUST VII
By:______________________________
Name:
Title: Regular Trustee
By:______________________________
Name:
Title: Regular Trustee
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Preferred Securities referred to in the within-mentioned
Declaration. Dated _____________, ________
The Bank of New York,
as Institutional Trustee
By:______________________________
Authorized Signatory
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[FORM OF REVERSE OF SECURITY]
Distributions payable on each Preferred Security will be fixed at a
rate per annum of 7.20% (the "Coupon Rate") of the stated liquidation amount of
$25 per Preferred Security, such rate being the rate of interest payable on the
Debentures to be held by the Institutional Trustee. Distributions in arrears for
more than one quarter will bear interest thereon compounded quarterly at the
Coupon Rate ("Compound Interest") (to the extent permitted by applicable law).
The term "Distributions" as used herein includes such cash distributions and any
such interest (including Additional Interest and Compound Interest) payable
unless otherwise stated. A Distribution will be made by the Institutional
Trustee 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 in the Institutional Trustee Account. The amount of
Distributions payable for any period will be computed for any full quarterly
Distribution period on the basis of a 360-day year of twelve 30-day months, and
for any period shorter than a full quarterly Distribution period for which
Distributions are computed, Distributions will be computed on the basis of the
actual number of days elapsed per calendar month (but not to exceed 30 days in
any month).
Except as otherwise described below, Distributions on the Preferred
Securities will be cumulative, will accrue from September 17, 2001 and will be
payable quarterly in arrears on March 15, June 15, September 15 and December 15
of each year, commencing on December 15, 2001 to Holders of record on the
relevant record dates, which will be, as long as the Preferred Securities remain
in book-entry form, one Business Day prior to the relevant payment date and, in
the event the Preferred Securities are not in book-entry form, the 1st day of
the month in which the relevant payment date occurs. Such payment dates shall
correspond to the interest payment dates on the Debentures. 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 20 consecutive quarters (each an "Extension Period"), provided that no
Extension Period shall last beyond the date of the maturity of the Debentures
and, as a consequence of such deferral, quarterly Distributions will also be
deferred. Despite such deferral, quarterly Distributions will continue to accrue
with interest thereon (to the extent permitted by applicable law) at the Coupon
Rate compounded quarterly during any such Extension Period. Prior to the
termination of any such Extension Period, the Debenture Issuer may further
extend such Extension Period; provided that such Extension Period together with
all such previous and further extensions thereof may not exceed 20 consecutive
quarters or extend beyond the maturity of the Debentures. Payments of accrued
Distributions will be payable to Holders as they appear on the books and records
of the Trust on the first record date after the end of the Extension Period.
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 Preferred Securities shall be redeemable as provided in the
Declaration.
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security Certificate to:
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(Insert assignee's social security or tax identification number)
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(Insert address and zip code of assignee)
and irrevocably appoints
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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:
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(Sign exactly as your name appears on the other side of this
Preferred Security Certificate)
(Signature(s) must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Trustee, which requirements include membership or
participation in STAMP or such other "signature guaranty program" as may be
determined by the Trustee in addition to or in substitution for STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.)
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75
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
Certificate Number [ ] Number of Common Securities [ ]
Certificate Evidencing Common Securities
of
FLEET CAPITAL TRUST VII
7.20% Common Securities
(liquidation amount $25 per Common Security)
FLEET CAPITAL TRUST VII, a statutory business trust formed under the
laws of the State of Delaware (the "Trust"), hereby certifies that FleetBoston
Financial 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 7.20% Common Securities (liquidation amount
$25 per Common Security) (the "Common Securities"). The Common 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 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 September 17,
2001, 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.
In addition, the Holder is deemed to have (i) agreed to the terms of
the Indenture and the Debentures, including that the Debentures are subordinate
and junior in right of payment to all present and future Senior Indebtedness and
Other Financial Obligations (as defined in the Indenture) as and to the extent
provided in the Indenture and (ii) agreed to the terms of the Common Securities
Guarantee, including that the Common Securities Guarantee is subordinate and
junior in right of payment to all other liabilities of the Sponsor, including
the Debentures, except those made pari passu or subordinate by their terms, and
pari passu with the most senior preferred or preference stock now or hereafter
issued by the Sponsor and with any guarantee now or hereafter entered into by
the Sponsor in respect of any preferred or preference stock of any Affiliate of
the Sponsor.
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.
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76
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 __________.
FLEET CAPITAL TRUST VII
By:
----------------------------------
Name:
Title: Regular Trustee
By:
----------------------------------
Name:
Title: Regular Trustee
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77
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Common Security will be fixed at a rate
per annum of 7.20% (the "Coupon Rate") of the stated liquidation amount of $25
per Common Security, such rate being the rate of interest payable on the
Debentures to be held by the Institutional Trustee. Distributions in arrears for
more than one quarter will bear interest thereon compounded quarterly at the
Coupon Rate ("Compound Interest") (to the extent permitted by applicable law).
The term "Distributions" as used herein includes such cash distributions and any
such interest (including Additional Interest and Compound Interest) payable
unless otherwise stated. A Distribution will be made by the Institutional
Trustee 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 in the Institutional Trustee Account. The amount of
Distributions payable for any period will be computed for any full quarterly
Distribution period on the basis of a 360-day year of twelve 30-day months, and
for any period shorter than a full quarterly Distribution period for which
Distributions are computed, Distributions will be computed on the basis of the
actual number of days elapsed per calendar month (but not to exceed 30 days in
any month).
Except as otherwise described below, distributions on the Common
Securities will be cumulative, will accrue from September 17, 2001 and will be
payable quarterly in arrears, on March 15, June 15, September 15 and December 15
of each year, commencing on December 15, 2001 to Holders of record on the
relevant record dates, which will be, as long as the Preferred Securities remain
in book-entry form, one Business Day prior to the relevant payment date and, in
the event the Preferred Securities are not in book-entry form, the 1st day of
the month in which the relevant payment date occurs. Such payment dates shall
correspond to the interest payment dates on the Debentures. 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 20 consecutive quarters (each an "Extension Period"), provided that no
Extension Period shall last beyond the date of the maturity of the Debentures
and, as a consequence of such deferral, quarterly Distributions will also be
deferred. Despite such deferral, quarterly Distributions will continue to accrue
with interest thereon (to the extent permitted by applicable law) at the Coupon
Rate compounded quarterly during any such Extension Period. Prior to the
termination of any such Extension Period, the Debenture Issuer may further
extend such Extension Period; provided that such Extension Period together with
all such previous and further extensions thereof may not exceed 20 consecutive
quarters or extend beyond the maturity date of the Debentures. Payments of
accrued Distributions will be payable to Holders as they appear on the books and
records of the Trust on the first record date after the end of the Extension
Period. 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 Common Securities shall be redeemable as provided in the
Declaration.
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common 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 Common 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 Common
Security Certificate)
(Signature(s) must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Trustee, which requirements include membership or
participation in STAMP or such other "signature guaranty program" as may be
determined by the Trustee in addition to or in substitution for STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.)
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