DECLARATION OF TRUST
OF
FLEET CAPITAL TRUST VII
Dated as of March 16, 1998
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS
SECTION 1.1 Definitions 1
ARTICLE II ORGANIZATION
SECTION 2.1 Name 4
SECTION 2.2 Office 4
SECTION 2.3 Purpose 4
SECTION 2.4 Authority 4
SECTION 2.5 Title to Property of the Trust 4
SECTION 2.6 Powers of the Trustees 5
SECTION 2.7 Filing of Certificate of Trust 6
SECTION 2.8 Duration of Trust. 6
SECTION 2.9 Responsibilities of the Sponsor 6
SECTION 2.10 Declaration Binding on Securities Holders 7
ARTICLE III TRUSTEES
SECTION 3.1 Trustees 7
SECTION 3.2 Regular Trustees 7
SECTION 3.3 Delaware Trustee 8
SECTION 3.4 Institutional Trustee. 9
SECTION 3.5 Not Responsible for Recitals or Sufficiency of Declaration 9
ARTICLE IV LIMITATION OF LIABILITY OF HOLDERS OF
SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1 Exculpation 9
SECTION 4.2 Fiduciary Duty 9
SECTION 4.3 Indemnification 11
SECTION 4.4 Outside Businesses 15
ARTICLE V AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 Amendments 15
SECTION 5.2 Termination of Trust 15
SECTION 5.3 Governing Law 16
SECTION 5.4 Headings 16
SECTION 5.5 Successors and Assigns 16
SECTION 5.6 Partial Enforceability 16
SECTION 5.7 Counterparts 16
DECLARATION OF TRUST
OF
FLEET CAPITAL TRUST VII
March 16, 1998
DECLARATION OF TRUST ("Declaration") dated and effective as of March
16, 1998 by the Trustees (as defined herein), the Sponsor (as defined herein),
and by the holders, from time to time, of undivided beneficial interests in the
Trust to be issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor desire to establish a trust (the
"Trust") pursuant to the Delaware Business Trust Act for the purpose of either
(i) issuing and selling the Preferred Securities (as defined herein) and
investing the proceeds thereof in certain Debentures of the Debenture Issuer (as
both terms are defined herein) or (ii) issuing and offering the Preferred
Securities in an Exchange (as defined herein) and investing the Parent Shares
received in certain Debentures; and
NOW, THEREFORE, it being the intention of the parties hereto that the
Trust constitute a business trust under the Business Trust Act and that this
Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the exclusive benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions.
Unless the context otherwise requires:
(a) capitalized terms used in this Declaration but not
defined in the preamble above have the respective
meanings assigned to them in this Section 1.1;
(b) a term defined anywhere in this Declaration has the
same meaning throughout;
(c) all references to "the Declaration" or "this
Declaration" are to this Declaration of Trust as
modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles and
Sections are to Articles and Sections of this
Declaration unless otherwise specified; and
(e) a reference to the singular includes the plural and
vice
versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of
the Securities Act or any successor rule thereunder.
"Business Day" means any day other than a day on which banking
institutions in New York, New York are authorized or required by law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code,
12 Del. Code Section 3801 et seq., as it may be amended from time to time, or
any successor legislation.
"Commission" means the Securities and Exchange Commission.
"Common Security" means a security representing an undivided beneficial
interest in the assets of the Trust with such terms as may be set out in any
amendment to this Declaration.
"Company Indemnified Person" means (a) any Regular Trustee; (b) any
Affiliate of any Regular Trustee; (c) any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Regular Trustee;
or (d) any employee or agent of the Trust or its Affiliates.
"Covered Person" means (a) any officer, director, shareholder, partner,
member, representative, employee or agent of (i) the Trust or (ii) the Trust's
Affiliates and (b) any holder of Securities.
"Debenture Issuer" means the Parent in its capacity as the issuer of
the Debentures under the Indenture.
"Debentures" means the series of Debentures to be issued by the
Debenture Issuer and acquired by the Trust.
"Debenture Trustee" means The First National Bank of Chicago, as
trustee under the Indenture until a successor is appointed thereunder, and
thereafter means such successor trustee.
"Delaware Trustee" has the meaning set forth in Section 3.1.
"Exchange" means the exchange of Parent Shares for Preferred
Securities, which exchange may include a cash or cash tender offer component.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time or any successor legislation.
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"Fiduciary Indemnified Person" has the meaning set forth in Section
4.3(b).
"Indemnified Person" means a Company Indemnified Person or a Fiduciary
Indemnified Person.
"Indenture" means the indenture to be entered into between the Parent
and the Debenture Trustee and any indenture supplemental thereto pursuant to
which the Debentures are to be issued.
"Institutional Trustee" has the meaning set forth in Section 3.4.
"Parent" means Fleet Financial Group, Inc., a Rhode Island corporation,
or any successor entity in a merger.
"Parent Shares" means depositary shares representing a fraction of an
interest in a series of preferred stock, $1.00 par value, of the Parent which
are exchanged for Preferred Securities in an Exchange.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Preferred Security" means a security representing an undivided
beneficial interest in the assets of the Trust with such terms as may be set out
in any amendment to this Declaration.
"Regular Trustee" means any Trustee other than the Delaware Trustee and
the Institutional Trustee.
"Securities" means the Common Securities and the Preferred Securities.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, or any successor legislation.
"Sponsor" means the Parent in its capacity as sponsor of the Trust.
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
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ARTICLE II
ORGANIZATION
SECTION 2.1 Name.
The Trust created by this Declaration is named "Fleet Capital Trust
VII." The activities of the Trust may be conducted under the name of the Trust
or any other name deemed advisable by the Regular Trustees.
SECTION 2.2 Office.
The address of the principal office of the Trust is c/o Fleet Financial
Group, Inc., One Federal Street, Boston, Massachusetts 02110. At any time, the
Regular Trustees may designate another principal office.
SECTION 2.3 Purpose.
The exclusive purposes and functions of the Trust are either (a) to
issue and sell the Securities and use the proceeds from such sale to acquire the
Debentures or (b) (i) to issue the Preferred Securities in exchange for validly
tendered Parent Shares and deliver such Parent Shares to the Debenture Issuer in
consideration for its deposit in the Trust of Debentures and (ii) to issue the
Common Securities to the Parent in exchange for cash and to invest the proceeds
thereof and in each case to engage in only those other activities necessary or
incidental thereto. The Trust shall not borrow money, issue debt or reinvest
proceeds derived from investments, pledge any of its assets, or otherwise
undertake (or permit to be undertaken) any activity that would cause the Trust
not to be classified for United States federal income tax purposes as a grantor
trust.
SECTION 2.4 Authority.
Subject to the limitations provided in this Declaration, the Regular
Trustees shall have exclusive and complete authority to carry out the purposes
of the Trust. An action taken by the Regular Trustees in accordance with their
powers shall constitute the act of and serve to bind the Trust. In dealing with
the Regular Trustees acting on behalf of the Trust, no person shall be required
to inquire into the authority of the Regular Trustees to bind the Trust. Persons
dealing with the Trust are entitled to rely conclusively on the power and
authority of the Regular Trustees as set forth in this Declaration.
SECTION 2.5 Title to Property of the Trust.
Legal title to all assets of the Trust shall be vested in the Trust.
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SECTION 2.6 Powers of the Trustees.
The Regular Trustees shall have the exclusive power and authority to
cause the Trust to engage in the following activities:
(a) to issue the Preferred Securities and the Common
Securities in accordance with this Declaration, in
connection with either the sale or the exchange of
the Preferred Securities; provided, however, that the
Trust may issue no more than one series of Preferred
Securities and no more than one series of Common
Securities, and, provided further, that there shall
be no interests in the Trust other than the
Securities and the issuance of the Securities shall
be limited to the simultaneous issuance of both
Preferred Securities and Common Securities;
(b) in connection with the issue and either sale or
exchange of the Preferred Securities, at the
direction of the Sponsor, to:
(i) execute and file with the Commission one or
more registration statements on Form S-3 or
Form S-4 prepared by the Sponsor, including
any and all amendments thereto in relation
to the Preferred Securities;
(ii) execute and file any documents prepared by
the Sponsor, or take any acts as determined
by the Sponsor to be necessary in order to
qualify or register all or part of the
Preferred Securities in any State in which
the Sponsor has determined to qualify or
register such Preferred Securities for sale
or exchange;
(iii) execute and file an application, prepared by
the Sponsor, to the New York Stock Exchange
or any other national stock exchange or the
Nasdaq Stock Market's National Market for
listing or quotation upon notice of issuance
of any Preferred Securities;
(iv) execute and file with the Commission a
registration statement on Form 8-A,
including any amendments thereto, prepared
by the Sponsor relating to the registration
of the Preferred Securities under Section
12(b) of the Exchange Act;
(v) prepare, execute and file with the
Commission an Issuer Tender Offer Statement
on Schedule 13E-3 or Schedule 13E-4, as
necessary, or any other appropriate document
or schedule, and any amendments thereto;
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(vi) execute and enter into an underwriting
agreement and pricing agreement providing
for the sale of the Preferred Securities;
and
(vii) execute and enter into one or more dealer
manager agreements, depositary agreements,
exchange agent agreements, information agent
agreements or other agreements as may be
required in connection with an Exchange or
the tender offer component of such Exchange.
(c) to employ or otherwise engage employees and agents
(who may be designated as officers with titles) and
managers, contractors, advisors, and consultants and
provide for reasonable compensation for such
services;
(d) to incur expenses which are necessary or incidental
to carry out any of the purposes of this Declaration;
and
(e) to execute all documents or instruments, perform all
duties and powers, and do all things for and on
behalf of the Trust in all matters necessary or
incidental to the foregoing.
SECTION 2.7 Filing of Certificate of Trust.
On or after the date of execution of this Declaration, the Trustees
shall cause the filing of the Certificate of Trust for the Trust in the form
attached hereto as Exhibit A with the Secretary of State of the State of
Delaware.
SECTION 2.8 Duration of Trust.
The Trust, absent termination pursuant to the provisions of Section
5.2, shall have existence for fifty-five (55) years from the date hereof.
SECTION 2.9 Responsibilities of the Sponsor.
In connection with the issue and sale of the Preferred Securities, the
Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) to prepare for filing by the Trust with the
Commission one or more registration statements on
Form S-3 or Form S-4 in relation to the Preferred
Securities, including any amendments thereto;
(b) to determine the States in which to take appropriate
action to qualify or register for sale or exchange of
all or part of the Preferred Securities and to do any
and all such acts, other than
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actions which must be taken by the Trust, and advise
the Trust of actions it must take, and prepare for
execution and filing any documents to be executed and
filed by the Trust, as the Sponsor deems necessary or
advisable in order to comply with the applicable laws
of any such States;
(c) to prepare for filing by the Trust an application to
the New York Stock Exchange or any other national
stock exchange or the Nasdaq National Market for
listing or quotation upon notice of issuance of any
Preferred Securities;
(d) to prepare for filing by the Trust with the
Commission a registration statement on Form 8-A
relating to the registration of the class of
Preferred Securities under Section 12(b) of the
Exchange Act, including any amendments thereto;
(e) to prepare for filing by the Trust with the
Commission an Issuer Tender Offer Statement on
Schedule 13E-3 or Schedule 13E-4, as necessary, or
any other appropriate document or schedule and any
amendments thereto;
(f) to negotiate the terms of an underwriting agreement
and pricing agreement providing for the sale of the
Preferred Securities; and
(g) to negotiate the terms of one or more dealer manager
agreements, depositary agreements, exchange agent
agreements, information agent agreements or other
agreements as may be required in connection with an
Exchange or the tender offer component of such
Exchange.
SECTION 2.10 Declaration Binding on Securities Holders.
Every Person by virtue of having become a holder of a Security or any
interest therein in accordance with the terms of this Declaration, shall be
deemed to have expressly assented and agreed to the terms of, and shall be bound
by, this Declaration.
ARTICLE III
TRUSTEES
SECTION 3.1 Trustees.
The number of Trustees initially shall be four (4), and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Sponsor. The Sponsor is entitled to appoint or
remove without cause any Trustee at any time; provided, however, that the number
of Trustees shall in no event be less than two (2); provided further that one
Trustee, in the case of a natural person, shall be a person who is a resident of
the
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State of Delaware or that, if not a natural person, is an entity which has its
principal place of business in the State of Delaware (the "Delaware Trustee");
provided further that there shall be at least one trustee who is an employee or
officer of, or is affiliated with the Parent (a "Regular Trustee").
SECTION 3.2 Regular Trustees.
The initial Regular Trustees shall be Eugene M. McQuade, Douglas L.
Jacobs and John R. Rodehorst.
(a) except as expressly set forth in this Declaration,
any power of the Regular Trustees may be exercised
by, or with the consent of, any one such Regular
Trustee.
(b) unless otherwise determined by the Regular Trustees,
and except as otherwise required by the Business
Trust Act, any Regular Trustee is authorized to
execute on behalf of the Trust any documents which
the Regular Trustees have the power and authority to
cause the Trust to execute pursuant to Section 2.6;
and
(c) a Regular Trustee may, by power of attorney
consistent with applicable law, delegate to any other
natural person over the age of 21 his or her power
for the purposes of signing any documents which the
Regular Trustees have power and authority to cause
the Trust to execute pursuant to Section 2.6.
SECTION 3.3 Delaware Trustee.
The initial Delaware Trustee shall be First Chicago Delaware Inc.
Notwithstanding any other provision of this Declaration, the Delaware
Trustee shall not be entitled to exercise any of the powers, nor shall the
Delaware Trustee have any of the duties and responsibilities of the Regular
Trustees described in this Declaration. The Delaware Trustee shall be a Trustee
for the sole and limited purpose of fulfilling the requirements of Section 3807
of the Business Trust Act. Notwithstanding anything herein to the contrary, the
Delaware Trustee shall not be liable for the acts or omissions to act of the
Trust or of the Regular Trustees except such acts as the Delaware Trustee is
expressly obligated or authorized to undertake under this Declaration or the
Business Trust Act and except for the gross negligence or willful misconduct of
the Delaware Trustee.
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SECTION 3.4 Institutional Trustee.
Prior to the issuance of the Preferred Securities and Common
Securities, the Sponsor shall appoint another trustee (the "Institutional
Trustee") meeting the requirements of an eligible trustee of the Trust Indenture
Act of 1939, as amended, by the execution of an amendment to this Declaration
executed by the Regular Trustees, the Sponsor, the Institutional Trustee and the
Delaware Trustee.
SECTION 3.5 Not Responsible for Recitals or Sufficiency of Declaration.
The recitals contained in this Declaration shall be taken as the
statements of the Sponsor, and the Trustees do not assume any responsibility for
their correctness. The Trustees make no representations as to the value or
condition of the property of the Trust or any part thereof. The Trustees make no
representations as to the validity or sufficiency of this Declaration.
ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or
any Covered Person for any loss, damage or claim
incurred by reason of any act or omission performed
or omitted by such Indemnified Person in good faith
on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within
the scope of the authority conferred on such
Indemnified Person by this Declaration or by law,
except that an Indemnified Person shall be liable for
any such loss, damage or claim incurred by reason of
such Indemnified Person's negligence or willful
misconduct with respect to such acts or omissions;
and
(b) An Indemnified Person shall be fully protected in
relying in good faith upon the records of the Trust
and upon such information, opinions, reports or
statements presented to the Trust by any Person as to
matters the Indemnified Person reasonably believes
are within such other Person's professional or expert
competence and who has been selected with reasonable
care by or on behalf of the Trust, including
information, opinions, reports or statements as to
the value and amount of the assets, liabilities,
profits, losses, or any other facts pertinent to the
existence and amount of assets from which
distributions to holders of Securities might properly
be paid.
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SECTION 4.2 Fiduciary Duty.
(a) To the extent that, at law or in equity, an
Indemnified Person has duties (including fiduciary
duties) and liabilities relating thereto to the Trust
or to any other Covered Person, an Indemnified Person
acting under this Declaration shall not be liable to
the Trust or to any other Covered Person for its good
faith reliance on the provisions of this Declaration.
The provisions of this Declaration, to the extent
that they restrict the duties and liabilities of an
Indemnified Person otherwise existing at law or in
equity, are agreed by the parties hereto to replace
such other duties and liabilities of such Indemnified
Person;
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or
arises between Covered Persons; or
(ii) whenever this Declaration or any other
agreement contemplated herein or therein
provides that an Indemnified Person shall
act in a manner that is, or provides terms
that are, fair and reasonable to the Trust
or any holder of Securities, the Indemnified
Person shall resolve such conflict of
interest, take such action or provide such
terms, considering in each case the relative
interest of each party (including its own
interest) to such conflict, agreement,
transaction or situation and the benefits
and burdens relating to such interests, any
customary or accepted industry practices,
and any applicable generally accepted
accounting practices or principles. In the
absence of bad faith by the Indemnified
Person, the resolution, action or term so
made, taken or provided by the Indemnified
Person shall not constitute a breach of this
Declaration or any other agreement
contemplated herein or of any duty or
obligation of the Indemnified Person at law
or in equity or otherwise; and
(c) Whenever in this Declaration an Indemnified Person is
permitted or required to make a decision:
(i) in its "discretion" or under a grant of
similar authority, the Indemnified Person
shall be entitled to consider such interests
and factors as it desires, including its own
interests, and shall have no duty or
obligation to give any consideration to any
interest of or factors affecting the Trust
or any other Person; or
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(ii) in its "good faith" or under another express
standard, the Indemnified Person shall act
under such express standard and shall not be
subject to any other or different standard
imposed by this Declaration or by applicable
law.
SECTION 4.3 Indemnification.
(a) (i) The Debenture Issuer shall indemnify, to
the full extent permitted by law, any
Company Indemnified Person who was or is a
party or is threatened to be made a party to
any threatened, pending or completed action,
suit or proceeding, whether civil, criminal,
administrative or investigative (other than
an action by or in the right of the Trust)
by reason of the fact that he is or was a
Company Indemnified Person against expenses
(including attorneys' fees), judgments,
fines and amounts paid in settlement
actually and reasonably incurred by him in
connection with such action, suit or
proceeding if he acted in good faith and in
a manner he reasonably believed to be in or
not opposed to the best interests of the
Trust, and, with respect to any criminal
action or proceeding, had no reasonable
cause to believe his conduct was unlawful.
The termination of any action, suit or
proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of
itself, create a presumption that the
Company Indemnified Person did not act in
good faith and in a manner which he
reasonably believed to be in or not opposed
to the best interests of the Trust, and,
with respect to any criminal action or
proceeding, had reasonable cause to believe
that his conduct was unlawful.
(ii) The Debenture Issuer shall indemnify, to the
full extent permitted by law, any Company
Indemnified Person who was or is a party or
is threatened to be made a party to any
threatened, pending or completed action or
suit by or in the right of the Trust to
procure a judgment in its favor by reason of
the fact that he is or was a Company
Indemnified Person against expenses
(including attorneys' fees) actually and
reasonably incurred by him in connection
with the defense or settlement of such
action or suit if he acted in good faith and
in a manner he reasonably believed to be in
or not opposed to the best interests of the
Trust and except that no such
indemnification shall be made in respect of
any claim, issue or matter as to which such
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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 4.3(a), or in defense of any
claim, issue or matter therein, he shall be
indemnified, to the full extent permitted by
law, against expenses (including attorneys'
fees) actually and reasonably incurred by
him in connection therewith.
(iv) Any indemnification under paragraphs (i) and
(ii) of this Section 4.3(a) (unless ordered
by a court) shall be made by the Debenture
Issuer only as authorized in the specific
case upon a determination that
indemnification of the Company Indemnified
Person is proper in the circumstances
because he has met the applicable standard
of conduct set forth in paragraphs (i) and
(ii). Such determination shall be made (1)
by the Regular Trustees by a majority vote
of a quorum consisting of such Regular
Trustees who were not parties to such
action, suit or proceeding, (2) if such a
quorum is not obtainable, or, even if
obtainable, if a quorum of disinterested
Regular Trustees so directs, by independent
legal counsel in a written opinion, or (3)
by the Common Security Holder of the Trust.
(v) Expenses (including attorneys' fees)
incurred by a Company Indemnified Person in
defending a civil, criminal, administrative
or investigative action, suit or proceeding
referred to in paragraphs (i) and (ii) of
this Section 4.3(a) shall be paid by the
Debenture Issuer in advance of the final
disposition of such action, suit or
proceeding upon receipt of an undertaking by
or on behalf of such Company Indemnified
Person to repay such amount if it shall
ultimately be determined that he is not
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entitled to be indemnified by the Debenture
Issuer as authorized in this Section 4.3(a).
Notwithstanding the foregoing, no advance
shall be made by the Debenture Issuer if a
determination is reasonably and promptly
made (i) by the Regular Trustees by a
majority vote of a quorum of disinterested
Regular Trustees, (ii) if such a quorum is
not obtainable, or, even if obtainable, if a
quorum of disinterested Regular Trustees so
directs, by independent legal counsel in a
written opinion or (iii) the Common Security
Holder of the Trust, that, based upon the
facts known to the Regular Trustees, counsel
or the Common Security Holder at the time
such determination is made, such Company
Indemnified Person acted in bad faith or in
a manner that such person did not believe to
be in or not opposed to the best interests
of the Trust, or, with respect to any
criminal proceeding, that such Company
Indemnified Person believed or had
reasonable cause to believe his conduct was
unlawful. In no event shall any advance be
made in instances where the Regular
Trustees, independent legal counsel or
Common Security Holder reasonably determine
that such person deliberately breached his
duty to the Trust or its Common or Preferred
Security Holders.
(vi) The indemnification and advancement of
expenses provided by, or granted pursuant
to, the other paragraphs of this Section
4.3(a) shall not be deemed exclusive of any
other rights to which those seeking
indemnification and advancement of expenses
may be entitled under any agreement, vote of
stockholders or disinterested directors of
the Debenture Issuer or Preferred Security
Holders of the Trust or otherwise, both as
to action in his official capacity and as to
action in another capacity while holding
such office. All rights to indemnification
under this Section 4.3(a) shall be deemed to
be provided by a contract between the
Debenture Issuer and each Company
Indemnified Person who serves in such
capacity at any time while this Section
4.3(a) is in effect. Any repeal or
modification of this Section 4.3(a) shall
not affect any rights or obligations then
existing.
(vii) The Debenture Issuer or the Trust may
purchase and maintain insurance on behalf of
any person who is or was a Company
Indemnified Person against any liability
asserted against him and incurred by him in
any such capacity, or arising out of his
status as such, whether or
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not the Debenture Issuer would have the
power to indemnify him against such
liability under the provisions of this
Section 4.3(a).
(viii) For purposes of this Section 4.3(a),
references to "the Trust" shall include, in
addition to the resulting or surviving
entity, any constituent entity (including
any constituent of a constituent) absorbed
in a consolidation or merger, so that any
person who is or was a director, trustee,
officer or employee of such constituent
entity, or is or was serving at the request
of such constituent entity as a director,
trustee, officer, employee or agent of
another entity, shall stand in the same
position under the provisions of this
Section 4.3(a) with respect to the resulting
or surviving entity as he would have with
respect to such constituent entity if its
separate existence had continued.
(ix) The indemnification and advancement of
expenses provided by, or granted pursuant
to, this Section 4.3(a) shall, unless
otherwise provided when authorized or
ratified, continue as to a person who has
ceased to be a Company Indemnified Person
and shall inure to the benefit of the
heirs, executors and administrators of such
a person.
(b) The Debenture Issuer agrees to indemnify (i) the
Delaware Trustee, (ii) any Affiliate of the Delaware
Trustee, and (iii) any officers, directors,
shareholders, members, partners, employees,
representatives, nominees, custodians or agents of
the Delaware Trustee (each of the Persons in (i)
through (iii) being referred to as a "Fiduciary
Indemnified Person") for, and to hold each Fiduciary
Indemnified Person harmless against, any loss,
liability or expense incurred without negligence or
bad faith on its part, arising out of or in
connection with the acceptance or administration of
the trust or trusts hereunder, including the costs
and expenses (including reasonable legal fees and
expenses) of defending itself against, or
investigating, any claim or liability in connection
with the exercise or performance of any of its powers
or duties hereunder. The obligation to indemnify as
set forth in this Section 4.3(b) shall survive the
termination of this Declaration.
SECTION 4.4 Outside Businesses.
Any Covered Person, the Sponsor and the Delaware Trustee may engage in
or possess an interest in other business ventures of any nature or description,
independently or with others,
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similar or dissimilar to the business of the Trust, and the Trust and the
holders of Securities shall have no rights by virtue of this Declaration in and
to such independent ventures or the income or profits derived therefrom and the
pursuit of any such venture, even if competitive with the business of the Trust,
shall not be deemed wrongful or improper. No Covered Person, the Sponsor or the
Delaware Trustee shall be obligated to present any particular investment or
other opportunity to the Trust even if such opportunity is of a character that,
if presented to the Trust, could be taken by the Trust, and any Covered Person,
the Sponsor and the Delaware Trustee shall have the right to take for its own
account (individually or as a partner or fiduciary) or to recommend to others
any such particular investment or other opportunity. Any Covered Person and the
Delaware Trustee may engage or be interested in any financial or other
transaction with the Sponsor or any Affiliate of the Sponsor, or may act as
depositary for, trustee or agent for or may act on any committee or body of
holders of, securities or other obligations of the Sponsor or its Affiliates.
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 Amendments.
At any time before the issue of any Securities, this Declaration may be
amended by, and only by, a written instrument executed by all of the Regular
Trustees and the Sponsor.
SECTION 5.2 Termination of Trust.
(a) The Trust shall terminate and be of no further force
or effect:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of
dissolution or its equivalent with respect
to the Sponsor or the revocation of the
Sponsor's charter or of the Trust's
certificate of trust;
(iii) upon the entry of a decree of judicial
dissolution of the Sponsor, or the Trust;
and
(iv) before the issue of any Securities, with the
consent of all of the Regular Trustees and
the Sponsor; and
(b) As soon as is practicable after the occurrence of an
event referred to in Section 5.2(a), the Trustees
shall file a certificate of cancellation with the
Secretary of State of the State of Delaware.
15
SECTION 5.3 Governing Law.
This Declaration and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State of Delaware
and all rights and remedies shall be governed by such laws without regard to
principles of conflict of laws.
SECTION 5.4 Headings.
Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or any
provision hereof.
SECTION 5.5 Successors and Assigns.
Whenever in this Declaration any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
SECTION 5.6 Partial Enforceability.
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of
this Declaration, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 5.7 Counterparts.
This Declaration may contain more than one counterpart of the signature
page and this Declaration may be executed by the affixing of the signature of
each of the Trustees to one of such counterpart signature pages. All of such
counterpart signature pages shall be read as though one, and they shall have the
same force and effect as though all of the signers had signed a single signature
page.
16
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
/s/ Eugene M. McQuade
-------------------------------------
Name: Eugene M. McQuade
Title: Trustee
/s/ Douglas L. Jacobs
-------------------------------------
Name: Douglas L. Jacobs
Title: Trustee
/s/ John R. Rodehorst
-------------------------------------
Name: John R. Rodehorst
Title: Trustee
FIRST CHICAGO DELAWARE INC.,
as Trustee
By: /s/ John R. Prendiville
--------------------------------
Name: John R. Prendiville
Title: Vice President
FLEET FINANCIAL GROUP, INC.,
as Sponsor
By: /s/ Eugene M. McQuade
--------------------------------
Name: Eugene M. McQuade
Title: Vice Chairman and
Chief Financial Officer
17
EXHIBIT A
CERTIFICATE OF TRUST
OF
FLEET CAPITAL TRUST VII
This Certificate of Trust of Fleet Capital Trust VII dated March 16,
1998, is hereby duly executed and filed by the undersigned, as trustees of Fleet
Capital Trust VII, for the purpose of forming a business trust under the
Delaware Business Trust Act, 12 Del. C. Section 3801 et. seq. The undersigned
hereby certify as follows:
1. Name. The name of the business trust formed hereby (the "Trust") is
"Fleet Capital Trust VII."
2. Delaware Trustee. The name and business address of the trustee of
the Trust which has its principal place of business in the State of Delaware, as
required by 12 Del. C. Sec. 3807 (a), is First Chicago Delaware Inc., a Delaware
corporation, 300 King Street, Wilmington, Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective as of
the date of its filing.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust at
the time of filing of this Certificate of Trust, have executed this Certificate
of Trust as of the date first above written.
---------------------------------------------------
Name: Eugene M. McQuade
Title: Trustee
---------------------------------------------------
Name: Douglas L. Jacobs
Title: Trustee
---------------------------------------------------
Name: John R. Rodehorst
Title: Trustee
[SIGNATURES CONTINUED ON NEXT PAGE]
FIRST CHICAGO DELAWARE INC.,
as Trustee
By:
-----------------------------------------------
Name: John R. Prendiville
Title: Vice President