DECLARATION OF TRUST
OF
FLEET CAPITAL TRUST VIII
Dated as of March 16, 1998
TABLE OF CONTENTS
Page
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 VIII
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 VIII."
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.
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SECTION 5.3 Governing Law.
This Declaration and the rights of the parties hereunder shall be governed
by and interpreted in accordance with the laws of the State of Delaware and all
rights and remedies shall be governed by such laws without regard to principles
of conflict of laws.
SECTION 5.4 Headings.
Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or any
provision hereof.
SECTION 5.5 Successors and Assigns.
Whenever in this Declaration any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
SECTION 5.6 Partial Enforceability.
If any provision of this Declaration, or the application of such provision
to any Person or circumstance, shall be held invalid, the remainder of this
Declaration, or the application of such provision to persons or circumstances
other than those to which it is held invalid, shall not be affected thereby.
SECTION 5.7 Counterparts.
This Declaration may contain more than one counterpart of the signature
page and this Declaration may be executed by the affixing of the signature of
each of the Trustees to one of such counterpart signature pages. All of such
counterpart signature pages shall be read as though one, and they shall have the
same force and effect as though all of the signers had signed a single signature
page.
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IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
/s/ Eugene M. McQuade
-----------------------------------
Name: Eugene M. McQuade
Title: Trustee
/s/ Douglas 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
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EXHIBIT A
CERTIFICATE OF TRUST
OF
FLEET CAPITAL TRUST VIII
This Certificate of Trust of Fleet Capital Trust VIII dated March 16,
1998, is hereby duly executed and filed by the undersigned, as trustees of Fleet
Capital Trust VIII, 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 VIII."
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
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