<PAGE>
FORM 8-K
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of l934
Date of Report (Date of earliest event reported)__________________
September 20, 1999
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BANK ONE CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware 31-0738296
- ---------------------------- ------------- ------------------
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Numbers) Identification No.)
1 Bank One Plaza, Chicago, IL 60670
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(Address of principal executive office) (Zip Code)
Registrant's telephone number, including area code: 312-732-4000
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<PAGE>
Item 5. OTHER EVENTS
On June 17, 1999, BANK ONE CORPORATION (the "Company") and the following
Delaware business trust sponsored by the Company: BANK ONE Capital I, BANK ONE
Capital II, BANK ONE Capital III, BANK ONE Capital IV and BANK ONE Capital V
(collectively, the "Trusts"), filed a registration statement (File No. 333-
80903) on Form S-3 (the "Registration Statement") with the Securities and
Exchange Commission (the "Commission") relating to the public offering, pursuant
to Rule 415 under the Securities Act of 1933, as amended (the "Act"), of up to
an aggregate of $1,500,000,000 of securities of the Company and the Trusts. On
July 12, 1999, the Registration Statement was declared effective by the
Commission.
The Company and BANK ONE Capital I filed on September 8, 1999, a prospectus
supplement, subject to completion, dated September 7, 1999, to the Prospectus
dated September 7, 1999 relating to the sale of certain preferred securities to
be issued by BANK ONE Capital I and guaranteed to the extent provided therein by
the Company. The Company and BANK ONE Capital I on September 15, 1999, filed
with the Commission a Prospectus Supplement dated September 13, 1999 (the
"Prospectus Supplement") to the Prospectus dated September 7, 1999, relating to
the issuance and sale of up to $575,000,000 in aggregate liquidation amount of
preferred securities of BANK ONE Capital I (which amount includes the full over-
allotment option issued to the underwriters named in the Prospectus Supplement
(the "Underwriters")). On September 20, 1999, the Company and BANK ONE Capital I
closed on the sale to the Underwriters of $500,000,000 in aggregate liquidation
amount of preferred securities; on September 24, 1999, the Company and BANK ONE
Capital I expect to close on the sale to the Underwriters of $75,000,000 in
aggregate liquidation amount of preferred shares to be purchased by such
Underwriters through the exercise of the over-allotment option.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
The exhibits listed below and attached hereto are hereby filed in connection
with, and incorporated by reference into, the Registration Statement (File No.
333-80903):
EXHIBIT NO. DESCRIPTION OF EXHIBIT
1.4 Underwriting Agreement by and among the Company, BANK ONE
Capital I and the underwriters named therein, dated
September 13, 1999.
4.25 Third Supplemental Indenture dated as of September 20, 1999
relating to the Junior Subordinated Debt Securities between
the Company and The Chase Manhattan Bank, as trustee.
4.26 Amended and Restated Declaration of Trust, dated as of
September 20, 1999, of BANK ONE Capital I.
4.27 Preferred Securities Guarantee Agreement dated as of
September 20, 1999 between the Company, as guarantor, and
The Chase Manhattan Bank, as trustee, with respect to BANK
ONE Capital I.
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8.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP as to
certain federal income tax matters.
23.4 Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(included in Exhibit 8.1).
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of l934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
BANK ONE CORPORATION
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(Registrant)
Date: September 23, 1999 By /s/ M. Eileen Kennedy
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Title: Treasurer
<PAGE>
INDEX TO EXHIBITS
Exhibit Description of Sequential Page
Number Exhibit Number
- ------- -------------- ---------------
1.4 Underwriting Agreement by and among the
Company, BANK ONE Capital I and the
underwriters named therein, dated
September 13, 1999.
4.25 Third Supplemental Indenture dated as of
September 20, 1999 relating to the Junior
Subordinated Debt Securities between the
Company and The Chase Manhattan Bank,
as trustee.
4.26 Amended and Restated Declaration of Trust,
dated as of September 20, 1999, of BANK ONE
Capital I.
4.27 Preferred Securities Guarantee Agreement
dated as of September 20, 1999 between the
Company, as guarantor, and The Chase Manhattan
Bank, as trustee, with respect to BANK ONE
Capital I.
8.1 Opinion of Skadden, Arps, Slate, Meagher &
Flom LLP as to certain federal income tax
matters.
23.4 Consent of Skadden, Arps, Slate, Meagher &
Flom LLP (included in Exhibit 8.1).
<PAGE>
EXHIBIT 1.4
BANK ONE CAPITAL I
(a Delaware business trust)
20,000,000 Preferred Securities
8.00% Preferred Securities
(Liquidation Amount of $25 Per Preferred Security)
UNDERWRITING AGREEMENT
Dated: September 13, 1999
<PAGE>
BANK ONE CAPITAL I
(a Delaware business trust)
20,000,000 Preferred Securities
8.000% Preferred Securities
(Liquidation Amount of $25 Per Preferred Security)
UNDERWRITING AGREEMENT
----------------------
September 13, 1999
Salomon Smith Barney Inc.
Banc One Capital Markets, Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Morgan Stanley & Co. Incorporated
A.G. Edwards & Sons, Inc.
PaineWebber Incorporated
Prudential Securities Incorporated
As representatives of the several Underwriters
c/o Salomon Smith Barney Inc.
388 Greenwich Street
New York, NY 10013
Ladies and Gentlemen:
BANK ONE CAPITAL I (the "Trust"), a statutory business trust organized
-----
under the Business Trust Act of the State of Delaware (Chapter 38, Title 12, of
the Delaware Code, 12 Del. C. (S)(S) 3801 et seq.) (the "Delaware Act") and BANK
-- --- ------------
ONE CORPORATION, a Delaware corporation (the "Company" and, together with the
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Trust, the "Offerors") confirm their agreement (the "Agreement") with Salomon
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Smith Barney Inc. ("Salomon Smith Barney") and each of the other Underwriters
--------------------
named in Schedule A hereto (collectively, the "Underwriters", which term shall
---------- ------------
also include any underwriter substituted as hereinafter provided in Section 10
hereof), for whom Salomon Smith Barney, Banc One Capital Markets, Inc., Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley
Dean Witter, A.G. Edwards & Sons, Inc., PaineWebber Incorporated and Prudential
Securities Incorporated are acting as representatives (in such capacity, the
"Representatives"), with respect to the issue and sale by the Trust and the
- ----------------
purchase by the Underwriters, acting severally and not jointly, of the
respective numbers of 8.000% Preferred
<PAGE>
Securities (liquidation amount of $25 per preferred security) of the Trust (the
"Preferred Securities") set forth in said Schedule A, and with respect to the
-------------------- -----------
grant by the Trust to the Underwriters, acting severally and not jointly, of the
option described in Section 2(b) hereof to purchase all or any part of the
additional Preferred Securities to cover over-allotments, if any. The aforesaid
20,000,000 Preferred Securities (the "Initial Securities") to be
------------------
purchased by the Underwriters and all or any part of the 3,000,000 Preferred
Securities subject to the option described in Section 2(b) hereof (the "Option
------
Securities") are hereinafter called, collectively, the "Designated Securities."
- ----------
The Designated Securities will be guaranteed by the Company with respect to
---------------------
distributions and payments upon liquidation, redemption and otherwise (the
"Preferred Securities Guarantee") pursuant to the Preferred Securities
------------------------------
Guarantee Agreement (the "Preferred Securities Guarantee Agreement"), dated as
----------------------------------------
of September 20, 1999, between the Company and The Chase Manhattan Bank, as
Trustee (the "Guarantee Trustee"). The Preferred Securities and the related
-----------------
Preferred Securities Guarantees are referred to herein as the "Securities".
----------
The Offerors understand that the Underwriters propose to make a public
offering of the Securities as soon as the Representatives deem advisable after
this Agreement has been executed and delivered. The entire proceeds from the
sale of the Securities will be combined with the entire pro proceeds from the
sale by the Trust to the Company of its common securities (the "Common
------
Securities") guaranteed by the Company, to the extent set forth in the
- ----------
Prospectus (as defined herein), with respect to distributions and payments upon
liquidation, and redemption (the "Common Securities Guarantee" and together with
---------------------------
the Preferred
Securities Guarantee, the "Guarantees") pursuant to the Common Securities
----------
Guarantee Agreement (the "Common Securities Guarantee Agreement" and, together
-------------------------------------
with the Preferred Securities Guarantee Agreement, the "Guarantee Agreements"),
--------------------
dated as of September 20, 1999 executed and delivered by the Company for the
benefit of the holders of the Common Securities, and will be used by the Trust
to purchase $515,463,925 aggregate principal amount of Junior Subordinated
Deferrable Interest Debentures due September 15, 2029 (the "Subordinated Debt
-----------------
Securities") to be issued by the Company and, if all or any part of the Option
- ----------
Securities are purchased, up to approximately an additional $77,319,600
aggregate principal amount of Subordinated Debt Securities (the "Option
------
Subordinated Debt Securities"). The Preferred Securities and the Common
- ----------------------------
Securities will be issued pursuant to the amended and restated declaration of
trust of the Trust, dated as of September 20, 1999 (the "Declaration"), among
-----------
the Company, as Sponsor, the trustees named therein (the "Trustees") and the
--------
holders from time to time of undivided beneficial interests in the assets of the
Trust. The Subordinated Debt Securities will be issued pursuant to an
indenture, dated as of January 1, 1997, between the Company and The Chase
Manhattan Bank, as trustee (the "Debt Trustee") (the "Base Indenture"), and a
------------ --------------
supplement thereto, dated as of September 20, 1999 (the "Supplemental
------------
Indenture," and together with the Base Indenture and any other amendments or
supplements thereto, the "Indenture"), among the Company and the Debt Trustee.
---------
The Offerors have filed with the Securities and Exchange Commission (the
"Commission") a shelf registration statement on Form S-3 (File No. 333-80903)
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covering the registration of, among other securities, (i) the Preferred
Securities, (ii) the Preferred Securities Guarantee and (iii) the Subordinated
Debt Securities under the Securities Act of 1933, as amended (the "1933 Act"),
--------
which
2
<PAGE>
permits the delayed or continuous offering of securities pursuant to Rule
415 of the rules and regulations of the Commission under the 1933 Act (the "1933
----
Act Regulations"). Promptly after execution and delivery of this Agreement, the
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Offerors will either (i) prepare and file a prospectus in accordance with the
provisions of Rule 424(b) ("Rule 424(b)") of the 1933 Act Regulations or (ii) if
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the Offerors have elected to rely upon Rule 434 ("Rule 434") of the 1933 Act
--------
Regulations, prepare and file a term sheet (a "Term Sheet") in accordance with
----------
the provisions of Rule 434 and Rule 424(b). The information included in such
Term Sheet that was omitted from such registration statement at the time it
became effective but that is deemed to be part of such registration statement at
the time it became effective is referred to as "Rule 434 Information." Each
--------------------
prospectus used before such Rule 424(b) prospectus has been filed and any
prospectus that omitted the Rule 434 Information, in each case that was used
after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus." Such registration
----------------------
statement, including the exhibits thereto, schedules thereto, if any, and the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, at the time it became effective and including the Rule 434
Information is herein called the "Registration Statement." Any registration
----------------------
statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein
referred to as the "Rule 462(b) Registration Statement" and after such filing
----------------------------------
the term "Registration Statement" shall include the Rule 462 (b) Registration
----------------------
Statement. The final prospectus, including the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, in the
form first furnished to the Underwriters for use in connection with the offering
of the Securities is herein called the "Prospectus." If Rule 434 is relied on,
the term "Prospectus" shall refer to the preliminary prospectus together with
the Term Sheet and all references in this Agreement to the date of the
Prospectus shall mean the date of the Term Sheet. For purposes of this
Agreement, all references to the Registration Statement, any preliminary
prospectus, the Prospectus or any Term Sheet or any amendment or supplement to
any of the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system ("EDGAR").
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All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (the "1934 Act") which is
--------
incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectus, as the case may be.
SECTION 1. Representations and Warranties. The Offerors jointly and
------------------------------
severally represent and warrant to each Underwriter as of the date hereof and as
of the applicable delivery date, if any (each such date being hereinafter
referred to as a "Delivery Date"), as follows:
-------------
3
<PAGE>
a. Compliance with Registration Requirements. The Company meets the
-----------------------------------------
requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act. No stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the part of
the Commission for additional information has been complied with.
At the respective times the Registration Statement became effective
and at the Delivery Date, the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments and supplements
thereto complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations, the 1934 Act,
the regulations of the Commission under the 1934 Act (the "1934 Act
--------
Regulations"), and the Trust Indenture Act of 1939 (the "1939 Act") and the
----------- --------
rules and regulations of the Commission under the 1939 Act (the "1939 Act
--------
Regulations"), and did not and will not contain an untrue
-----------
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading. The Prospectus as amended or supplemented, if applicable, at
the Delivery Date and at the Closing Time referred to in Section 2 hereof,
will not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, the representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity with
information furnished to the Offerors in writing by any Underwriter through
Salomon Smith Barney expressly for use in the Registration Statement or
Prospectus.
Each preliminary prospectus and prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectus delivered to the Underwriters for
use in connection with the offering of the Securities was, at the time of
such delivery, identical to any electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent permitted
by Regulation S-T.
b. Incorporated Documents. The documents incorporated or deemed to
----------------------
be incorporated by reference in the Registration Statement and the
Prospectus, when they became effective or at the time when they were or
hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the 1933 Act, the 1933 Act
Regulations, the 1934 Act and the 1934 Act Regulations, as applicable, and,
when read together with the other information in the Prospectus, at the
time the Registration Statement became effective, at the time the
Prospectus was issued and at each Delivery Date,
4
<PAGE>
did not and will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make
the statements therein not misleading.
c. No Material Adverse Change in Business. Since the respective
--------------------------------------
dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise (a "Material Adverse Effect"),
-----------------------
whether or not arising in the ordinary course of business, (B) there have
been no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business, which
are material with respect to the Company and its subsidiaries considered as
one enterprise, and (C) except for regular quarterly dividends on the
common stock, par value $0.01 per share, of the Company (the "Common
------
Stock") and the regular quarterly dividends on the Company's Preferred
-----
Stock with Cumulative and Adjustable Dividends, Series B ($100 stated
value), $0.01 par value; and Preferred Stock with Cumulative and Adjustable
Dividends, Series C ($100 stated value), $0.01 par value, in amounts per
share that are consistent with past practice or publicly announced
increases prior to the date of the Registration Statement, there has been
no dividend or distribution of any kind declared, paid or made on any class
of its Capital Stock.
d. Good Standing of the Company and its Subsidiaries. The Company
-------------------------------------------------
has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the state of Delaware, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under
the laws of each other jurisdiction in which it owns or leases properties
or conducts any business so as to require such qualification, or is subject
to no material liability or disability by reason of the failure to be so
qualified in any such jurisdiction; and each Significant Subsidiary (as
defined in Regulation S-X promulgated by the Commission) of the Company has
been duly incorporated chartered or organized and is validly existing as a
corporation or national banking association, as the case may be, in good
standing under the laws of its jurisdiction of incorporation or
organization.
e. Capitalization. The authorized, issued and outstanding capital
--------------
stock of the Company is as set forth in the Prospectus Supplement in the
column entitled "Actual" under the caption "Capitalization" (except for
common stock repurchases pursuant to the Company's publicly announced stock
repurchase program and subsequent issuances, if any, pursuant to this
Agreement, pursuant to reservations, agreements or employee benefit plans
referred to in the Prospectus or pursuant to the exercise of convertible
securities or options referred to in the Prospectus or as otherwise
described in the Prospectus).
f. Authorization and Description of Designated Securities. The
------------------------------------------------------
Designated Securities have been duly authorized for issuance and sale to
the Underwriters pursuant to
5
<PAGE>
this Agreement and, when issued and delivered by the Company pursuant to
this Agreement against payment of the consideration set forth herein, will
be validly issued and fully paid and non-assessable; the Designated
Securities conform to the statements relating thereto contained in the
Prospectus and such description conforms to the rights set forth in the
instruments defining the same; the holders of the Designated Securities
(the "Security holders") will 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; and the issuance of the Designated Securities is not subject to
the preemptive or other similar rights of any security holder of the
Company.
g. Authorization and Description of Common Securities. The Common
--------------------------------------------------
Securities have been duly and validly authorized by the Trust and upon
delivery by the Trust to the Company against payment therefor as described
in the Prospectus, will be duly and validly issued and fully paid and non-
assessable undivided beneficial interests in the assets of the Trust and
will conform to the description thereof contained in the Prospectus; the
issuance of the Common Securities is not subject to preemptive or other
similar rights; and at each Delivery Date, all of the issued and
outstanding Common Securities of the Trust will be directly owned by the
Company free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
h. Good Standing of the Trust. The Trust has been duly created and
--------------------------
is validly existing as a statutory business trust in good standing under
the Delaware Act with the power and authority to own, lease and operate its
properties and conduct its business as described in the Prospectus, and the
Trust has conducted no business to date, and it will conduct no business in
the future that would be inconsistent with the description of the Trust set
forth in the Prospectus; the Trust is not a party to or bound by any
agreement or instrument other than this Agreement, the Declaration and the
agreements and instruments contemplated by the Declaration; the Trust has
no liabilities or obligations other than those arising out of the
transactions contemplated by this Agreement and the Declaration and
described in the Prospectus; and the Trust is not a party to or subject to
any action, suit or proceeding of any nature.
i. Absence of Defaults and Conflicts. The issue and sale of the
---------------------------------
Preferred Securities and the Common Securities by the Trust, the compliance
by the Trust with all of the provisions of this Agreement, the purchase of
the Subordinated Debt Securities by the Trust, and the consummation of the
transactions herein contemplated will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default under,
any indenture, loan agreement, mortgage, deed of trust or other agreement
or instrument to which the Trust is a party or by which the Trust is bound
or to which any of the property or assets of the Trust is subject, nor will
such action result in any violation of the provisions of the Declaration or
any statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Trust or any of its properties;
and no consent, approval, authorization, order, license, certificate,
permit, registration or qualification of or
6
<PAGE>
with any such court or other governmental agency or body is required to be
obtained by the Trust for the issue and sale of the Preferred Securities
and the Common Securities by the Trust, the purchase of the Subordinated
Debt Securities by the Trust or the consummation by the Trust of the
transactions contemplated by this Agreement and the Declaration, except for
such consents, approvals, authorizations, licenses, certificates, permits,
registrations or qualifications as have already been obtained, or as may be
required under the 1933 Act or the 1933 Act Regulations or state securities
laws or under 1939 Act.
The issuance by the Company of the Guarantees and the Subordinated
Debt Securities, the compliance by the Company with all of the provisions
of this Agreement, the execution, delivery and performance by the Company
of the Declaration, the Subordinated Debt Securities, the Guarantee
Agreements and the Indenture, and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, any material indenture, loan agreement, mortgage, deed of
trust, or other material agreement or instrument to which the Company is a
party or by which the Company is bound or to which any of the property or
assets of the Company is subject, nor will such action result in any
violation of the provisions of the Restated Certificate of Incorporation or
by-laws of the Company or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the
Company or any of its properties; and no consent, approval, authorization,
order, license, certificate, permit, registration or qualification of or
with any such court or other governmental agency or body is required for
the issue of the Guarantees and the Subordinated Debt Securities or the
consummation by the Company of the other transactions contemplated by this
Agreement, except for such consents, approvals, authorizations, licenses,
certificates, permits, registrations or qualifications as have already been
obtained, or as may be required under the 1933 Act or the 1933 Act
Regulations or state securities laws or under the 1939 Act.
j. Authorization of Agreements. This Agreement, the Guarantee
---------------------------
Agreements, the Subordinated Debt Securities, the Declaration and the
Indenture have each been duly authorized and when validly executed and
delivered by the Company and, in the case of the Guarantee, by the
Guarantee Trustee, in the case of the Declaration, by the Trustees and, in
the case of the Indenture, by the Debt Trustee, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their respective terms, subject, as to enforcement, to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles (regardless of whether enforcement is
sought in a proceeding at law or in equity); the Subordinated Debt
Securities are entitled to the benefits of the Indenture; and the Guarantee
Agreements, the Subordinated Debt Securities, the Declaration and the
Indenture conform to the descriptions thereof in the Prospectus.
k. Accuracy of Exhibits. There are no contracts or documents which
--------------------
are required to be described in the Registration Statement, the Prospectus
or the documents
7
<PAGE>
incorporated by reference therein or to be filed as exhibits thereto which
have not been so described and filed as required.
l. Investment Company Act. The Trust is not, and after giving effect
----------------------
to the offering and sale of the Preferred Securities will not be, an
"investment company," or an entity "controlled" by an "investment company,"
as such terms are defined in the Investment Company Act of 1940, as amended
(the "Investment Company Act").
----------------------
m. Legal or Governmental Proceedings. There are no legal or
---------------------------------
governmental proceedings pending or threatened to which the Trust or the
Company or any of its subsidiaries is a party or to which any of the
properties of the Trust or the Company or any of its subsidiaries is
subject that are required to be described in the Registration Statement or
the Prospectus and are not so described.
n. Qualification of Agreements. Each of the Declaration, the
---------------------------
Indenture and the Preferred Securities Guarantee has been qualified under
the 1939 Act and has been duly authorized by the Company and the Trust, as
applicable.
SECTION 2. Sale and Delivery to Underwriters; Closing.
------------------------------------------
a. Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Trust agrees to sell to each Underwriter, severally and not jointly,
and each Underwriter, severally and not jointly, agrees to purchase from the
Trust, at the price per security set forth in Schedule B, the number of Initial
----------
Securities set forth in Schedule A opposite the name of such Underwriter, plus
----------
any additional number of Initial Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof.
b. Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions set
forth, the Trust hereby grants an option to the Underwriters, severally and not
jointly, to purchase up to an additional 3,000,000 Preferred Securities at the
price per Preferred Security set forth in Schedule B, less an amount per
----------
Preferred Security equal to any distributions declared by the Trust and payable
on the Initial Securities but not payable on the Option Securities. The option
hereby granted will expire twenty-one calendar days after the date hereof and
may be exercised in whole or in part from time to time only for the purpose of
covering over-allotments which may be made in connection with the offering and
distribution of the Initial Securities upon notice by the Representatives to the
Trust setting forth the number of Option Securities as to which the several
Underwriters are then exercising the option and the time and date of payment and
delivery for such Option Securities. Any such time and a Delivery Date shall be
determined by the Representatives, but shall not be later than seven full
business days after the exercise of said option, nor in any event prior to the
Closing Time, as hereinafter defined. If the option is exercised as to all or
any portion of the Option Securities, each of the Underwriters, acting severally
and not jointly, will purchase that proportion of the total number of Option
Securities then
8
<PAGE>
being purchased which the number of Initial Securities set forth in Schedule A
----------
opposite the name of such Underwriter bears to the total number of Initial
Securities, subject in each case to such adjustments as the Representatives in
their discretion shall make to eliminate any sales or purchases of fractional
Preferred Securities.
c. Commission. As compensation to the Underwriters for their commitments
hereunder and in view of the fact that the proceeds of the sale of the
Securities will be used to purchase the Subordinated Debt Securities of the
Company, the Company hereby agrees to pay to the Representatives, for the
accounts of the several Underwriters, a commission per security set forth in
Schedule B as compensation to the Underwriters for their commitments under this
- ----------
Agreement.
d. Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of
Skadden, Arps, Slate, Meagher & Flom LLP, 919 Third Avenue, New York, New York
10022, or at such other place as shall be agreed upon by the Representatives and
the Offerors, at 10:00 A.M. (Eastern time) on the fifth business day after the
date hereof (unless postponed in accordance with the provisions of Section 10),
or such other time not later than ten business days after such date as shall be
agreed upon by the Representatives and the Offerors (such time and date of
payment and delivery being herein called "Closing Time").
------------
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Representatives,
the Company and the Trust, on each Delivery Date as specified in the notice from
the Representatives to the Trust.
Payment shall be made to the Trust by wire transfer of immediately
available funds to a bank account designated by the Trust, against delivery to
the Representatives for the respective accounts of the Underwriters of
certificates for the Preferred Securities to be purchased by them. It is
understood that each Underwriter has authorized the Representatives, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for, the Initial Securities and the Option Securities, if any, which it
has agreed to purchase. Salomon Smith Barney, individually and not as
representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Initial Securities or the Option
Securities, if any, to be purchased by any Underwriter whose funds have not been
received by the Closing Time or the Delivery Date, as the case may be, but such
payment shall not relieve such Underwriter from its obligations hereunder.
At the Closing Time and on each Delivery Date, the Company will pay, or
cause to be paid, the commission payable at such time to the Underwriters under
Section 2(b) hereof by wire transfer of immediately available funds to a bank
account designated by Salomon Smith Barney.
e. Denominations; Registration. Certificates for the Initial Securities
and the Option Securities, if any, shall be in such denominations and registered
in such names as the Representatives may request in writing at least one full
business day before the Closing Time or the relevant Delivery
9
<PAGE>
Date, as the case may be. The certificates for the Securities will be made
available for examination and packaging by the Representatives in The City of
New York not later than 10:00 A.M. (Eastern time) on the business day prior to
the Closing Time or the relevant Delivery Date, as the case may be.
SECTION 3. Covenants of the Offerors. Each of the Offerors jointly and
-------------------------
severally covenants with each Underwriter as follows:
a. Compliance with Securities Regulations and Commission Requests.
The Offerors, subject to Section 3(b), will comply with the requirements of
Rule 434 and will notify the Representatives immediately, and confirm the
notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the
receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment
or supplement to the Prospectus or for additional information, and (iv) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of
the qualification of the Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for
any of such purposes. The Offerors will promptly effect the filings
necessary pursuant to Rule 424(b) and will take such steps as they deem
necessary to ascertain promptly whether the form of prospectus transmitted
for filing under Rule 424(b) was received for filing by the Commission and,
in the event that it was not, it will promptly file such prospectus. The
Offerors will make every reasonable effort to prevent the issuance of any
stop order and, if any stop order is issued, to obtain the lifting thereof
at the earliest possible moment.
b. Filing of Amendments. The Offerors will give the Representatives
notice of their intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b)), any Term
Sheet or any amendment, supplement or revision to either the prospectus
included in the Registration Statement at the time it became effective or
to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act or
otherwise, will furnish the Representatives with copies of any such
documents a reasonable amount of time prior to such proposed filing or use,
as the case may be, and will not file or use any such document to which the
Representatives or counsel for the Underwriters shall object.
c. Delivery of Registration Statements. The Offerors have furnished
or will deliver to the Representatives and counsel for the Underwriters,
without charge, signed copies of the Registration Statement as originally
filed and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to
be incorporated by reference therein) and signed copies of all consents and
certificates of experts, and will also deliver to the Representatives,
without charge, a conformed copy of the Registration Statement as
originally filed and of each
10
<PAGE>
amendment thereto (without exhibits) for each of the Underwriters. The
copies of the Registration Statement and each amendment thereto furnished
to the Underwriters will be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except to the
extent permitted by Regulation S-T.
d. Continued Compliance with Securities Laws. The Offerors will
comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and
the 1934 Act Regulations and the 1939 Act and the 1939 Act Regulations so
as to permit the completion of the distribution of the Securities as
contemplated in this Agreement and in the Prospectus. If at any time when
a prospectus is required by the 1933 Act to be delivered in connection with
sales of the Securities, any event shall occur or condition shall exist as
a result of which it is necessary, in the opinion of counsel for the
Underwriters or the Offerors, to amend the Registration Statement or amend
or supplement the Prospectus in order that the Prospectus will not include
any untrue statements of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the
light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of such counsel, at
any such time to amend the Registration Statement or amend or supplement
the Prospectus in order to comply with the requirements of the 1933 Act or
the 1933 Act Regulations, the Offerors will promptly prepare and file with
the Commission, subject to Section 3(b), such amendment or supplement as
may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements, and
the Offerors will furnish to the Underwriters such number of copies of such
amendment or supplement as the Underwriters may reasonably request.
e. Blue Sky Qualifications. The Offerors will use their best
efforts, in cooperation with the Underwriters, to qualify the Preferred
Securities and the Subordinated Debt Securities for offering and sale under
the applicable securities laws of such states and other jurisdictions as
the Representatives may designate and to maintain such qualifications in
effect for a period of not less than one year from the later of the
effective date of the Registration Statement and any Rule 462(b)
Registration Statement; provided, however, that each of the Offerors shall
not be obligated to file any general consent to service of process or to
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is
not otherwise so subject. In each jurisdiction in which the Securities
have been so qualified, the Offerors will file such statements and reports
as may be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from the
effective date of the Registration Statement and any Rule 462(b)
Registration Statement.
f. Rule 158. The Trust and the Company will make generally available
to their Security holders as soon as practicable an earnings statement for
the purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
11
<PAGE>
g. Restriction on Sale of Securities. During a period of twenty-one
days from the date hereof, neither the Trust nor the Company will, without
the prior written consent of Salomon Smith Barney, directly or indirectly,
offer, sell, offer to sell or otherwise dispose of any Preferred
Securities, any other beneficial interests in the assets of the Trust, or
any preferred securities or other securities of the Trust or the Company
which are substantially similar to the Preferred Securities, including any
guarantee of such securities. The foregoing sentence shall not apply to
any of the Securities to be sold hereunder.
h. Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant
to the 1934 Act within the time periods required by the 1934 Act and the
1934 Act Regulations.
SECTION 3A. Covenants of the Underwriters. Each of the Underwriters
-----------------------------
represents and agrees as follows:
a. Compliance with NASD Conduct Rules. The Underwriters will comply
with the provisions of Rule 2810 of the Conduct Rules of the National
Association of Securities Dealers, Inc. (the "NASD"), including, without
----
limitation, sections (b)(2)(B) and (b)(3)(D) thereof.
b. Sales in United Kingdom. Each Underwriter (a) has not offered or
sold and prior to the date six months after the date of issue of the
Preferred Securities will not offer or sell any Preferred Securities to
persons in the United Kingdom except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments
(as principal or agent) for the purposes of their businesses or otherwise
in circumstances which do not constitute an offer to the public in the
United Kingdom within the meaning of the Public Offers of Securities
Regulations 1995, (b) has complied, and will comply with, all applicable
provisions of the Financial Services Act of 1986 of Great Britain with
respect to anything done by it in relation to the Preferred Securities in,
from or otherwise involving the United Kingdom, and (c) has only issued or
passed on and will only issue or pass on in the United Kingdom any document
received by it in connection with the issuance of the Preferred Securities
to a person who is of a kind described in Article 11(3) of the Financial
Services Act of 1986 (Investment Advertisements) (Exemptions) Order 1996 of
Great Britain (as amended) or is a person to whom the document may
otherwise lawfully be issued or passed on.
SECTION 4. Payment of Expenses. a. Expenses. The Company will pay
-------------------
all expenses incident to the performance of each Offeror's obligations under
this Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of this Agreement, any Agreement among
Underwriters and such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery
12
<PAGE>
of the Securities, (iii) the preparation, issuance and delivery of the
certificates for the Preferred Securities to the Underwriters, (iv) the fees and
disbursements of the Company's and the Trust's counsel, accountants and other
advisors, (v) the qualification of the Securities under securities laws in
accordance with the provisions of Section 3(e) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto, (vi) the printing and delivery to the
Underwriters of copies of each preliminary prospectus, any Term Sheets and of
the Prospectus and any amendments or supplements thereto, (vii) the preparation,
printing and delivery to the Underwriters of copies of the Blue Sky Survey and
any supplement thereto, (viii) the filing fees incident to, and the reasonable
fees and disbursements of counsel to the Underwriters in connection with, the
review, if any, by the NASD of the terms of the sale of the Securities, (ix) the
fees and expenses of the Debt Trustee, including the fees and disbursements of
counsel for the Debt Trustee, in connection with the Indenture and the
Subordinated Debt Securities, (x) the fees and expenses of the Institutional
Trustee and the Delaware Trustee (each as defined in the Declaration), including
the fees and disbursements of counsel for the Institutional Trustee and the
Delaware Trustee, in connection with the Declaration and the Certificate of
Trust, (xi) any fees charged by securities rating services for rating the
Preferred Securities and the Subordinated Debt Securities, (xii) the fees and
expenses of any transfer agent or registrar for the Securities, (xiii) the cost
of qualifying the Preferred Securities with The Depository Trust Company, (xiv)
the fees and expenses of the Preferred Guarantee Trustee, including the fees and
disbursements of counsel for the Preferred Guarantee Trustee, and (xv) the fees
and expenses incurred in connection with the listing of the Preferred Securities
and, if applicable, the Subordinated Debt Securities on the New York Stock
Exchange.
b. Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
---------------------------------------
the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Offerors contained in Section 1 hereof or
in certificates of any officer of the Offerors or any subsidiary of the Company
delivered pursuant to the provisions hereof, to the performance by the Offerors
of their covenants and other obligations hereunder, and to the following further
conditions:
a. Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time or the relevant Delivery Date, as the case
may be, no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of
the Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel to the Underwriters. The Prospectus
shall have been filed with the Commission in accordance with Rule 424(b)
or, if the Offerors have elected to rely upon
13
<PAGE>
Rule 434, a Term Sheet shall have been filed with the Commission in
accordance with Rule 424(b).
b. Opinion of Counsel. At the Closing Time or the relevant Delivery
Date, as the case may be, the Representatives shall have received:
(i) The favorable opinion, dated as of the Closing Time or the
relevant Delivery Date, as the case may be, of Sherman I. Goldberg,
Esq., General Counsel for the Company, in form and substance
reasonably satisfactory to counsel for the Underwriters,
substantially in the form set forth in Exhibit A.
---------
(ii) The favorable opinion, dated as of the Closing Time or the
relevant Delivery Date, as the case may be, of Skadden, Arps, Slate,
Meagher & Flom LLP ("SASM&F"), special Delaware counsel for the
------
Offerors, in form and substance satisfactory to counsel for the
Underwriters, substantially in the form set forth in Exhibit B.
---------
(iii) The favorable opinion, dated as of the Closing Time or the
relevant Delivery Date, as the case may be, of Cravath Swaine & Moore,
counsel for the Institutional Trustee, in form and substance
satisfactory to counsel for the Underwriters, substantially in the
form set forth in Exhibit C.
---------
(iv) The favorable opinion, dated as of the Closing Time or the
relevant Delivery Date, as the case may be, of SASM&F, counsel for the
Underwriters, in form and substance satisfactory to the Underwriters.
(v) The favorable opinion, dated as of the Closing Time or the
relevant Delivery Date, as the case may be, of SASM&F, special tax
counsel for the Offerors, in form and substance satisfactory to the
Underwriters.
c. Officers' Certificate. At the Closing Time or the relevant
Delivery Date, as the case may be, since the date hereof or since the
respective dates as of which information is given in the Prospectus, there
shall not have been any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of
either the Company and its subsidiaries considered as one enterprise, or
the Trust, as the case may be, whether or not arising in the ordinary
course of business and the Representatives shall have received a
certificate, dated as of the Closing Time or the relevant Delivery Date, as
the case may be, from each of (a) the President or a Vice President of the
Company and of the chief financial officer or chief accounting officer of
the Company and (b) a Regular Trustee (as defined in the Declaration) of
the Trust, to the effect that (i) there has been no such material adverse
change in the conditions of the Company or the Trust, as the case may be,
(ii) the representations and warranties in Section 1 hereof are true and
correct with the same force and effect as though expressly made at and as
of Closing Time
14
<PAGE>
or the relevant Delivery Date, as the case may be, (iii) the Company or the
Trust, as the case may be, has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to
Closing Time or the relevant Delivery Date, as the case may be, and (iv) no
stop order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted or are
pending or are contemplated by the Commission.
d. Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Representatives shall have received from Arthur Andersen LLP
a letter dated such date, in form and substance satisfactory to the
Representatives, together with signed or reproduced copies of such letter
for each of the other Underwriters containing statements and information of
the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus.
e. Bring-down Comfort Letter. At the Closing Time or the relevant
Delivery Date, as the case may be, the Representatives shall have received
from Arthur Andersen LLP a letter, dated as of Closing Time or the relevant
Delivery Date, as the case may be, to the effect that they reaffirm the
statements made in their letter furnished pursuant to subsection (d) of
this Section, except that the specified date referred to shall be a date
not more than three business days prior to Closing Time or the relevant
Delivery Date, as the case may be.
f. Maintenance of Rating. At the Closing Time or the relevant
Delivery Date, as the case may be, the Preferred Securities and the
Subordinated Debt Securities shall be rated in one of the four highest
rating categories for long term debt ("Investment Grade") by Moody's
----------------
Investor's Service and by Standard & Poor's Ratings Group, a division of
McGraw-Hill, Inc., and the Company shall have delivered to the
Representatives a letter dated the Closing Time, from each such rating
agency, or other evidence satisfactory to the Representatives, confirming
that the Preferred Securities and the Subordinated Debt Securities have
such ratings; and since the date of this Agreement, there shall not have
occurred a downgrading in the rating assigned to the Preferred Securities
or the Subordinated Debt Securities or any of the Company's other
securities by any "nationally recognized statistical rating agency," as
that term is defined by the Commission for purposes of Rule 436(g)(2) under
the 1933 Act, and no such organization shall have publicly announced that
it has under surveillance or review its rating with a negative implication
of the Preferred Securities and the Subordinated Debt Securities or any of
the Company's other securities.
g. Additional Documents. At the Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions as
they may require for the purpose of enabling them to pass upon the issuance
and sale of the Preferred Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
15
<PAGE>
taken by the Offerors in connection with the issuance and sale of the
Preferred Securities as herein contemplated shall be satisfactory in form
and substance to the Representatives and counsel for the Underwriters.
h. Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement, or, in the case of any condition to the purchase of Option
Securities, on a Delivery Date which is after the Closing Time, the
obligations of the several Underwriters to purchase the relevant Option
Securities, may be terminated by the Representatives by notice to the
Offerors at any time at or prior to Closing Time, and such termination
shall be without liability of any party to any other party except as
provided in Section 4 and except that Sections 1, 6, 7 and 8 shall survive
any such termination and remain in full force and effect.
(i) Approval of Listing. At the Closing Time, the Preferred
Securities shall have been approved for listing on the New York Stock
Exchange, subject only to official notice of issuance.
SECTION 6. Indemnification.
---------------
a. Indemnification of Underwriters. The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue state statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 434 Information,
if applicable, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or alleged
untrue statement of a material fact included in any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto) or the omission
or alleged omission therefrom of a material fact necessary in order to make
the statements there in, in the light of the circumstances under which
they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including,
subject to Section 6(c) hereof, the fees and disbursements of counsel
chosen by Salomon
16
<PAGE>
Smith Barney), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, to the extent
that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
- -------- -------
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through Salomon Smith Barney expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 434 Information, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto); and provided, further, that this indemnity agreement with
-------- -------
respect to any preliminary prospectus shall not inure to the benefit of any
underwriter from whom the person asserting any such losses, liabilities, claims,
damages or expenses purchased Securities, or any person controlling such
Underwriter, if the Offerors sustain the burden that a copy of the Prospectus
(as then amended or supplemented if the Offerors shall have furnished any such
amendments or supplements thereto), but excluding documents ments incorporated
or deemed to be incorporated by reference, was not sent or given by or on behalf
of such Underwriter to such person, if such is required by law, at or prior to
the written confirmation of the sale of such Securities to such person and if
the Prospectus (as so amended or supplemented, but excluding documents
incorporated or deemed to be incorporated by reference therein) would have
corrected the defect giving rise to such loss, liability, claim, damage or
expense, it being understood that this proviso shall have no application if
such defect shall have been corrected in a document which is incorporated or
deemed to be incorporated by reference in the Prospectus.
b. Indemnification of Offerors, Directors and Officers. Each Underwriter
severally agrees to indemnify and hold harmless the Offerors, their directors,
trustees, each of its officers who signed the Registration Statement, and each
person, if any, who controls the Offerors within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule 434 Information, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto) in reliance upon and in conformity with written
information furnished to the Offerors by such Underwriter through Salomon Smith
Barney expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
c. Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which
17
<PAGE>
it may have otherwise than on account of this indemnity agreement. In the case
of parties indemnified pursuant to Section 6(a) above, counsel to the
indemnified parties shall be selected by Salomon Smith Barney, and, in the case
of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
SECTION 7. Contribution. If the indemnification provided for in
------------
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the offering
of the Securities pursuant to this Agreement or (ii) if the allocation provided
by clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Preferred
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by the Underwriters, in
each case as set forth on the cover of the Prospectus, or, if Rule 434 is used,
the corresponding location on the Term Sheet, bear to the aggregate initial
public offering price of the Securities as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged
18
<PAGE>
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number of Initial Securities set forth opposite their
respective names in Schedule A hereto and not joint.
----------
SECTION 8. Representations, Warranties and Agreements to Survive
-----------------------------------------------------
Delivery. All representations, warranties and agreements contained in this
- --------
Agreement or in certificates of officers or Trustees of the Offerors submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or controlling
person, or by or on behalf of the Offerors, and shall survive delivery of the
Preferred Securities to the Underwriters.
SECTION 9. Termination of Agreement.
------------------------
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<PAGE>
a. Termination; General. The Representatives may terminate this
Agreement, by notice to the Offerors, at any time at or prior to Closing Time
(i) if there has been, since the date of this Agreement or since the respective
dates as of which information is given in the Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business, or
(ii) if there has occurred any material adverse change in the financial markets
in the United States, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the
Representatives, impracticable to market the Designated Securities or to enforce
contracts for the sale of the Designated Securities, or (iii) if trading in any
securities of the Company has been suspended by the Commission or the New York
Stock Exchange, or if trading generally on the American Stock Exchange or the
New York Stock Exchange or in the Nasdaq National Market System has been
suspended or limited, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices have been required, by any of said exchanges or by
such system or by order of the Commission, the NASD or any other governmental
authority, or (iv) if a banking moratorium has been declared by either Federal
or New York or Illinois State authorities.
b. Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
------------------------------------------
the Underwriters shall fail at Closing Time or a Delivery Date to purchase the
Designated Securities which it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), the Representatives shall have the
--------------------
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Representatives shall not
have completed such arrangements within such 24-hour period, then:
a. if the number of Defaulted Securities does not exceed 10% of the
number of Designated Securities, each of the non-defaulting Underwriters
shall be obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-defaulting
Underwriters, or
b. if the number of Defaulted Securities exceeds 10% of the number of
Designated Securities, this Agreement or, with respect to any Delivery Date
which occurs after the Closing Time, the obligation of the Underwriters to
purchase and of the Offerors
20
<PAGE>
to the sell the Option Securities shall terminate without liability on the
part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, or, in the case of a Delivery Date which is after the Closing
Time, which does not result in a termination of the obligation of the
Underwriters to purchase and the Trust to sell the relevant Option Securities,
as the case may be, either the Representatives or the Offerors shall have the
right to postpone Closing Time or the relevant Delivery Date, as the case may
be, for a period not exceeding seven days in order to effect any required
changes in the Registration Statement or Prospectus or in any other documents or
arrangements. As used herein, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder shall
-------
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at c/o Salomon Smith
Barney Inc., 388 Greenwich Street, New York, NY 10013, Attention: David W. Levy;
notices to the Trust and the Company shall be directed to them at One First
National Plaza, Chicago, Illinois 60670, Attention: Treasurer.
SECTION 12. Parties. This Agreement shall each inure to the benefit of
-------
and be binding upon the Underwriters and the Trust and the Company and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters and the Trust and the Company and their respective
successors and the controlling persons and officers and directors referred to in
Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the Underwriters
and the Trust and the Company and their respective successors, and said
controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation.
No purchaser of Securities from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
----------------------
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS
OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein
------------------
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
21
<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Trust a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Underwriters and the Trust and the Company in accordance with its terms.
Very truly yours,
BANK ONE CAPITAL I
By /s/ M. Eileen Kennedy
--------------------------
Name: M. Eileen Kennedy
Title: Senior Vice President and
Treasurer
BANK ONE CORPORATION
By /s/ M. Eileen Kennedy
--------------------------
Name: M. Eileen Kennedy
Title: Senior Vice President and
Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written:
SALOMON SMITH BARNEY INC.
BANC ONE CAPITAL MARKETS, INC.
MERRILL LYNCH & CO.,
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
MORGAN STANLEY DEAN WITTER
A.G. EDWARDS & SONS, INC.
PAINEWEBBER INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED
By: SALOMON SMITH BARNEY INC.
By /s/ David Levy
---------------------------------
Name: David Levy
Title: Managing Director
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
- ----------
22
<PAGE>
SCHEDULE A
Number of
Name of Underwriter Preferred Securities
------------------- --------------------
<TABLE>
<S> <C>
Salomon Smith Barney Inc. 2400
Banc One Capital Markets, Inc. 2400
Merrill Lynch, Pierce, Fenner & Smith Incorporated 2381
Morgan Stanley & Co. Incorporated 2381
A.G. Edwards & Sons, Inc. 2381
PaineWebber Incorporated 2381
Prudential Securities Incorporated 2381
Bear, Stearns & Co. Inc. 185
Donaldson, Lufkin & Jenrette Securities Corporation 185
Goldman, Sachs & Co. 185
Lehman Brothers Inc. 185
Robert W. Baird & Co. Incorporated 185
ABN AMRO Incorporated 90
CIBC World Markets Corp. 90
Dain Rauscher Incorporated 90
Deutsche Banc Alex. Brown 90
EVEREN Securities, Inc. 90
First Union Capital Markets, Inc. 90
Fleet Securities, Inc. 90
J.C. Bradford & Co. 90
McDonald & Company Securities, Inc. 90
Olde Discount Corporation 90
U.S. Bancorp Piper Jaffray Inc. 90
Raymond James & Associates, Inc. 90
Warburg Dillon Read LLC 90
Charles Schwab & Co., Inc. 90
SG Cowen Securities Corporation 90
The Robinson-Humphrey Company, LLC 90
Tucker Anthony Incorporated 90
Advest, Inc. 30
BB&T Capital Markets, a Division of Scott & Stringfellow 30
Banc of America Securities LLC 30
C.L. King & Associates, Inc. 30
Crowell, Weedon & Co. 30
Davenport & Co. of Virginia, Inc. 30
Doley Securities, Inc. 30
Fahnestock & Co. Inc. 30
Fifth Third Securities, Inc. 30
Sch A-1
<PAGE>
First Albany Corporation 30
Gibraltar Securities Co. 30
Gruntal & Co., L.L.C. 30
J.J.B Hilliard , W.L. Lyons, Inc. 30
Josephthal Lyon & Co. Inc. 30
Janney Montgomery Scott Inc. 30
Legg Mason Wood Walker, Incorporated 30
Mesirow Financial, Inc. 30
Morgan Keegan & Company, Inc. 30
Ragen McKenzie Incorporated 30
Roney Capital Markets 30
Southwest Securities, Inc. 30
Stephens Inc. 30
Stifel, Nicolaus & Company, Incorporated 30
Sutro & Co. Incorporated 30
TD Securities (USA) Inc. 30
Utendahl Capital Partners, L.P. 30
Wachovia Securities, Inc. 30
Wedbush Morgan Securities 30
Total..................................................... 20,000,000
==========
</TABLE>
Sch A-2
<PAGE>
SCHEDULE B
BANK ONE CAPITAL I
20,000,000 Preferred Securities
8.000% Preferred Securities
(Liquidation Amount of $25 Per Preferred Security)
1. The initial public offering price per security for the Preferred
Securities, determined as provided in Section 2, shall be $25.00.
2. The purchase price per security for the Preferred Securities to be
paid by the several Underwriters shall be $25.00, being an amount equal to the
initial public offering price set forth above; provided that the purchase price
per Preferred Security for any Option Securities purchased upon exercise of the
over-allotment option described in Section 2(b) shall be increased by an amount
per Preferred Security equal to any accrued distributions through the Delivery
Date on which such Option Securities are purchased.
3. The Underwriters propose to offer the Preferred Securities, in part,
to certain securities dealers at the initial public offering price per security
less a concession of $0.50 per Preferred Security, provided that such concession
for sales of 10,000 or more Preferred Securities to a single purchaser will not
be in excess of $0.30 per Preferred Security. The Underwriters may allow, and
such dealers may reallow, a concession not in excess of $0.45 per Preferred
Security to certain brokers and dealers.
4. The commission per Preferred Security to be paid by the Company to the
Underwriters for their commitments hereunder shall be $0.7875 per Preferred
Security, or $15,750,000.00 in the aggregate. However, such commission will be
$0.50 per Preferred Security for sales of 10,000 or more Preferred Securities to
a single purchaser.
Sch B-1
<PAGE>
Exhibit A
FORM OF OPINION OF SHERMAN I. GOLDBERG, ESQ.
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(i)
A-1
<PAGE>
Exhibit B
FORM OF OPINION OF SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(ii)
B-1
<PAGE>
Exhibit C
FORM OF OPINION OF CRAVATH, SWAINE & MOORE
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(iii)
C-1
<PAGE>
Exhibit 4.25
____________________________________________________________
THIRD SUPPLEMENTAL INDENTURE
between
BANK ONE CORPORATION
and
THE CHASE MANHATTAN BANK
Dated as of September 20, 1999
____________________________________________________________
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE I DEFINITIONS
SECTION 1.1. Definition of Terms......................................... 2
ARTICLE II GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1. Designation and Principal Amount............................ 3
SECTION 2.2. Maturity.................................................... 4
SECTION 2.4. Global Debenture............................................ 4
SECTION 2.5. Interest.................................................... 5
ARTICLE III REDEMPTION OF THE DEBENTURES
SECTION 3.1. Tax Event, Investment Company Event or Capital Treatment Event
Event Redemption............................................ 6
SECTION 3.2. Optional Redemption by Company.............................. 7
SECTION 3.3. No Sinking Fund............................................. 7
ARTICLE IV EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period........................ 7
SECTION 4.2. Notice of Extension......................................... 8
ARTICLE V EXPENSES
SECTION 5.1. Payment of Expenses......................................... 9
SECTION 5.2. Payment Upon Resignation or Removal......................... 9
ARTICLE VI FORM OF DEBENTURE
SECTION 6.1. Form of Debenture........................................... 10
ARTICLE VII ORIGINAL ISSUE OF DEBENTURES
SECTION 7.1. Original Issue of Debentures................................ 18
ARTICLE VIII MISCELLANEOUS
SECTION 8.1. Ratification of Indenture................................... 18
SECTION 8.2. Trustee Not Responsible for Recitals........................ 18
SECTION 8.3. Governing Law............................................... 18
SECTION 8.4. Separability................................................ 18
SECTION 8.5. Counterparts................................................ 19
</TABLE>
i
<PAGE>
THIRD SUPPLEMENTAL INDENTURE, dated as of September 20, 1999 (the
"Third Supplemental Indenture"), between BANK ONE CORPORATION, a Delaware
----------------------------
corporation (the "Company"), and The Chase Manhattan Bank, as trustee (the
-------
"Trustee"), under the Indenture dated as of January 1, 1997 between the Company
-------
and the Trustee (the "Indenture").
---------
WHEREAS, the Company executed and delivered the Indenture to the
Trustee to provide for the future issuance of the Company's unsecured junior
subordinated debt securities to be issued from time to time in one or more
series as might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered as
provided in the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company desires
to provide for the establishment of a new series of its Securities to be known
as its Junior Subordinated Deferrable Interest Debentures due September 15, 2029
(the "Debentures"), the form and substance of such Debentures and the terms,
----------
provisions and conditions thereof to be set forth as provided in the Indenture
and this Third Supplemental Indenture;
WHEREAS, BANK ONE Capital I, a Delaware statutory business trust (the
"Trust"), has offered to the public $500,000,000 aggregate liquidation amount of
-----
its 8.000% Preferred Securities (the "Preferred Securities") (or $575,000,000
--------------------
aggregate liquidation amount if the underwriters' over-allotment option (the
"Option") is exercised in full), representing undivided beneficial interests in
------
the assets of the Trust and proposes to invest the proceeds from such offering,
together with the proceeds of the issuance and sale by the Trust to the Company
of $15,463,925 aggregate liquidation amount of its 8.000% Common Securities (or
up to $17,783,525 if the Option is exercised in full), in $515,463,925 aggregate
principal amount of the Debentures (or up to $592,783,525 if the Option is
exercised in full); and
WHEREAS, the Company has requested that the Trustee execute and
deliver this Third Supplemental Indenture pursuant to Sections 3.01 and 9.01 of
the Indenture and all requirements necessary to make this Third Supplemental
Indenture a valid instrument in accordance with its terms, and to make the
Debentures, when executed by the Company and authenticated and delivered by the
Trustee, the valid obligations of the Company, have been performed, and the
execution and delivery of this Third Supplemental Indenture has been duly
authorized in all respects:
NOW THEREFORE, in consideration of the purchase and acceptance of the
Debentures by the Holders thereof, and for the purpose of setting forth, as
provided in the Indenture, the form and substance of the Debentures and the
terms, provisions and conditions thereof, the Company covenants and agrees with
the Trustee as follows:
<PAGE>
ARTICLE I
DEFINITIONS
SECTION 1.1 Definition of Terms.
-------------------
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used in
this Third Supplemental Indenture;
(b) a term defined anywhere in this Third Supplemental Indenture has
the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or Article of
this Third Supplemental Indenture;
(e) headings are for convenience of reference only and do not affect
interpretation;
(f) the following terms have the meanings given to them in the
Declaration: (i) Business Day; (ii) Capital Treatment Event; (iii) Clearing
Agency; (iv) Delaware Trustee; (v) Institutional Trustee; (vi) Institutional
Trustee Account; (vii) Investment Company Event; (viii) Preferred Security
Certificate; (ix) Regular Trustees; (x) Special Event; (xi) Tax Event; and (xii)
Underwriting Agreement;
(g) the following terms have the meanings given to them in this
Section 1.1(g):
"Additional Sums" shall have the meaning set forth in Section 2.5.
---------------
"Bank One Capital Trust" means each of (i) any FCN Capital Trust and
----------------------
(ii) BANK ONE Capital I, BANK ONE Capital II, BANK ONE Capital III, BANK ONE
Capital IV and BANK ONE Capital V, each a Delaware business trust, or any
similar trust created for the purpose of issuing preferred securities in
connection with the issuance of Securities under the Indenture.
"Bank One Guarantee" means any Common Securities Guarantee or
------------------
Preferred Securities Guarantee.
<PAGE>
"Compounded Interest" shall have the meaning set forth in Section 4.1.
-------------------
"Declaration" means the Amended and Restated Declaration of Trust of
-----------
BANK ONE Capital I, a Delaware statutory business trust, dated as of September
20, 1999.
"Deferred Interest" shall have the meaning set forth in Section 4.1.
-----------------
"Depositary", with respect to the Debentures, means The Depository
----------
Trust Company or such other successor Clearing Agency for the Preferred
Securities.
"Dissolution Event" means the liquidation of the Trust by the Regular
-----------------
Trustees in accordance with the Declaration, and the distribution of the
Debentures held by the Institutional Trustee to the holders of the Trust
Securities issued by the Trust pro rata in accordance with the Declaration.
--- ----
"Global Debenture" shall have the meaning set forth in Section 2.4.
----------------
"Maturity Date" shall mean September 15, 2029.
-------------
"Non Book-Entry Preferred Securities" shall have the meaning set forth
-----------------------------------
in Section 2.4.
"Redemption Price" shall mean, with respect to any redemption of the
----------------
Debentures pursuant to Article III hereof, an amount in cash equal to 100% of
the principal amount to be redeemed plus any accrued and unpaid interest
thereon, including Compounded Interest and Additional Sums, if any, to the date
of such redemption.
"Trust Securities" shall mean the Preferred Securities and the Common
----------------
Securities, collectively.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1 Designation and Principal Amount.
--------------------------------
There is hereby authorized a series of Securities designated the
"Junior Subordinated Deferrable Interest Debentures due September 15, 2029",
limited in aggregate principal amount to $515,463,925 (or up to $592,783,525 if
the Option is exercised in full), which amount shall be as
3
<PAGE>
set forth in any written order of the Company for the authentication and
delivery of Debentures pursuant to Section 3.03 of the Indenture.
SECTION 2.2. Maturity.
--------
The Maturity Date (which shall constitute the Stated Maturity of the
Debentures for purposes of the Indenture) shall be the date on which the
Debentures mature and on which the principal thereof shall be due and payable
together with all accrued and unpaid interest thereon (including Compounded
Interest and Additional Sums, if any).
SECTION 2.3. Form and Payment.
----------------
Except as provided in Section 2.4, the Debentures shall be issued in
fully registered certificated form without interest coupons in minimum
denominations of $25 and in integral multiples thereof. Principal and interest
on the Debentures issued in certificated form will be payable, the transfer of
such Debentures will be registrable and such Debentures will be exchangeable for
Debentures bearing identical terms and provisions at the office or agency of the
Company as set forth in the last sentence of Section 5.02 of the Indenture;
provided, however, that payment of interest may be made, at the option of the
- -------- -------
Company, by check mailed to the Holder at such address as shall appear in the
Security Register or by wire transfer to an account designated by a Holder in
writing not less than ten days prior to the date of payment. The Company
selects each of the City of New York, New York and the City of Chicago, Illinois
as a Place of Payment for the Debentures and hereby appoints Bank One Trust
Company, N.A. as Securities Registrar for the Debentures. Notwithstanding the
foregoing, so long as the Holder of any Debentures is the Institutional Trustee,
the payment of the principal of and interest (including Compounded Interest and
Additional Sums, if any) on such Debentures held by the Institutional Trustee
will be made at such place and to such account as may be designated by the
Institutional Trustee.
SECTION 2.4. Global Debenture.
----------------
(a) In connection with a Dissolution Event,
(i) the Debentures in certificated form may be presented to the
Trustee by the Institutional Trustee in exchange for a global Debenture in
an aggregate principal amount equal to the aggregate principal amount of
all outstanding Debentures (a "Global Debenture"), to be registered in the
----------------
name of the Depositary, or its nominee, and delivered by the Trustee to or
upon the order of the Depositary for crediting to the accounts of its
participants pursuant to the instructions of the Regular Trustees. The
Company upon any such presentation shall execute a Global Debenture in such
aggregate principal amount and
4
<PAGE>
deliver the same to the Trustee for authentication and delivery in
accordance with the Indenture and this Third Supplemental Indenture.
Payments on the Debentures issued as a Global Debenture will be made to the
Depositary; and
(ii) if any Preferred Securities are held in non book-entry
certificated form, the Debentures in certificated form may be presented to
the Trustee by the Institutional Trustee and any Preferred Security
Certificate which represents Preferred Securities other than Preferred
Securities held by the Clearing Agency or its nominee ("Non Book-Entry
--------------
Preferred Securities") will be deemed to represent beneficial interests in
--------------------
Debentures presented to the Trustee by the Institutional Trustee having an
aggregate principal amount equal to the aggregate liquidation amount of the
Non Book-Entry Preferred Securities until such Preferred Security
Certificates are presented to the Security Registrar for transfer or
reissuance at which time such Preferred Security Certificates will be
cancelled and a Debenture, registered in the name of the holder of the
Preferred Security Certificate or the transferee of the holder of such
Preferred Security Certificate, as the case may be, with an aggregate
principal amount equal to the aggregate liquidation amount of the Preferred
Security Certificate cancelled, will be executed by the Company and
delivered to the Trustee for authentication and delivery in accordance with
the Indenture and this Third Supplemental Indenture. Upon the issuance of
such Debentures, Debentures with an equivalent aggregate principal amount
that were presented by the Institutional Trustee to the Trustee will be
deemed to have been cancelled.
(b) A Global Debenture may be transferred, in whole but not in part,
only to another nominee of the Depositary, or to a successor Depositary selected
or approved by the Company or to a nominee of such successor Depositary.
SECTION 2.5. Interest.
--------
(a) Each Debenture will bear interest at a rate per annum equal to
8.000% (the "Interest Rate") from September 20, 1999 until the principal thereof
-------------
becomes due and payable, and on any overdue principal at the Interest Rate and
(to the extent that payment of such interest is enforceable under applicable
law) on any overdue installment of interest at the Interest Rate, compounded
quarterly, payable (subject to the provisions of Article Four) quarterly in
arrears on February 15, May 15, August 15 and November 15 of each year
commencing on November 15, 1999 (each such day, an "Interest Payment Date"), to
---------------------
the Person in whose name such Debenture or any predecessor Debenture is
registered, at the close of business on the regular record date for such
interest installment, which, in respect of any Debentures of which the
Institutional Trustee is the Holder or in the case of a Global Debenture, shall
be the close of business on the Business Day next preceding that Interest
Payment Date (as defined below). Notwithstanding the foregoing sentence,
5
<PAGE>
if the Debentures are no longer in book-entry only form, except if the
Debentures are held by the Institutional Trustee, the regular record dates shall
be the February 1, May 1, August 1 and November 1 prior to the applicable
Interest Payment Date.
The term "Interest Period" means each period beginning on, and
---------------
including, September 20, 1999, and ending on, but excluding, the first Interest
Payment Date, and each successive period beginning on, and including, an
Interest Payment Date and ending on, but excluding, the next succeeding Interest
Payment Date. The amount of interest payable for any Interest Period will be
computed for any full quarterly Interest Period on the basis of a 360-day year
of twelve 30-day months, and for any period shorter than a full quarterly
Interest Period for which interest is computed, interest will be computed on the
basis of the actual number of days elapsed per 90-day quarter.
(b) In the event that any Interest Payment Date is not a Business Day,
then payment of interest payable on such date will be made on the next
succeeding day which is a Business Day, in each case with the same force and
effect as if made on such date.
(c) If a Tax Event has occurred and is continuing while the
Institutional Trustee is the Holder of any Debentures, and 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 case, the
Company will pay such additional sums ("Additional Sums") on the Debentures held
---------------
by the Institutional Trustee, as shall be required so that the net amounts
received and retained by the Trust and the Institutional Trustee after paying
such taxes, duties, assessments or other governmental charges will not be less
than the amounts the Trust and the Institutional Trustee would have received had
the Trust and the Institutional Trustee not been subject to such taxes, duties,
assessments or other governmental charges as a result of such Tax Event. The
payment of such Additional Sums will be subject to the provisions of Section
5.04 of the Indenture.
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1. Tax Event, Investment Company Event or Capital Treatment Event
--------------------------------------------------------------
Redemption.
----------
If a Tax Event, an Investment Company Event or a Capital Treatment
Event has occurred and is continuing then, notwithstanding Section 3.2(a) but
subject to Section 3.2(c), the Company shall have the right upon not less than
30 days nor more than 60 days notice to the Holders
6
<PAGE>
of the Debentures to redeem the Debentures, in whole, but not in part, for cash
within 90 days following the occurrence of such Tax Event, Investment Company
Event or Capital Treatment Event (or, if the approval of the Federal Reserve
Board is then required for such redemption, on such later date as promptly
practicable after such approval is obtained), (the "90 Day Period") at the
-------------
Redemption Price.
SECTION 3.2. Optional Redemption by Company.
------------------------------
(a) Subject to the provisions of Section 3.2(b) and to the provisions
of Article Four of the Indenture, except as otherwise may be specified in this
Third Supplemental Indenture, the Company shall have the right to redeem the
Debentures, in whole or in part, from time to time, on or after September 20,
2004, at the Redemption Price. Any redemption pursuant to this paragraph will
be made upon not less than 30 days nor more than 60 days notice to the Holders
of the Debentures. If the Debentures are only partially redeemed pursuant to
this Section 3.2, the Debentures will be redeemed pro rata or by lot or by any
--- ----
other method utilized by the Securities Registrar; provided, that if at the time
--------
of redemption the Debentures are registered as a Global Debenture, the
Depositary shall determine, in accordance with its procedures, the principal
amount of such Debentures beneficially held by each Holder of Debentures to be
redeemed.
(b) If a partial redemption of the Debentures would result in the
delisting of the Preferred Securities issued by the Trust from any national
securities exchange or other organization on which the Preferred Securities are
then listed, the Company shall not be permitted to effect such partial
redemption and may only redeem the Debentures in whole.
(c) Any redemption of Debentures pursuant to Section 3.1 or Section
3.2 shall be subject to the Company obtaining the prior approval of the Federal
Reserve, if such approval is then required under applicable law, rules,
guidelines or policies of the Federal Reserve.
SECTION 3.3. No Sinking Fund.
---------------
The Debentures are not entitled to the benefit of any sinking fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period.
------------------------------------
Subject to Section 3.13 of the Indenture, the Company shall have the
right, at any time and from time to time during the term of the Debentures, to
defer payments of interest by
7
<PAGE>
extending the interest payment period of such Debentures for an Extension Period
not exceeding 20 consecutive quarters, during which Extension Period no interest
shall be due and payable; provided that no Extension Period may end on a date
-------- ----
other than an Interest Payment Date or extend beyond the Maturity Date. To the
extent permitted by applicable law, interest, the payment of which has been
deferred because of the extension of the interest payment period pursuant to
this Section 4.1, will bear interest thereon at the Interest Rate compounded
quarterly for each quarter of the Extension Period ("Compounded Interest"). At
-------------------
the end of the Extension Period, the Company shall pay all interest accrued and
unpaid on the Debentures, including any Additional Sums and Compounded Interest
(together, "Deferred Interest") that shall be payable to the Holders of the
-----------------
Debentures in whose names the Debentures are registered in the Security Register
on the record date relating to the Interest Payment Date on which the Extension
Period ends. Before the termination of any Extension Period, the Company may
further defer payments of interest by further extending such period, provided
--------
that such period, together with all such further extensions thereof, shall not
exceed 20 consecutive quarters, or extend beyond the Maturity Date of the
Debentures. Upon the termination of any Extension Period and the payment of all
Deferred Interest then due, the Company may commence a new Extension Period,
subject to the foregoing requirements. No interest shall be due and payable
during an Extension Period, except at the end thereof.
SECTION 4.2. Notice of Extension.
-------------------
(a) If the Institutional Trustee is the only registered Holder of the
Debentures at the time the Company selects an Extension Period, the Company
shall give written notice to the Regular Trustees, the Institutional Trustee and
the Trustee of its selection of such Extension Period at least one Business Day
before the earlier of (i) the next succeeding date on which Distributions on the
Trust Securities issued by the Trust are payable, or (ii) the date the Trust is
required to give notice of the record date, or the date such Distributions are
payable, to the New York Stock Exchange or other applicable self-regulatory
organization or to holders of the Preferred Securities issued by the Trust, but
in any event at least one Business Day before such record date.
(b) If the Institutional Trustee is not the only Holder of the
Debentures at the time the Company selects an Extension Period, the Company
shall give the Holders of the Debentures and the Trustee written notice of its
selection of such Extension Period at least 10 Business Days before the earlier
of (i) the next succeeding Interest Payment Date, or (ii) the date the Company
is required to give notice of the record or payment date of such interest
payment to any applicable self-regulatory organization or to Holders of the
Debentures.
(c) The quarter in which any notice is given pursuant to paragraphs
(a) or (b) of this Section 4.2 shall be counted as one of the 20 quarters
permitted in the maximum Extension Period permitted under Section 4.1.
8
<PAGE>
ARTICLE V
EXPENSES
SECTION 5.1. Payment of Expenses.
-------------------
In connection with the offering, sale and issuance of the Debentures
to the Institutional Trustee and in connection with the sale of the Trust
Securities by the Trust, the Company, 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 Underwriting Agreement and compensation of the Trustee under the
Indenture in accordance with the provisions of Section 8.07 of the Indenture;
(b) pay all costs and expenses of the Trust (including, but not
limited to, costs and expenses relating to the organization of the Trust, the
offering, sale and issuance of the Trust Securities (including commissions to
the underwriters in connection therewith), the fees and expenses of the
Institutional Trustee and the Delaware Trustee, 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);
(c) be primarily and fully liable for any indemnification obligations
arising with respect to the 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.
SECTION 5.2. Payment Upon Resignation or Removal.
-----------------------------------
Upon termination of this Third Supplemental Indenture or the Indenture
or the removal or resignation of the Trustee, unless otherwise stated, the
Company shall pay to the Trustee all amounts accrued under Section 8.07 of the
Indenture to the date of such termination, removal or resignation. Upon
termination of the Declaration or the removal or resignation of the Delaware
Trustee or the Institutional Trustee, as the case may be, pursuant to Sections
10.4 and 10.6 of the
9
<PAGE>
Declaration, the Company shall pay to the Delaware Trustee or the Institutional
Trustee, as the case may be, all amounts accrued under said Sections to the date
of such termination, removal or resignation.
ARTICLE VI
FORM OF DEBENTURE
SECTION 6.1. Form of Debenture.
-----------------
The Debentures and the Trustee's Certificate of Authentication to be
endorsed thereon are to be substantially in the following forms:
(FORM OF FACE OF DEBENTURE)
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT - This Debenture
is a Global Debenture within the meaning of the Indenture hereinafter referred
to and is registered in the name of a Depositary or a nominee of a Depositary.
This Debenture is exchangeable for Debentures registered in the name of a person
other than the Depositary or its nominee only in the limited circumstances
described in the Indenture, and no transfer of this Debenture (other than a
transfer of this Debenture as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary) may be registered except in limited circumstances.
Unless this Debenture is presented by an authorized representative of
The Depository Trust Company (55 Water Street, New York, New York) to the issuer
or its agent for registration of transfer, exchange or payment, and any
Debenture issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust Company and
any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.]
No.__________________________ CUSIP No.
10
<PAGE>
BANK ONE CORPORATION
JUNIOR SUBORDINATED
DEFERRABLE INTEREST DEBENTURE
DUE SEPTEMBER 15, 2029
BANK ONE CORPORATION, a Delaware corporation (the "Company", which
-------
term includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to ______________ or registered
assigns, the principal sum of _____________ Dollars ($___________) on September
15, 2029 and to pay interest on said principal sum from September 20, 1999, or
from the most recent interest payment date to which interest has been paid or
duly provided for, quarterly (subject to deferral as set forth herein) in
arrears on February 15, May 15, August 15 and November 15 of each year
commencing November 15, 1999 (each such date, an "Interest Payment Date") at the
---------------------
rate of 8.000% per annum (the "Interest Rate") until the principal hereof shall
-------------
have become due and payable, and on any overdue principal and premium, if any,
at the Interest Rate and (without duplication and to the extent that payment of
such interest is enforceable under applicable law) on any overdue installment of
interest at the Interest Rate compounded quarterly. The amount of interest
payable on any Interest Payment Date (as defined below) shall be calculated as
provided in the Indenture. In the event that any Interest Payment Date is not a
Business Day, then payment of interest payable on such date will be made on the
next succeeding day that is a Business Day, in each case with the same force and
effect as if made on such date. The interest installment so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the person in whose name this Debenture
(or one or more Predecessor Securities, as defined in said Indenture) is
registered at the close of business on the regular record date for such interest
installment, which shall be the close of business on the first business day next
preceding such Interest Payment Date. If pursuant to the provisions of the
Indenture the Debentures are no longer represented by a Global Debenture, except
if the Debentures are held by the Institutional Trustee, the regular record date
shall be the close of business on the February 1, May 1, August 1 and November 1
next preceding such Interest Payment Date, as applicable. Any such interest
installment not punctually paid or duly provided for shall forthwith cease to be
payable to the registered Holders on such regular record date and may be paid to
the Person in whose name this Debenture (or one or more Predecessor Securities)
is registered at the close of business on a special record date to be fixed by
the Trustee for the payment of such defaulted interest, notice whereof shall be
given to the registered Holders of Debentures not less than 10 days prior to
such special record date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Debentures may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture. The principal of (and
premium, if any) and the interest on this Debenture shall be payable at the
office or agency of the Trustee maintained for that purpose in any coin or
currency of the
11
<PAGE>
United States of America that at the time of payment is legal tender
for payment of public and private debts; provided, however, that payment
-------- -------
of interest may be made, at the option of the Company, by check mailed to the
registered Holder at such address as shall appear in the Security Register or by
wire transfer to an account designated by a Holder in writing not less than ten
days prior to the date of payment. Notwithstanding the foregoing, so long as
the Holder of this Debenture is the Institutional Trustee, the payment of the
principal of (and premium, if any) and interest on this Debenture will be made
at such place and to such account as may be designated by the Institutional
Trustee.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Indebtedness and General Obligations, and
this Debenture is issued subject to the provisions of the Indenture with respect
thereto. Each Holder of this Debenture, by accepting the same, (a) agrees to
and shall be bound by such provisions, (b) authorizes and directs the Trustee on
his or her behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination so provided and (c) appoints the
Trustee his or her attorney-in-fact for any and all such purposes. Each Holder
hereof, by his or her acceptance hereof, hereby waives all notice of the
acceptance of the subordination provisions contained herein and in the Indenture
by each holder of Senior Indebtedness and creditor in respect of General
Obligations, whether now outstanding or hereafter incurred, and waives reliance
by each such holder or creditor upon said provisions.
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, or be valid or become obligatory for any
purpose until the Certificate of Authentication hereon shall have been signed by
or on behalf of the Trustee.
THIS DEBENTURE 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.
The provisions of this Debenture are continued on the reverse side
hereof and such continued provisions shall for all purposes have the same effect
as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
BANK ONE CORPORATION
By:__________________________
Name:
Title: Chairman of the Board
12
<PAGE>
Attest:
By:_______________________
Name:
Title: Secretary or Assistant Secretary
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
The Chase Manhattan Bank,
as Trustee
By______________________
Authorized Officer
Dated________________
13
<PAGE>
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of securities of the
Company (herein sometimes referred to as the "Securities"), all issued or to be
----------
issued in one or more series under and pursuant to an Indenture dated as of
January 1, 1997, duly executed and delivered between the Company and The Chase
Manhattan Bank, as Trustee (the "Trustee"), as heretofore supplemented and as
-------
supplemented by the Third Supplemental Indenture dated as of September 20, 1999,
between the Company and the Trustee (the Indenture as so supplemented, the
"Indenture"), to which Indenture and all indentures supplemental thereto
---------
reference is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Company and
the Holders of the Securities. By the terms of the Indenture, the Securities
are issuable in series that may vary as to amount, date of maturity, rate of
interest and in other respects as provided in the Indenture. This Security is
one of the series designated on the face hereof (the "Debentures") and is
----------
limited in aggregate principal amount as specified in said Third Supplemental
Indenture.
Upon the occurrence and continuation of a Tax Event, Investment
Company Event or Capital Treatment Event, the Company shall have the right,
subject to certain conditions set forth in the Indenture, to redeem this
Debenture in whole, but not in part, at the Redemption Price within 90 days
following the occurrence of such Tax Event, Investment Company Event or Capital
Treatment Event (or, if the prior approval of the Board of Governors of the
Federal Reserve System (the "Federal Reserve") is then required, on such later
---------------
date as promptly as practicable after such approval is obtained). In addition,
the Company shall have the right to redeem this Debenture, in whole or in part,
at any time on or after September 20, 2004, at the Redemption Price (any of the
foregoing redemptions an "Optional Redemption"). The "Redemption Price" means
------------------- ----------------
an amount in cash equal to 100% of the principal amount together with any
accrued and unpaid interest thereon, including Additional Sums and Compounded
Interest, if any, to the date of such redemption. Any redemption pursuant to
this paragraph will be made upon not less than 30 days nor more than 60 days
notice. If the Debentures are only partially redeemed by the Company pursuant
to an Optional Redemption, the Debentures will be redeemed pro rata or by lot or
--- ----
by any other method utilized by the Securities Registrar; provided that if, at
the time of redemption, the Debentures are registered as a Global Debenture, the
Depositary shall determine the principal amount of such Debentures beneficially
held by each Debentureholder to be redeemed in accordance with its procedures.
In the event of redemption of this Debenture in part only, a new
Debenture or Debentures for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.
14
<PAGE>
Notwithstanding the foregoing, any redemption of Debentures by the
Company shall be subject to the prior approval of the Federal Reserve, if such
approval is then required under applicable law, rules, guidelines or policies of
the Federal Reserve.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Debentures may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of all series affected
(acting as one class), to execute supplemental indentures for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or of modifying in
any manner the rights of the Holders of the Securities; provided, however, that
no such supplemental indenture shall (i) change the Maturity of the principal
of, or the Stated Maturity of any installment of interest (or premium, if any)
on, any Security, or reduce the principal amount thereof or any premium thereon
or the rate of interest thereon, or change the obligations of the Company to pay
additional amounts pursuant to Section 5.04 of the Indenture, or to reduce the
amount of principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof, or change
the method of calculating interest thereon or the coin or currency in which any
Security (or premium, if any, thereon) or the interest thereon is payable, or
reduce the minimum rate of interest thereon, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption or repayment, on or after the Redemption
Date or Repayment Date); or (ii) reduce the percentage in principal amount of
the Outstanding Securities of any series, the Holders of which are required to
consent to any such supplemental indenture or to waive certain defaults
thereunder and their consequences provided for in the Indenture or to reduce the
requirements of the Indenture for a quorum at meetings of Holders of Securities;
or (iii) change the obligations of the Company to maintain certain offices or
agencies as required by the Indenture; or (iv) modify any of the provisions of
the Indenture relating to supplemental indentures or the waiver of defaults,
except to increase any such percentage or to provide that certain other
provisions of the Indenture cannot be modified or waived, without the consent of
the Holders of each Security then outstanding and affected thereby. The
Indenture also contains provisions permitting the Holders of a majority in
aggregate principal amount of the Outstanding Securities of any series affected
thereby, on behalf of all of the Holders of the Securities of such series, to
waive any past default in the performance of any of the covenants contained in
the Indenture, or established pursuant to the Indenture with respect to such
series, and its consequences, except a default in the payment of the principal
of, premium, if any, or interest on any of the Securities of such series. Any
such consent or waiver by the registered Holder of this Debenture
15
<PAGE>
(unless revoked as provided in the Indenture) shall be conclusive and binding
upon such Holder and upon all future Holders and owners of this Debenture and of
any Debenture issued in exchange therefor or in place hereof (whether by
registration of transfer or otherwise), irrespective of whether or not any
notation of such consent or waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest on this Debenture at the time and place and at the
rate and in the money herein prescribed.
So long as no Event of Default has occurred and is continuing, the
Company shall have the right, at any time and from time to time during the term
of the Debentures, to defer payments of interest by extending the interest
payment period of such Debentures for up to 20 consecutive quarters (an
"Extension Period"), at the end of which period the Company shall pay all
----------------
interest then accrued and unpaid (together with interest thereon at the Interest
Rate to the extent that payment of such interest is enforceable under applicable
law); provided that no Extension Period may end on a day other than an Interest
-------- ----
Payment Date or last beyond the Maturity Date of the Debentures. Before the
termination of any such Extension Period, the Company may further extend such
Extension Period, provided that such Extension Period together with all such
further extensions thereof shall not exceed 20 consecutive quarters or extend
beyond the Maturity Date of the Debentures. Upon the termination of any such
Extension Period and the payment of all accrued and unpaid interest and any
additional amounts then due, the Company may commence a new Extension Period,
subject to the foregoing requirements.
During any such Extension Period, the Company shall not, and shall not
permit any Subsidiary to, (i) declare or pay any dividends or distributions on,
or redeem, purchase, acquire or make a liquidation payment with respect to, any
of the Company's capital stock, or (ii) make any payment of principal of or
interest or premium, if any, on or repay, repurchase or redeem any debt security
of the Company that ranks pari passu in all respects with or junior in interest
to the Debentures or make any guarantee payments with respect to any guarantee
by the Company of the debt securities of any Subsidiary of the Company that by
their terms rank pari passu in all respects with or junior in interest to the
Debentures (other than (a) dividends or distributions in Common Stock, (b) any
declaration of a dividend in connection with the implementation of a Rights
Plan, the issuance of any Common Stock of any class or series of preferred stock
of the Company under any Rights Plan or the repurchase of any rights distributed
pursuant to a Rights Plan, (c) payments under any Bank One Guarantee which is
for the benefit of the holders of Preferred Securities or Common Securities
issued by the Trust, (d) purchases of Common Stock related to the issuance of
Common Stock under any of the Company's benefit plans for its directors,
officers or employees and (e) obligations under any dividend reinvestment and
stock purchase plan).
16
<PAGE>
Subject to the prior approval of the Federal Reserve if such approval
is then required under applicable law, rules, guidelines or policies of the
Federal Reserve, the Company will have the right at any time to liquidate the
Trust and cause the Debentures to be distributed to the holders of the Trust
Securities in liquidation of the Trust.
As provided in the Indenture and subject to certain limitations
therein set forth, this Debenture is transferable by the registered Holder
hereof on the Security Register of the Company, upon surrender of this Debenture
for registration of transfer at the office or agency of the Trustee in the City
and State of New York or the City of Chicago, Illinois accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company and
the Securities Registrar duly executed by the registered Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Debentures of
authorized denominations and for the same aggregate principal amount will be
issued to the designated transferee or transferees. No service charge will be
made for any such transfer, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in relation
thereto.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any paying agent and the Security Registrar
may deem and treat the registered holder hereof as the owner hereof (whether or
not this Debenture shall be overdue and notwithstanding any notice of ownership
or writing hereon made by anyone other than the Security Registrar) for the
purpose of receiving payment of or on account of the principal hereof and
premium, if any, and (subject to Section 3.07 of the Indenture) interest due
hereon and for all other purposes, and neither the Company nor the Trustee nor
any paying agent nor any Security Registrar shall be affected by any notice to
the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
[The Debentures are issuable only in registered form without coupons
in denominations of $25 and any integral multiple thereof.] [This Global
Debenture is exchangeable for Debentures in definitive form only under certain
limited circumstances set forth in the Indenture. Debentures so issued are
issuable only in registered form without coupons in denominations of $25 and any
integral multiple thereof.] As provided in the Indenture and subject to certain
limitations
17
<PAGE>
herein and therein set forth, Debentures of this series [so issued]
are exchangeable for a like aggregate principal amount of Debentures of a
different authorized denomination, as requested by the Holder surrendering the
same.
All terms used in this Debenture that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE DEBENTURES SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
ARTICLE VII
ORIGINAL ISSUE OF DEBENTURES
SECTION 7.1. Original Issue of Debentures.
----------------------------
Debentures in the aggregate principal amount of $515,463,925 (or
$592,783,525 if the Option is exercised in full) may, upon execution of this
Third Supplemental Indenture (or thereafter if the Option is exercised), be
executed by the Company and delivered to the Trustee for authentication as
provided in Sections 3.01 and 3.03 of the Indenture.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Ratification of Indenture.
-------------------------
The Indenture, as supplemented by this Third Supplemental Indenture,
is in all respects ratified and confirmed, and this Third Supplemental Indenture
shall be deemed part of the Indenture in the manner and to the extent herein and
therein provided.
SECTION 8.2. Trustee Not Responsible for Recitals.
------------------------------------
The recitals herein contained are made by the Company and not by the
Trustee, and the Trustee assumes no responsibility for the correctness thereof.
The Trustee makes no representation as to the validity or sufficiency of this
Third Supplemental Indenture.
SECTION 8.3. Governing Law.
-------------
This Third Supplemental Indenture and each Debenture shall be
construed in accordance with and governed by the laws of the State of New York.
18
<PAGE>
SECTION 8.4. Separability.
------------
In case any one or more of the provisions contained in this Third
Supplemental Indenture or in the Debentures shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Third
Supplemental Indenture or of the Debentures, but this Third Supplemental
Indenture and the Debentures shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
SECTION 8.5. Counterparts.
------------
This Third Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
19
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed and attested, as of the day and year
first above written.
BANK ONE CORPORATION
By: /s/ Robert A. Rosholt
------------------------------------
Name: Robert A. Rosholt
Title: Chief Financial Officer and
Executive Vice President
Attest:
By: /s/ Sharon A. Renchof
----------------------------
Assistant Secretary
THE CHASE MANHATTAN BANK,
as Trustee
By: /s/ James D. Heaney
----------------------------
Name: James D. Heaney
Title: Vice President
Attest:
By: /s/ R. Lorenzen
----------------------
<PAGE>
EXHIBIT 4.26
AMENDED AND RESTATED DECLARATION
OF TRUST
BANK ONE CAPITAL I
Dated as of September 20, 1999
<PAGE>
TABLE OF CONTENTS
-----------------
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<S> <C> <C>
ARTICLE I INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions..................................................... 2
ARTICLE II TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application................................ 9
SECTION 2.2 Lists of Holders of Securities.................................. 9
SECTION 2.3 Reports by the Institutional Trustee............................ 10
SECTION 2.4 Periodic Reports to Institutional Trustee....................... 10
SECTION 2.5 Evidence of Compliance with Conditions Precedent................ 10
SECTION 2.6 Events of Default; Waiver....................................... 10
SECTION 2.7 Event of Default; Notice........................................ 12
ARTICLE III ORGANIZATION
SECTION 3.1 Name............................................................ 13
SECTION 3.2 Office.......................................................... 13
SECTION 3.3 Purpose......................................................... 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............ 17
SECTION 3.8 Powers and Duties of the Institutional Trustee.................. 17
SECTION 3.9 Certain Duties and Responsibilities of the Institutional
Trustee......................................................... 20
SECTION 3.10 Certain Rights of Institutional Trustee......................... 22
SECTION 3.11 Delaware Trustee................................................ 24
SECTION 3.12 Execution of Documents.......................................... 24
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities.......... 24
SECTION 3.14 Duration of Trust............................................... 24
SECTION 3.15 Mergers......................................................... 25
ARTICLE IV SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities......................... 26
SECTION 4.2 Responsibilities of the Sponsor................................. 26
ARTICLE V TRUSTEES
SECTION 5.1 Number of Trustees.............................................. 27
SECTION 5.2 Delaware Trustee................................................ 28
SECTION 5.3 Institutional Trustee; Eligibility.............................. 28
SECTION 5.4 Certain Qualifications of Regular Trustees and Delaware
Trustee Generally............................................... 29
SECTION 5.5 Regular Trustees................................................ 29
</TABLE>
i
<PAGE>
<TABLE>
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<S> <C> <C>
SECTION 5.6 Delaware Trustee................................................ 30
SECTION 5.7 Appointment, Removal and Resignation of Trustees................ 30
SECTION 5.8 Vacancies among Trustees........................................ 31
SECTION 5.9 Effect of Vacancies............................................. 31
SECTION 5.10 Meetings........................................................ 32
SECTION 5.11 Delegation of Power............................................. 32
SECTION 5.12 Merger, Conversion, Consolidation or Succession to Business..... 33
SECTION 5.13 Appointment of Authenticating Agent............................. 33
ARTICLE VI DISTRIBUTIONS
SECTION 6.1 Distributions................................................... 34
ARTICLE VII ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities......................... 35
SECTION 7.2 Execution and Delivery of Securities Certificates............... 36
SECTION 7.3 Paying Agent.................................................... 36
ARTICLE VIII TERMINATION OF TRUST
SECTION 8.1 Termination of Trust............................................ 37
ARTICLE IX TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities.......................................... 38
SECTION 9.2 Transfer of Certificates........................................ 38
SECTION 9.3 Deemed Security Holders......................................... 39
SECTION 9.4 Book Entry Interests............................................ 39
SECTION 9.5 Notices to Clearing Agency...................................... 40
SECTION 9.6 Appointment of Successor Clearing Agency........................ 40
SECTION 9.7 Definitive Preferred Security Certificates...................... 40
SECTION 9.8 Mutilated, Destroyed, Lost or Stolen Certificates............... 41
SECTION 9.9 Maintenance of Office or Agency................................. 42
ARTICLE X LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR
OTHERS
SECTION 10.1 Liability....................................................... 42
SECTION 10.2 Exculpation..................................................... 42
SECTION 10.3 Fiduciary Duty.................................................. 43
SECTION 10.4 Indemnification................................................. 44
SECTION 10.5 Outside Businesses.............................................. 47
SECTION 10.6 Compensation; Fees.............................................. 47
ARTICLE XI ACCOUNTING
SECTION 11.1 Fiscal Year..................................................... 47
SECTION 11.2 Certain Accounting Matters...................................... 48
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
SECTION 11.3 Banking......................................................... 48
SECTION 11.4 Withholding 48
ARTICLE XII AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments...................................................... 49
SECTION 12.2 Meetings of the Holders of Securities; Action by Written
Consent......................................................... 51
ARTICLE XIII REPRESENTATIONS OF INSTITUTIONAL TRUSTEE AND DELAWARE
TRUSTEE
SECTION 13.1 Representations and Warranties of Institutional Trustee......... 52
SECTION 13.2 Representations and Warranties of Delaware Trustee.............. 53
SECTION 14.1 Notices......................................................... 54
SECTION 14.2 Governing Law................................................... 55
SECTION 14.3 Intention of the Parties........................................ 55
SECTION 14.4 Headings........................................................ 55
SECTION 14.5 Successors and Assigns.......................................... 55
SECTION 14.6 Partial Enforceability.......................................... 55
SECTION 14.7 Counterparts.................................................... 56
ANNEX I TERMS OF SECURITIES............................................. I-1
EXHIBIT A-1 FORM OF PREFERRED SECURITY CERTIFICATE.......................... A1-1
EXHIBIT A-2 FORM OF COMMON SECURITY CERTIFICATE............................. A2-1
EXHIBIT B SPECIMEN OF DEBENTURE........................................... B-1
EXHIBIT C UNDERWRITING AGREEMENT.......................................... C-1
</TABLE>
iii
<PAGE>
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
Section of
Trust Indenture Act Section of
of 1939, as amended Declaration
- ------------------- -----------
<S> <C>
310(a).................................. 5.3(a)
310(c).................................. Inapplicable
311(c).................................. Inapplicable
312(a).................................. 2.2(a)
312(b).................................. 2.2(b)
313..................................... 2.3
314(a).................................. 2.4
314(b).................................. Inapplicable
314(c).................................. 2.5
314(d).................................. Inapplicable
314(f).................................. Inapplicable
315(a).................................. 3.9(b)
315(c).................................. 3.9(a)
315(d).................................. 3.9(a)
316(a).................................. Annex I
316(c).................................. 3.6(e)
</TABLE>
_______________
* This Cross-Reference Table does not constitute part of the Declaration and
shall not affect the interpretation of any of its terms or provisions.
iv
<PAGE>
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
BANK ONE CAPITAL I
September 20, 1999
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") dated and
-----------
effective as of September 20, 1999, 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 Delaware Trustee, the Regular Trustees and the Sponsor
established BANK ONE Capital I (the "Trust"), a trust under the Delaware
-----
Business Trust Act pursuant to a Declaration of Trust dated as of June 17,1999
(the "Original Declaration"), and a Certificate of Trust filed with the
--------------------
Secretary of State of the State of Delaware on June 17, 1999, for the sole
purpose of issuing and selling certain securities representing undivided
beneficial interests in the assets of the Trust and investing the proceeds
thereof in certain Debentures of the Debenture Issuer;
WHEREAS, as of the date hereof, no interests in the Trust have been
issued;
WHEREAS, all of the Trustees and the Sponsor, by this Declaration,
amend and restate each and every term and provision of the Original Declaration;
and
NOW, THEREFORE, it being the intention of the parties hereto to
continue the Trust as a business trust under the Business Trust Act and that
this Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
<PAGE>
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions.
-----------
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this
Section 1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to
this Declaration as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles and Sections and
Annexes and Exhibits are to Articles and Sections of and Annexes and
Exhibits to this Declaration unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Declaration unless otherwise defined in this Declaration
or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of
---------
the Securities Act or any successor rule thereunder.
"Agent" means any Paying Agent.
-----
"Authorized Officer" of a Person means any Person that is authorized
------------------
to bind such Person.
"Bank" means Bank One Trust Company, N.A., a national banking
----
association, and any successor thereto.
"Book Entry Interest" means a beneficial interest in a Global
-------------------
Certificate, ownership and transfers of which shall be maintained and made
through book entries by a Clearing Agency as described in Section 9.4.
2
<PAGE>
"Business Day" means a day other than (a) a Saturday or Sunday, (b) a
------------
day on which banking institutions in The City of New York or the City of Chicago
are authorized or required by law or executive order to remain closed, or (c) a
day on which the Institutional Trustee's Corporate Trust Office or the Corporate
Trust Office of the Debenture Trustee is closed for business.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
------------------
Code, 12 Del. Code (S)3801 et seq., as it may be amended from time to time, or
------------ -- ---
any successor legislation.
"Capital Treatment Event" has the meaning set forth in Annex I hereto.
----------------------- -------
"Certificate" means a Common Security Certificate or a Preferred
-----------
Security Certificate.
"Clearing Agency" means an organization registered as a "Clearing
---------------
Agency" pursuant to Section 17A of the Exchange Act that is acting as depositary
for the Preferred Securities and in whose name or in the name of a nominee of
that organization shall be registered a Global Certificate and which shall
undertake to effect book entry transfers and pledges of the Preferred
Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other
---------------------------
financial institution or other Person for whom from time to time the Clearing
Agency effects book entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means the "Closing Time" and each "Date of Delivery"
------------ ------------ ----------------
under the Underwriting Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from time
----
to time, or any successor legislation.
"Commission" means the Securities and Exchange Commission.
----------
"Common Securities" has the meaning specified in Section 7.1.(a).
-----------------
"Common Securities Guarantee" means the guarantee agreement to be
---------------------------
dated as of September 20, 1999 of the Sponsor in respect of the Common
Securities.
"Common Security Certificate" means a definitive certificate in fully
---------------------------
registered form representing a Common Security substantially in the form of
Exhibit A-2.
- -----------
"Company Indemnified Person" means (a) any Regular Trustee; (b) any
--------------------------
Affiliate of any Regular Trustee; (c) any officers, directors, shareholders,
members, partners, employees, repre-
3
<PAGE>
sentatives or agents of any Regular Trustee; or (d) any officer, employee or
agent of the Trust or its Affiliates.
"Corporate Trust Office" means (i) when used with respect to the
----------------------
Institutional Trustee, the principal corporate trust office of the Institutional
Trustee located in New York, New York which on the date of this Declaration is
450 West 33rd Street, New York, New York 10001 -Attention: Capital Markets
Fiduciary Services, (ii) when used with respect to the Debenture Trustee, its
Principal Corporate Trust Office as defined in the Indenture, and (iii) when
used with respect to the Bank, the principal office of the Bank located in
Chicago, Illinois which on the date of this Declaration is 1 Bank One Plaza,
Chicago, Illinois 60670 - Attention: Corporate Trust Administration.
"Covered Person" means: (a) any officer, director, shareholder,
--------------
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates; and (b) any Holder of Securities.
"Debenture Issuer" means BANK ONE CORPORATION, a Delaware corporation,
----------------
or any successor entity resulting from any consolidation, amalgamation, merger
or other business combination, in its capacity as issuer of the Debentures under
the Indenture.
"Debenture Trustee" means The Chase Manhattan Bank, a New York banking
-----------------
corporation, as trustee under the Indenture until a successor is appointed
thereunder, and thereafter means such successor trustee.
"Debentures" means the series of Debentures to be issued by the
----------
Debenture Issuer under the Indenture to be held by the Institutional Trustee, a
specimen certificate for such series of Debentures being Exhibit B.
---------
"Delaware Trustee" has the meaning set forth in Section 5.2.
----------------
"Definitive Preferred Security Certificates" has the meaning set forth
------------------------------------------
in Section 9.4.
"Distribution" means a distribution payable to Holders of Securities
------------
in accordance with Section 6.1.
"DTC" means The Depository Trust Company, the initial Clearing Agency.
---
"Event of Default" or "Declaration Event of Default" in respect of the
---------------- ----------------------------
Securities means an Event of Default (as defined in the Indenture) has occurred
and is continuing in respect of the Debentures.
4
<PAGE>
"Exchange Act" means the Securities Exchange Act of 1934, as amended
------------
from time to time, or any successor legislation.
"Federal Reserve" means the Board of Governors of the Federal Reserve
---------------
System.
"Fiduciary Indemnified Person" has the meaning set forth in Section
----------------------------
10.4(b).
"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 January 1, 1997, among the
---------
Debenture Issuer and the Debenture Trustee, and any indenture supplemental
thereto pursuant to which the Debentures are to be issued.
"Institutional Trustee" means the Trustee meeting the eligibility
---------------------
requirements set forth in Section 5.3.
"Institutional Trustee Account" has the meaning set forth in Section
-----------------------------
3.8(c).
"Investment Company" means an investment company as defined in the
------------------
Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940, as
----------------------
amended from time to time, or any successor legislation.
"Investment Company Event" has the meaning set forth in Annex I
------------------------ -------
hereto.
"Legal Action" has the meaning set forth in Section 3.6(g).
------------
"Majority in liquidation amount of the Securities" means, except as
------------------------------------------------
provided in the terms of the Preferred Securities or by the Trust Indenture Act,
Holder(s) of outstanding Securities voting together as a single class or, as the
context may require, Holders of outstanding Preferred Securities or Holders of
outstanding Common Securities voting separately as a class, who are the record
owners of more than 50% of the aggregate liquidation amount (including the
stated amount that would be paid on redemption, liquidation or otherwise, plus
accrued and unpaid Distributions to the date upon which the voting percentages
are determined) of all outstanding Securities of the relevant class.
5
<PAGE>
"1997 Declaration" means that certain Amended and Restated Declaration
----------------
of Trust relating to First Chicago NBD Capital I, dated as of January 31, 1997,
by and among the Sponsor, The Chase Manhattan Bank, as Institutional Trustee,
Chase Manhattan Bank Delaware, as Delaware Trustee, and the Regular Trustees
named therein.
"1997 Guarantee" means that certain Preferred Securities Guarantee
--------------
between, dated as of January 31, 1997, by and between the Sponsor and The Chase
Manhattan Bank, as trustee.
"Officers' Certificate" means, with respect to any Person, a
---------------------
certificate signed by two Authorized Officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Declaration shall include:
(a) a statement that each officer signing the Officer's Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officer's
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Paying Agent" has the meaning specified in Section 3.8(h).
------------
"Person" means a legal person, including any individual, corporation,
------
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Preferred Securities" has the meaning specified in Section 7.1(a).
--------------------
"Preferred Securities Guarantee" means the guarantee agreement to be
------------------------------
dated as of September 20, 1999, 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 Clearing Agency, or on the books of a
Person maintaining an account with such Clearing Agency (directly as a Clearing
Agency Participant or as an indirect participant, in each case in accordance
with the rules of such Clearing Agency).
6
<PAGE>
"Preferred Security Certificate" means a certificate representing a
------------------------------
Preferred Security substantially in the form of Exhibit A-1.
-----------
"Quorum" means a majority of the Regular Trustees or, if there are
------
only two Regular Trustees, both of them.
"Regular Trustee" has the meaning set forth in Section 5.1.
---------------
"Related Party" means, with respect to the Sponsor, any direct or
-------------
indirect wholly owned subsidiary of the Sponsor or any other Person that owns,
directly or indirectly, 100% of the outstanding voting securities of the
Sponsor.
"Responsible Officer" means, when used with respect to the
-------------------
Institutional Trustee or the Delaware Trustee, as the case may be, any officer
assigned to the Corporate Trust Office of the Institutional Trustee or the
corporate trust office of the Delaware Trustee, as the case may be, including
any managing director, vice president, assistant vice president, senior trust
officer, trust officer, assistant treasurer, assistant secretary or any other
officer of the Institutional Trustee or the Delaware Trustee, as the case may
be, customarily performing functions similar to those performed by any of the
above designated officers, and also, with respect to a particular matter, any
other officer, to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act or any
---------
successor rule or regulation.
"Securities" means the Common Securities and the Preferred Securities.
----------
"Securities Act" means the Securities Act of 1933, as amended from
--------------
time to time or any successor legislation.
"Securities Guarantees" means the Common Securities Guarantee and the
---------------------
Preferred Securities Guarantee.
"Securities Register" has the meaning set forth in Section 9.2.
-------------------
"Securities Registrar" has the meaning set forth Section 9.2.
--------------------
"Series A Declaration" means that certain Amended and Restated Trust
--------------------
Agreement relating to First Chicago NBD Institutional Capital A, dated as of
December 3, 1996, by and among, the Sponsor, The Chase Manhattan Bank, as
property trustee, and Chase Manhattan Bank Delaware, as Delaware trustee.
7
<PAGE>
"Series B Declaration" means that certain Amended and Restated Trust
--------------------
Agreement relating to First Chicago NBD Institutional Capital B, dated as of
December 5, 1996, by and among, the Sponsor, The Chase Manhattan Bank, as
property trustee, and Chase Manhattan Bank Delaware, as Delaware trustee.
"Series A Guarantee" means that certain Guarantee Agreement, dated as
------------------
of December 3, 1996, by and between the Sponsor and The Chase Manhattan Bank, as
trustee.
"Series B Guarantee" means that certain Guarantee Agreement, dated as
------------------
of December 5, 1996, by and between the Sponsor and The Chase Manhattan Bank, as
trustee.
"Special Event" has the meaning set forth in Annex I hereto.
------------- -------
"Sponsor" means BANK ONE CORPORATION, a Delaware corporation, or any
-------
successor entity resulting from any merger, consolidation, amalgamation or other
business combination, in its capacity as sponsor of the Trust.
"Successor Institutional Trustee" has the meaning set forth in Section
-------------------------------
3.8(f)(ii).
"Super Majority" has the meaning set forth in Section 2.6(a)(ii).
--------------
"Tax Event" has the meaning set forth in Annex I hereto.
---------
"10% in liquidation amount of the Securities" means, except as
-------------------------------------------
provided in the terms of the Preferred Securities or by the Trust Indenture Act,
Holder(s) of outstanding Securities voting together as a single class or, as the
context may require, Holders of outstanding Preferred Securities or Holders of
outstanding Common Securities voting separately as a class, who are the record
owners of 10% or more of the aggregate liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus accrued
and unpaid Distributions to the date upon which the voting percentages are
determined) of all outstanding Securities of the relevant class.
"Treasury Regulations" means the income tax regulations, including
--------------------
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Trustee" or "Trustees" means each Person who has signed this
------- --------
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
8
<PAGE>
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
-------------------
amended from time to time, or any successor legislation.
"Underwriting Agreement" means the Underwriting Agreement for the
----------------------
offering and sale of Preferred Securities in the form of Exhibit C.
---------
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
--------------------------------
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required to be part of this Declaration and shall, to the
extent applicable, be governed by such provisions.
(b) The Institutional Trustee shall be the only Trustee which is a
Trustee for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this Declaration
limits, qualifies or conflicts with the duties imposed by (S)(S) 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this Declaration
shall not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
SECTION 2.2 Lists of Holders of Securities.
------------------------------
(a) Each of the Sponsor and the Regular Trustees on behalf of the
Trust shall provide the Institutional Trustee (i) within 14 days after each
record date for payment of Distributions, a list, in such form as the
Institutional Trustee may reasonably require, of the names and addresses of the
Holders of the Securities ("List of Holders") as of such record date, provided
--------------- --------
that neither the Sponsor nor the Regular Trustees on behalf of the Trust shall
- ----
be obligated to provide such List of Holders at any time the List of Holders
does not differ from the most recent List of Holders given to the Institutional
Trustee by the Sponsor and the Regular Trustees on behalf of the Trust, and (ii)
at any other time, within 30 days of receipt by the Trust of a written request
for a List of Holders as of a date no more than 14 days before such List of
Holders is given to the Institutional Trustee. The Institutional Trustee shall
preserve, in as current a form as is reasonably practicable, all information
contained in Lists of Holders given to it or which it receives in the capacity
as Paying Agent (if acting in such capacity) provided that the Institutional
-------- ----
Trustee may destroy any List of Holders previously given to it on receipt of a
new List of Holders.
9
<PAGE>
(b) The Institutional Trustee shall comply with its obligations under
(S)(S) 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Institutional Trustee.
------------------------------------
Within 60 days after November 15 of each year commencing in 1999, the
Institutional Trustee shall provide to the Holders of the Preferred Securities
such reports as are required by (S) 313(a) of the Trust Indenture Act, if any,
in the form and in the manner provided by (S) 313 of the Trust Indenture Act.
The Institutional Trustee shall also comply with the other requirements of (S)
313 of the Trust Indenture Act. The Sponsor shall promptly notify the
Institutional Trustee when the Preferred Securities are listed on any stock
exchange.
SECTION 2.4 Periodic Reports to Institutional Trustee.
-----------------------------------------
Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide to the Institutional Trustee such documents, reports and
information as required by (S) 314 of the Trust Indenture Act (if any) and the
compliance certificate required by (S) 314 of the Trust Indenture Act in the
form, in the manner and at the times required by (S) 314(a)(4) of the Trust
Indenture Act, such compliance certificate to be delivered annually on or before
120 days after the end of each fiscal year of the Sponsor.
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 (S) 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to (S)
314(c)(1) of the Trust Indenture Act may be given in the form of an Officers'
Certificate.
SECTION 2.6 Events of Default; Waiver.
-------------------------
(a) The Holders of a Majority in liquidation amount of Preferred
Securities may, by vote, on behalf of the Holders of all of the Preferred
Securities, waive any past Event of Default in respect of the Preferred
Securities and its consequences, provided that, if the underlying Event of
-------- ----
Default under the Indenture:
(i) is not waivable under the Indenture, the Event of Default under
the Declaration shall also not be waivable; or
(ii requires the consent or vote of greater than a majority in
principal amount of the holders of the Debentures (a "Super Majority") to
--------------
be waived under the Indenture, the
10
<PAGE>
Event of Default under the Declaration may only be waived by the vote of
the Holders of at least the proportion in liquidation amount of the
Preferred Securities that the relevant Super Majority represents of the
aggregate principal amount of the Debentures outstanding.
The foregoing provisions of this Section 2.6(a) shall be in lieu of (S)
316(a)(1)(B) of the Trust Indenture Act and such (S) 316(a)(1)(B) of the Trust
Indenture Act is hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act. Upon such waiver, any such
default shall cease to exist, and any Event of Default with respect to the
Preferred Securities arising therefrom shall be deemed to have been cured, for
every purpose of this Declaration, but no such waiver shall extend to any
subsequent or other default or an Event of Default with respect to the Preferred
Securities or impair any right consequent thereon. Any waiver by the Holders of
the Preferred Securities of an Event of Default with respect to the Preferred
Securities shall also be deemed to constitute a waiver by the Holders of the
Common Securities of any such Event of Default with respect to the Common
Securities for all purposes of this Declaration without any further act, vote,
or consent of the Holders of the Common Securities.
The Holders of a Majority in liquidation amount of the Preferred
Securities shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Institutional Trustee
or to direct the exercise of any trust or power conferred upon the Institutional
Trustee, including the right to direct the Institutional Trustee to exercise the
remedies available to it as a holder of the Debentures; provided, however, that
--------
(subject to the provisions of Section 3.9) the Institutional Trustee shall have
the right to decline to follow any such direction if the Institutional Trustee
shall determine that the action so directed would be unjustly prejudicial to the
Holders not taking part in such direction or if the Institutional Trustee, being
advised by counsel, determines that the action or proceeding so directed may not
lawfully be taken or if the Institutional Trustee, in good faith, by its board
of directors or trustees, executive committee, or a trust committee of directors
or trustees, and/or Responsible Officers, shall determine that the action or
proceeding so directed would involve the Institutional Trustee in personal
liability.
(b) The Holders of a Majority in liquidation amount of the Common
Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, provided that, if the underlying Event of
-------- ----
Default under the Indenture:
(i) is not waivable under the Indenture, except where the Holders of
the Common Securities are deemed to have waived such Event of Default under
the Declaration as pro vided below in this Section 2.6(b), the Event of
Default under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of a Super Majority to be waived,
except where the Holders of the Common Securities are deemed to have waived
such Event of Default under the Declaration as provided below in this
Section 2.6(b), the Event of Default under
11
<PAGE>
the Declaration may only be waived by the vote of the Holders of at least
the proportion in liquidation amount of the Common Securities that the
relevant Super Majority represents of the aggregate principal amount of the
Debentures outstanding;
provided further, each Holder of Common Securities will be deemed to have waived
- -------- -------
any such Event of Default and all Events of Default with respect to the Common
Securities and its consequences until all Events of Default with respect to the
Preferred Securities have been cured, waived or otherwise eliminated, and
until such Events of Default have been so cured, waived or otherwise eliminated,
the Institutional Trustee will be deemed to be acting solely on behalf of
the Holders of the Preferred Securities and only the Holders of the Preferred
Securities will have the right to direct the Institutional Trustee in accordance
with the terms of the Securities. The foregoing provisions of this Section
2.6(b) shall be in lieu of (S)(S) 316(a)(1)(A) and 316(a)(1)(B) of the Trust
Indenture Act and such (S)(S) 316(a)(1)(A) and 316(a)(1)(B) of the Trust
Indenture Act are hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act. Subject to the foregoing
provisions of this Section 2.6(b), upon such waiver, any such default shall
cease to exist and any Event of Default with respect to the Common Securities
arising therefrom shall be deemed to have been cured for every purpose of this
Declaration, but no such waiver shall extend to any subsequent or other default
or Event of Default with respect to the Common Securities or impair any right
consequent thereon.
(c) A waiver of an Event of Default under the Indenture by the
Institutional Trustee at the direction of the Holders of the Preferred
Securities, constitutes a waiver of the corresponding Event of Default under
this Declaration. The foregoing provisions of this Section 2.6(c) shall be in
lieu of (S) 316(a)(1)(B) of the Trust Indenture Act and such (S) 316(a)(1)(B) of
the Trust Indenture Act is hereby expressly excluded from this Declaration and
the Securities, as permitted by the Trust Indenture Act.
SECTION 2.7 Event of Default; Notice.
------------------------
(a) The Institutional Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders of the Securities, notices of all defaults with respect
to the Securities actually known to a Responsible Officer of the Institutional
Trustee, unless such defaults have been cured before the giving of such notice
(the term "defaults" for the purposes of this Section 2.7(a) being hereby
--------
defined to be an Event of Default as defined in the Indenture, not including any
periods of grace provided for therein and irrespective of the giving of any
notice provided therein); provided that, except for a default in the payment of
-------- ----
principal of (or premium, if any) or interest on any of the Debentures or in the
payment of any sinking fund installment established for the Debentures, the
Institutional Trustee shall be protected in withholding such notice if and so
long as a Responsible Officer of the Institutional Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders of the Securities.
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(b) The Institutional Trustee shall not be deemed to have knowledge of
any default except:
(i) so long as the Institutional Trustee is a Paying Agent, a default
under Sections 7.01(i) and 7.01(ii) of the Indenture; or
(ii) any default as to which the Institutional Trustee shall have
received written notice or of which a Responsible Officer of the
Institutional Trustee charged with the administration of the Declaration
shall have actual knowledge.
ARTICLE III
ORGANIZATION
SECTION 3.1 Name.
----
The Trust is named "BANK ONE Capital I", as such name may be modified
from time to time by the Regular Trustees following written notice to the
Holders of Securities. The Trust's activities may be conducted under the name
of the Trust or any other name deemed advisable by the Regular Trustees.
SECTION 3.2 Office.
------
The address of the principal office of the Trust is c/o BANK ONE
CORPORATION, 1 Bank One Plaza, Chicago, Illinois 60670. On ten Business Days
written notice to the Holders of Securities, the Regular Trustees may designate
another principal office.
SECTION 3.3 Purpose.
-------
The exclusive purposes and functions of the Trust are (a) to issue and
sell Securities and use the proceeds from such sale to acquire the Debentures,
and (b) except as otherwise limited herein, to engage in only those other
activities necessary, or incidental thereto. The Trust shall not borrow money,
issue debt or reinvest proceeds derived from investments, pledge any of its
assets, or otherwise undertake (or permit to be undertaken) any activity that
would cause the Trust not to be classified for United States federal income tax
purposes as a grantor trust.
SECTION 3.4 Authority.
---------
Subject to the limitations provided in this Declaration and to the
specific duties of the Institutional Trustee, the Regular Trustees shall have
exclusive and complete authority to carry out the purposes of the Trust. An
action taken by the Regular Trustees in accordance with their powers shall
constitute the act of and serve to bind the Trust and an action taken by the
Institutional Trustee
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on behalf of the Trust in accordance with its powers shall constitute the act of
and serve to bind the Trust. In dealing with the Trustees acting on behalf of
the Trust, no Person shall be required to inquire into the authority of the
Trustees to bind the Trust. Persons dealing with the Trust are entitled to rely
conclusively on the power and authority of the Trustees as set forth in this
Declaration.
SECTION 3.5 Title to Property of the Trust.
------------------------------
Except as provided in Section 3.8 with respect to the Debentures and
the Institutional Trustee Account or as otherwise provided in this Declaration,
legal title to all assets of the Trust shall be vested in the Trust. The
Holders shall not have legal title to any part of the assets of the Trust, but
shall have an undivided beneficial interest in the assets of the Trust.
SECTION 3.6 Powers and Duties of the Regular Trustees.
-----------------------------------------
The Regular Trustees shall have the exclusive power, duty and
authority to cause the Trust to engage in the following activities:
(a) to issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however, that the
-------- -------
Trust may issue no more than one series of Preferred Securities and no more
than one series of Common Securities, and, provided further, that there
-------- -------
shall be no interests in the Trust other than the Securities, and the
issuance of Securities shall be limited to a simultaneous issuance of both
Preferred Securities and Common Securities on the Closing Date;
(b) in connection with the issue and sale of the Preferred Securities,
at the direction of the Sponsor, to:
(i) execute and file with the Commission the registration
statement on Form S-3 prepared by the Sponsor, including any
amendments thereto, pertaining to the Preferred Securities;
(ii) execute and file any documents prepared by the Sponsor, or
take any acts as determined by the Sponsor to be necessary in order to
qualify or register all or part of the Preferred Securities in any
State in which the Sponsor has determined to qualify or register such
Preferred Securities for sale;
(iii) execute and file an application, prepared by the Sponsor,
to the New York Stock Exchange, Inc. or any other national stock
exchange or the Nasdaq Stock Market's National Market for listing upon
notice of issuance of any Preferred Securities;
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(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 Underwriting Agreement providing
for the sale of the Preferred Securities; and
(vi) to execute and file any agreement, certificate or other
document which such Regular Trustee deems necessary or appropriate in
connection with the issuance and sale of the Preferred Securities;
(c) to acquire the Debentures with the proceeds of the sale of the
Preferred Securities and the Common Securities; provided, however, that the
-------- -------
Regular Trustees shall cause legal title to the Debentures to be held of
record in the name of the Institutional Trustee for the benefit of the
Holders of the Preferred Securities and the Holders of Common Securities.
(d) to give the Sponsor and the Institutional Trustee prompt written
notice of the occurrence of a Special Event;
(e) to establish a record date with respect to all actions to be taken
hereunder that require a record date be established, including and with
respect to, for the purposes of (S)316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue
relevant notices to the Holders of Preferred Securities and Holders of
Common Securities as to such actions and applicable record dates;
(f) to take all actions and perform such duties as may be required of
the Regular Trustees pursuant to the terms of the Securities;
(g) to bring or defend, pay, collect, compromise, arbitrate, resort to
legal action, or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 3.8(e), the Institutional
------------
Trustee has the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors,
and consultants and pay reason able compensation for such services;
(i) to cause the Trust to comply with the Trust's obligations under
the Trust Indenture Act;
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(j) to give the certificate required by (S) 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) if duly appointed pursuant to the provisions herein, to act as
registrar, transfer agent or Paying Agent for the Securities;
(m) to give prompt written notice to the Holders of the Securities of
any notice received from the Debenture Issuer of its election to defer
payments of interest on the Debentures by extending the interest payment
period under the Indenture;
(n) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing;
(o) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of
the State of Delaware and of each other jurisdiction in which such
existence is necessary to protect the limited liability of the Holders of
the Preferred Securities or to enable the Trust to effect the purposes for
which the Trust was created;
(p) to take any action, not inconsistent with this Declaration or with
applicable law, that the Regular Trustees determine in their discretion to
be necessary or desirable in carrying out the activities of the Trust as
set out in this Section 3.6, including, but not limited to:
(i) causing the Trust not to be deemed to be an Investment
Company required to be registered under the Investment Company Act;
(ii) causing the Trust to be classified for United States federal
income tax purposes as a grantor trust; and
(iii) cooperating with the Debenture Issuer to ensure that the
Debentures will be treated as indebtedness of the Debenture Issuer for
United States federal income tax purposes,
provided that such action does not adversely affect the interests of
-------- ----
Holders; and
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(q) to take all action necessary to cause all applicable tax returns
and tax information reports that are required to be filed with respect to
the Trust to be duly prepared and filed by the Regular Trustees, on behalf
of the Trust.
The Regular Trustees must exercise the powers set forth in this
Section 3.6 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Regular Trustees shall not take any
action that is inconsistent with the purposes and functions of the Trust set
forth in Section 3.3.
Subject to this Section 3.6, the Regular Trustees shall have none of
the powers or the authority of the Institutional Trustee set forth in Section
3.8.
Any expenses incurred by the Regular Trustees pursuant to this Section
3.6 shall be reimbursed by the Debenture Issuer.
The Regular Trustees shall take all actions on behalf of the Trust
that are not specifically required by this Declaration to be taken by any other
Trustee.
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees.
----------------------------------------------------
(a) The Trust shall not, and the Trustees (including the Institutional
Trustee) shall not, engage in any activity other than as required or authorized
by this Declaration. In particular, the Trust shall not and the Trustees
(including the Institutional Trustee) shall cause the Trust not to:
(i) invest any proceeds received by the Trust from holding the
Debentures, but shall distribute all such proceeds to Holders of Securities
pursuant to the terms of this Declaration and of the Securities;
(ii) acquire any assets other than as expressly provided herein;
(iii) possess Trust property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness other than loans
represented by the Debentures;
(v) possess any power or otherwise act in such a way as to vary the
Trust assets or the terms of the Securities in any way whatsoever;
(vi) issue any securities or other evidences of beneficial ownership
of, or beneficial interest in, the Trust other than the Securities; or
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(vii) other than as provided in this Declaration or Annex I, (A)
-------
direct the time, method and place of exercising any trust or power conferred
upon the Debenture Trustee with respect to the Debentures, (B) waive any past
default that is waivable under the Indenture, (C) exercise any right to rescind
or annul any declaration that the principal of all the Debentures shall be due
and payable, or (D) consent to any amendment, modification or termination of the
Indenture or the Debentures where such consent shall be required unless the
Trust shall have received an opinion of a nationally recognized independent
counsel experienced in such matters to the effect that such modification will
not cause more than an insubstantial risk that for United States federal income
tax purposes the Trust will not be classified as a grantor trust.
SECTION 3.8 Powers and Duties of the Institutional Trustee.
----------------------------------------------
(a) The legal title to the Debentures shall be owned by and held of
record in the name of the Institutional Trustee in trust for the benefit of the
Holders of the Securities. The right, title and interest of the Institutional
Trustee to the Debentures shall vest automatically in each Person who may
hereafter be appointed as Institutional Trustee in accordance with Section 5.7.
Such vesting and cessation of title shall be effective whether or not
conveyancing documents with regard to the Debentures have been executed and
delivered.
(b) The Institutional Trustee shall not transfer its right, title and
interest in the Debentures to the Regular Trustees or to the Delaware Trustee
(if the Institutional Trustee does not also act as Delaware Trustee).
(c) The Institutional Trustee shall:
(i) establish and maintain a segregated non-interest bearing trust
account (the "Institutional Trustee Account") in the name of and under the
-----------------------------
exclusive control of the Institutional Trustee on behalf of the Holders of
the Securities and, upon the receipt of payments of funds made in respect
of the Debentures held by the Institutional Trustee, deposit or cause to be
deposited such funds into the Institutional Trustee Account and make or
cause to be made payments to the Holders of the Preferred Securities and
Holders of the Common Securities from the Institutional Trustee Account
in accordance with Section 6.1. Funds in the Institutional Trustee Account
shall be held uninvested until disbursed in accordance with this
Declaration. The Institutional Trustee Account shall be maintained with
the Bank in its trust department so long as the Bank is a Paying Agent; if
the Bank is not a Paying Agent, the Institutional Trustee Account will be
maintained at the Institutional Trustee or at its direction. The
Institutional Trustee shall not be liable to any Person for the acts or
omissions of the Bank in connection with the administration of the
Institutional Trustee Account, unless such acts or omissions were taken or
made at the express instructions of the Institutional Trustee. The Sponsor
shall cause the Bank to (i) promptly advise the Institutional Trustee of
all deposits and withdrawals from the Institutional Trustee Account and of
any failure by the Bank to receive from the Debenture Issuer any payments
on the Debentures when due,
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(ii) provide the Institutional Trustee with monthly reports as to the
activity in the Institutional Trustee Account and (iii) permit the
Institutional Trustee to have access to the Bank's records with respect to
the Institutional Trustee Account upon reasonable request therefor;
(ii) engage in such ministerial activities as shall be necessary or
appropriate to effect the redemption of the Preferred Securities and the
Common Securities to the extent the Debentures are redeemed or mature; and
(iii) upon written notice of distribution issued by the Regular
Trustees in accordance with the terms of the Securities, engage in such
ministerial activities as shall be necessary or appropriate to effect the
distribution of the Debentures to Holders of Securities upon the occurrence
of certain special events (as may be defined in the terms of the
Securities) arising from a change in law or a change in legal
interpretation or other specified circumstances pursuant to the terms of
the Securities.
(d) The Institutional Trustee shall take all actions and perform such
duties as may be specifically required of the Institutional Trustee pursuant to
the terms of the Securities.
(e) The Institutional Trustee may take any Legal Action which arises
out of or in connection with an Event of Default of which a Responsible Officer
of the Institutional Trustee has knowledge or the Institutional Trustee's duties
and obligations under this Declaration or the Trust Indenture Act and if such
Institutional Trustee shall have failed to take such Legal Action after a
written request from a Holder of the Preferred Securities, then such Holder of
the Preferred Securities may take such Legal Action, to the same extent as if
such Holders of Preferred Securities held a principal amount of Debentures equal
to the liquidation amount of such Preferred Securities, without first proceeding
against the Institutional Trustee or the Trust; provided, however, that if an
-------- -------
Event of Default has occurred and is continuing and such event is attributable
to the failure of the Debenture Issuer to pay interest or principal on the
Debentures on the date such interest or principal is otherwise payable (or in
the case of redemption, on the redemption date), then a Holder of Preferred
Securities may directly institute a proceeding for enforcement of payment to
such Holder of the principal of or interest on the Debentures having a principal
amount equal to the aggregate liquidation amount of the Preferred Securities of
such Holder (a "Direct Action") on or after the respective due date specified in
-------------
the Debentures. In connection with such Direct Action, the rights of the
Holders of the Common Securities will be subrogated to the rights of such Holder
of Preferred Securities to the extent of any payment made by the Issuer to such
Holder of Preferred Securities in such Direct Action. Except as provided in the
preceding sentences, the Holders of Preferred Securities will not be able to
exercise directly any other remedy available to the holders of the Debentures.
(f) The Institutional Trustee shall not resign as a Trustee unless
either:
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(i) the Trust has been completely liquidated and the proceeds of the
liquidation distributed to the Holders of Securities pursuant to the terms
of the Securities; or
(ii) a successor Institutional Trustee has been appointed and has
accepted that appointment in accordance with Section 5.7 (a "Successor
---------
Institutional Trustee").
---------------------
(g) The Institutional Trustee shall have the legal power to exercise
all of the rights, powers and privileges of a holder of Debentures under the
Indenture and, if an Event of Default actually known to a Responsible Officer of
the Institutional Trustee occurs and is continuing, the Institutional Trustee
shall, for the benefit of Holders of the Securities, enforce its rights as
holder of the Debentures subject to the rights of the Holders pursuant to the
terms of such Securities.
(h) The Institutional Trustee may authorize one or more Persons (each,
a "Paying Agent") to pay Distributions, redemption payments or liquidation
------------
payments on behalf of the Trust with respect to all securities and any such
Paying Agent shall comply with (S) 317(b) of the Trust Indenture Act. Any
Paying Agent may be removed by the Institutional Trustee at any time and a
successor Paying Agent or additional Paying Agents may be appointed at any time
by the Institutional Trustee.
(i) Subject to this Section 3.8, the Institutional Trustee shall have
none of the duties, liabilities, powers or the authority of the Regular Trustees
set forth in Section 3.6.
The Institutional Trustee must exercise the powers set forth in this
Section 3.8 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Institutional Trustee shall not take
any action that is inconsistent with the purposes and functions of the Trust set
out in Section 3.3.
SECTION 3.9 Certain Duties and Responsibilities of the Institutional Trustee.
----------------------------------------------------------------
(a) The Institutional Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Declaration and in the Securities and no implied covenants shall be read
into this Declaration against the Institutional Trustee. In case an Event of
Default has occurred (that has not been cured or waived pursuant to Section 2.6)
of which a Responsible Officer of the Institutional Trustee has actual
knowledge, the Institutional Trustee shall exercise such of the rights and
powers vested in it by this Declaration, and use the same degree of care and
skill in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(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:
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(i) prior to the occurrence of an Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Institutional Trustee shall
be determined solely by the express provisions of this Declaration
and in the Securities and the Institutional Trustee shall not be
liable except for the performance of such duties and obligations as
are specifically set forth in this Declaration and in the Securities,
and no implied covenants or obligations shall be read into this
Declaration or the Securities against the Institutional Trustee; and
(B) in the absence of bad faith on the part of the Institutional
Trustee, the Institutional Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the
Institutional Trustee and conforming to the requirements of this
Declaration; but in the case of any such certificates or opinions that
by any provision hereof are specifically required to be furnished to
the Institutional Trustee, the Institutional Trustee shall be under a
duty to examine the same to determine whether or not they conform to
the requirements of this Declaration;
(ii) the Institutional Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Institutional
Trustee, unless it shall be proved that the Institutional Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Institutional Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of not less than a Majority in liquidation
amount of the Preferred Securities relating to the time, method and place
of conducting any proceeding for any remedy available to the Institutional
Trustee, or exercising any trust or power conferred upon the Institutional
Trustee under this Declaration;
(iv) no provision of this Declaration shall require the Institutional
Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Declaration or indemnity
reasonably satisfactory to the Institutional Trustee against such risk or
liability is not reasonably assured to it;
(v) the Institutional Trustee's sole duty with respect to the custody,
safe keeping and physical preservation of the Debentures and the
Institutional Trustee Account shall be to deal with such property in a
similar manner as the Institutional Trustee deals with similar
21
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property for its own account, subject to the protections and limitations on
liability afforded to the Institutional Trustee under this Declaration and
the Trust Indenture Act;
(vi) the Institutional Trustee shall have no duty or liability for or
with respect to the value, genuineness, existence or sufficiency of the
Debentures or the payment of any taxes or assessments levied thereon or in
connection therewith;
(vii) the Institutional Trustee shall not be liable for any interest on
any money received by it except as it may otherwise agree in writing with
the Sponsor. Money held by the Institutional Trustee need not be
segregated from other funds held by it except in relation to the
Institutional Trustee Account maintained by the Institutional Trustee
pursuant to Section 3.8(c)(i) and except to the extent otherwise required
by law; and
(viii) the Institutional Trustee shall not be responsible for monitoring
the compliance by the Regular Trustees or the Sponsor with their respective
duties under this Declaration, nor shall the Institutional Trustee be
liable for any default or misconduct of the Regular Trustees or the
Sponsor.
SECTION 3.10 Certain Rights of Institutional Trustee.
---------------------------------------
(a) Subject to the provisions of Section 3.9:
(i) the Institutional Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and to
have been signed, sent or presented by the proper party or parties;
(ii) any direction or act of the Sponsor or the Regular Trustees
contemplated by this Declaration shall be sufficiently evidenced by an
Officers' Certificate;
(iii) whenever in the administration of this Declaration, the
Institutional Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder, the
Institutional Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
conclusively rely upon an Officers' Certificate 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;
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(v) the Institutional Trustee may consult with counsel or other
experts of its selection and the advice or opinion of such counsel and
experts with respect to legal matters or advice within the scope of such
experts' area of expertise shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with such advice or opinion, such
counsel may be counsel to the Sponsor or any of its Affiliates, and may
include any of its employees. The Institutional Trustee shall have the
right at any time to seek instructions concerning the administration of
this Declaration from any court of competent jurisdiction;
(vi) the Institutional Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Declaration at
the request or direction of any Holder, unless such Holder shall have
provided to the Institutional Trustee security and indemnity, reasonably
satisfactory to the Institutional Trustee, against the costs, expenses
(including attorneys' fees and expenses and the expenses of the
Institutional Trustee's agents, nominees or custodians) and liabilities
that might be incurred by it in complying with such request or direction,
including such reasonable advances as may be requested by the Institutional
Trustee provided, that, nothing contained in this Section 3.10(a)(vi) shall
be taken to relieve the Institutional Trustee, upon the occurrence of an
Event of Default, of its obligation to exercise the rights and powers
vested in it by this Declaration;
(vii) the Institutional Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Institutional Trustee, in
its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit;
(viii) the Institutional Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents, custodians, nominees or attorneys and the Institutional Trustee
shall not be responsible for any misconduct or negligence on the part of
any agent or attorney appointed with due care by it hereunder;
(ix) any action taken by the Institutional Trustee or its agents
hereunder shall bind the Trust and the Holders of the Securities, and the
signature of the Institutional Trustee or its agents alone shall be
sufficient and effective to perform any such action and no third party
shall be required to inquire as to the authority of the Institutional
Trustee to so act or as to its compliance with any of the terms and
provisions of this Declaration, both of which shall be conclusively
evidenced by the Institutional Trustee's or its agent's taking such action;
(x) whenever in the administration of this Declaration the
Institutional Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Institutional Trustee (i) may request instructions from the
Holders of the Securities which instructions may only be given by the
Holders of the same proportion in liquidation amount of the Securities as
would be entitled to direct the
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Institutional Trustee under the terms of the Securities in respect of such
remedy, right or action, (ii) may refrain from enforcing such remedy or
right or taking such other action until such instructions are received, and
(iii) shall be protected in conclusively relying on or acting in or
accordance with such instructions;
(xi) except as otherwise expressly provided by this Declaration, the
Institutional Trustee shall not be under any obligation to take any action
that is discretionary under the provisions of this Declaration; and
(xii) the Institutional Trustee shall not be liable for any action
taken, suffered, or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Declaration.
(b) No provision of this Declaration shall be deemed to impose any
duty or obligation on the Institutional Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Institutional Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Institutional
Trustee shall be construed to be a duty.
SECTION 3.11 Delaware Trustee.
----------------
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 (S) 3807 of the
Business Trust Act. It is expressly understood and agreed by the parties hereto
that in fulfilling its obligations as Delaware Trustee hereunder on behalf of
the Trust (i) any agreements or instruments executed and delivered by Chase
Manhattan Bank Delaware are executed and delivered not in its individual
capacity but solely as Delaware Trustee under this Declaration in the exercise
of the powers and authority conferred and vested in it, (ii) each of the
representations, undertakings and agreements herein made on the part of the
Trust is made and intended not as representations, warranties, covenants,
undertakings and agreements by Chase Manhattan Bank Delaware in its individual
capacity but is made and intended for the purpose of binding only the Trust, and
(iii) under no circumstances shall Chase Manhattan Bank Delaware in its
individual capacity be personally liable for the payment of any indebtedness or
expenses of the Trust or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Trust under this
Declaration, except if such breach or failure is due to any gross negligence or
willful misconduct of the Delaware Trustee.
SECTION 3.12 Execution of Documents.
----------------------
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Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act or provided herein, any Regular
Trustee is authorized to execute on behalf of the Trust any documents that the
Regular Trustees have the power and authority to execute pursuant to Section
3.6.
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained in this Declaration and the Securities shall be
taken as the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as to
the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this
Declaration, the Debentures or the Securities.
SECTION 3.14 Duration of Trust.
-----------------
The Trust, unless terminated pursuant to the provisions of Article
VIII hereof, shall have existence for fifty-five (55) years from the Closing
Date.
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 of the Securities, the Delaware Trustee or the
Institutional Trustee, consolidate, amalgamate, merge with or into, or be
replaced by, or convey, transfer or lease its property and assets substantially
as an entirety, a trust organized as such under the laws of any State; provided
--------
that:
- ----
(i) such successor entity (the "Successor Entity") either:
----------------
(A) expressly assumes all of the obligations of the Trust under
the Securities; or
(B) substitutes for the Securities other securities having
substantially the same terms as the Securities (the "Successor
---------
Securities") so long as the Successor Securities rank the same as the
----------
Securities rank with respect to Distributions and payments upon
liquidation, redemption and otherwise;
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(ii) the Debenture Issuer expressly acknowledges a trustee of the
Successor Entity that possesses the same powers and duties as the
Institutional Trustee as the holder of the Debentures;
(iii) the Preferred Securities or any Successor Securities are listed,
or any Successor Securities will be listed upon notification of issuance,
on any national securities exchange or with another organization on which
the Preferred Securities are then listed or quoted;
(iv) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause the Preferred Securities
(including any Successor Securities) to be downgraded by any nationally
recognized statistical rating organization;
(v) such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not adversely affect the rights, preferences and
privileges of the Holders of the Securities (including any Successor
Securities) in any material respect (other than with respect to any
dilution of such Holders' interests in the new entity);
(vi) such Successor Entity has a purpose identical to that of the
Trust;
(vii) prior to such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease the Sponsor has received an opinion of a
nationally recognized independent counsel to the Trust experienced in such
matters to the effect that:
(A) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the Holders of the Securities (including
any Successor Securities) in any material respect (other than with
respect to any dilution of the Holders' interest in the new entity);
and
(B) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease neither the Trust nor the
Successor Entity will be required to register as an Investment
Company;
(C) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease the Trust (or the Successor
Entity) will continue to be classified as a grantor trust for United
States federal income tax purposes; and
(viii) the Sponsor guarantees the obligations of such Successor Entity
under the Successor Securities at least to the extent provided by the
Preferred Securities Guarantee and the Common Securities Guarantee.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except with
the consent of Holders of 100% in liquidation amount of the Securities,
consolidate, amalgamate, merge with
26
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or into, or be replaced by or convey, transfer or lease its properties and
assets substantially as an entirety to any other entity or permit any other
entity to consolidate, amalgamate, merge with or into, or replace it if such
consolidation, amalgamation, merger, replacement, conveyance, transfer or lease
would cause the Trust or the Successor Entity to be classified as other than a
grantor trust for United States federal income tax purposes.
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities.
---------------------------------------
On the Closing Date, and the date of the closing of the Option defined
in Annex I hereto, the Sponsor will purchase all of the Common Securities issued
by the Trust, in an amount at least equal to 3% of the capital of the Trust, at
the same time as the Preferred Securities are sold.
SECTION 4.2 Responsibilities of the Sponsor.
-------------------------------
In connection with the issue and sale of the Preferred Securities, the
Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) at the sole discretion of the Sponsor, to prepare for filing by
the Trust with the Commission a registration statement on Form S-3 in
relation to the Preferred Securities, including any amendments thereto;
(b) to determine the States in which to take appropriate action to
qualify or register for sale all or part of the Preferred Securities and to
do any and all such acts, other than actions which must be taken by the
Trust, and advise the Trust of actions it must take, and prepare for
execution and filing any documents to be executed and filed by the Trust,
as the Sponsor deems necessary or advisable in order to comply with the
applicable laws of any such States;
(c) at the sole discretion of the Sponsor, to prepare for filing by
the Trust an application to the New York Stock Exchange or any other
national stock exchange or the Nasdaq National Market for listing upon
notice of issuance of any Preferred Securities;
(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the
Preferred Securities under Section 12(b) of the Exchange Act, including any
amendments thereto; and
(e) to negotiate the terms of the Underwriting Agreement providing for
the sale of the Preferred Securities.
27
<PAGE>
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees.
------------------
The number of Trustees initially shall be five (5), and:
(a) at any time before the issuance of any Securities, the Sponsor
may, by written instrument, increase or decrease the number of Trustees;
and
(b) after the issuance of any Securities, the number of Trustees may
be increased or decreased by vote of the Holders of a majority in
liquidation amount of the Common Securities voting as a class at a meeting
of the Holders of the Common Securities; provided, however, that, the
-------- -------
number of Trustees shall in no event be less than two (2); provided further
-------- -------
that (1) one Trustee, in the case of a natural person, shall be a person
who is a resident of the State of Delaware or that, if not a natural
person, is an entity which has its principal place of business in the State
of Delaware (the "Delaware Trustee"); (2) there shall be at least one
----------------
Trustee who is an employee or officer of, or is affiliated with the Sponsor
(a "Regular Trustee"); and (3) one Trustee shall be the Institutional
---------------
Trustee for so long as this Declaration is required to qualify as an
indenture under the Trust Indenture Act, and such Trustee may also serve as
Delaware Trustee if it meets the applicable requirements.
SECTION 5.2 Delaware Trustee.
----------------
If required by the Business Trust Act, one Trustee (the "Delaware
--------
Trustee") shall be:
- -------
(a) a natural person who is a resident of the State of Delaware; or
(b) if not a natural person, an entity which has its principal place
of business in the State of Delaware, and otherwise meets the requirements
of applicable law,
provided that, if the Institutional Trustee has its principal place of business
- -------- ----
in the State of Delaware and otherwise meets the requirements of applicable law,
then the Institutional Trustee shall also be the Delaware Trustee and Section
3.11 shall have no application.
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
28
<PAGE>
(ii) be a corporation organized and doing business under the laws of
the United States of America or any State or Territory thereof or of the
District of Columbia, or a corporation or Person permitted by the
Commission to act as an institutional trustee under the Trust Indenture
Act, authorized under such laws to exercise corporate trust powers, having
a combined capital and surplus of at least 50 million U.S. dollars
($50,000,000), and subject to supervision or examination by Federal, State,
Territorial or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority referred to above,
then for the purposes of this Section 5.3(a)(ii), the combined capital
and surplus of such corporation shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Institutional Trustee shall cease to be
eligible to so act under Section 5.3(a), the Institutional Trustee shall
immediately resign in the manner and with the effect set forth in Section
5.7(c).
(c) If the Institutional Trustee has or shall acquire any "conflicting
interest" within the meaning of (S) 310(b) of the Trust Indenture Act, the
Institutional Trustee and the Holder of the Common Securities (as if it were the
obligor referred to in (S) 310(b) of the Trust Indenture Act) shall in all
respects comply with the provisions of (S) 310(b) of the Trust Indenture Act.
To the extent permitted by the Trust Indenture Act, the Institutional Trustee
shall not be deemed to have a conflicting interest with respect to the
Securities of any series by virtue of being Institutional Trustee with respect
to the Securities of any particular series of Securities other than that series
or by virtue of being trustee under the Indentures originally dated as of
November 15, 1996 and January 1, 1997, between the Sponsor and the Institutional
Trustee.
(d) The Preferred Securities Guarantee, the Series A Declaration, the
Series B Declaration, the 1997 Declaration, the Series A Guarantee, the Series B
Guarantee and the 1997 Guarantee shall be deemed to be specifically described
in this Declaration for purposes of clause (i) of the first proviso contained in
Section 310(b) of the Trust Indenture Act.
(e) The initial Institutional Trustee shall be:
The Chase Manhattan Bank
SECTION 5.4 Certain Qualifications of Regular Trustees and Delaware Trustee
---------------------------------------------------------------
Generally.
---------
Each Regular Trustee and the Delaware Trustee (unless the
Institutional Trustee also acts as Delaware Trustee) shall be either a natural
person who is at least 21 years of age or a legal entity that shall act through
one or more Authorized Officers.
29
<PAGE>
SECTION 5.5 Regular Trustees.
----------------
The initial Regular Trustees shall be:
Laurence Goldman
M. Eileen Kennedy
Robert A. Rosholt
(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 Regular
Trustee is authorized to execute on behalf of the Trust any documents which the
Regular Trustees have the power and authority to cause the Trust to execute
pursuant to Section 3.6; and
(c) A Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purposes of signing any documents which the Regular Trustees
have power and authority to cause the Trust to execute pursuant to Section 3.6.
SECTION 5.6 Delaware Trustee.
-----------------
The Delaware Trustee shall be:
Chase Manhattan Bank Delaware
SECTION 5.7 Appointment, Removal and Resignation of Trustees.
-------------------------------------------------
(a) Subject to Section 5.7(b), Trustees may be appointed or removed
without cause at any time except during an event of default:
(i) until the issuance of any Securities, by written instrument
executed by the Sponsor; and
(ii) after the issuance of any Securities, by vote of the Holders of a
Majority in liquidation amount of the Common Securities voting as a class
at a meeting of the Holders of the Common Securities.
(b)(i) The Trustee that acts as Institutional Trustee shall not be
removed in accordance with Section 5.7(a) until a Successor Institutional
Trustee has been appointed and has accepted such appointment by written
instrument executed by such Successor Institutional Trustee and delivered to
the Regular Trustees and the Sponsor; and
(ii) the Trustee that acts as Delaware Trustee shall not be removed in
accordance with this Section 5.7(a) until a successor Trustee possessing the
qualifications to act as Delaware Trustee under Sections 5.2 and 5.4 (a
"Successor Delaware Trustee") has been appointed and has accepted such
--------------------------
30
<PAGE>
appointment by written instrument executed by such Successor Delaware Trustee
and delivered to the Regular Trustees and the Sponsor.
(c) A Trustee appointed to office shall hold office until his
successor shall have been appointed or until his death, removal or resignation.
Any Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing signed by the Trustee and delivered to
the Sponsor and'the Trust, which resignation shall take effect upon such
delivery or upon such later date as is specified therein; provided, however,
that:
(i) No such resignation of the Trustee that acts as the Institutional
Trustee shall be effective:
(A) until a Successor Institutional Trustee has been appointed and has
accepted such appointment by instrument executed by such Successor
Institutional Trustee and delivered to the Trust, the Sponsor and the
resigning Institutional Trustee; or
(B) until the assets of the Trust have been completely liquidated and
the proceeds thereof distributed to the holders of the Securities; and
(ii) no such resignation of the Trustee that acts as the Delaware Trustee
shall be effective until a Successor Delaware Trustee has been appointed and has
accepted such appointment by instrument executed by such Successor Delaware
Trustee and delivered to the Trust, the Sponsor and the resigning Delaware
Trustee.
(d) The Holders of the Common Securities shall use their best efforts
to promptly appoint a Successor Delaware Trustee or Successor Institutional
Trustee as the case may be if the Institutional Trustee or the Delaware
Trustee delivers an instrument of resignation in accordance with this
Section 5.7.
(e) If no Successor Institutional Trustee or Successor Delaware
Trustee shall have been appointed and accepted appointment as provided in
this Section 5.7 within 60 days after delivery of an instrument of
resignation or removal, the Institutional Trustee or Delaware Trustee
resigning or being
removed as applicable may petition any court of competent jurisdiction for
appointment of a Successor Institutional Trustee or Successor Delaware
Trustee. Such court may
<PAGE>
thereupon, after prescribing such notice, if any, as it may deem proper and
prescribe, appoint a Successor Institutional Trustee or Successor Delaware
Trustee, as the case may be.
(f) No Institutional Trustee or Delaware Trustee shall be liable for
the acts or omissions to act of any Successor Institutional Trustee or successor
Delaware Trustee, as the case may be.
SECTION 5.8 Vacancies among Trustees.
------------------------
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 5.1, or if the number of Trustees is
increased pursuant to Section 5.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by the Regular Trustees or, if there
are more than two, a majority of the Regular Trustees shall be conclusive
evidence of the existence of such vacancy. The vacancy shall be filled with a
Trustee appointed in accordance with Section 5.7.
SECTION 5.9 Effect of Vacancies.
-------------------
The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee
shall not operate to annul the Trust. Whenever a vacancy in the number of
Regular Trustees shall occur, until such vacancy is filled by the appointment of
a Regular Trustee in accordance with Section 5.7, the Regular Trustees in
office, regardless of their number, shall have all the powers granted to the
Regular Trustees and shall discharge all the duties imposed upon the Regular
Trustees by this Declaration.
SECTION 5.10 Meetings.
--------
If there is more than one Regular Trustee, meetings of the Regular
Trustees may be held from time to time upon the call of any Regular Trustee.
Regular meetings of the Regular Trustees may be held at a time and place fixed
by resolution of the Regular Trustees. Notice of any in-person meetings of the
Regular Trustees shall be hand delivered or otherwise delivered in writing
(including by facsimile, with a hard 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
31
<PAGE>
meeting by the unanimous written consent of the Regular Trustees.
Notwithstanding the foregoing, any action which may be taken at a meeting of the
Regular Trustees (or a committee thereof) may be taken pursuant to a unanimous
written consent of the Regular Trustees (or committee thereof), the execution of
such consent to be deemed a waiver by such Regular Trustee of any prior notice
required in connection with such action. In the event there is only one Regular
Trustee, any and all action of such Regular Trustee shall be evidenced by a
written consent of such Regular Trustee.
SECTION 5.11 Delegation of Power.
-------------------
(a) Any Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purpose of executing any documents contemplated in Section
3.6, including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing; and
(b) the Regular Trustees shall have power to delegate from time to
time to such of their number or to officers of the Trust the doing of such
things and the execution of such instruments either in the name of the Trust
or the names of the Regular Trustees or otherwise as the Regular Trustees may
deem expedient, to the extent such delegation is not prohibited by applicable
law or contrary to the provisions of the Trust, as set forth herein.
SECTION 5.12 Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any corporation into which the Institutional Trustee or the Delaware
Trustee, as the case may be, may be merged or converted or with which either may
be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Institutional Trustee or the Delaware Trustee, as the
case may be, shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Institutional Trustee or
the Delaware Trustee, as the case may be, shall be the successor of the
Institutional Trustee or the Delaware Trustee, as the case may be, hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
SECTION 5.13 Appointment of Authenticating Agent.
-----------------------------------
The Institutional Trustee may appoint an Authenticating Agent or
Agents, which may include any Affiliate of the Sponsor, with respect to the
Securities which shall be authorized to act on behalf of the Institutional
Trustee to authenticate the Securities issued upon original issue and upon
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 9.2, and Securities so authenticated shall be entitled to the benefits
of this Declaration and shall be valid and obligatory for all purposes as if
authenticated by the Institutional Trustee hereunder. Wherever reference is
made in this Declaration to the authentication and delivery of the Securities by
the Institutional Trustee or the Institutional Trustee's certificate of
authentication, such reference shall
32
<PAGE>
be deemed to include authentication and delivery on behalf of the Institutional
Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Sponsor and shall at all times be a corporation organized and
doing business under the laws of the United States of America, or of any State
or Territory or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by federal or State
authority. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of an Authenticating Agent shall be the successor
Authenticating Agent hereunder, provided such corporation shall be otherwise
eligible under this Section, without the execution or filing of any paper or any
further act on the part of the Institutional Trustee or the Authenticating
Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Institutional Trustee and to the Sponsor. The
Institutional Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating Agent and to the
Sponsor. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, the Institutional
Trustee may appoint a successor Authenticating Agent which shall be acceptable
to the Sponsor and shall give notice of such appointment in the manner provided
in Section 14.1 to all holders of Securities. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all
the rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provision of this Section.
The Sponsor agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment is made pursuant to this Section, the Securities may
have endorsed thereon, in addition to the Institutional Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
This is one of the Securities referred to in the within mentioned
Declaration.
33
<PAGE>
Dated:
----------------------------------------
As Institutional Trustee
By:_________________________________________
As Authenticating Agent
By:_________________________________________
Authorized Officer
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions.
-------------
Holders shall receive Distributions (as defined herein) in accordance
with the applicable terms of the relevant Holder's Securities. Distributions
shall be made on the Preferred Securities and the Common Securities in
accordance with the preferences set forth in their respective terms. If and to
the extent that the Debenture Issuer makes a payment of interest (including
Compounded Interest (as defined in the Indenture) and Additional Sums (as
defined in the Indenture)), premium and/or principal on the Debentures held by
the Institutional Trustee (the amount of any such payment being a "Payment
-------
Amount"), the Institutional Trustee shall and is directed, to the extent funds
- ------
are available for that purpose, to make or cause to be made a distribution (a
"Distribution") of the Payment Amount to Holders.
- --------------
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.
---------------------------------------
(a) The Regular Trustees shall on behalf of the Trust issue one class
of preferred securities representing undivided beneficial interests in the
assets of the Trust having such terms as are set forth in Annex I (the
-------
"Preferred Securities") and one class of common securities representing
--------------------
undivided beneficial interests in the assets of the Trust having such terms as
are set forth in Annex I (the "Common Securities"). The Trust shall issue no
------- -----------------
securities or other interests in the assets of the Trust other than the
Preferred Securities and the Common Securities.
(b) The Certificates shall be signed on behalf of the Trust by a
Regular Trustee. Such signature shall be the manual or facsimile signature of
any present or any future Regular Trust-
34
<PAGE>
ee. In case any Regular Trustee of the Trust who shall have signed (either by
manual or facsimile signature) any of the Securities shall cease to be such
Regular Trustee before the Certificates so signed shall be delivered by the
Trust, such Certificates nevertheless may be delivered as though the person who
signed such Certificates had not ceased to be such Regular Trustee; and any
Certificate may be signed on behalf of the Trust by such persons who, at the
actual date of execution of such Security, shall be the Regular Trustees of the
Trust, although at the date of the execution and delivery of the Declaration any
such person was not such a Regular Trustee. Certificates shall be printed,
lithographed or engraved or may be produced in any other manner as is reasonably
acceptable to the Regular Trustees, as evidenced by their execution thereof,
and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements as the Regular Trustees may deem
appropriate, or as may be required to comply with any law or with any rule or
regulation of any stock exchange on which Securities may be listed, or to
conform to usage.
(c) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(d) Upon issuance of the Securities as provided in this Declaration,
the Securities so issued shall be deemed to be validly issued, fully paid and
non-assessable.
(e) Every Person, by virtue of having become a Holder or a Preferred
Security Beneficial Owner in accordance with the terms of this Declaration,
shall be deemed to have expressly assented and agreed to the terms of, and
shall be bound by, this Declaration.
SECTION 7.2 Execution and Delivery of Securities Certificates.
-------------------------------------------------
At the time of delivery of the Securities, the Regular Trustees shall
cause Certificates to be authenticated by the Institutional Trustee on behalf of
the Trust and delivered to or upon the written order of the Trust, signed by two
Regular Trustees without further corporate action by the Sponsor, in authorized
denominations.
A Security shall not be valid until authenticated by the manual
signature of an authorized officer of the Institutional Trustee. Such signature
shall be conclusive evidence that the Security has been authenticated under this
Declaration. The Institutional Trustee's certificates of authentication shall
be substantially in the form set forth in Exhibits A-1 and A-2.
------------ ---
SECTION 7.3 Paying Agent.
------------
The Paying Agent shall make Distributions to Holders from the
Institutional Trustee Account and shall report the amounts of such Distributions
to the Institutional Trustee and the Regular Trustees. Any Paying Agent shall
have the revocable power to withdraw funds from the Institutional Trustee
Account for the purpose of making the Distributions referred to above. The
Institutional Trustee may revoke such power and remove the Paying Agent in its
sole discretion.
35
<PAGE>
The Paying Agent shall initially be the Bank, and any co-paying agent chosen by
the Bank, and reasonably acceptable to the Regular Trustees. Any Person acting
as Paying Agent shall be permitted to resign as Paying Agent upon 30 days'
written notice to the Regular Trustees and the Institutional Trustee. In the
event that the Bank shall no longer be the Paying Agent or a successor Paying
Agent shall resign or its authority to act be revoked, the Institutional Trustee
shall appoint a successor that is reasonably acceptable to the Regular Trustees
to act as Paying Agent (which shall be a bank or trust company). Such successor
Paying Agent or any additional Paying Agent shall execute and deliver to the
Trustees an instrument in which such successor Paying Agent or additional Paying
Agent shall agree with the Trustees that as Paying Agent, such successor Paying
Agent or additional Paying Agent will hold all sums, if any, held by it for
payment to the Holders in trust for the benefit of the Securityholders entitled
thereto until such sums shall be paid to such Holders, will give the
Institutional Trustee notice of any default by the Trust (or any other obligor
on the Securities) in the making of any payment on the Securities and will, at
any time during the continuance of any such default, upon the written request of
the Institutional Trustee, forthwith pay to the Institutional Trustee all sums
so held in trust by such Paying Agent. The Paying Agent shall return all
unclaimed funds to the Institutional Trustee and upon removal of a Paying Agent
such Paying Agent shall also return all funds in its possession to the
Institutional Trustee. The provisions of Sections 3.9, 3.10 and 10.4 herein
shall also apply to the Bank in its role as Paying Agent, for so long as the
Bank shall act as Paying Agent and, to the extent applicable, to any other
Paying Agent appointed hereunder. Any reference in this Declaration to the
Paying Agent shall include any co-paying agent unless the context requires
otherwise.
ARTICLE VII
TERMINATION OF TRUST
SECTION 8.1 Termination of Trust.
--------------------
(a) The Trust shall terminate:
(i) upon the bankruptcy of the Sponsor;
(ii) 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 a majority
in liquidation amount of the Securities affected thereby voting together as
a single class to file such certificate of cancellation or the revocation
of the Sponsor's charter and the expiration of 90 days after the date of
revocation without a reinstatement thereof;
(iii) upon the liquidation of the Trust in accordance with the terms
of the Securities and the distribution of all of the Debentures endorsed
thereon in exchange for all of the Securities; or
36
<PAGE>
(iv) upon the entry of a decree of judicial dissolution of the Holder
of the Common Securities, the Sponsor or the Trust;
(v) when all of the Securities shall have been called for redemption
and the amounts necessary for redemption thereof shall have been paid to
the Holders in accordance with the terms of the Securities; or
(vi) before the issuance of any Securities, with the consent of all of
the Regular Trustees and the Sponsor.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.1(a), the Trustees shall file a certificate of
cancellation with the Secretary of State of the State of Delaware.
(c) The provisions of Section 3.9 and Article X shall survive the
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.
------------------------
The Institutional Trustee shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 9.9, a register or registers for
the purpose of registering Certificates and transfers and exchanges of Preferred
Securities Certificates (the "Securities Register") in which, the registrar
-------------------
designated by the Institutional Trustee (the "Securities Registrar") with the
--------------------
reasonable consent of the Regular Trustees, subject to such reasonable
regulations as it may prescribe, shall provide for the registration of Preferred
Securities Certificates and Common Securities Certificates
37
<PAGE>
(subject to Section 9.1(c) in the case of the Common Securities Certificates)
and registration of transfers and exchanges of Preferred Securities Certificates
as herein provided. The Bank shall be the initial Securities Registrar.
Upon surrender for registration of transfer of any Preferred
Securities Certificate at the office or agency maintained pursuant to Section
9.9, the Regular Trustees or any one of them shall execute, and the
Institutional Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Preferred Securities
Certificates in authorized denominations of a like aggregate liquidation amount
dated the date of such authentication.
The Preferred Securities Certificates shall be dated the date of their
authentication.
The Securities Registrar shall not be required to register the
transfer of (i) any Preferred Securities beginning at the opening of business 15
days before the day of mailing of a notice of redemption and ending at the close
of business on the day of such mailing or (ii) any Preferred Securities selected
for redemption except the unredeemed portion of any Preferred Security being
redeemed in part. At the option of a Holder, Preferred Securities Certificates
may be exchanged for other Preferred Securities Certificates in authorized
denominations of the same class and of a like aggregate liquidation amount upon
surrender of the Preferred Securities Certificates to be exchanged at the office
or agency maintained pursuant to Section 9.9.
Every Preferred Securities Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Securities Registrar duly
executed by the Holder or his attorney duly authorized in writing. Each
Preferred Securities Certificate surrendered for registration of transfer or
exchange shall be cancelled and subsequently disposed of by the Institutional
Trustee in accordance with its customary practice.
No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but the Securities Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange Preferred Securities
Certificates.
The provisions of Sections 3.9, 3.10 and 10.4 herein shall also apply
to the Bank in its role as Securities Registrar, for so long as the Bank shall
act as Securities Registrar.
SECTION 9.3 Deemed Security Holders.
-----------------------
The Trustees and the Securities Registrar may treat the Person in
whose name any Certificate shall be registered on the books and records of the
Trust as the sole holder of such Certificate and of the Securities represented
by such Certificate for purposes of receiving Distributions and for all other
purposes whatsoever and, accordingly, shall not be bound to recognize any
equitable
38
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or other claim to or interest in such Certificate or in the Securities
represented by such Certificate on the part of any Person, whether or not the
Trust, the Trustees or the Securities Registrar shall have actual or other
notice thereof.
SECTION 9.4 Book Entry Interests.
--------------------
Unless otherwise specified in the terms of the Preferred Securities,
the Preferred Securities Certificates, on original issuance, will be issued in
the form of one or more, fully registered, global Preferred Security
Certificates (each a "Global Certificate"), to be delivered to DTC, the initial
------------------
Clearing Agency, or its custodian, by, or on behalf of, the Trust. Such Global
Certificates shall initially be registered on the books and records of the Trust
in the name of Cede & Co., the nominee of DTC, and no Preferred Security
Beneficial Owner will receive a definitive Preferred Security Certificate
representing such Preferred Security Beneficial Owner's interests in such Global
Certificates, except as provided in Section 9.7. Unless and until definitive,
fully registered Preferred Security Certificates (the "Definitive Preferred
--------------------
Security Certificates") have been issued to the Preferred Security Beneficial
- ---------------------
Owners pursuant to Section 9.7:
(a) the provisions of this Section 9.4 shall be in full force and
effect;
(b) the Trust, the Trustees, the Securities Registrar and the Paying
Agent shall be entitled to deal with the Clearing Agency for all purposes
of this Declaration (including the payment of Distributions on the Global
Certificates and receiving approvals, votes or consents hereunder) as the
Holder of the Preferred Securities and the sole holder of the Global
Certificates and shall have no obligation to the Preferred Security
Beneficial Owners;
(c) to the extent that the provisions of this Section 9.4 conflict
with any other provisions of this Declaration, the provisions of this
Section 9.4 shall control; and
(d) the rights of the Preferred Security Beneficial Owners shall be
exercised only through the Clearing Agency and shall be limited to those
established by law and agreements between such Preferred Security
Beneficial Owners and the Clearing Agency and/or the Clearing Agency
Participants and the Clearing Agency shall receive and transmit payments of
Distributions on the Global Certificates to such Clearing Agency
Participants. DTC will make book entry transfers among the Clearing Agency
Participants.
SECTION 9.5 Notices to Clearing Agency.
--------------------------
Whenever a notice or other communication to the Preferred Security
Holders is required under this Declaration, unless and until Definitive
Preferred Security Certificates shall have been issued to the Preferred Security
Beneficial Owners pursuant to Section 9.7, the Trustees shall give all such
notices and communications specified herein to be given to the Preferred
Security
39
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Holders to the Clearing Agency, and shall have no notice obligations to the
Preferred Security Beneficial Owners.
SECTION 9.6 Appointment of Successor Clearing Agency.
----------------------------------------
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the Preferred Securities or is no longer
able to properly discharge its functions, the Regular Trustees may, in their
sole discretion, appoint a successor Clearing Agency with respect to such
Preferred Securities.
SECTION 9.7 Definitive Preferred Security Certificates.
------------------------------------------
If:
(a) a Clearing Agency elects to discontinue its services or is no
longer able to properly discharge its functions as securities depositary
with respect to the Preferred Securities and a successor Clearing Agency
is not appointed within 90 days after such discontinuance or after the
Regular Trustees become aware of such inability pursuant to Section 9.6; or
(b) the Regular Trustees elect after consultation with the Sponsor to
terminate the book entry system through the Clearing Agency with respect to
the Preferred Securities,
then:
(c) Definitive Preferred Security Certificates shall be prepared by
the Regular Trustees on behalf of the Trust with respect to such Preferred
Securities; and
(d) upon surrender of the Global Certificates by the Clearing Agency,
accompanied by registration instructions, the Regular Trustees shall cause
Definitive Certificates to be delivered to Preferred Security Beneficial
Owners in accordance with the instructions of the Clearing Agency. Neither
the Trustees nor the Trust, or any agents thereof shall be liable for any
delay in delivery of such instructions and each of them may conclusively
rely on and shall be protected in relying on, said instructions of the
Clearing Agency. The Definitive Preferred Security Certificates shall be
printed, lithographed or engraved or may be produced in any other manner as
is reasonably acceptable to the Regular Trustees, as evidenced by their
execution thereof, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements as the
Regular Trustees may deem appropriate, or as may be required to comply
with any law or with any rule or regulation made pursuant thereto or with
any rule or regulation of any stock exchange on which Preferred Securities
may be listed, or to conform to usage.
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SECTION 9.8 Mutilated, Destroyed, Lost or Stolen Certificates.
-------------------------------------------------
If:
(a) any mutilated Certificates should be surrendered to the
Institutional Trustee or the Securities Registrar or if the Institutional
Trustee or the Securities Registrar shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Institutional Trustee, the
Securities Registrar and the Regular Trustees such security or indemnity as
may be required by them to keep each of them harmless,
then, in the absence of notice that such Certificate shall have been acquired by
a bona fide purchaser, any Regular Trustee on behalf of the Trust shall execute,
and upon any Regular Trustee's request, the Institutional Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like denomination.
In connection with the issuance of any new Certificate under this Section 9.8,
the Regular Trustees, Institutional Trustee or Securities Registrar may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection therewith. Any duplicate Certificate issued
pursuant to this Section shall constitute conclusive evidence of an ownership
interest in the relevant Securities, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
SECTION 9.9 Maintenance of Office or Agency.
-------------------------------
The Institutional Trustee shall designate, with the consent of the
Regular Trustees, which consent shall not be unreasonably withheld, an office or
offices or agency or agencies where Preferred Securities Certificates may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Trustees in respect of the Securities may be served. The
Corporate Trust Office of the Bank is initially designated the office for such
purpose. The Regular Trustees or the Institutional Trustee shall give prompt
written notice to the Sponsor and to the Holders of any change in the location
of the Securities Register or any such office or agency.
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability.
---------
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(a) Except as expressly set forth in this Declaration, the Securities
Guarantees and the terms of the Securities, the Sponsor shall not be:
(i) personally liable for the return of any portion of the capital
contributions (or any return thereon) of the Holders of the Securities
which shall be made solely from assets of the Trust; and
(ii) be required to pay to the Trust or to any Holder of Securities
any deficit upon dissolution of the Trust or otherwise.
(b) The Holder of the Common Securities shall be liable for all of the
debts and obligations of the Trust (other than with respect to the Securities)
to the extent not satisfied out of the Trust's assets.
(c) Pursuant to (S) 3803(a) of the Business Trust Act, the Holders of
the Preferred Securities shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
SECTION 10.2 Exculpation.
-----------
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Trust or any Covered Person for any loss, damage
or claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's gross negligence or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Trust and upon such information, opinions, reports
or statements presented to the Trust by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's professional or expert
competence and, if selected by such Indemnified Person, has been selected by
such Indemnified Person with reasonable care by or on behalf of the Trust,
including information, opinions, reports or statements as to the value and
amount of the assets, liabilities, profits, losses, or any other facts pertinent
to the existence and amount of assets from which Distributions to Holders of
Securities might properly be paid.
SECTION 10.3 Fiduciary Duty.
--------------
(a) To the extent that, at law or in equity, an Indemnified Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person,
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an Indemnified Person acting under this Declaration shall not be liable to the
Trust or to any other Covered Person for its good faith reliance on the
provisions of this Declaration. The provisions of this Declaration, to the
extent that they restrict the duties and liabilities of an Indemnified Person
otherwise existing at law or in equity (other than the duties imposed on the
Institutional Trustee under the Trust Indenture Act), are agreed by the parties
hereto to replace such other duties and liabilities of such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between any
Covered Persons; or
(ii) whenever this Declaration or any other agreement contemplated
herein or therein provides that an Indemnified Person shall act in a manner
that is, or provides terms that are, fair and reasonable to the Trust or
any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other
agreement contemplated herein or of any duty or obligation of the Indemnified
Person at law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is permitted or
required to make a decision:
(i) in its "discretion" or under a grant of similar authority, the
Indemnified Person shall be entitled to consider such interests and factors
as it desires, including its own interests, and shall have no duty or
obligation to give any consideration to any interest of or factors
affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and shall not be
subject to any other or different standard imposed by this Declaration or
by applicable law.
SECTION 10.4 Indemnification.
---------------
(a)(i) The Debenture Issuer shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a party or
is threatened to be made a party to 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
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of the fact that he is or was a Company Indemnified Person against
expenses (including attorneys' fees and expenses), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the Trust, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the Company
Indemnified Person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Trust, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(ii) The Debenture Issuer shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Trust to procure a judgment in its
favor by reason of the fact that he is or was a Company Indemnified Person
against expenses (including attorneys' fees and expenses) actually and
reasonably incurred by him in connection with the defense or settlement of
such action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Trust and
except that no such indemnification shall be made in respect of any
claim, issue or matter as to which such Company Indemnified Person shall
have been adjudged to be liable to the Trust unless and only to the extent
that the Court of Chancery of Delaware or the court in which such action or
suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such
expenses which such Court of Chancery or such other court shall deem
proper.
(iii) To the extent that a Company Indemnified Person shall be
successful on the merits or otherwise (including dismissal of an action
without prejudice or the settlement of an action without admission of
liability) in defense of any action, suit or proceeding referred to in
paragraphs (i) and (ii) of this Section 10.4(a), or in defense of any
claim, issue or matter therein, he shall be indemnified, to the full extent
permitted by law, against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii) of this Section
10.4(a) (unless ordered by a court) shall be made by the Debenture Issuer
only as authorized in the specific case upon a determination that
indemnification of the Company Indemnified Person is proper in the
circumstances because he has met the applicable standard of conduct set
forth in paragraphs (i) and (ii). Such determination shall be made (1) by
the Regular Trustees by a majority vote of a quorum consisting of such
Regular Trustees who were not parties to such action, suit or proceeding,
(2) if such a quorum is not obtainable, or, even if obtainable, if a
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quorum of disinterested Regular Trustees so directs, by independent legal
counsel in a written opinion, or (3) by the Common Security Holder of the
Trust.
(v) Expenses (including attorneys' fees and expenses) incurred by a
Company Indemnified Person in defending a civil, criminal, administrative
or investigative action, suit or proceeding referred to in paragraphs (i)
and (ii) of this Section 10.4(a) shall be paid by the Debenture Issuer in
advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such Company Indemnified
Person to repay such amount if it shall ultimately be determined that he is
not entitled to be indemnified by the Debenture Issuer as authorized in
this Section 10.4(a). Notwithstanding the foregoing, no advance shall be
made by the Debenture Issuer if a determination is reasonably and promptly
made (i) by the Regular Trustees by a majority vote of a quorum of
disinterested Regular Trustees, (ii) if such a quorum is not obtainable,
or, even if obtainable, if a quorum of disinterested Regular Trustees so
directs, by independent legal counsel in a written opinion or (iii) the
Common Security Holder of the Trust, that, based upon the facts known to
the Regular Trustees, counsel or the Common Security Holder at the time
such determination is made, such Company Indemnified Person acted in bad
faith or in a manner that such person did not believe to be in or not
opposed to the best interests of the Trust, or, with respect to any
criminal proceeding, that such Company Indemnified Person believed or had
reasonable cause to believe his conduct was unlawful. In no event shall
any advance be made in instances where the Regular Trustees, independent
legal counsel or Common Security Holder reasonably determine that such
person deliberately breached his duty to the Trust or its Common or
Preferred Security Holders.
(vi) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other paragraphs of this Section 10.4(a) shall not
be deemed exclusive of any other rights to which those seeking
indemnification and advancement of expenses may be entitled under any
agreement, vote of stockholders or disinterested directors of the Debenture
Issuer or Preferred Security Holders of the Trust or otherwise, both as to
action in his official capacity and as to action in another capacity while
holding such office. All rights to indemnification under this Section
10.4(a) shall be deemed to be provided by a contract between the Debenture
Issuer and each Company Indemnified Person who serves in such capacity at
any time while this Section 10.4(a) is in effect. Any repeal or
modification of this Section 10.4(a) shall not affect any rights or
obligations then existing.
(vii) The Debenture Issuer or the Trust may purchase and maintain
insurance on behalf of any person who is or was a Company Indemnified
Person against any liability asserted against him and incurred by him in
any such capacity, or arising out of his status as such, whether or not the
Debenture Issuer would have the power to indemnify him against such
liability under the provisions of this Section 10.4(a).
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(viii) For purposes of this Section 10.4(a), references to "the Trust"
shall include, in addition to the resulting or surviving entity, any
constituent entity (including any constituent of a constituent) absorbed
in a consolidation or merger, so that any person who is or was a director,
trustee, officer or employee of such constituent entity, or is or was
serving at the request of such constituent entity as a director, trustee,
officer, employee or agent of another entity, shall stand in the same
position under the provisions of this Section 10.4(a) with respect to the
resulting or surviving entity as he would have with respect to such
constituent entity if its separate existence had continued.
(ix) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section 10.4(a) shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to be a
Company Indemnified Person and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(b) The Debenture Issuer agrees to indemnify the (i) Institutional
Trustee, (ii) the Delaware Trustee, (iii) any Affiliate of the Institutional
Trustee and the Delaware Trustee, and (iv) any officers, directors,
shareholders, members, partners, employees, representatives, custodians,
nominees or agents of the Institutional Trustee and the Delaware Trustee (each
of the Persons in (i) through (iv) being referred to as a "Fiduciary Indemnified
---------------------
Person") for, and to hold each Fiduciary Indemnified Person harmless against,
- ------
any and all loss, liability, damage, claim or expense including taxes (other
than taxes based on the income of such Fiduciary Indemnified Person) incurred
without negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration or the trust or trusts hereunder,
including the costs and expenses (including reasonable legal fees and expenses)
of defending itself against or investigating any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The obligation to indemnify as set forth in this Section 10.4(b)
shall survive the satisfaction and discharge of this Declaration.
SECTION 10.5 Outside Businesses.
------------------
Any Covered Person, the Sponsor, the Delaware Trustee and the
Institutional Trustee may engage in or possess an interest in other business
ventures of any nature or description, independently or with others, similar
or dissimilar to the business of the Trust, and the Trust and the Holders of
Securities shall have no rights by virtue of this Declaration in and to such
independent ventures or the income or profits derived therefrom, and the pursuit
of any such venture, even if competitive with the business of the Trust, shall
not be deemed wrongful or improper. No Covered Person, the Sponsor, the
Delaware Trustee, or the Institutional Trustee shall be obligated to present any
particular investment or other opportunity to the Trust even if such
opportunity is of a character that, if presented to the Trust, could be taken by
the Trust, and any Covered Person, the Sponsor, the Delaware Trustee and the
Institutional Trustee shall have the right to take for its own account
(individually or as a partner or fiduciary) or to recommend to others any such
particular investment or other opportunity. Any Covered Person, the Delaware
Trustee and the Institutional Trustee may
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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 reasonable compensation
for all services rendered by them hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust); and
(b) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements and advances
incurred or made by the Trustees in accordance with any provision of this
Declaration (including the reasonable compensation and the expenses and
disbursements of their respective agents and counsel), except any such expense,
disbursement or advance as may be attributable to their respective negligence or
bad faith.
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year.
-----------
The fiscal year ("Fiscal Year") of the Trust shall be the calendar
-----------
year, or such other year as is required by the Code.
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SECTION 11.2 Certain Accounting Matters.
--------------------------
(a) At all times during the existence of the Trust, the Regular
Trustees shall keep, or cause to be kept, full books of account, records and
supporting documents, which shall reflect in reasonable detail, each transaction
of the Trust. The books of account shall be maintained on the accrual method of
accounting, in accordance with generally accepted accounting principles,
consistently applied. The Trust shall use the accrual method of accounting for
United States federal income tax purposes.
(b) The Regular Trustees shall cause to be duly prepared and delivered
to each of the Holders of Securities, any annual United States federal income
tax information statement, required by the Code, containing such information
with regard to the Securities held by each Holder as is required by the Code and
the Treasury Regulations. Notwithstanding any right under the Code to deliver
any such statement at a later date, the Regular Trustees shall endeavor to
deliver all such statements within 30 days after the end of each Fiscal Year of
the Trust.
(c) The Regular Trustees shall cause to be duly prepared and filed
with the appropriate taxing authority, an annual United States federal income
tax return, on a Form 1041 or such other form required by United States federal
income tax law, and any other annual income tax returns required to be filed
by the Regular Trustees on behalf of the Trust with any state or local taxing
authority.
SECTION 11.3 Banking.
-------
The Trust shall maintain one or more bank accounts in the name and for
the sole benefit of the Trust; provided, however, that all payments of funds in
-------- -------
respect of the Debentures held by the Institutional Trustee shall be made
directly to the Institutional Trustee Account and no other funds of the Trust
shall be deposited in the Institutional Trustee Account. The sole signatories
for such accounts shall be designated by the Regular Trustees; provided,
--------
however, that the Institutional Trustee shall designate the signatories for the
- -------
Institutional Trustee Account.
SECTION 11.4 Withholding.
-----------
The Trust, the Regular Trustees and the Paying Agent shall comply with
all withholding requirements under United States federal, state and local law.
The Trust shall request, and the Holders shall provide to the Trust, such forms
or certificates as are necessary to establish an exemption from withholding with
respect to each Holder, and any representations and forms as shall reasonably be
requested by the Trust to assist it in determining the extent of, and in
fulfilling, its withholding obligations. The Regular Trustees shall file
required forms with applicable jurisdictions and, unless an exemption from
withholding is properly established by a Holder, shall remit amounts withheld
with respect to the Holder to applicable jurisdictions. To the extent that the
Trust is required to withhold and pay over any amounts to any authority with
respect to distributions or
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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;
(b) no amendment shall be made, and any such purported amendment shall
be void and ineffective:
(i) unless the Institutional Trustee shall have first received:
(A) an Officers' Certificate from each of the Trust and the
Sponsor that such amendment is permitted by, and conforms to, the
terms of this Declaration (including the terms of the Securities);
and
(B) an opinion of counsel (who may be counsel to the Sponsor or
the Trust) that such amendment is permitted by, and conforms to, the
terms of this Declaration (including the terms of the Securities); and
(ii) to the extent the result of such amendment would be to:
(A) cause the Trust to fail to continue to be classified for
purposes of United States federal income taxation as a grantor trust;
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(B) reduce or otherwise adversely affect the powers of the
Institutional Trustee in contravention of the Trust Indenture Act; or
(C) cause the Trust to be deemed to be an Investment Company
required to be registered under the Investment Company Act;
(c) at such time after the Trust has issued any Securities that remain
outstanding, any amendment that would adversely affect the rights, privileges or
preferences of any Holder of Securities may be effected only with such
additional requirements as may be set forth in the terms of such Securities;
(d) Section 9.1(c) and this Section 12.1 shall not be amended without
the consent of all of the Holders of the Securities;
(e) Article IV shall not be amended without the consent of the Holders
of a Majority in liquidation amount of the Common Securities and;
(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
(g) notwithstanding Section 12.1(c), this Declaration may be amended
without the consent of the Holders of the Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this Declaration that may
be defective or inconsistent with any other provision of this Declaration
or to make any other provisions with respect to matters or questions
arising under this Declaration, which shall not be inconsistent with other
provisions of this Declaration;
(iii) add to the covenants, restrictions or obligations of the Sponsor;
(iv) to conform to any change in Rule 3a-5 or written change in
interpretation or application of Rule 3a-5 by any legislative body, court,
government agency or regulatory authority which amendment does not have a
material adverse effect on the right, preferences or privileges of the
Holders; and
(v) to modify, eliminate or add to any provisions of this Declaration
to such extent as shall be necessary to ensure that the Trust will be
classified for United States Federal income tax purposes as a grantor trust
at all times that any Securities are outstanding
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or to ensure that the Trust will not be required to register as an
investment company under the Investment Company Act.
(h) The Institutional Trustee and the Delaware Trustee may, but shall
not be obligated to, sign any amendment which affects their respective rights,
powers, duties, obligations or immunities under this Declaration or otherwise.
SECTION 12.2 Meetings of the Holders of Securities; Action by Written Consent.
----------------------------------------------------------------
(a) Meetings of the Holders of any class of Securities may be called
at any time by the Regular Trustees (or as provided in the terms of the
Securities) to consider and act on any matter on which Holders of such class of
Securities are entitled to act under the terms of this Declaration, the terms of
the Securities or the rules of any stock exchange on which the Preferred
Securities are listed or admitted for trading. The Regular Trustees shall call
a meeting of the Holders of such class if directed to do so by the Holders of at
least 10% in liquidation amount of such class of Securities. Such direction
shall be given by delivering to the Regular Trustees one or more notices in a
writing stating that the signing Holders of Securities wish to call a meeting
and indicating the general or specific purpose for which the meeting is to be
called. Any Holders of Securities calling a meeting shall specify in writing
the Security Certificates held by the Holders of Securities exercising the
right to call a meeting and only those Securities specified shall be counted for
purposes of determining whether the required percentage set forth in the second
sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given to all the Holders of
Securities having a right to vote thereat at least seven days and not more
than 60 days before the date of such meeting. Whenever a vote, consent or
approval of the Holders of Securities is permitted or required under this
Declaration or the rules of any stock exchange on which the Preferred
Securities are listed or admitted for trading, such vote, consent or
approval may be given at a meeting of the Holders of Securities. Any
action that may be taken at a meeting of the Holders of Securities may be
taken without a meeting if a consent in writing setting forth the action so
taken is signed by the Holders of Securities owning not less than the
minimum amount of Securities in liquidation amount that would be necessary
to authorize or take such action at a meeting at which all Holders of
Securities having a right to vote thereon were present and voting. Prompt
notice of the taking of action without a meeting shall be given to the
Holders of Securities entitled to vote who have not consented in writing.
The Regular Trustees may specify that any written ballot submitted to the
Security Holder for the purpose of taking any action without a meeting
shall be returned to the Trust within the time specified by the Regular
Trustees;
51
<PAGE>
(ii) each Holder of a Security may authorize any Person to act for it
by proxy on all matters in which a Holder of Securities is entitled to
participate, including waiving notice of any meeting, or voting or
participating at a meeting. No proxy shall be valid after the expiration
of 11 months from the date thereof unless otherwise provided in the proxy.
Every proxy shall be revocable at the pleasure of the Holder of Securities
executing it. Except as otherwise provided herein, all matters relating to
the giving, voting or validity of proxies shall be governed by the General
Corporation Law of the State of Delaware relating to proxies, and judicial
interpretations thereunder, as if the Trust were a Delaware corporation and
the Holders of the Securities were stockholders of a Delaware corporation;
(iii) each meeting of the Holders of the Securities shall be conducted
by the Regular Trustees or by such other Person that the Regular Trustees
may designate; and
(iv) unless the Business Trust Act, this Declaration, the terms of the
Securities, the Trust Indenture Act or the listing rules of any stock
exchange on which the Preferred Securities are then listed or trading,
otherwise provides, the Regular Trustees, in their sole discretion, shall
establish all other provisions relating to meetings of Holders of
Securities, including notice of the time, place or purpose of any meeting
at which any matter is to be voted on by any Holders of Securities, waiver
of any such notice, action by consent without a meeting, the 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 XII
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Institutional Trustee.
-------------------------------------------------------
The Trustee that acts as initial Institutional Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Institutional Trustee represents and warrants to the Trust and
the Sponsor at the time of the Successor Institutional Trustee's acceptance of
its appointment as Institutional Trustee that:
(a) the Institutional Trustee is a New York banking corporation with
trust powers and authority under the laws of the State of New York to
execute and deliver, and to carry out and perform its obligations under the
terms of, this Declaration;
(b) the execution, delivery and performance by the Institutional
Trustee of the Declaration has been duly authorized by all necessary
corporate action on the part of the Institutional Trustee. The Declaration
has been duly executed and delivered by the Institutional Trustee, and it
constitutes a legal, valid and binding obligation of the Institutional
52
<PAGE>
Trustee, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, reorganization, moratorium, insolvency, and other
similar laws affecting creditors' rights generally and to general
principles of equity and the discretion of the court (regardless of whether
the enforcement of such remedies is considered in a proceeding in equity or
at law);
(c) the execution, delivery and performance of this Declaration by the
Institutional Trustee does not conflict with or constitute a breach of the
charter or by-laws of the Institutional Trustee; and
(d) no consent, approval or authorization of, or registration with or
notice to, any New York State or federal banking authority is required for
the execution, delivery or performance by the Institutional Trustee, of
this Declaration.
SECTION 13.2 Representations and Warranties of Delaware Trustee.
--------------------------------------------------
The Trustee that acts as initial Delaware Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Delaware Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Delaware Trustee's acceptance of its
appointment as Delaware Trustee that:
(a) The Delaware Trustee is duly organized, validly existing and in
good standing under the laws of the State of Delaware, with trust power and
authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Declaration.
(b) The Delaware Trustee has authorized the performance of its
obligations under the Certificate of Trust and the Declaration. The
Declaration under Delaware law constitutes a legal, valid and binding
obligation of the Delaware Trustee, enforceable against it in accordance
with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting creditors'
rights generally and to general principles of equity and the discretion of
the court (regardless of whether the enforcement of such remedies is
considered in a proceeding in equity or at law).
(c) No consent, approval or authorization of, or registration with or
notice to, any Delaware banking authority is required for the execution,
delivery or performance by the Delaware Trustee, of this Declaration.
(d) The Delaware Trustee is a natural person who is a resident of the
State of Delaware or, if not a natural person, an entity which has its
principal place of business in the State of Delaware.
53
<PAGE>
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices.
-------
All notices provided for in this Declaration shall be in writing, duly
signed by the party giving such notice, and shall be delivered, telecopied or
mailed by first class mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at the
Trust's mailing address set forth below (or such other address as the
Trust may give notice of to the Holders of the Securities and the
Institutional Trustee):
BANK ONE Capital I
c/o BANK ONE CORPORATION
1 Bank One Plaza
Chicago, Illinois 60670
Attention: Treasurer
Telecopy: (312) 732-3366
(b) if given to the Delaware Trustee, at the mailing address set forth
below (or such other address as the Delaware Trustee may give notice of to
the Holders of the Securities):
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, Delaware 19801
Attention: Capital Markets Fiduciary Services
(c) if given to the Institutional Trustee, at the Institutional
Trustee's mailing address set forth below (or such other address as the
Institutional Trustee may give notice of to the Holders of the Securities):
The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Attention: Corporate Trustee Administration
Department
(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):
54
<PAGE>
BANK ONE CORPORATION
1 Bank One Plaza
Chicago, Illinois 60670
Attention: Treasurer
(e) if given to any other Holder, at the address set forth on the
books and records of the Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 14.2 Governing Law.
-------------
This Declaration and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State of Delaware
and all rights and remedies shall be governed by such laws without regard to
principles of conflict of laws.
SECTION 14.3 Intention of the Parties.
------------------------
It is the intention of the parties hereto that the Trust be classified
for United States federal income tax purposes as a grantor trust. The
provisions of this Declaration shall be interpreted to further this intention of
the parties.
SECTION 14.4 Headings.
--------
Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or any
provision hereof.
SECTION 14.5 Successors and Assigns
----------------------
Whenever in this Declaration any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
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
55
<PAGE>
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.
56
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
/s/ Laurence Goldman
------------------------------------
Laurence Goldman, as Regular Trustee
/s/ M. Eileen Kennedy
-------------------------------------
M. Eileen Kennedy, as Regular Trustee
/s/ Robert A. Rosholt
-------------------------------------
Robert A. Rosholt, as Regular Trustee
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
By:/s/ Denis Kelly
------------------------------------------
Name: Denis Kelly
Title: Assistant Vice President
THE CHASE MANHATTAN BANK,
as Institutional Trustee
By:/s/ James D. Heaney
---------------------------------------------
Name: James D. Heaney
Title: Vice President
BANK ONE CORPORATION,
as Sponsor
By:/s/ Robert A. Rosholt
-----------------------------------------------
Name: Robert A. Rosholt
Title: Chief Financial Officer and
Executive Vice President
57
<PAGE>
ANNEX I
TERMS OF
8.000% PREFERRED SECURITIES
8.000% COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration of
Trust, dated as of September 20, 1999 (as amended from time to time, the
"Declaration"), the designation, rights, privileges, restrictions, preferences
- ------------
and other terms and provisions of the Preferred Securities and the Common
Securities are set out below (each capitalized term used but not defined herein
has the meaning set forth in the Declaration or, if not defined in such
Declaration, as defined in the Prospectus referred to below):
1. Designation and Number.
----------------------
(a) Preferred Securities. Preferred Securities of the Trust with an
--------------------
aggregate liquidation amount with respect to the assets of the Trust of five
hundred million dollars ($500,000,000) (or up to five hundred seventy-five
million dollars ($575,000,000) if the over-allotment option with respect to the
Preferred Securities (the "Option") described in the Underwriting Agreement is
------
exercised in full) and a 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 "8.000% Preferred Securities" (the "Preferred
---------
Securities"). The Preferred Security Certificates evidencing the Preferred
- ----------
Securities shall be substantially in the form of Exhibit A-1 to the Declaration,
-----------
with such changes and additions thereto or deletions therefrom as may be
required by ordinary usage, custom or practice or to conform to the rules of any
stock exchange on which the Preferred Securities are listed.
(b) Common Securities. Common Securities of the Trust with an
-----------------
aggregate liquidation amount with respect to the assets of the Trust of fifteen
million four hundred sixty-three thousand nine hundred twenty-five dollars
($15,463,925) (or up to seventeen million seven hundred eighty-three thousand
five hundred twenty-five dollars ($17,783,525) if the Option is exercised in
full) and a 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 "Common Securities" (the "Common Securities"). The Common Security
-----------------
Certificates evidencing the Common Securities shall be substantially in the form
of Exhibit A-2 to the Declaration, with such changes and additions thereto or
deletions therefrom as may be required by ordinary usage, custom or practice.
2. Distributions.
-------------
I-1
<PAGE>
(a) Distributions payable on each Security will be at a fixed rate per
annum of 8.000% (the "Distribution Rate") of the stated liquidation amount of
-----------------
$25 per Security. Distributions in arrears for more than one quarter will bear
interest thereon compounded quarterly at the Distribution Rate (to the extent
permitted by applicable law). The term "Distributions" as used herein includes
-------------
such cash distributions and any such interest payable unless otherwise stated.
A Distribution is payable only to the extent that payments are made in respect
of the Debentures held by the Institutional Trustee and to the extent the
Institutional Trustee has funds available therefor. The amount of Distributions
payable for any period will be computed for any full 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 90-day quarter.
(b) Distributions on the Securities will be cumulative, will accrue
from September 20, 1999, and will be payable quarterly in arrears, on February
15, May 15, August 15 and Novem ber 15 of each year, commencing on November 15,
1999, except as otherwise described below (each, a "Distribution Date"). The
-----------------
Debenture Issuer has the right under the Indenture to defer payments of interest
by extending the interest payment period from time to time on the Debentures for
a period not exceeding 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 end on a day other than an
-------- ----
interest payment date for the Debentures or shall extend beyond the date of
maturity of the Debentures. As a consequence of such deferral, Distributions
will also be deferred. Despite such deferral, quarterly Distributions will
continue to accrue with interest thereon (to the extent permitted by applicable
law) at the Distribution Rate compounded quarterly during any such Extension
Period. At the end of the Extension Period, all accrued and unpaid
Distributions (but only to the extent payments are made in respect of the
Debentures held by the Institutional Trustee and to the extent the Institutional
Trustee has funds available therefor) will be payable to the Holders of the
Securities in whose names the Securities are registered in the Security Register
on the record date relating to the Distribution Date on which the Extension
Period ends. Prior to the termination of any such Extension Period, the
Debenture Issuer may further defer payments of interest by further extending
such Extension Period; provided that such Extension Period together with all
-------- ----
such previ ous and further extensions thereof may not exceed 20 consecutive
quarters or extend beyond the maturity date of the Debentures. Upon the
termination of any Extension Period and the payment of all amounts then due, the
Debenture Issuer may commence a new Extension Period, subject to the above
requirements. The Regular Trustees will give notice to each Holder of any
Extension Period upon their receipt of notice thereof from the Debenture Issuer.
(c) Distributions on the Securities will be payable to the Holders
thereof as they appear on the books and records of the Trust on the relevant
record dates. While the Preferred Securities remain in book-entry only form,
the relevant record dates shall be one Business Day prior to the relevant
payment dates which payment dates correspond to the interest payment dates on
the Debentures. Subject to any applicable laws and regulations and the
provisions of the Declaration, each such payment in respect of the Preferred
Securities will be made as described under the heading
I-2
<PAGE>
"Description of the Preferred Securities - Book-Entry Only Issuance - The
Depository Trust Company" in the Prospectus Supplement dated September 13, 1999
to the Prospectus dated September 7, 1999 (together, the "Prospectus"), of the
----------
Trust included in the Registration Statement on Form S-3 of the Sponsor, the
Trust and certain other business trusts. The relevant record dates for the
Common Securities shall be the same record date as for the Preferred Securities
when the Preferred Securities are not in book-entry only form. If the Preferred
Securities shall not continue to remain in book-entry only form, the relevant
record dates for the Preferred Securities shall be February 1, May 1, August 1
or November 1, as the case may be. Payments in respect of Preferred Securities
held in certificated form will be made by check mailed to the Holder entitled
thereto. Distributions payable on any Securities that are not punctually paid on
any Distribution payment date, as a result of the Debenture Issuer having failed
to make a payment under the Debentures, will cease to be payable to the Person
in whose name such Securities are registered on the relevant record date, and
such defaulted Distribution will instead be payable to the Person in whose name
such Securities are registered on the special record date or other specified
date determined in accordance with the Indenture. If any Distribution Date is
not a Business Day, then payment of the Distribution payable on such date will
be made on the next succeeding day that is a Business Day, in each case with the
same force and effect as if made on such date.
(d) In the event that there is any money or other property held by or
for the Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata (as defined herein) among the Holders of the Securities.
3. Liquidation Distribution Upon Dissolution.
-----------------------------------------
In the event of any voluntary or involuntary dissolution, winding-up
or termination of the Trust, the Holders of the Securities on the date of the
dissolution, winding-up or termination, as the case may be, will be entitled to
receive out of the assets of the Trust available for distribution to Holders of
Securities after satisfaction of liabilities of creditors an amount equal to the
aggregate of the stated liquidation amount of $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 dissolution,
- -------------------------
winding-up or termination, Debentures in an aggregate stated principal amount
equal to the aggregate stated liquidation amount of such Securities, with an
interest rate equal to the Distribution Rate of, and bearing accrued and unpaid
interest in an amount equal to the accrued and unpaid Distributions on, such
Securities, shall be distributed on a Pro Rata basis to the Holders of the
Securities in exchange for such Securities. Prior to any such Liquidation
Distribution, the Debenture Issuer will obtain any required regulatory approval.
If, upon any such dissolution, the Liquidation Distribution can be
paid only in part because the Trust has insufficient assets available to pay in
full the aggregate Liquidation Distribution, then the amounts payable directly
by the Trust on the Securities shall be paid on a Pro Rata basis.
I-3
<PAGE>
4. Redemption and Distribution.
---------------------------
(a) Upon the repayment of the Debentures in whole or in part, whether
at maturity or upon redemption (either at the option of the Debenture Issuer, in
accordance with the Indenture, or pursuant to a Special Event as described
below), the proceeds from such repayment or payment shall be simultaneously
applied to redeem Securities having an aggregate liquidation amount equal to the
aggregate principal amount of the Debentures so repaid or redeemed at a
redemption price of $25 per Security plus an amount equal to accrued and unpaid
Distributions thereon at the date of the redemption, payable in cash (the
"Redemption Price"). Holders will be given not less than 30 nor more than 60
- -----------------
days notice of such redemption. Prior to any such redemption, the Debenture
Issuer will obtain any required regulatory approval.
(b) In the case of an optional redemption, if fewer than all the
outstanding Securities are to be so redeemed, the Common Securities and the
Preferred Securities will be redeemed Pro Rata and the Preferred Securities to
be redeemed will be as described in Section 4(f)(ii) below.
(c) Subject to the prior approval of the Federal Reserve if such
approval is then required under applicable law, rules, guidelines or policies of
the Federal Reserve, the Regular Trustees at any time shall have the right to
dissolve the Trust and, after satisfaction of the claims of creditors, cause
the Debentures held by the Institutional Trustee, having an aggregate principal
amount equal to the aggregate stated liquidation amount of, with an interest
rate identical to the Coupon Rate of, and accrued on unpaid interest equal to
accrued and unpaid distributions on, and having the same record date for payment
as the Securities, to be distributed to the Holders of the Securities in
liquidation of such Holders' interests in the trust on a Pro Rata basis.
(d) If, at any time, a Tax Event, an Investment Company Event or a
Capital Treatment Event (each as defined below and each a "Special Event") shall
-------------
occur and be continuing, the Debenture Issuer shall have the right at any time,
upon not less than 30 nor more than 60 days notice, to redeem the Debentures in
whole or in part for cash within 90 days following the occurrence of such
Special Event (or, if the approval of the Federal Reserve Board is then required
for such redemption, on such later date as promptly as practicable after such
approval is obtained), and, following such redemption, Securities with an
aggregate liquidation amount equal to the aggregate principal amount of the
Debentures so redeemed shall be redeemed by the Trust at the Redemption Price on
a Pro Rata basis.
A "Tax Event" means the receipt by the Trust of an opinion of counsel
---------
to the Sponsor experienced in such matters to the effect that, as a result of
any amendment to, or change (including any announced prospective change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, or as a result of any
official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which pronouncement or decision is announced on or after the date of issuance of
the Preferred Securities under the Declaration, there is more than an
I-4
<PAGE>
insubstantial risk that (i) the Trust is, or will be within 90 days of the date
of such opinion, subject to United States federal income tax with respect to
income received or accrued on the Debentures, (ii) interest payable by the
Sponsor on the Debentures is not, or within 90 days of such opinion, will not
be, deductible by the Sponsor, in whole or in part, for United States federal
income tax purposes or (iii) the Trust is, or will be within 90 days of the date
of the opinion, subject to more than a de minimis amount of other taxes, duties
or other governmental charges.
"Investment Company Event" means that the Regular Trustees shall have
------------------------
received an opinion of a nationally recognized independent counsel experienced
in practice under the Investment Company Act (an "Investment Company Event
------------------------
Opinion") to the effect that, as a result of the occurrence of a change in law
- -------
or regulation or a written change in interpretation or application of law or
regulation by any legislative body, court, governmental agency or regulatory
authority (a "Change in 1940 Act Law"), there is a more than an insubstantial
----------------------
risk that the Trust is or will be considered an Investment Company which is
required to be registered under the Investment Company Act, which Change in 1940
Act Law becomes effective on or after the date of issuance of the Preferred
Securities.
A "Capital Treatment Event" means the reasonable determination by the
-----------------------
Sponsor that, as a result of the occurrence of any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision thereof or
therein, or as a result of any official or administrative pronouncement or
action or judicial decision interpreting or applying such laws or regulations,
which amendment or change is effective or such pronouncement, action or decision
is announced on or after the date of issuance of the Preferred Securities under
the Declaration, there is more than an insubstantial risk that the Sponsor will
not be entitled to treat an amount equal to the liquidation amount of the
Preferred Securities as "Tier I Capital" (or the then equivalent thereof) for
purposes of the capital adequacy guidelines of the Federal Reserve, as then in
effect and applicable to the Sponsor.
On and from the date fixed by the Regular Trustees for any
distribution of Debentures and dissolution of the Trust: (i) the Securities
will no longer be deemed to be outstanding, (ii) The Depository Trust Company
(the "Depository") or its nominee (or any successor Clearing Agency or its
----------
nominee), as the record Holder of the Preferred Securities, will receive a
registered global certificate or certificates representing the Debentures to
be delivered upon such distribution and any certificates representing
Securities, except for certificates representing Preferred Securities held by
the Depository or its nominee (or any successor Clearing Agency or its nominee),
will be deemed to represent beneficial interests in the Debentures having an
aggregate principal amount equal to the aggregate stated liquidation amount of,
with an interest rate identical to the Coupon Rate of, and ac crued and unpaid
interest equal to accrued and unpaid Distributions on such Securities until such
cer tificates are presented to the Debenture Issuer or its agent for transfer
or reissue.
I-5
<PAGE>
(e) The Trust may not redeem fewer than all the outstanding Securities
unless all accrued and unpaid Distributions have been paid on all Securities for
all quarterly Distribution periods terminating on or before the date of
redemption.
(f) If the Debentures are distributed to the Holders of the
Securities, pursuant to the terms of the Indenture, the Debenture Issuer will
use its best efforts to cause the Debentures to be listed on the New York Stock
Exchange or on such other exchanges as the Preferred Securities were listed
immediately prior to the distribution of the Debentures.
(g) If a partial redemption of the Debentures would result in the
delisting of the Preferred Securities issued by the Trust from any national
securities exchange or other organization on which the Preferred Securities are
then listed, the Debenture Issuer shall not be permitted to effect such partial
redemption and may only redeem the Debentures in whole.
(h) The procedure with respect to redemptions and distributions of
Debentures shall be as follows:
(i) Notice of any redemption of, or notice of distribution of
Debentures in exchange for, the Securities (a "Redemption/Distribution
-----------------------
Notice") will be given by the Trust by mail to each Holder of Securities to
------
be redeemed or exchanged not fewer than 30 nor more than 60 days before the
date fixed for redemption or exchange thereof which, in the case of a
redemption, will be the date fixed for redemption of the Debentures. For
purposes of the calculation of the date of redemption or exchange and the
dates on which notices are given pursuant to this Section 4(f)(i), a
Redemption/Distribution Notice shall be deemed to be given on the day such
notice is first mailed by first-class mail, postage prepaid, to Holders of
Securities. Each Redemption/Distribution Notice shall be addressed to the
Holders of Securities at the address of each such Holder appearing in the
books and records of the Trust. No defect in the Redemption/Distribution
Notice or in the mailing of either thereof with respect to any Holder
shall affect the validity of the redemption or exchange proceedings with
respect to any other Holder.
(ii) All notices of redemption shall state:
(a) the redemption date;
(b) the Redemption Price;
(c) the CUSIP number;
(d) if fewer than all the outstanding Securities are to be
redeemed, the identification and the total liquidation amount of the
particular Securities to be redeemed; and
I-6
<PAGE>
(e) that on the redemption date the Redemption Price will become
due and payable upon each such Security to be redeemed and that
Distributions thereon will cease to accrue on and after said date.
(iii) In the event that fewer than all the outstanding Securities are
to be redeemed, the Securities to be redeemed shall be redeemed Pro Rata
from each Holder of Preferred Securities, it being understood that, in
respect of Preferred Securities registered in the name of and held of
record by the Depository or its nominee (or any successor Clearing Agency
or its nominee) or any nominee, the distribution of the proceeds of such
redemption will be made to each Clearing Agency Participant (or Person on
whose behalf such nominee holds such securities) in accordance with the
procedures applied by such agency or nominee.
(iv) If Securities are to be redeemed and the Trust gives a Redemp-
tion/Distribution Notice, which notice may only be issued if the Debentures
are to be redeemed as set out in this Section 4 (which notice will be
irrevocable), then (A) while the Preferred Securities are in book-entry
only form, with respect to the Preferred Securities, by 12:00 noon, New
York City time, on the redemption date, provided that by 10 a.m. New York
City time, on that date the Debenture Issuer has paid the Institutional
Trustee or other holder of the Institutional Trustee Account a sufficient
amount of cash in connection with the related redemption or maturity of the
Debentures, the Institutional Trustee or the Paying Agent will deposit
irrevocably with the Depository or its nominee (or successor Clearing
Agency or its nominee) funds sufficient to pay the applicable Redemption
Price with respect to the Preferred Securities and will give the Depository
irrevocable instructions and authority to pay the Redemption Price to the
Holders of the Preferred Securities, and (B) with respect to Preferred
Securities issued in definitive form and Common Securities, provided that
the Debenture Issuer has paid the Institutional Trustee or the holder of
the Institutional Trustee Account a sufficient amount of cash in connection
with the related redemption or maturity of the Debentures, the
Institutional Trustee or the Paying Agent will pay the relevant
Redemption Price to the Holders of such Securities by check mailed to the
address of the relevant Holder appearing on the books and records of the
Trust on the redemption date. If a Redemption/Distribution Notice shall
have been given and funds deposited as required, if applicable, then on and
after the redemption date, Distributions will cease to accrue on the
Securities so called for redemption and all rights of Holders of such
Securities so called for redemption will cease, except the right of the
Holders of such Securities to receive the Redemption Price, but without
interest on such Redemption Price. Neither the Regular Trustees nor the
Trust shall be required to register or cause to be registered the transfer
of (i) any Securities beginning on the opening of business 15 days before
the day of mailing of a notice of redemption and ending at the close of
business on the day of such mailing or (ii) any Securities selected for
redemption except the unredeemed portion of any Security being redeemed in
part. If any date fixed for redemption of Securities is not a Business
Day, then payment of the Redemption Price payable on such date will be made
on the next succeeding
I-7
<PAGE>
day that is a Business Day (and without any interest or other payment in
respect of any such delay) except that, if such Business Day falls in the
next calendar year, such payment will be made on the immediately preceding
Business Day, in each case with the same force and effect as if made on
such date fixed for redemption. If payment of the Redemption Price in
respect of any Securities is improperly withheld or refused and not paid
either by the Institutional Trustee or by the Sponsor as guarantor
pursuant to the relevant Securities Guarantee, Distributions on such
Securities will continue to accrue from the original redemption date to the
actual date of payment, in which case the actual payment date will be
considered the date fixed for redemption for purposes of calculating the
Redemption Price.
(v) Redemption/Distribution Notices shall be sent by the Regular
Trustees on behalf of the Trust to (A) in respect of the Preferred
Securities, the Depository or its nominee (or any successor Clearing Agency
or its nominee) if the Global Certificates have been issued or, if
Definitive Preferred Security Certificates have been issued, to the Holder
thereof, and (B) in respect of the Common Securities to the Holder
thereof.
(vi) Subject to the foregoing and applicable law (including, without
limitation, United States federal securities laws and banking laws),
provided the acquiror is not the Holder of the Common Securities or the
obligor under the Indenture, the Sponsor or any of its subsidiaries may at
any time and from time to time purchase outstanding Preferred Securities
by tender, in the open market or by private agreement.
(vii) Upon presentation of any Security redeemed in part only, the
Regular Trustee on behalf of the Trust shall execute and the Institutional
Trustee shall authenticate and deliver to the Holder thereof a new Security
in aggregate liquidation amount equal to the unredeemed portion of the
Security so presented and having the same original issue date, stated
maturity and terms.
5. Voting Rights - Preferred Securities.
------------------------------------
(a) Except as provided under Sections 5(b) and 7 and as otherwise
required by law and the Declaration, the Holders of the Preferred Securities
will have no voting rights.
(b) Subject to the requirements set forth in this paragraph and
Section 2.6(a), the Holders of a majority in aggregate liquidation amount of the
Preferred Securities, voting separately as a class may direct the time, method,
and place of conducting any proceeding for any remedy available to the
Institutional Trustee, or exercising any trust or power conferred upon the
Institutional Trustee under the Declaration, including the right to direct the
Institutional Trustee, as holder of the Debentures, to (i) exercise the remedies
available under the Indenture to holders of the Debentures, including the right
to direct the time method and place of conducting any proceeding for any remedy
available to the Debenture Trustee, or exercising any trust or power conferred
on the Debenture Trustee with respect to the Debentures, (ii) waive any past
default and its consequences that is
I-8
<PAGE>
waivable under Section 7.13 of the Indenture, (iii) exercise any right to
rescind or annul a declaration that the principal of all the Debentures shall be
due and payable, or (iv) consent to any amendment, modification or termination
of the Indenture or the Debentures where such consent of the holders of the
Debentures would be required, provided, however, that, where a consent under the
-------- -------
Indenture would require the consent or act of the Holders of greater than a
majority of the Holders in principal amount of Debentures affected thereby, (a
"Super Majority"), the Institutional Trustee may only give such consent or take
--------------
such action at the written direction of the Holders of at least the proportion
in liquidation amount of the Preferred Securities which the relevant Super
Majority represents of the aggregate principal amount of the Debentures
outstanding. The Institutional Trustee shall not revoke any action previously
authorized or approved by a vote of the Holders of the Preferred Securities.
Other than with respect to directing the time, method and place of conducting
any remedy available to the Institutional Trustee or the Debenture Trustee as
set forth above, the Institutional Trustee shall not take any action in
accordance with the directions of the Holders of the Preferred Securities under
this paragraph unless the Institutional Trustee has obtained an opinion of
nationally recognized independent tax counsel experienced in such matters to the
effect that for the purposes of United States federal income tax the Trust will
not be classified as other than a grantor trust on account of such action. If a
Declaration Event of Default has occurred and is continuing and such event is
attributable to the failure of the Debenture Issuer to pay interest or principal
on the Debentures on the date such interest or principal is otherwise payable
(or in the case of redemption, on the redemption date), then a holder of
Preferred Securities may directly institute a proceeding for enforcement of
payment to such Holder of the principal of or interest on the Debentures having
a principal amount equal to the aggregate liquidation amount of the Preferred
Securities of such holder (a "Direct Action") on or after the respective due
-------------
date specified in the Debentures. In connection with such Direct Action, the
rights of the holders of the Common Securities Holder will be subrogated to the
rights of such holder of Preferred Securities to the extent of any payment made
by the Issuer to such holder of Preferred Securities in such Direct Action.
Except as provided in the preceding sentences, the Holders of Preferred
Securities will not be able to exercise directly any other remedy available to
the holders of the Debentures. Any amount payable pursuant to the Declaration to
any Holder of a Preferred Security shall be reduced by the amount of any
corresponding payment such Holder has directly received pursuant to such Direct
Action.
Any approval or direction of Holders of Preferred Securities may be
given at a separate meeting of Holders of Preferred Securities convened for such
purpose, at a meeting of all of the Holders of Securities in the Trust or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Preferred Securities are entitled to vote, or of any
matter upon which action by written consent of such Holders is to be taken, to
be mailed to each Holder of record of Preferred Securities. Each such notice
will include a statement setting forth (i) the date of such meeting or the date
by which such action is to be taken, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders are entitled to vote
or of such matter upon which written consent is sought and (iii) instructions
for the delivery of proxies or consents.
I-9
<PAGE>
No vote or consent of the Holders of the Preferred Securities will be
required for the Trust to redeem and cancel Preferred Securities or to
distribute the Debentures in accordance with the Declaration and the terms of
the Securities.
Notwithstanding that Holders of Preferred Securities are entitled to
give, make or take requests, demands, authorizations, directions, notices,
consents, waivers or other actions under any of the circumstances described in
this Declaration, any of the Preferred Securities that are owned by the Sponsor
or any Affiliate of the Sponsor shall not be entitled to give, make or take any
such action and shall, for purposes of such action, be treated as if they were
not outstanding, except that (a) in determining whether any Trustee shall be
protected in relying on any such request, demand, authorization, direction,
notice, consent or waiver, only Securities that a Responsible Officer of such
Trustee actually knows to be so owned shall be so disregarded and (b) the
foregoing shall not apply at any time when all of the outstanding Securities are
owned by the Sponsor or any Affiliate.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Declaration to be given, made or
taken by Holders of Preferred Securities may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such Holders in
person or by an agent duly appointed in writing; and, except as otherwise
expressly provided herein, such action shall become effective when such
instrument or instruments are delivered to the Institutional Trustee. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Declaration and (subject to Section 3.9) conclusive in favor of the Trustees, if
made in the manner provided herein.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgements of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which any Trustee receiving the same deems sufficient.
The ownership of Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Preferred Security shall bind every future
Holder of the same Preferred Security and the Holder of every Preferred Security
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by the
Trustees or the Trust in reliance thereon, whether or not notation of such
action is made upon such Preferred Security.
I-10
<PAGE>
Without limiting the foregoing, a Holder entitled hereunder to take
any action hereunder with regard to any particular Preferred Security may do so
with regard to all or any part of the liquidation amount of such Preferred
Security or by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any part of such liquidation
amount.
If any dispute shall arise between the Holders of Preferred Securities
and Trustees or among such Holders or Trustees with respect to the authenticity,
validity or binding nature of any request, demand, authorization, direction,
consent, waiver or other Act of such Holder or Trustee hereunder, then the
determination of such matter by the Institutional Trustee shall be conclusive
with respect to such matter.
6. Voting Rights - Common Securities.
---------------------------------
(a) Except as provided under Sections 6(b), (c), 7(a) and (b), or as
otherwise required by law and the Declaration, the Holders of the Common
Securities will have no voting rights.
(b) The Holders of the Common Securities are entitled, in accordance
with Article V of the Declaration, to vote to appoint, remove or replace any
Trustee or to increase or decrease the number of Trustees.
(c) Subject to Section 2.6 of the Declaration and only after the Event
of Default with respect to the Preferred Securities has been cured, waived, or
otherwise eliminated and subject to the requirements of the second to last
sentence of this paragraph, the Holders of a Majority in liquidation amount of
the Common Securities, voting separately as a class, may direct the time,
method, and place of conducting any proceeding for any remedy available to the
Institutional Trustee, or exercising any trust or power conferred upon the
Institutional Trustee under the Declaration, including (i) directing the time,
method, place of conducting any proceeding for any remedy available to the
Debenture Trustee, or exercising any trust or power conferred on the Debenture
Trustee with respect to the Debentures, (ii) waive any past default and its
consequences that is waivable under Section 7.13 of the Indenture, (iii)
exercise any right to rescind or annul a declaration that the principal of all
the Debentures shall be due and payable, or (iv) consent to any amendment,
modification or termination of the Indenture or the Debentures where such
consent of the holders of the Debentures would be required, provided that, where
-------- ----
a consent or action under the Indenture would require the consent or act of the
Holders of a Super Majority, the Institutional Trustee may only give such
consent or take such action at the written direction of the Holders of at least
the proportion in liquidation amount of the Common Securities which the relevant
Super Majority represents of the aggregate principal amount of the Debentures
outstanding. Pursuant to this Section 6(c), the Institutional Trustee shall not
revoke any action previously authorized or approved by a vote of the Holders of
the Preferred Securities. Other than with respect to directing the time, method
and
I-11
<PAGE>
place of conducting any remedy available to the Institutional Trustee or the
Debenture Trustee as set forth above, the Institutional Trustee shall not take
any action in accordance with the directions of the Holders of the Common
Securities under this paragraph unless the Institutional Trustee has obtained an
opinion of nationally recognized independent tax counsel experienced in such
matters to the effect that for the purposes of United States federal income tax
the Trust will not be classified as other than a grantor trust on account of
such action. If the Institutional Trustee fails to enforce its rights under the
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.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Declaration to be given, made or
taken by Holders of Common Securities may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Holders or in
person or by an agent duly appointed in writing, and except as otherwise
expressly provided herein, such action shall become effective when such
instrument or instruments are delivered to the Institutional Trustee. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
---
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Declaration and (subject to Section 3.9) conclusive in favor of the Trustees, if
made in the manner provided herein.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgements of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
I-12
<PAGE>
writing, or the authority of the Person executing the same, may also be proved
in any other manner which any Trustee receiving the same deems sufficient.
The ownership of Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Common Security shall bind every future Holder
of the same Common Security and the Holder of every Common Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustees or
the Trust in reliance thereon, whether or not notation of such action is made
upon Common Security.
Without limiting the foregoing, a Holder entitled hereunder to take
any action hereunder with regard to any particular Common Security may do so
with regard to all or any part of the liquidation amount of such Common Security
or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such liquidation amount.
If any dispute shall arise between the Holders of Common Securities
and the Trustees or among such Holders or Trustees with respect to the
authenticity, validity or binding nature of any request, demand, authorization,
direction, consent, waiver or other Act of such Holder or Trustee hereunder,
then the determination of such matter by the Institutional Trustee shall be
conclusive with respect to such matter.
7. Amendments to Declaration and Indenture.
---------------------------------------
(a) In addition to any requirements under Section 12.1 of the
Declaration, if any proposed amendment to the Declaration provides for, or the
Regular Trustees otherwise propose to effect, (i) any action that would
adversely affect the powers, privileges, preferences or special rights of the
Securities, whether by way of amendment to the Declaration or otherwise, or (ii)
the dissolu tion, winding-up or termination of the Trust, other than as
described in Section 8.1 of the Decla ration, then the Holders of Securities
voting together as a single class, will be entitled to vote on such amendment or
proposal (but not on any other amendment or proposal) and such amendment or pro
posal shall not be effective except with the approval of the Holders of at least
a Majority in liquidation amount of the Securities, affected thereby; provided,
--------
however, that if any amendment or proposal referred to in clause (i) above would
- -------
adversely affect only the Preferred Securities or only the Common Securities,
then only the affected class will be entitled to vote on such amendment or
proposal and such amendment or proposal shall not be effective except with the
approval of a Majority in liquidation amount of such class of Securities.
(b) In the event the consent of the Institutional Trustee as the
holder of the Debentures is required under the Indenture with respect to any
amendment, modification or termina tion of the Indenture or the Debentures, the
Institutional Trustee shall request the written direction of the Holders of the
I-13
<PAGE>
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 the holders of a Super Majority, the Institutional Trustee may
only give such consent at the direction of the Holders of at least the
proportion in liquidation amount of the Securities which the relevant Super
Majority represents of the aggregate principal amount of the Debentures
outstanding; provided, further, that the Institutional Trustee shall not take
-------- -------
any action in accordance with the directions of the Holders of the Securities
under this Section 7(b) unless the Institutional Trustee has obtained an opinion
of nationally recognized independent tax counsel experienced in such matters to
the effect that for the purposes of United States federal income tax the Trust
will not be classified as other than a grantor trust on account of such action.
8. Pro Rata.
--------
A reference in these terms of the Securities to any payment,
distribution or treatment as being "Pro Rata" shall mean pro rata to each Holder
of Securities according to the aggregate liquidation amount of the Securities
held by the relevant Holder in relation to the aggregate liquidation amount of
all Securities outstanding unless, in relation to a payment, an Event of Default
under the Declaration has occurred and is continuing, in which case any funds
available to make such payment shall be paid first to each Holder of the
Preferred Securities pro rata according to the aggregate liquidation amount of
Preferred Securities held by the relevant Holder relative to the aggregate
liquidation amount of all Preferred Securities outstanding, and only after
satisfaction of all amounts owed to the Holders of the Preferred Securities, to
each Holder of Common Securities pro rata according to the aggregate liquidation
amount of Common Securities held by the relevant Holder relative to the
aggregate liquidation amount of all Common Securities outstanding. In any such
proration the Trust may make such adjustments as may be appropriate in order
that only Securities in authorized denominations shall be redeemed.
9. Ranking.
-------
The Preferred Securities rank pari passu with the Common Securities
and payment thereon shall be made Pro Rata with the Common Securities except
that, if an Event of Default under the Declaration occurs and is continuing the
rights of Holders of the Common Securities to payment in respect of
Distributions and payments upon liquidation, redemption and otherwise are
subordinat ed to the rights to payment 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 on the New York Stock Exchange.
I-14
<PAGE>
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 of the Securities 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.
I-15
<PAGE>
EXHIBIT A-1
FORM OF PREFERRED SECURITY CERTIFICATE
[This Preferred Security is a Global Certificate within the meaning of
the Declaration hereinafter referred to and is registered in the name of The
Depository Trust Company (the "Deposi tary") or a nominee of the Depositary.
-----------
This Preferred Security is exchangeable for Preferred Securities registered in
the name of a person other than the Depositary or its nominee only in the
limited circumstances described in the Declaration and no transfer of this
Preferred Security (other than a transfer of this Preferred Security as a whole
by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary) may be
registered except in limited circumstances.
Unless this Preferred Security is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to the Trust or its agent for registration of transfer, exchange or
payment, and any Preferred Security issued is registered in the name of Cede &
Co. or such other name as requested by an authorized representative of The
Deposi tory Trust Company and any payment hereon is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an interest
herein.]//
// Insert in Global Certificates only.
A1-1
<PAGE>
THIS SECURITY IS NOT A SAVINGS OR DEPOSIT ACCOUNT OR OTHER OBLIGATION
OF A BANK AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY
OTHER GOVERNMENTAL AGENCY.
Certificate Number Number of Preferred Securities
CUSIP NO. 06421B202
Certificate Evidencing Preferred Securities
of
BANK ONE CAPITAL I
8.000% Preferred Securities
(liquidation amount $25 per Preferred Security)
BANK ONE CAPITAL I, a statutory business trust formed under the laws
of the State of Delaware (the "Trust"), hereby certifies that ______________
-----
(the "Holder") is the regis tered owner of ____________ preferred securities of
------
the Trust representing undivided beneficial interests in the assets of the Trust
designated the 8.000% Preferred Securities (liquidation amount $25 per Preferred
Security) (the "Preferred Securities"). The Preferred Securities are
--------------------
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this cer tificate duly endorsed and in
proper form for transfer. The designation, rights, privileges, restric tions,
preferences and other terms and provisions of the Preferred Securities
represented hereby are issued and shall in all respects be subject to the
provisions of the Amended and Restated Declaration of Trust of the Trust dated
as of September 20, 1999, 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.
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 benefi cial ownership in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this
day of .
BANK ONE CAPITAL I
By:________________________________
Name: Robert A. Rosholt
Title: Regular Trustee
A1-2
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Declaration.
Dated:
THE CHASE MANHATTAN BANK,
as Institutional Trustee
By: _____________________
Authorized Officer
A1-3
<PAGE>
[FORM OF REVERSE OF SECURITY]
Distributions will be payable on each Preferred Security at a fixed
rate per annum of 8.000% (the "Distribution Rate") of the stated liquidation
-----------------
amount of $25 per Preferred Security. Dis tributions in arrears for more than
one quarter will bear interest thereon compounded quarterly at the Distribution
Rate (to the extent permitted by applicable law). The term "Distributions" as
-------------
used herein includes such cash distributions and any such interest payable
unless otherwise stated. A Distribution is payable only to the extent that
payments are made in respect of the Debentures held by the Institutional Trustee
and to the extent the Institutional Trustee has funds available therefor. The
Distribution Amount payable for each Distribution Period will be calculated as
provided in the Declaration.
Except as otherwise described below, distributions on the Preferred
Securities will be cumulative, will accrue from September 20, 1999, and will be
payable quarterly in arrears, on February 15, May 15, August 15 and November 15
of each year, commencing on November 15, 1999 to the Holders thereof as they
appear on the books and records of the Trust on the relevant record dates.
While the Preferred Securities remain in book-entry only form, the relevant
record dates shall be one Business Day prior to the relevant payment dates. If
the Preferred Securities shall not continue to remain in book-entry only form,
the relevant record dates for the Preferred Securities shall be February 1, May
1, August 1 and November 1, as the case may be. The Debenture Issuer has the
right under the Indenture to defer payments of interest by extending the
interest payment period from time to time on the Debentures for a period not
exceeding 20 consecutive quarters (each an "Extension Period"), provided that no
---------------- -------- ----
Extension Period shall end on a day other than an interest payment date for the
Debentures or shall extend beyond the date of the maturity of the Debentures. As
a consequence of such deferral, Distributions will also be deferred. Despite
such deferral, quar terly Distributions will continue to accrue with interest
thereon (to the extent permitted by applicable law) at the Distribution Rate
compounded quarterly during any such Extension Period. At the end of the
Extension Period, all accrued and unpaid Distributions (but only to the extent
payments are made in respect of the Debentures held by the Institutional Trustee
and to the extent the Institutional Trustee has funds available therefor) will
be payable to the Holders of the Securities in whose names the Securities are
registered in the Security Register on the record date relating to the
Distribution Date on which the Extension Period ends. Prior to the termination
of any such Extension Period, the Debenture Issuer may further defer payments of
interest by further extending such Extension Period; provided that such
-------- ----
Extension Period together with all such previous and further extensions thereof
may not exceed 20 consecutive quarters or extend beyond the maturity date of the
Deben tures. Upon the termination of any Extension Period and the payment of
all amounts then due, the Debenture Issuer may commence a new Extension Period,
subject to the above requirements.
Subject to the prior approval of the Federal Reserve if such approval
is then required under applicable law, rules, guidelines or policies of the
Federal Reserve, the Regular Trustees shall have the right at any time to
liquidate the Trust and cause the Debentures to be distributed to the holders of
the Securities in liquidation of the Trust.
A1-4
<PAGE>
The Preferred Securities shall be redeemable as provided in the
Declaration.
A1-5
<PAGE>
_____________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security Certificate to:
______________________________________________________________________________
(Insert assignee's social security or tax identification number)
______________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
_________________________________________________________________
_________________________________________________________________
___________________________________________________________ agent to transfer
this Preferred Security Certificate on the books of the Trust. The agent may
substitute another to act for him or her.
Date: _______________________
Signature: __________________
(Sign exactly as your name appears on the other side of this Preferred Security
Certificate)
Signature Guarantee//: ___________________________________
// [Signature must be guaranteed by an "eligible guarantor institution" that
is a bank, stockbroker, savings and loan association or credit union meeting the
requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP") or
-----
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities and Exchange Act of 1934, as amended.]
A1-6
<PAGE>
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number Number of Common Securities
Certificate Evidencing Common Securities
of
BANK ONE CAPITAL I
8.000% Common Securities
(liquidation amount $25 per Common Security)
BANK ONE CAPITAL I, a statutory business trust formed under the laws
of the State of Delaware (the "Trust"), hereby certifies that BANK ONE
-----
CORPORATION (the "Holder") is the registered owner of 618,557 common securities
------
of the Trust representing undivided beneficial interests in the assets of the
Trust designated the 8.000% Common Securities (liquidation amount $25 per Common
Security) (the "Common Securities"). The Common Securities are not transfer
-----------------
able. 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 provi sions of the Amended and Restated
Declaration of Trust of the Trust dated as of September 20, 1999, 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 enti tled to the benefits thereunder.
THIS SECURITY IS NOT A SAVINGS OR DEPOSIT ACCOUNT OR OTHER OBLIGATION
OF A BANK AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY
OTHER GOVERNMENTAL AGENCY.
A2-1
<PAGE>
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
September, 1999.
BANK ONE CAPITAL I
By:________________________________
Name: Robert A. Rosholt
Title: Regular Trustee
CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Declaration.
Dated:
THE CHASE MANHATTAN BANK,
as Institutional Trustee
By: _____________________
Authorized Officer
A2-2
<PAGE>
[FORM OF REVERSE OF SECURITY]
Distributions will be payable on each Common Security at a fixed rate
per annum of 8.000% (the "Distribution Rate") of the stated liquidation amount
-----------------
of $25 per Common Security. Distributions in arrears for more than one quarter
will bear interest thereon compounded quarterly at the Distribution Rate (to the
extent permitted by applicable law). The term "Distributions" as used herein
-------------
includes such cash distributions and any such interest payable unless otherwise
stated. A Distribution is payable only to the extent that payments are made in
respect of the Debentures held by the Institutional Trustee and to the extent
the Institutional Trustee has funds available therefor. The Distribution Amount
payable for each Distribution Period will be calculated as provided in the
Declaration.
Except as otherwise described below, distributions on the Common
Securities will be cumulative, will accrue from September 20, 1999, and will be
payable quarterly in arrears, on February 15, May 15, August 15 and November 15
of each year, commencing on November 15, 1999 to the Holders thereof as they
appear on the books and records of the Trust on the relevant record dates.
While the Common Securities remain in book-entry only form, the relevant record
dates shall be one Business Day prior to the relevant payment dates. If the
Common Securities shall not continue to remain in book-entry only form, the
relevant record dates for the Common Securities shall be February 1, May 1,
August 1 and November 1, as the case may be. The Debenture Issuer has the right
under the Indenture to defer payments of interest by extending the interest
payment period from time to time on the Debentures for a period not exceeding 20
consecutive quarters (each an "Extension Period"), provided that no Extension
---------------- -------- ----
Period shall end on a day other than an interest payment date for the Debentures
or shall extend beyond the date of the maturity of the Debentures. As a
consequence of such deferral, Distributions will also be deferred. Despite such
deferral, quar terly Distributions will continue to accrue with interest
thereon (to the extent permitted by applicable law) at the Distribution Rate
compounded quarterly during any such Extension Period. At the end of the
Extension Period, all accrued and unpaid Distributions (but only to the extent
payments are made in respect of the Debentures held by the Institutional Trustee
and to the extent the Institutional Trustee has funds available therefor) will
be payable to the Holders of the Securities in whose names the Securities are
registered in the Security Register on the record date relating to the
Distribution Date on which the Extension Period ends. Prior to the termination
of any such Extension Period, the Debenture Issuer may further defer payments of
interest by further extending such Extension Period; provided that such
-------- ----
Extension Period together with all such previous and further extensions thereof
may not exceed 20 consecutive quarters or extend beyond the maturity date of the
Deben tures. Upon the termination of any Extension Period and the payment of
all amounts then due, the Debenture Issuer may commence a new Extension Period,
subject to the above requirements.
Subject to the prior approval of the Federal Reserve if such approval
is then required under applicable law, rules, guidelines or policies of the
Federal Reserve, the Regular Trustees shall have the right at any time to
liquidate the Trust and cause the Debentures to be distributed to the holders of
the Securities in liquidation of the Trust.
A2-3
<PAGE>
The Common Securities shall be redeemable as provided in the
Declaration.
A2-4
<PAGE>
EXHIBIT B
SPECIMEN OF DEBENTURE
A2-5
<PAGE>
EXHIBIT C
UNDERWRITING AGREEMENT
A2-6
<PAGE>
Exhibit 4.27
- --------------------------------------------------------------------------------
PREFERRED SECURITIES GUARANTEE AGREEMENT
BANK ONE CAPITAL I
Dated as of September 20, 1999
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE I DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation.................................... 1
ARTICLE II TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.................................. 5
SECTION 2.2 Lists of Holders of Securities.................................... 5
SECTION 2.3 Reports by the Preferred Guarantee Trustee........................ 5
SECTION 2.4 Periodic Reports to Preferred Guarantee Trustee................... 5
SECTION 2.5 Evidence of Compliance with Conditions Precedent.................. 6
SECTION 2.6 Events of Default; Waiver......................................... 6
SECTION 2.7 Event of Default; Notice.......................................... 6
SECTION 2.8 Conflicting Interests............................................. 6
ARTICLE III POWERS, DUTIES AND RIGHTS OF PREFERRED GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Preferred Guarantee Trustee.............. 7
SECTION 3.2 Certain Rights of Preferred Guarantee Trustee..................... 8
SECTION 3.3 Not Responsible for Recitals or Issuance of Preferred Securities
Guarantee......................................................... 11
ARTICLE IV PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 Preferred Guarantee Trustee; Eligibility.......................... 11
SECTION 4.2 Appointment, Removal and Resignation of Preferred
Guarantee Trustee................................................. 12
ARTICLE V GUARANTEE
SECTION 5.1 Guarantee......................................................... 13
SECTION 5.2 Waiver of Notice and Demand....................................... 13
SECTION 5.3 Obligations Not Affected.......................................... 13
SECTION 5.4 Rights of Holders................................................. 14
SECTION 5.5 Guarantee of Payment.............................................. 15
SECTION 5.6 Subrogation....................................................... 15
SECTION 5.7 Independent Obligations........................................... 15
ARTICLE VI LIMITATION OF TRANSACTIONS, SUBORDINATION
SECTION 6.1 Limitation of Transactions........................................ 15
SECTION 6.2 Subordination..................................................... 16
SECTION 6.3 Pari Passu Guarantees............................................. 16
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
ARTICLE VII TERMINATION
SECTION 7.1 Termination....................................................... 16
ARTICLE VIII INDEMNIFICATION
SECTION 8.1 Exculpation....................................................... 17
SECTION 8.2 Indemnification................................................... 17
SECTION 8.3 Compensation and Reimbursement.................................... 17
ARTICLE IX MISCELLANEOUS
SECTION 9.1 Successors and Assigns............................................ 18
SECTION 9.2 Amendments........................................................ 18
SECTION 9.3 Notices........................................................... 18
SECTION 9.4 Benefit........................................................... 19
SECTION 9.5 Governing Law..................................................... 19
</TABLE>
<PAGE>
PREFERRED SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Preferred Securities Guarantee"), dated
------------------------------
as of September 20, 1999, is executed and delivered by BANK ONE CORPORATION, a
Delaware corporation (the "Guarantor"), and The Chase Manhattan Bank, as trustee
---------
(the "Preferred Guarantee Trustee"), for the benefit of the Holders (as defined
---------------------------
herein) from time to time of the Preferred Securities (as defined herein) of
BANK ONE Capital I, a Delaware statutory business trust (the "Issuer").
------
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of September 20, 1999, among the trustees of the Issuer
-----------
named therein, the Guarantor, as sponsor, and the holders from time to time of
undivided beneficial interests in the assets of the Issuer, the Issuer is
issuing on the date hereof 20,000,000 preferred securities, having an aggregate
liquidation amount of $500,000,000, designated the 8.000% Preferred Securities
(the "Preferred Securities") (or up to 23,000,000 Preferred Securities having an
--------------------
aggregate liquidation amount of $575,000,000 if the underwriters' over-allotment
option is exercised in full);
WHEREAS, as incentive for the Holders to purchase the Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Preferred Securities Guarantee, to pay to the
Holders of the Preferred Securities the Guarantee Payments (as defined herein)
and to make certain other payments on the terms and conditions set forth herein.
WHEREAS, the Guarantor is also executing and delivering a guarantee
agreement (the "Common Securities Guarantee") in substantially identical terms
---------------------------
to this Preferred Securities Guarantee for the benefit of the holders of the
Common Securities (as defined herein), except that if an Event of Default (as
defined in the Indenture), has occurred and is continuing, the rights of holders
of the Common Securities to receive Guarantee Payments under the Common
Securities Guarantee are subordinated to the rights of Holders of Preferred
Securities to receive Guarantee Payments under this Preferred Securities
Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Preferred Securities
Guarantee for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
------------------------------
In this Preferred Securities Guarantee, unless the context otherwise
requires:
<PAGE>
(a) Capitalized terms used in this Preferred Securities Guarantee but
not defined in the preamble above have the respective meanings assigned to
them in this Section 1.1 or in the Declaration, as the case may be;
(b) a term defined anywhere in this Preferred Securities Guarantee has
the same meaning throughout;
(c) all references to "the Preferred Securities Guarantee" or "this
Preferred Securities Guarantee" are to this Preferred Securities Guarantee
as modified, supplemented or amended from time to time;
(d) all references in this Preferred Securities Guarantee to Articles
and Sections are to Articles and Sections of this Preferred Securities
Guarantee, unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Preferred Securities Guarantee, unless otherwise defined
in this Preferred Securities Guarantee or unless the context otherwise
requires; and
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of
---------
the Securities Act of 1933, as amended, or any successor rule thereunder.
"Business Day" means a day other than (a) a Saturday or Sunday, (b) a
------------
day on which banking institutions in The City of New York or the City of Chicago
are authorized or required by law or executive order to remain closed, or (c) a
day on which the Institutional Trustee's Corporate Trust Office or the Corporate
Trust Office of the Debenture Trustee is closed for business.
"Common Securities" means the securities representing common undivided
-----------------
beneficial interests in the assets of the Issuer.
"Corporate Trust Office" means (i) when used with respect to the
----------------------
Preferred Guarantee Trustee, the principal corporate office of the Preferred
Guarantee Trustee located in New York, New York which on the date of this
Trustee Agreement is 450 West 33rd Street, New York, New York 10001 - Attention:
Capital Markets Fiduciary Services, (ii) when used with respect to the Debenture
Trustee, its Principal Corporate Trust Office as defined in the Indenture, and
(iii) when used with respect to the Institutional Trustee, its Corporate Trust
Office as defined in the Declaration.
"Covered Person" means any Holder or beneficial owner of Preferred
--------------
Securities.
<PAGE>
"Debentures" means the series of junior subordinated debt securities
----------
of the Guarantor designated the Floating Rate Junior Subordinated Deferrable
Interest Debentures due September 15, 2029, held by the Institutional Trustee
(as defined in the Declaration) of the Issuer.
"Event of Default" means a default by the Guarantor on any of its
----------------
payment or other obligations under this Preferred Securities Guarantee.
"Guarantee Payments" means the following payments or distributions,
------------------
without duplication, with respect to the Preferred Securities, to the extent not
paid or made by the Issuer: (i) any accrued and unpaid Distributions (as defined
in the Declaration) that are required to be paid on such Preferred Securities to
the extent the Issuer shall have funds available therefor, (ii) the redemption
price, including all accrued and unpaid Distributions to the date of redemption
(the "Redemption Price") to the extent the Issuer has funds available therefor,
----------------
with respect to any Preferred Securities called for redemption by the Issuer,
and (iii) upon a voluntary or involuntary dissolution, winding-up or termination
of the Issuer (other than in connection with the distribution of Debentures to
the Holders in exchange for Preferred Securities as provided in the
Declaration), the lesser of (a) the aggregate of the liquidation amount and all
accrued and unpaid Distributions on the Preferred Securities to the date of
payment, to the extent the Issuer shall have funds available therefor, and (b)
the amount of assets of the Issuer remaining available for distribution to
Holders in liquidation of the Issuer (in either case, the "Liquidation
-----------
Distribution"). If an event of default under the Indenture has occurred and is
- ------------
continuing, the rights of holders of the Common Securities to receive payments
under the Common Securities Guarantee Agreement are subordinated to the rights
of Holders of Preferred Securities to receive Guarantee Payments.
"Holder" shall mean any holder, as registered on the books and records
------
of the Issuer of any Preferred Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Preferred Guarantee Trustee, any
------------------
Affiliate of the Preferred Guarantee Trustee, or any officers, directors,
shareholders, members, partners, employees, representatives, nominees,
custodians or agents of the Preferred Guarantee Trustee.
"Indenture" means the Indenture dated as of January 1, 1997, among the
---------
Guarantor (the "Debenture Issuer") and The Chase Manhattan Bank, as trustee, and
----------------
any indenture supplemental thereto pursuant to which certain subordinated debt
securities of the Debenture Issuer are to be issued to the Institutional Trustee
of the Issuer.
"Majority in liquidation amount of the Securities" means, except as
------------------------------------------------
provided by the Trust Indenture Act, a vote by Holder(s) of Preferred
Securities, voting separately as a class, of more than 50% of the liquidation
amount (including the stated amount that would be paid on redemption,
3
<PAGE>
liquidation or otherwise, plus accrued and unpaid Distributions to the date upon
which the voting percentages are determined) of all Preferred Securities.
"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 Preferred Securities Guarantee (other than pursuant to
Section 314(a)(4) of the Trust Indenture Act) shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definition relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"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 Chase Manhattan Bank, until a
---------------------------
Successor Preferred Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Preferred Securities Guarantee and
thereafter means each such Successor Preferred Guarantee Trustee.
"Responsible Officer" means, when used with respect to the Preferred
-------------------
Guarantee Trustee, any officer assigned to the Corporate Trust Office of the
Preferred Guarantee Trustee, including any managing director, vice president,
assistant vice president, senior trust officer, trust officer, assistant
treasurer, assistant secretary or any other officer of the Preferred Guarantee
Trustee, customarily performing functions similar to those performed by any of
the above designated officers, and also, with respect to a particular corporate
trust matter, any other officer, to whom such matter is referred because of such
officer's knowledge of and familiarity with the particular subject.
"Successor Preferred Guarantee Trustee" means a successor Preferred
-------------------------------------
Guarantee Trustee possessing the qualifications to act as Preferred Guarantee
Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
-------------------
amended.
4
<PAGE>
"Trust Securities" means the Common Securities and the Preferred
----------------
Securities.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application
--------------------------------
(a) This Preferred Securities Guarantee is subject to the provisions
of the Trust Indenture Act that are required to be part of this Preferred
Securities Guarantee and shall, to the extent applicable, be governed by
such provisions; and
(b) if and to the extent that any provision of this Preferred
Securities Guarantee limits, qualifies or conflicts with the duties imposed
by Section 310 to 317, inclusive, of the Trust Indenture Act, such imposed
duties shall control.
SECTION 2.2 Lists of Holders of Securities
------------------------------
(a) The Guarantor shall provide the Preferred Guarantee Trustee with a
list, in such form as the Preferred Guarantee Trustee may reasonably
require, of the names and addresses of the Holders ("List of Holders"), (i)
---------------
within 14 days after each record date for payment of Distributions (as
defined in the Declaration) as of such record date, and (ii) at any other
time within 30 days of receipt by the Guarantor of a written request for a
List of Holders as of a date no more than 14 days before such List of
Holders is given to the Preferred Guarantee Trustee provided, that the
--------
Guarantor shall not 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 Preferred Guarantee Trustee by the Guarantor. The
Preferred Guarantee Trustee may destroy any List of Holders previously
given to it on receipt of a new List of Holders.
(b) The Preferred Guarantee Trustee shall comply with its obligations
under Sections 311(a), 311(b) and Section 312(b) of the Trust Indenture
Act.
SECTION 2.3 Reports by the Preferred Guarantee Trustee
------------------------------------------
Within 60 days after November 15 of each year commencing in 1999, the
Preferred Guarantee Trustee shall provide to the Holders such reports as are
required by Section 313(a) of the Trust Indenture Act, if any, in the form and
in the manner provided by Section 313 of the Trust Indenture Act. The Preferred
Guarantee Trustee shall also comply with the other requirements of Section 313
of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Preferred Guarantee Trustee
-----------------------------------------------
5
<PAGE>
The Guarantor shall provide to the Preferred Guarantee Trustee such
documents, reports and information as required by Section 314 (if any) and the
compliance certificate required by Section 314 of the Trust Indenture Act in the
form, in the manner and at the times required by Section 314 of the Trust
Indenture Act, provided that such compliance certificate shall be delivered on
or before 120 days after the end of each fiscal year of the Guarantor.
SECTION 2.5 Evidence of Compliance with Conditions Precedent
------------------------------------------------
The Guarantor shall provide to the Preferred Guarantee Trustee such
evidence of compliance with any conditions precedent, if any, provided for in
this Preferred Securities Guarantee 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
-------------------------
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 and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of this
Preferred Securities Guarantee, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 2.7 Event of Default; Notice
------------------------
(a) The Preferred Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders, notices of all Events of Default actually known to
a Responsible Officer of the Preferred Guarantee Trustee, unless such
defaults have been cured before the giving of such notice, provided, that,
the Preferred Guarantee Trustee shall be protected in withholding such
notice if and so long as a Responsible Officer of the Preferred Guarantee
Trustee in good faith determines that the withholding of such notice is in
the interests of the Holders of the Preferred Securities.
(b) The Preferred Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Preferred Guarantee Trustee
shall have received written notice thereof from the Guarantor or a Holder,
or a Responsible Officer of the Preferred Guarantee Trustee charged with
the administration of the Declaration shall have obtained actual knowledge
thereof.
SECTION 2.8 Conflicting Interests
---------------------
6
<PAGE>
The Declaration shall be deemed to be specifically described in this
Preferred Securities Guarantee for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
PREFERRED GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Preferred Guarantee Trustee
----------------------------------------------------
(a) This Preferred Securities Guarantee shall be held by the Preferred
Guarantee Trustee for the benefit of the Holders, and the Preferred
Guarantee Trustee shall not transfer this Preferred Securities Guarantee to
any Person except a Holder exercising his or her rights pursuant to
Section 5.4(c) or to a Successor Preferred Guarantee Trustee on acceptance
by such Successor Preferred Guarantee Trustee of its appointment to act as
Successor Preferred Guarantee Trustee. The right, title and interest of
the Preferred Guarantee Trustee shall automatically vest in any Successor
Preferred Guarantee Trustee, and such vesting and cessation of title shall
be effective whether or not conveyancing documents have been executed and
delivered pursuant to the appointment of such Successor Preferred Guarantee
Trustee.
(b) If an Event of Default actually known to a Responsible Officer of
the Preferred Guarantee Trustee has occurred and is continuing, the
Preferred Guarantee Trustee shall enforce this Preferred Securities
Guarantee for the benefit of the Holders.
(c) The Preferred Guarantee 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 Preferred Securities Guarantee, and no
implied covenants shall be read into this Preferred Securities Guarantee
against the Preferred Guarantee Trustee. In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section 2.6) and is
actually known to a Responsible Officer of the Preferred Guarantee Trustee,
the Preferred Guarantee Trustee shall exercise such of the rights and
powers vested in it by this Preferred Securities Guarantee, and use the
same degree of care and skill in its exercise thereof, as a prudent person
would exercise or use under the circumstances in the conduct of his or her
own affairs.
(d) No provision of this Preferred Securities Guarantee shall be
construed to relieve the Preferred Guarantee Trustee from liability for its
own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
7
<PAGE>
(i) prior to the occurrence of any 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 Preferred Guarantee
Trustee shall be determined solely by the express provisions of
this Preferred Securities Guarantee, and the Preferred Guarantee
Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Preferred Securities Guarantee, and no implied covenants or
obligations shall be read into this Preferred Securities
Guarantee against the Preferred Guarantee Trustee; and
(B) in the absence of bad faith on the part of the Preferred
Guarantee Trustee, the Preferred Guarantee 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 Preferred Guarantee
Trustee and conforming to the requirements of this Preferred
Securities Guarantee; but in the case of any such certificates or
opinions that by any provision hereof are specifically required
to be furnished to the Preferred Guarantee Trustee, the Preferred
Guarantee Trustee shall be under a duty to examine the same to
determine whether or not they conform to the require ments of
this Preferred Securities Guarantee;
(ii) the Preferred Guarantee Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer of the
Preferred Guarantee Trustee, unless it shall be proved that the
Preferred Guarantee Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(iii) the Preferred Guarantee 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 Preferred Securities relating to
the time, method and place of conducting any proceeding for any remedy
available to the Preferred Guarantee Trustee, or exercising any trust
or power conferred upon the Preferred Guarantee Trustee under this
Preferred Securities Guarantee; and
(iv) no provision of this Preferred Securities Guarantee shall
require the Preferred Guarantee 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 the Preferred Guarantee Trustee 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
Preferred Securities Guarantee or
8
<PAGE>
indemnity, reasonably satisfactory to the Preferred Guarantee Trustee,
against such risk or liability is not reasonably assured to it.
SECTION 3.2 Certain Rights of Preferred Guarantee Trustee
---------------------------------------------
(a) Subject to the provisions of Section 3.1:
(i) The Preferred Guarantee Trustee may conclusively rely, and
shall be fully protected in acting or refraining from acting upon, any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed, sent or presented by the
proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this
Preferred Securities Guarantee shall be sufficiently evidenced by an
Officers' Certificate.
(iii) Whenever, in the administration of this Preferred
Securities Guarantee, the Preferred Guarantee Trustee shall deem it
desirable that a matter be proved or established before taking,
suffering or omitting any action hereunder, the Preferred Guarantee
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 Guarantor.
(iv) The Preferred Guarantee Trustee shall have no duty to see
to any recording, filing or registration of any instrument (or any
rerecording, refiling or registration thereof).
(v) The Preferred Guarantee Trustee may consult with counsel of
its selection, and the advice or opinion of such counsel with respect
to legal matters shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with such advice or opinion.
Such counsel may be counsel to the Guarantor or any of its Affiliates
and may include any of its employees. The Preferred Guarantee Trustee
shall have the right at any time to seek instructions concerning the
administration of this Preferred Securities Guarantee from any court
of competent jurisdiction.
(vi) The Preferred Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by
this Preferred Securities Guarantee at the request or direction of any
Holder, unless such Holder shall have provided to the Preferred
Guarantee Trustee such security and indemnity, reasonably
9
<PAGE>
satisfactory to the Preferred Guarantee Trustee, against the costs,
expenses (including attorneys' fees and expenses and the expenses of
the Preferred Guarantee 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 Preferred Guarantee Trustee; provided that, nothing
contained in this Section 3.2(a)(vi) shall be taken to relieve the
Preferred Guarantee Trustee, upon the occurrence of an Event of
Default, of its obligation to exercise the rights and powers vested in
it by this Preferred Securities Guarantee.
(vii) The Preferred Guarantee Trustee shall not be bound to make
any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Preferred Guarantee
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit.
(viii) The Preferred Guarantee Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents, nominees, custodians or attorneys,
and the Preferred Guarantee 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 Preferred Guarantee Trustee or its
agents hereunder shall bind the Holders, and the signature of the
Preferred Guarantee Trustee or its agents alone shall be sufficient
and effective to perform any such action. No third party shall be
required to inquire as to the authority of the Preferred Guarantee
Trustee to so act or as to its compliance with any of the terms and
provisions of this Preferred Securities Guarantee, both of which shall
be conclusively evidenced by the Preferred Guarantee Trustee's or its
agent's taking such action.
(x) Whenever in the administration of this Preferred
Securities Guarantee the Preferred Guarantee Trustee shall deem it
desirable to receive instructions with respect to enforcing any remedy
or right or taking any other action hereunder, the Preferred Guarantee
Trustee (i) may request instructions from the Holders of a Majority in
liquidation amount of the Preferred Securities, (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.
(xi) The Preferred Guarantee Trustee shall not be liable for
any action taken, suffered or omitted to be taken by it in good faith
and reasonably believed by
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it to be authorized or within the discretion or rights or powers
conferred upon it by this Preferred Securities Guarantee.
(b) No provision of this Preferred Securities Guarantee shall be
deemed to impose any duty or obligation on the Preferred Guarantee 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 Preferred Guarantee 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 Preferred Guarantee Trustee
shall be construed to be a duty.
SECTION 3.3 Not Responsible for Recitals or Issuance of Preferred Securities
----------------------------------------------------------------
Guarantee
- ---------
The recitals contained in this Preferred Securities Guarantee shall be
taken as the statements of the Guarantor, and the Preferred Guarantee Trustee
does not assume any responsibility for their correctness. The Preferred
Guarantee Trustee makes no representation as to the validity or sufficiency of
this Preferred Securities Guarantee.
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 Preferred Guarantee Trustee; Eligibility
----------------------------------------
(a) There shall at all times be a Preferred Guarantee Trustee which
shall:
(i) not be an Affiliate of the Guarantor; 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 Securities and Exchange 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 fifty million U.S. dollars ($50,000,000), and subject to
supervision or examination by Federal, State, Territorial or District
of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of
the supervising or examining authority referred to above, then, for
the purposes of this Section 4.1(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.
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(iii) If at any time the Preferred Guarantee Trustee shall cease to be
eligible to so act under Section 4.1(a), the Preferred Guarantee Trustee
shall immediately resign in the manner and with the effect set out in
Section 4.2(c).
(iv) If the Preferred Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Preferred Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust
Indenture Act, subject to the penultimate paragraph thereof. To the extent
permitted by the Trust Indenture Act, the Preferred Guarantee Trustee shall
not be deemed to have a conflicting interest with respect to the Preferred
Securities Guarantee by virtue of being trustee under the Indentures
originally dated as of November 15, 1996 and January 1, 1997, between the
Company and the Preferred Guarantee Trustee or by virtue of being (i) a
trustee on the Series A Declaration, the Series B Declaration or the 1997
Declaration (as defined in the Declaration), (ii) a trustee on the Series A
Guarantee, the Series B Guarantee or the 1997 Guarantee (as defined in the
Declaration), or (iii) a trustee on the Declaration.
SECTION 4.2 Appointment, Removal and Resignation of Preferred Guarantee
-----------------------------------------------------------
Trustee
- -------
(a) Subject to Section 4.2(b), the Preferred Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor except
during an Event of Default.
(b) The Preferred Guarantee Trustee shall not be removed in accordance
with Section 4.2(a) until a Successor Preferred Guarantee Trustee has been
appointed and has accepted such appointment by written instrument executed
by such Successor Preferred Guarantee Trustee and delivered to the
Guarantor.
(c) The Preferred Guarantee Trustee appointed to office shall hold
office until a Successor Preferred Guarantee Trustee shall have been
appointed or until its removal or resignation. The Preferred Guarantee
Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing executed by the Preferred Guarantee
Trustee and delivered to the Guarantor, which resignation shall not take
effect until a Successor Preferred Guarantee Trustee has been appointed and
has accepted such appointment by instrument in writing executed by such
Successor Preferred Guarantee Trustee and delivered to the Guarantor and
the resigning Preferred Guarantee Trustee.
(d) If no Successor Preferred Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.2 within
60 days after delivery of an instrument of removal or resignation, the
Preferred Guarantee Trustee resigning or being removed may petition any
court of competent jurisdiction for appointment of a Successor Preferred
Guarantee Trustee. Such court may thereupon, after prescribing such
notice, if any, as it may deem proper, appoint a Successor Preferred
Guarantee Trustee.
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(e) No Preferred Guarantee Trustee shall be liable for the acts or
omissions to act of any Successor Preferred Guarantee Trustee.
(f) Upon termination of this Preferred Securities Guarantee or removal
or resignation of the Preferred Guarantee Trustee pursuant to this Section
4.2, the Guarantor shall pay to the Preferred Guarantee Trustee all amounts
due to the Preferred Guarantee Trustee accrued to the date of such
termination, removal or resignation.
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ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee
---------
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts theretofore
paid by the Issuer), as and when due, regardless of any defense, right of set-
off or counterclaim that the Issuer may have or assert. The Guarantor's
obligation to make a Guarantee Payment may be satisfied by direct payment of the
required amounts by the Guarantor to the Holders or by causing the Issuer to pay
such amounts to the Holders.
SECTION 5.2 Waiver of Notice and Demand
---------------------------
The Guarantor hereby waives notice of acceptance of this Preferred
Securities Guarantee and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first against
the Issuer or any other Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
SECTION 5.3 Obligations Not Affected
------------------------
The obligations, covenants, agreements and duties of the Guarantor
under this Preferred Securities Guarantee shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the Preferred Securities
to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or
any other sums payable under the terms of the Preferred Securities or the
extension of time for the performance of any other obligation under,
arising out of, or in connection with, the Preferred Securities (other than
an extension of time for payment of Distributions, Redemption Price,
Liquidation Distribution or other sum payable that results from the
extension of any interest payment period on the Debentures or any extension
of the maturity date of the Debentures permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Holders
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pursuant to the terms of the Preferred Securities, or any action on the
part of the Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the Issuer
or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute
a legal or equitable discharge or defense of a guarantor, it being the
intent of this Section 5.3 that the obligations of the Guarantor hereunder
shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4 Rights of Holders
-----------------
(a) The Issuer expressly acknowledges that (i) this Preferred
Securities Guarantee will be deposited with the Preferred Guarantee Trustee
to be held for the benefit of the Holders and (ii) the Preferred Guarantee
Trustee has the right to enforce this Preferred Securities Guarantee on
behalf of the Holders.
(b) The Holders of a Majority in liquidation amount of the Preferred
Securities have the right to direct the time, method and place of
conducting of any proceeding for any remedy available to the Preferred
Guarantee Trustee in respect of this Preferred Securities Guarantee or
exercising any trust or power conferred upon the Preferred Guarantee
Trustee under this Preferred Securities Guarantee; provided, however, that,
-------- -------
subject to Section 3.1, the Preferred Guarantee Trustee shall have the
right to decline to follow any such direction if the Preferred Guarantee
Trustee shall determine that the action so directed would be unjustly
prejudicial to the Holders not taking part in such direction or if the
Preferred Guarantee Trustee being advised by counsel determines that the
action or proceeding so directed may not lawfully be taken or if the
Preferred Guarantee Trustee in good faith by its board of directors or
trustees, executive committee, or a trust committee of directors or
trustees and/or Responsible Officers shall determine that the action or
proceeding so directed would involve the Preferred Guarantee Trustee in
personal liability.
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(c) If the Preferred Guarantee Trustee fails to enforce such Preferred
Securities Guarantee, any Holder may institute a legal proceeding directly
against the Guarantor to enforce the Preferred Guarantee Trustee's rights
under this Preferred Securities Guarantee, without first instituting a
legal proceeding against the Issuer, the Preferred Guarantee Trustee or any
other person or entity. The Guarantor waives any right or remedy to
require that any action be brought first against the Issuer or any other
person or entity before proceeding directly against the Guarantor.
SECTION 5.5 Guarantee of Payment
--------------------
This Preferred Securities Guarantee creates a guarantee of payment and
not of collection.
SECTION 5.6 Subrogation
-----------
The Guarantor shall be subrogated to all (if any) rights of the
Holders against the Issuer in respect of any amounts paid to such Holders by the
Guarantor under this Preferred Securities Guarantee; provided, however, that the
Guarantor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any right that it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as
a result of payment under this Preferred Securities Guarantee, if, at the time
of any such payment, any amounts are due and unpaid under this Preferred
Securities Guarantee. If any amount shall be paid to the Guarantor in violation
of the preceding sentence, the Guarantor agrees to hold such amount in trust for
the Holders and to pay over such amount to the Holders.
SECTION 5.7 Independent Obligations
-----------------------
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Preferred
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Preferred
Securities Guarantee notwithstanding the occurrence of any event referred to in
subsections (a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS, SUBORDINATION
SECTION 6.1 Limitation of Transactions
--------------------------
So long as any Preferred Securities remain outstanding, if there shall
have occurred an Event of Default, then the Guarantor shall not and it shall not
permit any subsidiary to, (a) declare or pay any dividends or distributions on,
or redeem, purchase, acquire or make a liquidation payment
16
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with respect to, any shares of the Guarantor's capital stock, or (b) make any
payment of principal of or interest or premium, if any, on or repay, repurchase
or redeem any debt securities of the Guarantor that rank pari passu in all
respects with or junior in interest to the Debentures or make any guarantee
payments with respect to any guarantee by the Guarantor of debt securities of
any subsidiary of the Guarantor if such guarantee ranks pari passu with or
junior in interest to the Debentures (other than (a) dividends or distributions
in common stock of the Guarantor, (b) any declaration of a dividend in
connection with the implementation of a Rights Plan (as defined in the
Indenture), or the issuance of stock under any such Rights Plan in the future,
or the redemption or repurchase of any such rights pursuant thereto, (c)
payments under this Preferred Securities Guarantee, (d) purchases of common
stock related to the issuance of common stock or rights under any of the
Guarantor's benefit plans for its directors, officers or employees and (e)
obligations under any dividend reinvestment and stock purchase plan).
SECTION 6.2 Subordination.
-------------
The obligations of the Guarantor under this Preferred Securities
Guarantee will constitute unsecured obligations of the Guarantor and will rank
subordinate and junior in right of payments to the Senior Indebtedness and
General Obligations (each as defined in the Indenture) to the extent and in the
manner set forth in the Indenture. The obligations of the Guarantor under this
Preferred Securities Guarantee do not constitute Senior Indebtedness or General
Obligations.
SECTION 6.3 Pari Passu Guarantees
---------------------
The obligations of the Guarantor under this Preferred Securities
Guarantee shall rank pari passu with the obligations of the Guarantor under (i)
any similar Bank One Guarantee (as defined in the Indenture) issued by the
Guarantor on behalf of the holders of preferred or capital securities issued by
any Bank One Capital Trust (as defined in the Indenture) and (ii) the Series A
Guarantee, the Series B Guarantee and the 1997 Guarantee.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination
-----------
This Preferred Securities Guarantee shall terminate upon (i) full
payment of the Redemption Price of all Preferred Securities, (ii) upon the
distribution of the Debentures to the Holders of all of the Preferred Securities
or (iii) upon full payment of the amounts payable in accordance with the
Declaration upon liquidation of the Issuer. Notwithstanding the foregoing, this
Preferred Securities Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder must restore payment
of any sums paid under the Preferred Securities or under this Preferred
Securities Guarantee.
17
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ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation
-----------
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Guarantor 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 in accordance with this
Preferred Securities Guarantee and in a manner that such Indemnified Person
reasonably believed to be within the scope of the authority conferred on
such Indemnified Person by this Preferred Securities Guarantee 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.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person as
to matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence, 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 8.2 Indemnification
---------------
The Guarantor agrees to indemnify each Indemnified Person for, and to
hold each Indemnified Person harmless against, any and all loss, liability,
damage, claim 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 8.2 shall survive the termination of this
Preferred Securities Guarantee or the earlier resignation or removal of the
Preferred Guarantee Trustee.
SECTION 8.3 Compensation and Reimbursement
------------------------------
The Guarantor agrees:
(a) to pay to the Preferred Guarantee Trustee from time to time
reasonable compensation for all services rendered by it hereunder in such
amounts as the Guarantor and the
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Preferred Guarantee Trustee shall agree from time to time (which compensation
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust); and
(b) to reimburse the Preferred Guarantee Trustee upon its request for
all reasonable expenses, disbursements and advances incurred or made by the
Preferred Guarantee Trustee in accordance with any provision of this Preferred
Securities Guarantee (including the reasonable compensation and the expenses and
disbursements or its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith.
The obligations of the Guarantor under this Section 8.3 shall survive
the termination of this Preferred Securities Guarantee or the earlier
resignation or removal of the Preferred Guarantee Trustee.
To secure the Guarantor's payment obligations in this Section and in
Section 8.2, the Guarantor and the Holders agree that the Preferred Guarantee
Trustee shall have a lien prior to the Preferred Securities on all money or
property held or collection by the Guarantee Trustee. Such lien shall survive
the termination of this Preferred Securities Guarantee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns
----------------------
All guarantees and agreements contained in this Preferred Securities
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Preferred Securities then outstanding.
SECTION 9.2 Amendments
----------
Except with respect to any changes that do not adversely affect the
rights of Holders (in which case no consent of Holders will be required), this
Preferred Securities Guarantee may only be amended with the prior approval of
the Holders of at least a Majority 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 the outstanding Preferred Securities. The provisions of the
Declaration with respect to consents to amendments thereof (whether at a meeting
or otherwise) of Holders of the Securities shall apply to the giving of such
approval.
SECTION 9.3 Notices
-------
19
<PAGE>
All notices provided for in this Preferred Securities Guarantee 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 Preferred Guarantee Trustee, at the Preferred
Guarantee Trustee's mailing address set forth below (or such other address
as the Preferred Guarantee Trustee may give notice of to the Holders and
the Guarantor):
The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Attention: Capital Markets Fiduciary Services
Telecopy: (212) 946-8159/8160
(b) If given to the Guarantor, at the Guarantor's mailing address set
forth below (or such other address as the Guarantor may give notice of to
the Holders and the Preferred Guarantee Trustee):
BANK ONE CORPORATION
1 Bank One Plaza
Chicago, Illinois 60670
Attention: Treasurer
Telecopy: (312) 732-3366
(c) If given to any Holder, at the address set forth on the books and
records of the Issuer.
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 9.4 Benefit
-------
This Preferred Securities Guarantee is solely for the benefit of the
Holders and, subject to Section 3.1(a), is not separately transferable from the
Preferred Securities.
SECTION 9.5 Governing Law
-------------
20
<PAGE>
THIS PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
21
<PAGE>
THIS PREFERRED SECURITIES GUARANTEE is executed as of the day and year
first above written.
BANK ONE CORPORATION,
as Guarantor
By:/s/ Robert A. Rosholt
-----------------------------------------
Name: Robert A. Rosholt
Title: Chief Financial Officer and
Executive Vice President
THE CHASE MANHATTAN BANK,
as Preferred Guarantee Trustee
By:/s/ James D. Heaney
----------------------------------------
Name: James D. Heaney
Title: Vice President
22
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EXHIBIT 8.1
-----------
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
919 THIRD AVENUE
NEW YORK 10022-3897
TEL: (212) 735-3000
FAX: (212) 735-2000
September 20, 1999
BANK ONE CORPORATION
1 Bank One Plaza
Chicago, Illinois 60670
BANK ONE Capital I
BANK ONE Capital II
BANK ONE Capital III
BANK ONE Capital IV
BANK ONE Capital V
c/o BANK ONE CORPORATION
1 Bank One Plaza
Chicago, Illinois 60670
Re: Registration Statement on Form S-3
(Registration No. 333-80903)
----------------------------------
Ladies and Gentlemen:
We have acted as counsel for BANK ONE CORPORATION, a Delaware
corporation (the "Company"), BANK ONE Capital I, BANK ONE Capital II, BANK ONE
Capital III, BANK ONE Capital IV, and BANK ONE Capital V, statutory business
trusts formed under the laws of the State of Delaware (the "Trusts"), in
connection with the above-captioned registration statement on Form S-3 (the
"Registration Statement") filed with the Securities and Exchange Commission
(the
<PAGE>
BANK ONE CORPORATION
BANK ONE Capital I-V
September 20, 1999
Page 2
"Commission") for the purpose of registering (i) preferred securities
representing undivided beneficial interests in the assets of the Trusts (the
"Preferred Securities") and (ii) Junior Subordinated Deferrable Interest
Debentures issued by the Company to the Trusts, in connection with the sale of
the Preferred Securities.
We hereby confirm that, although the discussion set forth under the
heading "UNITED STATES FEDERAL INCOME TAXATION" in the Prospectus Supplement for
an offering of Preferred Securities deemed to be part of the Registration
Statement does not purport to discuss all possible United States federal income
tax consequences of the purchase, ownership, and disposition of Preferred
Securities, in our opinion, such discussion constitutes, in all material
respects, a fair and accurate summary of the United States federal income tax
consequences of the purchase, ownership, and disposition of Preferred
Securities, based upon current law. It is possible that contrary positions may
be taken by the Internal Revenue Service and that a court may agree with such
contrary positions.
<PAGE>
BANK ONE CORPORATION
BANK ONE Capital I-V
September 20, 1999
Page 3
This opinion is furnished to you solely for your benefit in connection
with the filing of the Registration Statement and, except as set forth below, is
not to be used, circulated, quoted or otherwise referred to for any other
purpose or relied upon by any other person for any purpose without our prior
written consent. We hereby consent to the use of our name under the heading
"LEGAL MATTERS" in the Prospectus Supplement and the filing of this opinion with
the Commission as Exhibit 8 to the Registration Statement. In giving this
consent, we do not thereby admit that we are within the category of persons
whose consent is required under Section 7 of the Securities Act of 1933, as
amended, or the rules and regulations of the Commission promulgated thereunder.
This opinion is expressed as of the date hereof unless otherwise expressly
stated and applies only to the disclosure under the heading "UNITED STATES
FEDERAL INCOME TAXATION" set forth in the Prospectus Supplement. We disclaim
any undertaking to advise you of any subsequent changes of the facts stated or
assumed herein or any subsequent changes in applicable law.
Very truly yours,
____________________________________________
/s/ SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
