AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 6, 1998
REGISTRATION NO. 333-47125, 333-47125-01 and 333-47125-02
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------------------------------
BANKBOSTON CORPORATION BANKBOSTON CAPITAL TRUST IV
(Exact name of Registrant BANKBOSTON CAPITAL TRUST V
as specified in its (Exact name of Registrants
charter) as specified
in their trust
agreements)
MASSACHUSETTS DELAWARE
(State or other (State or other
jurisdiction of jurisdiction of
incorporation or incorporation or
organization) organization)
_________ _________
04-2471221 TO BE APPLIED FOR
(I.R.S. Employer (I.R.S. Employer
Identification No.) Identification No.)
------------
100 FEDERAL STREET
BOSTON, MASSACHUSETTS 02110
(617) 434-2200
--------------
(Address, including zip code, and telephone number, including area code, of
Registrants' principal executive offices)
--------------
GARY A. SPIESS, ESQ. JANICE B. LIVA, ESQ.
GENERAL COUNSEL AND CLERK ASSISTANT GENERAL COUNSEL
BANKBOSTON CORPORATION AND
100 FEDERAL STREET ASSISTANT CLERK
BOSTON, MASSACHUSETTS BANKBOSTON CORPORATION
02110 100 FEDERAL STREET
(617) 434-2870 BOSTON, MASSACHUSETTS
02110
(617) 434-8630
(Name, address, including zip code, and telephone number, including area
code, of agents for service)
-------------------
COPIES TO:
EDWARD F. PETROSKY, ESQ. GREGORY A. FERNICOLA, ESQ.
BROWN & WOOD LLP SKADDEN, ARPS, SLATE,
ONE WORLD TRADE CENTER MEAGHER & FLOM LLP
NEW YORK, NEW YORK 10048 919 THIRD AVENUE
NEW YORK, NEW YORK 10022
Approximate Date of Commencement of Proposed Sale to the Public:
As soon as practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered
in connection with the formation of a holding company and there is compliance
with General Instruction G, check the following box. / /
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933 ("Securities Act"), check the following box. /x/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule
434 under the Securities Act, please check the following box. / /
-------------------------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
EXPLANATORY NOTE
This Registration Statement contains a form of Prospectus to be used in
connection with offerings of preferred securities (referred to herein
generically as "Capital Securities") of BankBoston Capital Trust IV and
BankBoston Capital Trust V (each, a "Trust"), together with the related
issuances by BankBoston Corporation (the "Corporation") of junior
subordinated deferrable interest debentures and guarantees, in each case as
described herein. The form of Prospectus includes bracketed provisions
relating to fixed rate or floating rate offerings and retail or institutional
offerings. At the time of any offering, the Prospectus will be completed,
which will include the identity of the relevant Trust, the names, compensation
and commitment(s) of the underwriter(s) and the disclosure of pricing
information and all other variable terms, and will be filed with the
Securities and Exchange Commission pursuant to Rule 424 under the Securities
Act of 1933, as amended.
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement
becomes effective. The prospectus shall not constitute an offer to sell or
the solicitation of any offer to buy nor shall there be any sale of these
securities in any jurisdiction in which such offer, solicitation or sale
would be unlawful prior to registration or qualification under the securities
laws of any such jurisdiction.
PROSPECTUS
- ----------
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS, DATED MARCH 6, 1998
$___,000,000
BANKBOSTON CAPITAL TRUST ___
CAPITAL SECURITIES
(LIQUIDATION AMOUNT $_____ PER CAPITAL SECURITY)
FULLY AND UNCONDITIONALLY GUARANTEED, AS DESCRIBED HEREIN, BY
BANKBOSTON CORPORATION
----------------
The Capital Securities (the "Capital Securities") offered hereby will
represent beneficial interests in BankBoston Capital Trust ___, a statutory
business trust formed under the laws of the State of Delaware (the "Trust").
BankBoston Corporation, a Massachusetts corporation (the "Corporation"), will
be the owner of all of the beneficial interests represented by common
securities of the Trust (the "Common Securities", and together with the
Capital Securities, the "Trust Securities"). The Bank of New York is the
Property Trustee of the Trust. The Trust exists for the sole purpose of
issuing the Trust Securities and investing the proceeds thereof in the Junior
Subordinated Deferrable Interest Debentures (the "Junior Subordinated
Debentures") of the Corporation, which are scheduled to mature on ----------,
20__ (the "Stated Maturity Date"). The Capital Securities will have a
preference over the Common Securities under certain circumstances with
respect to cash distributions and amounts payable on liquidation, redemption
or otherwise. See "Description of Capital Securities--Subordination of
Common Securities."
The Capital Securities will be represented by global Capital Securities
in fully registered form, deposited with a custodian for and registered in
the name of a nominee of The Depository Trust Company ("DTC"). Beneficial
interests in such global Capital Securities will be shown on, and transfers
thereof will be effected through, records maintained by DTC and its
participants. Beneficial interests in such Capital Securities will trade in
DTC's Same-Day Funds Settlement System and secondary market trading activity
in such interests will therefore settle in immediately available funds. See
"Description of Capital Securities--Form, Denomination, Book-Entry Procedures
and Transfer."
(CONTINUED ON NEXT PAGE)
----------------
SEE "RISK FACTORS" BEGINNING ON PAGE 9 FOR A DISCUSSION OF CERTAIN
FACTORS THAT SHOULD BE CONSIDERED BY PROSPECTIVE INVESTORS IN EVALUATING AN
INVESTMENT IN THE CAPITAL SECURITIES.
______________
(The Capital Securities have been authorized for listing on the --------,
subject to official notice of issuance. Trading of the Capital Securities is
expected to commence within a 30-day period after the initial delivery
thereof.)
----------------
THE SECURITIES OFFERED HEREBY ARE NOT DEPOSITS OR OTHER OBLIGATIONS OF A BANK
AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION
OR ANY OTHER GOVERNMENTAL AGENCY.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
<TABLE>
<CAPTION>
PRICE TO UNDERWRITING PROCEEDS TO
PUBLIC(1) COMMISSION (2) TRUST(3)(4)
--------- -------------- -----------
<S> <C> <C> <C>
Per Capital Security . $ (4) $
Total . . . . . . . . $ (4) $
</TABLE>
(1) Plus accumulated Distributions, if any, from ____________.
(2) The Corporation and the Trust have agreed to indemnify the several
Underwriters against certain liabilities, including liabilities under
the Securities Act of 1933, as amended. See "Underwriting."
(3) Without giving effect to estimated expenses of $__________ incurred by
the Corporation.
(4) In view of the fact that the proceeds of the sale of the Capital
Securities will be invested in the Junior Subordinated Debentures, the
Corporation has agreed to pay to the Underwriters, as compensation,
$______ per Capital Security (or $____________ in the aggregate). See
"Underwriting."
----------------
The Capital Securities are offered by the several Underwriters, subject
to prior sale, when, as and if issued to and accepted by the Underwriters and
subject to approval of certain legal matters by counsel for the Underwriters
and to certain other conditions. The Underwriters reserve the right to
withdraw, cancel or modify such offer and to reject orders in whole or in
part. It is expected that delivery of the Capital Securities will be made
through the facilities of DTC, on or about _______, against payment therefor
in immediately available funds.
----------------
[Names of Underwriters]
----------------
The date of this Prospectus is ____________.
CERTAIN PERSONS PARTICIPATING IN THE OFFERING OF THE CAPITAL SECURITIES MAY
ENGAGE IN TRANSACTIONS THAT STABILIZE, MAINTAIN, OR OTHERWISE AFFECT THE
PRICE OF THE CAPITAL SECURITIES. SUCH TRANSACTIONS MAY INCLUDE STABILIZING,
THE PURCHASE OF THE CAPITAL SECURITIES TO COVER SYNDICATE SHORT POSITIONS AND
THE IMPOSITION OF PENALTY BIDS. FOR A DESCRIPTION OF THESE ACTIVITIES, SEE
"UNDERWRITING."
_____________
(Continued from the previous page)
Holders of the Trust Securities will be entitled to receive cumulative
cash distributions arising from the payment of interest on the Junior
Subordinated Debentures, accumulating from the date of original issuance and
payable ________ in arrears on _______ and _______ of each year, commencing
___________, at a rate per annum (equal to __%) (reset ________ equal to
LIBOR (as defined herein) plus ___%) (the "Distribution Rate") on the
Liquidation Amount of $_____ per Trust Security ("Distributions"). The
Corporation will have the right to defer payments of interest on the Junior
Subordinated Debentures at any time and from time to time for a period not
exceeding __ consecutive _________ periods with respect to each deferral
period (each, an "Extension Period"), provided that no Extension Period may
extend beyond the Stated Maturity Date. Upon termination of any such
Extension Period and the payment of all amounts then due, the Corporation may
elect to begin a new Extension Period, subject to the requirements set forth
herein. If and for so long as interest payments on the Junior Subordinated
Debentures are so deferred, Distributions on the Trust Securities will also
be deferred and the Corporation will not be permitted, subject to certain
exceptions described herein, to declare or pay any cash distributions with
respect to the Corporation's capital stock (which includes common and
preferred stock) or to make any payment with respect to debt securities of
the Corporation that rank pari passu with or junior to the Junior
Subordinated Debentures. During an Extension Period, interest on the Junior
Subordinated Debentures will continue to accrue (and the amount of
Distributions to which holders of the Trust Securities are entitled will
continue to accumulate) at the (applicable periodic) Distribution Rate,
compounded ________ from the relevant payment date for such interest, and
holders of Trust Securities will be required to accrue interest income for
United States federal income tax purposes. See "Description of Junior
Subordinated Debentures--Option to Extend Interest Payment Date" and "Certain
Federal Income Tax Consequences--Interest Income and Original Issue
Discount."
The Corporation will, through the Guarantee, the Common Guarantee, the
Trust Agreement, the Junior Subordinated Debentures and the Indenture (each
as defined herein), taken together, fully, irrevocably and unconditionally
guarantee all of the Trust's obligations under the Trust Securities. See
"Relationship Among the Capital Securities, the Junior Subordinated
Debentures and the Guarantee--Full and Unconditional Guarantee." The
Guarantee and the Common Guarantee will guarantee payments of Distributions
and payments on liquidation of the Trust or redemption of the Trust
Securities, but in each case only to the extent that the Trust holds funds on
hand legally available therefor and has failed to make such payments, as
described herein. See "Description of Guarantee." If the Corporation fails
to make a required payment on the Junior Subordinated Debentures, the Trust
will not have sufficient funds to make the related payments, including
Distributions, on the Trust Securities. The Guarantee and the Common
Guarantee will not cover any such payment when the Trust does not have
sufficient funds on hand legally available therefor. In such event, a holder
of Capital Securities may institute a legal proceeding directly against the
Corporation to enforce its rights in respect of such payment. See
"Description of Junior Subordinated Debentures--Enforcement of Certain Rights
by Holders of Capital Securities." The obligations of the Corporation under
the Guarantee, the Common Guarantee and the Junior Subordinated Debentures
will rank subordinate and junior in right of payment to all Senior
Indebtedness (as defined in "Description of Junior Subordinated Debentures--
Subordination").
The Trust Securities will be subject to mandatory redemption in a Like
Amount (as defined herein), (i) in whole but not in part, on the Stated
Maturity Date upon repayment of the Junior Subordinated Debentures at a
redemption price equal to the principal amount of, plus accrued interest on,
the Junior Subordinated Debentures (the "Maturity Redemption Price"), (ii) in
whole but not in part, at any time, contemporaneously with the optional
prepayment of the Junior Subordinated Debentures, upon the occurrence and
continuation of a Special Event (as defined herein) at a redemption price
(the "Special Event Redemption Price") equal to the Special Event Prepayment
Price (as defined below), and (iii) in whole or in part, on or after
____________, contemporaneously with the optional prepayment by the
Corporation of the Junior Subordinated Debentures, at a redemption price (the
"Optional Redemption Price") equal to the Optional Prepayment Price (as
defined below). Any of the Maturity Redemption Price, the Special Event
Redemption Price and the Optional Redemption Price may be referred to herein
as the "Redemption Price." See "Description of Capital Securities--
Redemption." Subject to the Corporation having received prior approval of the
Board of Governors of the Federal Reserve System (the "Federal Reserve") to
do so if then required under applicable capital guidelines or policies of the
Federal Reserve, the Junior Subordinated Debentures will be prepayable prior
to the Stated Maturity Date at the option of the Corporation (i) on or after
________, in whole or in part, at a prepayment price (the "Optional
Prepayment Price") equal to [100%] [___%] of the principal amount thereof (on
______________, declining ratably on each _____ thereafter to 100% on or
after __________,] plus accrued interest thereon to the date of prepayment or
(ii) at any time, in whole but not in part, upon the occurrence and
continuation of a Special Event, at a prepayment price (the "Optional
Prepayment Price") equal to (the greater of (a)) 100% of the principal amount
thereof (or (b) the sum, as determined by the Quotation Agent (as defined
herein) of the present values of the remaining scheduled payments of
principal and the interest thereon discounted to the prepayment date on a
____ basis (assuming a 360-day year consisting of twelve 30-day months) at the
Adjusted Treasury Rate (as defined herein)), plus accrued interest thereon to
the date of prepayment. See "Description of Junior Subordinated Debentures--
Optional Prepayment" and "--Special Event Prepayment."
The Corporation will have the right at any time to terminate the Trust
and cause a Like Amount of the Junior Subordinated Debentures to be
distributed to the holders of the Trust Securities in liquidation of the
Trust, subject to (i) the Corporation having received an opinion of counsel
to the effect that such distribution will not be a taxable event to holders
of the Capital Securities and (ii) the prior approval of the Federal Reserve
to do so if then required under applicable capital guidelines or policies of
the Federal Reserve. Unless the Junior Subordinated Debentures are
distributed to the holders of the Trust Securities, in the event of a
liquidation of the Trust as described herein, after satisfaction of
liabilities to creditors of the Trust as required by applicable law, the
holders of the Capital Securities generally will be entitled to receive a
Liquidation Amount of $_____ per Capital Security plus accumulated
Distributions thereon to the date of payment. See "Description of Capital
Securities--Liquidation of the Trust and Distribution of Junior Subordinated
Debentures."
____________
As used herein, (i) the "Indenture" means the Indenture, to be dated as
of __________, as amended and supplemented from time to time, between the
Corporation and The Bank of New York, as trustee (the "Debenture Trustee"),
relating to the Junior Subordinated Debentures, (ii) the "Trust Agreement"
means the Amended and Restated Declaration of Trust relating to the Trust
among the Corporation, as Sponsor, The Bank of New York, as Property Trustee
(the "Property Trustee"), The Bank of New York (Delaware), as Delaware
Trustee (the "Delaware Trustee"), and the Administrative Trustees named
therein (collectively, with the Property Trustee and Delaware Trustee, the
"Issuer Trustees"), (iii) the "Guarantee" means the Capital Securities
Guarantee Agreement between the Corporation and The Bank of New York, as
trustee (the "Guarantee Trustee") and (iv) the "Common Guarantee" means the
Common Securities Guarantee Agreement of the Corporation.
AVAILABLE INFORMATION
The Corporation is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith, files reports, proxy statements and other information
with the Securities and Exchange Commission (the "Commission"). Such
reports, proxy statements and other information may be inspected and copied
at the public reference facilities maintained by the Commission at Room 1024,
450 Fifth Street, N.W., Washington, D.C. 20549 and at the Commission's
regional offices at 7 World Trade Center, 13th Floor, Suite 1300, New York,
New York 10048 and Suite 1400, Citicorp Center, 500 West Madison Street,
Chicago, Illinois 60661. Copies of such material may also be obtained by
mail from the Public Reference Section of the Commission at 450 Fifth Street,
N.W., Washington, D.C. 20549 at prescribed rates. Such information may also
be accessed electronically by means of the Commission's home page on the
Internet (http://www.sec.gov.). In addition, such reports, proxy statements
and other information concerning the Corporation may be inspected at the
offices of the New York Stock Exchange, Inc., 20 Broad Street, New York, New
York 10005 and the Boston Stock Exchange Incorporated, One Boston Place,
Boston, Massachusetts 02108, on which exchanges certain securities of the
Corporation are listed.
No separate financial statements of the Trust have been included herein.
The Corporation and the Trust do not consider that such financial statements
would be material to holders of the Capital Securities because the Trust is a
newly formed special purpose entity, has no operating history or independent
operations and is not engaged in and does not propose to engage in any
activity other than holding as trust assets the Junior Subordinated
Debentures, issuing the Trust Securities and engaging in necessary, advisable
or incidental activities. See "BankBoston Capital Trust ___", "Description
of Capital Securities", "Description of Junior Subordinated Debentures" and
"Description of Guarantee". In addition, the Corporation does not expect
that the Trust will file reports, proxy statements and other information
under the Exchange Act with the Commission.
This Prospectus constitutes a part of a registration statement on Form
S-3 (the "Registration Statement") filed by the Corporation and the Trust
with the Commission under the Securities Act of 1933, as amended (the
"Securities Act"). This Prospectus does not contain all the information set
forth in the Registration Statement, certain parts of which are omitted in
accordance with the rules and regulations of the Commission, and reference is
hereby made to the Registration Statement and to the exhibits relating
thereto for further information with respect to the Corporation, the Trust
and the Trust Securities. Any statements contained herein concerning the
provisions of any document are not necessarily complete, and, in each
instance, reference is made to the copy of such document filed as an exhibit
to the Registration Statement or otherwise filed with the Commission. Each
such statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Corporation with the Commission are
incorporated into this Prospectus by reference:
1. The Corporation's Annual Report on Form 10-K for the year ended
December 31, 1996;
2. The Corporation's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 1997, June 30, 1997 and September 30, 1997; and
3. The Corporation's Current Reports on Form 8-K dated January 16,
1997, April 17, 1997, July 17, 1997, October 16, 1997, November 25, 1997
and January 15, 1998.
All documents subsequently filed by the Corporation pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof and prior
to the termination of the offering of the Capital Securities offered hereby
shall be deemed to be incorporated by reference into this Prospectus and to
be a part of this Prospectus from the date of filing of such document. Any
statement contained herein or in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained
herein or in any other subsequently filed document which also is or is deemed
to be incorporated by reference herein modifies or supersedes such statement.
Any statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
As used herein, the terms "Prospectus" and "herein" mean this
Prospectus, including the documents incorporated or deemed to be incorporated
herein by reference, as the same may be amended, supplemented or otherwise
modified from time to time. Statements contained in this Prospectus as to
the contents of any contract or other document referred to herein do not
purport to be complete, and where reference is made to the particular
provisions of such contract or other document, such provisions are qualified
in all respects by reference to all of the provisions of such contract or
other document. The Corporation will provide without charge to any person to
whom this Prospectus is delivered, on the written or oral request of such
person, a copy of any or all of the foregoing documents incorporated by
reference herein (other than exhibits not specifically incorporated by
reference into the texts of such documents). Requests for such documents
should be directed to: Investor Relations, BankBoston, P.O. Box 2016, MA BOS
01-20-02, Boston, Massachusetts 02106-2016. Telephone requests may be
directed to Investor Relations at (617) 434-7858.
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed
information appearing elsewhere in this Prospectus or incorporated herein by
reference.
BANKBOSTON CORPORATION
The Corporation is a registered bank holding company organized in 1970
under Massachusetts law with both national and international operations. The
Corporation, through its subsidiaries and, in certain cases, joint ventures,
is engaged in providing a wide variety of personal, corporate and global
banking services to individuals, corporate and institutional customers,
governments and other financial institutions. As of December 31, 1997, the
Corporation, together with its subsidiaries, operated a network of offices
across the United States and more than 100 offices in 23 countries in Latin
America, Asia, Europe and Africa. The major banking subsidiaries of the
Corporation are BankBoston, N.A. and Rhode Island Hospital Trust National
Bank.
BANKBOSTON CAPITAL TRUST ___
The Trust is a statutory business trust formed under Delaware law
pursuant to (i) the Trust Agreement executed by the Corporation, as Sponsor,
The Bank of New York, as Property Trustee, and The Bank of New York
(Delaware), as Delaware Trustee and the three individual Administrative
Trustees named therein, and (ii) the filing of a certificate of trust with
the Delaware Secretary of State. The Trust's business and affairs are
conducted by the Issuer Trustees: the Property Trustee, the Delaware Trustee,
and the three individual Administrative Trustees who are employees or
officers of or affiliated with the Corporation. The Trust exists for the
exclusive purposes of (i) issuing and selling the Trust Securities, (ii)
using the proceeds from the sale of the Trust Securities to acquire the
Junior Subordinated Debentures issued by the Corporation and (iii) engaging
in only those other activities necessary, advisable or incidental thereto.
Accordingly, the Junior Subordinated Debentures will be the sole assets of
the Trust, and payments under the Junior Subordinated Debentures will be the
sole revenues of the Trust. All of the Common Securities will be owned by
the Corporation.
THE OFFERING
Securities Offered. . . . . . . . . _______ Capital Securities (Liquidation
Amount $_____ per Capital Security).
Offering Price. . . . . . . . . . . $_____ per Capital Security plus
accumulated Distributions, if any, from
_________.
Distribution Dates. . . . . . . . . ________ on _________ and ________ of
each year, commencing _________.
Extension Periods . . . . . . . . . Distributions on Capital Securities
will be deferred for the duration of
any Extension Period elected by the
Corporation with respect to the payment
of interest on the Junior Subordinated
Debentures. No Extension Period will
exceed __ consecutive _______ periods
or extend beyond the Stated Maturity
Date. See "Description of Junior
Subordinated Debentures--Option to
Extend Interest Payment Date" and
"Certain Federal Income Tax
Consequences--Interest Income and
Original Issue Discount."
Ranking. . . . . . . . . . . . . . . The Capital Securities will rank pari
passu, and payments thereon will be
made pro rata, with the Common
Securities except as described under
"Description of Capital Securities--
Subordination of Common Securities."
The Junior Subordinated Debentures will
rank pari passu with the $257,732,000
aggregate principal amount of 8.25%
Junior Subordinated Deferrable Interest
Debentures due December 15, 2026, the
$257,732,000 aggregate principal amount
of 73/4% Junior Subordinated Deferrable
Interest Debentures due December 15,
2026, the $257,732,000 aggregate
principal amount of Floating Rate
Junior Subordinated Deferrable Interest
Debentures due June 15, 2027 and all
other junior subordinated debentures to
be issued by the Corporation
(collectively, "Other Debentures"),
which will be issued and sold to other
trusts to be established by the
Corporation, in each case similar to
the Trust ("Other Trusts"), and will be
unsecured and will rank subordinate and
junior in right of payment to all
Senior Indebtedness to the extent and
in the manner set forth in the
Indenture. See "Description of Junior
Subordinated Debentures." The
Guarantee will rank pari passu with the
guarantees issued by the Corporation
with respect to the 250,000 8.25%
Capital Securities (Liquidation Amount
$1,000 per security) of BankBoston
Capital Trust I, the 250,000 73/4%
Capital Securities (Liquidation Amount
$1,000 per security) of BankBoston
Capital Trust II, the 250,000 Floating
Rate Capital Securities (Liquidation
Amount $1,000 per security) of
BankBoston Capital Trust III and all
other guarantees to be issued by the
Corporation with respect to capital
securities issued or to be issued by
Other Trusts (collectively, "Other
Guarantees") and will constitute an
unsecured obligation of the Corporation
and will rank subordinate and junior in
right of payment to all Senior
Indebtedness to the extent and in the
manner set forth in the Guarantee. See
"Description of Guarantee."
Redemption. . . . . . . . . . . . . . The Trust Securities will be
subject to mandatory redemption in
a Like Amount, (i) in whole but not
in part, on the Stated Maturity
Date upon repayment of the Junior
Subordinated Debentures, (ii) in
whole but not in part, at any time
contemporaneously with the optional
prepayment of the Junior
Subordinated Debentures by the
Corporation upon the occurrence and
continuation of a Special Event and
(iii) in whole or in part, on or
after _________, contemporaneously
with the optional prepayment by the
Corporation of the Junior
Subordinated Debentures, in each
case at the applicable Redemption
Price. See "Description of Capital
Securities--Redemption."
(Absence of Market for the
Capital Securities. . . . . . . . The Capital Securities will be a new
issue of securities for which there
currently is no market. Although the
Underwriters have informed the Trust
and the Corporation that they each
currently intend to make a market in
the Capital Securities, the
Underwriters are not obligated to do
so, and any such market making may be
discontinued at any time without
notice. Accordingly, there can be no
assurance as to the development or
liquidity of any market for the Capital
Securities. The Trust and the
Corporation do not intend to apply for
listing of the Capital Securities on
any securities exchange or for
quotation through the NASD Automated
Quotation System. See "Underwriting.")
(Listing. . . . . . . . . . . . . . The Capital Securities will be a new
issue of securities and have been
authorized for listing on the
_____________________, subject to
official notice of issuance. Trading
of the Capital Securities is expected
to commence within a 30-day period
after the initial delivery thereof.
Although the Underwriters have informed
the Trust and the Corporation that they
each currently intend to make a market
in the Capital Securities prior to the
commencement of trading on the
___________________, the Underwriters
are not obligated to do so, and any
such market making may be discontinued
at any time without notice.
Accordingly, there can be no assurance
as to the development or liquidity of
any market for the Capital Securities.
See "Underwriting.")
Form of Capital
Securities. . . . . . . . . . . . The Capital Securities will be
represented by a global certificate
or certificates registered in the
name of Cede & Co., as nominee for
DTC. Beneficial interests in the
Capital Securities will be
evidenced by, and transfers thereof
will be effected only through,
records maintained by the
participants in DTC. Except as
described herein, Capital
Securities in certificated form
will not be issued in exchange for
the global certificate or
certificates. See "Description of
Capital Securities--Form,
Denomination, Book-Entry Procedures
and Transfer."
Use of Proceeds. . . . . . . . . . . . The proceeds to the Trust from the
sale of the Capital Securities will
be invested by the Trust in the
Junior Subordinated Debentures.
The Corporation intends to use the
net proceeds from the sale of the
Junior Subordinated Debentures for
general corporate purposes. The
Capital Securities will be eligible
to qualify as Tier 1 capital under
the capital guidelines of the
Federal Reserve. See "Use of
Proceeds."
RISK FACTORS
Prospective purchasers of the Capital Securities should carefully review
the information contained elsewhere in this Prospectus and should
particularly consider the following matters.
RANKING OF SUBORDINATED OBLIGATIONS UNDER THE GUARANTEE AND THE JUNIOR
SUBORDINATED DEBENTURES
The obligations of the Corporation under the Guarantee issued by it for
the benefit of the holders of Capital Securities, as well as under the Junior
Subordinated Debentures, will be unsecured and rank subordinate and junior in
right of payment to all Senior Indebtedness to the extent and in the manner
set forth in the Guarantee or the Indenture, as applicable. In addition, in
the case of a bankruptcy or insolvency proceeding, the Corporation's
obligations under the Guarantee will also rank subordinate and junior in
right of payment to all liabilities (other than Other Guarantees) of the
Corporation. At December 31, 1997, the aggregate principal amount of
outstanding Senior Indebtedness was approximately $610 million. Because the
Corporation is a bank holding company, the right of the Corporation to
participate in any distribution of assets of any subsidiary upon such
subsidiary's liquidation or reorganization or otherwise (and thus the ability
of holders of the Capital Securities to benefit indirectly from such
distribution) is subject to the prior claims of creditors of that subsidiary,
except to the extent that the Corporation may itself be recognized as a
creditor of that subsidiary. At December 31, 1997, the subsidiaries of the
Corporation had total liabilities (excluding liabilities owed to the
Corporation) of approximately $62 billion. Accordingly, the Junior
Subordinated Debentures will be effectively subordinated to all existing and
future liabilities of the Corporation's subsidiaries, and holders of Junior
Subordinated Debentures should look only to the assets of the Corporation for
payments on the Junior Subordinated Debentures. None of the Indenture, the
Guarantee or the Trust Agreement places any limitation on the amount of
secured or unsecured debt, including Senior Indebtedness, that may be
incurred by the Corporation or its subsidiaries. See "Description of
Guarantee--Status of the Guarantee" and "Description of Junior Subordinated
Debentures--Subordination."
The ability of the Trust to pay amounts due on the Capital Securities is
solely dependent upon the Corporation making payments on the Junior
Subordinated Debentures as and when required.
OPTION TO EXTEND INTEREST PAYMENT PERIOD; TAX CONSIDERATIONS
So long as no Debenture Event of Default (as defined herein) shall have
occurred and be continuing, the Corporation will have the right under the
Indenture to defer payments of interest on the Junior Subordinated Debentures
at any time or from time to time for a period not exceeding __ consecutive
_________ periods with respect to each Extension Period, provided that no
Extension Period may extend beyond the Stated Maturity Date. As a
consequence of any such deferral, _________ Distributions on the Capital
Securities by the Trust will be deferred (and the amount of Distributions to
which holders of the Capital Securities are entitled will accumulate
additional Distributions thereon at the (applicable)Interest Rate (as defined
herein), compounded _______, but not exceeding the interest rate then
accruing on the Junior Subordinated Debentures) from the relevant payment
date for such Distributions during any such Extension Period.
Prior to the termination of any Extension Period, the Corporation may
further extend such Extension Period, provided that such extension does not
cause such Extension Period to exceed __ consecutive _________ periods or to
extend beyond the Stated Maturity Date. Upon the termination of any
Extension Period and the payment of all interest then accrued and unpaid on
the Junior Subordinated Debentures (together with interest thereon at the
applicable Interest Rate, compounded _______, to the extent permitted by
applicable law), the Corporation may elect to begin a new Extension Period,
subject to the above requirements. There is no limitation on the number of
times that the Corporation may elect to begin an Extension Period. See
"Description of Capital Securities--Distributions" and "Description of Junior
Subordinated Debentures--Option to Extend Interest Payment Date."
Should the Corporation exercise its right to defer payments of interest
on the Junior Subordinated Debentures, each holder of Trust Securities will
be required to accrue income (as original issue discount ("OID")) in respect
of the deferred stated interest allocable to its Trust Securities for United
States federal income tax purposes, which will be allocated but not
distributed to holders of Trust Securities. As a result, each such holder of
Capital Securities will recognize income for United States federal income tax
purposes in advance of the receipt of cash and will not receive the cash
related to such income from the Trust if the holder disposes of the Capital
Securities prior to the record date for the payment of Distributions
thereafter. See "Certain Federal Income Tax Consequences--Interest Income
and Original Issue Discount" and "--Sales of Capital Securities."
Should the Corporation elect to exercise its right to defer payments of
interest on the Junior Subordinated Debentures in the future, the market
price of the Capital Securities is likely to be affected. A holder that
disposes of its Capital Securities during an Extension Period, therefore,
might not receive the same return on its investment as a holder that
continues to hold its Capital Securities. In addition, merely as a result of
the existence of the Corporation's right to defer payments of interest on the
Junior Subordinated Debentures, the market price of the Capital Securities
may be more volatile than the market prices of other securities on which OID
accrues and that are not subject to such deferrals.
SPECIAL EVENT REDEMPTION
Upon the occurrence and continuation of a Special Event (as defined
under "Description of Junior Subordinated Debentures--Special Event
Prepayment"), the Corporation will have the right to prepay the Junior
Subordinated Debentures in whole (but not in part) at the Special Event
Prepayment Price within 90 days following the occurrence of such Special
Event and therefore cause a mandatory redemption of the Trust Securities at
the Special Event Redemption Price. The exercise of such right is subject to
the Corporation having received prior approval of the Federal Reserve to do
so if then required under applicable guidelines or policies of the Federal
Reserve. See "Description of Capital Securities--Redemption."
PROPOSED TAX LEGISLATION
On February 6, 1997, as part of the Clinton Administration's Fiscal 1998
Budget Proposal, the Treasury Department proposed legislation (the "Proposed
Legislation") which would, among other things, have generally denied
corporate issuers a deduction for interest in respect of certain debt
obligations, such as the Junior Subordinated Debentures, if such debt
obligations have a maximum term in excess of 15 years and are not shown as
indebtedness on the issuer's applicable consolidated balance sheet. As of
the date of this Prospectus, no such legislation has been enacted.
Furthermore, no similar legislation was proposed as part of President
Clinton's Fiscal 1999 Budget Proposal. No assurance can be given that a
similar proposal will not be enacted in the future that may give rise to a
Tax Event, in which event the Corporation would be permitted, upon approval
of the Federal Reserve if then required under applicable capital guidelines
or policies of the Federal Reserve, to cause a redemption of the Trust
Securities at the Special Event Redemption Price by electing to prepay the
Junior Subordinated Debentures at the Special Event Prepayment Price. See
"Description of Capital Securities--Redemption" and "Description of Junior
Subordinated Debentures--Special Event Prepayment."
POSSIBLE ADVERSE EFFECT ON MARKET PRICES
There can be no assurance as to the market prices for Capital Securities
or Junior Subordinated Debentures distributed to the holders of Capital
Securities if a termination of the Trust were to occur. Accordingly, the
Capital Securities or the Junior Subordinated Debentures may trade at a
discount from the price that the investor paid to purchase the Capital
Securities offered hereby. Because holders of Capital Securities may receive
Junior Subordinated Debentures in liquidation of the Trust and because
Distributions are otherwise limited to payments on the Junior Subordinated
Debentures, prospective purchasers of Capital Securities are also making an
investment decision with regard to the Junior Subordinated Debentures and
should carefully review all the information regarding the Junior Subordinated
Debentures contained herein. See "Description of Junior Subordinated
Debentures."
RIGHTS UNDER THE GUARANTEE
The Guarantee is qualified as an indenture under the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"). The Bank of New York will
act as Guarantee Trustee for the purpose of compliance with the Trust
Indenture Act and will hold the Guarantee for the benefit of the holders of
the Capital Securities. The Bank of New York will also act as Property
Trustee and as Debenture Trustee under the Indenture. The Bank of New York
(Delaware) will act as Delaware Trustee under the Trust Agreement. The
Guarantee will guarantee to the holders of the Capital Securities the
following payments, to the extent not paid by the Trust: (i) any accumulated
and unpaid Distributions required to be paid on the Capital Securities, to
the extent that the Trust has funds on hand legally available therefor at
such time, (ii) the applicable Redemption Price with respect to any Capital
Securities called for redemption, to the extent that the Trust has funds on
hand legally available therefor at such time, and (iii) upon a voluntary or
involuntary termination and liquidation of the Trust (unless the Junior
Subordinated Debentures are distributed to holders of the Capital
Securities), the lesser of (a) the aggregate of the Liquidation Amount and
all accumulated and unpaid Distributions to the date of payment, to the
extent that the Trust has funds on hand legally available therefor at such
time and (b) the amount of assets of the Trust remaining available for
distribution to holders of the Capital Securities upon a termination and
liquidation of the Trust. The holders of a majority in Liquidation Amount of
the Capital Securities will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Guarantee
Trustee in respect of the Guarantee or to direct the exercise of any trust
power conferred upon the Guarantee Trustee. Any holder of the Capital
Securities may institute a legal proceeding directly against the Corporation
to enforce its rights under the Guarantee without first instituting a legal
proceeding against the Trust, the Guarantee Trustee or any other person or
entity. If the Corporation defaults on its obligation to pay amounts payable
under the Junior Subordinated Debentures, the Trust will not have sufficient
funds for the payment of Distributions or amounts payable on redemption of
the Capital Securities or otherwise, and, in such event, holders of the
Capital Securities will not be able to rely upon the Guarantee for payment of
such amounts. Instead, in the event a Debenture Event of Default shall have
occurred and be continuing and such event is attributable to the failure of
the Corporation to pay principal of (or premium, if any) or interest on the
Junior Subordinated Debentures on the payment date on which such payment is
due and payable, then a holder of Capital Securities may institute a legal
proceeding directly against the Corporation for enforcement of payment to
such holder of the principal of (or premium, if any) or interest on such
Junior Subordinated Debentures having a principal amount equal to the
Liquidation Amount of the Capital Securities of such holder (a "Direct
Action"). Notwithstanding any payments made to a holder of Capital
Securities by the Corporation in connection with a Direct Action, the
Corporation shall remain obligated to pay the principal of (and premium, if
any) and interest on the Junior Subordinated Debentures, and the Corporation
shall be subrogated to the rights of the holder of such Capital Securities
with respect to payments on the Capital Securities to the extent of any
payments made by the Corporation to such holder in any Direct Action. Except
as described herein, holders of Capital Securities will not be able to
exercise directly any other remedy available to the holders of the Junior
Subordinated Debentures or to assert directly any other rights in respect of
the Junior Subordinated Debentures. See "Description of Junior Subordinated
Debentures--Enforcement of Certain Rights by Holders of Capital Securities,"
"Description of Junior Subordinated Debentures--Debenture Events of Default"
and "Description of Guarantee." The Trust Agreement will provide that each
holder of Capital Securities by acceptance thereof agrees to the provisions
of the Indenture.
LIMITED VOTING RIGHTS
Holders of Capital Securities will generally have limited voting rights
relating only to the modification of the Capital Securities, the termination
or liquidation of the Trust, and the exercise of the Trust's rights as holder
of Junior Subordinated Debentures. Holders of Capital Securities will not be
entitled to vote to appoint, remove or replace the Property Trustee or the
Delaware Trustee, and such voting rights are vested exclusively in the holder
of the Common Securities except upon the occurrence of certain events
described herein. The Property Trustee, the Administrative Trustees and the
Corporation may amend the Trust Agreement without the consent of holders of
Capital Securities to ensure that the Trust will be classified for United
States federal income tax purposes as a grantor trust even if such action
adversely affects the interests of such holders. See "Description of Capital
Securities--Voting Rights; Amendment of the Trust Agreement" and "--Removal
of Issuer Trustees."
(ABSENCE OF PUBLIC MARKET
The Corporation does not intend to have the Capital Securities listed on
the New York Stock Exchange or any other securities exchange or for quotation
through the NASD Automated Quotation System. There is no existing market for
the Capital Securities and there can be no assurance as to the liquidity of
any market that may develop for the Capital Securities, the ability of the
holders to sell their Capital Securities or at what price holders of the
Capital Securities may be able to sell their Capital Securities, as the case
may be. Future trading prices of the Capital Securities will depend on many
factors including, among other things, prevailing interest rates, the
Corporation's operating results, and the market for similar securities. The
Underwriters have informed the Trust and the Corporation that the
Underwriters intend to make a market in the Capital Securities. However, the
Underwriters are not obligated to do so and any such market making activity
may be terminated at any time without notice to the holders of the Capital
Securities. In addition, such market making activity will be subject to the
limits of the Securities Act.)
TRADING PRICE
The Capital Securities may trade at a price that does not fully reflect
the value of accrued but unpaid interest with respect to the underlying
Junior Subordinated Debentures. A holder who uses the accrual method of
accounting for tax purposes (and a cash method holder, if the Junior
Subordinated Debentures are deemed to have been issued with OID) and who
disposes of its Capital Securities between record dates for payments of
distributions thereon will be required to include accrued but unpaid interest
on the Junior Subordinated Debentures through the date of disposition in
income as ordinary income (i.e., interest or, possibly, OID), and to add such
amount to its adjusted tax basis in its share of the underlying Junior
Subordinated Debentures deemed disposed of. To the extent the selling price
is less than the holder's adjusted tax basis (which will include all accrued
but unpaid interest), a holder will recognize a capital loss. Subject to
certain limited exceptions, capital losses cannot be applied to offset
ordinary income for United States federal income tax purposes. See "Certain
Federal Income Tax Considerations--Interest Income and Original Issue
Discount" and "--Sales of Capital Securities."
BANKBOSTON CORPORATION
The Corporation is a registered bank holding company organized in 1970
under Massachusetts law with both national and international operations. The
Corporation, through its subsidiaries and, in certain cases, joint ventures,
is engaged in providing a wide variety of personal, corporate and global
banking services to individuals, corporate and institutional customers,
governments and other financial institutions. As of December 31, 1997, the
Corporation, together with its subsidiaries, operated a network of offices
across the United States and more than 100 offices in 23 countries in Latin
America, Asia, Europe and Africa. The major banking subsidiaries of the
Corporation are BankBoston, N.A. and Rhode Island Hospital Trust National
Bank.
As of December 31, 1997, on a consolidated basis, the Corporation had
total assets of $69.3 billion, total deposits of $45.8 billion and total
stockholders' equity of $4.6 billion. The Corporation's banking subsidiaries
maintained more than 460 branches in Massachusetts, Rhode Island, Connecticut
and New Hampshire as of December 31, 1997. The Corporation's loans were
diversified geographically, with approximately 72 percent of its total loan
volume consisting of loans and leases made to domestic borrowers and the
balance made overseas. As of December 31, 1997, the Corporation's subsidiaries
employed, in the aggregate, approximately 21,500 full-time equivalent
employees in their domestic and foreign operations.
USE OF PROCEEDS
The proceeds to the Trust from the offering of the Capital Securities
will be $___________. All of the proceeds from the sale of Capital
Securities will be invested by the Trust in the Junior Subordinated
Debentures. The Corporation intends that the net proceeds from the sale of
the Junior Subordinated Debentures will be used for general corporate
purposes, which may include, but not be limited to, one or more of the
following: investments in and advances to the Corporation's subsidiaries;
financing future acquisitions of financial institutions, as well as banking
and other assets; and the repurchase or redemption of certain of the
Corporation's outstanding securities. The precise amount and timing of the
application of such net proceeds used for such corporate purposes will depend
on the funding requirements and the availability of other funds to the
Corporation and its subsidiaries. Pending such application by the
Corporation, such net proceeds may be temporarily invested in short-term
interest bearing securities.
The Capital Securities will be eligible to qualify as Tier 1 capital
under the capital guidelines of the Federal Reserve.
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratios of earnings to fixed charges
of the Corporation for the respective periods indicated:
<TABLE>
<CAPTION>
Nine Months
Ended Years Ended December 31,
September 30,
__________________________________
1997 1996 1995 1994 1993 1992
------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed
Charges:
Excluding interest on
deposits . . . . . . . 2.33x 2.24x 2.08x 1.90x 2.44x 2.17x
Including interest on
deposits . . . . . . . 1.53 1.44 1.42 1.41 1.38 1.22
</TABLE>
For purposes of computing the ratios of earnings to fixed charges,
earnings represent net income before extraordinary items and cumulative
effect of changes in accounting principles plus applicable income taxes and
fixed charges. Fixed charges, excluding interest on deposits, include gross
interest expense (other than on deposits) and the proportion deemed
representative of the interest factor of rent expense, net of income from
subleases. Fixed charges, including gross interest on deposits, include all
interest expense and the proportion deemed representative of the interest
factor of rent expense, net of income from subleases.
BANKBOSTON CAPITAL TRUST __
The Trust is a statutory business trust formed under Delaware law
pursuant to (i) the Trust Agreement executed by the Corporation, as Sponsor,
The Bank of New York, as Property Trustee, The Bank of New York (Delaware),
as Delaware Trustee, and the Administrative Trustees named therein, and (ii)
the filing of a certificate of trust with the Delaware Secretary of State.
The Trust exists for the exclusive purposes of (i) issuing and selling the
Trust Securities, (ii) using the proceeds from the sale of Trust Securities
to acquire the Junior Subordinated Debentures and, (iii) engaging in only
those other activities necessary, advisable or incidental thereto (such as
registering the transfer of the Trust Securities). The Junior Subordinated
Debentures will be the sole assets of the Trust and, accordingly, payments
under the Junior Subordinated Debentures will be the sole revenues of the
Trust. All of the Common Securities will be owned by the Corporation. The
Common Securities will rank pari passu, and payments will be made thereon pro
rata, with the Capital Securities, except that upon the occurrence and
continuance of an event of default under the Trust Agreement resulting from a
Debenture Event of Default, the rights of the Corporation as holder of the
Common Securities to payments in respect of Distributions and payments upon
liquidation, redemption or otherwise will be subordinated to the rights of
the holders of the Capital Securities. See "Description of Capital
Securities--Subordination of Common Securities." The Corporation will acquire
Common Securities in a Liquidation Amount equal to at least 3% of the total
capital of the Trust. The Trust has a term of 31 years, but may terminate
earlier as provided in the Trust Agreement. The Trust's business and affairs
are conducted by its trustees, each appointed by the Corporation as holder of
the Common Securities. The trustees for the Trust will be The Bank of New
York, as the Property Trustee (the "Property Trustee"), The Bank of New York
(Delaware), as the Delaware Trustee (the "Delaware Trustee"), and three
individual trustees (the "Administrative Trustees") who are employees or
officers of or affiliated with the Corporation (collectively, the "Issuer
Trustees"). The Bank of New York, as Property Trustee, will act as sole
indenture trustee under the Trust Agreement. The Bank of New York will also
act as indenture trustee under the Guarantee and the Indenture. See
"Description of Guarantee" and "Description of Junior Subordinated
Debentures." The holder of the Common Securities of the Trust or, if an Event
of Default under the Trust Agreement has occurred and is continuing, the
holders of a majority in Liquidation Amount of the Capital Securities will be
entitled to appoint, remove or replace the Property Trustee and/or the
Delaware Trustee. In no event will the holders of the Capital Securities
have the right to vote to appoint, remove or replace the Administrative
Trustees; such voting rights will be vested exclusively in the holder of the
Common Securities. The duties and obligations of each Issuer Trustee are
governed by the Trust Agreement. The Corporation will pay all fees,
expenses, debts and obligations (other than with respect to the payment of
principal, interest and premium, if any, on the Trust Securities) related to
the Trust and the offering of the Capital Securities and will pay, directly
or indirectly, all ongoing costs, expenses and liabilities of the Trust
(other than payment of principal, interest and premium, if any, on the Trust
Securities). The principal executive office of the Trust is c/o BankBoston,
P.O. Box 2016, Boston, Massachusetts 02106-2016.
DESCRIPTION OF CAPITAL SECURITIES
The Capital Securities will represent preferred beneficial interests in
the Trust and the holders thereof will be entitled to a preference over the
Common Securities in certain circumstances with respect to Distributions and
amounts payable on redemption of the Trust Securities or liquidation of the
Trust. See "--Subordination of Common Securities." The Trust Agreement is
qualified under the Trust Indenture Act and is subject to and governed by the
Trust Indenture Act. This summary of certain terms and provisions of the
Capital Securities, the Common Securities and the Trust Agreement does not
purport to be complete and is subject to, and is qualified in its entirety by
reference to, all the provisions of the Trust Agreement, including the
definitions therein of certain terms, and those made a part of the Trust
Agreement by the Trust Indenture Act.
GENERAL
The Capital Securities will be limited to $____,000,000 aggregate
Liquidation Amount at any one time outstanding. The Capital Securities will
rank pari passu, and payments will be made thereon pro rata, with the Common
Securities except as described under "--Subordination of Common Securities."
Legal title to the Junior Subordinated Debentures will be held by the
Property Trustee in trust for the benefit of the holders of the Capital
Securities and Common Securities. The Guarantee will not guarantee payment
of Distributions or amounts payable on redemption of the Capital Securities
or liquidation of the Trust when the Trust does not have funds on hand
legally available for such payments. See "Description of Guarantee."
DISTRIBUTIONS
Distributions on the Capital Securities will be cumulative, will
accumulate from ________ __, and will be payable _______ in arrears on
_________ and __________ of each year, commencing ___________ (each, a
"Distribution Date"), at a rate per annum (equal to __%) (reset _______
equal to LIBOR plus ___%)(the "Distribution Rate") on the Liquidation Amount
of $_____, to the holders of the Capital Securities on the relevant record
dates. The record dates will be the ____ day of the month in which the
relevant Distribution Date falls. The amount of Distributions payable for
any period will be computed on the basis of (a 360-day year consisting of
twelve 30-day months) (the actual number of days in such period and a year of
360 days). In the event that any Distribution Date is not a Business Day (as
defined below), then (such Distribution Date shall be postponed to the next
succeeding 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
succeeding calendar month then such Distribution Date shall be the
immediately preceding Business Day. If the Stated Maturity Date or earlier
prepayment date for the Junior Subordinated Debentures falls on a day that is
not a Business Day,) payment of any Distributions payable on such date will
be made on the next succeeding Business Day, and no interest or other payment
will accumulate for the period from and after such date. A "Business Day"
shall mean any day other than a Saturday or a Sunday, or a day on which
banking institutions in The City of New York or Boston, Massachusetts are
authorized or required by law or executive order to remain closed.
So long as no Debenture Event of Default shall have occurred and be
continuing, the Corporation will have the right under the Indenture to defer
the payment of interest on the Junior Subordinated Debentures at any time or
from time to time for a period not exceeding __ consecutive _________ periods
with respect to each Extension Period, provided that no Extension Period may
extend beyond the Stated Maturity Date. Upon any such election, _______
Distributions on the Capital Securities will be deferred by the Trust during
any such Extension Period. Distributions to which holders of the Capital
Securities are entitled during any such Extension Period will accumulate
additional Distributions thereon at the (applicable periodic) Distribution
Rate, compounded _______ from the relevant Distribution Date, but not
exceeding the interest rate then accruing on the Junior Subordinated
Debentures. The term "Distributions," as used herein, shall include any such
additional Distributions.
Prior to the termination of any Extension Period, the Corporation may
further extend such Extension Period, provided that such extension does not
cause such Extension Period to exceed __ consecutive _________ periods or to
extend beyond the Stated Maturity Date. Upon the termination of any such
Extension Period and the payment of all amounts then due, and subject to the
foregoing limitations, the Corporation may elect to begin a new Extension
Period. The Corporation must give the Property Trustee, the Administrative
Trustees and the Debenture Trustee notice of its election of any such
Extension Period at least five Business Days prior to the earlier of (i) the
date the Distributions on the Capital Securities would have been payable
except for the election to begin such Extension Period or (ii) the date the
Administrative Trustees are required to give notice to any securities
exchange or to holders of such Capital Securities of the record date or the
date such Distributions are payable but in any event not less than five
Business Days prior to such record date. There is no limitation on the
number of times that the Corporation may elect to begin an Extension Period.
See "Description of Junior Subordinated Debentures--Option to Extend Interest
Payment Period" and "Certain Federal Income Tax Consequences--Interest Income
and Original Issue Discount."
During any Extension Period, the Corporation may not (i) declare or pay
any dividends or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Corporation's capital stock
(which includes common and preferred stock) or (ii) make any payment of
principal of or premium, if any, or interest on or repay, repurchase or
redeem any debt securities of the Corporation (including Other Debentures)
that rank pari passu with or junior in right of payment to the Junior
Subordinated Debentures or (iii) make any guarantee payments with respect to
any guarantee by the Corporation of the debt securities of any subsidiary of
the Corporation (including Other Guarantees) if such guarantee ranks pari
passu with or junior in right of payment to the Junior Subordinated
Debentures (other than (a) dividends or distributions in shares of, or
options, warrants or rights to subscribe for or purchase shares of, common
stock of the Corporation, (b) any declaration of a dividend in connection
with the implementation of a stockholders' rights plan, or the issuance of
stock under any such plan in the future, or the redemption or repurchase of
any such rights pursuant thereto, (c) payments under the Guarantee, (d) as a
result of a reclassification of the Corporation's capital stock or the
exchange or conversion of one class, or series of the Corporation's capital
stock for another class or series of the Corporation's capital stock, (e) the
purchase of fractional interests in shares of the Corporation's capital stock
pursuant to the conversion or exchange provisions of such capital stock or
the security being converted or exchanged, and (f) purchases of common stock
related to the issuance of common stock or rights under any of the
Corporation's benefit plans for its directors, officers or employees or any
of the Corporation's dividend reinvestment plans).
Although the Corporation may in the future exercise its option to defer
payments of interest on the Junior Subordinated Debentures, the Corporation
has no such current intention.
The revenue of the Trust available for distribution to holders of the
Capital Securities will be limited to payments under the Junior Subordinated
Debentures in which the Trust will invest the proceeds from the issuance and
sale of the Trust Securities. See "Description of Junior Subordinated
Debentures--General." If the Corporation does not make interest payments on
the Junior Subordinated Debentures, the Property Trustee will not have funds
available to pay Distributions on the Capital Securities. The payment of
Distributions on the Capital Securities (if and to the extent the Trust has
funds on hand legally available for the payment of such Distributions) will
be guaranteed by the Corporation on a limited basis as set forth herein under
"Description of Guarantee."
(DISTRIBUTION RATE
LIBOR, the Distribution period and the amount of Distributions payable
in respect of each Distribution period will be calculated by
_____________________, as Calculation Agent, in the same manner as LIBOR, the
interest period and the interest payable in respect of each interest period
for the Junior Subordinated Debentures, as described under "Description of
Junior Subordinated Debentures--Interest Rate.")
REDEMPTION
Upon the repayment on the Stated Maturity Date or prepayment prior to
the Stated Maturity Date of the Junior Subordinated Debentures, the proceeds
from such repayment or prepayment shall be applied by the Property Trustee to
redeem a Like Amount (as defined below) of the Trust Securities, upon not
less than 30 nor more than 60 days' notice of a date of redemption (the
"Redemption Date"), at the applicable Redemption Price, which shall be equal
to (i) in the case of the repayment of the Junior Subordinated Debentures on
the Stated Maturity Date, the Maturity Redemption Price (equal to the
principal of, and accrued interest on, the Junior Subordinated Debentures),
(ii) in the case of the optional prepayment of the Junior Subordinated
Debentures upon the occurrence and continuation of a Special Event, the
Special Event Redemption Price (equal to the Special Event Prepayment Price
in respect of the Junior Subordinated Debentures) and (iii) in the case of
the optional prepayment of the Junior Subordinated Debentures other than as
contemplated in clause (ii) above, the Optional Redemption Price (equal to
the Optional Prepayment Price in respect of the Junior Subordinated
Debentures). See "Description of Junior Subordinated Debentures--Optional
Prepayment" and "--Special Event Prepayment."
"Like Amount" means (i) with respect to a redemption of the Trust
Securities, Trust Securities having a Liquidation Amount equal to the
principal amount of Junior Subordinated Debentures to be paid in accordance
with their terms and (ii) with respect to a distribution of Junior
Subordinated Debentures upon the liquidation of the Trust, Junior
Subordinated Debentures having a principal amount equal to the Liquidation
Amount of the Trust Securities of the holder to whom such Junior Subordinated
Debentures are distributed.
The Corporation will have the option to prepay the Junior Subordinated
Debentures, (i) in whole or in part, on or after __________, at the
Optional Prepayment Price and (ii) in whole but not in part, at any time,
upon the occurrence of a Special Event, at the Special Event Prepayment
Price, in each case, subject to receipt of prior approval by the Federal
Reserve if then required under applicable capital guidelines or policies
of the Federal Reserve.
LIQUIDATION OF THE TRUST AND DISTRIBUTION OF JUNIOR SUBORDINATED DEBENTURES
The Corporation will have the right at any time to terminate the Trust
and cause the Junior Subordinated Debentures to be distributed to the holders
of the Trust Securities in liquidation of the Trust. Such right is subject
to (i) the Corporation having received an opinion of counsel to the effect
that such distribution will not be a taxable event to holders of Capital
Securities and (ii) the prior approval of the Federal Reserve if then
required under applicable capital guidelines or policies of the Federal
Reserve.
The Trust shall automatically terminate upon the first to occur of: (i)
certain events of bankruptcy, dissolution or liquidation of the Corporation;
(ii) the distribution of a Like Amount of the Junior Subordinated Debentures
to the holders of the Trust Securities, if the Corporation, as Sponsor, has
given written direction to the Property Trustee to terminate the Trust (which
direction is optional and, except as described above, wholly within the
discretion of the Corporation, as Depositor); (iii) redemption of all of the
Trust Securities as described under "--Redemption"; (iv) expiration of the
term of the Trust; and (v) the entry of an order for the dissolution of the
Trust by a court of competent jurisdiction.
If a termination occurs as described in clause (i), (ii), (iv), or (v)
above, the Trust shall be liquidated by the Issuer Trustees as expeditiously
as the Issuer Trustees determine to be possible by distributing, after
satisfaction of liabilities to creditors of the Trust as provided by
applicable law, to the holders of the Trust Securities a Like Amount of the
Junior Subordinated Debentures, unless such distribution is determined by the
Property Trustee not to be practicable, in which event such holders will be
entitled to receive out of the assets of the Trust legally available for
distribution to holders, after satisfaction of liabilities to creditors of
the Trust as provided by applicable law, an amount equal to the aggregate of
the Liquidation Amount of $_____ per Trust Security plus accumulated and
unpaid Distributions thereon to the date of payment (such amount being the
"Liquidation Distribution"). If such Liquidation Distribution can be paid
only in part because the Trust has insufficient assets on hand legally
available to pay in full the aggregate Liquidation Distribution, then the
amounts payable directly by the Trust on the Capital Securities and the
Common Securities shall be paid on a pro rata basis, except that if a
Debenture Event of Default has occurred and is continuing, the Capital
Securities shall have a priority over the Common Securities. See "--
Subordination of Common Securities." If an early termination occurs as
described in clause (v) above, the Junior Subordinated Debentures will be
subject to optional prepayment, in whole but not in part, on or after
________.
If the Corporation elects not to prepay the Junior Subordinated
Debentures prior to maturity in accordance with their terms and either elects
not to or is unable to liquidate the Trust and distribute the Junior
Subordinated Debentures to holders of the Trust Securities, the Trust
Securities will remain outstanding until the repayment of the Junior
Subordinated Debentures on the Stated Maturity Date.
After the liquidation date is fixed for any distribution of Junior
Subordinated Debentures to holders of the Trust Securities, (i) the Trust
Securities will no longer be deemed to be outstanding, (ii) each registered
global certificate, if any, representing Trust Securities and held by The
Depository Trust Company ("DTC" or the "Depositary") or its nominee will be
exchanged for a registered global certificate or certificates representing
the Junior Subordinated Debentures to be delivered upon such distribution and
(iii) any certificates representing Trust Securities not held by DTC or its
nominee will be deemed to represent Junior Subordinated Debentures having a
principal amount equal to the Liquidation Amount of such Trust Securities,
and bearing accrued and unpaid interest in an amount equal to the accumulated
and unpaid Distributions on such Trust Securities until such certificates are
presented to the Administrative Trustees or their agent for cancellation,
whereupon the Corporation will issue to such holder, and the Debenture
Trustee will authenticate, a certificate representing such Junior
Subordinated Debentures.
There can be no assurance as to the market prices for the Capital
Securities or the Junior Subordinated Debentures that may be distributed in
exchange for the Trust Securities if a dissolution and liquidation of the
Trust were to occur. Accordingly, the Capital Securities that an investor
may purchase, or the Junior Subordinated Debentures that the investor may
receive on dissolution and liquidation of the Trust, may trade at a discount
to the price that the investor paid to purchase such Capital Securities.
REDEMPTION PROCEDURES
If applicable, Trust Securities shall be redeemed at the applicable
Redemption Price with the proceeds from the contemporaneous repayment or
prepayment of the Junior Subordinated Debentures. Any redemption of Trust
Securities shall be made and the applicable Redemption Price shall be payable
on the Redemption Date only to the extent that the Trust has funds legally
available for the payment of such applicable Redemption Price. See also "--
Subordination of Common Securities."
If the Trust gives a notice of redemption in respect of the Capital
Securities, then, by 12:00 noon, New York City time, on the Redemption Date,
to the extent funds are legally available, with respect to the Capital
Securities held by DTC or its nominees, the Property Trustee will deposit
irrevocably with DTC funds sufficient to pay the applicable Redemption Price.
See "--Form, Denomination, Book-Entry Procedures and Transfer." With respect
to the Capital Securities held in certificated form, the Property Trustee, to
the extent funds are legally available, will irrevocably deposit with the
paying agent for the Capital Securities funds sufficient to pay the
applicable Redemption Price and will give such paying agent irrevocable
instructions and authority to pay the applicable Redemption Price to the
holders thereof upon surrender of their certificates evidencing the Capital
Securities. See "--Payment and Paying Agency." Notwithstanding the
foregoing, Distributions payable on or prior to the Redemption Date shall be
payable to the holders of such Capital Securities on the relevant record
dates for the related Distribution Dates. If notice of redemption shall have
been given and funds deposited as required, then upon the date of such
deposit, all rights of the holders of the Capital Securities will cease,
except the right of the holders of the Capital Securities to receive the
applicable Redemption Price, but without interest on such Redemption Price,
and the Capital Securities will cease to be outstanding. (In the event that
any Redemption Date is not a Business Day, then the required payments payable
on such date will be made on the next succeeding Business Day, and no
interest or other payment will accumulate for the period from and after such
date.) In the event that payment of the applicable Redemption Price is
improperly withheld or refused and not paid either by the Trust or by the
Corporation pursuant to the Guarantee as described under "Description of
Guarantee," Distributions on Capital Securities will continue to accumulate
at the then applicable rate, from the Redemption Date originally established
by the Trust to the date such applicable Redemption Price is actually paid,
in which case the actual payment date will be the Redemption Date for
purposes of calculating the applicable Redemption Price.
Subject to applicable law (including, without limitation, United States
federal securities law), the Corporation or its subsidiaries may at any time
and from time to time purchase outstanding Capital Securities by tender, in
the open market or by private agreement.
Notice of any redemption will be mailed at least 30 days but not more
than 60 days prior to the Redemption Date to each holder of Trust Securities
at its registered address. Unless the Corporation defaults in payment of the
applicable Prepayment Price on, or in the repayment of, the Junior
Subordinated Debentures, on and after the Redemption Date, Distributions will
cease to accrue on the Trust Securities called for redemption.
SUBORDINATION OF COMMON SECURITIES
Payment of Distributions on, and the Redemption Price of, the Capital
Securities and Common Securities, as applicable, shall be made pro rata based
on the Liquidation Amount of the Capital Securities and Common Securities;
provided, however, that if on any Distribution Date or Redemption Date a
Debenture Event of Default shall have occurred and be continuing, no payment
of any Distribution on, or applicable Redemption Price of, any of the Common
Securities, and no other payment on account of the redemption, liquidation or
other acquisition of the Common Securities, shall be made unless payment in
full in cash of all accumulated and unpaid Distributions on all of the
outstanding Capital Securities for all Distribution periods terminating on or
prior thereto, or in the case of payment of the applicable Redemption Price
the full amount of such Redemption Price, shall have been made or provided
for, and all funds available to the Property Trustee shall first be applied
to the payment in full in cash of all Distributions on, or Redemption Price
of, the Capital Securities then due and payable.
In the case of any Event of Default, the Corporation as holder of the
Common Securities will be deemed to have waived any right to act with respect
to such Event of Default until the effect of such Event of Default shall have
been cured, waived or otherwise eliminated. Until any such Event of Default
has been so cured, waived or otherwise eliminated, the Property Trustee shall
act solely on behalf of the holders of the Capital Securities and not on
behalf of the Corporation as holder of the Common Securities, and only the
holders of the Capital Securities will have the right to direct the Property
Trustee to act on their behalf.
EVENTS OF DEFAULT; NOTICE
The occurrence of a Debenture Event of Default (see "Description of
Junior Subordinated Debentures--Debenture Events of Default") constitutes an
"Event of Default" under the Trust Agreement.
Within five Business Days after the occurrence of any Event of Default
actually known to the Property Trustee, the Property Trustee shall transmit
notice of such Event of Default to the holders of the Capital Securities, the
Administrative Trustees and the Corporation, as Sponsor, unless such Event of
Default shall have been cured or waived. The Corporation, as Sponsor, and
the Administrative Trustees are required to file annually with the Property
Trustee a certificate as to whether or not they are in compliance with all
the conditions and covenants applicable to them under the Trust Agreement.
If a Debenture Event of Default has occurred and is continuing, the
Capital Securities shall have a preference over the Common Securities as
described under "--Liquidation of the Trust and Distribution of Junior
Subordinated Debentures" and "--Subordination of Common Securities."
REMOVAL OF ISSUER TRUSTEES
Unless a Debenture Event of Default shall have occurred and be
continuing, any Issuer Trustee may be removed at any time by the holder of
the Common Securities. If a Debenture Event of Default has occurred and is
continuing, the Property Trustee and the Delaware Trustee may be removed at
such time by the holders of a majority in Liquidation Amount of the
outstanding Capital Securities. In no event will the holders of the Capital
Securities have the right to vote to appoint, remove or replace the
Administrative Trustees, which voting rights are vested exclusively in the
Corporation as the holder of the Common Securities. No resignation or
removal of an Issuer Trustee and no appointment of a successor trustee shall
be effective until the acceptance of appointment by the successor trustee in
accordance with the provisions of the Trust Agreement.
MERGER OR CONSOLIDATION OF ISSUER TRUSTEES
Any corporation into which the Property Trustee, the Delaware Trustee or
any Administrative Trustee that is not a natural person 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 Issuer Trustee
shall be a party, or any corporation succeeding to all or substantially all
the corporate trust business of such Issuer Trustee, shall be the successor
of such Issuer Trustee under the Trust Agreement, provided such corporation
shall be otherwise qualified and eligible.
MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE TRUST
The Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety to any corporation or other Person,
except as described below. The Trust may, at the request of the Corporation,
as Sponsor, with the consent of the Administrative Trustees but without the
consent of the holders of the Capital Securities, merge with or into,
consolidate, amalgamate, or be replaced by or convey, transfer or lease its
properties and assets as an entirety or substantially as an entirety to a
trust organized as such under the laws of any State; provided, that (i) such
successor entity either (a) expressly assumes all of the obligations of the
Trust with respect to the Capital Securities or (b) substitutes for the
Capital Securities other securities having substantially the same terms as
the Capital Securities (the "Successor Securities") so long as the Successor
Securities rank the same as the Capital Securities rank in priority with
respect to distributions and payments upon liquidation, redemption and
otherwise, (ii) the Corporation expressly appoints a trustee of such
successor entity possessing the same powers and duties as the Property
Trustee with respect to the Junior Subordinated Debentures, (iii) the
Successor Securities are listed, or any Successor Securities will be listed
upon notification of issuance, on any national securities exchange or other
organization on which the Capital Securities are then listed, if any, (iv)
such merger, consolidation, amalgamation, replacement, conveyance, transfer
or lease does not cause the Capital 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 Capital Securities
(including any Successor Securities) in any material respect, (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 Corporation has received an opinion from 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 Capital Securities (including any Successor Securities) in any material
respect, and (b) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the Trust nor such
successor entity will be required to register as an investment company under
the Investment Company Act of 1940, as amended (the "Investment Company
Act"), and (viii) the Corporation or any permitted successor or assignee owns
all of the common securities of such successor entity and guarantees the
obligations of such successor entity under the Successor Securities at least
to the extent provided by the Guarantee. Notwithstanding the foregoing, the
Trust shall not, except with the consent of holders of 100% in Liquidation
Amount of the Trust Securities, consolidate, amalgamate, merge with or into,
or be replaced by or convey, transfer or lease its properties and assets as
an entirety or 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 not to be classified
as a grantor trust for United States federal income tax purposes.
VOTING RIGHTS; AMENDMENT OF THE TRUST AGREEMENT
Except as provided below and under "--Mergers, Consolidations,
Amalgamations or Replacements of the Trust" and "Description of Guarantee--
Amendments and Assignment" and as otherwise required by law and the Trust
Agreement, the holders of the Capital Securities will have no voting rights.
The Trust Agreement may be amended from time to time by the Corporation,
the Property Trustee and the Administrative Trustees, without the consent of
the holders of the Trust Securities (i) to cure any ambiguity, correct or
supplement any provisions in the Trust Agreement that may be inconsistent
with any other provision, or to make any other provisions with respect to
matters or questions arising under the Trust Agreement, which shall not be
inconsistent with the other provisions of the Trust Agreement, or (ii) to
modify, eliminate or add to any provisions of the Trust Agreement 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 Trust Securities are outstanding or to ensure that the Trust will
not be required to register as an "investment company" under the Investment
Company Act; provided, however, that in the case of clause (i), such action
shall not adversely affect in any material respect the interests of the
holders of the Trust Securities, and any amendments of the Trust Agreement
shall become effective when notice thereof is given to the holders of the
Trust Securities. The Trust Agreement may be amended by the Issuer Trustees
and the Corporation (i) with the consent of holders of a majority in
Liquidation Amount of the outstanding Trust Securities, and (ii) upon receipt
by the Issuer Trustees of an opinion of counsel to the effect that such
amendment or the exercise of any power granted to the Issuer Trustees in
accordance with such amendment will not affect the Trust's status as a
grantor trust for United States federal income tax purposes or the Trust's
exemption from status as an "investment company" under the Investment Company
Act, provided that, without the consent of each holder of Trust Securities,
the Trust Agreement may not be amended to (i) change the amount or timing of
any Distribution on the Trust Securities or otherwise adversely affect the
amount of any Distribution required to be made in respect of the Trust
Securities as of a specified date or (ii) restrict the right of a holder of
Trust Securities to institute suit for the enforcement of any such payment on
or after such date.
So long as any Junior Subordinated Debentures are held by the Property
Trustee, the Issuer Trustees shall not (i) direct the time, method and place
of conducting any proceeding for any remedy available to the Debenture
Trustee, or executing any trust or power conferred on such Property Trustee
with respect to the Junior Subordinated Debentures, (ii) waive certain past
defaults under the Indenture, (iii) exercise any right to rescind or annul a
declaration of acceleration of the maturity of the principal of the Junior
Subordinated Debentures or (iv) consent to any amendment, modification or
termination of the Indenture or the Junior Subordinated Debentures, where
such consent shall be required, without, in each case, obtaining the prior
approval of the holders of a majority in Liquidation Amount of all
outstanding Capital Securities; provided, however, that where a consent under
the Indenture would require the consent of each holder of Junior Subordinated
Debentures affected thereby, no such consent shall be given by the Property
Trustee without the prior approval of each holder of the Capital Securities.
The Issuer Trustees shall not revoke any action previously authorized or
approved by a vote of the holders of the Capital Securities except by
subsequent vote of such holders. The Property Trustee shall notify each
holder of Capital Securities of any notice of default with respect to the
Junior Subordinated Debentures. In addition to obtaining the foregoing
approvals of such holders of the Capital Securities, prior to taking any of
the foregoing actions, the Issuer Trustees shall obtain an opinion of counsel
experienced in such matters to the effect that the Trust will not be
classified as an association taxable as a corporation for United States
federal income tax purposes on account of such action.
Any required approval of holders of Capital Securities may be given at a
meeting of such holders convened for such purpose or pursuant to written
consent. The Property Trustee will cause a notice of any meeting at which
holders of Capital Securities are entitled to vote, or of any matter upon
which action by written consent of such holders is to be taken, to be given
to each holder of record of Capital Securities in the manner set forth in the
Trust Agreement.
No vote or consent of the holders of Capital Securities will be required
for the Trust to redeem and cancel the Capital Securities in accordance with
the Trust Agreement.
Notwithstanding that holders of the Capital Securities are entitled to
vote or consent under any of the circumstances described above, any of the
Capital Securities that are owned by the Corporation, the Issuer Trustees or
any affiliate of the Corporation or any Issuer Trustees, shall, for purposes
of such vote or consent, be treated as if they were not outstanding.
FORM, DENOMINATION, BOOK-ENTRY PROCEDURES AND TRANSFER
The Capital Securities initially will be represented by one or more
Capital Securities in registered, global form (collectively, the "Global
Capital Securities"). The Global Capital Securities will be deposited upon
issuance with the Property Trustee as custodian for DTC, in The City of New
York, and registered in the name of DTC or its nominee, in each case for
credit to an account of a direct or indirect participant in DTC as described
below. Except as set forth below, the Global Capital Securities may be
transferred, in whole and not in part, only to another nominee of DTC or to a
successor of DTC or its nominee. Beneficial interests in the Global Capital
Securities may not be exchanged for Capital Securities in certificated form
except in the limited circumstances described below. See "--Exchange of
Book-Entry Capital Securities for Certificated Capital Securities".
Transfer of beneficial interests in the Global Capital Securities will
be subject to the applicable rules and procedures of DTC and its direct or
indirect participants, which may change from time to time.
Depositary Procedures
DTC has advised the Trust and the Corporation that DTC is a
limited-purpose trust company created to hold securities for its
participating organizations (collectively, the "Participants") and to
facilitate the clearance and settlement of transactions in those securities
between Participants through electronic book-entry changes in accounts of its
Participants. The Participants include securities brokers and dealers
(including the Underwriters), banks, trust companies, clearing corporations
and certain other organizations. Access to DTC's system is also available to
other entities such as banks, brokers, dealers and trust companies that clear
through or maintain a custodial relationship with a Participant, either
directly or indirectly (collectively, the "Indirect Participants"). Persons
who are not Participants may beneficially own securities held by or on behalf
of DTC only through the Participants or the Indirect Participants. The
ownership interest and transfer of ownership interest of each actual
purchaser of each security held by or on behalf of DTC are recorded on the
records of the Participants and Indirect Participants.
DTC has also advised the Trust and the Corporation that, pursuant to
procedures established by it, (i) upon deposit of the Global Capital
Securities, DTC will credit the accounts of Participants designated by the
Underwriters with portions of the Liquidation Amount of the Global Capital
Securities and (ii) ownership of such interests in the Global Capital
Securities will be shown on, and the transfer of ownership thereof will be
effected only through, records maintained by DTC (with respect to the
Participants) or by the Participants and the Indirect Participants (with
respect to other owners of beneficial interests in the Global Capital
Securities).
Except as described below, owners of beneficial interests in the Global
Capital Securities will not have Capital Securities registered in their name,
will not receive physical delivery of Capital Securities in certificated form
and will not be considered the registered owners or holders thereof under the
Trust Agreement for any purpose.
Payments in respect of the Global Capital Security registered in the
name of DTC or its nominee will be payable by the Property Trustee to DTC in
its capacity as the registered holder under the Trust Agreement. Under the
terms of the Trust Agreement, the Property Trustee will treat the persons in
whose names the Capital Securities, including the Global Capital Securities,
are registered as the owners thereof for the purpose of receiving such
payments and for any and all other purposes whatsoever. Consequently,
neither the Property Trustee nor any agent thereof has or will have any
responsibility or liability for (i) any aspect of DTC's records or any
Participant's or Indirect Participant's records relating to or payments made
on account of beneficial interests in the Global Capital Securities, or for
maintaining, supervising or reviewing any of DTC's records or any
Participant's or Indirect Participant's records relating to the beneficial
interests in the Global Capital Securities or (ii) any other matter relating
to the actions and practices of DTC or any of its Participants or Indirect
Participants. DTC has advised the Trust and the Corporation that its current
practice, upon receipt of any payment in respect of securities such as the
Capital Securities, is to credit the accounts of the relevant Participants
with the payment on the payment date, in amounts proportionate to their
respective holdings in Liquidation Amount of beneficial interests in the
relevant security as shown on the records of DTC unless DTC has reason to
believe it will not receive payment on such payment date. Payments by the
Participants and the Indirect Participants to the beneficial owners of
Capital Securities will be governed by standing instructions and customary
practices and will be the responsibility of the Participants or the Indirect
Participants and will not be the responsibility of DTC, the Property Trustee,
the Trust or the Corporation. Neither the Trust or the Corporation nor the
Property Trustee will be liable for any delay by DTC or any of its
Participants in identifying the beneficial owners of the Capital Securities,
and the Trust or the Corporation and the Property Trustee may conclusively
rely on and will be protected in relying on instructions from DTC or its
nominee for all purposes.
Beneficial interests in the Global Capital Securities will trade in
DTC's Same-Day Funds Settlement System and secondary market trading activity
in such interests will therefore settle in immediately available funds,
subject in all cases to the rules and procedures of DTC and its participants.
DTC has advised the Trust and the Corporation that it will take any
action permitted to be taken by a holder of Capital Securities only at the
direction of one or more Participants to whose account with DTC interests in
the Global Capital Securities are credited and only in respect of such
portion of the Liquidation Amount of the Capital Securities as to which such
Participant or Participants has or have given such direction. However, if
there is an Event of Default under the Trust Agreement, DTC reserves the
right to exchange the Global Capital Securities for legended Capital
Securities in certificated form and to distribute such Capital Securities to
its Participants.
The information in this section concerning DTC and its book-entry system
has been obtained from sources that the Trust and the Corporation believe to
be reliable, but neither the Trust nor the Corporation takes responsibility
for the accuracy thereof.
Exchange of Book-Entry Capital Securities for Certificated Capital Securities
A Global Capital Security is exchangeable for Capital Securities in
registered certificated form if (i) DTC (x) notifies the Trust that it is
unwilling or unable to continue as Depositary for the Global Capital Security
or (y) has ceased to be a clearing agency registered under the Exchange Act,
and the Trust thereupon fails to appoint a successor Depositary within 90
days, (ii) the Corporation in its sole discretion elects to cause the
issuance of the Capital Securities in certificated form or (iii) there shall
have occurred and be continuing an Event of Default or any event which after
notice or lapse of time or both would be an Event of Default under the Trust
Agreement. In addition, beneficial interests in a Global Capital Security
may be exchanged for certificated Capital Securities upon request but only
upon at least 20 days' prior written notice given to the Property Trustee by
or on behalf of DTC in accordance with customary procedures. In all cases,
certificated Capital Securities delivered in exchange for any Global Capital
Security or beneficial interests therein will be registered in the names, and
issued in any approved denominations, requested by or on behalf of the
Depositary (in accordance with its customary procedures), unless the Property
Trustee determines otherwise in compliance with applicable law.
PAYMENT AND PAYING AGENCY
Payments in respect of Global Capital Securities shall be made to DTC,
which shall credit the relevant accounts at DTC on the applicable
Distribution Dates, while payments in respect of Capital Securities in
certificated form shall be made by check mailed to the address of the holder
entitled thereto as such address shall appear on the register. The paying
agent (the "Paying Agent") shall initially be the Property Trustee and any
co-paying agent chosen by the Property Trustee and acceptable to the
Administrative Trustees and the Corporation. The Paying Agent shall be
permitted to resign as Paying Agent upon 30 days' written notice to the
Property Trustee and the Corporation. In the event that the Property Trustee
shall no longer be the Paying Agent, the Administrative Trustees shall
appoint a successor (which shall be a bank or trust company acceptable to the
Administrative Trustees and the Corporation) to act as Paying Agent.
REGISTRAR AND TRANSFER AGENT
The Property Trustee will act as registrar and transfer agent for the
Capital Securities.
Registration of transfers of the Capital Securities will be effected
without charge by or on behalf of the Trust, but upon payment of any tax or
other governmental charges that may be imposed in connection with any
transfer or exchange. The Trust will not be required to register or cause to
be registered the transfer of the Capital Securities after they have been
called for redemption.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
The Property Trustee, other than during the occurrence and continuance
of an Event of Default, undertakes to perform only such duties as are
specifically set forth in the Trust Agreement and, after such Event of
Default, must exercise the same degree of care and skill as a prudent person
would exercise or use in the conduct of his or her own affairs. Subject to
this provision, the Property Trustee is under no obligation to exercise any
of the powers vested in it by the Trust Agreement at the request of any
holder of Trust Securities unless it is offered reasonable indemnity against
the costs, expenses and liabilities that might be incurred thereby. If no
Event of Default has occurred and is continuing and the Property Trustee is
required to decide between alternative causes of action, construe ambiguous
provisions in the Trust Agreement or is unsure of the application of any
provision of the Trust Agreement, and the matter is not one on which holders
of the Capital Securities or the Common Securities are entitled under the
Trust Agreement to vote, then the Property Trustee shall take such action as
is directed by the Corporation and if not so directed, shall take such action
as it deems advisable and in the best interests of the holders of the Trust
Securities and will have no liability except for its own bad faith,
negligence or willful misconduct.
MISCELLANEOUS
The Administrative Trustees are authorized and directed to conduct the
affairs of and to operate the Trust in such a way that the Trust will not be
deemed to be an "investment company" required to be registered under the
Investment Company Act or classified as an association taxable as a
corporation for United States federal income tax purposes and so that the
Junior Subordinated Debentures will be treated as indebtedness of the
Corporation for United States federal income tax purposes. In this
connection, the Corporation and the Administrative Trustees are authorized to
take any action, not inconsistent with applicable law, the certificate of
trust of the Trust or the Trust Agreement, that the Corporation and the
Administrative Trustees determine in their discretion to be necessary or
desirable for such purposes, as long as such action does not materially
adversely affect the interests of the holders of the Trust Securities.
Holders of the Trust Securities have no preemptive or similar rights.
The Trust may not borrow money, issue debt, execute mortgages or pledge
any of its assets.
DESCRIPTION OF JUNIOR SUBORDINATED DEBENTURES
The Junior Subordinated Debentures are to be issued under an Indenture,
as supplemented from time to time (as so supplemented, the "Indenture"),
between the Corporation and the Debenture Trustee. The Indenture is
qualified under the Trust Indenture Act. This summary of certain terms and
provisions of the Junior Subordinated Debentures and the Indenture does not
purport to be complete and is subject to, and is qualified in its entirety by
reference to, all of the provisions of the Indenture, including the
definitions therein of certain terms, and those terms made a part of the
Indenture by the Trust Indenture Act.
GENERAL
Concurrently with the issuance of the Trust Securities, the Trust will
invest the proceeds thereof, together with the consideration paid by the
Corporation for the Common Securities, in Junior Subordinated Debentures
issued by the Corporation. The Junior Subordinated Debentures will bear
interest at a rate per annum (equal to __%) (reset _______ equal to LIBOR
plus ___%) (the "Interest Rate") on the principal amount thereof, payable
_______ in arrears on _______ of each year, commencing (each, an "Interest
Payment Date"), to the person in whose name each Junior Subordinated
Debenture is registered, subject to certain exceptions, at the close of
business on the _____ day of the month in which the relevant Interest
Payment Date falls. It is anticipated that, until the liquidation, if any,
of the Trust, each Junior Subordinated Debenture will be held in the
name of the Property Trustee in trust for the benefit of the holders of the
Trust Securities. The amount of interest payable for any period will be
computed on the basis of (a 360-day year consisting of twelve 30-day months)
(the actual number of days elapsed in such period and a year of 360 days).
In the event that any Interest Payment Date (is not a Business Day, then such
Interest Payment Date shall be postponed to the next succeeding Business Day,
except that if such Business Day falls in the next succeeding calendar month
then such Interest Payment Date shall be the immediately preceding Business
Day. If) or the Stated Maturity Date or earlier prepayment date for the
Junior Subordinated Debentures falls on a day that is not a Business Day,
then payment of interest on such date will be made on the next succeeding
Business Day, and no interest or other payment will accrue for the period
from and after such date. Accrued interest that is not paid on the
applicable Interest Payment Date will bear additional interest on the amount
thereof (to the extent permitted by law) at the Interest Rate, compounded
_______. The term "interest", as used herein, shall include _______
interest payments, interest on _______ interest payments not paid on the
applicable Interest Payment Date and Additional Sums (as defined below), as
applicable.
The Junior Subordinated Debentures will be issued in denominations of
$_____ and integral multiples thereof. The Junior Subordinated Debentures
will mature on __________, 20__ (the "Stated Maturity Date").
The Junior Subordinated Debentures will rank pari passu with all Other
Debentures and will be unsecured and subordinate and junior in right of
payment to the extent and in the manner set forth in the Indenture to all
Senior Indebtedness. See "--Subordination." The Corporation is a
non-operating holding company and almost all of the operating assets of the
Corporation and its consolidated subsidiaries are owned by such subsidiaries.
The Corporation relies primarily on dividends from such subsidiaries to meet
its obligations. The Corporation is a legal entity separate and distinct
from its banking and non-banking affiliates. The principal sources of the
Corporation's income are dividends, interest and fees from its banking and
non-banking affiliates. The bank subsidiaries of the Corporation (the
"Banks") are subject to certain restrictions imposed by federal law on any
extensions of credit to, and certain other transactions with, the Corporation
and certain other affiliates, and on investments in stock or other securities
thereof. Such restrictions prevent the Corporation and such other affiliates
from borrowing from the Banks unless the loans are secured by various types
of collateral. Further, such secured loans, other transactions and
investments by any of the Banks are generally limited in amount as to the
Corporation and as to each of such other affiliates to 10% of such Bank's
capital and surplus and as to the Corporation and all of such other
affiliates to an aggregate of 20% of such Bank's capital and surplus. In
addition, payment of dividends to the Corporation by the subsidiary banks is
subject to ongoing review by banking regulators and is subject to various
statutory limitations and in certain circumstances requires approval by
banking regulatory authorities. Because the Corporation is a holding
company, the right of the Corporation to participate in any distribution of
assets of any subsidiary upon such subsidiary's liquidation or reorganization
or otherwise, is subject to the prior claims of creditors of the subsidiary,
except to the extent the Corporation may itself be recognized as a creditor
of that subsidiary. Accordingly, the Junior Subordinated Debentures will be
effectively subordinated to all existing and future liabilities of the
Corporation's subsidiaries, and holders of Junior Subordinated Debentures
should look only to the assets of the Corporation for payments on the Junior
Subordinated Debentures. The Indenture does not limit the incurrence or
issuance of other secured or unsecured debt, including Senior Indebtedness,
of the Corporation or its subsidiaries. See "--Subordination."
(INTEREST RATE
The interest period with respect to the Junior Subordinated Debentures
is each successive period from and including the immediately preceding
Interest Payment Date (or the date of original issuance, in the case of the
initial interest period) to but excluding the applicable Interest Payment
Date. ____________________, as Calculation Agent (the "Calculation Agent"),
will calculate the Interest Rate for each interest period based on LIBOR
determined as of two London Business Days (defined as any day, other than a
Saturday or Sunday, on which banks are open for business in London) prior to
the first day of such interest period (each, a "Determination Date").
"LIBOR" means, with respect to an interest period relating to an Interest
Payment Date (in the following order of priority):
(1) the rate (expressed as a percentage per annum) for Eurodollar
deposits having a _____-month maturity that appears on Telerate Page
3750 as of 11:00 a.m. (London time) on the related Determination Date;
(2) if such rate does not appear on Telerate page 3750 as of 11:00
a.m. (London time) on the related Determination Date, LIBOR will be the
arithmetic mean (if necessary rounded upwards to the nearest whole
multiple of 0.00001%) of the rates (expressed as percentages per annum)
for Eurodollar deposits having a _____-month maturity that appear on
Reuters Monitor Money Rates Page LIBO ("Reuters Page LIBO") as of 11:00
a.m. (London time) on such Determination Date;
(3) if such rate does not appear on Reuters Page LIBO as of 11:00
a.m. (London time) on the related Determination Date, the Calculation
Agent will request the principal London offices of four leading banks in
the London interbank market to provide such banks' offered quotations
(expressed as percentages per annum) to prime banks in the London
interbank market for Eurodollar deposits having a _____-month maturity
as of 11:00 a.m. (London time) on such Determination Date and, if at
least two quotations are so provided, LIBOR will be the arithmetic mean
(if necessary rounded upwards to the nearest whole multiple of 0.00001%)
of such quotations;
(4) if fewer than two such quotations are provided as requested in
clause (3) above, the Calculation Agent will request four major New York
City banks to provide such banks' offered quotations (expressed as
percentages per annum) to leading European banks for loans in
Eurodollars having a _____-month maturity as of 11:00 a.m. (London time)
on the related Determination Date and, if at least two such quotations
are so provided, LIBOR will be the arithmetic mean (if necessary rounded
upwards to the nearest whole multiple of 0.00001%) of such quotations;
and
(5) if fewer than two such quotations are provided as requested in
clause (4) above, LIBOR will be LIBOR as determined on the immediately
preceding Determination Date.
If the rate for Eurodollar deposits having a _____-month maturity that
initially appears on Telerate Page 3750 or Reuters Page LIBO, as the case may
be, as of 11:00 a.m. (London time) on the related Determination Date is
superseded on Telerate Page 3750 or Reuters Page LIBO, as the case may be, by
a corrected rate before 12:00 noon (London time) on such Determination Date,
such corrected rate will be the applicable LIBOR for such Determination Date.
Absent manifest error, the Calculation Agent's determination of LIBOR
and its calculation of the applicable Interest Rate for each interest period
will be final and binding. Investors may obtain the interest rates for the
current and preceding interest period by writing or calling the
__________________________ of the Calculation Agent at (INSERT ADDRESS)
(telephone _____________________).)
FORM, REGISTRATION AND TRANSFER
If the Junior Subordinated Debentures are distributed to the holders of
the Trust Securities, the Junior Subordinated Debentures may be represented
by one or more global certificates registered in the name of Cede & Co. as
the nominee of DTC. The depositary arrangements for such Junior Subordinated
Debentures are expected to be substantially similar to those in effect for
the Capital Securities. For a description of DTC and the terms of the
depositary arrangements relating to payments, transfers, voting rights,
prepayments, notices and other matters, see "Description of Capital
Securities--Form, Denomination, Book-Entry Procedures and Transfer."
PAYMENT AND PAYING AGENTS
Payment of principal of (and premium, if any) and any interest on Junior
Subordinated Debentures will be made at the office of the Debenture Trustee
in The City of New York or at the office of such Paying Agent or Paying
Agents as the Corporation may designate from time to time, except that at the
option of the Corporation payment of any interest may be made except in the
case of Junior Subordinated Debentures in global form, (i) by check mailed to
the address of the Person entitled thereto as such address shall appear in
the register for Junior Subordinated Debentures or (ii) by transfer to an
account maintained by the Person entitled thereto as specified in such
register, provided that proper transfer instructions have been received by
the relevant Record Date. Payment of any interest on any Junior Subordinated
Debenture will be made to the Person in whose name such Junior Subordinated
Debenture is registered at the close of business on the Record Date for such
interest, except in the case of defaulted interest. The Corporation may at
any time designate additional Paying Agents or rescind the designation of any
Paying Agent; however, the Corporation will at all times be required to
maintain a Paying Agent in each Place of Payment for the Junior Subordinated
Debentures.
Any moneys deposited with the Debenture Trustee or any Paying Agent, or
then held by the Corporation in trust, for the payment of the principal of
(and premium, if any) or interest on any Junior Subordinated Debenture and
remaining unclaimed for two years after such principal (and premium, if any)
or interest has become due and payable shall, at the request of the
Corporation, be repaid to the Corporation and the holder of such Junior
Subordinated Debenture shall thereafter look, as a general unsecured
creditor, only to the Corporation for payment thereof.
OPTION TO EXTEND INTEREST PAYMENT DATE
So long as no Debenture Event of Default has occurred and is continuing,
the Corporation will have the right under the Indenture at any time during
the term of the Junior Subordinated Debentures to defer the payment of
interest at any time or from time to time for a period not exceeding __
consecutive _______ periods with respect to each Extension Period, provided
that no Extension Period may extend beyond the Stated Maturity Date. At the
end of such Extension Period, the Corporation must pay all interest then
accrued and unpaid (together with interest thereon at the (applicable)
Interest Rate, compounded _______, to the extent permitted by applicable
law). During an Extension Period, interest will continue to accrue and
holders of Junior Subordinated Debentures (and holders of the Trust
Securities while Trust Securities are outstanding) will be required to accrue
interest income for United States federal income tax purposes prior to the
receipt of cash attributable to such income. See "Certain Federal Income Tax
Consequences--Interest Income and Original Issue Discount."
During any Extension Period, the Corporation may not (i) declare or pay
any dividends or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Corporation's capital stock
(which includes common and preferred stock) or (ii) make any payment of
principal, interest or premium, if any, on or repay, repurchase or redeem any
debt securities of the Corporation (including any Other Debentures) that rank
pari passu with or junior in right of payment to the Junior Subordinated
Debentures or (iii) make any guarantee payments with respect to any guarantee
by the Corporation of the debt securities of any subsidiary of the
Corporation (including any Other Guarantees) if such guarantee ranks pari
passu with or junior in right of payment to the Junior Subordinated
Debentures (other than (a) dividends or distributions in shares of or
options, warrants or rights to subscribe for or purchase shares of, common
stock of the Corporation, (b) any declaration of a dividend in connection
with the implementation of a stockholders' rights plan, or the issuance of
stock under any such plan in the future, or the redemption or repurchase of
any such rights pursuant thereto, (c) payments under the Guarantee, (d) as a
result of a reclassification of the Corporation's capital stock or the
exchange or conversion of one class or series of the Corporation's capital
stock for another class or series of the Corporation's capital stock, (e) the
purchase of fractional interests in shares of the Corporation's capital stock
pursuant to the conversion or exchange provisions of such capital stock or
the security being converted or exchanged, and (f) purchases of common stock
related to the issuance of common stock or rights under any of the
Corporation's benefit plans for its directors, officers or employees or any
of the Corporation's dividend reinvestment plans).
Prior to the termination of any Extension Period, the Corporation may
further extend such Extension Period, provided that such extension does not
cause such Extension Period to exceed __ consecutive _________ periods or to
extend beyond the Stated Maturity Date. Upon the termination of any such
Extension Period and the payment of all amounts then due on any Interest
Payment Date, the Corporation may elect to begin a new Extension Period,
subject to the above requirements. No interest shall be due and payable
during an Extension Period, except at the end thereof. The Corporation must
give the Property Trustee, the Administrative Trustees and the Debenture
Trustee notice of its election of any Extension Period (or an extension
thereof) at least five Business Days prior to the earlier of (i) the date the
Distributions on the Trust Securities would have been payable except for the
election to begin or extend such Extension Period or (ii) the date the
Administrative Trustees are required to give notice to any securities
exchange or to holders of Capital Securities of the record date or the date
such Distributions are payable, but in any event not less than five Business
Days prior to such record date. The Debenture Trustee shall give notice of
the Corporation's election to begin or extend a new Extension Period to the
holders of the Capital Securities. There is no limitation on the number of
times that the Corporation may elect to begin an Extension Period.
OPTIONAL PREPAYMENT
The Junior Subordinated Debentures will be prepayable, in whole or in
part, at the option of the Corporation on or after ____________, subject to
the Corporation having received prior approval of the Federal Reserve if then
required under applicable capital guidelines or policies of the Federal
Reserve, at a prepayment price (the "Optional Prepayment Price") equal to
(100% of the principal amount of the Junior Subordinated Debentures so
prepaid) (the percentage of the outstanding principal amount of the Junior
Subordinated Debentures specified below so prepaid), plus accrued interest
thereon to the date of prepayment (if redeemed during the 12-month period
beginning _____________ of the years indicated below:)
<TABLE>
<CAPTION>
[Year] [Percentage]
---- ----------
<S> <C>
</TABLE>
SPECIAL EVENT PREPAYMENT
If a Special Event shall occur and be continuing, the Corporation may,
at its option and subject to receipt of prior approval of the Federal Reserve
if then required under applicable capital guidelines or policies of the
Federal Reserve, prepay the Junior Subordinated Debentures in whole (but not
in part) at any time within 90 days of the occurrence of such Special Event,
at a prepayment price (the "Special Event Prepayment Price") equal to (the
greater of (i)) 100% of the principal amount of the Junior Subordinated
Debentures (or (ii) the sum, as determined by the Quotation Agent, of the
present values of the remaining scheduled payments of principal and the
interest thereon discounted to the prepayment date on a ___________ basis
(assuming a 360-day year consisting of twelve 30-day months) at the Adjusted
Treasury Rate), plus accrued interest thereon to the date of prepayment.
A "Special Event" means a Tax Event or a Regulatory Capital Event (as
defined below), as the case may be.
A "Tax Event" means the receipt by the Corporation and the Trust of an
opinion of counsel 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
____________ __, there is more than an insubstantial risk that (i) the Trust
is, or will be within 90 days of the date of such opinion, subject to United
States federal income tax with respect to income received or accrued on the
Junior Subordinated Debentures, (ii) the interest payable by the Corporation
on the Junior Subordinated Debentures is not, or within 90 days of the date
of such opinion will not be, deductible by the Corporation, 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 such opinion, subject to more than a
de minimis amount of other taxes, duties or other governmental charges.
A "Regulatory Capital Event" means that the Corporation shall have
received an opinion of independent bank regulatory counsel experienced in
such matters to the effect that, as a result of (a) any amendment to, or
change (including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any rules, guidelines or
policies of the Federal Reserve or (b) 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 Capital Securities do
not constitute, or within 90 days of the date thereof, will not constitute,
Tier I capital (or its then equivalent); provided, however, that the
distribution of the Junior Subordinated Debentures in connection with the
liquidation of the Trust by the Corporation shall not in and of itself
constitute a Regulatory Capital Event unless such liquidation shall have
occurred in connection with a Tax Event.
["Adjusted Treasury Rate" means, with respect to any prepayment date, the
rate per annum equal to the _________________ equivalent yield to maturity of
the Comparable Treasury Issue, assuming a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such prepayment date plus (i) ____% if such
prepayment date occurs on or prior to _______________ and (ii) _____% in all
other cases.]
["Comparable Treasury Issue" means the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to the
remaining term of the Junior Subordinated Debentures to be prepaid that would
be utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities of
comparable maturity to the remaining term of the Junior Subordinated
Debentures.]
["Quotation Agent" means the Reference Treasury Dealer appointed by the
Corporation. "Reference Treasury Dealer" means: (i) _______________ and its
respective successors; ___________ provided, however, that if the foregoing
shall cease to be a primary U.S. Government securities dealer in New York
City (a "Primary Treasury Dealer"), the Corporation shall substitute therefor
another Primary Treasury Dealer; and (ii) any other Primary Treasury Dealer
selected by the Corporation.]
["Comparable Treasury Price" means, with respect to any prepayment date,
(i) the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
Business Day preceding such prepayment date, as set forth in the daily
statistical release (or any successor release) published by the Federal
Reserve Bank of New York and designated "Composite 3:30 p.m. Quotations for
U.S. Government Securities" or (ii) if such release (or any successor
release) is not published or does not contain such prices on such Business
Day, (A) the average of the Reference Treasury Dealer Quotations for such
prepayment date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (B) if the Debenture Trustee obtains fewer
than three such Reference Treasury Dealer Quotations, the average of all such
Quotations.]
["Reference Treasury Dealer Quotation" means, with respect to each
Reference Treasury Dealer and any prepayment date, the average, as determined
by the Debenture Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal
amount) quoted in writing to the Debenture Trustee by such Reference Treasury
Dealer at 5:00 p.m., New York City time, on the third Business Day preceding
such prepayment date.]
"Additional Sums" means the additional amounts as may be necessary in
order that the amount of Distributions then due and payable by the Trust on
the outstanding Capital Securities and Common Securities shall not be reduced
as a result of any additional taxes, duties and other governmental charges to
which the Trust has become subject as a result of a Tax Event.
Notice of any prepayment will be mailed at least 30 days but not more
than 60 days before the redemption date to each holder of Junior Subordinated
Debentures to be prepaid at its registered address. Unless the Corporation
defaults in payment of the prepayment price, on and after the prepayment date
interest ceases to accrue on such Junior Subordinated Debentures called for
prepayment.
If the Trust is required to pay any additional taxes, duties or other
governmental charges as a result of a Tax Event, the Corporation will pay as
additional amounts on the Junior Subordinated Debentures the Additional Sums.
RESTRICTIONS ON CERTAIN PAYMENTS
The Corporation will also covenant that it will not, (i) declare or pay
any dividends or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Corporation's capital stock
(which includes common and preferred stock) or (ii) make any payment of
principal, interest or premium, if any, on or repay or repurchase or redeem
any debt securities of the Corporation (including Other Debentures) that rank
pari passu with or junior in right of payment to the Junior Subordinated
Debentures or (iii) make any guarantee payments with respect to any guarantee
by the Corporation of the debt securities of any subsidiary of the
Corporation (including under Other Guarantees) if such guarantee ranks pari
passu or junior in right of payment to the Junior Subordinated Debentures
(other than (a) dividends or distributions in shares of, or options, warrants
or rights to subscribe for or purchase shares of, common stock of the
Corporation, (b) any declaration of a dividend in connection with the
implementation of a stockholder's rights plan, or the issuance of stock under
any such plan in the future, or the redemption or repurchase of any such
rights pursuant thereto, (c) payments under the Guarantee, (d) as a result of
a reclassification of the Corporation's capital stock or the exchange or
conversion of one class or series of the Corporation's capital stock for
another class or series of the Corporation's capital stock, (e) the purchase
of fractional interests in shares of the Corporation's capital stock pursuant
to the conversion or exchange provisions of such capital stock or the
security being converted or exchanged, and (f) purchases of common stock
related to the issuance of common stock or rights under any of the
Corporation's benefit plans for its directors, officers or employees or any
of the Corporation's dividend reinvestment plans) if at such time (1) there
shall have occurred any event of which the Corporation has actual knowledge
that (a) is, or with the giving of notice or the lapse of time, or both,
would be, a Debenture Event of Default and (b) in respect of which the
Corporation shall not have taken reasonable steps to cure, (2) if such Junior
Subordinated Debentures are held by the Trust, the Corporation shall be in
default with respect to its payment of any obligations under the Guarantee or
(3) the Corporation shall have given notice of its election of an Extension
Period as provided in the Indenture and shall not have rescinded such notice,
and such Extension Period, or any extension thereof, shall have commenced.
MODIFICATION OF INDENTURE
From time to time the Corporation and the Debenture Trustee may, without
the consent of the holders of Junior Subordinated Debentures, amend, waive or
supplement the Indenture for specified purposes, including, among other
things, curing ambiguities, defects or inconsistencies (provided that any
such action does not materially adversely affect the interest of the holders
of Junior Subordinated Debentures) and qualifying, or maintaining the
qualification of, the Indenture under the Trust Indenture Act. The Indenture
contains provisions permitting the Corporation and the Debenture Trustee,
with the consent of the holders of a majority in principal amount of Junior
Subordinated Debentures, to modify the Indenture in a manner affecting the
rights of the holders of Junior Subordinated Debentures; provided, that no
such modification may, without the consent of the holders of each outstanding
Junior Subordinated Debenture so affected, (i) change the Stated Maturity
Date, or reduce the principal amount of the Junior Subordinated Debentures or
reduce the rate or extend the time of payment of interest thereon or (ii)
reduce the percentage of principal amount of Junior Subordinated Debentures,
the holders of which are required to consent to any such modification of the
Indenture.
DEBENTURE EVENTS OF DEFAULT
The Indenture provides that any one or more of the following described
events with respect to the Junior Subordinated Debentures constitutes a
"Debenture Event of Default" (whatever the reason for such Debenture Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(i) failure for 30 days to pay any interest on the Junior
Subordinated Debentures or any Other Debentures when due (subject to the
deferral of any due date in the case of an Extension Period); or
(ii) failure to pay any principal or premium, if any, on the Junior
Subordinated Debentures or any Other Debentures when due, whether at
maturity, upon redemption, by declaration of acceleration of maturity or
otherwise; or
(iii) failure to observe or perform in any material respect certain
other covenants contained in the Indenture for 90 days after written
notice to the Corporation from the Debenture Trustee or the holders of
at least 25% in aggregate outstanding principal amount of Junior
Subordinated Debentures; or
(iv) certain events in bankruptcy, insolvency or reorganization of
the Corporation.
The holders of a majority in aggregate outstanding principal amount of
the Junior Subordinated Debentures have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the
Debenture Trustee. The Debenture Trustee or the holders of not less than 25%
in aggregate outstanding principal amount of the Junior Subordinated
Debentures may declare the principal due and payable immediately upon a
Debenture Event of Default. The holders of a majority in aggregate
outstanding principal amount of the Junior Subordinated Debentures may annul
such declaration and waive the default if the default (other than the
non-payment of the principal of the Junior Subordinated Debentures which has
become due solely by such acceleration) has been cured and a sum sufficient
to pay all matured installments of interest and principal due otherwise than
by acceleration has been deposited with the Debenture Trustee.
The holders of a majority in aggregate outstanding principal amount of
the Junior Subordinated Debentures affected thereby may, on behalf of the
holders of all the Junior Subordinated Debentures, waive any past default,
except a default in the payment of principal (or premium, if any) on or
interest (unless such default has been cured and a sum sufficient to pay all
matured installments of interest (and premium, if any) and principal due
otherwise than by acceleration has been deposited with the Debenture Trustee)
or a default in respect of a covenant or provision which under the Indenture
cannot be modified or amended without the consent of the holder of each
outstanding Junior Subordinated Debenture.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF CAPITAL SECURITIES
If a Debenture Event of Default shall have occurred and be continuing
and shall be attributable to the failure of the Corporation to pay interest
(or premium, if any) on principal of the Junior Subordinated Debentures on
the due date, a holder of Capital Securities may institute a Direct Action.
The Corporation may not amend the Indenture to remove the foregoing right to
bring a Direct Action without the prior written consent of the holders of all
of the Capital Securities outstanding. If the right to bring a Direct Action
is removed, the Trust may become subject to the reporting obligations under
the Exchange Act. Notwithstanding any payments made to a holder of Capital
Securities by the Corporation in connection with a Direct Action, the
Corporation shall remain obligated to pay the principal of (or premium, if
any) or interest on the Junior Subordinated Debentures, and the Corporation
shall be subrogated to the rights of the holder of such Capital Securities
with respect to payments on the Capital Securities to the extent of any
payments made by the Corporation to such holder in any Direct Action.
The holders of the Capital Securities will not be able to exercise
directly any remedies, other than those set forth in the preceding paragraph,
available to the holders of the Junior Subordinated Debentures unless there
shall have been an Event of Default under the Trust Agreement. See
"Description of Capital Securities--Events of Default; Notice."
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
The Indenture provides that the Corporation shall not consolidate with
or merge into any other Person or convey, transfer or lease its properties
and assets as an entirety or substantially as an entirety to any Person, and
no Person shall consolidate with or merge into the Corporation or convey,
transfer or lease its properties and assets as an entirety or substantially
as an entirety to the Corporation, unless: (i) in case the Corporation
consolidates with or merges into another Person or conveys or transfers its
properties and assets substantially as an entirety to any Person, the
successor Person is organized under the laws of the United States or any
State or the District of Columbia, and such successor Person expressly
assumes the Corporation's obligations on the Junior Subordinated Debentures;
(ii) immediately after giving effect thereto, no Debenture Event of Default,
and no event which, after notice or lapse of time or both, would become a
Debenture Event of Default, shall have occurred and be continuing; and (iii)
certain other conditions as prescribed in the Indenture are met.
The general provisions of the Indenture do not afford holders of the
Junior Subordinated Debentures protection in the event of a highly leveraged
or other transaction involving the Corporation that may adversely affect
holders of the Junior Subordinated Debentures.
SATISFACTION AND DISCHARGE
The Indenture provides that when, among other things, all Junior
Subordinated Debentures not previously delivered to the Debenture Trustee for
cancellation (i) have become due and payable or (ii) will become due and
payable at maturity within one year, and the Corporation deposits or causes
to be deposited with the Debenture Trustee funds, in trust, for the purpose
and in an amount sufficient to pay and discharge the entire indebtedness on
the Junior Subordinated Debentures not previously delivered to the Debenture
Trustee for cancellation, for the principal (and premium, if any) and
interest to the date of the deposit or to the Stated Maturity Date, as the
case may be, then the Indenture will cease to be of further effect (except as
to the Corporation's obligations to pay all other sums due pursuant to the
Indenture and to provide the officers' certificates and opinions of counsel
described therein), and the Corporation will be deemed to have satisfied and
discharged the Indenture.
SUBORDINATION
In the Indenture, the Corporation has covenanted and agreed that any
Junior Subordinated Debentures issued thereunder will be subordinate and
junior in right of payment to all Senior Indebtedness to the extent provided
in the Indenture. Upon any payment or distribution of assets to creditors
upon any liquidation, dissolution, winding up, reorganization, assignment for
the benefit of creditors, marshaling of assets or any bankruptcy, insolvency,
debt restructuring or similar proceedings in connection with any insolvency
or bankruptcy proceeding of the Corporation, the holders of Senior
Indebtedness will first be entitled to receive payment in full of all
Allocable Amounts (as defined below) in respect of such Senior Indebtedness
before the holders of Junior Subordinated Debentures will be entitled to
receive or retain any payment in respect thereof.
In the event of the acceleration of the maturity of Junior Subordinated
Debentures, the holders of all Senior Indebtedness outstanding at the time of
such acceleration will first be entitled to receive payment in full of all
Allocable Amounts in respect of such Senior Indebtedness before the holders
of Junior Subordinated Debentures will be entitled to receive or retain any
payment in respect of the Junior Subordinated Debentures.
No payments on account of principal (or premium, if any) or interest, if
any, in respect of the Junior Subordinated Debentures may be made if there
shall have occurred and be continuing a default in any payment with respect
to Senior Indebtedness, or an event of default with respect to any Senior
Indebtedness resulting in the acceleration of the maturity thereof, or if any
judicial proceeding shall be pending with respect to any such default.
"Allocable Amounts," when used with respect to any Senior Indebtedness,
means all amounts due or to become due on such Senior Indebtedness less, if
applicable, any amount which would have been paid to, and retained by, the
holders of such Senior Indebtedness (whether as a result of the receipt of
payments by the holders of such Senior Indebtedness from the Corporation or
any other obligor thereon or from any holders of, or trustee in respect of,
other indebtedness that is subordinate and junior in right of payment to such
Senior Indebtedness pursuant to any provision of such indebtedness for the
payment over of amounts received on account of such indebtedness to the
holders of such Senior Indebtedness or otherwise) but for the fact that such
Senior Indebtedness is subordinate or junior in right of payment to (or
subject to a requirement that amounts received on such Senior Indebtedness be
paid over to obligees on) trade accounts payable or accrued liabilities
arising in the ordinary course of business.
"Indebtedness for Money Borrowed" shall mean any obligation of, or any
obligation guaranteed by, the Corporation for the repayment of borrowed
money, whether or not evidenced by bonds, debentures, notes or other written
instruments.
"Indebtedness Ranking on a Parity with the Junior Subordinated
Debentures" shall mean (i) Indebtedness for Money Borrowed, whether
outstanding on the date of execution of the Indenture or thereafter created,
assumed or incurred, which specifically by its terms ranks equally with and
not prior to the Junior Subordinated Debentures in the right of payment upon
the happening of the dissolution or winding-up or liquidation or
reorganization of the Corporation, (ii) all other debt securities, and
guarantees in respect of those debt securities, issued to any other trust, or
a trustee of such trust, partnership or other entity affiliated with the
Corporation that is a financing vehicle of the Corporation (a "financing
entity") in connection with the issuance by such financing entity of equity
securities or other securities guaranteed by the Corporation pursuant to an
instrument that ranks pari passu with or junior in right of payment to the
Guarantee and (iii) all trade accounts payable arising in the ordinary
course of business.
"Indebtedness Ranking Junior to the Junior Subordinated Debentures"
shall mean any Indebtedness for Money Borrowed, whether outstanding on the
date of execution of the Indenture or thereafter created, assumed or
incurred, which specifically by its terms ranks junior to and not equally
with or prior to the Junior Subordinated Debentures (and any other
Indebtedness Ranking on a Parity with the Junior Subordinated Debentures) in
right of payment upon the happening of the dissolution or winding-up or
liquidation or reorganization of the Corporation. The securing of any
Indebtedness for Money Borrowed, otherwise constituting Indebtedness Ranking
on a Parity with the Junior Subordinated Debentures or Indebtedness Ranking
Junior to the Junior Subordinated Debentures, as the case may be, shall not
be deemed to prevent such Indebtedness for Money Borrowed from constituting
Indebtedness Ranking on a Parity with the Junior Subordinated Debentures or
Indebtedness Ranking Junior to the Junior Subordinated Debentures, as the
case may be.
"Senior Indebtedness" shall mean all Indebtedness for Money Borrowed,
whether outstanding on the date of execution of the Indenture or thereafter
created, assumed or incurred, except Indebtedness Ranking on a Parity with
the Junior Subordinated Debentures or Indebtedness Ranking Junior to the
Junior Subordinated Debentures, and any deferrals, renewals or extensions of
such Senior Indebtedness.
The Indenture places no limitation on the amount of secured or unsecured
debt, including Senior Indebtedness, that may be incurred by the Corporation
or its subsidiaries. The Corporation and its subsidiaries expect from time
to time to incur additional indebtedness, including Senior Indebtedness.
GOVERNING LAW
The Indenture and the Junior Subordinated Debentures will be governed by
and construed in accordance with the laws of the State of New York.
INFORMATION CONCERNING THE DEBENTURE TRUSTEE
The Debenture Trustee is subject to all the duties and responsibilities
specified with respect to an indenture trustee under the Trust Indenture Act.
Subject to such provisions, the Debenture Trustee is under no obligation to
exercise any of the powers vested in it by the Indenture at the request of
any holder of Junior Subordinated Debentures, unless offered reasonable
indemnity by such holder against the costs, expenses and liabilities which
might be incurred thereby. The Debenture Trustee is not required to expend
or risk its own funds or otherwise incur personal financial liability in the
performance of its duties if the Debenture Trustee reasonably believes that
repayment or adequate indemnity is not reasonably assured to it.
DESCRIPTION OF GUARANTEE
The Guarantee will be executed and delivered by the Corporation
concurrently with the issuance by the Trust of the Capital Securities for the
benefit of the holders from time to time of the Capital Securities. The Bank
of New York will act as indenture trustee ("Guarantee Trustee") under the
Guarantee. The Guarantee is qualified as an indenture under the Trust
Indenture Act. The Guarantee Trustee will act as the Guarantee Trustee for
the purposes of compliance with the Trust Indenture Act and will hold the
Guarantee for the benefit of the holders of the Capital Securities. This
summary of certain terms and provisions of the Guarantee does not purport to
be complete and is subject to, and qualified in its entirety by reference to,
all of the provisions of the Guarantee, including the definitions therein of
certain terms, and those made a part of the Guarantee by the Trust Indenture
Act.
GENERAL
The Corporation will irrevocably agree to pay in full on a subordinated
basis, to the extent set forth herein, the Guarantee Payments (as defined
below) to the holders of the Capital Securities, as and when due, regardless
of any defense, right of set-off or counterclaim that the Trust may have or
assert other than the defense of payment. The following payments with
respect to the Capital Securities, to the extent not paid by or on behalf of
the Trust (the "Guarantee Payments"), will be subject to the Guarantee: (i)
any accumulated and unpaid Distributions required to be paid on Capital
Securities, to the extent that the Trust has funds on hand legally available
therefor at such time, (ii) the applicable Redemption Price with respect to
Capital Securities called for redemption, to the extent that the Trust has
funds on hand legally available therefor at such time, or (iii) upon a
voluntary or involuntary termination and liquidation of the Trust (unless the
Junior Subordinated Debentures are distributed to holders of the Capital
Securities), the lesser of (a) the Liquidation Distribution and (b) the
amount of assets of the Trust remaining available for distribution to holders
of Capital Securities. The Corporation's obligation to make a Guarantee
Payment may be satisfied by direct payment of the required amounts by the
Corporation to the holders of the Capital Securities or by causing the Trust
to pay such amounts to such holders.
The Corporation will, through the Guarantee, the Trust Agreement, the
Junior Subordinated Debentures and the Indenture, taken together, fully,
irrevocably and unconditionally guarantee all of the Trust's obligations
under the Capital Securities. No single document standing alone or operating
in conjunction with fewer than all of the other documents constitutes such
guarantee. It is only the combined operation of these documents that has the
effect of providing a full, irrevocable and unconditional guarantee of the
Trust's obligations under the Capital Securities. See "Relationship Among
the Capital Securities, the Junior Subordinated Debentures and the
Guarantee."
STATUS OF THE GUARANTEE
The Guarantee will constitute an unsecured obligation of the Corporation
and will rank subordinate and junior in right of payment to all Senior
Indebtedness in the same manner as Junior Subordinated Debentures, except in
the case of a bankruptcy or insolvency proceeding in respect of the
Corporation, in which case the Guarantee will rank subordinate and junior in
right of payment to all liabilities (other than Other Guarantees) of the
Corporation. The Guarantee will rank pari passu with all Other Guarantees
issued by the Corporation.
Because the Corporation is a holding company, the right of the
Corporation to participate in any distribution of assets of any subsidiary
upon such subsidiary's liquidation or reorganization or otherwise, is subject
to the prior claims of creditors of that subsidiary, except to the extent the
Corporation may itself be recognized as a creditor of that subsidiary.
Accordingly, the Corporation's obligations under the Guarantee will be
effectively subordinated to all existing and future liabilities of the
Corporation's subsidiaries, and claimants should look only to the assets of
the Corporation for payments thereunder. See "Description of the Junior
Subordinated Debentures--General." The Guarantee does not limit the
incurrence or issuance of debt of the Corporation's subsidiaries.
The Guarantee will constitute a guarantee of payment and not of
collection (i.e., the guaranteed party may institute a legal proceeding
directly against the Corporation to enforce its rights under the Guarantee
without first instituting a legal proceeding against any other person or
entity). The Guarantee will be held for the benefit of the holders of the
Capital Securities. The Guarantee will not be discharged except by payment
of the Guarantee Payments in full to the extent not paid by the Trust or upon
distribution to the holders of the Capital Securities of the Junior
Subordinated Debentures. The Guarantee does not place a limitation on the
amount of additional Senior Indebtedness that may be incurred by the
Corporation. The Corporation expects from time to time to incur additional
indebtedness constituting Senior Indebtedness.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes that do not materially adversely affect
the rights of holders of the Capital Securities (in which case no vote or
consent will be required), the Guarantee may not be amended without the prior
approval of the holders of a majority of the Liquidation Amount of such
outstanding Capital Securities. The manner of obtaining any such approval
will be as set forth under "Description of the Capital Securities--Voting
Rights; Amendment of the Trust Agreement." All guarantees and agreements
contained in the Guarantee Agreement shall bind the successors, assigns,
receivers, trustees and representatives of the Corporation and shall inure to
the benefit of the holders of the Capital Securities then outstanding.
EVENTS OF DEFAULT
An event of default under the Guarantee will occur upon the failure of
the Corporation to perform any of its payment or other obligations
thereunder. The holders of a majority in Liquidation Amount of the Capital
Securities will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Guarantee Trustee
in respect of the Guarantee or to direct the exercise of any trust or power
conferred upon the Guarantee Trustee under the Guarantee.
Any holder of the Capital Securities may institute a legal proceeding
directly against the Corporation to enforce its rights under the Guarantee
without first instituting a legal proceeding against the Trust, the Guarantee
Trustee or any other person or entity.
The Corporation, as guarantor, will be required to file annually with
the Guarantee Trustee a certificate as to whether or not the Corporation is
in compliance with all the conditions and covenants applicable to it under
the Guarantee.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, other than during the occurrence and continuance
of a default by the Corporation in performance of the Guarantee, will
undertake to perform only such duties as are specifically set forth in the
Guarantee and, after default with respect to the Guarantee, must exercise the
same degree of care and skill as a prudent person would exercise or use in
the conduct of his or her own affairs. Subject to this provision, the
Guarantee Trustee will be under no obligation to exercise any of the powers
vested in it by the Guarantee at the request of any holder of the Capital
Securities unless it is offered reasonable indemnity against the costs,
expenses and liabilities that might be incurred thereby.
TERMINATION OF THE GUARANTEE
The Guarantee will terminate and be of no further force and effect upon
full payment of the applicable Redemption Price of the Capital Securities,
upon full payment of the Liquidation Amount payable upon liquidation of the
Trust or upon distribution of Junior Subordinated Debentures to the holders
of the Capital Securities. The Guarantee will continue to be effective or
will be reinstated, as the case may be, if at any time any holder of the
Capital Securities must restore payment of any sums paid under the Capital
Securities or the Guarantee.
GOVERNING LAW
The Guarantee will be governed by and construed in accordance with the
laws of the State of New York.
RELATIONSHIP AMONG THE CAPITAL SECURITIES, THE
JUNIOR SUBORDINATED DEBENTURES AND THE GUARANTEE
FULL AND UNCONDITIONAL GUARANTEE
Payments of Distributions and other amounts due on the Capital
Securities (to the extent the Trust has funds on hand legally available for
the payment of such Distributions) will be irrevocably guaranteed by the
Corporation as and to the extent set forth under "Description of Guarantee."
Taken together, the Corporation's obligations under the Junior Subordinated
Debentures, the Indenture, the Trust Agreement and the Guarantee will
provide, in the aggregate, a full, irrevocable and unconditional guarantee of
payments of Distributions and other amounts due on the Capital Securities.
No single document standing alone or operating in conjunction with fewer than
all of the other documents constitutes such guarantee. It is only the
combined operation of these documents that has the effect of providing a
full, irrevocable and unconditional guarantee of the Trust's obligations
under the Capital Securities. If and to the extent that the Corporation does
not make the required payments on the Junior Subordinated Debentures, the
Trust will not have sufficient funds to make the related payments, including
Distributions, on the Capital Securities. The Guarantee will not cover any
such payment when the Trust does not have sufficient funds on hand legally
available therefor. In such event, the remedy of a holder of Capital
Securities is to institute a Direct Action. The obligations of the
Corporation under the Guarantee will rank subordinate and junior in right of
payment to all Senior Indebtedness.
SUFFICIENCY OF PAYMENTS
As long as payments of interest and other payments are made when due on
the Junior Subordinated Debentures, such payments will be sufficient to cover
Distributions and other payments due on the Capital Securities, primarily
because: (i) the aggregate principal amount or Prepayment Price of the Junior
Subordinated Debentures will be equal to the sum of the Liquidation Amount or
Redemption Price, as applicable, of the Capital Securities and related Common
Securities; (ii) the Interest Rate and interest and other payment dates on
the Junior Subordinated Debentures will match the Distribution Rate and
Distribution and other payment dates for the Trust Securities; (iii) the
Corporation shall pay for all and any costs, expenses and liabilities of the
Trust except the Trust's obligations to holders of Trust Securities under
such Trust Securities; and (iv) the Trust Agreement will provide that the
Trust is not authorized to engage in any activity that is not consistent with
the limited purposes thereof.
ENFORCEMENT RIGHTS OF HOLDERS OF CAPITAL SECURITIES
A holder of any Capital Security may institute a legal proceeding
directly against the Corporation to enforce its rights under the Guarantee
without first instituting a legal proceeding against the Guarantee Trustee,
the Trust or any other person or entity. A default or event of default under
any Senior Indebtedness would not constitute a default or Event of Default
under the Trust Agreement. However, in the event of payment defaults under,
or acceleration of, Senior Indebtedness, the subordination provisions of the
Indenture will provide that no payments may be made in respect of the Junior
Subordinated Debentures until such Senior Indebtedness has been paid in full
or any payment default thereunder has been cured or waived. Failure to make
required payments on Junior Subordinated Debentures would constitute an Event
of Default under the Trust Agreement.
LIMITED PURPOSE OF THE TRUST
The Capital Securities will represent beneficial interests in the Trust,
and the Trust exists for the sole purpose of issuing and selling the Trust
Securities, using the proceeds from the sale of the Trust Securities to
acquire the Junior Subordinated Debentures and engaging in only those other
activities necessary, advisable or incidental thereto. A principal
difference between the rights of a holder of a Capital Security and a holder
of a Junior Subordinated Debenture is that a holder of a Junior Subordinated
Debenture will be entitled to receive from the Corporation the principal
amount of (and premium, if any) and interest on Junior Subordinated
Debentures held, while a holder of Capital Securities is entitled to receive
Distributions from the Trust (or, in certain circumstances, from the
Corporation under the Guarantee) if and to the extent the Trust has funds on
hand legally available for the payment of such Distributions.
RIGHTS UPON TERMINATION
Unless the Junior Subordinated Debentures are distributed to holders of
the Trust Securities, upon any voluntary or involuntary termination and
liquidation of the Trust, the holders of the Trust Securities will be
entitled to receive, out of assets held by the Trust, the Liquidation
Distribution in cash. See "Description of Capital Securities--Liquidation of
the Trust and Distribution of Junior Subordinated Debentures." Upon any
voluntary or involuntary liquidation or bankruptcy of the Corporation, the
Property Trustee, as holder of the Junior Subordinated Debentures, would be a
subordinated creditor of the Corporation, subordinated in right of payment to
all Senior Indebtedness as set forth in the Indenture, but entitled to
receive payment in full of principal (and premium, if any) and interest,
before any stockholders of the Corporation receive payments or distributions.
Since the Corporation will be the guarantor under the Guarantee and will
agree to pay for all costs, expenses and liabilities of the Trust (other than
the Trust's obligations to the holders of its Trust Securities), the
positions of a holder of Capital Securities and a holder of Junior
Subordinated Debentures relative to stockholders of the Corporation in the
event of liquidation or bankruptcy of the Corporation are expected to be
substantially the same.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
GENERAL
In the opinion of Brown & Wood LLP, counsel to the Corporation and the
Trust ("Tax Counsel"), the following is a summary of certain material United
States federal income tax consequences of the purchase, ownership and
disposition of Capital Securities held as capital assets by a holder who
purchases such Capital Securities upon initial issuance. It does not deal
with special classes of holders such as banks, thrifts, real estate
investment trusts, regulated investment companies, insurance companies,
dealers in securities or currencies, tax-exempt investors, or persons that
will hold the Capital Securities as a position in a "straddle," as part of a
"synthetic security" or "hedge," as part of a "conversion transaction" or
other integrated investment, or as other than a capital asset. This summary
also does not address the tax consequences to persons that have a functional
currency other than the U.S. dollar or the tax consequences to shareholders,
partners or beneficiaries of a holder of Capital Securities. Further, it
does not include any description of any alternative minimum tax consequences
or the tax laws of any state or local government or of any foreign government
that may be applicable to the Capital Securities. This summary is based on
the Internal Revenue Code of 1986, as amended (the "Code"), Treasury
regulations promulgated thereunder, the administrative and judicial
interpretations thereof, as of the date hereof, all of which are subject to
change, possibly on a retroactive basis.
CLASSIFICATION OF THE JUNIOR SUBORDINATED DEBENTURES
In connection with the issuance of the Junior Subordinated Debentures,
Tax Counsel will render its opinion generally to the effect that, under then
current law and assuming full compliance with the terms of the Indenture (and
certain other documents), and based on certain facts and assumptions
contained in such opinion, the Junior Subordinated Debentures will be
classified for United States federal income tax purposes as indebtedness of
the Corporation. An opinion of Tax Counsel, however, is not binding on the
Internal Revenue Service (the "IRS") or the courts. Prospective investors
should note that no rulings have been or are expected to be sought from the
IRS with respect to any of these issues and no assurance can be given that
the IRS will not take contrary positions. Moreover, no assurance can be
given that any of the opinions expressed herein will not be challenged by the
IRS or, if challenged, that such a challenge would not be successful.
CLASSIFICATION OF THE TRUST
In connection with the issuance of the Capital Securities, Tax Counsel
will render its opinion generally to the effect that, under then current law
and assuming full compliance with the terms of the Trust Agreement and the
Indenture (and certain other documents), and based on certain facts and
assumptions contained in such opinion, the Trust will be classified for
United States federal income tax purposes as a grantor trust and not as an
association taxable as a corporation. Accordingly, for United States federal
income tax purposes, each holder of Capital Securities generally will be
considered the owner of an undivided interest in the Junior Subordinated
Debentures, and each holder will be required to include in its gross income
any interest (or OID accrued) with respect to its allocable share of those
Junior Subordinated Debentures.
INTEREST INCOME AND ORIGINAL ISSUE DISCOUNT
Under Treasury regulations (the "Regulations") applicable to debt
instruments issued on or after August 13, 1996, a "remote" contingency that
stated interest will not be timely paid will be ignored in determining
whether a debt instrument is issued with OID. The Corporation believes that
the likelihood of its exercising its option to defer payments of interest is
"remote" since exercising that option would prevent the Corporation from
declaring dividends on any class of its equity securities. Accordingly, the
Corporation intends to take the position, based on the advice of Tax Counsel,
that the Junior Subordinated Debentures will not be considered to be issued
with OID and, accordingly, stated interest on the Junior Subordinated
Debentures generally will be taxable to a holder as ordinary income at the
time it is paid or accrued in accordance with such holder's method of
accounting.
Under the Regulations, if the Corporation were to exercise its option to
defer payments of interest, the Junior Subordinated Debentures would at that
time be treated as issued with OID, and all stated interest on the Junior
Subordinated Debentures would thereafter be treated as OID as long as the
Junior Subordinated Debentures remain outstanding. In such event, all of a
holder's taxable interest income with respect to the Junior Subordinated
Debentures would thereafter be accounted for on an economic accrual basis
regardless of such holder's method of tax accounting, and actual
distributions of stated interest would not be reported as taxable income.
Consequently, a holder of Capital Securities would be required to include in
gross income OID even though the Corporation would not make actual cash
payments during an Extension Period. Moreover, under the Regulations, if the
option to defer the payment of interest was determined not to be "remote",
the Junior Subordinated Debentures would be treated as having been originally
issued with OID. In such event, all of a holder's taxable interest income
with respect to the Junior Subordinated Debentures would be accounted for on
an economic accrual basis regardless of such holder's method of tax
accounting, and actual distributions of stated interest would not be reported
as taxable income.
Prospective investors should be aware that it is possible that the IRS
could take a position contrary to Tax Counsel's interpretation herein.
Because income on the Capital Securities will constitute interest or
OID, corporate holders of the Capital Securities will not be entitled to a
dividends-received deduction with respect to any income recognized with
respect to the Capital Securities.
RECEIPT OF JUNIOR SUBORDINATED DEBENTURES OR CASH UPON LIQUIDATION OF THE
TRUST
The Corporation will have the right at any time to liquidate the Trust
and cause the Junior Subordinated Debentures to be distributed to the holders
of the Trust Securities, subject to (i) the Corporation having received an
opinion of counsel to the effect that such distribution will not be a taxable
event to holders of Capital Securities and (ii) the prior approval of the
Federal Reserve if then required under applicable capital guidelines or
policies of the Federal Reserve. Such a distribution, for United States
federal income tax purposes, would be treated as a nontaxable event to each
holder, and each holder would receive an aggregate tax basis in the Junior
Subordinated Debentures equal to such holder's aggregate tax basis in its
Capital Securities. A holder's holding period in the Junior Subordinated
Debentures so received in liquidation of the Trust would include the period
during which the Capital Securities were held by such holder. If, however,
the Trust is characterized for United States federal income tax purposes as
an association taxable as a corporation at the time of its dissolution, the
distribution of the Junior Subordinated Debentures may constitute a taxable
event to holders of Capital Securities and a holder's holding period in
Junior Subordinated Debentures would begin on the date such Junior
Subordinated Debentures were received.
Under certain circumstances described herein (see "Description of
Capital Securities"), the Junior Subordinated Debentures may be prepaid for
cash and the proceeds of such prepayment distributed to holders in redemption
of their Capital Securities. Under current law, such a redemption would, for
United States federal income tax purposes, constitute a taxable disposition
of the redeemed Capital Securities, and a holder would recognize gain or loss
as if it sold such redeemed Capital Securities for cash. See "--Sales of
Capital Securities."
SALES OF CAPITAL SECURITIES
A holder that sells Capital Securities (including a redemption of such
Capital Securities by the Corporation) will recognize gain or loss equal to
the difference between its adjusted tax basis in the Capital Securities and
the amount realized on the sale of such Capital Securities (other than with
respect to accrued and unpaid interest which has not yet been included in
income, which will be treated as ordinary income). A holder's adjusted tax
basis in the Capital Securities generally will be its initial purchase price
increased by OID (if any) previously includible in such holder's gross income
to the date of disposition and decreased by payments (if any) received on the
Capital Securities in respect of OID. Such gain or loss generally will be a
capital gain or loss and generally will be a long-term capital gain or loss
if the Capital Securities have been held for more than one year.
The Taxpayer Relief Act of 1997 reduces the maximum rates on long-term
capital gains recognized on capital assets held by individual taxpayers for
more than eighteen months as of the date of disposition to 20% (and would
further reduce the maximum rates on such gains in the year 2001 and
thereafter for certain individual taxpayers who meet specified conditions).
Gain recognized by individual taxpayers on assets held more than twelve but
not more than eighteen months continue to be taxed at a 28% rate.
Prospective investors should consult their tax advisors concerning these tax
law changes.
The Capital Securities may trade at a price that does not accurately
reflect the value of accrued but unpaid interest with respect to the
underlying Junior Subordinated Debentures. A holder who uses the accrual
method of accounting for tax purposes (and a cash method holder, if the
Junior Subordinated Debentures are deemed to have been issued with OID) who
disposes of his Capital Securities between record dates for payments of
distributions thereon will be required to include accrued but unpaid interest
on the Junior Subordinated Debentures through the date of disposition in
income as ordinary income (i.e., interest or, possibly, OID), and to add such
amount to his adjusted tax basis in his pro rata share of the underlying
Junior Subordinated Debentures deemed disposed of. To the extent the selling
price is less than the holder's adjusted tax basis (which will include all
accrued but unpaid interest) a holder will recognize a capital loss. Subject
to certain limited exceptions, capital losses cannot be applied to offset
ordinary income for United States federal income tax purposes.
UNITED STATES ALIEN HOLDERS
For purposes of this discussion, a "U.S. Alien Holder" is any
corporation, individual, partnership, estate or trust that is not a U.S.
Holder for United States federal income tax purposes. A "U.S. Holder" is a
holder of Capital Securities who or which is (i) a citizen or individual
resident (or is treated as a citizen or individual resident) of the United
States for federal income tax purposes, (ii) a corporation or partnership
created or organized (or treated as created or organized for federal income
tax purposes) in or under the laws of the United States or any state thereof
or the District of Columbia (unless, in the case of a partnership, Treasury
regulations provide otherwise), (iii) an estate the income of which is
includible in its gross income for federal income tax purposes without regard
to its source or (iv) a trust if, and only if, (a) a court within the United
States is able to exercise primary supervision over the administration of the
trust and (b) one or more United States persons have the authority to control
all substantial decisions of the trust). Notwithstanding the preceding
sentence, to the extent provided in Treasury regulations, certain trusts in
existence on August 20, 1996, and treated as United States persons prior to
such date, that elect to continue to be treated as United States persons will
also be a U.S. Holder.
Under present United States federal income tax laws: (i) payments by the
Trust or any of its paying agents to any holder of a Capital Security who or
which is a U.S. Alien Holder will not be subject to United States
federal withholding tax; provided that, (a) the beneficial owner of the
Capital Security does not actually or constructively own 10 percent or more
of the total combined voting power of all classes of stock of the Corporation
entitled to vote, (b) the beneficial owner of the Capital Security is not a
controlled foreign corporation that is related to the Corporation through
stock ownership, and (c) either (A) the beneficial owner of the Capital
Security certifies to the Trust or its agent, under penalties of perjury,
that it is not a U.S. Holder and provides its name and address or
(B) a securities clearing organization, bank or other financial institution
that holds customers' securities in the ordinary course of its trade or
business (a "Financial Institution"), and holds the Capital Security in such
capacity, certifies to the Trust or its agent, under penalties of perjury,
that such statement has been received from the beneficial owner by it or by a
Financial Institution between it and the beneficial owner and furnishes the
Trust or its agent with a copy thereof; and (ii) a U.S. Alien Holder
of a Capital Security will not be subject to United States federal
withholding tax on any gain realized upon the sale or other disposition of a
Capital Security.
INFORMATION REPORTING TO HOLDERS
Generally, income on the Capital Securities will be reported to holders
on Forms 1099, which forms should be mailed to holders of Capital Securities
by January 31 following each calendar year.
BACKUP WITHHOLDING
Payments made on, and proceeds from the sale of, the Capital Securities
may be subject to a "backup" withholding tax of 31 percent unless the holder
complies with certain identification requirements. Any withheld amounts will
be allowed as a credit against the holder's United States federal income tax,
provided the required information is provided to the IRS.
NEW WITHHOLDING REGULATIONS
On October 6, 1997, the Treasury Department issued new regulations (the
"New Regulations") which make certain modifications to the withholding,
backup withholding and information reporting rules described above. The New
Regulations attempt to unify certification requirements and modify reliance
standards. The New Regulations will generally be effective for payments made
after December 31, 1998, subject to certain transition rules. Prospective
investors are urged to consult their own tax advisors regarding the New
Regulations.
THE UNITED STATES FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE IS
INCLUDED FOR GENERAL INFORMATION ONLY AND MAY NOT BE APPLICABLE DEPENDING
UPON A HOLDER'S PARTICULAR SITUATION. HOLDERS SHOULD CONSULT THEIR TAX
ADVISORS WITH RESPECT TO THE TAX CONSEQUENCES TO THEM OF THE PURCHASE,
OWNERSHIP AND DISPOSITION OF THE CAPITAL SECURITIES, INCLUDING THE TAX
CONSEQUENCES UNDER STATE, LOCAL, FOREIGN AND OTHER TAX LAWS AND THE POSSIBLE
EFFECTS OF CHANGES IN UNITED STATES FEDERAL OR OTHER TAX LAWS.
(ERISA CONSIDERATIONS
The Corporation, the obligor with respect to the Junior Subordinated
Debentures held by the Trust, and its affiliates and the Property Trustee may
be considered a "party in interest" (within the meaning of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA")) or a
"disqualified person" (within the meaning of Section 4975 of the Code) with
respect to many employee benefit plans ("Plans") that are subject to ERISA.
Any purchaser proposing to acquire Capital Securities with assets of any Plan
should consult with its counsel. The purchase and/or holding of Capital
Securities by a Plan that is subject to the fiduciary responsibility
provisions of ERISA or the prohibited transaction provisions of Section 4975
of the Code (including individual retirement arrangements and other plans
described in Section 4975(e)(1) of the Code) and with respect to which the
Corporation, the Property Trustee or any affiliate is a service provider (or
otherwise is a party in interest or a disqualified person) may constitute or
result in a prohibited transaction under ERISA or Section 4975 of the Code,
unless such Capital Securities are acquired pursuant to and in accordance
with an applicable exemption, such as Prohibited Transaction Class Exemption
("PTCE") 84-14 (an exemption for certain transactions determined by an
independent qualified professional asset manager), PTCE 91-38 (an exemption
for certain transactions involving bank collective investment funds), PTCE
90-1 (an exemption for certain transactions involving insurance company
pooled separate accounts), PTCE 95-60 (an exemption for transactions
involving certain insurance company general accounts) or PTCE 96-23 (an
exemption for certain transactions determined by an in-house manager). In
addition, a Plan fiduciary considering the purchase of Capital Securities
should be aware that the assets of the Trust may be considered "plan assets"
for ERISA purposes. Therefore, a Plan fiduciary should consider whether the
purchase of Capital Securities could result in a delegation of fiduciary
authority to the Property Trustee, and, if so, whether such a delegation of
authority is permissible under the Plan's governing instrument or any
investment management agreement with the Plan. In making such determination,
a Plan fiduciary should note that the Property Trustee is a bank qualified to
be an investment manager (within the meaning of section 3(38) of ERISA) to
which such a delegation of authority generally would be permissible under
ERISA. Further, prior to an Event of Default with respect to the Junior
Subordinated Debentures, the Property Trustee will have only limited
custodial and ministerial authority with respect to Trust assets.)
UNDERWRITING
Subject to the terms and conditions set forth in the Purchase Agreement
(the "Purchase Agreement") among the Corporation, the Trust and
________________________________________ (collectively, the "Underwriters"),
the Corporation and the Trust have agreed that the Trust will sell to the
Underwriters, and the Underwriters have agreed, severally and not jointly, to
purchase from the Trust, the respective number of Capital Securities set
forth below opposite their respective names.
Number of
Underwriter Capital Securities
----------- ------------------
Total. . . . . . . . . . . .
The Underwriters propose to offer the Capital Securities initially at
the price to public set forth on the cover of this Prospectus and to certain
dealers at such price less a concession of not more than $___ per Capital
Security. The Underwriters may allow and such dealers may reallow a
concession of not more than $___ per Capital Security to certain other
dealers. After the initial offering, the price to public, concession and
reallowance may be changed.
The Purchase Agreement provides that the obligation of the Underwriters
to pay for and accept delivery of the Capital Securities is subject to
certain conditions, including delivery of certain legal opinions by counsel
for the Underwriters.
In view of the fact that the proceeds of the sale of the Capital
Securities will be invested in the Junior Subordinated Debentures, the
Purchase Agreement provides that the Corporation will pay, as compensation to
the Underwriters, an amount of $____ per Capital
Security.
(The Capital Securities constitute a new issue of securities with no
established trading market. The Underwriters have advised the Corporation
and the Trust that they intend to make a market in the Capital Securities,
but they are not obligated to do so, and any such market making may be
discontinued at any time without notice. No assurance can be given as to the
development or liquidity of any trading market for the Capital Securities.
Because the National Association of Securities Dealers, Inc. ("NASD") is
expected to view the Capital Securities offered hereby as interests in a
direct participation program, the offering is being made in compliance with
Rule 2810 of the NASD's Conduct Rules. Offers and sales of Capital
Securities will be made only to (i) "qualified institutional buyers," as
defined in Rule 144A under the Securities Act or (ii) institutional
"accredited investors," as defined in Rule 501(a)(1), (2) or (3) of
Regulation D under the Securities Act, for whom an investment in the Capital
Securities is appropriate. The Underwriters may not confirm sales to any
accounts over which they exercise discretionary authority without the prior
written approval of the transaction by the customer.)
(The Capital Securities will be a new issue of securities and have been
authorized for listing on the __________________, subject to official notice
of issuance. Trading of the Capital Securities is expected to commence
within a 30-day period after the initial delivery thereof. In order to meet
one of the requirements for listing the Capital Securities on the
_________________, the Underwriters have undertaken to sell the Capital
Securities to a minimum of 400 beneficial owners. The Underwriters have
advised the Corporation and the Trust that they intend to make a market in
the Capital Securities prior to the commencement of trading on the
__________________, but they are not obligated to do so, and any such market
making may be discontinued at any time without notice. No assurance can be
given as to the development or liquidity of any trading market for the
Capital Securities.)
The Corporation and the Trust have agreed in the Purchase Agreement
that, subject to certain conditions, prior to the settlement of the Capital
Securities under the Purchase Agreement, neither will offer, sell, contract
to sell or otherwise dispose of any securities that are substantially similar
to the Capital Securities or that are convertible into or exchangeable for,
or otherwise represent a right to acquire, any such securities, except in the
offering or with the prior written consent of ______________ (the
"Representative").
In order to facilitate the offering of the Capital Securities, the
Underwriters may engage in transactions that stabilize, maintain or otherwise
affect the price of the Capital Securities. Specifically, the Underwriters
may overallot in connection with the offering, creating a short position in
the Capital Securities for their own account. In addition, to cover
overallotments or to stabilize the price of the Capital Securities, the
Underwriters may bid for, and purchase, the Capital Securities in the open
market. Finally, the underwriting syndicate may reclaim selling concessions
allowed to an underwriter or a dealer for distributing the Capital Securities
in the offering, if the syndicate repurchases previously distributed Capital
Securities in transactions to cover syndicate short positions, in
stabilization transactions or otherwise. Any of these activities may
stabilize or maintain the market price of the Capital Securities above
independent market levels. The Underwriters are not required to engage in
these activities, and may end any of these activities at any time.
None of the Corporation, the Trust or any of the Underwriters makes any
representation or prediction as to the direction or magnitude of any effect
that the transactions described above may have on the price of the Capital
Securities. In addition, none of the Corporation, the Trust or any of the
Underwriters makes any representation that the Representative will engage in
such transactions or that such transactions, once commenced, will not be
discontinued without notice.
The Corporation and the Trust have agreed to indemnify the Underwriters
and certain other persons against certain liabilities, including liabilities
under the Securities Act, or to contribute to payments the Underwriters may
be required to make in respect thereof.
Any or all of the Underwriters (have in the past and) may (in the
future) serve as a financial advisor to the Corporation.
VALIDITY OF SECURITIES
The validity of the Capital Securities, the Guarantee and the Junior
Subordinated Debentures will be passed upon for the Corporation and the Trust
by Brown & Wood LLP, New York, New York and for the Underwriters by Skadden,
Arps, Slate, Meagher & Flom LLP, New York, New York. Certain matters
relating to United States federal income tax considerations will be passed
upon for the Corporation and the Trust by Brown & Wood LLP, New York, New
York.
EXPERTS
The consolidated financial statements of the Corporation and subsidiaries,
included by reference into the Corporation's Annual Report on Form 10-K for
the year ended December 31, 1996, have been incorporated herein by reference
in reliance upon the report, which report includes an explanatory paragraph
that the consolidated financial statements of BayBanks, Inc., as of December
31, 1995 and 1994 were audited by other auditors, set forth therein of
Coopers & Lybrand L.L.P., independent auditors, and upon the authority of
such firm as experts in accounting and auditing.
- -------------------------------------- ----------------------------------
- -------------------------------------- ----------------------------------
No dealer, salesman or any other
individual has been authorized to
give any information or to make any $___,000,000
representations other than those
contained or incorporated by
reference in this Prospectus in
connection with the offer made by BANKBOSTON
this Prospectus and, if given or CAPITAL TRUST ___
made, such information or
representations must not be relied
upon as having been authorized by
the Corporation, the Trust or the Capital Securities
Underwriters. Neither the delivery (Liquidation Amount $_____ per
of this Prospectus nor any sale Capital Security)
made hereunder shall under any
circumstance create an implication
that there has been no change in fully and unconditionally
the affairs of the Corporation or guaranteed, as described herein, by
the Trust since the date hereof.
This Prospectus does not constitute
an offer or solicitation by anyone BANKBOSTON
in any jurisdiction in which such CORPORATION
offer or solicitation is not
authorized or in which the person
making such offer or solicitation
is not qualified to do so or to
anyone to whom it is unlawful to PROSPECTUS
make such offer or solicitation.
TABLE OF CONTENTS
Page
Available Information . . . . . . . (NAMES OF UNDERWRITERS)
Incorporation of Certain Documents
by Reference . . . . . . . . . .
Prospectus Summary . . . . . . . .
Risk Factors . . . . . . . . . . .
BankBoston Corporation . . . . . .
Use of Proceeds . . . . . . . . . .
Ratios of Earnings to Fixed Charges
BankBoston Capital Trust ___ . . .
Description of Capital Securities .
Description of Junior Subordinated
Debentures . . . . . . . . . . .
Description of Guarantee . . . . .
Relationship Among the Capital
Securities, the Junior
Subordinated Debentures
and the Guarantee . . . . . . . .
Certain Federal Income Tax
Consequences . . . . . . . . . . .
(ERISA Considerations ) . . . . .
Underwriting . . . . . . . . . . .
Validity of Securities . . . . . .
Experts . . . . . . . . . . . . . .
- -------------------------------------- ----------------------------------
- -------------------------------------- ----------------------------------
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses in connection with the issuance and distribution
of the securities being registered, other than underwriting compensation,
are:
Securities Act Registration Fee................................. $147,500
Printing and Engraving Expenses................................. 10,000
Legal Fees and Expenses......................................... 120,000
Accounting Fees and Expenses.................................... 70,000
Trustee Expenses................................................ 12,000
Rating Agency Fees and Expenses................................. 362,500
Miscellaneous................................................... 8,000
-------
Total...................................................... $730,000
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 67 of Chapter 156B of the Massachusetts General Laws authorizes
a corporation to indemnify any director, officer, employee or other agent of
the corporation to whatever extent specified in or authorized by (i) the
articles of organization, (ii) a by-law adopted by the stockholders or
(iii) a vote adopted by the holders of a majority of the shares of stock
entitled to vote on the election of directors.
The Corporation's By-laws provide indemnity to the Corporation's
directors and officers in such capacity or as directors or officers of a
wholly-owned subsidiary of the Corporation, and to directors of wholly-owned
subsidiaries of the Corporation, for liability resulting from judgments,
fines, expenses or settlement amounts incurred in connection with any action,
including an action by or in the right of the Corporation, brought against
such person in such capacity. Under Massachusetts law and the By-laws, no
indemnification may be provided for any person with respect to any matter as
to which he or she shall have been adjudicated in any proceeding not to have
acted in good faith in the reasonable belief that his or her action was in
the best interest of the Corporation or of such subsidiary. The By-laws also
provide that, with respect to any matter disposed of by a compromise payment
by such director or officer pursuant to a consent decree or otherwise, no
indemnification shall be provided unless such compromise shall be ordered by
a court or shall be approved as being in the best interest of the
Corporation, after notice that it involves such indemnification: (a) by a
disinterested majority of the directors then in office or (b) by a majority
of the disinterested directors then in office, provided that there has been
obtained an opinion in writing of independent counsel to the effect that such
person does not appear not to have acted in good faith in the reasonable
belief that his or her action was in the best interests of the Corporation or
(c) by the holders of a majority of the outstanding stock at the time
entitled to vote for directors, exclusive of any stock owned by any
interested director or officer. Under Massachusetts law, a court may uphold
indemnification in connection with a suit in which there is a recovery or by
in the right of a corporation.
The By-laws also provide for indemnification for all other officers of
the Corporation's wholly-owned subsidiaries to the extent authorized by the
Board of Directors in each individual case, based on the same statutory
standard set forth in the preceding paragraph. Where such a person is wholly
successful in defending the claim, he or she shall be entitled to
indemnification. Directors and officers of other subsidiaries and employees
and agents of the Corporation and any subsidiaries may be indemnified as
determined by the Board from time to time.
In addition, as permitted under Massachusetts law, the Corporation
maintains liability insurance covering directors and officers of the
Corporation and its subsidiaries.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
EXHIBIT
1 Form of Purchase Agreement
4.1 Form of Indenture of BankBoston Corporation relating to the
Junior Subordinated Debentures
4.2 Form of Junior Subordinated Debenture (included as Exhibit A to
Exhibit 4.1)
4.3 Certificate of Trust of BankBoston Capital Trust IV
4.4 Declaration of Trust of BankBoston Capital Trust IV
4.5 Certificate of Trust of BankBoston Capital Trust V
4.6 Declaration of Trust of BankBoston Capital Trust V
4.7 Form of Amended and Restated Declaration of Trust for each Trust
4.8 Form of Capital Security Certificate for each Trust (included as
Exhibit D to Exhibit 4.7)
4.9 Form of Guarantee of BankBoston Corporation relating to the
Capital Securities
5.1 Opinion and consent of Brown & Wood LLP, special counsel to
BankBoston Corporation as to legality of the Junior Subordinated
Debentures and the Guarantees to be issued by BankBoston
Corporation
5.2 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP,
special counsel to each Trust, as to legality of the
Capital Securities to be issued by each Trust
8 Opinion of Brown & Wood LLP, special tax counsel, as to certain
federal income tax matters
12.1 Computation of BankBoston Corporation's consolidated ratio of
earnings to fixed charges (excluding interest on deposits)
(Incorporated by reference to Exhibit 12(a) to the
Quarterly Report on Form 10-Q for the quarter ended
September 30, 1997 of BankBoston Corporation)
12.2 Computation of BankBoston Corporation's consolidated ratio of
earnings to fixed charges (including interest on deposits)
(Incorporated by reference to Exhibit 12(b) to the Quarterly
Report on Form 10-Q for the quarter ended September 30, 1997 of
BankBoston Corporation)
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Brown & Wood LLP (included in Exhibits 5.1 and 8)
23.3 Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(included in Exhibit 5.2)
24 Power of Attorney of certain officers and directors of
BankBoston Corporation
25.1 Form T-1 Statement of Eligibility of The Bank of New York to
act as trustee under the Indenture of BankBoston Corporation
relating to BankBoston Capital Trust IV
25.2 Form T-1 Statement of Eligibility of The Bank of New York to
act as trustee under the Amended and Restated Declaration of
Trust of BankBoston Capital Trust IV
25.3 Form T-1 Statement of Eligibility of The Bank of New York to
act as trustee under the Guarantee of BankBoston Corporation
for the benefit of the holders of the Capital Securities of
BankBoston Capital Trust IV
25.4 Form T-1 Statement of Eligibility of The Bank of New York to
act as trustee under the Indenture of BankBoston Corporation
relating to BankBoston Capital Trust V
25.5 Form T-1 Statement of Eligibility of The Bank of New York to
act as trustee under the Amended and Restated Declaration of
Trust of BankBoston Capital Trust V
25.6 Form T-1 Statement of Eligibility of The Bank of New York to
act as trustee under the Guarantee of BankBoston Corporation
for the benefit of the holders of the Capital Securities of
BankBoston Capital Trust V
ITEM 17. UNDERTAKINGS
Each of the undersigned Registrants hereby undertakes: (1) to file,
during any period in which offers or sales are being made, a post-effective
amendment to this registration statement: (i) to include any prospectus
required by Section 10(a)(3) of the Securities Act; (ii) to reflect in the
prospectus any facts or events arising after the effective date of the
registration statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental change in
the information set forth in the registration statement (notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed with
the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement); and (iii) to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement; provided, however, that paragraphs
(1)(i) and (1)(ii) herein do not apply if the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by each of the
undersigned Registrants pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the registration
statement; (2) that, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof; and (3) to remove from registration by
means of a post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
Each of the undersigned Registrants hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of a
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in this Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of each
undersigned Registrant pursuant to the foregoing provisions, or otherwise,
each Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by each
undersigned Registrant of expenses incurred or paid by a director, officer of
controlling person of each Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, each
Registrant will, unless in the opinion of its counsel the matter has been
settled by the controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Corporation
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this amendment no. 1
to the registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Boston, and Commonwealth of Massa-
chusetts, on the 6th day of March, 1998.
BANKBOSTON CORPORATION
By /s/ GARY A. SPIESS
------------------------------------------
(Gary A. Spiess)
(General Counsel and Clerk)
Pursuant to the requirements of the Securities Act of 1933, this
amendment no. 1 to the registration statement has been signed by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ CHARLES K. GIFFORD* Chairman and Chief Executive March 6, 1998
- --------------------------- Officer and Director (Chief
(Charles K. Gifford) Executive Officer)
/s/ HENRIQUE DE CAMPOS President and Chief March 6, 1998
MEIRELLES* Operating Officer and
- --------------------------- Director
(Henrique de Campos
Meirelles)
/s/ SUSANNAH M. SWIHART* Chief Financial Officer and March 6, 1998
- --------------------------- Treasurer (Chief Financial
(Susannah M. Swihart) Officer)
/s/ ROBERT T. JEFFERSON* Comptroller (Chief March 6, 1998
- --------------------------- Accounting Officer)
(Robert T. Jefferson)
/s/ WAYNE A. BUDD* Director March 6, 1998
- ---------------------------
(Wayne A. Budd)
/s/ JOHN A. CERVIERI JR.* Director March 6, 1998
- ---------------------------
(John A. Cervieri Jr.)
/s/ WILLIAM F. CONNELL* Director March 6, 1998
- ---------------------------
(William F. Connell)
/s/ GARY L. COUNTRYMAN* Director March 6, 1998
- ---------------------------
(Gary L. Countryman)
/s/ WILLIAM M. CROZIER, JR.* Director March 6, 1998
- ---------------------------
(William M. Crozier, Jr.)
/s/ ALICE F. EMERSON* Director March 6, 1998
- ---------------------------
(Alice F. Emerson)
/s/ THOMAS J. MAY* Director March 6, 1998
- ---------------------------
(Thomas J. May)
/s/ DONALD F. McHENRY* Director March 6, 1998
- ---------------------------
(Donald F. McHenry)
/s/ PAUL C. O'BRIEN* Director March 6, 1998
- ---------------------------
(Paul C. O'Brien)
/s/ THOMAS R. PIPER* Director March 6, 1998
- ---------------------------
(Thomas R. Piper)
/s/ FRANCENE S. RODGERS* Director March 6, 1998
- ---------------------------
(Francene S. Rodgers)
/s/ JOHN W. ROWE* Director March 6, 1998
- ---------------------------
(John W. Rowe)
/s/ GLENN P. STREHLE* Director March 6, 1998
- ---------------------------
(Glenn P. Strehle)
/s/ WILLIAM C. VAN FAASEN* Director March 6, 1998
- ---------------------------
(William C. Van Faasen)
/s/ THOMAS B. WHEELER* Director March 6, 1998
- ---------------------------
(Thomas B. Wheeler)
/s/ ALFRED M. ZEIEN* Director March 6, 1998
- ---------------------------
(Alfred M. Zeien)
</TABLE>
* By: /s/ GARY A. SPIESS
-------------------------
ATTORNEY-IN-FACT
Pursuant to the requirements of the Securities Act, BankBoston Capital
Trust IV certifies that it has reasonable grounds to believe that it meets
all the requirements for filing on Form S-3 and has duly caused this
amendment no. 1 to the registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Boston,
and Commonwealth of Massachusetts, on the 6th day of March, 1998.
BANKBOSTON CAPITAL TRUST IV
By: /s/ ROBERT T. JEFFERSON
------------------------------------------
Robert T. Jefferson,
as Administrative Trustee
By: /s/ CRAIG V. STARBLE
------------------------------------------
Craig V. Starble,
as Administrative Trustee
By: /s/ KATHLEEN M. McGILLYCUDDY
------------------------------------------
Kathleen M. McGillycuddy,
as Administrative Trustee
Pursuant to the requirements of the Securities Act, BankBoston Capital
Trust V certifies that it has reasonable grounds to believe that it meets all
the requirements for filing on Form S-3 and has duly caused this amendment
no. 1 to the registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Boston, and Common-
wealth of Massachusetts, on the 6th day of March, 1998.
BANKBOSTON CAPITAL TRUST V
By: /s/ ROBERT T. JEFFERSON
------------------------------------------
Robert T. Jefferson,
as Administrative Trustee
By: /s/ CRAIG V. STARBLE
------------------------------------------
Craig V. Starble,
as Administrative Trustee
By: /s/ KATHLEEN M. McGILLYCUDDY
------------------------------------------
Kathleen M. McGillycuddy,
as Administrative Trustee
EXHIBIT INDEX
PAGE EXHIBIT NO. DESCRIPTION
1 Form of Purchase Agreement
4.1 Form of Indenture of BankBoston Corporation relating to the
Junior Subordinated Debentures
4.2 Form of Junior Subordinated Debenture (included as Exhibit A to
Exhibit 4.1)
4.3 Certificate of Trust of BankBoston Capital Trust IV
4.4 Declaration of Trust of BankBoston Capital Trust IV
4.5 Certificate of Trust of BankBoston Capital Trust V
4.6 Declaration of Trust of BankBoston Capital Trust V
4.7 Form of Amended and Restated Declaration of Trust for each Trust
4.8 Form of Capital Security Certificate for each Trust (included as
Exhibit D to Exhibit 4.7)
4.9 Form of Guarantee of BankBoston Corporation relating to the
Capital Securities
5.1 Opinion and consent of Brown & Wood LLP, special counsel to
BankBoston Corporation as to legality of the Junior Subordinated
Debentures and the Guarantees to be issued by BankBoston
Corporation
5.2 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP,
special counsel to each Trust, as to legality of the
Capital Securities to be issued by each Trust
8 Opinion of Brown & Wood LLP, special tax counsel, as to certain
federal income tax matters
12.1 Computation of BankBoston Corporation's consolidated ratio of
earnings to fixed charges (excluding interest on deposits)
(Incorporated by reference to Exhibit 12(a) to the Quarterly
Report on Form 10-Q for the quarter ended September 30, 1997
of BankBoston Corporation)
12.2 Computation of BankBoston Corporation's consolidated ratio of
earnings to fixed charges (including interest on deposits)
(Incorporated by reference to Exhibit 12(b) to the Quarterly
Report on Form 10-Q for the quarter ended September 30, 1997
of BankBoston Corporation)
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Brown & Wood LLP (included in Exhibits 5.1 and 8)
23.3 Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(included in Exhibit 5.2)
24 Power of Attorney of certain officers and directors of
BankBoston Corporation
25.1 Form T-1 Statement of Eligibility of The Bank of New York to
act as trustee under the Indenture of BankBoston Corporation
relating to BankBoston Capital Trust IV
25.2 Form T-1 Statement of Eligibility of The Bank of New York to
act as trustee under the Amended and Restated Declaration of
Trust of BankBoston Capital Trust IV
25.3 Form T-1 Statement of Eligibility of The Bank of New York to
act as trustee under the Guarantee of BankBoston Corporation
for the benefit of the holders of Capital Securities of
BankBoston Capital Trust IV
25.4 Form T-1 Statement of Eligibility of The Bank of New York to
act as trustee under the Indenture of BankBoston Corporation
relating to BankBoston Capital Trust V
25.5 Form T-1 Statement of Eligibility of The Bank of New York to
act as trustee under the Amended and Restated Declaration of
Trust of BankBoston Capital Trust V
25.6 Form T-1 Statement of Eligibility of The Bank of New York to
act as trustee under the Guarantee of BankBoston Corporation
for the benefit of the holders of the Capital Securities of
BankBoston Capital Trust V
Exhibit 1
BANKBOSTON CAPITAL TRUST (IV) (V)
(a Delaware business trust)
Capital Securities
(Liquidation Amount of $( ) Per Capital Security)
PURCHASE AGREEMENT
Dated:
- --------------------------------------------------------------------------
- --------------------------------------------------------------------------
BANKBOSTON CAPITAL TRUST (IV)(V)
(a Delaware business trust)
Capital Securities
(Liquidation Amount of $( ) Per Capital Security)
PURCHASE AGREEMENT
------------------
( )
as Representatives of the several Underwriters
c/o( )
Ladies and Gentlemen:
BANKBOSTON CAPITAL TRUST (IV) (V) (the "Trust"), a statutory business
trust organized under the Business Trust Act (the "Delaware Act") of the
State of Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del.
(Sections 3801 et seq.)) and BANKBOSTON CORPORATION, a Massachusetts
corporation (the "Company" and together with the Trust, the "Offerors"),
confirm their agreement (the "Agreement") with ( ) (" ")
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 (
)
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 number of
Capital Securities (liquidation amount of $( ) per
capital security) of the Trust (the "Capital Securities") set forth in said
Schedule A. The Capital Securities will be guaranteed by the Company, to the
extent described in the Prospectus (as defined below), with respect to
distributions and payments upon liquidation, redemption and otherwise (the
"Capital Securities Guarantee") pursuant to the Capital Securities Guarantee
Agreement, to be dated as of (the "Capital Securities
Guarantee Agreement"), between the Company and The Bank of New York, as
Trustee (the "Guarantee Trustee"). The Capital Securities issued in book-
entry form will be issued to Cede & Co. as nominee of The Depository Trust
Company ("DTC") pursuant to a letter agreement, to be dated as of the Closing
Time (as defined in Section 2(b)) (the "DTC Agreement"), among the Trust, the
Guarantee Trustee and DTC.
The Offerors understand that the Underwriters propose to make a public
offering of the Capital Securities as soon as the Representatives deem
advisable after this Agreement has been executed and delivered and the
Declaration (as defined herein), the Indenture (as defined herein) and the
Capital Securities Guarantee Agreement have been qualified under the Trust
Indenture Act of 1939, as amended (the "1939 Act").
The entire proceeds from the sale of the Capital Securities will be
combined with the entire proceeds from the sale by the Trust to the Company
of its common securities (the "Common Securities") , as guaranteed by the
Company, to the extent set forth in the Prospectus, with respect to distribu-
tions and payments upon liquidation, redemption and otherwise (the "Common
Securities Guarantee" and, together with the Capital Securities Guarantee,
the "Guarantees") pursuant to the Common Securities Guarantee Agreement, to
be dated as of (the "Common Securities Guarantee Agreement" and,
together with the Capital Securities Guarantee Agreement, the "Guarantee
Agreements"), made by the Company, and will be used by the Trust to purchase
$( ) aggregate principal amount of Junior Subordinated
Deferrable Interest Debentures due , 20__ (the "Subordinated
Debentures") to be issued by the Company. The Capital Securities and the
Common Securities will be issued pursuant to the Amended and Restated
Declaration of Trust of the Trust, to be dated as of (the
"Declaration"), among the Company, as sponsor, Robert T. Jefferson, Kathleen
M. McGillycuddy and Craig V. Starble, as administrative trustees (the
"Administrative Trustees"), The Bank of New York, as property trustee (the
"Property Trustee"), and The Bank of New York (Delaware), as Delaware trustee
(the "Delaware Trustee," and, together with the Property Trustee and the
Administrative Trustees, the "Trustees"). The Subordinated Debentures will
be issued pursuant to an indenture, to be dated as of (the
"Indenture"), between the Company and The Bank of New York, as trustee (the
"Debenture Trustee").
The Capital Securities, the Capital Securities Guarantee and the
Subordinated Debentures are hereinafter collectively referred to as the
"Securities." The Indenture, the Declaration, the DTC Agreement and this
Agreement are hereinafter referred to collectively as the "Operative
Documents."
The Offerors have filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-47125, 333-47125
- -01 and 333-47125-02) covering
the registration of the Securities under the Securities Act of 1933, as
amended (the "1933 Act"), including the related preliminary prospectus or
prospectuses, relating to the Securities and the offering thereof from time
to time in accordance with Rule 415 of the 1933 Act. Promptly after execution
and delivery of this Agreement, the Offerors will either (i) prepare
and file a prospectus in accordance with paragraph (b) of Rule 424 ("Rule
424(b)") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") or (ii) if 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 prospectus or in such Term
Sheet, as the case may be, 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 pursuant to paragraph
(d) of Rule 434 is referred to as "Rule 434 Information." Each prospectus
used before such registration statement became effective, and any prospectus
that omitted, as applicable, the Rule 434 Information, 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, the 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, as applicable, 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 and 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").
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 are
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, as
amended (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.
------------------------------
(a) The Offerors jointly and severally represent and warrant to each
Underwriter as of the date hereof and as of the Closing Time, and agree with
each Underwriter as follows:
(i) 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
and 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, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective and at the Closing Time, the Registration Statement, the Rule
462(b) Registration Statement and any amendments thereto complied and
will comply in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations and 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.
Neither the Prospectus nor any amendments or supplements thereto, at the
time the Prospectus or any such amendment or supplement was issued and
at the Closing Time, included or will include an untrue statement of a
material fact or omitted or will 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. If Rule 434
is used, the Company will comply with the requirements of Rule 434. The
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement (or any
amendments thereto) or Prospectus (or any amendments or supplements
thereto) made in reliance upon and in conformity with information
furnished to the Offerors in writing by any Underwriter through (
) expressly for use in the Registration Statement (or any amendments
thereto) or Prospectus (or any amendments or supplements thereto).
Any preliminary prospectus and the 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 any preliminary
prospectus and the Prospectus delivered to the Underwriters for use in
connection with this offering was identical to the electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except to the
extent permitted by Regulation S-T.
(ii) The documents incorporated or deemed to be incorporated
by reference in the Registration Statement and the Prospectus, at the
time they were or hereafter are filed with the Commission, complied and
will comply in all material respects with the requirements of the 1934
Act and the rules and regulations of the Commission thereunder (the
"1934 Act Regulations"), 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 the
Closing Time, 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, in light of the
circumstances under which they were made, not misleading.
(iii) The accountants who certified the financial statements
and supporting schedules included in the Registration Statement are
independent public accountants as required by the 1933 Act and the 1933
Act Regulations.
(iv) The consolidated financial statements, together with the
related schedules and notes, included in the Registration Statement and
the Prospectus present fairly the consolidated financial position of the
Company and its subsidiaries at the dates indicated and the consolidated
results of operations, stockholders' equity and cash flows of the
Company and its subsidiaries for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout
the periods involved, except as disclosed in the notes to such financial
statements. The supporting schedules, if any, included in the
Registration Statement present fairly the information required to be
stated therein. The summary financial data included in the Prospectus
present fairly the information shown therein and have been compiled on a
basis consistent with that of the audited financial statements included
in the Registration Statement.
(v) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein or contemplated thereby and, except for normal
recurring dividends on the capital stock of the Company, there has not
been (A) any material adverse change in the condition (financial or
otherwise), earnings, business affairs or business prospects of the Trust, or
of the Company and its subsidiaries, considered as one enterprise, whether or
not arising in the ordinary course of business, (B) any transaction entered
into by the Trust, the Company or any subsidiary, other than in the ordinary
course of business, that is material to the Trust, or to the Company and its
subsidiaries, considered as one enterprise, or (C) any dividend or distribu-
tion of any kind declared, paid or made by the Company on its capital stock.
(vi) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the Commonwealth of
Massachusetts and has the corporate power and authority under such laws
to own, lease and operate its properties and to conduct its business as
described in the Prospectus; the Company is duly registered as a bank
holding company under the Bank Holding Company Act of 1956, as amended;
and the Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which it owns
or leases property of a nature, or transacts business of a type, that
would make such qualification necessary, except to the extent that the
failure to so qualify or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, considered as one
enterprise.
(vii) Each of BankBoston, N.A. ("BankBoston") and Rhode Island
Hospital Trust National Bank ("Hospital Trust") is a duly organized and
validly existing national banking association under the laws of the
United States, continues to hold a valid certificate to do business as
such and has full power and authority to conduct its business as such
(BankBoston and Hospital Trust are referred to collectively as the
"Significant Subsidiaries"); each Significant Subsidiary has the
authority under its jurisdiction of organization to own, lease and
operate its properties and to conduct its business and is duly
authorized to transact business and is in good standing in each
jurisdiction in which it owns or leases property of a nature, or
transacts business of a type, that would make such qualification
necessary, except to the extent that the failure to so qualify or to be
in good standing would not have a material adverse effect on the Company
and its subsidiaries, considered as one enterprise.
(viii) The Company does not have any subsidiaries which are
material to its business, except to the extent that one or more of the
Significant Subsidiaries may be deemed to be so material.
(ix) (a) The Company had at the date indicated a duly
authorized and outstanding capitalization as set forth in the Prospectus,
(b) all of the outstanding shares of capital stock of the Company have
been duly authorized and validly issued and are fully paid and non-assessable,
and (c) none of the outstanding shares of capital stock of the Company was
issued in violation of the preemptive rights of any stockholder of the
Company.
(x) The Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware Act
with the power and authority to own property and to conduct its business
as described in the Prospectus and to enter into and perform its
obligations under the Operative Documents, as applicable, and the
Capital Securities; the Trust is not a party to or otherwise bound by
any material agreement other than those described in the Prospectus; and
the Trust is and will, under current law, be classified for United
States federal income tax purposes as a grantor trust and not as an
association taxable as a corporation.
(xi) The Common Securities have been duly authorized by
the Declaration and, when issued and delivered by the Trust to the
Company against payment therefor as described in the Prospectus, will be
validly issued and will represent undivided beneficial interests in the
assets of the Trust; the issuance of the Common Securities is not
subject to preemptive or other similar rights; and at the Closing Time
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 equitable right.
(xii) As of the Closing Time, the Capital Securities will
have been duly authorized by the Trust and, when issued and delivered
against payment therefor as provided herein, will be validly issued and
fully paid and non-assessable undivided beneficial interests in the
assets of the Trust and will conform in all material respects to the
description thereof contained in the Prospectus and the issuance of the
Capital Securities will not be subject to preemptive or other similar
rights.
(xiii) This Agreement has been duly authorized, executed
and delivered by the Offerors.
(xiv) The Declaration has been qualified under the 1939 Act and
has been duly authorized by the Company and, at the Closing Time, will
have been duly executed and delivered by the Company and the Trustees,
and assuming due authorization, execution and delivery of the Declaration by
the Trustees, the Declaration will, at the Closing Time, be a valid and
binding obligation of the Company, enforceable against the Company in
accordance with its terms, except to the extent that enforcement thereof may
be limited by the receivership, conservatorship and supervisory powers of
bank regulatory agencies generally as well as to bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally or by general principles of equity (regardless of whether
enforcement is considered in a proceeding at law or in equity) and the
availability of equitable remedies (collectively, the "Enforceability
Exceptions").
(xv) The Capital Securities Guarantee Agreement has been
qualified under the 1939 Act; each of the Guarantee Agreements has been
duly authorized by the Company and, at the Closing Time, will have been
duly executed and delivered by the Company and will constitute a valid
and binding obligation of the Company, enforceable against the Company
in accordance with its terms, except to the extent that enforcement
thereof may be limited by the Enforceability Exceptions.
(xvi) The Indenture has been qualified under the 1939 Act
and has been duly authorized by the Company and, at the Closing Time,
will have been duly executed and delivered by the Company and will
constitute a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms except to the extent
that enforcement thereof may be limited by the Enforceability
Exceptions.
(xvii) The Subordinated Debentures have been duly
authorized by the Company and, at the Closing Time, will have been duly
executed by the Company and, when authenticated in the manner provided
for in the Indenture and delivered against payment therefor as described
in the Prospectus, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms
except to the extent that enforcement thereof may be limited by the
Enforceability Exceptions; and the Subordinated Debentures will be in
the form contemplated by, and entitled to the benefits of, the Indenture
and will conform in all material respects to the description thereof in
the Prospectus.
(xviii) Each of the Administrative Trustees of the Trust is
an officer of the Company or BankBoston and has been duly authorized by
the Company to execute and deliver the Declaration.
(xix) The Trust is not, and following consummation of the
transactions contemplated hereby will not be, an "investment company" or a
company "controlled" by an "investment company" which is
required to be registered under the Investment Company Act of 1940, as
amended (the "1940 Act").
(xx) The Operative Documents conform in all material
respects to the summary descriptions thereof contained in the
Prospectus.
(xi) None of the Trust, the Company nor any Significant
Subsidiary is in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which it is a party or by which it may be bound or to
which any of its properties may be subject, except for such defaults
that would not have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs or business
prospects of the Company and its subsidiaries, considered as one
enterprise; the execution and delivery of the Operative Documents by the
Trust or the Company, as the case may be, the issuance and delivery of
the Securities, the consummation by the Offerors of the transactions
contemplated in the Operative Documents, and compliance by the Offerors
with the terms of the Operative Documents to which they are party have
been duly authorized by all necessary corporate action on the part of
the Company and, as at the Closing Time, will have been duly authorized
by all necessary action on the part of the Trust, and do not and will
not result in any violation of the charter or by-laws of the Company or
any Significant Subsidiary or the Declaration or the trust certificate
of the Trust filed with the State of Delaware on February 26, 1998 (the
"Trust Certificate"), and do not and will not conflict with, or result
in a breach of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property of assets of the Trust, the
Company or any Significant Subsidiary under (A) any indenture, mortgage,
loan agreement, note, lease or other agreement or instrument to which
the Trust, the Company or any Significant Subsidiary is a party or by
which it may be bound or to which any of its properties may be subject,
except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a material adverse effect on the
condition (financial or otherwise), earnings, business affairs or
business prospects of the Trust, or the Company and its subsidiaries
considered as one enterprise or (B) any existing applicable law, rule,
regulation, judgment, order or decree of any government, governmental
instrumentality or court,
domestic or foreign, having jurisdiction over the Trust, the Company or any
Significant Subsidiary or any of its properties.
(xxii) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency, other than those that have been made
or obtained, is necessary or required for the performance by the Company
or the Trust of their obligations hereunder, in connection with the
issuance and sale of the Capital Securities or the consummation of the
transactions contemplated by the Operative Documents, except as have
been previously made or obtained.
(xxiii) To the best knowledge of the Offerors, no labor
problem exists with employees of the Significant Subsidiaries or is
imminent that could adversely affect the Trust, or the Company and its
subsidiaries considered as one enterprise, and the Offerors are not
aware of any existing or imminent labor disturbance by the employees of
any of its or the Significant Subsidiaries' principal suppliers,
contractors or customers that could be expected to materially adversely
affect the condition (financial or otherwise), earnings, business
affairs or business prospects of the Trust, or the Company and its
subsidiaries considered as one enterprise.
(xxiv) Except as disclosed in the Registration Statement,
there is no action, suit or proceeding before or by any government,
governmental instrumentality or court, domestic or foreign, now pending
or, to the knowledge of the Company or the Trust, threatened against or
affecting the Trust, or the Company or any Significant Subsidiary that
is required to be disclosed in the Registration Statement or that, in
the final outcome, could, in the judgment of the Company, result in any
material adverse change in the condition (financial or otherwise), earn-
ings, business affairs or business prospects of the Trust, or the
Company and its subsidiaries considered as one enterprise, or that could
materially and adversely affect the properties or assets of the Trust,
or the Company and its subsidiaries considered as one enterprise, or
that could adversely affect the consummation of the transactions
contemplated in the Operative Documents; the aggregate liability or
loss, if any, resulting from the final outcome of all pending legal or
governmental proceedings to which the Trust, the Company or any
Significant Subsidiary is a party or which affect any of its properties
that are not described in the Registration Statement, including ordinary
routine litigation incidental to its business, would not have a material
adverse effect on the condition (financial or otherwise), earnings,
business affairs or business prospects of the Trust, or the Company and
its subsidiaries considered as one enterprise.
(xxv) There are no contracts or documents which are
required to be described in the Registration Statement, the Prospectus
or the documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described or filed as required.
(xxvi) The Offerors and the Significant Subsidiaries each owns
or possesses, or can acquire on reasonable terms, adequate patents,
patent licenses, trademarks, service marks and trade names necessary to
carry on their businesses as presently conducted, and neither the
Offerors nor any of the Significant Subsidiaries has received any notice
of infringement of or conflict with asserted rights of others with
respect to any patents, patent licenses, trademarks, service marks or
trade names that, in the aggregate, if the subject of an unfavorable
decision, ruling or finding, could materially adversely affect the
condition (financial or otherwise), earnings, business affairs or
business prospects of the Trust, or the Company and its subsidiaries
considered as one enterprise.
(xxvii) The Offerors and the Significant Subsidiaries each
owns, possesses or has obtained all material governmental licenses,
permits, certificates, consents, orders, approvals and other
authorizations necessary to own or lease, as the case may be, and to
operate its properties and to carry on its business as presently
conducted, and neither the Offerors nor any Significant Subsidiary has
received any notice of proceedings relating to revocation or
modification of any such licenses, permits, certificates, consents,
orders, approvals or authorizations that, in the aggregate, if the
subject of an unfavorable decision, ruling or finding, could materially
adversely affect the condition (financial or otherwise), earnings,
business affairs or business prospects of the Trust, or the Company and
its subsidiaries considered as one enterprise.
(xxvii) The Offerors and the Significant Subsidiaries each
has good and marketable title to all properties and assets described in
the Prospectus as owned by it, free and clear of all liens, charges,
encumbrances or restrictions, except such as (A) are described in the
Prospectus or (B) are neither material in amount nor materially
significant in relation to the business of the Trust, or the Company and
its subsidiaries considered as one enterprise; and all of the leases and
subleases material to the business of the Trust, and the Company and its
subsidiaries considered as one enterprise, and under which the Offerors
or any Significant Subsidiary holds properties described in the
Prospectus, are in full force and effect, and neither the Offerors nor
any Significant Subsidiary has any notice of any material claim of any
sort that has been asserted by anyone adverse to the rights of the Offerors
or any Significant Subsidiary under any of the leases or subleases mentioned
above, or affecting or questioning the rights of such corporation to the
continued possession of the leased or subleased premises under any such
lease or sublease.
(xxviii) The Company has not taken and will not take, directly
or indirectly, any action designed to, or that might be reasonably
expected to, cause or result in stabilization or manipulation of the
price of the Securities.
(b) Any certificate signed by any Trustee of the Trust or any duly
authorized officer of the Company or any Significant Subsidiary and delivered
to the Representatives or to counsel for the Underwriters shall be deemed a
representation and warranty by the Trust or the Company, as the case may be,
to each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
------------------------------------------
(a) 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 Capital Security set forth in Schedule B, the number of Capital
Securities set forth in Schedule A opposite the name of such Underwriter,
plus any additional number of Capital Securities which such Underwriter may
become obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) Payment of the purchase price for, and delivery of certificates
for, the Capital 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 third (fourth, if the pricing
occurs after 4:30 P.M. (Eastern time) on any given day) 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").
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 Capital 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 Capital Securities which it has agreed to
purchase. ( ), individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the
purchase price for the Capital Securities to be purchased by any Underwriter
whose funds have not been received by the Closing Time, but such payment
shall not relieve such Underwriter from its obligations hereunder.
(c) Certificates for the Capital Securities 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. The
Capital 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.
(d) As compensation to the Underwriters for their commitments
hereunder and in view of the fact that the proceeds of the sale of the
Capital Securities will be used to purchase Subordinated Debentures of the
Company, the Company hereby agrees to pay at the Closing Time to (
) in immediately available funds, for the accounts of the several Und-
erwriters, a commission per Capital Security to be delivered by the Trust
hereunder at the Closing Time as set forth in Schedule B.
SECTION 3. Covenants of the Offerors. The Offerors covenant with
-------------------------
each Underwriter as follows:
(a) The Offerors, subject to Section 3(b) hereof, will comply with the
requirements of Rule 434, as applicable, 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, they
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) The Offerors will give the Representatives notice of its 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 without the consent of the Representatives, which consent shall not
be unreasonably withheld.
(c) The Offerors have furnished or will deliver to the Representatives
and counsel for the Underwriters, without charge, photocopies of the signed
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
photocopies 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 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) The Offerors will furnish to each Underwriter, without charge,
during the period when the Prospectus is required to be delivered under the
1933 Act or the 1934 Act, such number of copies of the Prospectus (as amended
or supplemented) as such Underwriter may reasonably request. The Prospectus
and any amendments or supplements 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.
(e) The Offerors will comply with the 1933 Act, the 1933 Act
Regulations, the 1934 Act, the 1934 Act Regulations, the 1939 Act and the
1939 Act Regulations so as to permit the completion of the distribution of
the Capital 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 Capital Securities, any event
shall occur or condition shall exist as a result of which it is necessary, in
the reasonable opinion of counsel for the Underwriters or for the Offerors,
to amend the Registration Statement or amend or supplement the Prospectus in
order that the Prospectus will not include any untrue statement 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.
(f) The Offerors will use their best efforts, in cooperation with the
Underwriters, to qualify the Capital 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 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 Capital 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. The Offerors will also supply
the Underwriters with such information as is necessary for the determination
of the legality of the Capital Securities for investment under the laws of
such jurisdictions as the Underwriters may request.
(g) The Company and the Trust (to the extent applicable) will make
generally available to their securityholders 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.
(h) The Offerors shall take all reasonable action necessary to enable
Standard & Poor's Ratings Services, a division of McGraw Hill, Inc. ("S&P"),
and Moody's Investors Service, Inc. ("Moody's") to provide their respective
credit ratings of the Capital Securities.
(i) The Offerors will cooperate with the Underwriters and use their
best efforts to permit the Capital Securities to be eligible for clearance
and settlement through the facilities of DTC.
(j) The Trust will use the net proceeds received by it from
the sale of the Capital Securities, and the Company will use the proceeds
received by it from the sale of the Subordinated Debentures, in the manners
specified in the Prospectus under "Use of Proceeds".
(k) Prior to the Closing Time, neither the Trust nor the Company will,
without the prior written consent of ( ), directly or indirectly,
issue, sell, offer or agree to sell, grant any option for the sale of, or
otherwise dispose of, Capital Securities, any security convertible into
exchangeable or exercisable for Capital Securities or the Subordinated
Debentures or any debt securities substantially similar (including provisions
with respect to the deferral of interest) to the Subordinated Debentures or
any equity security substantially similar to the Capital Securities (except
for the Securities issued pursuant to this Agreement).
(l) 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) 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.
SECTION 4. Payment of Expenses.
-------------------
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and any schedules or exhibits and any document
incorporated therein by reference) and of each amendment thereto, (ii) the
preparation, printing and delivery to the Underwriters of this Agreement, the
Operative Documents and such other documents as may be required in connection
with the offering, purchase, sale and delivery of the Securities, (iii) the
preparation, issuance and delivery of the certificates for the Capital
Securities to the Underwriters, (iv) the fees and disbursements of the
Company's counsel, accountants and other advisors, (v) rating agency fees,
(vi) the fees and expenses of any trustee appointed under any of the
Operative Documents, including the fees and disbursements of counsel for such
trustees in connection with the Operative Documents, (vii) the qualification
of the Capital Securities under securities laws in accordance with the
provisions of Section 3(f) 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, (viii) the printing and
delivery to the Underwriters of copies of each preliminary prospectus, any
Term Sheets and the Prospectus and any amendments or supplements thereto,
(ix) the preparation, printing and delivery to the Underwriters of copies of
the Blue Sky Survey and any supplement thereto, (x) 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, (xi) the fees and expenses of any transfer agent or
registrar for the Securities, and (xii) the cost of qualifying the Capital
Securities with DTC.
(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 Skadden, Arps, Slate, Meagher & Flom LLP, 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 Trustee of the Trust, officer of the Company or any
of its subsidiaries delivered pursuant to the provisions hereof, to the
performance by the Offerors of their 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 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. A prospectus shall have been filed with the Commission in
accordance with Rule 424(b) or, if the Offerors have elected to rely upon
Rule 434, a Term Sheet shall have been filed with the Commission in
accordance with Rule 424(b).
(b) Opinion of Outside Counsel for Offerors. At the Closing Time, the
Underwriters shall have received the favorable opinion, dated as of the
Closing Time, of Brown & Wood LLP, counsel for the Company, in form and
substance reasonably satisfactory to counsel for the Underwriters.
(c) Opinion of General Counsel. At the Closing Time, the Underwriters
shall have received the favorable opinion, dated as of the Closing Time, of
Gary A. Spiess, General Counsel for the Company, in form and substance
reasonably satisfactory to counsel for the Underwriters.
(d) Opinion of Special Delaware Counsel for Offerors. If the opinion
referred to in Section 5(b) does not cover applicable matters of Delaware
law, at the Closing Time, the Underwriters shall have received the favorable
opinion, dated as of the Closing Time, of Skadden, Arps, Slate, Meagher &
Flom LLP, special Delaware counsel to the Offerors, in form and substance
reasonably satisfactory to counsel for the Underwriters.
(e) Opinion of Counsel for The Bank of New York. At the Closing Time,
the Underwriters shall have received the favorable opinion, dated as of the
Closing Time, of Emmet, Marvin & Martin, LLP, counsel to The Bank of New
York, as Property Trustee under the Declaration, and Guarantee Trustee under
the Capital Securities Guarantee Agreement, in form and substance reasonably
satisfactory to counsel for the Underwriters.
(f) Opinion of Special Tax Counsel for the Offerors. At the Closing
Time, the Underwriters shall have received an opinion, dated as of the
Closing Time, of Brown & Wood LLP, special tax counsel to the Offerors, that
(i) the Subordinated Debentures will be classified for United States federal
income tax purposes as indebtedness of the Company, (ii) the Trust will be
classified for United States federal income tax purposes as a grantor trust
and not as an association taxable as a corporation and (iii) although the
discussion set forth in the Prospectus under the heading "Certain Federal
Income Tax Consequences" does not purport to discuss all possible United
States federal income tax consequences of the purchase, ownership and
disposition of the Capital Securities, 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 the
Capital Securities under current law. Such opinion may be conditioned on,
among other things, the initial and continuing accuracy of the facts,
financial and other information, covenants and representations set forth in
certificates of officers of the Company and other documents deemed necessary
for such opinion.
(g) Opinion of Counsel for Underwriters. At the Closing Time, the
Underwriters shall have received the favorable opinion, dated as of the
Closing Time, of Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the
Underwriters, with respect to the incorporation and legal existence of the
Company, the Capital Securities, the Indenture, the Capital Securities
Guarantee, this Agreement, the Prospectus and other related matters as the
Underwriters may require. Such counsel may also state that, insofar as such
opinion involves factual matters, they have relied, to the extent they deem
proper, upon certificates of Trustees of the Trust, officers of the Company
and its subsidiaries and certificates of public officials.
(h) Certificates. At the Closing Time, there shall not have been,
since the date hereof 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 Trust, or the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and
the Representatives shall have received a certificate of the Chairman, any
Vice Chairman, the Chief Executive Officer, the President, any Vice President
or the Executive Director, Global Treasury of the Company and of the chief
financial officer or the chief accounting officer of the Company and a
certificate of an Administrative Trustee of the Trust, dated as of the
Closing Time, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 1 hereof were true
and correct when made and are true and correct with the same force and effect
as though expressly made at and as of the Closing Time, (iii) the Offerors
have complied with all agreements and satisfied all conditions on their part
to be performed or satisfied at or prior to the Closing Time, 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, to each such officer's knowledge, are contemplated by the
Commission.
(i) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Representatives shall have received from Coopers & Lybrand
L.L.P. 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.
(j) Bring-down Comfort Letter. At the Closing Time, the
Representatives shall have received from Coopers & Lybrand L.L.P. a letter,
dated as of the Closing Time, to the effect that they reaffirm the statements
made in the letter furnished pursuant to subsection (i) of this Section,
except that the specified date referred to shall be a date not more than
three business days prior to the Closing Time.
(k) Maintenance of Rating. At the Closing Time, the Capital Securities
shall be rated at least baa1 by Moody's and BBB by S&P, and the Trust 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 Capital Securities have such ratings;
and between the date of this Agreement and the Closing Time, there shall not
have occurred a downgrading in the rating assigned to the Capital Securities
or any of the Company's other debt securities by any nationally recognized
statistical rating organization, and no such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of any of the Capital Securities or any of the
Company's other debt securities.
(l) 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 Capital Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or warranties of the
Offerors, or the fulfillment of any of the conditions, herein contained; and
all proceedings taken by the Offerors in connection with the issuance and
sale of the Capital Securities as herein contemplated shall be satisfactory
in form and substance to the Representatives and counsel for the
Underwriters.
(m) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement may be terminated by the Representatives by notice to the
Offerors at any time at or prior to the 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 6, 7 and 8 shall survive any such
termination and remain in full force and effect.
SECTION 6. Indemnification.
---------------
(a) Indemnification of Underwriters. The Offerors agree to jointly and
severally 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 or Section 20 of the 1934 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 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
contained 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
therein, 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; provided
that (subject to Section 6(d) below) any such settlement is
effected with the written consent of the Offerors; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by ( )),
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, or any such alleged 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 Offerors by any Underwriter through ( ) 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).
(b) Indemnification of Offerors, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Offerors,
their respective directors or trustees, the Company's 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 ( ) expressly
for use in 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 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 ( ), and, in the case of parties
indemnified pursuant to Section 6(b) above, counsel to the indemnified
parties shall be selected by the Offerors. 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.
(d) Settlement without Consent if Failure to Reimburse.
Notwithstanding the last sentence of Section 6(c), if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement effected without its
written consent if (i) such settlement is entered into more than 45 days
after receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement
at least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement; provided
that an indemnifying party shall not be liable for any such settlement-------
- - effected without its consent if such indemnifying party (1) reimburses such
indemnified party in accordance with such request to the extent it considers
such request to be reasonable and (2) provides written notice to the
indemnified party substantiating the unpaid balance as unreasonable, in each
case prior to the date of such settlement.
SECTION 7. Contribution. In order to provide for just and equitable
------------
contribution in circumstances under which the indemnification provided for
in Section 6 hereof is for any reason held to be unenforceable by 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, in such proportion
as is appropriate to reflect the relative benefits received by the Offerors
on the one hand and the Underwriters on the other hand from the offering of
the Capital Securities pursuant to this Agreement.
The relative benefits received by the Offerors on the one hand and the
Underwriters on the other hand in connection with the offering of the Capital
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
Capital Securities pursuant to this Agreement (before deducting expenses)
received by the Offerors and the total commission received by the
Underwriters, bear to the aggregate initial public offering price of the
Capital Securities.
The Offerors 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 Capital 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 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, each trustee of the Trust 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 Capital 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 of the Company or trustees
of the Trust 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 Trust or the
Company, and shall survive delivery of the Capital Securities to the
Underwriters.
SECTION 9. Termination of Agreement.
------------------------
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Offerors, at any time at or prior to the Closing
Time (i) if there has been, since the time of execution 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
Trust or 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 or any outbreak of hostilities or escalation thereof or other
calamity or crisis, in each case the effect of which is such as to make it,
in the judgment of the Representatives, impracticable to market the Capital
Securities or to enforce contracts for the sale of the Capital Securities, or
(iii) if trading in any securities of the Company has been suspended or
limited by the Commission, 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 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 the Closing Time to purchase the
Capital 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 total number of Capital Securities to be purchased hereunder, 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 total
number of Capital Securities to be purchased hereunder, this Agreement
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, either the Representatives or the Company shall have the
right to postpone the Closing Time 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 c/o (
), with a
copy to Skadden, Arps, Slate, Meagher & Flom LLP, 919 Third Avenue, New York,
New York 10022, Attention of Gregory A. Fernicola, Esq.; notices to the
Offerors shall be directed to BankBoston Corporation, 100 Federal Street, MA
BOS 01-25-01, Boston, Massachusetts 02110, attention of Gary A. Spiess,
General Counsel, with a copy to Brown & Wood LLP, One World Trade Center,
57th Floor, New York, New York 10048, Attention of Edward F. Petrosky, Esq.
SECTION 12. Parties. This Agreement shall each inure to the benefit
-------
of and be binding upon the Underwriters and the Offerors 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 Offerors and their respective successors and
the controlling persons and officers, directors and trustees 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 Offerors and their respective successors, and said
controlling persons and officers, directors and trustees and their heirs and
legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Capital 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.
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.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement among the Underwriters and the Offerors in accordance with its
terms.
Very truly yours,
BANKBOSTON CORPORATION
By
--------------------------------------------------
Title:
BANKBOSTON CAPITAL TRUST (IV) (V)
By
-------------------------------------------------
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
( )
By: ( )
By
------------------------------------------
Authorized Signatory
For themselves and as representative of the other Underwriters named in
Schedule A hereto.
SCHEDULE A
Number
of
Capital
Name of Underwriter Securities
------------------- ----------
Total . . . . . . . . . . . . . . . . . . . . . . . . . .
SCHEDULE B
BANKBOSTON CAPITAL TRUST (IV) (V)
( )
Capital Securities
(Liquidation Amount of $( ) Per Capital Security)
1. The initial public offering price for the Capital Securities,
determined as provided in said Section 2, shall be $( ) per security.
2. The purchase price for the Capital Securities to be paid by the
several Underwriters shall be $( ) per security, being an amount equal to
the initial public offering price set forth above.
3. The commission for the Capital Securities to be paid by the Company
to the Underwriters for their commitments hereunder shall be $( ) per
Capital Security.
Exhibit 4.1
==========================================================================
BANKBOSTON CORPORATION
______________________________
______________________________
INDENTURE
DATED AS OF , ____
______________________________
THE BANK OF NEW YORK
AS TRUSTEE
______________________________
( %) (FLOATING RATE) JUNIOR SUBORDINATED
DEFERRABLE INTEREST DEBENTURES
==========================================================================
TIE-SHEET
of provisions of Trust Indenture Act of 1939 with Indenture dated as of
, ____ between BankBoston Corporation and The Bank of New York, Trustee:
ACT SECTION INDENTURE SECTION
310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
310(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
310(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.10, 6.11
310(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
310(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13
311(a) and (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
311(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.01, 4.02(a)
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.02
312(b) and (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.04
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.04
313(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.04
313(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.04
313(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.04
313(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.04
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.03
314(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
314(c)(1) and (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.07
314(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
314(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
314(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.07
314(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
315(a)(c) and (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.08
315(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.09
316(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.07
316(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
316(a) last sentence . . . . . . . . . . . . . . . . . . . . . . . . . 2.09
316(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.02
317(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.05
317(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.05
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.08
____________________________
THIS TIE-SHEET IS NOT PART OF THE INDENTURE AS EXECUTED.
TABLE OF CONTENTS/*/
Page
----
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . 1
Additional Interest . . . . . . . . . . . . . . . . . . . . . . . . . 1
Adjusted Treasury Rate . . . . . . . . . . . . . . . . . . . . . . . . 1
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Allocable Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . 2
Bankruptcy Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Calculation Agent . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Capital Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Capital Securities Guarantee . . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Common Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Common Securities Guarantee . . . . . . . . . . . . . . . . . . . . . 3
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company Request . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Comparable Treasury Issue . . . . . . . . . . . . . . . . . . . . . . 4
Comparable Treasury Price . . . . . . . . . . . . . . . . . . . . . . 4
Compounded Interest . . . . . . . . . . . . . . . . . . . . . . . . . 4
Custodian . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Declaration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Deferred Interest . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Definitive Securities . . . . . . . . . . . . . . . . . . . . . . . . 5
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Determination Date . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Dissolution Event . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Extended Interest Payment Period . . . . . . . . . . . . . . . . . . . 5
Federal Reserve . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indebtedness for Money Borrowed . . . . . . . . . . . . . . . . . . . 5
Indebtedness Ranking on a Parity with the Securities . . . . . . . . . 5
Indebtedness Ranking Junior to the Securities . . . . . . . . . . . . 6
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
_______________
/F/ THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE
A PART OF THE INDENTURE.
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . 6
Interest Period . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
LIBOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
London Business Day . . . . . . . . . . . . . . . . . . . . . . . . . 6
Maturity Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Mortgage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Non Book-Entry Capital Securities . . . . . . . . . . . . . . . . . . 7
Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . 7
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Optional Redemption Price . . . . . . . . . . . . . . . . . . . . . . 7
Other Debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Other Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Predecessor Security . . . . . . . . . . . . . . . . . . . . . . . . . 8
Principal office of the Trustee . . . . . . . . . . . . . . . . . . . 8
Property Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Quotation Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Reference Treasury Dealer . . . . . . . . . . . . . . . . . . . . . . 8
Reference Treasury Dealer Quotations . . . . . . . . . . . . . . . . . 8
Regulatory Capital Event . . . . . . . . . . . . . . . . . . . . . . . 9
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . 9
Reuters Page LIBO . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Securities Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Securityholder . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
holder of Securities . . . . . . . . . . . . . . . . . . . . . . . . . 9
Security Register . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . 10
Special Event . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Special Event Redemption Price . . . . . . . . . . . . . . . . . . . 10
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Tax Event . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Trust Indenture Act of 1939 . . . . . . . . . . . . . . . . . . . . 11
Trust Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 11
U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . 11
ARTICLE II
SECURITIES
SECTION 2.01. Forms Generally . . . . . . . . . . . . . . . . . . . 12
SECTION 2.02. Execution and Authentication . . . . . . . . . . . . 12
SECTION 2.03. Form and Payment . . . . . . . . . . . . . . . . . . 12
SECTION 2.04. (Reserved). . . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.05. Global Security . . . . . . . . . . . . . . . . . . . 13
SECTION 2.06. Interest . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 2.07. Transfer and Exchange . . . . . . . . . . . . . . . . 18
SECTION 2.08. Replacement Securities . . . . . . . . . . . . . . . 19
SECTION 2.09. Treasury Securities . . . . . . . . . . . . . . . . . 19
SECTION 2.10. Temporary Securities. . . . . . . . . . . . . . . . . 20
SECTION 2.11. Cancellation . . . . . . . . . . . . . . . . . . . . 20
SECTION 2.12. Defaulted Interest . . . . . . . . . . . . . . . . . 21
SECTION 2.13. CUSIP Numbers . . . . . . . . . . . . . . . . . . . . 22
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01. Payment of Principal, Premium and
Interest . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 3.02. Offices for Notices and Payments, etc. . . . . . . . 22
SECTION 3.03. Appointments to Fill Vacancies in
Trustee's Office . . . . . . . . . . . . . . . . . . 23
SECTION 3.04. Provision as to Paying Agent . . . . . . . . . . . . 23
SECTION 3.05. Certificate to Trustee . . . . . . . . . . . . . . . 24
SECTION 3.06. Compliance with Consolidation Provisions . . . . . . 24
SECTION 3.07. Limitation on Dividends . . . . . . . . . . . . . . . 24
SECTION 3.08. Covenants as to the Trust . . . . . . . . . . . . . . 25
SECTION 3.09. Payment of Expenses . . . . . . . . . . . . . . . . . 26
SECTION 3.10. Payment Upon Resignation or Removal . . . . . . . . . 26
ARTICLE IV
SECURITYHOLDERS' LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE
SECTION 4.01. Securityholders' Lists . . . . . . . . . . . . . . . 27
SECTION 4.02. Preservation and Disclosure of Lists . . . . . . . . 27
SECTION 4.03. Reports by Company . . . . . . . . . . . . . . . . . 29
SECTION 4.04. Reports by the Trustee . . . . . . . . . . . . . . . 30
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.01. Events of Default . . . . . . . . . . . . . . . . . . 31
SECTION 5.02. Payment of Securities on Default;
Suit Therefor . . . . . . . . . . . . . . . . . . . . 33
SECTION 5.03. Application of Moneys Collected by
Trustee . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 5.04. Proceedings by Securityholders . . . . . . . . . . . 35
SECTION 5.05. Proceedings by Trustee . . . . . . . . . . . . . . . 37
SECTION 5.06. Remedies Cumulative and Continuing . . . . . . . . . 37
SECTION 5.07. Direction of Proceedings and Waiver
of Defaults by Majority of
Securityholders . . . . . . . . . . . . . . . . . . . 37
SECTION 5.08. Notice of Defaults . . . . . . . . . . . . . . . . . 38
SECTION 5.09. Undertaking to Pay Costs . . . . . . . . . . . . . . 39
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of Trustee . . . . . . . 39
SECTION 6.02. Reliance on Documents, Opinions, etc. . . . . . . . . 41
SECTION 6.03. No Responsibility for Recitals, etc. . . . . . . . . 42
SECTION 6.04. Trustee, Authenticating Agent, Paying
Agents, Transfer Agents or Registrar
May Own Securities . . . . . . . . . . . . . . . . . 43
SECTION 6.05. Moneys to be Held in Trust . . . . . . . . . . . . . 43
SECTION 6.06. Compensation and Expenses of Trustee . . . . . . . . 43
SECTION 6.07. Officers' Certificate as Evidence . . . . . . . . . . 44
SECTION 6.08. Conflicting Interest of Trustee . . . . . . . . . . . 44
SECTION 6.09. Eligibility of Trustee . . . . . . . . . . . . . . . 44
SECTION 6.10. Resignation or Removal of Trustee . . . . . . . . . . 45
SECTION 6.11. Acceptance by Successor Trustee . . . . . . . . . . . 47
SECTION 6.12. Succession by Merger, etc. . . . . . . . . . . . . . 47
SECTION 6.13. Limitation on Rights of Trustee as
a Creditor . . . . . . . . . . . . . . . . . . . . . 48
SECTION 6.14. Authenticating Agents . . . . . . . . . . . . . . . . 48
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Action by Securityholders . . . . . . . . . . . . . . 49
SECTION 7.02. Proof of Execution by Securityholders . . . . . . . . 50
SECTION 7.03. Who Are Deemed Absolute Owners . . . . . . . . . . . 51
SECTION 7.04. Securities Owned by Company Deemed
Not Outstanding . . . . . . . . . . . . . . . . . . . 51
SECTION 7.05. Revocation of Consents; Future Holders
Bound . . . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE VIII
SECURITYHOLDERS' MEETINGS
SECTION 8.01. Purposes of Meetings . . . . . . . . . . . . . . . . 52
SECTION 8.02. Call of Meetings by Trustee . . . . . . . . . . . . . 52
SECTION 8.03. Call of Meetings by Company or Securityholders . . . 53
SECTION 8.04. Qualifications for Voting . . . . . . . . . . . . . . 53
SECTION 8.05. Regulations . . . . . . . . . . . . . . . . . . . . . 53
SECTION 8.06. Voting . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE IX
AMENDMENTS
SECTION 9.01. Without Consent of Securityholders . . . . . . . . . 55
SECTION 9.02. With Consent of Securityholders . . . . . . . . . . . 56
SECTION 9.03. Compliance with Trust Indenture Act;
Effect of Supplemental Indentures . . . . . . . . . . 58
SECTION 9.04. Notation on Securities . . . . . . . . . . . . . . . 58
SECTION 9.05. Evidence of Compliance of Supplemental
Indenture to be Furnished Trustee . . . . . . . . . . 58
ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 10.01. Company May Consolidate, etc., on
Certain Terms . . . . . . . . . . . . . . . . . . . . 58
SECTION 10.02. Successor Corporation to be
Substituted for Company . . . . . . . . . . . . . . . 59
SECTION 10.03. Opinion of Counsel to be Given Trustee . . . . . . . 60
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01. Discharge of Indenture . . . . . . . . . . . . . . . 60
SECTION 11.02. Deposited Moneys and U.S. Government
Obligations to be Held in Trust by
Trustee . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 11.03. Paying Agent to Repay Moneys Held . . . . . . . . . . 61
SECTION 11.04. Return of Unclaimed Moneys . . . . . . . . . . . . . 61
SECTION 11.05. Defeasance Upon Deposit of Moneys or
U.S. Government Obligations . . . . . . . . . . . . . 62
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. Indenture and Securities Solely
Corporate Obligations . . . . . . . . . . . . . . . . 63
ARTICLE XIII
M MISCELLANEOUS PROVISIONS
SECTION 13.01. Successors . . . . . . . . . . . . . . . . . . . . . 64
SECTION 13.02. Official Acts by Successor Corporation . . . . . . . 64
SECTION 13.03. Surrender of Company Powers . . . . . . . . . . . . . 64
SECTION 13.04. Addresses for Notices, etc. . . . . . . . . . . . . . 64
SECTION 13.05. Governing Law . . . . . . . . . . . . . . . . . . . . 65
SECTION 13.06. Evidence of Compliance with
Conditions Precedent . . . . . . . . . . . . . . . . 65
SECTION 13.07. Business Days . . . . . . . . . . . . . . . . . . . . 65
SECTION 13.08. Trust Indenture Act to Control . . . . . . . . . . . 66
SECTION 13.09. Table of Contents, Headings, etc . . . . . . . . . . 66
SECTION 13.10. Execution in Counterparts . . . . . . . . . . . . . . 66
SECTION 13.11. Separability . . . . . . . . . . . . . . . . . . . . 66
SECTION 13.12. Assignment . . . . . . . . . . . . . . . . . . . . . 66
SECTION 13.13. Acknowledgement of Rights . . . . . . . . . . . . . . 66
ARTICLE XIV
REDEMPTION OF SECURITIES --
MANDATORY AND OPTIONAL SINKING FUND
SECTION 14.01. Special Event Redemption . . . . . . . . . . . . . . 67
SECTION 14.02. Optional Redemption by Company . . . . . . . . . . . 68
SECTION 14.03. No Sinking Fund . . . . . . . . . . . . . . . . . . . 69
SECTION 14.04. Notice of Redemption; Selection of
Securities . . . . . . . . . . . . . . . . . . . . . 69
SECTION 14.05. Payment of Securities Called for
Redemption . . . . . . . . . . . . . . . . . . . . . 70
ARTICLE XV
SUBORDINATION OF SECURITIES
SECTION 15.01. Agreement to Subordinate . . . . . . . . . . . . . . 70
SECTION 15.02. Default on Senior Indebtedness . . . . . . . . . . . 71
SECTION 15.03. Liquidation; Dissolution; Bankruptcy . . . . . . . . 72
SECTION 15.04. Subrogation . . . . . . . . . . . . . . . . . . . . . 73
SECTION 15.05. Trustee to Effectuate Subordination . . . . . . . . . 74
SECTION 15.06. Notice by the Company . . . . . . . . . . . . . . . . 75
SECTION 15.07. Rights of the Trustee; Holders of
Senior Indebtedness . . . . . . . . . . . . . . . . . 76
SECTION 15.08. Subordination May Not Be Impaired . . . . . . . . . . 76
ARTICLE XVI
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 16.01. Extension of Interest Payment Period . . . . . . . . 77
SECTION 16.02. Notice of Extension . . . . . . . . . . . . . . . . . 78
EXHIBIT A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
Testimonium
Signatures
THIS INDENTURE, dated as of , ____, between BankBoston
Corporation, a Massachusetts corporation (hereinafter sometimes called the
"Company"), and The Bank of New York, a New York banking corporation, as
trustee (hereinafter sometimes called the "Trustee"),
W I T N E S S E T H :
In consideration of the premises, and the purchase of the
Securities by the holders thereof, the Company covenants and agrees with the
Trustee for the equal and proportionate benefit of the respective holders
from time to time of the Securities, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions.
The terms defined in this Section 1.01 (except as herein otherwise
expressly provided or unless the context otherwise requires) for all purposes
of this Indenture shall have the respective meanings specified in this
Section 1.01. All other terms used in this Indenture which are defined in
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), or
which are by reference therein defined in the Securities Act, shall (except
as herein otherwise expressly provided or unless the context otherwise
requires) have the meanings assigned to such terms in said Trust Indenture
Act and in said Securities Act as in force at the date of this Indenture as
originally executed. The following terms have the meanings given to them in
the Declaration: (i) Clearing Agency; (ii) Delaware Trustee; (iii) Capital
Security Certificate; (iv) Property Trustee; (v) Administrative Trustees;
(vi) Direct Action; and (vii) Purchase Agreement. All accounting terms used
herein and not expressly defined shall have the meanings assigned to such
terms in accordance with generally accepted accounting principles and the
term "generally accepted accounting principles" means such accounting
principles as are generally accepted at the time of any computation. The
words "herein", "hereof" and "hereunder" and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section
or other subdivision. Headings are used for convenience of reference only
and do not affect interpretation. The singular includes the plural and vice
versa.
"Additional Interest" shall have the meaning set forth in Section
2.06(d).
("Adjusted Treasury Rate" means, with respect to any redemption
date pursuant to Section 14.01, the rate per annum equal to the equivalent
yield to maturity of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such redemption date plus (i)
( )% if such prepayment date occurs on or prior to ( ) and (ii)
( )% in all other cases.)
"Affiliate" means, with respect to a specified Person, (a) any
Person directly or indirectly owning, controlling or holding the power to
vote 10% or more of the outstanding voting securities or other ownership
interests of the specified Person, (b) any Person 10% or more of whose
outstanding voting securities or other ownership interests are directly or
indirectly owned, controlled or held with power to vote by the specified
Person, (c) any Person directly or indirectly controlling, controlled by, or
under common control with the specified Person, (d) a partnership in which
the specified Person is a general partner, (e) any officer or director of the
specified Person, and (f) if the specified Person is an individual, any
entity of which the specified Person is an officer, director or general
partner.
"Allocable Amounts," when used with respect to any Senior
Indebtedness, means all amounts due or to become due on such Senior
Indebtedness less, if applicable, any amount which would have been paid to,
and retained by, the holders of such Senior Indebtedness (whether as a result
of the receipt of payments by the holders of such Senior Indebtedness from
the Company or any other obligor thereon or from any holders of, or trustee
in respect of, other indebtedness that is subordinate and junior in right of
payment to such Senior Indebtedness pursuant to any provision of such
indebtedness for the payment over of amounts received on account of such
indebtedness to the holders of such Senior Indebtedness or otherwise) but for
the fact that such Senior Indebtedness is subordinate or junior in right of
payment to (or subject to a requirement that amounts received on such Senior
Indebtedness be paid over to obligees on) trade accounts payable or accrued
liabilities arising in the ordinary course of business.
"Authenticating Agent" shall mean any agent or agents of the
Trustee which at the time shall be appointed and acting pursuant to Section
6.14.
"Bankruptcy Law" shall mean Title 11, U.S. Code, or any similar
Federal or state law for the relief of debtors.
"Board of Directors" shall mean either the Board of Directors of
the Company or any duly authorized committee of that board.
"Board Resolution" shall mean a copy of a resolution certified by
the Clerk or an Assistant Clerk of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" shall mean, with respect to any Securities, any day
other than a Saturday or a Sunday or a day on which banking institutions in
The City of New York or Boston, Massachusetts are authorized or required by
law or executive order to close.
("Calculation Agent" shall mean ( ) or any successor as
shall be appointed by the Company.)
"Capital Securities" shall mean undivided beneficial interests in
the assets of the Trust designated as the ( %) (Floating Rate) Capital
Securities, which rank pari passu with the Common Securities issued by the
Trust; provided, however, that if an Event of Default has occurred and is
-------- -------
continuing, no payments in respect of Distributions on, or payments upon
liquidation, redemption or otherwise with respect to, the Common Securities
shall be made until the holders of the Capital Securities shall be paid in
full the Distributions and the liquidation, redemption and other payments to
which they are entitled.
"Capital Securities Guarantee" shall mean any guarantee that the
Company may enter into with The Bank of New York or other Persons that
operate directly or indirectly for the benefit of holders of Capital
Securities of the Trust.
"Commission" shall mean the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or if at any
time after the execution of this Indenture such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act,
then the body performing such duties at such time.
"Common Securities" shall mean undivided beneficial interests in
the assets of the Trust designated as the ( %) (Floating Rate) Common
Securities, which rank pari passu with Capital Securities issued by the
Trust; provided, however, that if an Event of Default has occurred and is
-------- -------
continuing, no payments in respect of Distributions on, or payments upon
liquidation, redemption or otherwise with respect to, the Common Securities
shall be made until the holders of the Capital Securities shall be paid in
full the Distributions and the liquidation, redemption and other payments to
which they are entitled.
"Common Securities Guarantee" shall mean any guarantee that the
Company executes directly or indirectly for the benefit of holders of Common
Securities of the Trust.
"Common Stock" shall mean the Common Stock, par value $1.50 per
share, of the Company or any other class of stock resulting from changes or
reclassifications of such Common Stock consisting solely of changes in par
value, or from par value to no par value, or from no par value to par value.
"Company" shall mean BankBoston Corporation, a Massachusetts
corporation, and, subject to the provisions of Article X, shall include its
successors and assigns.
"Company Request" or "Company Order" shall mean a written request
or order signed in the name of the Company by the Chairman, the Chief
Executive Officer, the President, a Vice Chairman, a Vice President, the
Comptroller, the Executive Director, Global Treasury, the Clerk or an
Assistant Clerk of the Company, and delivered to the Trustee.
("Comparable Treasury Issue" means the United States Treasury
security selected by the Quotation Agent as having a maturity comparable to
the remaining term of the Securities to be redeemed that would be utilized,
at the time of selection and in accordance with customary financial practice,
in pricing new issues of corporate debt securities of comparable maturity to
the remaining term of the Securities.)
("Comparable Treasury Price" means, with respect to any redemption
date pursuant to Section 14.01, (i) the average of the bid and asked prices
for the Comparable Treasury Issue (expressed in each case as a percentage of
its principal amount) on the third Business Day preceding such redemption
date, as set forth in the daily statistical release (or any successor
release) published by the Federal Reserve Bank of New York and designated
"Composite 3:30 p.m. Quotations for U.S. Government Securities" or (ii) if
such release (or any successor release) is not published or does not contain
such prices on such Business Day, (A) the average of the Reference Treasury
Dealer Quotations for such redemption date, after excluding the highest and
lowest such Reference Treasury Dealer Quotations, or (B) if the Trustee
obtains fewer than three such Reference Treasury Dealer Quotations, the
average of all such Quotations.)
"Compounded Interest" shall have the meaning set forth in Section
16.01.
"Custodian" shall mean any receiver, trustee, assignee, liquidator,
or similar official under any Bankruptcy Law.
"Declaration" means the Amended and Restated Declaration of Trust
of the Trust, dated as of , ____.
"Default" means any event, act or condition that with notice or
lapse of time, or both, would constitute an Event of Default.
"Deferred Interest" shall have the meaning set forth in Section
16.01.
"Definitive Securities" shall mean those securities issued in fully
registered certificated form not otherwise in global form.
"Depositary" shall mean, with respect to the Securities, The
Depository Trust Company, New York, New York, another clearing agency, or any
successor registered as a clearing agency under the Exchange Act or other
applicable statute or regulation, as designated by the Company pursuant to
Section 2.05(d).
("Determination Date" shall have the meaning set forth in Section
2.06(c).)
"Dissolution Event" means the liquidation of the Trust pursuant to
the Declaration, and the distribution of the Securities held by the Property
Trustee to the holders of the Trust Securities issued by the Trust pro rata
--- ----
in accordance with the Declaration.
"Event of Default" shall mean any event specified in Section 5.01,
continued for the period of time, if any, and after the giving of the notice,
if any, therein designated.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Extended Interest Payment Period" shall have the meaning set forth
in Section 16.01.
"Federal Reserve" shall mean the Board of Governors of the Federal
Reserve System.
"Global Security" means, with respect to the Securities, a Security
executed by the Company and delivered by the Trustee to the Depositary or
pursuant to the Depositary's instruction, all in accordance with the
Indenture, which shall be registered in the name of the Depositary or its
nominee.
"Indebtedness for Money Borrowed" shall mean any obligation of, or
any obligation guaranteed by, the Company for the repayment of borrowed
money, whether or not evidenced by bonds, debentures, notes or other written
instruments.
"Indebtedness Ranking on a Parity with the Securities" shall mean
(i) Indebtedness for Money Borrowed, whether outstanding on the date of
execution of this Indenture or hereafter created, assumed or incurred, which
specifically by its terms ranks equally with and not prior to the Securities
in the right of payment upon the happening of any dissolution or winding up
or liquidation or reorganization of the Company, and (ii) all other debt
securities, and guarantees in respect of those debt securities, issued to any
trust other than the Trust, or a trustee of such trust, partnership or other
entity affiliated with the Company that is a financing vehicle of the Company
(a "financing entity") in connection with the issuance by such financing
entity of equity securities or other securities guaranteed by the Company
pursuant to an instrument that ranks pari passu with or junior in right of
payment to the Capital Securities Guarantee.
"Indebtedness Ranking Junior to the Securities" shall mean any
Indebtedness for Money Borrowed, whether outstanding on the date of execution
of this Indenture or hereafter created, assumed or incurred, which
specifically by its terms ranks junior to and not equally with or prior to
the Securities (and any other Indebtedness Ranking on a Parity with the
Securities) in right of payment upon the happening of any dissolution or
winding up or liquidation or reorganization of the Company. The securing of
any Indebtedness for Money Borrowed of the Company, otherwise constituting
Indebtedness Ranking on a Parity with the Securities or Indebtedness Ranking
Junior to the Securities, as the case may be, shall not be deemed to prevent
such Indebtedness for Money Borrowed from constituting Indebtedness Ranking
on a Parity with the Securities or Indebtedness Ranking Junior to the
Securities, as the case may be.
"Indenture" shall mean this instrument as originally executed or,
if amended as herein provided, as so amended.
"Interest Payment Date" shall have the meaning set forth in Section
2.06(a).
("Interest Period" shall have the meaning set forth in Section
2.06(a).)
("LIBOR" shall have the meaning set forth in Section 2.06(c).)
("London Business Day" shall have the meaning set forth in Section
2.06(c).)
"Maturity Date" shall mean ( ).
"Mortgage" shall mean and include any mortgage, pledge, lien,
security interest, conditional sale or other title retention agreement or
other similar encumbrance.
"Non Book-Entry Capital Securities" shall have the meaning set
forth in Section 2.05.
"Officers" shall mean any of the Chairman, a Vice Chairman, the
Chief Executive Officer, the President, a Vice President, the Comptroller,
the Executive Director, Global Treasury, the Clerk or an Assistant Clerk of
the Company.
"Officers' Certificate" shall mean a certificate signed by two
Officers and delivered to the Trustee.
"Opinion of Counsel" shall mean a written opinion of counsel, who
may be an employee of the Company, and who shall be acceptable to the
Trustee.
("Optional Redemption Price" shall have the meaning set forth in
Section 14.02.)
"Other Debentures" means all junior subordinated debentures issued
by the Company from time to time and sold to trusts to be established by the
Company, in each case similar to the Trust.
"Other Guarantees" means all guarantees issued by the Company with
respect to capital securities and issued to other trusts established by the
Company, in each case similar to the Trust.
The term "outstanding" when used with reference to Securities,
shall, subject to the provisions of Section 7.04, mean, as of any particular
time, all Securities authenticated and delivered by the Trustee or the
Authenticating Agent under this Indenture, except
(a) Securities theretofore cancelled by the Trustee or the
Authenticating Agent or delivered to the Trustee for
cancellation;
(b) Securities, or portions thereof, for the payment or redemption
of which moneys in the necessary amount shall have been
deposited in trust with the Trustee or with any paying agent
(other than the Company) or shall have been set aside and
segregated in trust by the Company (if the Company shall act
as its own paying agent); provided that, if such Securities,
or portions thereof, are to be redeemed prior to maturity
thereof, notice of such redemption shall have been given as in
Article XIV provided or provision satisfactory to the Trustee
shall have been made for giving such notice; and
(c) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered
pursuant to the terms of Section 2.08 unless proof
satisfactory to the Company and the Trustee is presented that
any such Securities are held by bona fide holders in due
course.
"Person" shall mean any individual, corporation, estate,
partnership, joint venture, association, joint-stock company, limited
liability company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt and as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 2.08 in
lieu of a lost, destroyed or stolen Security shall be deemed to evidence the
same debt as the lost, destroyed or stolen Security.
"Principal office of the Trustee", or other similar term, shall
mean the principal office of the Trustee, at which at any particular time its
corporate trust business shall be administered.
("Property Trustee" shall have the same meaning as set forth in the
Declaration.)
("Quotation Agent" means the Reference Treasury Dealer appointed by
the Company.)
"Redemption Price" (shall mean, with respect to any redemption of
the Securities pursuant to Sections 14.01 or 14.02 hereof, an amount in cash
equal to 100% of the principal amount of Securities to be redeemed, plus any
accrued and unpaid interest thereon, including Compounded Interest and
Additional Interest, if any, to the date of such redemption.) (means the
Special Event Redemption Price or the Optional Redemption Price, as the
context requires.)
("Reference Treasury Dealer" means (i)( ) and its
successors; provided, however, that if the foregoing shall cease to be a
-------- -------
primary U.S. Government securities dealer in New York City (a "Primary Trea-
sury Dealer"), the Company shall substitute therefor another Primary Treasury
Dealer, and (ii) any other Primary Treasury Dealer selected by the Company.)
("Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date pursuant to Section 14.01,
the average, as determined by the Trustee, of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Trustee by such Reference Treasury
Dealer at 5:00 p.m. New York City time on the third Business Day preceding
such redemption date.)
"Regulatory Capital Event" means that the Company shall have
received an opinion of independent bank regulatory counsel experienced in
such matters to the effect that, as a result of (a) any amendment to, or
change (including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any rules, guidelines or
policies of the Federal Reserve or (b) any official administrative
pronouncement or judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or such pronouncement or
decision is announced on or after , ____, the Capital Securities do
not constitute, or within 90 days of the date thereof, will not constitute,
Tier I Capital (or its then equivalent); provided, however, that the
-------- -------
distribution of the Capital Securities in connection with the liquidation of
the Trust by the Company, as sponsor, shall not in and of itself constitute a
Regulatory Capital Event unless such liquidation shall have occurred in
connection with a Tax Event.
"Responsible Officer", when used with respect to the Trustee, shall
mean any vice president, any assistant secretary, any assistant treasurer,
any trust officer or assistant trust officer or any other officer or
assistant officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom
such matter is referred because of his knowledge of and familiarity with the
particular subject.
("Reuters Page LIBO" shall have the meaning set forth in Section
2.06(c).)
"Securities" means the Company's ( %) (Floating Rate) Junior
Subordinated Deferrable Interest Debentures due ( ), as
authenticated and issued under this Indenture.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Securityholder", "holder of Securities", or other similar terms,
shall mean any person in whose name at the time a particular Security is
registered on the register kept by the Company or the Trustee for that
purpose in accordance with the terms hereof.
"Security Register" shall have the meaning specified in Section
2.07(b).
"Senior Indebtedness" shall mean all Indebtedness for Money
Borrowed, whether outstanding on the date of execution of this Indenture or
hereafter created, assumed or incurred, except Indebtedness Ranking on a
Parity with the Securities or Indebtedness Ranking Junior to the Securities,
and any deferrals, renewals or extensions of such Senior Indebtedness.
"Special Event" means either a Regulatory Capital Event or a Tax
Event.
("Special Event Redemption Price" shall mean, with respect to any
redemption of the Securities pursuant to Section 14.01 hereof, an amount in
cash equal to the greater of (i) 100% of the principal amount to be redeemed
or (ii) as determined by a Quotation Agent, the sum of the present values of
the remaining scheduled payments of principal and interest thereon discounted
to the redemption date on a ( ) basis (assuming a 360-day year
consisting of twelve 30-day months) at the Adjusted Treasury Rate, plus, in
each case, any accrued and unpaid interest thereon, including Compounded
Interest and Additional Interest, if any, to the date of such redemption.)
"Subsidiary" shall mean with respect to any Person, (i) any
corporation at least a majority of whose outstanding voting stock of which is
owned, directly or indirectly, by such Person or by one or more of its
Subsidiaries, or by such Person and one or more of its Subsidiaries, (ii) any
general partnership, joint venture or similar entity, at least a majority of
whose outstanding partnership or similar interests shall at the time be owned
by such Person, or by one or more of its Subsidiaries, or by such Person and
one or more of its Subsidiaries and (iii) any limited partnership of which
such Person or any of its Subsidiaries is a general partner. For the
purposes of this definition, "voting stock" means shares, interests,
participations or other equivalents in the equity interest (however
designated) in such Person having ordinary voting power for the election of a
majority of the directors (or the equivalent) of such Person, other than
shares, interests, participations or other equivalents having such power only
by reason of the occurrence of a contingency.
"Tax Event" shall mean the receipt by the Trust and the Company of
an opinion of counsel 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
, ____, there is more than an insubstantial risk that (i) the Trust is, or
will be within 90 days of the date of such opinion, subject to United States
Federal income tax with respect to income received or accrued on the
Securities, (ii) interest payable by the Company on the Securities is not, or
within 90 days of the date of such opinion, will not be, deductible by the
Company, in whole or in part, for United States Federal income tax purposes,
or (iii) the Trust is, or will be within 90 days of the date of such opinion,
subject to more than a de minimis amount of other taxes, duties or other
governmental charges.
"Trust" shall mean BankBoston Capital Trust (IV) (V), a Delaware
business trust created for the purpose of issuing its undivided beneficial
interests in connection with the issuance of Securities under this Indenture.
"Trustee" shall mean the Person identified as "Trustee" in the
first paragraph hereof, and, subject to the provisions of Article VI hereof,
shall also include its successors and assigns as Trustee hereunder.
"Trust Indenture Act of 1939" shall mean the Trust Indenture Act of
1939 as in force at the date of execution of this Indenture, except as
provided in Section 9.03.
"Trust Securities" shall mean the Capital Securities and the Common
Securities, collectively.
"U.S. Government Obligations" shall mean securities that are (i)
direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of the
United States of America the payment of which is unconditionally guaranteed
as a full faith and credit obligation by the United States of America, which,
in either case under clauses (i) or (ii) are not callable or redeemable at
the option of the issuer thereof, and shall also include a depository receipt
issued by a bank or trust company as custodian with respect to any such U.S.
Government Obligation or a specific payment of interest on or principal of
any such U.S. Government Obligation held by such custodian for the account of
the holder of a depository receipt, provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by
the custodian in respect of the U.S. Government Obligation or the specific
payment of interest on or principal of the U.S. Government Obligation
evidenced by such depository receipt.
ARTICLE II
SECURITIES
SECTION 2.01. Forms Generally.
The Securities and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A, the terms of which are
incorporated in and made a part of this Indenture. The Securities may have
notations, legends or endorsements required by law, stock exchange rule,
agreements to which the Company is subject or usage. Each Security shall be
dated the date of its authentication. The Securities shall be issued in
denominations of $1,000 and integral multiples thereof.
SECTION 2.02. Execution and Authentication.
An Officer shall sign the Securities for the Company by manual or
facsimile signature. If an Officer whose signature is on a Security no
longer holds that office at the time the Security is authenticated, the
Security shall nevertheless be valid.
A Security shall not be valid until authenticated by the manual
signature of the Trustee. The signature of the Trustee shall be conclusive
evidence that the Security has been authenticated under this Indenture. The
form of Trustee's certificate of authentication to be borne by the Securities
shall be substantially as set forth in Exhibit A hereto.
The Trustee shall, upon a Company Order, authenticate for original
issue up to and including, and the aggregate principal amount of Securities
outstanding at any time may not exceed, $( ) aggregate principal amount
of the Securities, except as provided in Sections 2.07, 2.08, 2.10 and 14.05.
SECTION 2.03. Form and Payment.
Except as provided in Section 2.05, the Securities shall be issued
in fully registered certificated form without interest coupons. Principal of
and premium, if any, and interest on the Securities issued in certificated
form will be payable, the transfer of such Securities will be registrable and
such Securities will be exchangeable for Securities bearing identical terms
and provisions at the office or agency of the Trustee; provided, however,
-------- -------
that payment of interest with respect to Securities in global form may be
made at the option of the Company (i) by check mailed to the holder at such
address as shall appear in the Security Register or (ii) by transfer to an
account maintained by the Person entitled thereto, provided that proper
transfer instructions have been received in writing by the relevant record
date. Notwithstanding the foregoing, so long as the holder of any
Securities is the Property Trustee, the payment of the principal of and
premium, if any, and interest (including Compounded Interest and Additional
Interest, if any) on such Securities held by the Property Trustee will be
made at such place and to such account as may be designated by the Property
Trustee.
SECTION 2.04. (Reserved).
SECTION 2.05. Global Security.
(a) In connection with a Dissolution Event,
(i) if any Capital Securities are held in book-entry form,
the related Definitive Securities shall be presented to the Trustee (if
an arrangement with the Depositary has been maintained) by the Property
Trustee in exchange for one or more Global Securities (as may be
required pursuant to Section 2.07) in an aggregate principal amount
equal to the aggregate principal amount of all outstanding Securities,
to be registered in the name of the Depositary, or its nominee, and
delivered by the Trustee to the Depositary for crediting to the accounts
of its participants pursuant to the instructions of the Administrative
Trustees; the Company upon any such presentation shall execute one or
more Global Securities in such aggregate principal amount and deliver
the same to the Trustee for authentication and delivery in accordance
with the Indenture; and payments on the Securities issued as a Global
Security will be made to the Depositary; and
(ii) if any Capital Securities are held in certificated form,
the related Definitive Securities may be presented to the Trustee by the
Property Trustee and any Capital Security certificate which represents
Capital Securities other than Capital Securities in book-entry form
("Non Book-Entry Capital Securities") will be deemed to represent
beneficial interests in Securities presented to the Trustee by the
Property Trustee having an aggregate principal amount equal to the
aggregate liquidation amount of the Non Book-Entry Capital Securities
until such Capital Security certificates are presented to the Security
registrar for transfer or reissuance, at which time such Capital
Security certificates will be cancelled and a Security, registered in
the name of the holder of the Capital Security certificate or the
transferee of the holder of such Capital Security certificate, as the
case may be, with an aggregate principal amount equal to the aggregate
liquidation amount of the Capital Security certificate cancelled, will
be executed by the Company and delivered to the Trustee for
authentication and delivery in accordance with the Indenture. Upon the
issuance of such Securities, Securities with an equivalent aggregate
principal amount that were presented by the Property Trustee to the
Trustee will be deemed to have been cancelled.
(b) The Global Securities shall represent the aggregate amount of
outstanding Securities from time to time endorsed thereon; provided, that
--------
the aggregate amount of outstanding Securities represented thereby may
from time to time be reduced or increased, as appropriate, to reflect
exchanges and redemptions. Any endorsement of a Global Security to reflect
the amount of any increase or decrease in the amount of outstanding
Securities represented thereby shall be made by the Trustee, in accordance
with instructions given by the Company as required by this Section 2.05.
(c) The Global Securities 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.
(d) If at any time the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary or the Depositary has ceased to
be a clearing agency registered under the Exchange Act, and a successor
Depositary is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such condition, as the case may be,
the Company will execute, and the Trustee, upon written notice from the
Company, will authenticate and make available for delivery the Definitive
Securities, in authorized denominations, and in an aggregate principal amount
equal to the principal amount of the Global Security in exchange for such
Global Security. If there is a Default or an Event of Default, the
Depositary shall have the right to exchange the Global Securities for
Definitive Securities. In addition, the Company may at any time determine
that the Securities shall no longer be represented by a Global Security. In
the event of such a Default or an Event of Default or such a determination,
the Company shall execute, and subject to Section 2.07, the Trustee, upon
receipt of an Officers' Certificate evidencing such determination by the
Company, will authenticate and make available for delivery the Definitive
Securities, in authorized denominations, and in an aggregate principal amount
equal to the principal amount of the Global Security in exchange for such
Global Security. Upon the exchange of the Global Security for such
Definitive Securities, in authorized denominations, the Global Security shall
be cancelled by the Trustee. Such Definitive Securities issued in exchange
for the Global Security shall be registered in such names and in such
authorized denominations as the Depositary, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee.
The Trustee shall deliver such Definitive Securities to the Depositary for
delivery to the Persons in whose names such Definitive Securities are so
registered.
SECTION 2.06. Interest.
((a) Each Security will bear interest at the rate of ( )% per
annum (the "Coupon Rate") from the most recent date to which interest has
been paid or, if no interest has been paid, from , 1998, until the
principal thereof becomes due and payable, and on any overdue principal and
(to the extent that payment of such interest is enforceable under applicable
law) on any overdue installment of interest at the Coupon Rate, compounded
( ), payable (subject to the provisions of Article XVI) ( ) in
arrears on ( ) of each year (each, an "Interest Payment Date") com-
mencing on , 1998, to the Person in whose name such Security or any
predecessor Security is registered, at the close of business on the regular
record date for such interest installment, which shall be the first day of
the month in which the relevant Interest Payment Date falls.
(b) Interest will be computed on the basis of a 360-day year
consisting of twelve 30-day months. In the event that any Interest Payment
Date falls on a day that 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 (and without any interest or other payment in respect of any
such delay), with the same force and effect as if made on such date.
(c) During such time as the Property Trustee is the holder of any
Securities, the Company shall pay any additional amounts on the Securities as
may be necessary in order that the amount of Distributions then due and
payable by the BankBoston Capital Trust on the outstanding Securities shall
not be reduced as a result of any additional taxes, duties and other
governmental charges to which the Trust has become subject as a result of a
Tax Event ("Additional Interest").)
((a) Each Security will bear interest at the rate determined as
provided below, payable ( ) in arrears (subject to the provisions of
Article XVI) on ( ) of each year, commencing on
, ____ (each, an "Interest Payment Date"), to the Person in whose name such
Security or any predecessor Security is registered, at the close of business
on the regular record date for such interest installment, which shall be the
( ) prior to the applicable Interest Payment Date.
Interest payable on each Interest Payment Date shall include interest accrued
from and including the immediately preceding Interest Payment Date (or, if no
interest has been paid or duly provided for, the date of original issuance)
to but excluding such Interest Payment Date (each, an "Interest Period").
(b) The amount of interest payable for any Interest Period shall
be computed on the basis of the actual number of days elapsed in such
Interest Period and a year of 360 days. Accrued interest that is not paid on
the applicable Interest Payment Date will bear additional interest on the
amount thereof (to the extent permitted by law) at the periodic rate
determined as provided below, compounded quarterly from the relevant Interest
Payment Date. If an Interest Payment Date is not a Business Day, then such
Interest Payment Date and the first day of the Interest Period commencing on
such Interest Payment Date shall be postponed to the next succeeding Business
Day, except if such Business Day is in the next succeeding calendar month,
such Interest Payment Date and the first day of such Interest Period will be
the immediately preceding Business Day. The term "interest" as used herein
shall include quarterly interest payments, interest on quarterly interest
payments not paid on the applicable Interest Payment Date (to the extent
permitted by law) and Additional Interest, as applicable.
(c) The per annum rate of interest payable with respect to the
Securities shall equal LIBOR plus ( )% (the "Interest Rate"). The Interest
Rate on the Securities for each Interest Period will be adjusted on the first
day of such Interest Period based on LIBOR determined as of two London
Business Days prior to the first day of such Interest Period (each, a
"Determination Date").
"LIBOR" with respect to any Determination Date will be determined
by the Calculation Agent in accordance with the following provisions (in the
following order of priority):
(1) the rate (expressed as a percentage per annum) for
Eurodollar deposits having a three-month maturity that appears on
Telerate Page 3750 as of 11:00 a.m. (London time) on the related
Determination Date;
(2) if such rate does not appear on Telerate Page 3750 as of
11:00 a.m. (London time) on the related Determination Date, LIBOR will
be the arithmetic mean (if necessary rounded upwards to the nearest
whole multiple of 0.00001%) of the rates (expressed as percentages per
annum) for Eurodollar deposits having a three-month maturity that appear
on Reuter Monitor Money Rates Page LIBO ("Reuters Page LIBO") as of
11:00 a.m. (London time) on such Determination Date;
(3) if such rate does not appear on Reuters Page LIBO as of
11:00 a.m. (London time) on the related Determination Date, the
Calculation Agent will request the principal London offices of four
leading banks in the London interbank market to provide such banks'
offered quotations (expressed as percentages per annum) to prime banks
in the London interbank market for Eurodollar deposits having a
three-month maturity as of 11:00 a.m. (London time) on such
Determination Date and, if at least two quotations are so provided,
LIBOR will be the arithmetic mean (if necessary rounded upwards to the
nearest whole multiple of 0.00001%) of such quotations;
(4) if fewer than two such quotations are provided as
requested in clause (3) above, the Calculation Agent will request four
major New York City banks to provide such banks' offered quotations
(expressed as percentages per annum) to leading European banks for loans
in Eurodollars having a three-month maturity as of 11:00 a.m. (London
time) on such Determination Date and, if at least two such quotations
are so provided, LIBOR will be the arithmetic mean (if necessary rounded
upwards to the nearest whole multiple of 0.00001%) of such quotations;
and
(5) if fewer than two such quotations are provided as
requested in clause (4) above, LIBOR will be LIBOR as determined on the
immediately preceding Determination Date.
If the rate for Eurodollar deposits having a three-month maturity
that initially appears on Telerate Page 3750 or Reuters Page LIBO, as the
case may be, as of 11:00 a.m. (London time) on the related Determination Date
is superseded on Telerate Page 3750 or Reuters Page LIBO, as the case may be,
by a corrected rate before 12:00 noon (London time) on such Determination
Date, such corrected rate will be the applicable LIBOR for such Determination
Date.
As used herein, "London Business Day" means any day, other than a
Saturday or Sunday, on which banks are open for business in London.
The Calculation Agent will, upon the request of any Securityholder,
provide the Interest Rate then in effect. Absent manifest error, the
Calculation Agent's determination of LIBOR and its calculation of the
applicable Interest Rate will be final and binding on the holders of the
Securities.
All percentages resulting from any calculation of interest on the
Securities will be rounded to the nearest one hundred-thousandth of a
percentage point, with five one-millionths of a percentage point rounded
upward (e.g., 5.687665% (or .05687665) would be rounded to 5.68767% (or
.0568767)), and all dollar amounts used or resulting from such calculation
will be rounded to the nearest cent (with one-half cent being rounded
upward).
The Interest Rate on the Securities will in no event be higher than
the maximum rate permitted by New York law, as the same may be modified by
United States law of general application.)/*/
(d) During such time as the Property Trustee is the holder of any
Securities, the Company shall pay any additional amounts on the Securities as
may be necessary in order that the amount of distributions then due and
payable by the Trust on the outstanding Trust Securities shall not be reduced
as a result of any additional taxes, duties and other governmental charges to
which the Trust has become subject as a result of a Tax Event ("Additional
Interest").
(e) (The Company hereby appoints The Bank of New York as the
Calculation Agent with respect to the Securities to be issued by the Company.
The Bank of New York hereby accepts its appointment to determine LIBOR and
calculate the Interest Rate of, and the amount of interest payable on, the
Securities for each Interest Period pursuant to the terms set forth herein
and in the Securities. As Calculation Agent hereunder, The Bank of New York
shall be entitled to the same rights, protections and immunities which it has
as Trustee hereunder.
In the event of a resignation or removal of The Bank of New York as
the Calculation Agent, the Company shall promptly appoint a successor
Calculation Agent. Such successor Calculation Agent shall, without any
further act, deed or conveyance, become vested with all of the authority,
rights, duties and obligations of the Calculation Agent with the like effect
as if originally appointed as Calculation Agent.)/*/
SECTION 2.07. Transfer and Exchange.
(a) (Reserved).
----------
(b) The Company shall cause to be kept at the principal office of
the Trustee a register in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of Securities
and of transfers of Securities. Such register is herein sometimes referred
to as the "Securities Register."
To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Definitive Securities and
Global Securities at the Trustee's request. All Definitive Securities and
Global Securities issued upon any registration of transfer or exchange of
Definitive Securities or Global Securities shall be the valid obligations of
the Company, evidencing the same debt, and entitled to the same
_______________
/*/ Applicable if the Securities bear interest at a floating rate.
benefits under this Indenture, as the Definitive Securities or Global
Securities surrendered upon such registration of transfer or exchange.
No service charge shall be made to a holder for any registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any transfer tax or similar governmental charge payable in
connection therewith.
The Company shall not be required to (i) issue, register the
transfer of or exchange Securities during a period beginning at the opening
of business 15 days before the day of mailing of a notice of redemption or
any notice of selection of Securities for redemption under Article XV hereof
and ending at the close of business on the day of such mailing; or (ii)
register the transfer of or exchange any Security so selected for redemption
in whole or in part, except the unredeemed portion of any Security being
redeemed in part.
Prior to due presentment for the registration of a transfer of any
Security, the Trustee, any Agent and the Company may deem and treat the
Person in whose name any Security is registered as the absolute owner of such
Security for the purpose of receiving payment of principal of and premium, if
any, and interest on such Securities, and neither the Trustee, any Agent nor
the Company shall be affected by notice to the contrary.
SECTION 2.08. Replacement Securities.
If any mutilated Security is surrendered to the Trustee, or the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, the Company shall issue and the
Trustee shall authenticate a replacement Security if the Trustee's
requirements for replacements of Securities are met. An indemnity bond must
be supplied by the holder that is sufficient in the judgment of the Trustee
and the Company to protect the Company, the Trustee, any Agent or any
authenticating agent from any loss that any of them may suffer if a Security
is replaced. The Company or the Trustee may charge for its expenses in
replacing a Security.
Every replacement Security is an obligation of the Company and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Securities duly issued hereunder.
SECTION 2.09. Treasury Securities.
In determining whether the holders of the required principal amount
of Securities have concurred in any direction, waiver or consent, Securities
owned by the Company or any Affiliate of the Company shall be considered as
though not outstanding, except that for purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or
consent, only Securities that a Responsible Officer of the Trustee actually
knows to be so owned shall be so considered.
SECTION 2.10. Temporary Securities.
Pending the preparation of Definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and make
available for delivery, temporary Securities that are printed, lithographed,
typewritten, mimeographed or otherwise reproduced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu
of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities
may determine, as conclusively evidenced by their execution of such
Securities.
If temporary Securities are issued, the Company shall cause
Definitive Securities to be prepared without unreasonable delay. The
Definitive Securities shall be printed, lithographed or engraved, or provided
by any combination thereof, or in any other manner permitted by the rules and
regulations of any applicable securities exchange or interdealer quotation
system, all as determined by the officers executing such Definitive
Securities. After the preparation of Definitive Securities, the temporary
Securities shall be exchangeable for Definitive Securities upon surrender of
the temporary Securities at the office or agency maintained by the Company
for such purpose pursuant to Section 3.02 hereof, without charge to the
holder. Upon surrender for cancellation of any one or more temporary
Securities, the Company shall execute, and the Trustee shall authenticate and
make available for delivery, in exchange therefor the same aggregate
principal amount of Definitive Securities of authorized denominations. Until
so exchanged, the temporary Securities shall in all respects be entitled to
the same benefits under this Indenture as Definitive Securities.
SECTION 2.11. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Trustee and no one else shall cancel all Securities
surrendered for registration of transfer, exchange, payment, replacement or
cancellation and shall retain or destroy cancelled Securities in accordance
with its normal practices (subject to the record retention requirement of the
Exchange Act) unless the Company directs them to be returned to it. The
Company may not issue new Securities to replace Securities that have been
redeemed or paid or that have been delivered to the Trustee for cancellation.
All cancelled Securities held by the Trustee shall be delivered to the
Company.
SECTION 2.12. Defaulted Interest.
Any interest on any Security that is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the holder on
the relevant regular record date by virtue of having been such holder; and
such Defaulted Interest shall be paid by the Company, at its election, as
provided in clause (a) or clause (b) below:
(a) The Company may make payment of any Defaulted Interest on
Securities to the Persons in whose names such Securities (or their
respective Predecessor Securities) are registered at the close of
business on a special record date for the payment of such Defaulted
Interest, which shall be fixed in the following manner: the Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Security and the date of the proposed
payment, and at the same time the Company shall deposit with the Trustee
an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a special record date
for the payment of such Defaulted Interest which shall not be more than
15 nor less than 10 days prior to the date of the proposed payment and
not less than 10 days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify the Company of
such special record date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the special record date therefor to be mailed, first class
postage prepaid, to each Securityholder at his or her address as it
appears in the Security Register, not less than 10 days prior to such
special record date. Notice of the proposed payment of such Defaulted
Interest and the special record date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names such Securities (or their respective Predecessor Securities) are
registered on such special record date and shall be no longer payable
pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted Interest on any
Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange or interdealer quotation system
on which such Securities may be listed, and upon such notice as may be
required by such exchange or interdealer quotation system, if, after
notice given by the Company to the Trustees of the proposed payment
pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
SECTION 2.13. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Securityholders; provided that any
--------
such notice may state that no representation is made as to the correctness
of such numbers either as printed on the Securities or as contained in any
notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption
shall not be affected by any defect in or omission of such numbers. The
Company will promptly notify the Trustee of any change in the CUSIP numbers.
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of the holders of
the Securities that it will duly and punctually pay or cause to be paid the
principal of and premium, if any, and interest on the Securities at the
place, at the respective times and in the manner provided herein.
SECTION 3.02. Offices for Notices and Payments, etc.
So long as any of the Securities remains outstanding, the Company
will maintain in the Borough of Manhattan, The City of New York, an office or
agency where the Securities may be presented for payment, an office or agency
where the Securities may be presented for registration of transfer and for
exchange as in this Indenture provided and an office or agency where notices
and demands to or upon the Company in respect of the Securities or of this
Indenture may be served. The Company will give to the Trustee written notice
of the location of any such office or agency and of any change of location
thereof. Until otherwise designated from time to time by the Company in a
notice to the Trustee, any such office or agency for all of the above
purposes shall be the office or agency of the Trustee. In case the Company
shall fail to maintain any such office or agency in the Borough of Manhattan,
The City of New York, or shall fail to give such notice of the location or of
any change in the location thereof, presentations and demands may be made and
notices may be served at the principal corporate trust office of the Trustee.
In addition to any such office or agency, the Company may from time
to time designate one or more offices or agencies outside the Borough of
Manhattan, The City of New York, where the Securities may be presented for
registration of transfer and for exchange in the manner provided in this
Indenture, and the Company may from time to time rescind such designation, as
the Company may deem desirable or expedient; provided, however, that no such
-------- -------
designation or rescission shall in any manner relieve the Company of its
obligation to maintain any such office or agency in the Borough of Manhattan,
The City of New York, for the purposes above mentioned. The Company will
give to the Trustee prompt written notice of any such designation or
rescission thereof.
SECTION 3.03. Appointments to Fill Vacancies in Trustee's Office.
The Company, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 6.10, a
Trustee, so that there shall at all times be a Trustee hereunder.
SECTION 3.04. Provision as to Paying Agent.
(a) If the Company shall appoint a paying agent other than the
Trustee with respect to the Securities, it will cause such
paying agent to execute and deliver to the Trustee an
instrument in which such agent shall agree with the Trustee,
subject to the provision of this Section 3.04,
(1) that it will hold all sums held by it as such agent for
the payment of the principal of and premium, if any, or
interest on the Securities (whether such sums have been
paid to it by the Company or by any other obligor on the
Securities) in trust for the benefit of the holders of
the Securities; and
(2) that it will give the Trustee notice of any failure by
the Company (or by any other obligor on the Securities)
to make any payment of the principal of and premium or
interest on the Securities when the same shall be due and
payable.
(b) If the Company shall act as its own paying agent, it will, on
or before each due date of the principal of and premium, if
any, or interest on the Securities, set aside, segregate and
hold in trust for the benefit of the holders of the Securities
a sum sufficient to pay such principal, premium or interest so
becoming due and will notify the Trustee of any failure to
take such action and of any failure by the Company (or by any
other obligor under the Securities) to make any payment of the
principal of and premium, if any, or interest on the
Securities when the same shall become due and payable.
(c) Anything in this Section 3.04 to the contrary notwithstanding,
the Company may, at any time, for the purpose of obtaining a
satisfaction and discharge with respect to the Securities
hereunder, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust for any such Securities by
the Trustee or any paying agent hereunder, as required by this
Section 3.04, such sums to be held by the Trustee upon the
trusts herein contained.
(d) Anything in this Section 3.04 to the contrary notwithstanding,
the agreement to hold sums in trust as provided in this
Section 3.04 is subject to Sections 11.03 and 11.04.
SECTION 3.05. Certificate to Trustee.
The Company will deliver to the Trustee on or before 120 days after
the end of each fiscal year in each year, commencing with the first fiscal
year ending after the date hereof, so long as Securities are outstanding
hereunder, an Officers' Certificate, one of the signers of which shall be the
principal executive, principal financial or principal accounting officer of
the Company stating that in the course of the performance by the signers of
their duties as officers of the Company they would normally have knowledge of
any default by the Company in the performance of any covenants contained
herein, stating whether or not they have knowledge of any such default and,
if so, specifying each such default of which the signers have knowledge and
the nature thereof.
SECTION 3.06. Compliance with Consolidation Provisions.
The Company will not, while any of the Securities remain
outstanding, consolidate with, or merge into, or merge into itself, or sell
or convey all or substantially all of its property to any other Person unless
the provisions of Article X hereof are complied with.
SECTION 3.07. Limitation on Dividends.
The Company will not (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 (which includes common
and preferred stock) or (ii) make any payment of principal, interest or
premium, if any, on or repay or repurchase or redeem any debt securities of
the Company (including any Other Debentures) that rank pari passu with or
junior in right of payment to the Securities or (iii) make any guarantee
payments with respect to any guarantee by the Company of the debt securities
of any Subsidiary of the Company (including Other Guarantees) if such
guarantee ranks pari passu or junior in right of payment to the Securities
(other than (a) dividends or distributions in shares of, or options, warrants
or rights to subscribe for or purchase shares of, Common Stock of the
Company, (b) any declaration of a dividend in connection with the
implementation of a stockholder's rights plan, or the issuance of stock under
any such plan in the future, or the redemption or repurchase of any such
rights pursuant thereto, (c) payments under the Capital Securities Guarantee
and (d) as a result of a reclassification of the Company's capital stock or
the exchange or the conversion of one class or series of the Company's
capital stock for another class or series of the Company's capital stock; (e)
the purchase of fractional interests in shares of the Company's capital stock
pursuant to the conversion or exchange provisions of such capital stock or
the security being converted or exchanged; and (f) purchases of Common Stock
related to the issuance of Common Stock or rights under any of the Company's
benefit plans for its directors, officers or employees or any of the
Company's dividend reinvestment plans) if at such time (i) there shall have
occurred any event of which the Company has actual knowledge that (a) with
the giving of notice or the lapse of time, or both, would constitute an Event
of Default and (b) in respect of which the Company shall not have taken
reasonable steps to cure, (ii) if such Securities are held by the Property
Trustee, the Company shall be in default with respect to its payment of any
obligations under the Capital Securities Guarantee or (iii) the Company shall
have given notice of its election of the exercise of its right to extend the
interest payment period pursuant to Section 16.01 and any such extension
shall be continuing.
SECTION 3.08. Covenants as to the Trust.
In the event Securities are issued to the Trust or a trustee of
such trust in connection with the issuance of Trust Securities by the Trust,
for so long as such Trust Securities remain outstanding, the Company will (i)
maintain 100% direct ownership of the Common Securities of the Trust;
provided, however, that any successor of the Company, permitted pursuant to
- -------- -------
Article X, may succeed to the Company's ownership of such Common Securities,
(ii) use its reasonable efforts to cause the Trust (a) to remain a business
trust, except in connection with a distribution of Securities, the
redemption of all of the Trust Securities of the Trust or certain mergers,
consolidations or amalgamations, each as permitted by the Declaration of the
Trust, and (b) to otherwise continue to be treated as a grantor trust and
not an association taxable as a corporation for United States Federal income
tax purposes and (iii) use its reasonable efforts to cause each holder of
Trust Securities to be treated as owning an individual beneficial interest
in the Securities.
SECTION 3.09. Payment of Expenses.
In connection with the offering, sale and issuance of the
Securities to the Trust and in connection with the sale of the Trust
Securities by the Trust, the Company, in its capacity as borrower with
respect to the Securities, shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of the Securities, including commissions to the underwriters payable
pursuant to the Purchase Agreement, fees and expenses in connection with the
registration of the Securities under the Securities Act and compensation of
the Trustee in accordance with the provisions of Section 6.06;
(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
Property 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;
(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; and
(e) pay all other fees, expenses, debts and obligations (other
than the Trust Securities) related to the Trust.
SECTION 3.10. Payment Upon Resignation or Removal.
Upon termination of this Indenture or the removal or resignation of
the Trustee, unless otherwise stated, the Company shall pay to the Trustee
all amounts accrued and owing 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 Property Trustee, as the case may
be, pursuant to Section 5.7 of the Declaration, the Company shall pay to the
Delaware Trustee or the Property Trustee, as the case may be, all amounts
accrued and owing to the date of such termination, removal or resignation.
ARTICLE IV
SECURITYHOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
SECTION 4.01. Securityholders' Lists.
The Company covenants and agrees that it will furnish or cause to
be furnished to the Trustee:
(a) on a semi-annual basis on December 1 and June 1 of each year,
a list, in such form as the Trustee may reasonably require, of
the names and addresses of the Securityholders as of such
record date; and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company, of any such
request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished,
except that, no such lists need be furnished so long as the
Trustee is in possession thereof by reason of its acting as
Security registrar.
SECTION 4.02. Preservation and Disclosure of Lists.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and
addresses of the holders of the Securities (1) contained in
the most recent list furnished to it as provided in Section
4.01 or (2) received by it in the capacity of Securities reg-
istrar (if so acting) hereunder. The Trustee may destroy any
list furnished to it as provided in Section 4.01 upon receipt
of a new list so furnished.
(b) In case three or more holders of Securities (hereinafter
referred to as "applicants") apply in writing to the Trustee
and furnish to the Trustee reasonable proof that each such
applicant has owned a Security for a period of at least six
months preceding the date of such application, and such
application states that the applicants desire to communicate
with other holders of Securities or with holders of all
Securities with respect to their rights under this Indenture
and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then
the Trustee shall within 5 Business Days after the receipt of
such application, at its election, either:
(1) afford such applicants access to the information preserved at
the time by the Trustee in accordance with the provisions of
subsection (a) of this Section 4.02, or
(2) inform such applicants as to the approximate number of holders
of all Securities, whose names and addresses appear in the
information preserved at the time by the Trustee in accordance
with the provisions of subsection (a) of this Section 4.02,
and as to the approximate cost of mailing to such
Securityholders the form of proxy or other communication, if
any, specified in such application.
If the Trustee shall elect not to afford such applicants
access to such information, the Trustee shall, upon the
written request of such applicants, mail to each
Securityholder whose name and address appear in the
information preserved at the time by the Trustee in accordance
with the provisions of subsection (a) of this Section 4.02 a
copy of the form of proxy or other communication which is
specified in such request with reasonable promptness after a
tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable
expenses of mailing, unless within five days after such ten-
der, the Trustee shall mail to such applicants and file with
the Commission, together with a copy of the material to be
mailed, a written statement to the effect that, in the opinion
of the Trustee, such mailing would be contrary to the best
interests of the holders of Securities or would be in
violation of applicable law. Such written statement shall
specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections specified in the
written statement so filed, shall enter an order refusing to
sustain any of such objections or if, after the entry of an
order sustaining one or more of such objections, the
Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met
and shall enter an order so declaring, the Trustee shall mail
copies of such material to all such Securityholders with
reasonable promptness after the entry of such order and the
renewal of such tender; otherwise the Trustee shall be
relieved of any obligation or duty to such applicants respect-
ing their application.
(c) Each and every holder of Securities, by receiving and holding
the same, agrees with the Company and the Trustee that neither
the Company nor the Trustee nor any paying agent shall be held
accountable by reason of the disclosure of any such
information as to the names and addresses of the holders of
Securities in accordance with the provisions of subsection (b)
of this Section 4.02, regardless of the source from which such
information was derived, and that the Trustee shall not be
held accountable by reason of mailing any material pursuant to
a request made under said subsection (b).
SECTION 4.03. Reports by Company.
(a) The Company covenants and agrees to file with the Trustee,
within 15 days after the date on which the Company is required
to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports
(or copies of such portions of any of the foregoing as said
Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act; or, if the Company is not required to file
information, documents or reports pursuant to either of such
sections, then to file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required
pursuant to Section 13 of the Exchange Act in respect of a
security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules
and regulations.
(b) The Company covenants and agrees to file with the Trustee and
the Commission, in accordance with the rules and regulations
prescribed from time to time by said Commission, such
additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants
provided for in this Indenture as may be required from time to
time by such rules and regulations.
(c) The Company covenants and agrees to transmit by mail to all
holders of Securities, as the names and addresses of such
holders appear upon the Security Register, within 30 days
after the filing thereof with the Trustee, such summaries of
any information, documents and reports required to be filed by
the Company pursuant to subsections (a) and (b) of this
Section 4.03 as may be required by rules and regulations
prescribed from time to time by the Commission.
(d) Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's
receipt of such shall not constitute constructive notice of
any information contained therein or determinable from
information contained therein, including the Company's compli-
ance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers'
Certificates).
SECTION 4.04. Reports by the Trustee.
(a) The Trustee shall transmit to Securityholders such reports
concerning the Trustee and its actions under this Indenture as
may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant thereto. If
required by Section 313(a) of the Trust Indenture Act, the
Trustee shall, within sixty days after each December 15
following the date of this Indenture, commencing December 15,
1998, deliver to Securityholders a brief report, dated as of
such December 15, which complies with the provisions of such
Section 313(a).
(b) A copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Trustee with
each stock exchange, if any, upon which the Securities are
listed, with the Commission and with the Company. The Company
will promptly notify the Trustee when the Securities are
listed on any stock exchange.
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.01. Events of Default.
One or more of the following events of default shall constitute an
Event of Default hereunder:
(a) default in the payment of any interest upon any Security or
any Other Debentures when it becomes due and payable, and
continuance of such default for a period of 30 days; provided,
--------
however, that a valid extension of an interest payment period
-------
by the Company in accordance with the terms hereof or thereof
shall not constitute a default in the payment of interest for
this purpose; or
(b) default in the payment of all or any part of the principal of
(or premium, if any, on) any Security or any Other Debentures
as and when the same shall become due and payable, whether at
maturity, upon redemption, by declaration or otherwise; or
(c) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a
covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with),
and continuance of such default or breach for a period of 90
days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the
Trustee by the holders of at least 25% in aggregate principal
amount of the outstanding Securities a written notice
specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(d) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Company in an
involuntary case under any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect, or appointing
a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Company or for any
substantial part of its property, or ordering the winding-up
or liquidation of its affairs and such decree or order shall
remain unstayed and in effect for a period of 90 consecutive
days; or
(e) the Company shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, shall consent to the entry of an order
for relief in an involuntary case under any such law, or shall
consent to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian,
sequestrator (or other similar official) of the Company or of
any substantial part of its property, or shall make any
general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due.
If an Event of Default with respect to Securities at the time
outstanding occurs and is continuing, then in every such case the Trustee or
the holders of not less than 25% in aggregate principal amount of the
Securities then outstanding may declare the principal amount of all
Securities to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by the holders of the outstanding
Securities), and upon any such declaration the same shall become immediately
due and payable.
The foregoing provisions, however, are subject to the condition
that if, at any time after the principal of the Securities shall have been so
declared due and payable, and before any judgment or decree for the payment
of the moneys due shall have been obtained or entered as hereinafter
provided, (i) the Company shall pay or shall deposit with the Trustee a sum
sufficient to pay (A) all matured installments of interest upon all the
Securities and the principal of and premium, if any, on any and all
Securities which shall have become due otherwise than by acceleration (with
interest upon such principal and premium, if any, and, to the extent that
payment of such interest is enforceable under applicable law, on overdue
installments of interest, at the same rate as the rate of interest specified
in the Securities to the date of such payment or deposit) and (B) such amount
as shall be sufficient to cover reasonable compensation to the Trustee and
each predecessor Trustee, their respective agents, attorneys and counsel, and
all other expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee except as a result of negligence or bad
faith, and (ii) any and all Events of Default under the Indenture shall have
been cured, waived or otherwise remedied as provided herein, then, in every
such case, the holders of a majority in aggregate principal amount of the
Securities then outstanding, by written notice to the Company and to the
Trustee, may rescind and annul such declaration and its consequences, but no
such waiver or rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
because of such rescission or annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case the
Company, the Trustee and the holders of the Securities shall be restored
respectively to their several positions and rights hereunder, and all rights,
remedies and powers of the Company, the Trustee and the holders of the
Securities shall continue as though no such proceeding had been taken.
SECTION 5.02. Payment of Securities on Default; Suit Therefor.
The Company covenants that (a) in case default shall be made in the
payment of any installment of interest upon any of the Securities as and when
the same shall become due and payable, and such default shall have continued
for a period of 30 days, or (b) in case default shall be made in the payment
of the principal of or premium, if any, on any of the Securities as and when
the same shall have become due and payable, whether at maturity of the
Securities or upon redemption or by declaration or otherwise, then, upon
demand of the Trustee, the Company will pay to the Trustee, for the benefit
of the holders of the Securities, the whole amount that then shall have
become due and payable on all such Securities for principal and premium, if
any, or interest, or both, as the case may be, with interest upon the overdue
principal and premium, if any, and (to the extent that payment of such
interest is enforceable under applicable law and, if the Securities are held
by the Trust or a trustee of such trust, without duplication of any other
amounts paid by the Trust or trustee in respect thereof) upon the overdue
installments of interest at the rate borne by the Securities; and, in
addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including a reasonable compensation to the
Trustee, its agents, attorneys and counsel, and any expenses or liabilities
incurred by the Trustee hereunder other than through its negligence or bad
faith.
In case the Company shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any actions or proceedings at
law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceeding to judgment or final decree, and may
enforce any such judgment or final decree against the Company or any other
obligor on the Securities and collect in the manner provided by law out of
the property of the Company or any other obligor on the Securities wherever
situated the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or
for the reorganization of the Company or any other obligor on the Securities
under Title 11, United States Code, or any other applicable law, or in case a
receiver or trustee shall have been appointed for the property of the Company
or such other obligor, or in the case of any other similar judicial
proceedings relative to the Company or other obligor upon the Securities, or
to the creditors or property of the Company or such other obligor, the
Trustee, irrespective of whether the principal of the Securities shall then
be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand pursuant to
the provisions of this Section 5.02, shall be entitled and empowered, by
intervention in such proceedings or otherwise, to file and prove a claim or
claims for the whole amount of principal and interest owing and unpaid in
respect of the Securities and, in case of any judicial proceedings, to file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
reasonable compensation to the Trustee and each predecessor Trustee, and
their respective agents, attorneys and counsel, and for reimbursement of all
expenses and liabilities incurred, and all advances made, by the Trustee and
each predecessor Trustee, except as a result of negligence or bad faith) and
of the Securityholders allowed in such judicial proceedings relative to the
Company or any other obligor on the Securities, or to the creditors or
property of the Company or such other obligor, unless prohibited by
applicable law and regulations, to vote on behalf of the holders of the
Securities in any election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency proceedings or
person performing similar functions in comparable proceedings, and to collect
and receive any moneys or other property payable or deliverable on any such
claims, and to distribute the same after the deduction of its charges and
expenses; and any receiver, assignee or trustee in bankruptcy or
reorganization is hereby authorized by each of the Securityholders to make
such payments to the Trustee, and, in the event that the Trustee shall
consent to the making of such payments directly to the Securityholders, to
pay to the Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Trustee, each predecessor Trustee and their respective
agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor Trustee
except as a result of negligence or bad faith.
Nothing herein contained shall be construed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any holder thereof or
to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding.
All rights of action and of asserting claims under this Indenture,
or under any of the Securities, may be enforced by the Trustee without the
possession of any of the Securities, or the production thereof on any trial
or other proceeding relative thereto, and any such suit or proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall be for the ratable benefit
of the holders of the Securities.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the
holders of the Securities, and it shall not be necessary to make any holders
of the Securities parties to any such proceedings.
SECTION 5.03. Application of Moneys Collected by Trustee.
Any moneys collected by the Trustee shall be applied in the order
following, at the date or dates fixed by the Trustee for the distribution of
such moneys, upon presentation of the Securities in respect of which moneys
have been collected, and stamping thereon the payment, if only partially
paid, and upon surrender thereof if fully paid:
First: To the payment of costs and expenses of collection
applicable to the Securities and reasonable compensation to the Trustee, its
agents, attorneys and counsel, and of all other expenses and liabilities
incurred, and all advances made, by the Trustee except as a result of its
negligence or bad faith;
Second: To the payment of all Senior Indebtedness of the Company
if and to the extent required by Article XV;
Third: To the payment of the amounts then due and unpaid upon
Securities for principal of (and premium, if any) and interest on the
Securities, in respect of which or for the benefit of which money has been
collected, ratably, without preference of priority of any kind, according to
the amounts due on such Securities for principal (and premium, if any) and
interest, respectively; and
Fourth: To the Company.
SECTION 5.04. Proceedings by Securityholders.
No holder of any Security shall have any right by virtue of or by
availing of any provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this
Indenture or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless such holder previously shall have given to the
Trustee written notice of an Event of Default and of the continuance thereof
with respect to the Securities specifying such Event of Default, as
hereinbefore provided, and unless also the holders of not less than 25% in
aggregate principal amount of the Securities then outstanding shall have made
written request upon the Trustee to institute such action, suit or proceeding
in its own name as Trustee hereunder and shall have offered to the Trustee
such reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee for 60 days
after its receipt of such notice, request and offer of indemnity shall have
failed to institute any such action, suit or proceeding, it being understood
and intended, and being expressly covenanted by the taker and holder of every
Security with every other taker and holder and the Trustee, that no one or
more holders of Securities shall have any right in any manner whatever by
virtue of or by availing of any provision of this Indenture to affect,
disturb or prejudice the rights of any other holder of Securities, or to
obtain or seek to obtain priority over or preference to any other such
holder, or to enforce any right under this Indenture, except in the manner
herein provided and for the equal, ratable and common benefit of all holders
of Securities.
Notwithstanding any other provisions in this Indenture, however,
the right of any holder of any Security to receive payment of the principal
of (premium, if any) and interest on such Security, on or after the same
shall have become due and payable, or to institute suit for the enforcement
of any such payment, shall not be impaired or affected without the consent of
such holder and by accepting a Security hereunder it is expressly understood,
intended and covenanted by the taker and holder of every Security with every
other such taker and holder and the Trustee, that no one or more holders of
Securities shall have any right in any manner whatsoever by virtue or by
availing of any provision of this Indenture to affect, disturb or prejudice
the rights of the holders of any other Securities, or to obtain or seek to
obtain priority over or preference to any other such holder, or to enforce
any right under this Indenture, except in the manner herein provided and for
the equal, ratable and common benefit of all holders of Securities. For the
protection and enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
The Company and the Trustee acknowledge that pursuant to the
Declaration, the holders of Capital Securities are entitled, in the
circumstances and subject to the limitations set forth therein, to commence a
Direct Action with respect to any Event of Default under this Indenture and
the Securities.
SECTION 5.05. Proceedings by Trustee.
In case an Event of Default occurs with respect to Securities and
is continuing, the Trustee may in its discretion proceed to protect and
enforce the rights vested in it by this Indenture by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and
enforce any of such rights, either by suit in equity or by action at law or
by proceeding in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this Indenture or in
aid of the exercise of any power granted in this Indenture, or to enforce any
other legal or equitable right vested in the Trustee by this Indenture or by
law.
SECTION 5.06. Remedies Cumulative and Continuing.
All powers and remedies given by this Article V to the Trustee or
to the Securityholders shall, to the extent permitted by law, be deemed
cumulative and not exclusive of any other powers and remedies available to
the Trustee or the holders of the Securities, by judicial proceedings or
otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture or otherwise established with respect
to the Securities, and no delay or omission of the Trustee or of any holder
of any of the Securities to exercise any right or power accruing upon any
Event of Default occurring and continuing as aforesaid shall impair any such
right or power, or shall be construed to be a waiver of any such default or
an acquiescence therein; and, subject to the provisions of Section 5.04,
every power and remedy given by this Article V or by law to the Trustee or to
the Securityholders may be exercised from time to time, and as often as shall
be deemed expedient, by the Trustee or by the Securityholders.
SECTION 5.07. Direction of Proceedings and Waiver of Defaults by
Majority of Securityholders.
The holders of a majority in aggregate principal amount of the
Securities at the time outstanding shall have the right to direct the time,
method, and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee;
provided, however, that (subject to the provisions of Section 6.01) the
- -------- -------
Trustee shall have the right to decline to follow any such direction if the
Trustee shall determine that the action so directed would be unjustly
prejudicial to the holders not taking part in such direction or if the
Trustee being advised by counsel determines that the action or proceeding so
directed may not lawfully be taken or if the 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 proceedings so directed would involve the Trustee in personal
liability. Prior to any declaration accelerating the maturity of the
Securities, the holders of a majority in aggregate principal amount of the
Securities at the time outstanding may on behalf of the holders of all of
the Securities waive any past default or Event of Default and its
consequences except a default (a) in the payment of principal of or premium,
if any, or interest on any of the Securities or (b) in respect of covenants
or provisions hereof which cannot be modified or amended without the consent
of the holder of each Security affected; provided, however, that if the
-------- -------
Securities are held by Property Trustee, such waiver or modification to such
waiver shall not be effective until the holders of a majority in aggregate
liquidation amount of Trust Securities shall have consented to such waiver
or modification to such waiver; provided further, that if the consent of the
-------- -------
holder of each outstanding Security is required, such waiver shall not be
effective until each holder of the Trust Securities shall have consented to
such waiver. Upon any such waiver, the default covered thereby shall be
deemed to be cured for all purposes of this Indenture and the Company, the
Trustee and the holders of the Securities shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall
extend to any subsequent or other default or impair any right consequent
thereon. Whenever any default or Event of Default hereunder shall have been
waived as permitted by this Section 5.07, said default or Event of Default
shall for all purposes of the Securities and this Indenture be deemed to
have been cured and to be not continuing.
SECTION 5.08. Notice of Defaults.
The Trustee shall, within 90 days after the occurrence of a default
with respect to the Securities mail to all Securityholders, as the names and
addresses of such holders appear upon the Security register, notice of all
defaults known to the Trustee, unless such defaults shall have been cured
before the giving of such notice (the term "defaults" for the purpose of this
Section 5.08 being hereby defined to be the events specified in clauses (a),
(b), (c), (d) and (e) of Section 5.01, not including periods of grace, if
any, provided for therein, and irrespective of the giving of written notice
specified in clause (c) of Section 5.01); and provided that, except in the
case of default in the payment of the principal of or premium, if any, or
interest on any of the Securities, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the
executive committee, or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interests of the Securityholders; and provided further, that
in the case of any default of the character specified in Section 5.01(c) no
such notice to Securityholders shall be given until at least 60 days after
the occurrence thereof but shall be given within 90 days after such
occurrence.
SECTION 5.09. Undertaking to Pay Costs.
All parties to this Indenture agree, and each holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for
any action taken or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees and expenses, against any party litigant in such
suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section 5.09
shall not apply to any suit instituted by the Trustee, to any suit instituted
by any Securityholder, or group of Securityholders, holding in the aggregate
more than 10% in aggregate principal amount of the Securities outstanding, or
to any suit instituted by any Securityholder for the enforcement of the
payment of the principal of (or premium, if any) or interest on any Security
against the Company on or after the same shall have become due and payable.
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of Trustee.
With respect to the holders of the Securities issued hereunder, the
Trustee, prior to the occurrence of an Event of Default and after the curing
or waiving of all Events of Default which may have occurred, undertakes to
perform such duties and only such duties as are specifically set forth in
this Indenture. In case an Event of Default has occurred (which has not been
cured or waived) the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default and after
the curing or waiving of all Events of Default which may have
occurred
(1) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable except for
the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on the part of the Trustee,
the 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 Trustee and conforming to the requirements of this
Indenture; but, in the case of any such certificates or
opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this
Indenture;
(b) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer or Officers of the
Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(c) the 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 Securityholders pursuant
to Section 5.07, relating to the time, method and place of
conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require
the 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 there is reasonable ground for
believing that the repayment of such funds or liability is not reasonably
assured to it under the terms of this Indenture or adequate indemnity against
such risk is not reasonably assured to it.
SECTION 6.02. Reliance on Documents, Opinions, etc.
Except as otherwise provided in Section 6.01:
(a) the Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, note, debenture or other paper
or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Company
mentioned herein may be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be
herein specifically prescribed); and any Board Resolution may
be evidenced to the Trustee by a copy thereof certified by the
Clerk or an Assistant Clerk of the Company;
(c) the Trustee may consult with counsel of its selection and any
advice or Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or
suffered omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the
request, order or direction of any of the Securityholders,
pursuant to the provisions of this Indenture, unless such
Securityholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers
conferred upon it by this Indenture; nothing contained herein
shall, however, relieve the Trustee of the obligation, upon
the occurrence of an Event of Default (that has not been cured
or waived), to exercise such of the rights and powers vested
in it by this Indenture, and to use the same degree of care
and skill in their exercise, as a prudent man would exercise
or use under the circumstances in the conduct of his own
affairs;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, debenture, coupon or other
paper or document, unless requested in writing to do so by the
holders of a majority in aggregate principal amount of the
outstanding Securities; provided, however, that if the payment
-------- -------
within a reasonable time to the Trustee of the costs, expenses
or liabilities likely to be incurred by it in the making of
such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to
it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expense or liability as a
condition to so proceeding;
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or
through agents (including any Authenticating Agent) or
attorneys, and the Trustee shall not be responsible for any
misconduct or negligence on the part of any such agent or
attorney appointed by it with due care; and
(h) the Trustee shall not be deemed to have notice of any Default
or Event of Default unless a Responsible Officer of the
Trustee has actual knowledge thereof or unless written notice
of any event which is in fact such a Default or Event of
Default is received by the Trustee at the Corporate Trust
Office of the Trustee, and such notice references the
Securities and this Indenture.
SECTION 6.03. No Responsibility for Recitals, etc.
The recitals contained herein and in the Securities (except in the
certificate of authentication of the Trustee or the Authenticating Agent)
shall be taken as the statements of the Company and the Trustee and the
Authenticating Agent assume no responsibility for the correctness of the
same. The Trustee and the Authenticating Agent make no representations as to
the validity or sufficiency of this Indenture or of the Securities. The
Trustee and the Authenticating Agent shall not be accountable for the use or
application by the Company of any Securities or the proceeds of any
Securities authenticated and delivered by the Trustee or the Authenticating
Agent in conformity with the provisions of this Indenture.
SECTION 6.04. Trustee, Authenticating Agent, Paying Agents,
Transfer Agents or Registrar May Own Securities.
The Trustee or any Authenticating Agent or any paying agent or any
transfer agent or any Security registrar, in its individual or any other
capacity, may become the owner or pledgee of Securities with the same rights
it would have if it were not Trustee, Authenticating Agent, paying agent,
transfer agent or Security registrar.
SECTION 6.05. Moneys to be Held in Trust.
Subject to the provisions of Section 11.04, all moneys received by
the Trustee or any paying agent shall, until used or applied as herein
provided, be held in trust for the purpose for which they were received, but
need not be segregated from other funds except to the extent required by law.
The Trustee and any paying agent shall be under no liability for interest on
any money received by it hereunder except as otherwise agreed in writing with
the Company. So long as no Event of Default shall have occurred and be
continuing, all interest allowed on any such moneys shall be paid from time
to time upon the written order of the Company, signed by the Chairman of the
Board of Directors, the Chief Executive Officer, the President, a Vice
Chairman, a Vice President, the Treasurer or an Assistant Treasurer, the
Comptroller, the Executive Director, Global Treasury, the Clerk or an
Assistant Clerk of the Company.
SECTION 6.06. Compensation and Expenses of Trustee.
The Company, as borrower, covenants and agrees to pay to the
Trustee from time to time, and the Trustee shall be entitled to, such
compensation as shall be agreed to in writing between the Company and the
Trustee (which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust), and the Company will pay or
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Indenture (including the reasonable
compensation and the expenses and disbursements of its counsel and of all
persons not regularly in its employ) except any such expense, disbursement or
advance as may arise from its negligence or bad faith. The Company also
covenants to indemnify each of the Trustee or any predecessor Trustee (and
its officers, agents, directors and employees) for, and to hold it harmless
against, any and all loss, damage, claim, liability or expense including
taxes (other than taxes based on the income of the Trustee) incurred without
negligence or bad faith on the part of the Trustee and arising out of or in
connection with the acceptance or administration of this trust, including the
costs and expenses of defending itself against any claim of liability in the
premises. The obligations of the Company under this Section 6.06 to
compensate and indemnify the Trustee and to pay or reimburse the Trustee for
expenses, disbursements and advances shall constitute additional indebtedness
hereunder. Such additional indebtedness shall be secured by a lien prior to
that of the Securities upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the benefit of the holders of
particular Securities.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 5.01(d) or Section 5.01(e), the
expenses (including the reasonable charges and expenses of its counsel) and
the compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency
or other similar law.
The provisions of this Section shall survive the termination of
this Indenture.
SECTION 6.07. Officers' Certificate as Evidence.
Except as otherwise provided in Sections 6.01 and 6.02, whenever in
the administration of the provisions of this Indenture the Trustee shall deem
it necessary or desirable that a matter be proved or established prior to
taking or omitting any action hereunder, such matter (unless other evidence
in respect thereof is herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate delivered to
the Trustee, and such certificate, in the absence of negligence or bad faith
on the part of the Trustee, shall be full warrant to the Trustee for any
action taken or omitted by it under the provisions of this Indenture upon the
faith thereof.
SECTION 6.08. Conflicting Interest of Trustee.
If the Trustee has or shall acquire any "conflicting interest"
within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee
and the Company shall in all respects comply with the provisions of Section
310(b) of the Trust Indenture Act.
SECTION 6.09. Eligibility of Trustee.
The Trustee hereunder shall at all times 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
other Person permitted to act as trustee by the Commission 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 aforesaid
supervising or examining authority, then for the purposes of this Section
6.09 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.
The Company may not, nor may any Person directly or indirectly
controlling, controlled by, or under common control with the Company, serve
as Trustee.
In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.09, the Trustee shall resign
immediately in the manner and with the effect specified in Section 6.10.
SECTION 6.10. Resignation or Removal of Trustee.
(a) The Trustee, or any trustee or trustees hereafter appointed,
may at any time resign by giving written notice of such
resignation to the Company and by mailing notice thereof to
the holders of the Securities at their addresses as they shall
appear on the Security register. Upon receiving such notice
of resignation, the Company shall promptly appoint a successor
trustee or trustees by written instrument, in duplicate, one
copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee. If no
successor trustee shall have been so appointed and have
accepted appointment within 60 days after the mailing of such
notice of resignation to the affected Securityholders, the
resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or
any Securityholder who has been a bona fide holder of a
Security for at least six months may, subject to the
provisions of Section 5.09, on behalf of himself and all
others similarly situated, petition any such court for the
appointment of a successor trustee. Such court may thereupon,
after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur --
(1) the Trustee shall fail to comply with the provisions of
Section 6.08 after written request therefor by the
Company or by any Securityholder who has been a bona fide
holder of a Security or Securities for at least six
months, or
(2) the Trustee shall cease to be eligible in accordance with
the provisions of Section 6.09 and shall fail to resign
after written request therefor by the Company or by any
such Securityholder, or
(3) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a receiver of the
Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, the Company may remove the Trustee and
appoint a successor trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to
the Trustee so removed and one copy to the successor trustee,
or, subject to the provisions of Section 5.09, any
Securityholder who has been a bona fide holder of a Security
for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the
appointment of a successor trustee. Such court may thereupon,
after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of the
Securities at the time outstanding may at any time remove the
Trustee and nominate a successor trustee, which shall be
deemed appointed as successor trustee unless within 10 days
after such nomination the Company objects thereto or if no
successor trustee shall have been so appointed and shall have
accepted appointment within 30 days after such removal, in
which case the Trustee so removed or any Securityholder, upon
the terms and conditions and otherwise as in subsection (a) of
this Section 6.10 provided, may petition any court of
competent jurisdiction for an appointment of a successor
trustee.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this
Section 6.10 shall become effective upon acceptance of
appointment by the successor trustee as provided in Section
6.11.
SECTION 6.11. Acceptance by Successor Trustee.
Any successor trustee appointed as provided in Section 6.10 shall
execute, acknowledge and deliver to the Company and to its predecessor
trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the retiring trustee shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with like effect as if originally named as trustee
herein; but, nevertheless, on the written request of the Company or of the
successor trustee, the trustee ceasing to act shall, upon payment of any
amounts then due it pursuant to the provisions of Section 6.06, execute and
deliver an instrument transferring to such successor trustee all the rights
and powers of the trustee so ceasing to act and shall duly assign, transfer
and deliver to such successor trustee all property and money held by such
retiring trustee thereunder. Upon request of any such successor trustee, the
Company shall execute any and all instruments in writing for more fully and
certainly vesting in and confirming to such successor trustee all such rights
and powers. Any trustee ceasing to act shall, nevertheless, retain a lien
upon all property or funds held or collected by such trustee to secure any
amounts then due it pursuant to the provisions of Section 6.06.
No successor trustee shall accept appointment as provided in this
Section 6.11 unless at the time of such acceptance such successor trustee
shall be qualified under the provisions of Section 6.08 and eligible under
the provisions of Section 6.09.
Upon acceptance of appointment by a successor trustee as provided
in this Section 6.11, the Company shall mail notice of the succession of such
trustee hereunder to the holders of Securities at their addresses as they
shall appear on the Security register. If the Company fails to mail such
notice within 10 days after the acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be mailed at the
expense of the Company.
SECTION 6.12. Succession by Merger, etc.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder
without the execution or filing of any paper or any further act on the part
of any of the parties hereto.
In case at the time such successor to the Trustee shall succeed to
the trusts created by this Indenture any Securities shall have been
authenticated but not delivered, any such successor to the Trustee may adopt
the certificate of authentication of any predecessor trustee, and deliver
such Securities so authenticated; and in case at that time any of the
Securities shall not have been authenticated, any successor to the Trustee
may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor trustee; and in all such cases such
certificates shall have the full force which the Securities or this Indenture
elsewhere provides that the certificate of the Trustee shall have; provided,
however, that the right to adopt the certificate of authentication of any
predecessor Trustee or authenticate Securities in the name of any predecessor
Trustee shall apply only to its successor or successors by merger, conversion
or consolidation.
SECTION 6.13. Limitation on Rights of Trustee as a Creditor.
The Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship described in Section 311(b) of the
Trust Indenture Act. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act to the extent included
therein.
SECTION 6.14. Authenticating Agents.
There may be one or more Authenticating Agents appointed by the
Trustee upon the request of the Company with power to act on its behalf and
subject to its direction in the authentication and delivery of Securities
issued upon exchange or transfer thereof as fully to all intents and purposes
as though any such Authenticating Agent had been expressly authorized to
authenticate and deliver Securities; provided, that the Trustee shall have no
--------
liability to the Company for any acts or omissions of the Authenticating
Agent with respect to the authentication and delivery of Securities. Any
such Authenticating Agent shall at all times be a corporation organized and
doing business under the laws of the United States or of any state or
territory thereof or of the District of Columbia authorized under such laws
to act as Authenticating Agent, having a combined capital and surplus of at
least $5,000,000 and being 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 the
requirements of such authority, then for the purposes of this Section 6.14
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. If at any time an Authenticating Agent shall cease
to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect herein specified in this
Section.
Any corporation into which any Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, consolidation or conversion to which any
Authenticating Agent shall be a party, or any corporation succeeding to all
or substantially all of the corporate trust business of any Authenticating
Agent, shall be the successor of such Authenticating Agent hereunder, if such
successor corporation is otherwise eligible under this Section 6.14 without
the execution or filing of any paper or any further act on the part of the
parties hereto or such Authenticating Agent.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at
any time terminate the agency of any Authenticating Agent by giving written
notice of termination to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in case
at any time any Authenticating Agent shall cease to be eligible under this
Section 6.14, the Trustee may, and upon the request of the Company shall,
promptly appoint a successor Authenticating Agent eligible under this Section
6.14, shall give written notice of such appointment to the Company and shall
mail notice of such appointment to all Securityholders as the names and
addresses of such holders appear on the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall
become vested with all rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as
Authenticating Agent herein.
The Company, as borrower, agrees to pay to any Authenticating Agent
from time to time reasonable compensation for its services. Any
Authenticating Agent shall have no responsibility or liability for any action
taken by it as such in accordance with the directions of the Trustee.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Action by Securityholders.
Whenever in this Indenture it is provided that the holders of a
specified percentage in aggregate principal amount of the Securities may take
any action (including the making of any demand or request, the giving of any
notice, consent or waiver or the taking of any other action) the fact that at
the time of taking any such action the holders of such specified percentage
have joined therein may be evidenced (a) by any instrument or any number of
instruments of similar tenor executed by such Securityholders in person or by
agent or proxy appointed in writing, or (b) by the record of such holders of
Securities voting in favor thereof at any meeting of such Securityholders
duly called and held in accordance with the provisions of Article VIII, or
(c) by a combination of such instrument or instruments and any such record of
such a meeting of such Securityholders.
If the Company shall solicit from the Securityholders any request,
demand, authorization, direction, notice, consent, waiver or other action,
the Company may, at its option, as evidenced by an Officers' Certificate, fix
in advance a record date for the determination of Securityholders entitled to
give such request, demand, authorization, direction, notice, consent, waiver
or other action, but the Company shall have no obligation to do so. If such
a record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other action may be given before or after the
record date, but only the Securityholders of record at the close of business
on the record date shall be deemed to be Securityholders for the purposes of
determining whether Securityholders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other
action, and for that purpose the Outstanding Securities shall be computed as
of the record date; provided, however, that no such authorization, agreement
-------- -------
or consent by such Securityholders on the record date shall be deemed
effective unless it shall become effective pursuant to the provisions of
this Indenture not later than six months after the record date.
SECTION 7.02. Proof of Execution by Securityholders.
Subject to the provisions of Sections 6.01, 6.02 and 8.05, proof of
the execution of any instrument by a Securityholder or his agent or proxy
shall be sufficient if made in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee. The ownership of Securities shall be proved by
the Security Register or by a certificate of the Security registrar. The
Trustee may require such additional proof of any matter referred to in this
Section as it shall deem necessary.
The record of any Securityholders' meeting shall be proved in the
manner provided in Section 8.06.
SECTION 7.03. Who Are Deemed Absolute Owners.
Prior to due presentment for registration of transfer of any
Security, the Company, the Trustee, any Authenticating Agent, any paying
agent, any transfer agent and any Security registrar may deem the person in
whose name such Security shall be registered upon the Security Register to
be, and may treat him as, the absolute owner of such Security (whether or not
such Security shall be overdue) for the purpose of receiving payment of or on
account of the principal of and premium, if any, and interest on such
Security and for all other purposes; and neither the Company nor the Trustee
nor any Authenticating Agent nor any paying agent nor any transfer agent nor
any Security registrar shall be affected by any notice to the contrary. All
such payments so made to any holder for the time being or upon his order
shall be valid, and, to the extent of the sum or sums so paid, effectual to
satisfy and discharge the liability for moneys payable upon any such
Security.
SECTION 7.04. Securities Owned by Company Deemed Not Outstanding.
In determining whether the holders of the requisite aggregate
principal amount of Securities have concurred in any direction, consent or
waiver under this Indenture, Securities which are owned by the Company or any
other obligor on the Securities or by any person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Company or any other obligor on the Securities shall be disregarded and
deemed not to be outstanding for the purpose of any such determination;
provided that for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, consent or waiver, only
Securities which a Responsible Officer of the Trustee actually knows are so
owned shall be so disregarded. Securities so owned which have been pledged
in good faith may be regarded as outstanding for the purposes of this Section
7.04 if the pledgee shall establish to the satisfaction of the Trustee the
pledgee's right to vote such Securities and that the pledgee is not the
Company or any such other obligor or person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Company or any such other obligor. In the case of a dispute as to such
right, any decision by the Trustee taken upon the advice of counsel shall be
full protection to the Trustee.
SECTION 7.05. Revocation of Consents; Future Holders Bound.
At any time prior to (but not after) the evidencing to the Trustee,
as provided in Section 7.01, of the taking of any action by the holders of
the percentage in aggregate principal amount of the Securities specified in
this Indenture in connection with such action, any holder of a Security (or
any Security issued in whole or in part in exchange or substitution therefor)
the serial number of which is shown by the evidence to be included in the
Securities the holders of which have consented to such action may, by filing
written notice with the Trustee at its principal office and upon proof of
holding as provided in Section 7.02, revoke such action so far as concerns
such Security (or so far as concerns the principal amount represented by any
exchanged or substituted Security). Except as aforesaid any such action
taken by the holder of any Security shall be conclusive and binding upon such
holder and upon all future holders and owners of such Security, and of any
Security issued in exchange or substitution therefor, irrespective of whether
or not any notation in regard thereto is made upon such Security or any
Security issued in exchange or substitution therefor.
ARTICLE VIII
SECURITYHOLDERS' MEETINGS
SECTION 8.01. Purposes of Meetings.
A meeting of Securityholders may be called at any time and from
time to time pursuant to the provisions of this Article VIII for any of the
following purposes:
(a) to give any notice to the Company or to the Trustee, or to
give any directions to the Trustee, or to consent to the
waiving of any default hereunder and its consequences, or to
take any other action authorized to be taken by
Securityholders pursuant to any of the provisions of Article
V;
(b) to remove the Trustee and nominate a successor trustee
pursuant to the provisions of Article VI;
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section
9.02; or
(d) to take any other action authorized to be taken by or on
behalf of the holders of any specified aggregate principal
amount of such Securities under any other provision of this
Indenture or under applicable law.
SECTION 8.02. Call of Meetings by Trustee.
The Trustee may at any time call a meeting of Securityholders to
take any action specified in Section 8.01, to be held at such time and at
such place in the Borough of Manhattan, The City of New York, as the Trustee
shall determine. Notice of every meeting of the Securityholders, setting
forth the time and the place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be mailed to holders of
Securities at their addresses as they shall appear on the Securities
Register. Such notice shall be mailed not less than 20 nor more than 180
days prior to the date fixed for the meeting.
SECTION 8.03. Call of Meetings by Company or Securityholders.
In case at any time the Company pursuant to a resolution of the
Board of Directors, or the holders of at least 10% in aggregate principal
amount of the Securities then outstanding, shall have requested the Trustee
to call a meeting of Securityholders, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have mailed the notice of such meeting within 20 days after
receipt of such request, then the Company or such Securityholders may
determine the time and the place in said Borough of Manhattan for such
meeting and may call such meeting to take any action authorized in Section
8.01, by mailing notice thereof as provided in Section 8.02.
SECTION 8.04. Qualifications for Voting.
To be entitled to vote at any meeting of Securityholders a person
shall (a) be a holder of one or more Securities or (b) a person appointed by
an instrument in writing as proxy by a holder of one or more Securities. The
only persons who shall be entitled to be present or to speak at any meeting
of Securityholders shall be the persons entitled to vote at such meeting and
their counsel and any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 8.05. Regulations.
Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting
of Securityholders, in regard to proof of the holding of Securities and of
the appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates
and other evidence of the right to vote, and such other matters concerning
the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Securityholders as provided in Section 8.03, in which case the
Company or the Securityholders calling the meeting, as the case may be, shall
in like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by majority vote of the
meeting.
Subject to the provisions of Section 8.04, at any meeting each
holder of Securities or proxy therefor shall be entitled to one vote for each
$1,000 principal amount of Securities held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of
any Security challenged as not outstanding and ruled by the chairman of the
meeting to be not outstanding. The chairman of the meeting shall have no
right to vote other than by virtue of Securities held by him or instruments
in writing as aforesaid duly designating him as the person to vote on behalf
of other Securityholders. Any meeting of Securityholders duly called
pursuant to the provisions of Section 8.02 or 8.03 may be adjourned from time
to time by a majority of those present, whether or not constituting a quorum,
and the meeting may be held as so adjourned without further notice.
SECTION 8.06. Voting.
The vote upon any resolution submitted to any meeting of holders of
Securities shall be by written ballots on which shall be subscribed the
signatures of such holders or of their representatives by proxy and the
serial number or numbers of the Securities held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and
who shall make and file with the secretary of the meeting their verified
written reports in triplicate of all votes cast at the meeting. A record in
duplicate of the proceedings of each meeting of Securityholders shall be
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was mailed as provided in Section 8.02. The record shall show the
serial numbers of the Securities voting in favor of or against any
resolution. The record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one of the duplicates
shall be delivered to the Company and the other to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots
voted at the meeting.
Any record so signed and verified shall be conclusive evidence of
the matters therein stated.
ARTICLE IX
AMENDMENTS
SECTION 9.01. Without Consent of Securityholders.
The Company and the Trustee may from time to time and at any time
amend the Indenture, without the consent of the Securityholders, for one or
more of the following purposes:
(a) to evidence the succession of another corporation to the
Company, or successive successions, and the assumption by the
successor corporation of the covenants, agreements and
obligations of the Company pursuant to Article X hereof;
(b) to add to the covenants of the Company such further covenants,
restrictions or conditions for the protection of the
Securityholders as the Board of Directors and the Trustee
shall consider to be for the protection of the
Securityholders, and to make the occurrence, or the occurrence
and continuance, of a default in any of such additional
covenants, restrictions or conditions a default or an Event of
Default permitting the enforcement of all or any of the
remedies provided in this Indenture as herein set forth;
provided, however, that in respect of any such additional
-------- -------
covenant, restriction or condition such amendment may provide
for a particular period of grace after default (which period
may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement
upon such default or may limit the remedies available to the
Trustee upon such default;
(c) to provide for the issuance under this Indenture of Securities
in coupon form (including Securities registrable as to
principal only) and to provide for exchangeability of such
Securities with the Securities issued hereunder in fully
registered form and to make all appropriate changes for such
purpose;
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture
which may be defective or inconsistent with any other
provision contained herein or in any supplemental indenture,
or to make such other provisions in regard to matters or
questions arising under this Indenture; provided that any such
action shall not materially adversely affect the interests of
the holders of the Securities;
(e) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the
Securities;
(f) to make provision for transfer procedures, certification,
book-entry provisions and all other matters required pursuant
to Section 2.07 or otherwise necessary, desirable or
appropriate in connection with the issuance of Securities to
holders of Capital Securities in the event of a distribution
of Securities by the Trust following a Dissolution Event;
(g) to qualify or maintain qualification of this Indenture under
the Trust Indenture Act; or
(h) to make any change that does not adversely affect the rights
of any Securityholder in any material respect.
The Trustee is hereby authorized to join with the Company in the
execution of any supplemental indenture to effect such amendment, to make any
further appropriate agreements and stipulations which may be therein
contained and to accept the conveyance, transfer and assignment of any
property thereunder, but the Trustee shall not be obligated to, but may in
its discretion, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Any amendment to the Indenture authorized by the provisions of this
Section 9.01 may be executed by the Company and the Trustee without the
consent of the holders of any of the Securities at the time outstanding,
notwithstanding any of the provisions of Section 9.02.
SECTION 9.02. With Consent of Securityholders.
With the consent (evidenced as provided in Section 7.01) of the
holders of a majority in aggregate principal amount of the Securities at the
time outstanding, the Company, when authorized by a Board Resolution, and the
Trustee may from time to time and at any time amend the Indenture for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the
rights of the holders of the Securities; provided, however, that no such
-------- -------
amendment shall without the consent of the holders of each Security then
outstanding and affected thereby (i) extend the Maturity Date of any
Security, or reduce the rate or extend the time of payment of interest
thereon (except as contemplated by Article XVI), or reduce the principal
amount thereof, or reduce any amount payable on redemption thereof, or make
the principal thereof or any interest or premium thereon payable in any coin
or currency other than that provided in the Securities, or impair or affect
the right of any Securityholder to institute suit for payment thereof, or
(ii) reduce the aforesaid percentage of Securities the holders of which are
required to consent to any such amendment to the Indenture, provided,
--------
however, that if the Securities are held by the Trust, such amendment
- -------
shall not be effective until the holders of a majority in liquidation amount
of Trust Securities shall have consented to such amendment; provided,
--------
further, that if the consent of the holder of each outstanding Security
- -------
is required, such amendment shall not be effective until each holder of the
Trust Securities shall have consented to such amendment.
Upon the request of the Company accompanied by a copy of a
resolution of the Board of Directors certified by its Clerk or Assistant
Clerk authorizing the execution of any supplemental indenture effecting such
amendment, and upon the filing with the Trustee of evidence of the consent of
Securityholders as aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture
or otherwise, in which case the Trustee may in its discretion, but shall not
be obligated to, enter into such supplemental indenture. The Trustee may
receive an Opinion of Counsel as conclusive evidence that any supplemental
indenture executed pursuant to this Article is authorized or permitted by,
and conforms to, the terms of this Article and that it is proper for the
Trustee under the provisions of this Article to join in the execution
thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the
Trustee shall transmit by mail, first class postage prepaid, a notice,
prepared by the Company, setting forth in general terms the substance of such
supplemental indenture, to the Securityholders as their names and addresses
appear upon the Security Register. Any failure of the Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.
It shall not be necessary for the consent of the Securityholders
under this Section 9.02 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall
approve the substance thereof.
SECTION 9.03. Compliance with Trust Indenture Act; Effect of
Supplemental Indentures.
Any supplemental indenture executed pursuant to the provisions of
this Article IX shall comply with the Trust Indenture Act. Upon the
execution of any supplemental indenture pursuant to the provisions of this
Article IX, this Indenture shall be and be deemed to be modified and amended
in accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Company and the holders of Securities shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such
modifications and amendments and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 9.04. Notation on Securities.
Securities authenticated and delivered after the execution of any
supplemental indenture affecting such Securities pursuant to the provisions
of this Article IX may bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company or
the Trustee shall so determine, new Securities so modified as to conform, in
the opinion of the Trustee and the Board of Directors, to any modification of
this Indenture contained in any such supplemental indenture may be prepared
and executed by the Company, authenticated by the Trustee or the
Authenticating Agent and delivered in exchange for the Securities then
outstanding.
SECTION 9.05. Evidence of Compliance of Supplemental Indenture to
be Furnished Trustee.
The Trustee, subject to the provisions of Sections 6.01 and 6.02,
may receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant hereto complies
with the requirements of this Article IX.
ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 10.01. Company May Consolidate, etc., on Certain Terms.
Nothing contained in this Indenture or in any of the Securities
shall prevent any consolidation or merger of the Company with or into any
other Person (whether or not affiliated with the Company, as the case may
be), or successive consolidations or mergers in which the Company, as the
case may be, or its successor or successors shall be a party or parties, or
shall prevent any sale, conveyance, transfer or lease of the property of the
Company, as the case may be, or its successor or successors as an entirety,
or substantially as an entirety, to any other Person (whether or not
affiliated with the Company, as the case may be, or its successor or
successors) authorized to acquire and operate the same; provided, that
--------
(a) the Company is the surviving Person, or the Person formed by or surviving
any such consolidation or merger (if other than the Company) or to which such
sale, conveyance, transfer or lease of property is made is a Person organized
and existing under the laws of the United States or any State thereof or the
District of Columbia, and (b) upon any such consolidation, merger, sale,
conveyance, transfer or lease, the due and punctual payment of the principal
of (and premium, if any) and interest on the Securities according to their
tenor and the due and punctual performance and observance of all the
covenants and conditions of this Indenture to be kept or performed by the
Company shall be expressly assumed, by supplemental indenture (which shall
conform to the provisions of the Trust Indenture Act, as then in effect)
satisfactory in form to the Trustee executed and delivered to the Trustee by
the Person formed by such consolidation, or into which the Company, as the
case may be, shall have been merged, or by the Person which shall have
acquired such property, and (c) after giving effect to such consolidation,
merger, sale, conveyance, transfer or lease, no Default or Event of Default
shall have occurred and be continuing.
SECTION 10.02. Successor Corporation to be Substituted for Company.
In case of any such consolidation, merger, conveyance or transfer
and upon the assumption by the successor corporation, by supplemental
indenture, executed and delivered to the Trustee and satisfactory in form to
the Trustee, of the due and punctual payment of the principal of and premium,
if any, and interest on all of the Securities and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture to be performed or observed by the Company, such successor Person
shall succeed to and be substituted for the Company, with the same effect as
if it had been named herein as the party of the first part, and the Company
thereupon shall be relieved of any further liability or obligation hereunder
or upon the Securities. Such successor Person thereupon may cause to be
signed, and may issue either in its own name or in the name of BankBoston
Corporation, any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee or the Authenticating Agent; and, upon the order of such successor
Person instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee or the Authenticating
Agent shall authenticate and deliver any Securities which previously shall
have been signed and delivered by the officers of the Company to the Trustee
or the Authenticating Agent for authentication, and any Securities which such
successor Person thereafter shall cause to be signed and delivered to the
Trustee or the Authenticating Agent for that purpose. All the Securities so
issued shall in all respects have the same legal rank and benefit under this
Indenture as the Securities theretofore or thereafter issued in accordance
with the terms of this Indenture as though all of such Securities had been
issued at the date of the execution hereof.
SECTION 10.03. Opinion of Counsel to be Given Trustee.
The Trustee, subject to the provisions of Sections 6.01 and 6.02,
may receive an Opinion of Counsel as conclusive evidence that any
consolidation, merger, sale, conveyance, transfer or lease, and any
assumption, permitted or required by the terms of this Article X complies
with the provisions of this Article X.
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01. Discharge of Indenture.
When (a) the Company shall deliver to the Trustee for cancellation
all Securities theretofore authenticated (other than any Securities which
shall have been destroyed, lost or stolen and which shall have been replaced
or paid as provided in Section 2.08) and not theretofore cancelled, or (b)
all the Securities not theretofore cancelled or delivered to the Trustee for
cancellation shall have become due and payable, or are by their terms to
become due and payable within one year or are to be called for redemption
within one year under arrangements satisfactory to the Trustee for the giving
of notice of redemption, and the Company shall deposit with the Trustee, in
trust, funds sufficient to pay on the Maturity Date or upon redemption all of
the Securities (other than any Securities which shall have been destroyed,
lost or stolen and which shall have been replaced or paid as provided in
Section 2.08) not theretofore cancelled or delivered to the Trustee for
cancellation, including principal and premium, if any, and interest due or to
become due to the Maturity Date or redemption date, as the case may be, but
excluding, however, the amount of any moneys for the payment of principal of
or premium, if any, or interest on the Securities (1) theretofore repaid to
the Company in accordance with the provisions of Section 11.04, or (2) paid
to any State or to the District of Columbia pursuant to its unclaimed
property or similar laws, and if in either case the Company shall also pay or
cause to be paid all other sums payable hereunder by the Company, then this
Indenture shall cease to be of further effect except for the provisions of
Sections 2.02, 2.07, 2.08, 3.01, 3.02, 3.04, 6.06, 6.10 and 11.04 hereof
shall survive until such Securities shall mature and be paid. Thereafter,
Sections 6.10 and 11.04 shall survive, and the Trustee, on demand of the
Company accompanied by any Officers' Certificate and an Opinion of Counsel
and at the cost and expense of the Company, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture, the Company,
however, hereby agreeing to reimburse the Trustee for any costs or expenses
thereafter reasonably and properly incurred by the Trustee in connection with
this Indenture or the Securities.
SECTION 11.02. Deposited Moneys and U.S. Government Obligations to
be Held in Trust by Trustee.
Subject to the provisions of Section 11.04, all moneys and U.S.
Government Obligations deposited with the Trustee pursuant to Sections 11.01
or 11.05 shall be held in trust and applied by it to the payment, either
directly or through any paying agent (including the Company if acting as its
own paying agent), to the holders of the particular Securities for the
payment of which such moneys or U.S. Government Obligations have been
deposited with the Trustee, of all sums due and to become due thereon for
principal, premium, if any, and interest.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 11.05 or the principal and interest
received in respect thereof other than any such tax, fee or other charge
which by law is for the account of the holders of outstanding Securities.
SECTION 11.03. Paying Agent to Repay Moneys Held.
Upon the satisfaction and discharge of this Indenture all moneys
then held by any paying agent of the Securities (other than the Trustee)
shall, upon written demand of the Company, be repaid to it or paid to the
Trustee, and thereupon such paying agent shall be released from all further
liability with respect to such moneys.
SECTION 11.04. Return of Unclaimed Moneys.
Any moneys deposited with or paid to the Trustee or any paying
agent for payment of the principal of or premium, if any, or interest on
Securities and not applied but remaining unclaimed by the holders of
Securities for two years after the date upon which the principal of or
premium, if any, or interest on such Securities, as the case may be, shall
have become due and payable, shall be repaid to the Company by the Trustee or
such paying agent on written demand; and the holder of any of the Securities
shall thereafter look only to the Company for any payment which such holder
may be entitled to collect and all liability of the Trustee or such paying
agent with respect to such moneys shall thereupon cease.
SECTION 11.05. Defeasance Upon Deposit of Moneys or U.S. Government
Obligations.
The Company shall be deemed to have been Discharged (as defined
below) from its respective obligations with respect to the Securities on the
91st day after the applicable conditions set forth below have been satisfied
with respect to the Securities at any time after the applicable conditions
set forth below have been satisfied:
(1) The Company shall have deposited or caused to be deposited
irrevocably with the Trustee or the Defeasance Agent (as
defined below) as trust funds in trust, specifically pledged
as security for, and dedicated solely to, the benefit of the
holders of the Securities (i) money in an amount, or (ii) U.S.
Government Obligations which through the payment of interest
and principal in respect thereof in accordance with their
terms will provide, not later than one day before the due date
of any payment, money in an amount, or (iii) a combination of
(i) and (ii), sufficient, in the opinion (with respect to (ii)
and (iii)) of a nationally recognized firm of independent
public accountants expressed in a written certification
thereof delivered to the Trustee and the Defeasance Agent, if
any, to pay and discharge each installment of principal of and
interest and premium, if any, on the outstanding Securities on
the dates such installments of principal, interest or premium
are due;
(2) if the Securities are then listed on any national securities
exchange or interdealer quotation system, the Company shall
have delivered to the Trustee and the Defeasance Agent, if
any, an Opinion of Counsel to the effect that the exercise of
the option under this Section 11.05 would not cause such
Securities to be delisted from such exchange or interdealer
quotation system;
(3) no Default or Event of Default with respect to the Securities
shall have occurred and be continuing on the date of such
deposit; and
(4) the Company shall have delivered to the Trustee and the
Defeasance Agent, if any, an Opinion of Counsel to the effect
that holders of the Securities will not recognize income, gain
or loss for United States Federal income tax purposes as a
result of the exercise of the option under this Section 11.05
and will be subject to United States Federal income tax on the
same amount and in the same manner and at the same times as
would have been the case if such option had not been
exercised, and such opinion shall be accompanied by a private
letter ruling to that effect received from the United States
Internal Revenue Service or a revenue ruling pertaining to a
comparable form of transaction to that effect published by the
United States Internal Revenue Service.
"Discharged" means that the Company shall be deemed to have paid
and discharged the entire indebtedness represented by, and obligations under,
the Securities and to have satisfied all the obligations under this Indenture
relating to the Securities (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same), except (A) the
rights of holders of Securities to receive, from the trust fund described in
clause (1) above, payment of the principal of and the interest and premium,
if any, on the Securities when such payments are due; (B) the Company's
obligations with respect to the Securities under Sections 2.07, 2.08, 5.02
and 11.04; and (C) the rights, powers, trusts, duties and immunities of the
Trustee hereunder.
"Defeasance Agent" means another financial institution which is
eligible to act as Trustee hereunder and which assumes all of the obligations
of the Trustee necessary to enable the Trustee to act hereunder. In the
event such a Defeasance Agent is appointed pursuant to this Section, the
following conditions shall apply:
(1) The Trustee shall have approval rights over the document
appointing such Defeasance Agent and the document setting
forth such Defeasance Agent's rights and responsibilities;
(2) The Defeasance Agent shall provide verification to the Trustee
acknowledging receipt of sufficient money and/or U.S.
Government Obligations to meet the applicable conditions set
forth in this Section 11.05.
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. Indenture and Securities Solely Corporate
Obligations.
No recourse for the payment of the principal of or premium, if any,
or interest on any Security, or for any claim based thereon or otherwise in
respect thereof, and no recourse under or upon any obligation, covenant or
agreement of the Company in this Indenture, or in any Security, or because of
the creation of any indebtedness represented thereby, shall be had against
any incorporator, stockholder, officer or director, as such, past, present or
future, of the Company or of any successor Person to the Company, either
directly or through the Company or any successor Person to the Company,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released as
a condition of, and as a consideration for, the execution of this Indenture
and the issue of the Securities.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. Successors.
All the covenants, stipulations, promises and agreements in this
Indenture contained by the Company shall bind its successors and assigns
whether so expressed or not.
SECTION 13.02. Official Acts by Successor Corporation.
Any act or proceeding by any provision of this Indenture authorized
or required to be done or performed by any board, committee or officer of the
Company shall and may be done and performed with like force and effect by the
like board, committee or officer of any corporation that shall at the time be
the lawful sole successor of the Company.
SECTION 13.03. Surrender of Company Powers.
The Company by instrument in writing executed by authority of 2/3
(two-thirds) of its Board of Directors and delivered to the Trustee may
surrender any of the powers reserved to the Company, and thereupon such power
so surrendered shall terminate both as to the Company, as the case may be,
and as to any successor Person.
SECTION 13.04. Addresses for Notices, etc.
Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the holders
of Securities on the Company may be given or served by being deposited
postage prepaid by registered or certified mail in a post office letter box
addressed (until another address is filed by the Company with the Trustee for
the purpose) to the Company, 100 Federal Street, MA BOS 01-25-01, Boston,
Massachusetts 02110, Attention: General Counsel. Any notice, direction,
request or demand by any Securityholder to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes, if given or
made in writing at the office of the Trustee, addressed to the Trustee, 101
Barclay Street, 21 West, New York, New York 10286, Attention: Corporate
Trust Trustee Administration.
SECTION 13.05. Governing Law.
This Indenture and each Security shall be deemed to be a contract
made under the laws of the State of New York, and for all purposes shall be
governed by and construed in accordance with the laws of said State, without
regard to conflicts of laws principles thereof.
SECTION 13.06. Evidence of Compliance with Conditions Precedent.
Upon any application or demand by the Company to the Trustee to
take any action under any of the provisions of this Indenture, the Company
shall furnish to the Trustee an Officers' Certificate stating that in the
opinion of the signers all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture shall include (1) a statement that
the person making such certificate or opinion has read such covenant or
condition; (2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based; (3) a statement that, in the
opinion of such person, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and (4) a statement as to
whether or not, in the opinion of such person, such condition or covenant has
been complied with.
SECTION 13.07. Business Days.
Except as otherwise provided in Section 2.06(b), in any case where
the date of payment of principal of or premium, if any, or interest on the
Securities will not be a Business Day, the payment of such principal of or
premium, if any, or interest on the Securities need not be made on such date
but may be made on the next succeeding Business Day, with the same force and
effect as if made on the date of payment and no interest shall accrue for the
period from and after such date.
SECTION 13.08. Trust Indenture Act to Control.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with another provision included in this Indenture
which is required to be included in this Indenture by any of Sections 310 to
317, inclusive, of the Trust Indenture Act of 1939, such required provision
shall control.
SECTION 13.09. Table of Contents, Headings, etc.
The table of contents and the titles and headings of the articles
and sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
SECTION 13.10. Execution in Counterparts.
This 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.
SECTION 13.11. Separability.
In case any one or more of the provisions contained in this
Indenture or in the Securities 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 Indenture or
of the Securities, but this Indenture and the Securities shall be construed
as if such invalid or illegal or unenforceable provision had never been
contained herein or therein.
SECTION 13.12. Assignment.
The Company will have the right at all times to assign any of its
respective rights or obligations under this Indenture to a direct or indirect
wholly owned Subsidiary of the Company, provided that, in the event of any
--------
such assignment, the Company, as the case may be, will remain liable for all
such obligations. Subject to the foregoing, the Indenture is binding upon
and inures to the benefit of the parties thereto and their respective
successors and assigns. This Indenture may not otherwise be assigned by the
parties thereto.
SECTION 13.13. Acknowledgement of Rights.
The Company acknowledges that, with respect to any Securities held
by the Trust or a trustee of such trust, if the Property Trustee of such
Trust fails to enforce its rights under this Indenture as the holder of the
Securities held as the assets of the Trust any holder of Capital Securities
may institute legal proceedings directly against the Company to enforce such
Property Trustee's rights under this Indenture without first instituting any
legal proceedings against such Property Trustee or any other person or
entity. Notwithstanding the foregoing, if an Event of Default has occurred
and is continuing and such event is attributable to the failure of the
Company to pay principal of or premium, if any, or interest on the Securities
when due, the Company acknowledges that a holder of Capital Securities may
directly institute a proceeding for enforcement of payment to such holder of
the principal of or premium, if any, or interest on the Securities having a
principal amount equal to the aggregate liquidation amount of the Capital
Securities of such holder on or after the respective due date specified in
the Securities.
ARTICLE XIV
REDEMPTION OF SECURITIES --
MANDATORY AND OPTIONAL SINKING FUND
SECTION 14.01. Special Event Redemption.
If a Special Event has occurred and is continuing then,
notwithstanding Section 14.02(a) but subject to Section 14.02(c), the Company
shall have the right, upon (i) not less than 45 days written notice to the
Trustee and (ii) not less than 30 days nor more than 60 days written notice
to the Securityholders, to redeem the Securities, in whole (but not in part),
within 90 days following the occurrence of such Special Event at the (Special
Event) Redemption Price. (Following a Special Event, the Company shall take
such action as is necessary to promptly determine the Special Event Redemp-
tion Price, including without limitation the appointment by the Company of a
Quotation Agent.) The (Special Event) Redemption Price shall be paid prior
to 12:00 noon, New York time, on the date of such redemption or such earlier
time as the Company determines, provided that the Company shall deposit with
--------
the Trustee an amount sufficient to pay the (Special Event) Redemption Price
by 10:00 a.m., New York time, on the date such (Special Event) Redemption
Price is to be paid.)
SECTION 14.02. Optional Redemption by Company.
(a) (Subject to the provisions of this Article XIV, the Company
shall have the right to redeem the Securities, in whole or in part, from time
to time, on or after , ____, at the Redemption Price.) (Subject to the
provisions of this Article XIV, the Company shall have the right to redeem
the Securities, in whole or in part, from time to time, on or after
, ____, at the optional redemption prices set forth below (ex-
pressed as percentages of principal) plus accrued and unpaid interest thereon
(including Additional Interest and Compounded Interest, if any) to the appli-
cable date of redemption (the "Optional Redemption Price") if redeemed during
the 12-month period beginning ( ) of the years indicated below.
Year Percentage
---- -----------
If the Securities are only partially redeemed pursuant to this Section
14.02, the Securities will be redeemed pro rata or by lot or by any other
--- ----
method utilized by the Trustee; provided, that if at the time of redemption
--------
the Securities are registered as a Global Security, the Depositary shall
determine, in accordance with its procedures, the principal amount of such
Securities held by each holder of a Security to be redeemed. The (Optional)
Redemption Price shall be paid prior to 12:00 noon, New York time, on the
date of such redemption or such earlier time as the Company determines,
provided that the Company shall deposit with the Trustee an amount
- --------
sufficient to pay the (Optional) Redemption Price by 10:00 a.m., New York
time, on the date such (Optional) Redemption Price is to be paid.
(b) Notwithstanding the first sentence of Section 14.02, upon the
entry of an order for dissolution of the Trust by a court of competent
jurisdiction, the Securities thereafter will be subject to option redemption,
in whole only, but not in part, on or after ( ), at the (Optional)
Redemption Price and otherwise in accordance with this Article XIV.
(c) Any redemption of Securities pursuant to Section 14.01 or
Section 14.02 shall be subject to the Company obtaining the prior approval of
the Federal Reserve, if such approval is then required under applicable
capital guidelines or policies of the Federal Reserve.
SECTION 14.03. No Sinking Fund.
The Securities are not entitled to the benefit of any sinking fund.
SECTION 14.04. Notice of Redemption; Selection of Securities.
In case the Company shall desire to exercise the right to redeem
all, or, as the case may be, any part of the Securities in accordance with
their terms, it shall fix a date for redemption and shall mail a notice of
such redemption at least 30 and not more than 60 days prior to the date fixed
for redemption to the holders of Securities so to be redeemed as a whole or
in part at their last addresses as the same appear on the Security Register.
Such mailing shall be by first class mail. The notice if mailed in the
manner herein provided shall be conclusively presumed to have been duly
given, whether or not the holder receives such notice. In any case, failure
to give such notice by mail or any defect in the notice to the holder of any
Security designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Security.
Each such notice of redemption shall specify the CUSIP number of
the Securities to be redeemed, the date fixed for redemption, the redemption
price at which the Securities are to be redeemed (or the method by which such
redemption price is to be calculated), the place or places of payment that
payment will be made upon presentation and surrender of the Securities, that
interest accrued to the date fixed for redemption will be paid as specified
in said notice, and that on and after said date interest thereon or on the
portions thereof to be redeemed will cease to accrue. If less than all the
Securities are to be redeemed the notice of redemption shall specify the
numbers of the Securities to be redeemed. In case any Security is to be
redeemed in part only, the notice of redemption shall state the portion of
the principal amount thereof to be redeemed and shall state that on and after
the date fixed for redemption, upon surrender of such Security, a new
Security or Securities in principal amount equal to the unredeemed portion
thereof will be issued.
On or prior to the redemption date specified in the notice of
redemption given as provided in this Section, the Company will deposit with
the Trustee or with one or more paying agents an amount of money sufficient
to redeem on the redemption date all the Securities so called for redemption
at the appropriate Redemption Price, together with accrued interest to the
date fixed for redemption.
The Company will give the Trustee notice not less than 45 days
prior to the redemption date as to the aggregate principal amount of
Securities to be redeemed and the Trustee shall select, in such manner as in
its sole discretion it shall deem appropriate and fair, the Securities or
portions thereof (in integral multiples of $1,000, except as otherwise set
forth in the applicable form of Security) to be redeemed.
SECTION 14.05. Payment of Securities Called for Redemption.
If notice of redemption has been given as provided in Section
14.04, the Securities or portions of Securities with respect to which such
notice has been given shall become due and payable on the date and at the
place or places stated in such notice at the applicable Redemption Price,
together with interest accrued to the date fixed for redemption (subject to
the rights of holders of Securities on the close of business on a regular
record date in respect of an Interest Payment Date occurring on or prior to
the redemption date), and on and after said date (unless the Company shall
default in the payment of such Securities at the Redemption Price, together
with interest accrued to said date) interest on the Securities or portions of
Securities so called for redemption shall cease to accrue. On presentation
and surrender of such Securities at a place of payment specified in said
notice, the said Securities or the specified portions thereof shall be paid
and redeemed by the Company at the applicable Redemption Price, together with
interest accrued thereon to the date fixed for redemption (subject to the
rights of holders of Securities on the close of business on a regular record
date in respect of an Interest Payment Date occurring on or prior to the
redemption date).
Upon presentation of any Security redeemed in part only, the
Company shall execute and the Trustee shall authenticate and make available
for delivery to the holder thereof, at the expense of the Company, a new
Security or Securities of authorized denominations, in principal amount equal
to the unredeemed portion of the Security so presented.
ARTICLE XV
SUBORDINATION OF SECURITIES
SECTION 15.01. Agreement to Subordinate.
The Company covenants and agrees, and each holder of Securities
issued hereunder likewise covenants and agrees, that the Securities shall be
issued subject to the provisions of this Article XV; and each holder of a
Security, whether upon original issue or upon transfer or assignment thereof,
accepts and agrees to be bound by such provisions.
The payment by the Company of the principal of and premium, if any,
and interest on all Securities issued hereunder shall, to the extent and in
the manner hereinafter set forth, be subordinated and junior in right of
payment to the prior payment in full of all Allocable Amounts with respect to
Senior Indebtedness, whether outstanding at the date of this Indenture or
thereafter incurred.
No provision of this Article XV shall prevent the occurrence of any
Default or Event of Default hereunder.
SECTION 15.02. Default on Senior Indebtedness.
In the event and during the continuation of any default by the
Company in the payment of principal, premium, interest or any other payment
due on any Senior Indebtedness, or in the event that the maturity of any
Senior Indebtedness has been accelerated because of a default, then, in
either case, no payment shall be made by the Company with respect to the
principal (including redemption payments) of or premium, if any, or interest
on the Securities.
In the event of the acceleration of the maturity of the Securities,
then no payment shall be made by the Company with respect to the principal
(including redemption payments) of or premium, if any, or interest on the
Securities until the holders of all Senior Indebtedness outstanding at the
time of such acceleration shall receive payment in full of all Allocable
Amounts due in respect of such Senior Indebtedness (including any amounts due
upon acceleration).
In the event that, notwithstanding the foregoing, any payment shall
be received by the Trustee when such payment is prohibited by the preceding
paragraph of this Section 15.02, such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of Senior
Indebtedness or their respective representatives, or to the trustee or
trustees under any indenture pursuant to which any of such Senior
Indebtedness may have been issued, as their respective interests may appear,
but only to the extent of the Allocable Amounts in respect of such Senior
Indebtedness and only to the extent that the holders of the Senior
Indebtedness (or their representative or representatives or a trustee) notify
the Trustee in writing, within 90 days of such payment, of the Allocable
Amounts then due and owing on such Senior Indebtedness and only the Allocable
Amounts specified in such notice to the Trustee shall be paid to the holders
of such Senior Indebtedness.
SECTION 15.03. Liquidation; Dissolution; Bankruptcy.
Upon any payment by the Company or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
creditors upon any dissolution or winding-up or liquidation or reorganization
of the Company, whether voluntary or involuntary or in bankruptcy,
insolvency, receivership or other proceedings, all Allocable Amounts due upon
all Senior Indebtedness of the Company shall first be paid in full, or
payment thereof provided for in money in accordance with its terms, before
any payment is made by the Company on account of the principal (and premium,
if any) or interest on the Securities; and upon any such dissolution or
winding-up or liquidation or reorganization, any payment by the Company, or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, to which the Securityholders or the Trustee
would be entitled to receive from the Company, except for the provisions of
this Article XV, shall be paid by the Company or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other Person making such payment or
distribution, or by the Securityholders or by the Trustee under the Indenture
if received by them or it, directly to the holders of Senior Indebtedness of
the Company (pro rata to such holders on the basis of the respective
--- ----
Allocable Amounts of Senior Indebtedness held by such holders, as calculated
by the Company) or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any instruments
evidencing such Senior Indebtedness may have been issued, as their
respective interests may appear, to the extent necessary to pay all
Allocable Amounts in respect of such Senior Indebtedness in full, in money
or money's worth, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Indebtedness, before any
payment or distribution is made to the Securityholders or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, prohibited by the foregoing, shall be received
by the Trustee before all Allocable Amounts in respect of Senior Indebtedness
is paid in full, or provision is made for such payment in money in accordance
with its terms, such payment or distribution shall be held in trust for the
benefit of and shall be paid over or delivered to the holders of such Senior
Indebtedness or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing
such Senior Indebtedness may have been issued, and their respective interests
may appear, as calculated by the Company, for application to the payment of
all Senior Indebtedness remaining unpaid to the extent necessary to pay all
Allocable Amounts in respect of such Senior Indebtedness in full in money in
accordance with its terms, after giving effect to any concurrent payment or
distribution to or for the benefit of the holders of such Senior
Indebtedness.
For purposes of this Article XV, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this
Article XV with respect to the Securities to the payment of Senior
Indebtedness that may at the time be outstanding, provided that (i) such
Senior Indebtedness is assumed by the new corporation, if any, resulting from
any such reorganization or readjustment, and (ii) the rights of the holders
of such Senior Indebtedness are not, without the consent of such holders,
altered by such reorganization or readjustment. The consolidation of the
Company with, or the merger of the Company into, another Person or the
liquidation or dissolution of the Company following the sale, conveyance,
transfer or lease of its property as an entirety, or substantially as an
entirety, to another Person upon the terms and conditions provided for in
Article X of this Indenture shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section 15.03 if such
other Person shall, as a part of such consolidation, merger, sale,
conveyance, transfer or lease, comply with the conditions stated in Article X
of this Indenture. Nothing in Section 15.02 or in this Section 15.03 shall
apply to claims of, or payments to, the Trustee under or pursuant to Section
6.05 of this Indenture.
SECTION 15.04. Subrogation.
Subject to the payment in full of all Allocable Amounts in respect
of Senior Indebtedness, the rights of the Securityholders shall be subrogated
to the rights of the holders of such Senior Indebtedness to receive payments
or distributions of cash, property or securities of the Company, as the case
may be, applicable to such Senior Indebtedness until the principal of (and
premium, if any) and interest on the Securities shall be paid in full; and,
for the purposes of such subrogation, no payments or distributions to the
holders of such Senior Indebtedness of any cash, property or securities to
which the Securityholders or the Trustee would be entitled except for the
provisions of this Article XV, and no payment over pursuant to the provisions
of this Article XV to or for the benefit of the holders of such Senior
Indebtedness by Securityholders or the Trustee, shall, as between the
Company, its creditors other than holders of Senior Indebtedness of the
Company, and the holders of the Securities, be deemed to be a payment by the
Company to or on account of such Senior Indebtedness. It is understood that
the provisions of this Article XV are and are intended solely for the
purposes of defining the relative rights of the holders of the Securities, on
the one hand, and the holders of such Senior Indebtedness on the other hand.
Nothing contained in this Article XV or elsewhere in this Indenture
or in the Securities is intended to or shall impair, as between the Company,
its creditors other than the holders of Senior Indebtedness of the Company,
and the holders of the Securities, the obligation of the Company, which is
absolute and unconditional, to pay to the holders of the Securities the
principal of (and premium, if any) and interest on the Securities as and when
the same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the holders of the
Securities and creditors of the Company, as the case may be, other than the
holders of Senior Indebtedness of the Company, as the case may be, nor shall
anything herein or therein prevent the Trustee or the holder of any Security
from exercising all remedies otherwise permitted by applicable law upon
default under the Indenture, subject to the rights, if any, under this
Article XV of the holders of such Senior Indebtedness in respect of cash,
property or securities of the Company, as the case may be, received upon the
exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred
to in this Article XV, the Trustee, subject to the provisions of Article VI
of this Indenture, and the Securityholders shall be entitled to conclusively
rely upon any order or decree made by any court of competent jurisdiction in
which such dissolution, winding-up, liquidation or reorganization proceedings
are pending, or a certificate of the receiver, trustee in bankruptcy,
liquidation trustee, agent or other Person making such payment or
distribution, delivered to the Trustee or to the Securityholders, for the
purposes of ascertaining the Persons entitled to participate in such
distribution, the holders of Senior Indebtedness and other indebtedness of
the Company, as the case may be, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article XV.
SECTION 15.05. Trustee to Effectuate Subordination.
Each Securityholder by such Securityholder's acceptance thereof
authorizes and directs the Trustee on such Securityholder's behalf to take
such action as may be necessary or appropriate to effectuate the
subordination provided in this Article XV and appoints the Trustee such
Securityholder's attorney-in-fact for any and all such purposes.
SECTION 15.06. Notice by the Company.
The Company shall give prompt written notice to a Responsible
Officer of the Trustee of any fact known to the Company that would prohibit
the making of any payment of moneys to or by the Trustee in respect of the
Securities pursuant to the provisions of this Article XV. Notwithstanding
the provisions of this Article XV or any other provision of this Indenture,
the Trustee shall not be charged with knowledge of the existence of any facts
that would prohibit the making of any payment of moneys to or by the Trustee
in respect of the Securities pursuant to the provisions of this Article XV,
unless and until a Responsible Officer of the Trustee shall have received
written notice thereof from the Company or a holder or holders of Senior
Indebtedness or from any trustee therefor; and before the receipt of any such
written notice, the Trustee, subject to the provisions of Article VI of this
Indenture, shall be entitled in all respects to assume that no such facts
exist; provided, however, that if the Trustee shall not have received the
-------- -------
notice provided for in this Section 15.06 at least two Business Days prior
to the date upon which by the terms hereof any money may become payable for
any purpose (including, without limitation, the payment of the principal of
(or premium, if any) or interest on any Security), then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power
and authority to receive such money and to apply the same to the purposes
for which they were received, and shall not be affected by any notice to the
contrary that may be received by it within two Business Days prior to such
date.
The Trustee, subject to the provisions of Article VI of this
Indenture, shall be entitled to conclusively rely on the delivery to it of a
written notice by a Person representing himself to be a holder of Senior
Indebtedness of the Company, as the case may be (or a trustee on behalf of
such holder), to establish that such notice has been given by a holder of
such Senior Indebtedness or a trustee on behalf of any such holder or
holders. In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
such Senior Indebtedness to participate in any payment or distribution
pursuant to this Article XV, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
such Senior Indebtedness held by such Person, the extent to which such Person
is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such Person under this Article XV, and, if
such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to
receive such payment.
Upon any payment or distribution of assets of the Company referred
to in this Article XV, the Trustee and the Securityholders shall be entitled
to rely upon any order or decree entered by any court of competent
jurisdiction in which such insolvency, bankruptcy, receivership, liquidation,
reorganization, dissolution, winding-up or similar case or proceeding is
pending, or a certificate of the trustee in bankruptcy, liquidating trustee,
custodian, receiver, assignee for the benefit of creditors, agent or other
person making such payment or distribution, delivered to the Trustee or to
the Securityholders, for the purpose of ascertaining the persons entitled to
participate in such payment or distribution, the holders of Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article XV.
SECTION 15.07. Rights of the Trustee; Holders of Senior
Indebtedness.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article XV in respect of any Senior Indebtedness at
any time held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any
of its rights as such holder.
With respect to the holders of Senior Indebtedness of the Company,
the Trustee undertakes to perform or to observe only such of its covenants
and obligations as are specifically set forth in this Article XV, and no
implied covenants or obligations with respect to the holders of such Senior
Indebtedness shall be read into this Indenture against the Trustee. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of such
Senior Indebtedness and, subject to the provisions of Article VI of this
Indenture, the Trustee shall not be liable to any holder of such Senior
Indebtedness if it shall pay over or deliver to Securityholders, the Company
or any other Person money or assets to which any holder of such Senior
Indebtedness shall be entitled by virtue of this Article XV or otherwise.
Nothing in this Article XV shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 6.06.
SECTION 15.08. Subordination May Not Be Impaired.
No right of any present or future holder of any Senior Indebtedness
of the Company to enforce subordination as herein provided shall at any time
in any way be prejudiced or impaired by any act or failure to act on the part
of the Company, as the case may be, or by any act or failure to act, in good
faith, by any such holder, or by any noncompliance by the Company, as the
case may be, with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof that any such holder may have or
otherwise be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness of the Company may, at any time
and from time to time, without the consent of or notice to the Trustee or the
Securityholders, without incurring responsibility to the Securityholders and
without impairing or releasing the subordination provided in this Article XV
or the obligations hereunder of the holders of the Securities to the holders
of such Senior Indebtedness, do any one or more of the following: (i) change
the manner, place or terms of payment or extend the time of payment of, or
renew or alter, such Senior Indebtedness, or otherwise amend or supplement in
any manner such Senior Indebtedness or any instrument evidencing the same or
any agreement under which such Senior Indebtedness is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing such Senior Indebtedness; (iii) release any Person liable
in any manner for the collection of such Senior Indebtedness; and (iv)
exercise or refrain from exercising any rights against the Company, as the
case may be, and any other Person.
ARTICLE XVI
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 16.01. Extension of Interest Payment Period.
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 Securities, to defer payments of interest by extending the
interest payment period of such Securities for a period not exceeding
( ) consecutive ( ) periods, including the first such
( ) period during such extension period (the "Extended Interest Payment
Period"), during which Extended Interest Payment Period no interest shall be
due and payable; provided that no Extended Interest Payment Period may 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 16.01, will bear
interest thereon at the (Coupon)(Interest) Rate then in effect compounded
( ) for each ( ) period of the Extended Interest Payment Period
("Compounded Interest"). At the end of the Extended Interest Payment
Period, the Company shall pay all interest accrued and unpaid on the
Securities, including any Additional Interest and Compounded Interest
(together, "Deferred Interest") that shall be payable to the holders of the
Securities in whose names the Securities are registered in the Security
Register on the record date immediately preceding the end of the Extended
Interest Payment Period. Before the termination of any Extended Interest
Payment Period, the Company may further defer payments of interest by
further extending such period, provided that such period, together with
--------
all such previous and further extensions within such Extended Interest
Payment Period, shall not exceed ( ) consecutive ( ) periods, including
the first such ( ) period during such Extended Interest Payment Period, or
extend beyond the Maturity Date of the Securities. Upon the termination of
any Extended Interest Payment Period and the payment of all Deferred Interest
then due, the Company may commence a new Extended Interest Payment Period,
subject to the foregoing requirements. No interest shall be due and payable
during an Extended Interest Payment Period, except at the end thereof, but
the Company may prepay at any time all or any portion of the interest accrued
during an Extended Interest Payment Period. Compounded Interest shall be
treated as interest for all purposes under this Indenture.
SECTION 16.02. Notice of Extension.
(a) If the Property Trustee is the only registered holder of the
Securities at the time the Company selects an Extended Interest Payment
Period, the Company shall give written notice to the Administrative Trustees,
the Property Trustee and the Trustee of its selection of such Extended
Interest Payment Period five Business Days 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 any national
securities exchange or interdealer quotation system or to holders of the
Capital Securities issued by the Trust, but in any event at least five
Business Days before such record date.
(b) If the Property Trustee is not the only holder of the
Securities at the time the Company selects an Extended Interest Payment
Period, the Company shall give the holders of the Securities and the Trustee
written notice of its selection of such Extended Interest Payment 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 national securities
exchange or interdealer quotation system.
(c) The ( ) period in which any notice is given pursuant to
paragraphs (a) or (b) of this Section 16.02 shall be counted as one of the
( ) ( ) periods permitted in the maximum Extended Interest Payment Period
permitted under Section 16.01.
The Bank of New York hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions hereinabove set forth.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed by their respective officers thereunto duly authorized,
as of the day and year first above written.
BANKBOSTON CORPORATION
By:
-------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By:
----------------------------
Name:
Title:
(Indenture)
EXHIBIT A
---------
(FORM OF FACE OF SECURITY)
(IF THE SECURITY IS A GLOBAL SECURITY, INSERT: - THIS SECURITY IS
A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY ("DTC") OR A
NOMINEE OF DTC. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN
THE NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY
(OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY DTC TO A NOMINEE OF DTC
OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC) MAY BE REGISTERED
EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS
MUCH AS SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.)
No. CUSIP No. ____________
BANKBOSTON CORPORATION
( %) (FLOATING RATE) JUNIOR SUBORDINATED
DEFERRABLE INTEREST DEBENTURE
DUE ( )
BankBoston Corporation, a Massachusetts corporation (the "Company",
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to The Bank of New
York, as Property Trustee for BankBoston Capital Trust (IV) (V), or
registered assigns, the principal sum of _____________ Dollars on ( )
(the "Maturity Date"), unless previously redeemed, and to pay interest on the
outstanding principal amount hereof from , ____, or from the most
recent interest payment date to which interest has been paid or duly provided
for, ( ) (subject to deferral as set forth herein) in arrears on
( ) of each year, commencing , ____ (each, an "Interest
Payment Date"), at the (rate of ( )% per annum (the "Interest Rate"))
(Interest Rate (as defined in the Indenture (as defined below))) 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 ( ) from the relevant Interest Payment Date.
Interest payable on each Interest Payment Date shall include interest accrued
from and including the immediately preceding Interest Payment Date (or, if no
interest has been paid or duly provided for, , ____) to but excluding
such Interest Payment Date (each, an "Interest Period"). If an Interest
Payment Date is not a Business Day, then (such Interest Payment Date and the
first day of the Interest Period commencing on such Interest Payment Date
shall be postponed to the next succeeding Business Day, except if such
Business Day is in the next succeeding calendar month, such Interest Payment
Date and the first day of such Interest Period will be the immediately
preceding Business Day. If the Maturity Date or any date fixed for
redemption falls on a day that is not a Business Day,) payment of the
interest payable on such date will be made on the next succeeding day that is
a Business Day (with the same force and effect as if made on such date) and
no interest or other payment will accrue from and after such date. The
amount of interest (payable for any Interest Period) shall be computed on the
basis of the (a 360-day year consisting of twelve 30-day months) (the actual
number of days elapsed in such Interest Period and a year of 360 days).
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 Security (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 ( ) prior to the applicable Interest
Payment Date. Any such interest installment not punctually paid or duly
provided for shall forthwith cease to be payable to the holders on such
regular record date and may be paid to the Person in whose name this Security
(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 holders of
Securities 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 or interdealer quotation system on
which the Securities may be listed, and upon such notice as may be required
by such exchange or interdealer quotation system, all as more fully provided
in the Indenture.
The principal of (and premium, if any) and interest on this
Security shall be payable at the office or agency of the Trustee maintained
for that purpose in any coin or currency of the 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 (i) check mailed to the holder at such address as shall
appear in the Security Register or (ii) transfer to an account maintained by
the Person entitled thereto, provided that proper written transfer
instructions have been received by the relevant record date.
Notwithstanding the foregoing, so long as the Holder of this Security is the
Property Trustee, the payment of the principal of (and premium, if any) and
interest on this Security will be made at such place and to such account as
may be designated by the Property Trustee.
The indebtedness evidenced by this Security is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Allocable Amounts in respect of Senior
Indebtedness, and this Security is issued subject to the provisions of the
Indenture with respect thereto. Each holder of this Security, 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,
whether now outstanding or hereafter incurred, and waives reliance by each
such holder upon said provisions.
This Security shall not be entitled to any benefit under the
Indenture hereinafter referred to, 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 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.
The provisions of this Security are continued on the reverse side
hereof and such 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.
BANKBOSTON CORPORATION
By:
----------------------------
Name:
Title:
Attest:
By:
-----------------------
Name:
Title:
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Indenture.
Dated ______________
THE BANK OF NEW YORK,
as Trustee
By:
----------------------
Authorized Signatory
(FORM OF REVERSE OF SECURITY)
This Security is one of the Securities of the Company (herein
sometimes referred to as the "Securities"), specified in the Indenture, all
issued or to be issued under and pursuant to an Indenture, dated as of
, ____ (the "Indenture"), duly executed and delivered between the Company
and The Bank of New York, as Trustee (the "Trustee"), to which Indenture
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.
(Upon the occurrence and continuation of a Special Event, the
Company shall have the right to redeem this Security in whole (but not in
part) at the Redemption Price. "Redemption Price" shall mean an amount in
cash equal to 100% of the principal amount of this Security plus any accrued
and unpaid interest thereon, including Compounded Interest and Additional
Interest, if any, to the date of such redemption.) (Upon the occurrence and
continuation of a Special Event, the Company shall have the right to redeem
this Security in whole (but not in part) at the Special Event Redemption
Price. "Special Event Redemption Price" shall mean, with respect to any
redemption of this Security following a Special Event, an amount in cash
equal to the greater of (i) 100% of the principal amount hereof or (ii) the
sum, as determined by a Quotation Agent, of the present values of the
remaining scheduled payments of principal and interest thereon discounted to
the redemption date on a ( ) basis (assuming a 360-day year
consisting of twelve 30-day months) at the Adjusted Treasury Rate, plus, in
each case, any accrued and unpaid interest thereon, including Compounded
Interest and Additional Interest, if any, to the date of such redemption.)
(In addition, the Company shall have the right to redeem this
Security, in whole or in part, at any time on or after , ____ (an
"Optional Redemption"), at the Redemption Price.) (In addition, the Company
shall have the right to redeem this Security, in whole or in part, at any
time on or after , ____ (an "Optional Redemption"), at the Optional
Redemption Price as set forth below (expressed as percentages of principal to
be redeemed) plus accrued and unpaid interest thereon (including Additional
Interest and Compounded Interest, if any) to the applicable date of redemp-
tion if redeemed during the 12-month period beginning ( ) of the
years indicated below.
Year Percentage
---- -----------
The (Redemption Price) (Optional Redemption Price or the Special
Event Redemption Price, as the context requires,) shall be paid prior to
12:00 noon, New York time, on the date of such redemption or at such earlier
time as the Company determines, provided, that the Company shall deposit with
--------
the Trustee an amount sufficient to pay the (Redemption Price) (Optional
Redemption Price or the Special Event Price, as the context requires,) by
10:00 a.m., New York City time, on the date such Redemption Price is to be
paid. Any redemption pursuant to this paragraph will be made upon not less
than 30 days nor more than 60 days notice. If the Securities are only
partially redeemed by the Company pursuant to an Optional Redemption, the
Securities will be redeemed pro rata or by lot or by any other method
--- ----
utilized by the Trustee; provided that if, at the time of redemption, the
--------
Securities are registered as a Global Security, the Depositary shall
determine the particular Securities to be redeemed in accordance with its
procedures.
In the event of redemption of this Security in part only, a new
Security or Securities for the unredeemed portion hereof will be issued in
the name of the holder hereof upon the cancellation hereof.
Notwithstanding the foregoing, any redemption of Securities by the
Company shall be subject to the prior approval of the Board of Governors of
the Federal Reserve System (the "Federal Reserve"), if such approval is then
required under capital 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 Securities 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 a majority in aggregate principal
amount of the Securities at the time outstanding, as defined in the
Indenture, 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 modifying in any manner the rights of the holders of
the Securities; provided, however, that no such supplemental indenture shall,
-------- -------
without the consent of each holder of Securities then outstanding and
affected thereby, (i) extend the Maturity Date of any Securities, or reduce
the principal amount thereof, or reduce any amount payable on redemption
thereof, or reduce the rate (or the manner of calculation of the rate) or
extend the time of payment of interest thereon (subject to Article XVI of the
Indenture), or make the principal of, or interest or premium on, the
Securities payable in any coin or currency other than U.S. dollars, or impair
or affect the right of any holder of Securities to institute suit for the
payment thereof, or (ii) reduce the aforesaid percentage of Securities, the
holders of which are required to consent to any such supplemental indenture.
The Indenture also contains provisions permitting the holders of a majority
in aggregate principal amount of the Securities at the time outstanding
affected thereby, on behalf of all of the holders of the Securities, to waive
any past default in the performance of any of the covenants contained in the
Indenture, or established pursuant to the Indenture, and its consequences,
except a default in the payment of the principal of or premium, if any, or
interest on any of the Securities or a default in respect of any covenant or
provision under which the Indenture cannot be modified or amended without the
consent of each holder of Securities then outstanding. Any such consent or
waiver by the holder of this Security (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all
future holders and owners of this Security and of any Security issued in
exchange heretofore 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 Security.
No reference herein to the Indenture and no provision of this
Security 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 Security 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 Securities, to defer payments of interest by extending the
interest payment period of such Securities for a period not exceeding ( )
consecutive ( ) periods, including the first such ( ) period
during such extension period (an "Extended Interest Payment 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 Extended Interest Payment Period may extend beyond the Maturity Date.
- ----
Before the termination of any such Extended Interest Payment Period, the
Company may further defer payments of interest by further extending such
Extended Interest Payment Period, provided that such Extended Interest
--------
Payment Period, together with all such previous and further extensions
within such Extended Interest Payment Period, shall not exceed ( )
consecutive ( ) periods, including the first ( ) period during
such Extended Interest Payment Period, or extend beyond the Maturity Date of
the Securities. Upon the termination of any such Extended Interest Payment
Period and the payment of all accrued and unpaid interest and any additional
amounts then due, the Company may commence a new Extended Interest Payment
Period, subject to the foregoing requirements.
The Company has agreed that it will not (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
(which includes common and preferred stock) or (ii) make any payment of
principal, interest or premium, if any, on or repay or repurchase or redeem
any debt securities of the Company that rank pari passu with or junior in
right of payment to the Securities or (iii) make any guarantee payments with
respect to any guarantee by the Company of the debt securities or any
Subsidiary of the Company if such guarantee ranks pari passu or junior in
right of payment to the Securities (other than (a) dividends or distributions
in shares of, or options, warrants or rights to subscribe for or purchase
shares of, Common Stock of the Company, (b) any declaration of a dividend in
connection with the implementation of a stockholder's rights plan, or the
issuance of stock under any such plan in the future, or the redemption or
repurchase of any such rights pursuant thereto, (c) payments under the
Capital Securities Guarantee, (d) as a result of a reclassification of the
Company's capital stock or the exchange or the conversion of one class or
series of the Company's capital stock for another class or series of the
Company's capital stock, (e) the purchase of fractional interests in shares
of the Company's capital stock pursuant to the exchange or conversion of such
capital stock or the security being exchanged or converted and (f) purchases
of Common Stock related to the issuance of Common Stock or rights under any
of the Company's benefit plans for its directors, officers or employees or
any of the Company's dividend reinvestment plans) if at such time (i) there
shall have occurred any event of which the Company has actual knowledge that
(a) is, or with the giving of notice or the lapse of time, or both, would be,
an Event of Default and (b) in respect of which the Company shall not have
taken reasonable steps to cure, (ii) if such Securities are held by the
Trust, the Company shall be in default with respect to its payment of any
obligations under the Capital Securities Guarantee or (iii) the Company shall
have given notice of its election of the exercise of its right to extend the
interest payment period and any such extension shall be continuing.
Subject to the prior approval of the Federal Reserve if such
approval is then required under capital guidelines or policies of the Federal
Reserve, the Company will have the right at any time to liquidate the Trust
and cause the Securities to be distributed to the holders of the Trust
Securities in liquidation of the Trust.
The Securities are issuable only in registered form without coupons
in denominations of $_____ and any integral multiple thereof. As provided in
the Indenture and subject to certain limitations herein and therein set
forth, this Security is transferable by the holder hereof on the Security
Register of the Company, upon surrender of this Security for registration of
transfer at the office or agency of the Trustee in the City and State of New
York accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company or the Trustee duly executed by the holder hereof
or his attorney duly authorized in writing, and thereupon one or more new
Securities 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
Security, the Company, the Trustee, any paying agent and the registrar may
deem and treat the holder hereof as the absolute owner hereof (whether or not
this Security 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 interest due hereon and for all other purposes, and
neither the Company nor the Trustee nor any paying agent nor any registrar
shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or
premium, if any, or interest on this Security, 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 Person,
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.
All terms used in this Security that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICT OF LAW PROVISIONS THEREOF.
Exhibit 4.3
CERTIFICATE OF TRUST
OF
BANKBOSTON CAPITAL TRUST IV
This Certificate of Trust is being executed as of February 26, 1998
for the purposes of organizing a business trust pursuant to the Delaware
Business Trust Act, 12 Del. C. Sections 3801 et seq. (the "Act").
---- -- -- ---
The undersigned hereby certify as follows:
1. Name. The name of the business trust is "BankBoston Capital
----
Trust IV" (the "Trust").
2. Delaware Trustee. The name and business address of the
----------------
Delaware resident trustee of the Trust meeting the requirements of Section
3807 of the Act are as follows:
The Bank of New York (Delaware)
23 White Clay Center, Route 273
Newark, Delaware 19711
3. Effective. This Certificate of Trust shall be effective
---------
immediately upon filing in the Office of the Secretary of State of the State
of Delaware.
IN WITNESS WHEREOF, the undersigned, being all of the trustees of
the Trust, have duly executed this Certificate of Trust as of the day and
year first above written.
THE BANK OF NEW YORK
(DELAWARE),
as Delaware Trustee
By: /s/ Mary Jane Morrissey
---------------------------
Mary Jane Morrissey
Authorized Signatory
ADMINISTRATIVE TRUSTEE
By: /s/ Robert T. Jefferson
---------------------------
Robert T. Jefferson
ADMINISTRATIVE TRUSTEE
By: /s/ Craig V. Starble
---------------------------
Craig V. Starble
ADMINISTRATIVE TRUSTEE
By: /s/ Kathleen M. McGillycuddy
----------------------------
Kathleen M. McGillycuddy
BANKBOSTON CORPORATION
as Sponsor
By: /s/ Kathleen M. McGillycuddy
----------------------------
Kathleen M. McGillycuddy
Executive Director,
Global Treasury
Exhibit 4.4
----------------------------------------------------------
DECLARATION OF TRUST
BankBoston Capital Trust IV
Dated as of February 26, 1998
----------------------------------------------------------
TABLE OF CONTENTS
-----------------
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . 1
-----------
ARTICLE II
ORGANIZATION
SECTION 2.1 Name . . . . . . . . . . . . . . . . . . . . . . . . 4
----
SECTION 2.2 Office . . . . . . . . . . . . . . . . . . . . . . . 5
------
SECTION 2.3 Purpose . . . . . . . . . . . . . . . . . . . . . . . 5
-------
SECTION 2.4 Authority . . . . . . . . . . . . . . . . . . . . . . 5
---------
SECTION 2.5 Title to Property of the Trust . . . . . . . . . . . 5
------------------------------
SECTION 2.6 Powers of the Trustees . . . . . . . . . . . . . . . 6
----------------------
SECTION 2.7 Filing of Certificate of Trust . . . . . . . . . . . 7
------------------------------
SECTION 2.8 Duration of Trust . . . . . . . . . . . . . . . . . . 7
-----------------
SECTION 2.9 Responsibilities of the Sponsor . . . . . . . . . . . 7
-------------------------------
SECTION 2.10 Declaration Binding on Holders of Securities . . . . 8
--------------------------------------------
ARTICLE III
TRUSTEES
SECTION 3.1 Trustees . . . . . . . . . . . . . . . . . . . . . . 9
--------
SECTION 3.2 Delaware Trustee . . . . . . . . . . . . . . . . . . 10
----------------
SECTION 3.3 Execution of Documents . . . . . . . . . . . . . . . 10
----------------------
SECTION 3.4 Not Responsible for Recitals or Sufficiency of
----------------------------------------------
Declaration . . . . . . . . . . . . . . . . . . . . . 10
-----------
ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1 Exculpation . . . . . . . . . . . . . . . . . . . . . 11
-----------
SECTION 4.2 Fiduciary Duty . . . . . . . . . . . . . . . . . . . 11
--------------
SECTION 4.3 Indemnification . . . . . . . . . . . . . . . . . . . 13
---------------
SECTION 4.4 Outside Businesses . . . . . . . . . . . . . . . . . 17
------------------
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 Amendments . . . . . . . . . . . . . . . . . . . . . 17
----------
SECTION 5.2 Termination of Trust . . . . . . . . . . . . . . . . 17
--------------------
SECTION 5.3 Governing Law . . . . . . . . . . . . . . . . . . . . 18
-------------
SECTION 5.4 Headings . . . . . . . . . . . . . . . . . . . . . . 18
--------
SECTION 5.5 Successors and Assigns . . . . . . . . . . . . . . . 18
----------------------
SECTION 5.6 Partial Enforceability . . . . . . . . . . . . . . . 18
----------------------
SECTION 5.7 Counterparts . . . . . . . . . . . . . . . . . . . . 19
------------
DECLARATION OF TRUST
OF
BANKBOSTON CAPITAL TRUST IV
February 26, 1998
DECLARATION OF TRUST ("Declaration") dated and effective as of
February 26, 1998 by the Trustees (as defined herein), the Sponsor (as
defined herein), and by the holders, from time to time, of undivided
beneficial interests in the Trust to be issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor desire to establish a trust
(the "Trust") pursuant to the Business Trust Act (as defined herein) for the
sole purpose of (i) issuing and selling certain securities representing
undivided beneficial interests in the assets of the Trust (ii) holding
certain Debentures of the Debenture Issuer (each as defined herein) and (iii)
engaging in only those other activities necessary, advisable or incidental
thereto; and
NOW, THEREFORE, it being the intention of the parties hereto that
the Trust constitute a business trust under the Business Trust Act and that
this Declaration constitutes the governing instrument of such business trust,
the Trustees declare that all assets contributed to the Trust will be held in
trust for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions
-----------
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in
this Section 1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to
this Declaration of Trust as modified, supplemented or amended from
time to time;
(d) all references in this Declaration to Articles and Sections are to
Articles and Sections of this Declaration unless otherwise
specified;
(e) a reference to the singular includes the plural and vice versa;
(f) a reference to any Person shall include its successors and assigns;
(g) a reference to any agreement or instrument shall mean such
agreement or instrument as supplemented, modified, amended and
restated and in effect from time to time; and
(h) a reference to any statute, law, rule or regulation, shall include
any amendments thereto and any successor, statute, law, rule or
regulation.
"Administrative Trustee" means any Trustee other than the
----------------------
Delaware Trustee and Property Trustee.
"Affiliate" has the same meaning as given to that term in Rule
---------
405 of the Securities Act or any successor rule thereunder.
"BankBoston" means BankBoston Corporation, a Massachusetts
----------
corporation or any successor entity in a merger.
"Business Day" means any day other than a day on which banking
------------
institutions in New York, New York or in Boston, Massachusetts are authorized
or required by any applicable law or executive order to close.
"Business Trust Act" means Chapter 38 of Title 12 of the
------------------
Delaware Code, 12 Del. C. Sections 3801 et seq., as it may be amended
--- - -- ---
from time to time, or any successor legislation.
"Capital Security" means a security representing an undivided
----------------
interest in the assets of the Trust with such terms as may be set out in any
amendment to this Declaration.
"Commission" means the Securities and Exchange Commission.
----------
"Common Security" means a security representing an undivided
---------------
beneficial interest in the assets of the Trust with such terms as may be set
out in any amendment to this Declaration.
"Company Indemnified Person" means (a) any Administrative
--------------------------
Trustee; (b) any Affiliate of any Administrative Trustee; (c) any officers,
directors, shareholders, members, partners, employees, representatives or
agents of any Administrative Trustee; or (d) any employee or agent of the
Trust or its Affiliates.
"Covered Person" means any officer, director, shareholder,
--------------
partner, member, representative, employee or agent of the Trust or the
Trust's Affiliates.
"Debenture Issuer" means BankBoston in its capacity as the
----------------
issuer of the Debentures under the Indenture.
"Debentures" means Debentures to be issued by the Debenture
----------
Issuer and acquired by the Trust.
"Debenture Trustee" means the original trustee under the
-----------------
Indenture until a successor is appointed thereunder, and thereafter means any
such successor trustee.
"Delaware Trustee" has the meaning set forth in Section 3.1.
----------------
"Exchange Act" means the Securities Exchange Act of 1934, as
------------
amended from time to time, or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in
----------------------------
Section 4.3(b).
"Indemnified Person" means a Company Indemnified Person or a
------------------
Fiduciary Indemnified Person.
"Indenture" means the indenture to be entered into between
---------
BankBoston and the Debenture Trustee pursuant to which the Debentures are to
be issued.
"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.
"Property Trustee" has the meaning set forth in Section 3.1.
----------------
"Securities" means collectively the Common Securities and the
----------
Capital Securities.
"Securities Act" means the Securities Act of 1933, as amended
--------------
from time to time, or any successor legislation.
"Sponsor" means BankBoston in its capacity as sponsor of the
-------
Trust.
"Trustee" or "Trustees" means each Person who has signed this
------- --------
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with
the provisions hereof, and reference herein to a Trustee or the Trustees
shall refer to such Person or Persons solely in their capacity as trustees
hereunder.
ARTICLE II
ORGANIZATION
SECTION 2.1 Name
----
The Trust created by this Declaration is named "BankBoston Capital
Trust IV". The Trust's activities may be conducted under the name of the
Trust or any other name deemed advisable by the Administrative Trustees.
SECTION 2.2 Office
------
The address of the principal office of the Trust is BankBoston
Corporation, P.O. Box 2016, Boston, Massachusetts 02106-20161, Attention:
Kathleen McGillycuddy, Administrative Trustee. On ten Business Days written
notice to the holders of Securities, the Administrative Trustees may desig-
nate another principal office.
SECTION 2.3 Purpose
-------
The exclusive purposes and functions of the Trust are (a) to issue
and sell Securities, (b) purchase and hold certain Debentures of the
Debenture Issuer and (c) engage in only those other activities necessary,
advisable or incidental thereto. The Trust shall not borrow money, issue
debt or reinvest proceeds derived from investments, pledge any of its assets,
or otherwise undertake (or permit to be undertaken) any activity that would
cause the Trust not to be classified for United States federal income tax
purposes as a grantor trust.
SECTION 2.4 Authority
---------
Subject to the limitations provided in this Declaration, the
Administrative Trustees shall have exclusive and complete authority to carry
out the purposes of the Trust. An action taken by the Administrative
Trustees in accordance with their powers shall constitute the act of and
serve to bind the Trust. In dealing with the Administrative Trustees acting
on behalf of the Trust, no person shall be required to inquire into the
authority of the Administrative Trustees to bind the Trust. Persons dealing
with the Trust are entitled to rely conclusively on the power and authority
of the Administrative Trustees as set forth in this Declaration.
SECTION 2.5 Title to Property of the Trust
------------------------------
Legal title to all assets of the Trust shall be vested in the
Trust.
SECTION 2.6 Powers of the Trustees
----------------------
The Administrative Trustees shall have the exclusive power and
authority to cause the Trust to engage in the following activities:
(a) to issue and sell the Capital Securities and the Common
Securities in accordance with this Declaration; provided, however, that
-------- -------
the Trust may issue no more than one series of Capital 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;
(b) in connection with the issue and sale of the Capital
Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission a registration
statement on Form S-3, prepared by the Sponsor, including any amendments
thereto in relation to the Capital 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 Capital Securities in
any State or foreign jurisdiction in which the Sponsor has determined to
qualify or register such Capital Securities for sale;
(iii) execute and deliver letters, documents, or instru-
ments with The Depository Trust Company relating to the Capital Securi-
ties;
(iv) execute and enter into subscription agreements,
purchase agreements and other related agreements providing for the sale
of the Common Securities and the Capital Securities;
(v) execute and file an application, prepared by the
Sponsor, to the New York Stock Exchange or any other national stock
exchange or the Nasdaq Stock Market's National Market for listing upon
notice of issuance of any Capital Securities;
(vi) 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 Capital Securities under
Section 12(b) or (g) of the Exchange Act; and
(vii) execute and enter into an underwriting agreement
and pricing agreement providing for the sale of the Capital Securities.
(c) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors, and
consultants and provide for reasonable compensation for such services;
(d) to incur expenses that are necessary or incidental to carry out
any of the purposes of this Declaration, which expenses shall be paid for by
the Sponsor in all respects; and
(e) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing.
SECTION 2.7 Filing of Certificate of Trust
------------------------------
On or after the date of execution of this Declaration, the Trustees
shall cause the filing of the Certificate of Trust for the Trust in the form
attached hereto as Exhibit A with the Secretary of State of the State of
Delaware.
SECTION 2.8 Duration of Trust
-----------------
The Trust, absent termination pursuant to the provisions of Section
5.2, shall have existence for thirty-one (31) years from the date hereof.
SECTION 2.9 Responsibilities of the Sponsor
-------------------------------
In connection with the issue and sale of the Capital Securities,
the Sponsor shall have the exclusive right and responsibility to engage in
the following activities:
(a) to prepare for filing by the Trust with the Commission a
registration statement on Form S-3 in relation to the Capital Securities,
including any amendments thereto;
(b) to determine the States and foreign jurisdictions in which to
take appropriate action to qualify or register for sale all or part of the
Capital 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 and foreign jurisdictions;
(c) to prepare for filing by the Trust an application to the New
York Stock Exchange or any other national stock exchange or the Nasdaq
National Market for listing upon notice of issuance of any Capital Securi-
ties;
(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the class
of Capital Securities under Section 12(b) or (g) of the Exchange Act,
including any amendments thereto;
(e) to negotiate the terms of an underwriting agreement and pricing
agreement providing for the sale of the Capital Securities; and
(f) to negotiate the terms of subscription agreements, purchase
agreements and other related agreements providing for the sale of the Common
Securities and Capital Securities.
SECTION 2.10 Declaration Binding on Holders of Securities
--------------------------------------------
Every Person by virtue of having become a holder of a Security or
any interest therein in accordance with the terms of this Declaration, shall
be deemed to have expressly assented and agreed to the terms of, and shall be
bound by, this Declaration.
ARTICLE III
TRUSTEES
SECTION 3.1 Trustees
--------
The number of Trustees initially shall be four (4), and thereafter
the number of Trustees shall be such number as shall be fixed from time to
time by a written instrument signed by the Sponsor. The Sponsor is entitled
to appoint or remove without cause any Trustee at any time; provided, however
-------- -------
that the number of Trustees shall in no event be less than two (2); provided
--------
further that (1) one Trustee, in the case of a natural person, shall be a
- -------
person who is a resident of the State of Delaware or which, if not a natural
person, is an entity which has its principal place of business in the State
of Delaware (the "Delaware Trustee") and (2) there shall be at least one
Administrative Trustee who is an employee or officer of, or is affiliated
with, the Sponsor.
Except as expressly set forth in this Declaration, any power of the
Administrative Trustees may be exercised by, or with the consent of, any one
such Administrative Trustee.
The initial Administrative Trustee(s) shall be:
Robert T. Jefferson
Kathleen M. McGillycuddy
Craig Starble
The initial Delaware Trustee shall be:
The Bank of New York (Delaware)
Prior to the issuance of the Capital Securities and Common
Securities, the Sponsor shall appoint another trustee (the "Property
Trustee") meeting the requirements of the Trust Indenture Act of 1939, as
amended, by the execution of an amendment to this Declaration executed by the
Administrative Trustees, the Sponsor, the Property Trustee and the Delaware
Trustee.
SECTION 3.2 Delaware Trustee
----------------
Notwithstanding any other provision of this Declaration, the
Delaware Trustee shall not be entitled to exercise any of the powers, nor
shall the Delaware Trustee have any of the duties and responsibilities of the
Administrative Trustees described in this Declaration. The Delaware Trustee
shall be a Trustee for the sole and limited purpose of fulfilling the
requirements of Section 3807 of the Business Trust Act. Notwithstanding
anything herein to the contrary, the Delaware Trustee shall not be liable for
the acts or omissions to act of the Trust or of the Administrative Trustees
except such acts as the Delaware Trustee is expressly obligated or authorized
to undertake under this Declaration or the Business Trust Act and except for
the negligence or willful misconduct of the Delaware Trustee.
SECTION 3.3 Execution of Documents
----------------------
(a) Unless otherwise determined by the Administrative Trustees,
and except as otherwise required by the Business Trust Act, any
Administrative Trustee is authorized to execute on behalf of the Trust any
documents which the Administrative Trustees have the power and authority to
cause the Trust to execute pursuant to Section 2.6; provided, that, the
registration statement referred to in Section 2.6(b)(i), including any amend-
ments thereto, shall be signed by a majority of the Administrative Trustees;
and
(b) an Administrative 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
Administrative Trustees have power and authority to cause the Trust to
execute pursuant to Section 2.6.
SECTION 3.4 Not Responsible for Recitals or Sufficiency of Declaration
----------------------------------------------------------
The recitals contained in this Declaration shall be taken as the
statements of the Sponsor, and the Trustees do not assume any responsibility
for their correctness. The Trustees make no representations as to the value
or condition of the property of the Trust or any part thereof. The Trustees
make no representations as to the validity or sufficiency of this
Declaration.
ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1 Exculpation
-----------
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for
any loss, damage or claim incurred by reason of any act or omission performed
or omitted by such Indemnified Person in good faith on behalf of the Trust
and in a manner such Indemnified Person reasonably believed to be within the
scope of the authority conferred on such Indemnified Person by this
Declaration or by law, except that an Indemnified Person shall be liable for
any such loss, damage or claim incurred by reason of such Indemnified
Person's negligence or willful misconduct with respect to such acts or omis-
sions; and
(b) an Indemnified Person shall be fully protected in relying in
good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable
care by or on behalf of the Trust, including information, opinions, reports
or statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets
from which distributions to holders of Securities might properly be paid.
SECTION 4.2 Fiduciary Duty
--------------
(a) To the extent that, at law or in equity, an Indemnified Person
has duties (including fiduciary duties) and liabilities relating thereto to
the Trust or to any other Covered Person, an Indemnified Person acting under
this Declaration shall not be liable to the Trust or to any other Covered
Person for its good faith reliance on the provisions of this Declaration.
The provisions of this Declaration, to the extent that they restrict the
duties and liabilities of an Indemnified Person otherwise existing at law or
in equity, are agreed by the parties hereto to replace such other duties and
liabilities of such Indemnified Person;
(b) unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between
Covered Persons; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified Person
shall act in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such
action or provide such terms, considering in each case the relative interest
of each party (including its own interest) to such conflict, agreement,
transaction or situation and the benefits and burdens relating to such
interests, any customary or accepted industry practices, and any applicable
generally accepted accounting practices or principles. In the absence of bad
faith by the Indemnified Person, the resolution, action or term so made,
taken or provided by the Indemnified Person shall not constitute a breach of
this Declaration or any other agreement contemplated herein or of any duty or
obligation of the Indemnified Person at law or in equity or otherwise; and
(c) whenever in this Declaration an Indemnified Person is
permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to consider
such interests and factors as it desires, including its own
interests, and shall have no duty or obligation to give any
consideration to any interest of or factors affecting the Trust or
any other Person; or
(ii) in its "good faith" or under another express standard,
the Indemnified Person shall act under such express standard and
shall not be subject to any other or different standard imposed by
this Declaration or by applicable law.
SECTION 4.3 Indemnification
---------------
(a) (i) The Sponsor shall indemnify, to the full extent permitted
by law, any Company Indemnified Person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the Trust) by reason of the fact that he
is or was a Company Indemnified Person against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding
if he acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the Trust, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the Company
Indemnified Person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Trust, and, with respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
(ii) The Sponsor shall indemnify, to the full extent permitted by
law, any Company Indemnified Person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or
in the right of the Trust to procure a judgment in its favor by reason of the
fact that he is or was a Company Indemnified Person against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted
in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Trust, 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 4.3(a), or in defense of any claim,
issue or matter therein, he shall be indemnified, to the full extent
permitted by law, against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii) of this
Section 4.3(a) (unless ordered by a court) shall be made by the Debenture
Issuer only as authorized in the specific case upon a determination that
indemnification of the Company Indemnified Person is proper in the
circumstances because he has met the applicable standard of conduct set forth
in paragraphs (i) and (ii). Such determination shall be made (1) by the
Administrative Trustees by a majority vote of a quorum consisting of such
Administrative Trustees who were not parties to such action, suit or
proceeding, (2) if such a quorum is not obtainable, or, even if obtainable,
if a quorum of disinterested Administrative Trustees so directs, by
independent legal counsel in a written opinion, or (3) by the Common Security
Holder of the Trust.
(v) Expenses (including attorneys' fees) incurred by a Company
Indemnified Person in defending a civil, criminal, administrative or
investigative action, suit or proceeding referred to in paragraphs (i) and
(ii) of this Section 4.3(a) shall be paid by the Debenture Issuer in advance
of the final disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of such Company Indemnified Person to repay
such amount if it shall ultimately be determined that he is not entitled to
be indemnified by the Debenture Issuer as authorized in this Section 4.3(a).
Notwithstanding the foregoing, no advance shall be made by the Debenture
Issuer if a determination is reasonably and promptly made (i) by the
Administrative Trustees by a majority vote of a quorum of disinterested
Administrative Trustees, (ii) if such a quorum is not obtainable, or, even if
obtainable, if a quorum of disinterested Administrative 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 Administrative Trustees, independent legal counsel or
Common Security Holder reasonably determine that such person deliberately
breached his duty to the Trust or the Common Security or Capital Security
Holders.
(vi) The indemnification and advancement of expenses provided by,
or granted pursuant to, the other paragraphs of this Section 4.3(a) shall not
be deemed exclusive of any other rights to which those seeking
indemnification and advancement of expenses may be entitled under any
agreement, vote of stockholders or disinterested directors of the Debenture
Issuer or Capital Security Holders of the Trust or otherwise, both as to
action in his official capacity and as to action in another capacity while
holding such office. All rights to indemnification under this Section 4.3(a)
shall be deemed to be provided by a contract between the Debenture Issuer and
each Company Indemnified Person who serves in such capacity at any time while
this Section 4.3(a) is in effect. Any repeal or modification of this Section
4.3(a) shall not affect any rights or obligations then existing.
(vii) The Sponsor or the Trust may purchase and maintain 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 4.3(a).
(viii) For purposes of this Section 4.3(a), references to "the
Trust" shall include, in addition to the resulting or surviving entity, any
constituent entity (including any constituent of a constituent) absorbed in a
consolidation or merger, so that any person who is or was a director,
trustee, officer or employee of such constituent entity, or is or was serving
at the request of such constituent entity as a director, trustee, officer,
employee or agent of another entity, shall stand in the same position under
the provisions of this Section 4.3(a) with respect to the resulting or
surviving entity as he would have with respect to such constituent entity if
its separate existence had continued.
(ix) The indemnification and advancement of expenses provided by,
or granted pursuant to, this Section 4.3(a) shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to be a
Company Indemnified Person and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(b) The Sponsor agrees to indemnify the (i) the Delaware Trustee,
(ii) any Affiliate of the Delaware Trustee, and (iii) any officers,
directors, shareholders, members, partners, employees, representatives,
nominees, custodians or agents of the Delaware Trustee (each of the Persons
in (i) through (iii) being referred to as a "Fiduciary Indemnified Person")
for, and to hold each Fiduciary Indemnified Person harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against, or
investigating, any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The obligation to
indemnify as set forth in this Section 4.3(b) shall survive the termination
of this Declaration.
SECTION 4.4 Outside Businesses
------------------
Any Covered Person, the Sponsor and the Delaware Trustee may engage
in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the
business of the Trust, and the Trust and the holders of Securities shall have
no rights by virtue of this Declaration in and to such independent ventures
or the income or profits derived therefrom and the pursuit of any such
venture, even if competitive with the business of the Trust, shall not be
deemed wrongful or improper. No Covered Person, the Sponsor or the Delaware
Trustee shall be obligated to present any particular investment or other
opportunity to the Trust even if such opportunity is of a character that, if
presented to the Trust, could be taken by the Trust, and any Covered Person,
the Sponsor and the Delaware Trustee shall have the right to take for its own
account (individually or as a partner or fiduciary) or to recommend to others
any such particular investment or other opportunity. Any Covered Person and
the Delaware Trustee may engage or be interested in any financial or other
transaction with the Sponsor or any Affiliate of the Sponsor, or may act as
depositary for, trustee or agent for or may act on any committee or body of
holders of, securities or other obligations of the Sponsor or its Affiliates.
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 Amendments
----------
At any time before the issue of any Securities, this Declaration
may be amended by, and only by, a written instrument executed by all of the
Administrative Trustees, the Sponsor, the Property Trustee and the Delaware
Trustee.
SECTION 5.2 Termination of Trust
--------------------
(a) The Trust shall terminate and be of no further force or
effect:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor or the revocation of the
Sponsor's charter or of the Trust's certificate of trust;
(iii) upon the entry of a decree of judicial dissolution of
the Sponsor or the Trust; and
(iv) before the issuance of any Securities, with the consent
of all of the Administrative Trustees and the Sponsor.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 5.2(a), the Trustees shall file a certificate of
cancellation with the Secretary of State of the State of Delaware.
SECTION 5.3 Governing Law
-------------
THIS DECLARATION AND THE RIGHTS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE AND ALL RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT
REGARD TO ITS PRINCIPLES OF CONFLICT OF LAWS.
SECTION 5.4 Headings
--------
Headings contained in this Declaration are inserted for convenience
of reference only and do not affect the interpretation of this Declaration or
any provision hereof.
SECTION 5.5 Successors and Assigns
----------------------
Whenever in this Declaration any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
SECTION 5.6 Partial Enforceability
----------------------
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder
of this Declaration, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 5.7 Counterparts
------------
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed
a single signature page.
(Remainder of this page intentionally left blank.)
IN WITNESS WHEREOF, the undersigned have caused this Declaration to
be executed as of the day and year first above written.
/s/ Robert T. Jefferson
-----------------------------------
Name: Robert T. Jefferson
As Administrative Trustee
/s/ Craig V. Starble
-------------------------------------------------
Name: Craig V. Starble
As Administrative Trustee
/s/ Kathleen M. McGillycuddy
-------------------------------------------------
Name: Kathleen M. McGillycuddy
As Administrative Trustee
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By: /s/ Mary Jane Morrissey
--------------------------------------------
Name: Mary Jane Morrissey
Title: Authorized Signatory
BANKBOSTON CORPORATION,
as Sponsor
By: /s/ Kathleen M. McGillycuddy
--------------------------------------------
Name: Kathleen M. McGillycuddy
Title: Executive Director,
Global Treasury
Exhibit A
CERTIFICATE OF TRUST
OF
BANKBOSTON CAPITAL TRUST IV
This Certificate of Trust is being executed as of February 26, 1998
for the purposes of organizing a business trust pursuant to the Delaware
Business Trust Act, 12 Del. C. Sections 3801 et seq. (the "Act").
---- -- -- ---
The undersigned hereby certifies as follows:
1. Name. The name of the business trust is "BankBoston Capital
----
Trust IV" (the "Trust").
2. Delaware Trustee. The name and business address of the
----------------
Delaware resident trustee of the Trust meeting the requirements of Section
3807 of the Act are as follows:
The Bank of New York (Delaware)
23 White Clay Center, Route 273
Newark, Delaware 19711
3. Effective. This Certificate of Trust shall be effective
---------
immediately upon filing in the Office of the Secretary of State of the State
of Delaware.
IN WITNESS WHEREOF, the undersigned, being all of the trustees of
the Trust, have duly executed this Certificate of Trust as of the day and
year first above written.
THE BANK OF NEW YORK
(DELAWARE),
as Delaware Trustee
By:/s/ Mary Jane Morrissey
-----------------------------------------
Mary Jane Morrissey
Authorized Signatory
ADMINISTRATIVE TRUSTEE
By:/s/ Robert T. Jefferson
-----------------------------------------
Robert T. Jefferson
ADMINISTRATIVE TRUSTEE
By:/s/ Craig V. Starble
-----------------------------------------
Craig V. Starble
ADMINISTRATIVE TRUSTEE
By:/s/ Kathleen M. McGillycuddy
-----------------------------------------
Kathleen M. McGillycuddy
BANKBOSTON CORPORATION
as Sponsor
By:/s/ Kathleen M. McGillycuddy
----------------------------
Kathleen M. McGillycuddy
Executive Director,
Global Treasury
Exhibit 4.5
CERTIFICATE OF TRUST
OF
BANKBOSTON CAPITAL TRUST V
This Certificate of Trust is being executed as of February 26, 1998
for the purposes of organizing a business trust pursuant to the Delaware
Business Trust Act, 12 Del. C. Section Section 3801 et seq. (the "Act").
---- -- -- ---
The undersigned hereby certify as follows:
1. Name. The name of the business trust is "BankBoston Capital
----
Trust V" (the "Trust").
2. Delaware Trustee. The name and business address of the
----------------
Delaware resident trustee of the Trust meeting the requirements of Section
3807 of the Act are as follows:
The Bank of New York (Delaware)
23 White Clay Center, Route 273
Newark, Delaware 19711
3. Effective. This Certificate of Trust shall be effective
---------
immediately upon filing in the Office of the Secretary of State of the State
of Delaware.
IN WITNESS WHEREOF, the undersigned, being all of the trustees of
the Trust, have duly executed this Certificate of Trust as of the day and
year first above written.
THE BANK OF NEW YORK
(DELAWARE),
as Delaware Trustee
By: /s/ Mary Jane Morrissey
-----------------------------
Mary Jane Morrissey
Authorized Signatory
ADMINISTRATIVE TRUSTEE
By: /s/ Robert T. Jefferson
-----------------------------
Robert T. Jefferson
ADMINISTRATIVE TRUSTEE
By: /s/ Craig V. Starble
-----------------------------
Craig V. Starble
ADMINISTRATIVE TRUSTEE
By: /s/ Kathleen M. McGillycuddy
-----------------------------
Kathleen M. McGillycuddy
BANKBOSTON CORPORATION
as Sponsor
By: /s/ Kathleen M. McGillycuddy
-----------------------------
Kathleen M. McGillycuddy
Executive Director,
Global Treasury
Exhibit 4.6
----------------------------------------------------------
DECLARATION OF TRUST
BankBoston Capital Trust V
Dated as of February 26, 1998
----------------------------------------------------------
TABLE OF CONTENTS
-----------------
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . 1
-----------
ARTICLE II
ORGANIZATION
SECTION 2.1 Name . . . . . . . . . . . . . . . . . . . . . . . . 4
----
SECTION 2.2 Office . . . . . . . . . . . . . . . . . . . . . . . 5
------
SECTION 2.3 Purpose . . . . . . . . . . . . . . . . . . . . . . . 5
-------
SECTION 2.4 Authority . . . . . . . . . . . . . . . . . . . . . . 5
---------
SECTION 2.5 Title to Property of the Trust . . . . . . . . . . . 5
------------------------------
SECTION 2.6 Powers of the Trustees . . . . . . . . . . . . . . . 6
----------------------
SECTION 2.7 Filing of Certificate of Trust . . . . . . . . . . . 7
------------------------------
SECTION 2.8 Duration of Trust . . . . . . . . . . . . . . . . . . 7
-----------------
SECTION 2.9 Responsibilities of the Sponsor . . . . . . . . . . . 7
-------------------------------
SECTION 2.10 Declaration Binding on Holders of Securities . . . . 8
--------------------------------------------
ARTICLE III
TRUSTEES
SECTION 3.1 Trustees . . . . . . . . . . . . . . . . . . . . . . 9
--------
SECTION 3.2 Delaware Trustee . . . . . . . . . . . . . . . . . . 10
----------------
SECTION 3.3 Execution of Documents . . . . . . . . . . . . . . . 10
----------------------
SECTION 3.4 Not Responsible for Recitals or Sufficiency of
----------------------------------------------
Declaration . . . . . . . . . . . . . . . . . . . . . 10
-----------
ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1 Exculpation . . . . . . . . . . . . . . . . . . . . . 11
-----------
SECTION 4.2 Fiduciary Duty . . . . . . . . . . . . . . . . . . . 11
--------------
SECTION 4.3 Indemnification . . . . . . . . . . . . . . . . . . . 13
---------------
SECTION 4.4 Outside Businesses . . . . . . . . . . . . . . . . . 17
------------------
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 Amendments . . . . . . . . . . . . . . . . . . . . . 17
----------
SECTION 5.2 Termination of Trust . . . . . . . . . . . . . . . . 17
--------------------
SECTION 5.3 Governing Law . . . . . . . . . . . . . . . . . . . . 18
-------------
SECTION 5.4 Headings . . . . . . . . . . . . . . . . . . . . . . 18
--------
SECTION 5.5 Successors and Assigns . . . . . . . . . . . . . . . 18
----------------------
SECTION 5.6 Partial Enforceability . . . . . . . . . . . . . . . 18
----------------------
SECTION 5.7 Counterparts . . . . . . . . . . . . . . . . . . . . 19
------------
DECLARATION OF TRUST
OF
BANKBOSTON CAPITAL TRUST V
February 26, 1998
DECLARATION OF TRUST ("Declaration") dated and effective as of
February 26, 1998 by the Trustees (as defined herein), the Sponsor (as
defined herein), and by the holders, from time to time, of undivided
beneficial interests in the Trust to be issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor desire to establish a trust
(the "Trust") pursuant to the Business Trust Act (as defined herein) for the
sole purpose of (i) issuing and selling certain securities representing
undivided beneficial interests in the assets of the Trust (ii) holding
certain Debentures of the Debenture Issuer (each as defined herein) and (iii)
engaging in only those other activities necessary, advisable or incidental
thereto; and
NOW, THEREFORE, it being the intention of the parties hereto that
the Trust constitute a business trust under the Business Trust Act and that
this Declaration constitutes the governing instrument of such business trust,
the Trustees declare that all assets contributed to the Trust will be held in
trust for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions
-----------
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in
this Section 1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to
this Declaration of Trust as modified, supplemented or amended from
time to time;
(d) all references in this Declaration to Articles and Sections are to
Articles and Sections of this Declaration unless otherwise
specified;
(e) a reference to the singular includes the plural and vice versa;
(f) a reference to any Person shall include its successors and assigns;
(g) a reference to any agreement or instrument shall mean such
agreement or instrument as supplemented, modified, amended and
restated and in effect from time to time; and
(h) a reference to any statute, law, rule or regulation, shall include
any amendments thereto and any successor, statute, law, rule or
regulation.
"Administrative Trustee" means any Trustee other than the
----------------------
Delaware Trustee and Property Trustee.
"Affiliate" has the same meaning as given to that term in Rule
---------
405 of the Securities Act or any successor rule thereunder.
"BankBoston" means BankBoston Corporation, a Massachusetts
----------
corporation or any successor entity in a merger.
"Business Day" means any day other than a day on which banking
------------
institutions in New York, New York or in Boston, Massachusetts are authorized
or required by any applicable law or executive order to close.
"Business Trust Act" means Chapter 38 of Title 12 of the
------------------
Delaware Code, 12 Del. C. Sections 3801 et seq., as it may be amended
--- - -- ---
from time to time, or any successor legislation.
"Capital Security" means a security representing an undivided
----------------
interest in the assets of the Trust with such terms as may be set out in any
amendment to this Declaration.
"Commission" means the Securities and Exchange Commission.
----------
"Common Security" means a security representing an undivided
---------------
beneficial interest in the assets of the Trust with such terms as may be set
out in any amendment to this Declaration.
"Company Indemnified Person" means (a) any Administrative
--------------------------
Trustee; (b) any Affiliate of any Administrative Trustee; (c) any officers,
directors, shareholders, members, partners, employees, representatives or
agents of any Administrative Trustee; or (d) any employee or agent of the
Trust or its Affiliates.
"Covered Person" means any officer, director, shareholder,
--------------
partner, member, representative, employee or agent of the Trust or the
Trust's Affiliates.
"Debenture Issuer" means BankBoston in its capacity as the
----------------
issuer of the Debentures under the Indenture.
"Debentures" means Debentures to be issued by the Debenture
----------
Issuer and acquired by the Trust.
"Debenture Trustee" means the original trustee under the
-----------------
Indenture until a successor is appointed thereunder, and thereafter means any
such successor trustee.
"Delaware Trustee" has the meaning set forth in Section 3.1.
----------------
"Exchange Act" means the Securities Exchange Act of 1934, as
------------
amended from time to time, or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in
----------------------------
Section 4.3(b).
"Indemnified Person" means a Company Indemnified Person or a
------------------
Fiduciary Indemnified Person.
"Indenture" means the indenture to be entered into between
---------
BankBoston and the Debenture Trustee pursuant to which the Debentures are to
be issued.
"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.
"Property Trustee" has the meaning set forth in Section 3.1.
----------------
"Securities" means collectively the Common Securities and the
----------
Capital Securities.
"Securities Act" means the Securities Act of 1933, as amended
--------------
from time to time, or any successor legislation.
"Sponsor" means BankBoston in its capacity as sponsor of the
-------
Trust.
"Trustee" or "Trustees" means each Person who has signed this
------- --------
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with
the provisions hereof, and reference herein to a Trustee or the Trustees
shall refer to such Person or Persons solely in their capacity as trustees
hereunder.
ARTICLE II
ORGANIZATION
SECTION 2.1 Name
----
The Trust created by this Declaration is named "BankBoston Capital
Trust V". The Trust's activities may be conducted under the name of the
Trust or any other name deemed advisable by the Administrative Trustees.
SECTION 2.2 Office
------
The address of the principal office of the Trust is BankBoston
Corporation, P.O. Box 2016, Boston, Massachusetts 02106-20161, Attention:
Kathleen McGillycuddy, Administrative Trustee. On ten Business Days written
notice to the holders of Securities, the Administrative Trustees may desig-
nate another principal office.
SECTION 2.3 Purpose
-------
The exclusive purposes and functions of the Trust are (a) to issue
and sell Securities, (b) purchase and hold certain Debentures of the
Debenture Issuer and (c) engage in only those other activities necessary,
advisable or incidental thereto. The Trust shall not borrow money, issue
debt or reinvest proceeds derived from investments, pledge any of its assets,
or otherwise undertake (or permit to be undertaken) any activity that would
cause the Trust not to be classified for United States federal income tax
purposes as a grantor trust.
SECTION 2.4 Authority
---------
Subject to the limitations provided in this Declaration, the
Administrative Trustees shall have exclusive and complete authority to carry
out the purposes of the Trust. An action taken by the Administrative
Trustees in accordance with their powers shall constitute the act of and
serve to bind the Trust. In dealing with the Administrative Trustees acting
on behalf of the Trust, no person shall be required to inquire into the
authority of the Administrative Trustees to bind the Trust. Persons dealing
with the Trust are entitled to rely conclusively on the power and authority
of the Administrative Trustees as set forth in this Declaration.
SECTION 2.5 Title to Property of the Trust
------------------------------
Legal title to all assets of the Trust shall be vested in the
Trust.
SECTION 2.6 Powers of the Trustees
----------------------
The Administrative Trustees shall have the exclusive power and
authority to cause the Trust to engage in the following activities:
(a) to issue and sell the Capital Securities and the Common
Securities in accordance with this Declaration; provided, however, that
-------- -------
the Trust may issue no more than one series of Capital 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;
(b) in connection with the issue and sale of the Capital
Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission a registration
statement on Form S-3, prepared by the Sponsor, including any amendments
thereto in relation to the Capital 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 Capital Securities in
any State or foreign jurisdiction in which the Sponsor has determined to
qualify or register such Capital Securities for sale;
(iii) execute and deliver letters, documents, or instru-
ments with The Depository Trust Company relating to the Capital Securi-
ties;
(iv) execute and enter into subscription agreements,
purchase agreements and other related agreements providing for the sale
of the Common Securities and the Capital Securities;
(v) execute and file an application, prepared by the
Sponsor, to the New York Stock Exchange or any other national stock
exchange or the Nasdaq Stock Market's National Market for listing upon
notice of issuance of any Capital Securities;
(vi) 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 Capital Securities under
Section 12(b) or (g) of the Exchange Act; and
(vii) execute and enter into an underwriting agreement
and pricing agreement providing for the sale of the Capital Securities.
(c) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors, and
consultants and provide for reasonable compensation for such services;
(d) to incur expenses that are necessary or incidental to carry out
any of the purposes of this Declaration, which expenses shall be paid for by
the Sponsor in all respects; and
(e) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing.
SECTION 2.7 Filing of Certificate of Trust
------------------------------
On or after the date of execution of this Declaration, the Trustees
shall cause the filing of the Certificate of Trust for the Trust in the form
attached hereto as Exhibit A with the Secretary of State of the State of
Delaware.
SECTION 2.8 Duration of Trust
-----------------
The Trust, absent termination pursuant to the provisions of Section
5.2, shall have existence for thirty-one (31) years from the date hereof.
SECTION 2.9 Responsibilities of the Sponsor
-------------------------------
In connection with the issue and sale of the Capital Securities,
the Sponsor shall have the exclusive right and responsibility to engage in
the following activities:
(a) to prepare for filing by the Trust with the Commission a
registration statement on Form S-3 in relation to the Capital Securities,
including any amendments thereto;
(b) to determine the States and foreign jurisdictions in which to
take appropriate action to qualify or register for sale all or part of the
Capital 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 and foreign jurisdictions;
(c) to prepare for filing by the Trust an application to the New
York Stock Exchange or any other national stock exchange or the Nasdaq
National Market for listing upon notice of issuance of any Capital Securi-
ties;
(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the class
of Capital Securities under Section 12(b) or (g) of the Exchange Act,
including any amendments thereto;
(e) to negotiate the terms of an underwriting agreement and pricing
agreement providing for the sale of the Capital Securities; and
(f) to negotiate the terms of subscription agreements, purchase
agreements and other related agreements providing for the sale of the Common
Securities and Capital Securities.
SECTION 2.10 Declaration Binding on Holders of Securities
--------------------------------------------
Every Person by virtue of having become a holder of a Security or
any interest therein in accordance with the terms of this Declaration, shall
be deemed to have expressly assented and agreed to the terms of, and shall be
bound by, this Declaration.
ARTICLE III
TRUSTEES
SECTION 3.1 Trustees
--------
The number of Trustees initially shall be four (4), and thereafter
the number of Trustees shall be such number as shall be fixed from time to
time by a written instrument signed by the Sponsor. The Sponsor is entitled
to appoint or remove without cause any Trustee at any time; provided, however
-------- -------
that the number of Trustees shall in no event be less than two (2);
provided further that (1) one Trustee, in the case of a natural person, shall
- -------- -------
be a person who is a resident of the State of Delaware or which, if not a
natural person, is an entity which has its principal place of business in
the State of Delaware (the "Delaware Trustee") and (2) there shall be at
least one Administrative Trustee who is an employee or officer of, or is
affiliated with, the Sponsor.
Except as expressly set forth in this Declaration, any power of the
Administrative Trustees may be exercised by, or with the consent of, any one
such Administrative Trustee.
The initial Administrative Trustee(s) shall be:
Robert T. Jefferson
Kathleen M. McGillycuddy
Craig Starble
The initial Delaware Trustee shall be:
The Bank of New York (Delaware)
Prior to the issuance of the Capital Securities and Common
Securities, the Sponsor shall appoint another trustee (the "Property
Trustee") meeting the requirements of the Trust Indenture Act of 1939, as
amended, by the execution of an amendment to this Declaration executed by the
Administrative Trustees, the Sponsor, the Property Trustee and the Delaware
Trustee.
SECTION 3.2 Delaware Trustee
----------------
Notwithstanding any other provision of this Declaration, the
Delaware Trustee shall not be entitled to exercise any of the powers, nor
shall the Delaware Trustee have any of the duties and responsibilities of the
Administrative Trustees described in this Declaration. The Delaware Trustee
shall be a Trustee for the sole and limited purpose of fulfilling the
requirements of Section 3807 of the Business Trust Act. Notwithstanding
anything herein to the contrary, the Delaware Trustee shall not be liable for
the acts or omissions to act of the Trust or of the Administrative Trustees
except such acts as the Delaware Trustee is expressly obligated or authorized
to undertake under this Declaration or the Business Trust Act and except for
the negligence or willful misconduct of the Delaware Trustee.
SECTION 3.3 Execution of Documents
----------------------
(a) Unless otherwise determined by the Administrative Trustees,
and except as otherwise required by the Business Trust Act, any
Administrative Trustee is authorized to execute on behalf of the Trust any
documents which the Administrative Trustees have the power and authority to
cause the Trust to execute pursuant to Section 2.6; provided, that, the
registration statement referred to in Section 2.6(b)(i), including any amend-
ments thereto, shall be signed by a majority of the Administrative Trustees;
and
(b) an Administrative 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
Administrative Trustees have power and authority to cause the Trust to
execute pursuant to Section 2.6.
SECTION 3.4 Not Responsible for Recitals or Sufficiency of Declaration
----------------------------------------------------------
The recitals contained in this Declaration shall be taken as the
statements of the Sponsor, and the Trustees do not assume any responsibility
for their correctness. The Trustees make no representations as to the value
or condition of the property of the Trust or any part thereof. The Trustees
make no representations as to the validity or sufficiency of this
Declaration.
ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1 Exculpation
-----------
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for
any loss, damage or claim incurred by reason of any act or omission performed
or omitted by such Indemnified Person in good faith on behalf of the Trust
and in a manner such Indemnified Person reasonably believed to be within the
scope of the authority conferred on such Indemnified Person by this
Declaration or by law, except that an Indemnified Person shall be liable for
any such loss, damage or claim incurred by reason of such Indemnified
Person's negligence or willful misconduct with respect to such acts or omis-
sions; and
(b) an Indemnified Person shall be fully protected in relying in
good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable
care by or on behalf of the Trust, including information, opinions, reports
or statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets
from which distributions to holders of Securities might properly be paid.
SECTION 4.2 Fiduciary Duty
--------------
(a) To the extent that, at law or in equity, an Indemnified Person
has duties (including fiduciary duties) and liabilities relating thereto to
the Trust or to any other Covered Person, an Indemnified Person acting under
this Declaration shall not be liable to the Trust or to any other Covered
Person for its good faith reliance on the provisions of this Declaration.
The provisions of this Declaration, to the extent that they restrict the
duties and liabilities of an Indemnified Person otherwise existing at law or
in equity, are agreed by the parties hereto to replace such other duties and
liabilities of such Indemnified Person;
(b) unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between
Covered Persons; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified Person
shall act in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such
action or provide such terms, considering in each case the relative interest
of each party (including its own interest) to such conflict, agreement,
transaction or situation and the benefits and burdens relating to such
interests, any customary or accepted industry practices, and any applicable
generally accepted accounting practices or principles. In the absence of bad
faith by the Indemnified Person, the resolution, action or term so made,
taken or provided by the Indemnified Person shall not constitute a breach of
this Declaration or any other agreement contemplated herein or of any duty or
obligation of the Indemnified Person at law or in equity or otherwise; and
(c) whenever in this Declaration an Indemnified Person is
permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to consider
such interests and factors as it desires, including its own
interests, and shall have no duty or obligation to give any
consideration to any interest of or factors affecting the Trust or
any other Person; or
(ii) in its "good faith" or under another express standard,
the Indemnified Person shall act under such express standard and
shall not be subject to any other or different standard imposed by
this Declaration or by applicable law.
SECTION 4.3 Indemnification
---------------
(a) (i) The Sponsor shall indemnify, to the full extent permitted
by law, any Company Indemnified Person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the Trust) by reason of the fact that he
is or was a Company Indemnified Person against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding
if he acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the Trust, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the Company
Indemnified Person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Trust, and, with respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
(ii) The Sponsor shall indemnify, to the full extent permitted by
law, any Company Indemnified Person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or
in the right of the Trust to procure a judgment in its favor by reason of the
fact that he is or was a Company Indemnified Person against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted
in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Trust, 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 4.3(a), or in defense of any claim,
issue or matter therein, he shall be indemnified, to the full extent
permitted by law, against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii) of this
Section 4.3(a) (unless ordered by a court) shall be made by the Debenture
Issuer only as authorized in the specific case upon a determination that
indemnification of the Company Indemnified Person is proper in the
circumstances because he has met the applicable standard of conduct set forth
in paragraphs (i) and (ii). Such determination shall be made (1) by the
Administrative Trustees by a majority vote of a quorum consisting of such
Administrative Trustees who were not parties to such action, suit or
proceeding, (2) if such a quorum is not obtainable, or, even if obtainable,
if a quorum of disinterested Administrative Trustees so directs, by
independent legal counsel in a written opinion, or (3) by the Common Security
Holder of the Trust.
(v) Expenses (including attorneys' fees) incurred by a Company
Indemnified Person in defending a civil, criminal, administrative or
investigative action, suit or proceeding referred to in paragraphs (i) and
(ii) of this Section 4.3(a) shall be paid by the Debenture Issuer in advance
of the final disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of such Company Indemnified Person to repay
such amount if it shall ultimately be determined that he is not entitled to
be indemnified by the Debenture Issuer as authorized in this Section 4.3(a).
Notwithstanding the foregoing, no advance shall be made by the Debenture
Issuer if a determination is reasonably and promptly made (i) by the
Administrative Trustees by a majority vote of a quorum of disinterested
Administrative Trustees, (ii) if such a quorum is not obtainable, or, even if
obtainable, if a quorum of disinterested Administrative 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 Administrative Trustees, independent legal counsel or
Common Security Holder reasonably determine that such person deliberately
breached his duty to the Trust or the Common Security or Capital Security
Holders.
(vi) The indemnification and advancement of expenses provided by,
or granted pursuant to, the other paragraphs of this Section 4.3(a) shall not
be deemed exclusive of any other rights to which those seeking
indemnification and advancement of expenses may be entitled under any
agreement, vote of stockholders or disinterested directors of the Debenture
Issuer or Capital Security Holders of the Trust or otherwise, both as to
action in his official capacity and as to action in another capacity while
holding such office. All rights to indemnification under this Section 4.3(a)
shall be deemed to be provided by a contract between the Debenture Issuer and
each Company Indemnified Person who serves in such capacity at any time while
this Section 4.3(a) is in effect. Any repeal or modification of this Section
4.3(a) shall not affect any rights or obligations then existing.
(vii) The Sponsor or the Trust may purchase and maintain 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 4.3(a).
(viii) For purposes of this Section 4.3(a), references to "the
Trust" shall include, in addition to the resulting or surviving entity, any
constituent entity (including any constituent of a constituent) absorbed in a
consolidation or merger, so that any person who is or was a director,
trustee, officer or employee of such constituent entity, or is or was serving
at the request of such constituent entity as a director, trustee, officer,
employee or agent of another entity, shall stand in the same position under
the provisions of this Section 4.3(a) with respect to the resulting or
surviving entity as he would have with respect to such constituent entity if
its separate existence had continued.
(ix) The indemnification and advancement of expenses provided by,
or granted pursuant to, this Section 4.3(a) shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to be a
Company Indemnified Person and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(b) The Sponsor agrees to indemnify the (i) the Delaware Trustee,
(ii) any Affiliate of the Delaware Trustee, and (iii) any officers,
directors, shareholders, members, partners, employees, representatives,
nominees, custodians or agents of the Delaware Trustee (each of the Persons
in (i) through (iii) being referred to as a "Fiduciary Indemnified Person")
for, and to hold each Fiduciary Indemnified Person harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against, or
investigating, any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The obligation to
indemnify as set forth in this Section 4.3(b) shall survive the termination
of this Declaration.
SECTION 4.4 Outside Businesses
------------------
Any Covered Person, the Sponsor and the Delaware Trustee may engage
in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the
business of the Trust, and the Trust and the holders of Securities shall have
no rights by virtue of this Declaration in and to such independent ventures
or the income or profits derived therefrom and the pursuit of any such
venture, even if competitive with the business of the Trust, shall not be
deemed wrongful or improper. No Covered Person, the Sponsor or the Delaware
Trustee shall be obligated to present any particular investment or other
opportunity to the Trust even if such opportunity is of a character that, if
presented to the Trust, could be taken by the Trust, and any Covered Person,
the Sponsor and the Delaware Trustee shall have the right to take for its own
account (individually or as a partner or fiduciary) or to recommend to others
any such particular investment or other opportunity. Any Covered Person and
the Delaware Trustee may engage or be interested in any financial or other
transaction with the Sponsor or any Affiliate of the Sponsor, or may act as
depositary for, trustee or agent for or may act on any committee or body of
holders of, securities or other obligations of the Sponsor or its Affiliates.
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 Amendments
----------
At any time before the issue of any Securities, this Declaration
may be amended by, and only by, a written instrument executed by all of the
Administrative Trustees, the Sponsor, the Property Trustee and the Delaware
Trustee.
SECTION 5.2 Termination of Trust
--------------------
(a) The Trust shall terminate and be of no further force or
effect:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor or the revocation of the
Sponsor's charter or of the Trust's certificate of trust;
(iii) upon the entry of a decree of judicial dissolution of
the Sponsor or the Trust; and
(iv) before the issuance of any Securities, with the consent
of all of the Administrative Trustees and the Sponsor.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 5.2(a), the Trustees shall file a certificate of
cancellation with the Secretary of State of the State of Delaware.
SECTION 5.3 Governing Law
-------------
THIS DECLARATION AND THE RIGHTS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE AND ALL RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT
REGARD TO ITS PRINCIPLES OF CONFLICT OF LAWS.
SECTION 5.4 Headings
--------
Headings contained in this Declaration are inserted for convenience
of reference only and do not affect the interpretation of this Declaration or
any provision hereof.
SECTION 5.5 Successors and Assigns
----------------------
Whenever in this Declaration any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
SECTION 5.6 Partial Enforceability
----------------------
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder
of this Declaration, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 5.7 Counterparts
------------
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed
a single signature page.
(Remainder of this page intentionally left blank.)
IN WITNESS WHEREOF, the undersigned have caused this Declaration to
be executed as of the day and year first above written.
/s/ Robert T. Jefferson
-----------------------------------
Name: Robert T. Jefferson
As Administrative Trustee
/s/ Craig V. Starble
-------------------------------------------------
Name: Craig V. Starble
As Administrative Trustee
/s/ Kathleen M. McGillycuddy
-------------------------------------------------
Name: Kathleen M. McGillycuddy
As Administrative Trustee
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By: /s/ Mary Jane Morrissey
--------------------------------------------
Name: Mary Jane Morrissey
Title: Authorized Signatory
BANKBOSTON CORPORATION,
as Sponsor
By: /s/ Kathleen M. McGillycuddy
--------------------------------------------
Name: Kathleen M. McGillycuddy
Title: Executive Director,
Global Treasury
Exhibit A
CERTIFICATE OF TRUST
OF
BANKBOSTON CAPITAL TRUST V
This Certificate of Trust is being executed as of February 26, 1998
for the purposes of organizing a business trust pursuant to the Delaware
Business Trust Act, 12 Del. C. Sections 3801 et seq. (the "Act").
---- -- -- ---
The undersigned hereby certifies as follows:
1. Name. The name of the business trust is "BankBoston Capital
----
Trust V" (the "Trust").
2. Delaware Trustee. The name and business address of the
----------------
Delaware resident trustee of the Trust meeting the requirements of Section
3807 of the Act are as follows:
The Bank of New York (Delaware)
23 White Clay Center, Route 273
Newark, Delaware 19711
3. Effective. This Certificate of Trust shall be effective
---------
immediately upon filing in the Office of the Secretary of State of the State
of Delaware.
IN WITNESS WHEREOF, the undersigned, being all of the trustees of
the Trust, have duly executed this Certificate of Trust as of the day and
year first above written.
THE BANK OF NEW YORK
(DELAWARE),
as Delaware Trustee
By: /s/ Mary Jane Morrissey
-----------------------------------------
Mary Jane Morrissey
Authorized Signatory
ADMINISTRATIVE TRUSTEE
By: /s/ Robert T. Jefferson
-----------------------------------------
Robert T. Jefferson
ADMINISTRATIVE TRUSTEE
By: /s/ Craig V. Starble
-----------------------------------------
Craig V. Starble
ADMINISTRATIVE TRUSTEE
By:/s/ Kathleen M. McGillycuddy
-----------------------------------------
Kathleen M. McGillycuddy
BANKBOSTON CORPORATION
as Sponsor
By:/s/ Kathleen M. McGillycuddy
----------------------------
Kathleen M. McGillycuddy
Executive Director,
Global Treasury
Exhibit 4.7
AMENDED AND RESTATED DECLARATION
OF TRUST
BANKBOSTON CAPITAL TRUST (IV) (V)
Dated as of ,
----
TABLE OF CONTENTS
-----------------
Page
----
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 Property Trustee . . . . . . . . . . . 10
SECTION 2.4 Periodic Reports to Property 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 . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 3.5 Title to Property of the Trust . . . . . . . . . . . 14
SECTION 3.6 Powers and Duties of the Administrative Trustees . . 14
SECTION 3.7 Prohibition of Actions by the Trust and the Trust-
ees . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 3.8 Powers and Duties of the Property Trustee . . . . . . 18
SECTION 3.9 Certain Duties and Responsibilities of the Property
Trustee . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 3.10 Certain Rights of Property Trustee . . . . . . . . . 23
SECTION 3.11 Delaware Trustee . . . . . . . . . . . . . . . . . . 25
SECTION 3.12 Execution of Documents . . . . . . . . . . . . . . . 26
SECTION 3.13 Not Responsible for Recitals or Issuance of Securi-
ties . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 3.14 Duration of Trust . . . . . . . . . . . . . . . . . . 26
SECTION 3.15 Mergers . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities . . . . . . . 28
SECTION 4.2 Responsibilities of the Sponsor . . . . . . . . . . . 28
SECTION 4.3 Right to Proceed . . . . . . . . . . . . . . . . . . 29
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees: Appointment of Co-Trustee . . . . 29
SECTION 5.2 Delaware Trustee . . . . . . . . . . . . . . . . . . 30
SECTION 5.3 Property Trustee; Eligibility . . . . . . . . . . . . 30
SECTION 5.4 Certain Qualifications of Administrative Trustees
and Delaware Trustee Generally . . . . . . . . . . . 31
SECTION 5.5 Administrative Trustees . . . . . . . . . . . . . . . 31
SECTION 5.6 Delaware Trustee. . . . . . . . . . . . . . . . . . . 32
SECTION 5.7 Appointment, Removal and Resignation of Trustees . . 32
SECTION 5.8 Vacancies among Trustees . . . . . . . . . . . . . . 34
SECTION 5.9 Effect of Vacancies . . . . . . . . . . . . . . . . . 34
SECTION 5.10 Meetings . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 5.11 Delegation of Power . . . . . . . . . . . . . . . . . 35
Section 5.12 Merger, Conversion, Consolidation or Succession to
Business . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions . . . . . . . . . . . . . . . . . . . . 36
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities . . . . . . . 36
SECTION 7.2 Execution and Authentication . . . . . . . . . . . . 37
SECTION 7.3 Form and Dating . . . . . . . . . . . . . . . . . . . 37
SECTION 7.4 Registrar and Paying Agent . . . . . . . . . . . . . 39
SECTION 7.5 Paying Agent to Hold Money in Trust . . . . . . . . . 39
SECTION 7.6 Replacement Securities . . . . . . . . . . . . . . . 40
SECTION 7.7 Outstanding Capital Securities . . . . . . . . . . . 40
SECTION 7.8 Capital Securities in Treasury . . . . . . . . . . . 41
SECTION 7.9 Temporary Securities . . . . . . . . . . . . . . . . 41
SECTION 7.10 Cancellation . . . . . . . . . . . . . . . . . . . . 42
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1 Termination of Trust . . . . . . . . . . . . . . . . 43
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities . . . . . . . . . . . . . . . 44
SECTION 9.2 Transfer Procedures and Restrictions . . . . . . . . 44
SECTION 9.3 Deemed Security Holders . . . . . . . . . . . . . . . 49
SECTION 9.4 Book Entry Interests . . . . . . . . . . . . . . . . 49
SECTION 9.5 Notices to Clearing Agency . . . . . . . . . . . . . 49
SECTION 9.6 Appointment of Successor Clearing Agency . . . . . . 50
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 10.2 Exculpation . . . . . . . . . . . . . . . . . . . . . 50
SECTION 10.3 Fiduciary Duty . . . . . . . . . . . . . . . . . . . 51
SECTION 10.4 Indemnification . . . . . . . . . . . . . . . . . . . 52
SECTION 10.5 Outside Businesses . . . . . . . . . . . . . . . . . 55
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year . . . . . . . . . . . . . . . . . . . . . 56
SECTION 11.2 Certain Accounting Matters . . . . . . . . . . . . . 56
SECTION 11.3 Banking . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 11.4 Withholding . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments . . . . . . . . . . . . . . . . . . . . . 58
SECTION 12.2 Meetings of the Holders of Securities; Action by
Written Consent . . . . . . . . . . . . . . . . . . . 60
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Property Trustee . 61
SECTION 13.2 Representations and Warranties of Delaware Trustee . 62
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 14.2 Governing Law . . . . . . . . . . . . . . . . . . . . 64
SECTION 14.3 Intention of the Parties . . . . . . . . . . . . . . 64
SECTION 14.4 Headings . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 14.5 Successors and Assigns . . . . . . . . . . . . . . . 65
SECTION 14.6 Partial Enforceability . . . . . . . . . . . . . . . 65
SECTION 14.7 Counterparts . . . . . . . . . . . . . . . . . . . . 65
ANNEX I TERMS OF SECURITIES . . . . . . . . . . . . . . . . . . . I-1
EXHIBIT A-1 FORM OF CAPITAL SECURITY CERTIFICATE . . . . . . . . . . A1-1
EXHIBIT A-2 FORM OF COMMON SECURITY CERTIFICATE . . . . . . . . . . A2-1
EXHIBIT B SPECIMEN OF DEBENTURE . . . . . . . . . . . . . . . . . . B-1
EXHIBIT C PURCHASE AGREEMENT . . . . . . . . . . . . . . . . . . . . C-1
CROSS-REFERENCE TABLE*
Section of
Trust Indenture Act Section of
of 1939, as amended Declaration
- ------------------- -----------
310(a)........................... 5.3(a)
310(b)........................... 5.3(c)
310(c)........................... Inapplicable
311(a) and (b)................... 5.3(c)
311(c)........................... Inapplicable
312(a)........................... 2.2(a)
312(b)........................... 2.2(b)
313.............................. 2.3
314(a)........................... 2.4
314(b)........................... Inapplicable
314(c)........................... 2.5
314(d)........................... Inapplicable
314(e)........................... 1.1, 2.5
314(f)........................... Inapplicable
315(a)........................... 3.9(b)
315(b)........................... 2.7(a)
315(c)........................... 3.9(a)
315(d)........................... 3.9(b)
316(a) and (b)................... 2.6 and Annex I
316(c)........................... 3.6(f)
317(a)........................... 3.8(c)
317(b)........................... 3.8(i)
318(a)........................... 2.1(e)
_______________
* This Cross-Reference Table does not constitute part of the Declaration
and shall not affect the interpretation of any of its terms or
provisions.
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
BANKBOSTON CAPITAL TRUST (IV) (V)
,
----
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") dated and
effective as of , , by the Trustees (as defined herein), the Sponsor
----
(as defined herein) and by the holders, from time to time, of undivided
beneficial interests in the Trust to be issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor established BankBoston
Capital Trust (IV) (V) (the "Trust"), a trust formed under the Delaware Busi-
ness Trust Act pursuant to a Declaration of Trust dated as of February 26,
1998 (the "Original Declaration"), and a Certificate of Trust filed with the
Secretary of State of the State of Delaware on February 26, 1998, 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 (each as hereinafter
defined);
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, that the
Original Declaration be amended and restated in its entirety as provided
herein 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.
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.
"Administrative Trustee" has the meaning set forth in Section 5.1.
----------------------
"Affiliate" has the same meaning as given to that term in Rule 405
---------
under the Securities Act or any successor rule thereunder.
"Agent" means any Paying Agent or Registrar.
-----
"Authorized Officer" of a Person means any other Person that is
------------------
authorized to legally bind such former Person.
"Book Entry Interest" means a beneficial interest in a Global Cer-
-------------------
tificate registered in the name of a Clearing Agency or its
nominee, ownership and transfers of which shall be maintained and made
through book entries by a Clearing Agency as described in Section 9.4.
"Business Day" means any day other than a Saturday or a Sunday or
------------
a day on which banking institutions in the City of New York or
Boston, Massachusetts are authorized or required by law or executive order to
close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
------------------
Code, 12 Del. Code Section 3801 et seq., as it may be amended from time to
------------ -- ---
time, or any successor legislation.
"Capital 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).
"Capital Securities" has the meaning specified in Section 7.1(a).
------------------
"Capital Securities Guarantee" means the guarantee agreement dated
----------------------------
as of , of Sponsor in respect of the Capital Securities.
----
"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 Capital 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 Capital 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 Time" means the "Closing Time" under the Purchase Agree-
------------
ment.
"Code" means the Internal Revenue Code of 1986, as amended from
----
time to time, or any successor legislation.
"Commission" means the United States Securities and Exchange
----------
Commission as from time to time constituted, or if any
time after the execution of this Declaration such Commission is not existing
and performing the duties now assigned to it under applicable Federal
securities laws, then the body performing such duties at such time.
"Common Securities" has the meaning specified in Section 7.1(a).
-----------------
"Common Securities Guarantee" means the guarantee agreement dated
---------------------------
as of , of the Sponsor in respect of the Common Securities.
"Company Indemnified Person" means
--------------------------
(a) any Administrative Trustee; (b) any Affili-
ate of any Administrative Trustee; (c) any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Administrative
Trustee; or (d) any officer, employee or agent of the Trust or its Affili-
ates.
"Corporate Trust Office" means the office of the Property Trustee
----------------------
at which the corporate trust business of the
Property Trustee shall, at any particular time, be principally administered,
which office at the date of execution of this Agreement is located at 101
Barclay Street, 21 West, New York, New York 10286.
"Covered Person" means: (a) any officer, director, shareholder,
--------------
partner, member, representative, employee or agent of (i) the Trust or
(ii) the Trust's Affiliates; and (b) any Holder of Securities.
"Debenture Issuer" means BankBoston Corporation, a Massachusetts
----------------
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 Bank of New York, 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 ( %) (Floating Rate) Junior Subordinated
----------
Deferrable Interest Debentures due ( ) of the Debenture Issuer
issued pursuant to the Indenture.
"Default" means an event, act or condition that with notice of
-------
lapse of time, or both, would constitute an Event of Default.
"Definitive Capital Securities" shall have the meaning set forth
-----------------------------
in Section 7.3(c).
"Delaware Trustee" has the meaning set forth in Section 5.2.
----------------
"Direct Action" shall have the meaning set forth in Section 3.8(e).
-------------
"Distribution" means a distribution payable to Holders of Securi-
------------
ties in accordance with Section 6.1.
"DTC" means The Depository Trust Company, the initial Clearing
---
Agency.
"Event of Default" in
----------------
respect of the Securities means an Event of Default (as defined in the
Indenture) that has occurred and is continuing in respect of the Debentures.
"Exchange Act" means the Securities Exchange Act of 1934, as
------------
amended from time to time, or any successor legislation.
"Federal Reserve Board" means the Board of Governors of the Federal
---------------------
Reserve System.
"Fiduciary Indemnified Person" has the meaning set forth in Section
----------------------------
10.4(b).
"Global Capital Securities" has the meaning set forth in Section
-------------------------
7.3(a).
"Holder" means a Person in whose name 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 , , among the
--------- ----
Debenture Issuer and the Debenture Trustee, as amended from time to
time.
"Investment Company" means an investment company as defined in the
------------------
Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940,
----------------------
as amended from time to time, or any successor legislation.
"Legal Action" has the meaning set forth in Section 3.6(g).
------------
"Majority in liquidation amount" means, with respect to the Trust
------------------------------
Securities, except as provided in the terms of the Capital Securities
or by the Trust Indenture Act, Holder(s) of outstanding Trust Securities
voting together as a single class or, as the context may require, Holders
of outstanding Capital 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 amount payable on
redemption, liquidation or otherwise, plus accumulated and unpaid
Distributions to the date upon which the voting percentages are
determined) of all outstanding Securities of the relevant class.
"Ministerial Action" has the meaning set forth in Annex I hereto.
------------------
"Officers Certificate" means, with respect to any Person, a
--------------------
certificate signed by the Chairman, a Vice Chairman, the Chief Executive
Officer, the President, a Vice President, the Comptroller, the Executive
Director, Global Treasury, the Clerk or an Assistant Clerk, or the
Secretary or an Assistant Secretary 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 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
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.
"Opinion of Counsel" shall mean a written opinion of counsel, who
------------------
may be an employee of the Sponsor, and who shall be acceptable to the
Property Trustee.
"Paying Agent" has the meaning specified in Section 7.4.
------------
"Person" means a legal person, including any individual, corpora-
------
tion, 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.
"Property Trustee" has the meaning set forth in Section 5.3(a).
----------------
"Property Trustee Account" has the meaning set forth in Section
------------------------
3.8(c).
"Purchase Agreement" means the Purchase Agreement for the offering
------------------
and sale of Capital Securities in the form of Exhibit C.
"Quorum" means a majority of the Administrative Trustees or, if
------
there are only two Administrative Trustees, both of them.
"Registrar" has the meaning set forth in Section 7.4.
---------
"Regulatory Capital Event" means that the Debenture Issuer shall
------------------------
have received an opinion of independent bank regulatory counsel experienced
in such matters to the effect that, as a result of (a) any amendment to, or
change (including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any rules, guidelines or
policies of the Federal Reserve Board or (b) any official administrative
pronouncement or judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or which pronouncement or
decision is announced on or after , , the Capital Securities do
------
not constitute, or within 90 days of the date thereof, will not constitute,
Tier 1 capital (or its then equivalent); provided, however, that the
distribution of the Capital Securities in connection with the liquidation of
the Trust by the Sponsor shall not in and of itself constitute a Regulatory
Capital Event unless such liquidation shall have occurred in connection with
a Tax Event.
"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, with respect to the Property Trustee,
-------------------
any officer within the Corporate Trust Office of the Property Trustee,
including any vice-president, any assistant vice-president, any assistant
secretary, any assistant treasurer or other officer of the Corporate
Trust Office of the Property Trustee customarily performing functions
similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of that officer's
knowledge of and familiarity with the particular subject.
"Securities" or "Trust Securities" means the Common Securities and
---------- ----------------
the Capital 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 Capital Securities Guarantee.
"Special Event" means either a Regulatory Capital Event or a Tax
-------------
Event.
"Sponsor" means BankBoston Corporation, a Massachusetts corpo-
-------
ration, or any successor entity resulting from any merger, consolidation,
amalgamation or other business combination, in its capacity as sponsor of the
Trust.
"Super Majority" has
--------------
the meaning set forth in Section 2.6(a)(ii).
"Tax Event" shall mean the receipt by the Trust and the Debenture
---------
Issuer of an opinion of counsel 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 , , there is more than an insubstantial risk that (i) the
-----
Trust is, or will be within 90 days of the date of such opinion, subject to
United States Federal income tax with respect to income received or accrued
on the Debentures, (ii) the interest payable by the Debenture Issuer on the
Debentures is not, or within 90 days of the date of such opinion will not be,
deductible by the Debenture Issuer, 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 such opinion, subject to more than a de minimis amount of
other taxes, duties or other governmental charges.
"10% in liquidation amount" means, with respect to the Trust
-------------------------
Securities, except as provided in the terms of the Capital Securities or by
the Trust Indenture Act, Holder(s) of outstanding Trust Securities voting
together as a single class or, as the context may require, Holders of out-
standing Capital 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 amount payable on redemption,
liquidation or otherwise, plus accumulated 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.
"Trust Indenture Act" means the Trust Indenture Act of
-------------------
1939, as amended from time to time, or any successor legislation.
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 Property Trustee shall be the only Trustee which is a
Trustee for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this Declaration
limits, qualifies or conflicts with the duties imposed by Sections 310
to 317, inclusive, of the Trust Indenture Act, 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 Administrative Trustees on behalf
of the Trust shall provide the Property Trustee, unless the Property Trustee
is Registrar for the Securities (i) within 14 days after ( )
of each year, a list, in such form as the Property 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 Administrative 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 Property
Trustee by the Sponsor and the Administrative 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 Property Trustee. The Property
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 re-
ceives in the capacity as Paying Agent (if acting in such capacity), provided
--------
that the Property Trustee may destroy any List of Holders
- ----
previously given to it on receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations under
Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Property Trustee.
-------------------------------
Within 60 days after December 15 of each year, commencing December
15, , the Property Trustee shall provide to the Holders of the Capital
----
Securities such reports as are required by Section 313 of the Trust
Indenture Act, if any, in the form and in the manner provided by Section 313
of the Trust Indenture Act. The Property Trustee shall also comply with the
requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Property Trustee.
------------------------------------
Each of the Sponsor and the Administrative Trustees on behalf of
the Trust shall provide to the Property Trustee such documents, reports and
information as are required by Section 314 of the Trust Indenture Act (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.
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
------------------------------------------------
Each of the Sponsor and the Administrative Trustees on behalf of
the Trust shall provide to the Property Trustee such evidence of compliance
with any conditions precedent provided for in this Declaration that relate to
any of the matters set forth in Section 314(c) of the Trust Indenture Act.
Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) 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 Capital
Securities may, by vote, on behalf of the Holders of all of the Capital
Securities, waive any past Event of Default in respect of the Capital
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
aggregate principal amount of the holders of the Debentures (a "Super
Majority") to be waived under the Indenture, the Event of Default under
the Declaration may only be waived by the vote of the Holders of at
least the proportion in aggregate liquidation amount of the Capital
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
Section 316(a)(1)(B) of the Trust Indenture Act and such Section
316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from
this Declaration and the Securities, as permitted by the Trust Indenture
Act. Upon such waiver, any such default shall cease to exist, and any
Event of Default with respect to the Capital 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 Capital Securities or impair any right
consequent thereon. Any waiver by the Holders of the Capital Securities of
an Event of Default with respect to the Capital Securities shall also be
deemed to constitute a waiver by the Holders of the Common Securities of
any such Event of Default with respect to the Common Securities for all
purposes of this Declaration without any further act, vote, or consent of
the Holders of the Common Securities.
(b) The Holders of a Majority in liquidation amount of the Common
Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, provided that, if the underlying Event of
-------- ----
Default under the Indenture:
(i) is not waivable under the Indenture, except where the Holders
of the Common Securities are deemed to have waived such Event of Default
under the Declaration as provided below in this Section 2.6(b), the
Event of Default under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of a Super Majority to be waived,
except where the Holders of the Common Securities are deemed to have
waived such Event of Default under the Declaration as provided below in
this Section 2.6(b), the Event of Default under the Declaration may only
be waived by the vote of the Holders of at least the proportion in
aggregate 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 if all Events of
Default with respect to the Capital Securities have been cured, waived or
otherwise eliminated, and until such Events of Default have been so cured,
waived or otherwise eliminated, the Property Trustee will be deemed to be
acting solely on behalf of the Holders of the Capital Securities and only
the Holders of the Capital Securities will have the right to direct
the Property Trustee in accordance with the terms of the Securities. The
forego- ing provisions of this Section 2.6(b) shall be in lieu of
Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and
such Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are
hereby expressly excluded from this Declaration and the Securities, as
permitted by the Trust Indenture Act. Subject to the foregoing provisions
of this Section 2.6(b), upon such waiver, any such default shall cease
to exist and any Event of Default with respect to the Common Securities
arising therefrom shall be deemed to have been cured for every purpose of
this Declaration, but no such waiver shall extend to any subsequent or
other default or Event of Default with respect to the Common Securities or
impair any right consequent thereon.
(c) A waiver of an Event of Default under the Indenture by the
Property Trustee, at the direction of the Holders of the Capital 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 Section 316(a)(1)(B) of the Trust Indenture Act and such Section
316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from
this Declaration and the Securities, as permitted by the Trust Indenture Act.
SECTION 2.7 Event of Default; Notice.
------------------------
(a) The Property Trustee shall, within 90 days after the occur-
rence 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 Property 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, the Property Trustee shall be protected in withholding such
notice if and so long as a Responsible Officer of the Property Trustee in
good faith determines that the withholding of such notice is in the interests
of the Holders of the Securities.
(b) The Property Trustee shall not be deemed to have knowledge of
any default except:
(i) a default under Sections 5.01(a) and 5.01(b) of the Indenture;
or
(ii) any default as to which the Property Trustee shall have
received written notice or of which a Responsible Officer of the
Property Trustee charged with the administration of the Declaration
shall have actual knowledge.
(c) Within five Business Days after the occurrence of any Event of
Default actually known to a Responsible Officer of the
Property Trustee, the Property Trustee shall transmit
notice of such Event of Default to the holders of the Capital Securities, the
Administrative Trustees and the Sponsor, unless such Event of Default shall
have been cured or waived. The Sponsor and the Administrative Trustees shall
file annually with the Property Trustee a certification as to whether or not
they are in compliance with all the conditions and covenants applicable to
them under this Declaration.
ARTICLE III
ORGANIZATION
SECTION 3.1 Name.
----
The Trust is named "BankBoston Capital Trust (IV) (V)" as such name
may be modified from time to time by the Administrative 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 Administrative Trustees.
SECTION 3.2 Office.
------
The address of the principal office of the Trust is c/o BankBoston
Corporation, P.O. Box 2016, Boston, Massachusetts 02106-2016. On ten Busi-
ness Days written notice to the Holders of Securities, the Administrative
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, (b) use the proceeds from the sale of the Securities to
acquire the Debentures, and (c) except as otherwise limited herein, to engage
in only those other activities necessary, advisable or incidental thereto.
The Trust shall not borrow money, issue debt or reinvest proceeds derived
from investments, mortgage or pledge any of its assets, or otherwise under-
take (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 Property Trustee, the Administrative Trustees shall
have exclusive and complete authority to carry out the purposes of the Trust.
An action taken by the Administrative Trustees in accordance with their
powers shall constitute the act of and serve to bind the Trust and an action
taken by the Property Trustee on behalf of the Trust in accordance with its
powers shall constitute the act of and serve to bind the Trust. In dealing
with the Trustees acting on behalf of the Trust, no person shall be
required to inquire into the authority of the Trustees to bind the
Trust. Persons dealing with the Trust are entitled to rely conclusively on
the power and authority of the Trustees as set forth in this Declaration.
SECTION 3.5 Title to Property of the Trust.
------------------------------
Except as provided in Section 3.8 with respect to the Debentures
and the Property 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 Administrative Trustees.
------------------------------------------------
The Administrative 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 Capital Securities and the Common
Securities in accordance with this Declaration; provided, however, that (i)
-------- -------
the Trust may issue no more than one series of Capital
Securities and no more than one series of Common Securities, (ii) there shall
be no interests in the Trust other than the Securities, and (iii) the issu-
ance of Securities shall be limited to a simultaneous issuance of both Cap-
ital Securities and Common Securities at any Closing Time,
(b) in connection with the issue and sale of the Capital
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 Capital 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 Capital Securities in any State
in which the Sponsor has determined to qualify or register such Capital
Securities for sale;
(iii) at the direction of the Sponsor, execute and file an
application, prepared by the Sponsor, to the New York Stock Exchange or
any other national stock exchange or the Nasdaq Stock Market's National
Market for listing or quotation of the Capital Securities;
(iv) execute and deliver letters, documents, or instruments with
DTC and other Clearing Agencies relating to the Capital Securities;
(v) if required, execute and file with the Commission a registra-
tion statement on Form 8-A, including any amendments thereto, prepared
by the Sponsor, relating to the registration of the Capital Securities
under Section 12(b) or 12(g) of the Exchange Act;
(vi) execute and enter into the Purchase Agreement providing for
the sale of the Capital Securities; and
(vii) execute and file any agreement, certificate or other
document which such Administrative Trustee deems necessary or
appropriate in connection with the issuance and sale of the Capital
Securities;
(c) to acquire the Debentures with the proceeds of the sale of the
Capital Securities and the Common Securities; provided, however, that the
-------- -------
Administrative Trustees shall cause legal title to the Deben-
tures to be held of record in the name of the Property Trustee for the
benefit of the Holders of the Capital Securities and the Holders of Common
Securities;
(d) to cause the Trust to enter into such agreements and
arrangements as may be necessary or desirable in connection with the sale of
Capital Securities to the underwriters thereof and the consummation thereof,
and to take all action, and exercise all discretion, as may be necessary or
desirable in connection with the consummation thereof;
(e) to give the Sponsor and the Property Trustee prompt written
notice of the occurrence of a Special Event;
(f) to establish a record date with respect to all actions to be
taken hereunder that require a record date be established, including and with
respect to, for the purposes of Section 316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue
relevant notices to the Holders of Capital Securities and Holders of Common
Securities as to such actions and applicable record dates;
(g) to take all actions and perform such duties as may be required
of the Administrative Trustees pursuant to the terms of the Securities;
(h) to bring or defend, pay, collect, compromise, arbitrate, re-
sort to legal action, or otherwise adjust claims or demands of or against the
Trust ("Legal Action"), unless pursuant to Section 3.8(e), the Property
Trustee has the exclusive power to bring such Legal Action;
(i) to employ or otherwise engage employees and agents
(who may be designated as officers with titles) and
managers, contractors, advisors, and consultants and pay reasonable compensa-
tion for such services;
(j) to cause the Trust to comply with the Trust's obligations
under the Trust Indenture Act;
(k) to give the certificate required by Section 314(a)(4) of the
Trust Indenture Act to the Property Trustee, which certificate may be
executed by any Administrative Trustee;
(l) to incur expenses that are necessary or incidental to carry
out any of the purposes of the Trust;
(m) to act as, or appoint another Person to act as, Registrar for
the Securities or to appoint a Paying Agent for the Securities as provided in
Section 7.4 except for such time as such power to appoint a Paying Agent is
vested in the Property Trustee;
(n) to give prompt written notice to the Property Trustee and to
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;
(o) 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;
(p) 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 Capital
Securities or to enable the Trust to effect the purposes for which the Trust
was created;
(q) to take any action, not inconsistent with this Declaration or
with applicable law, that the Administrative 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; and
(r) 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 Administrative Trustees, on behalf of the Trust.
The Administrative 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 Administrative
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 Administrative Trustees shall have
none of the powers or the authority of the Property Trustee set forth in
Section 3.8.
Any expenses incurred by the Administrative Trustees pursuant to
this Section 3.6 shall be reimbursed by the Debenture Issuer.
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees.
----------------------------------------------------
(a) The Trust shall not, and the Trustees (including the Property
Trustee) shall not, engage in any activity other than as required or
authorized by this Declaration. The Trust shall not:
(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 Securi-
ties;
(ii) acquire any assets other than as expressly provided herein;
(iii) possess Trust property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness other than loans
represented by the Debentures;
(v) possess any power or otherwise act in such a way as to vary
the Trust assets or the terms of the Securities in any way whatsoever;
(vi) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the
Securities; or
(vii) other than as provided in this Declaration or Annex I, (A)
direct the time, method and place of conducting any proceeding with
respect to any remedy available to the Debenture Trustee, or 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 tax 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 Property Trustee.
-----------------------------------------
(a) The legal title to the Debentures shall be owned by and held
of record in the name of the Property Trustee in trust for the benefit of the
Holders of the Securities. The right, title and interest of the Property
Trustee to the Debentures shall vest automatically in each Person who may
hereafter be appointed as Property 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 Property Trustee shall not transfer its right, title and
interest in the Debentures to the Administrative Trustees or to the Delaware
Trustee (if the Property Trustee does not also act as Delaware Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest bearing trust
account (the "Property Trustee Account") in the name of and under the
exclusive control of the Property 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 Property Trustee, deposit such
funds into the Property Trustee Account and make payments to the Holders
of the Capital Securities and Holders of the Common Securities from the
Property Trustee Account in accordance with Section 6.1. Funds in the
Property Trustee Account shall be held uninvested until disbursed in ac-
cordance with this Declaration. The Property Trustee Account shall be
an account that is maintained with a banking institution the rating on
whose long-term unsecured indebtedness is at least equal to the
rating assigned to the Capital Securities by a "nationally recognized
statistical rating organization", as that term is defined for purposes
of Rule 436(g)(2) under the Securities Act;
(ii) engage in such ministerial activities as shall be necessary or
appropriate to effect the redemption of the Capital Securities and the
Common Securities to the extent the Debentures are redeemed or mature;
and
(iii) upon written notice of distribution issued by the Admi-
nistrative Trustees in accordance with the terms of the Securities,
engage in such ministerial activities as shall be necessary or appropri-
ate to effect the distribution of the Debentures to Holders of Secu-
rities upon the occurrence of certain events.
(d) The Property Trustee shall take all actions and perform such
duties as may be specifically required of the Property Trustee pursuant to
the terms of the Securities.
(e) Subject to Section 3.9(a), the Property Trustee shall take any
Legal Action which arises out of or in connection with an Event of Default of
which a Responsible Officer of the Property Trustee has actual knowledge or
the Property Trustee's duties and obligations under this Declaration or the
Trust Indenture Act and if such Property Trustee shall have failed to take
such Legal Action, the Holders of the Capital Securities may take such Legal
Action, to the same extent as if such Holders of Capital Securities held an
aggregate principal amount of Debentures equal to the aggregate liquidation
amount of such Capital Securities, without first proceeding against the
Property 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 the principal of or premium, if any, or
interest on the Debentures on the date such principal, premium, if any, or
interest is otherwise payable (or in the case of redemption, on the redemp-
tion date), then a Holder of Capital Securities may directly institute a
proceeding for enforcement of payment to such Holder of the principal of or
premium, if any, or interest on the Debentures having a principal amount
equal to the aggregate liquidation amount of the Capital 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 Capital Securities to the extent of any payment made by the
Debenture Issuer to such Holder of Capital Securities in such Direct Action.
Except as provided in the preceding sentences, the Holders of Capital
Securities will not be able to exercise directly any other remedy available
to the holders of the Debentures.
(f) The Property Trustee shall not resign as a Trustee unless
either:
(i) the Trust has been completely liquidated and the proceeds of
the liquidation distributed to the Holders of Securities pursuant to the
terms of the Securities; or
(ii) a Successor Property Trustee has been appointed and has
accepted that appointment in accordance with Section 5.7.
(g) The Property 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 Property Trustee occurs and is continuing, the Property 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 Property Trustee shall be authorized to undertake any
actions set forth in Section 317(a) of the Trust Indenture Act.
(i) For such time as the Property Trustee is the Paying Agent, the
Property Trustee may authorize one or more Persons to act as additional
Paying Agents and to pay Distributions, redemption payments or liquidation
payments on behalf of the Trust with respect to all securities and any such
Paying Agent shall comply with Section 317(b) of the Trust Indenture Act.
Any such additional Paying Agent may be removed by the Property Trustee at
any time the Property Trustee remains as Paying Agent and a successor Paying
Agent or additional Paying Agents may be (but are not required to be) ap-
pointed at any time by the Property Trustee.
(j) Subject to this Section 3.8, the Property Trustee shall have
none of the duties, liabilities, powers or the authority of the
Administrative Trustees set forth in Section 3.6.
The Property 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 Property 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 Property Trustee.
-----------------------------------------------------------
(a) The Property Trustee, before the occurrence of any Event of
Default and after the curing of all Trust 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 Property 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 Property Trustee has
actual knowledge, the Property 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 Property Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Property Trustee shall
be determined solely by the express provisions of this Declaration
and in the Securities and the Property 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 against the Property Trustee; and
(B) in the absence of bad faith on the part of the Property
Trustee, the Property 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 Property Trustee and conforming to the requirements of this
Declaration; provided, however, that in the case of any such
-------- -------
certificates or opinions that by any provision hereof are specifically
required to be furnished to the Property Trustee, the Property 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 Property Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in accor-
dance with the direction of the Holders of a Majority in liquidation
amount of the Securities relating to the time, method and place of con-
ducting any proceeding for any remedy available to the Property Trustee,
or exercising any trust or power conferred upon the Property Trustee
under this Declaration;
(iv) no provision of this Declaration shall require the Property
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 Property Trustee against such
risk or liability is not reasonably assured to it;
(v) the Property Trustee's sole duty with respect to the custody,
safe keeping and physical preservation of the Debentures and the
Property Trustee Account shall be to deal with such property in a
similar manner as the Property Trustee deals with similar property for
its own account, subject to the protections and limitations on liability
afforded to the Property Trustee under this Declaration and the Trust
Indenture Act;
(vi) the Property 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 Property 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 Property Trustee need not be segre-
gated from other funds held by it except in relation to the Property
Trustee Account maintained by the Property Trustee pursuant to Section
3.8(c)(i) and except to the extent otherwise required by law; and
(viii) the Property Trustee shall not be responsible for monitoring
the compliance by the Administrative Trustees or the Sponsor with their
respective duties under this Declaration, nor shall the Property Trustee
be liable for any default or misconduct of the Administrative Trustees
or the Sponsor.
SECTION 3.10 Certain Rights of Property Trustee.
------------------------------------
(a) Subject to the provisions of Section 3.9:
(i) the Property 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 Administrative
Trustees contemplated by this Declaration may be sufficiently evidenced
by an Officers' Certificate;
(iii) whenever in the administration of this Declaration, the
Property Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder,
the Property Trustee (unless other evidence is herein specifically pre-
scribed) 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 Admi-
nistrative Trustees;
(iv) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any fi-
nancing or continuation statement or any filing under tax or securities
laws) or any rerecording, refiling or registration thereof;
(v) the Property 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 Property 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 Property 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 Property Trustee security and indemnity, reasonably
satisfactory to the Property Trustee, against the costs, expenses (in-
cluding reasonable attorneys' fees and expenses and the expenses of the
Property Trustee's agents, nominees or custodians) and liabilities that
might be incurred by it in complying with such request or direction, in-
cluding such reasonable advances as may be requested by the Property
Trustee provided, that, nothing contained in this Section 3.10(a)(vi)
shall be taken to relieve the Property 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 Property 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 Property Trustee, in
its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit;
(viii) the Property 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 Property
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 Property Trustee or its agents
hereunder shall bind the Trust and the Holders of the Securities, and
the signature of the Property 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 Property 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 Property Trustee's or its agent's taking such action;
(x) whenever in the administration of this Declaration the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Property 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 Property Trustee under the terms of
the Securities in respect of such remedy, right or action, (ii) may re-
frain 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 instruc-
tions;
(xi) except as otherwise expressly provided by this Declaration,
the Property Trustee shall not be under any obligation to take any
action that is discretionary under the provisions of this Declaration;
and
(xii) the Property Trustee shall not be liable for any action
taken, suffered, or omitted to be taken by it in good faith, without
negligence, 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 Property 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 Property
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
Property 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 responsi-
bilities of the Administrative Trustees or the Property Trustee described in
this Declaration. Except as set forth in Section 5.2, the Delaware Trustee
shall be a Trustee for the sole and limited purpose of fulfilling the
requirements of Section 3807 of the Business Trust Act.
SECTION 3.12 Execution of Documents.
----------------------
Unless otherwise determined by the Administrative Trustees, and
except as otherwise required by the Business Trust Act or provided herein,
any Administrative Trustee is authorized to execute on behalf of the Trust
any documents that the Administrative Trustees have the power and authority
to execute pursuant to this Declaration.
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained in this Declaration and the Securities shall
be taken as the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations
as to the value or condition of the property of the Trust or any part
thereof. The Trustees make no representations as to the validity or
sufficiency of this Declaration or the Securities.
SECTION 3.14 Duration of Trust.
-----------------
The Trust, unless terminated pursuant to the provisions of Article
VIII hereof, shall have existence up to .
------------
SECTION 3.15 Mergers.
-------
(a) The Trust may not merge with or into, consolidate,
amalgamate, or be replaced by, or convey, transfer or lease its properties
and assets as an entirety or substantially as an entirety to any Person,
except as described in Section 3.15(b) and (c).
(b) The Trust may, at the request of the Sponsor, with the consent
of the Administrative Trustees or, if there are more than two, a majority of
the Administrative Trustees and without the consent of the Holders of the
Securities, the Delaware Trustee or the Property Trustee, merge with or into,
consolidate, amalgamate, or be replaced by, or convey, transfer or lease its
properties and assets as an entirety or substantially as an entirety to, a
trust organized as such under the laws of any State; provided that:
-------- ----
(i) such successor entity (the "Successor Entity") either:
(A) expressly assumes all of the obligations of the Trust
under the Securities; or
(B) substitutes for the Securities other securities having
substantially the same terms as the Securities (the "Successor
Securities") so long as the Successor Securities rank the same as
the Securities rank with respect to Distributions and payments upon
liquidation, redemption and otherwise;
(ii) the Sponsor expressly appoints a trustee of the Successor
Entity that possesses the same powers and duties as the Property Trustee
as the Holder of the Debentures;
(iii) the 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 Capital
Securities are then listed or quoted;
(iv) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause the Capital Securities (in-
cluding 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 an independent counsel to the Trust experienced in such mat-
ters 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 (in-
cluding 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; and
(viii) the Sponsor or any permitted successor or assignee owns all
of the common securities of such Successor Entity and guarantees the
obligations of such Successor Entity under the Successor Securities at
least to the extent provided by the Capital Securities Guarantee and the
Common Securities Guarantee.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except
with the consent of Holders of 100% in liquidation amount of the Securities,
consolidate, amalgamate, merge with or into, or be replaced by, or convey,
transfer or lease its properties and assets as an entirety or substantially
as an entirety to, any other entity or permit any other entity to consoli-
date, 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 not to be classified as a grantor trust for
United States Federal income tax purposes.
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities.
---------------------------------------
At the Closing Time, the Sponsor will purchase all of the Common
Securities then issued by the Trust, in an amount at least equal to 3% of the
capital of the Trust, at the same time as the Capital Securities are issued
and sold.
SECTION 4.2 Responsibilities of the Sponsor.
-------------------------------
In connection with the issue and sale of the Capital Securities,
the Sponsor shall have the exclusive right and responsibility to engage in
the following activities:
(a) to prepare for filing by the Trust with the Commission a
registration statement on Form S-3 in relation to the Capital Securities, in-
cluding 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 Capital Securities and to do
any and all such acts, other than actions which must be taken by the Trust,
and advise the Trust of actions it must take, and prepare for execution and
filing any documents to be executed and filed by the Trust, as the Sponsor
deems necessary or advisable in order to comply with the applicable laws of
any such States;
(c) if deemed necessary or advisable by 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 or
quotation of the Capital 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
Capital Securities under Section 12(b) or 12(g) of the Exchange Act, includ-
ing any amendments thereto; and
(e) to negotiate the terms of the Purchase Agreement providing for
the sale of the Capital Securities.
SECTION 4.3 Right to Proceed.
----------------
The Sponsor acknowledges the rights of the Holders of Capital
Securities, in the event that a failure of the Trust to pay Distributions on
the Capital Securities is attributable to the failure of the Company to pay
interest or principal on the Debentures, to institute a proceeding directly
against the Debenture Issuer for enforcement of its payment obligations on
the Debentures.
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees: Appointment of Co-Trustee.
---------------------------------------------
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 (an "Administrative Trustee"); and (3) one Trustee shall be the
Property Trustee for so long as this Decla- ration 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 applica- ble requirements.
Notwithstanding the above, unless an Event of Default shall have occurred
and be continuing, at any time or times, for the purpose of meeting the
legal requirements of the Trust Indenture Act or of any jurisdiction
in which any part of the Trust's property may at the time be located, the
Holders of a Majority in liquidation amount of the Common Securities
acting as a class at a meeting of the Holders of the Common
Securities, and the Administrative Trustees shall have power to appoint
one or more persons either to act as a co-trustee, jointly with the
Property Trustee, of all or any part of the Trust's property, or to act
as separate trustee of any such property, in either case with such
powers as may be provided in the instrument of appointment, and to vest
in such person or persons in such capacity any property, title, right or
power deemed necessary or desirable, subject to the provisions of this
Declaration. In case an Event of Default has occurred and is continuing,
the Property Trustee alone shall have power to make any such appointment of
a co-trustee.
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 Property Trustee has
-------- ----
its principal place of business in the State of Delaware and otherwise
meets the requirements of applicable law, then the Property Trustee shall
also be the Delaware Trustee and Section 3.11 shall have no application.
SECTION 5.3 Property Trustee; Eligibility.
-----------------------------
(a) There shall at all times be one Trustee (the "Property
Trustee") which shall act as Property Trustee which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under the laws
of the United States of America or any State or Territory thereof or of
the District of Columbia, or a corporation or Person permitted by the
Commission to act as an institutional trustee under the Trust Indenture
Act, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least 50 million U.S.
dollars ($50,000,000), and subject to supervision or examination by
Federal, State, Territorial or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the supervising or examining authority
referred to above, then for the purposes of this Section 5.3(a)(ii), the
combined capital and surplus of such corporation shall be deemed to be
its combined capital and surplus as set forth in its most recent report
of condition so published.
(b) If at any time the Property Trustee shall cease to be eligible
to so act under Section 5.3(a), the Property Trustee shall immediately resign
in the manner and with the effect set forth in Section 5.7(c).
(c) If the Property Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act,
the Property Trustee and the Holder of the Common Securities (as if it were
the obligor referred to in Section 310(b) of the Trust Indenture Act) shall
in all respects comply with the provisions of Section 310(b) of the Trust In-
denture Act.
(d) The Capital Securities Guarantee shall be deemed to be
specifically described in this Declaration for purposes of clause (i) of the
first provision contained in Section 310(b) of the Trust Indenture Act.
(e) The initial Property Trustee shall be:
The Bank of New York
101 Barclay Street
New York, New York 10286
Attention: Corporate Trust Trustee
Administration
SECTION 5.4 Certain Qualifications of
-------------------------
Administrative Trustees and Delaware
------------------------------------
Trustee Generally.
-----------------
Each Administrative Trustee and the Delaware Trustee
(unless the Property Trustee also acts as Delaware Trustee) shall be either a
natural person who is at least 21 years of age or a legal entity that shall
act through one or more Authorized Officers.
SECTION 5.5 Administrative Trustees.
-----------------------
The initial Administrative Trustees shall be:
Robert T. Jefferson
Kathleen M. McGillycuddy
Craig V. Starble
(a) Except as expressly set forth in this Declaration and except
if a meeting of the Administrative Trustees is called with respect to any
matter over which the Administrative Trustees have power to act, any power of
the Administrative Trustees may be exercised by, or with the consent of, any
one such Administrative Trustee.
(b) Unless otherwise determined by the Administrative Trustees,
and except as otherwise required by the Business Trust Act or applicable law,
any Administrative Trustee is authorized to execute on behalf of the Trust
any documents which the Administrative Trustees have the power and authority
to cause the Trust to execute pursuant to Section 3.6; and
(c) An Administrative 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
Administrative Trustees have power and authority to cause the Trust to
execute pursuant to Section 3.6.
SECTION 5.6 Delaware Trustee.
-----------------
The initial Delaware Trustee shall be:
The Bank of New York (Delaware)
23 White Clay Center
Route 273
Newark, Delaware 19711
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:
(i) until the issuance of any Securities, by written instrument
executed by the Sponsor;
(ii) unless an Event of Default shall have occurred and be
continuing 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; and
(iii) if an Event of Default shall have occurred and be continuing
after the issuance of the Securities, with respect to the Property
Trustee or the Delaware Trustee, by vote of Holders of a Majority in
liquidation amount of the Capital Securities voting as a class at a
meeting of Holders of the Capital Securities.
(b) (i) The Trustee that acts as Property Trustee shall not be
removed in accordance with Section 5.7(a) until a Successor Property Trustee
has been appointed and has accepted such appointment by written instrument
executed by such Successor Property Trustee and delivered to the Administra-
tive Trustees and the Sponsor; and
(ii) the Trustee that acts as Delaware Trustee shall not be removed
in accordance with this Section 5.7(a) until a successor Trustee
possessing the qualifications to act as Delaware Trustee under Sections
5.2 and 5.4 (a "Successor Delaware Trustee") has been appointed and has
accepted such appointment by written instrument executed by such Succes-
sor Delaware Trustee and delivered to the Administrative 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 resigna-
tion. Any Trustee may resign from office (without need for prior or subse-
quent accounting) by an instrument in writing signed by the Trustee and de-
livered 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 Property
Trustee shall be effective:
(A) until a Successor Property Trustee has been appointed and
has accepted such appointment by instrument executed by such Suc-
cessor Property Trustee and delivered to the Trust, the Sponsor and
the resigning Property 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
Property Trustee, as the case may be, if the Property Trustee or the Delaware
Trustee delivers an instrument of resignation in accordance with this Section
5.7.
(e) If no Successor Property Trustee or Successor Delaware Trustee
shall have been appointed and accepted appointment as provided in this Sec-
tion 5.7 within 60 days after delivery of an instrument of resignation or
removal, the Property Trustee or Delaware Trustee resigning or being removed,
as applicable, may petition any court of competent jurisdiction for appoint-
ment of a Successor Property Trustee or Successor Delaware Trustee. Such
court may thereupon, after prescribing such notice, if any, as it may deem
proper and prescribe, appoint a Successor Property Trustee or Successor
Delaware Trustee, as the case may be.
(f) No Property Trustee or Delaware Trustee shall be liable for
the acts or omissions to act of any Successor Property 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 Administrative Trustees or,
if there are more than two, a majority of the Administrative 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, dissolu-
tion, 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 Administrative Trustees shall occur, until such vacancy is filled
by the appointment of an Administrative Trustee in accordance with Section
5.7, the Administrative Trustees in office, regardless of their number, shall
have all the powers granted to the Administrative Trustees and shall dis-
charge all the duties imposed upon the Administrative Trustees by this Decla-
ration.
SECTION 5.10 Meetings.
--------
If there is more than one Administrative Trustee, meetings of the
Administrative Trustees shall be held from time to time upon the call of any
Administrative Trustee. Regular meetings of the Administrative Trustees may
be held at a time and place fixed by resolution of the Administrative
Trustees. Notice of any in-person meetings of the Administrative Trustees
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 such meeting. Notice of any telephonic meetings of the Administrative
Trustees or any committee thereof shall be hand delivered or otherwise deliv-
ered in writing (including by facsimile, with a hard copy by overnight couri-
er) 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 an Administrative Trustee at
a meeting shall constitute a waiver of notice of such meeting except where an
Administrative 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 Declara-
tion, any action of the Administrative Trustees may be taken at a meeting by
vote of a majority of the Administrative Trustees present (whether in person
or by telephone) and eligible to vote with respect to such matter, provided
--------
that a Quorum is present, or without a meeting by the unanimous written con-
- ----
sent of the Administrative Trustees. In the event there is only one
Administrative Trustee, any and all action of such Administrative Trustee
shall be evidenced by a written consent of such Administrative Trustee.
SECTION 5.11 Delegation of Power.
-------------------
(a) Any Administrative Trustee may, by power of attorney consis-
tent 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 contemplat-
ed in Section 3.6, including any registration statement or amendment thereto
filed with the Commission, or making any other governmental filing.
(b) The Administrative 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 Administrative Trustees or otherwise as the
Administrative 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 Property Trustee or the Delaware Trustee
or any Administrative Trustee that is not a natural person, as the case may
be, may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which
the Property 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 Property Trustee or the Delaware Trustee, as
the case may be, shall be the successor of the Property Trustee or the
Delaware Trustee, as the case may be, hereunder, provided such corporation
shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions.
-------------
Holders shall receive Distributions in accordance with the
applicable terms of the relevant Holder's Securities. If and to the extent
that the Debenture Issuer makes a payment of interest (including Compounded
Interest (as defined in the Indenture) and Additional Interest (as defined in
the Indenture)), premium and/or principal on the Debentures held by the
Property Trustee (the amount of any such payment being a "Payment Amount"),
the Property Trustee shall and is directed, to the extent funds are available
for that purpose, to make a distribution (a "Distribution") of the Payment
Amount to Holders.
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.
---------------------------------------
(a) The Administrative Trustees shall on behalf of the Trust issue
one class of capital securities representing undivided beneficial interests
in the assets of the Trust having such terms as are set forth in Annex I (the
"Capital Securities") and one class of common securities representing undi-
vided 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 Cap-
ital Securities and the Common Securities.
(b) 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.
(c) Upon issuance of the Securities as provided in this Declara-
tion, the Securities so issued shall be deemed to be validly issued, fully
paid and non-assessable.
(d) Every Person, by virtue of having become a Holder or a Capital
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 Authentication.
----------------------------
(a) The Securities shall be signed on behalf of the Trust by an
Administrative Trustee. In case any Administrative Trustee of the Trust who
shall have signed any of the Securities shall cease to be such Administrative
Trustee before the Securities so signed shall be delivered by the Trust, such
Securities nevertheless may be delivered as though the person who signed such
Securities had not ceased to be such Administrative Trustee; and any
Securities may be signed on behalf of the Trust by such persons who, at the
actual date of execution of such Security, shall be the Administrative
Trustees of the Trust, although at the date of the execution and delivery of
the Declaration any such person was not such an Administrative Trustee.
(b) One Administrative Trustee shall sign the Capital Securities
for the Trust by manual or facsimile signature. Unless otherwise determined
by the Trust, such signature shall, in the case of Common Securities, be a
manual signature.
A Capital Security shall not be valid until authenticated by the
manual signature of an authorized signatory of the Property Trustee. The
signature shall be conclusive evidence that the Capital Security has been au-
thenticated under this Declaration.
Upon a written order of the Trust signed by one Administrative
Trustee, the Property Trustee shall authenticate the Capital Securities for
original issue. The aggregate number of Capital Securities outstanding at
any time shall not exceed the number set forth in the Terms in Annex I hereto
except as provided in Section 7.6.
The Property Trustee may appoint an authenticating agent acceptable
to the Trust to authenticate Capital Securities. An authenticating agent may
authenticate Capital Securities whenever the Property Trustee may do so.
Each reference in this Declaration to authentication by the Property Trustee
includes authentication by such agent. An authenticating agent has the same
rights as the Property Trustee to deal with the Sponsor or an Affiliate.
SECTION 7.3 Form and Dating.
---------------
The Capital Securities and the Property Trustee's certificate of
authentication shall be substantially in the form of Exhibit A-1 and the
Common Securities shall be substantially in the form of Exhibit A-2, each of
which is hereby incorporated in and expressly made a part of this Decla-
ration. Certificates representing the Securities may be printed,
lithographed or engraved or may be produced in any other manner as is
reasonably acceptable to the Administrative Trustees, as evidenced by their
execution thereof. The Securities may have letters, CUSIP or other numbers,
notations or other marks of identification or designation and such legends or
endorsements required by law, stock exchange rule, agreements to which the
Trust is subject, if any, or usage (provided that any such notation, legend
or endorsement is in a form acceptable to the Trust). The Trust at the
direction of the Sponsor shall furnish any such legend not contained in
Exhibit A-1 to the Property Trustee in writing. Each Capital Security shall
be dated the date of its authentication. The terms and provisions of the
Securities set forth in Annex I and the forms of Securities set forth in
Exhibits A-1 and A-2 are part of the terms of this Declaration and to the
extent applicable, the Property Trustee and the Sponsor, by their execution
and delivery of this Declaration, expressly agree to such terms and provi-
sions and to be bound thereby.
(a) Global Securities. The Capital Securities shall be issued in
-----------------
the form of one or more permanent global Securities in definitive, fully
registered form without Distribution coupons with the appropriate global
legends set forth in Exhibit A-1 hereto (a "Global Capital Security"), which
shall be deposited on behalf of the purchasers of the Capital Securities
represented thereby with the Property Trustee, at its New York office, as
custodian for the Clearing Agency, and registered in the name of the Clearing
Agency or a nominee of the Clearing Agency, duly executed by the Trust and
authenticated by the Property Trustee as hereinafter provided. The number of
Capital Securities represented by the Global Capital Security may from time
to time be increased or decreased by adjustments made on the records of the
Property Trustee and the Clearing Agency or its nominee as hereinafter
provided.
(b) Book-Entry Provisions. This Section 7.3(b) shall apply only
---------------------
to the Global Capital Securities and such other Capital
Securities in global form as may be authorized by the Trust to be deposited
with or on behalf of the Clearing Agency.
The Trust shall execute and the Property Trustee shall, in
accordance with this Section 7.3, authenticate and make available for
delivery initially one or more Global Capital Securities that (i) shall be
registered in the name of Cede & Co. or other nominee of such Clearing Agency
and (ii) shall be delivered by the Trustee to such Clearing Agency or
pursuant to such Clearing Agency's written instructions or held by the
Property Trustee as custodian for the Clearing Agency.
Members of, or participants in, the Clearing Agency ("Par-
ticipants") shall have no rights under this Declaration with respect to any
Global Capital Security held on their behalf by the Clearing Agency or by the
Property Trustee as the custodian of the Clearing Agency or under such Global
Capital Security, and the Clearing Agency may be treated by the Trust, the
Property Trustee and any agent of the Trust or the Property Trustee as the
absolute owner of such Global Capital Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Trust, the
Property Trustee or any agent of the Trust or the Property Trustee from
giving effect to any written certification, proxy or other authorization fur-
nished by the Clearing Agency or impair, as between the Clearing Agency and
its Participants, the operation of customary practices of such Clearing
Agency governing the exercise of the rights of a holder of a beneficial
interest in any Global Capital Security.
(c) Definitive Capital Securities. Except as provided in Section
-----------------------------
7.9, owners of beneficial interests in a Global Capital Security will not be
entitled to receive physical delivery of certificated Capital Securities
("Definitive Capital Securities").
SECTION 7.4 Registrar and Paying Agent.
--------------------------
The Trust shall maintain in the Borough of Manhattan, The City of
New York, (i) an office or agency where Capital Securities may be presented
for registration of transfer ("Registrar") and (ii) an office or agency where
Capital Securities may be presented for payment ("Paying Agent"). The
Registrar shall keep a register of the Capital Securities and of their
transfer. The Trust may appoint the Registrar and the Paying Agent and may
appoint one or more co-registrars and one or more additional paying agents in
such other locations as it shall determine. The term "Registrar" includes
any additional registrar and the term "Paying Agent" includes any additional
paying agent. The Trust may change any Paying Agent, Registrar or co-
registrar without prior notice to any Holder. The Paying Agent shall be
permitted to resign as Paying Agent upon 30 days' written notice to the
Administrative Trustees. The Trust shall notify the Property Trustee of the
name and address of any Agent not a party to this Declaration. If the Trust
fails to appoint or maintain another entity as Registrar or Paying Agent, the
Property Trustee shall act as such. The Trust or any of its Affiliates may
act as Paying Agent or Registrar. The Trust shall act as Paying Agent,
Registrar and co-registrar for the Common Securities.
The Trust initially appoints the Property Trustee as Registrar and
Paying Agent for the Capital Securities.
SECTION 7.5 Paying Agent to Hold Money in Trust.
-----------------------------------
The Trust shall require each Paying Agent other than the Property
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of Holders or the Property Trustee all money held by the Paying Agent
for the payment of liquidation amounts or Distributions on the Securities,
and will notify the Property Trustee if there are insufficient funds for such
purpose. While any such insufficiency continues, the Property Trustee may
require a Paying Agent to pay all money held by it to the Property Trustee.
The Trust at any time may require a Paying Agent to pay all money held by it
to the Property Trustee and to account for any money disbursed by it. Upon
payment over to the Property Trustee, the Paying Agent (if other than the
Trust or an Affiliate of the Trust) shall have no further liability for the
money. If the Trust or the Sponsor or an Affiliate of the Trust or the
Sponsor acts as Paying Agent, it shall segregate and hold in a separate trust
fund for the benefit of the Holders all money held by it as Paying Agent.
SECTION 7.6 Replacement Securities.
----------------------
If the holder of a Security claims that the Security has been lost,
destroyed or wrongfully taken or if such Security is mutilated and is
surrendered to the Trust or in the case of the Capital Securities to the
Property Trustee, the Trust shall issue and the Property Trustee shall
authenticate a replacement Security if the Property Trustee's and the Trust's
requirements, as the case may be, are met. An indemnity bond must be
provided by the Holder which, in the judgment of the Property Trustee, is
sufficient to protect the Trustees, the Sponsor or any authenticating agent
from any loss which any of them may suffer if a Security is replaced. The
Trust may charge such holder for its expenses in replacing a Security.
Every replacement Security is an additional beneficial interest in
the Trust.
SECTION 7.7 Outstanding Capital Securities.
------------------------------
The Capital Securities outstanding at any time are all the Capital
Securities authenticated by the Property Trustee except for those cancelled
by it, those delivered to it for cancellation, and those described in this
Section are not outstanding.
If a Capital Security is replaced, paid or purchased pursuant to
Section 7.6 hereof, it ceases to be outstanding unless the Property Trustee
receives proof satisfactory to it that the replaced, paid or purchased
Capital Security is held by a bona fide purchaser.
If Capital Securities are considered paid in accordance with the
terms of this Declaration, they cease to be outstanding and Distributions on
them shall cease to accumulate.
A Capital Security does not cease to be outstanding because one of
the Trust, the Sponsor or an Affiliate of the Sponsor holds the Security.
SECTION 7.8 Capital Securities in Treasury.
------------------------------
In determining whether the Holders of the required amount of
Securities have concurred in any direction, waiver or consent, Capital
Securities owned by the Trust, the Sponsor or an Affiliate of the Sponsor, as
the case may be, shall be disregarded and deemed not to be outstanding,
except that for the purposes of determining whether the Property Trustee
shall be fully protected in relying on any such direction, waiver or consent,
only Securities which a Responsible Officer of the Property Trustee actually
knows are so owned shall be so disregarded.
SECTION 7.9 Temporary Securities.
--------------------
(a) Until Definitive Securities are ready for delivery, the Trust
may prepare and, in the case of the Capital Securities, the Property Trustee
shall authenticate temporary Securities. Temporary Securities shall be
substantially in the form of Definitive Securities but may have variations
that the Trust considers appropriate for temporary Securities. Without
unreasonable delay, the Trust shall prepare and, in the case of the Capital
Securities, the Property Trustee shall authenticate Definitive Securities in
exchange for temporary Securities.
(b) A Global Capital Security deposited with the Clearing Agency
or with the Property Trustee as custodian for the Clearing Agency pursuant to
Section 7.3 shall be transferred to the beneficial owners thereof in the form
of certificated Capital Securities only if such transfer complies with
Section 9.2 and (i) the Clearing Agency notifies the Company that it is
unwilling or unable to continue as Clearing Agency for such Global Capital
Security or if at any time such Clearing Agency ceases to be a "clearing
agency" registered under the Exchange Act and a clearing agency is not ap-
pointed by the Sponsor within 90 days of such notice, (ii) a Default or an
Event of Default has occurred and is continuing or (iii) the Trust at its
sole discretion elects to cause the issuance of certificated Capital Securi-
ties.
(c) Any Global Capital Security that is transferable to the
beneficial owners thereof in the form of certificated Capital Securities
pursuant to this Section 7.9 shall be surrendered by the Clearing Agency to
the Property Trustee located in the Borough of Manhattan, The City of New
York, to be so transferred, in whole or from time to time in part, without
charge, and the Property Trustee shall authenticate and make available for
delivery, upon such transfer of each portion of such Global Capital Security,
an equal aggregate liquidation amount of Securities of authorized
denominations in the form of certificated Capital Securities. Any portion of
a Global Capital Security transferred pursuant to this Section shall be
registered in such names as the Clearing Agency shall direct.
(d) Subject to the provisions of Section 7.9(c), the Holder of a
Global Capital Security may grant proxies and otherwise authorize any person,
including Participants and persons that may hold interests through
Participants, to take any action which such Holder is entitled to take under
this Declaration or the Securities.
(e) In the event of the occurrence of any of the events specified
in Section 7.9(b), the Trust will promptly make available to the Property
Trustee a reasonable supply of certificated Capital Securities in fully
registered form without distribution coupons.
SECTION 7.10 Cancellation.
------------
The Trust at any time may deliver Capital Securities to the
Property Trustee for cancellation. The Registrar and Paying Agent shall
forward to the Property Trustee any Capital Securities surrendered to them
for registration of transfer, redemption, exchange or payment. The Property
Trustee shall promptly cancel all Capital Securities, surrendered for
registration of transfer, redemption, exchange, payment, replacement or
cancellation and shall dispose of cancelled Capital Securities as the Trust
directs, provided that the Property Trustee shall not be obligated to destroy
Capital Securities. The Trust may not issue new Capital Securities to
replace Capital Securities that it has paid or that have been delivered to
the Property Trustee for cancellation.
SECTION 7.11 CUSIP Numbers.
-------------
The Trust in issuing the Capital Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Property Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Holders of
Capital Securities; provided that any such notice may state that no
--------
representation is made as to the correctness of such numbers either as
printed on the Capital Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Capital Securities, and any such redemption shall not
be affected by any defect in or omission of such numbers. The Sponsor will
promptly notify the Property Trustee of any change in the CUSIP numbers.
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1 Termination of Trust.
--------------------
(a) The Trust shall automatically terminate:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of dissolution or liquidation
or its equivalent with respect to the Sponsor; or the revocation of the
Sponsor's charter and the expiration of 90 days after the date of
revocation without a reinstatement thereof;
(iii) following the distribution of a Like Amount of the
Debentures to the Holders of the Securities, provided that, the Property
-------- ----
Trustee has received written notice from the Sponsor directing the
Property Trustee to terminate the Trust (which direction is optional,
and except as otherwise expressly provided below, within the discretion
of the Sponsor) and provided, further, that such direction and
-------- -------
such distribution is conditioned on (i) the prior approval of
the Federal Reserve Board if such approval is then required under
applicable capital guidelines or policies of the Federal Reserve Board,
(ii) the Administrative Trustees' receipt of an opinion of an inde-
pendent tax counsel experienced in such matters (a "No Recognition
Opinion"), which opinion may rely on published rulings of the Internal
Revenue Service, to the effect that the Holders of the Securities will
not recognize any gain or loss for United States Federal income tax pur-
poses as a result of the dissolution of the Trust and the distribution
of Debentures;
(iv) upon the entry of a decree of judicial dissolution of the
Trust by a court of competent jurisdiction;
(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;
(vi) upon the repayment of the Debentures or at such time as
no Debentures are outstanding; or
(vii) the expiration of the term of the Trust provided in
Section 3.14.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.1(a), the Administrative Trustees shall file a
certificate of cancellation with the Secretary of State of the State of Dela-
ware.
(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 Secu-
rity not made in accordance with this Declaration shall be null and void.
(b) Subject to this Article IX, Capital Securities shall be freely
transferable.
(c) The Sponsor may not transfer the Common Securities.
(d) The Administrative Trustees shall provide for the registration
of Securities and of the transfer of Securities, which will be effected
without charge but only upon payment (with such indemnity as the
Administrative Trustees may require) in respect of any tax or other
governmental charges that may be imposed in relation to it. Upon surrender
for registration of transfer of any Securities, the Administrative Trustees
shall cause one or more new Securities to be issued in the name of the desig-
nated transferee or transferees. Every Security surrendered for registration
of transfer shall be accompanied by a written instrument of transfer in form
satisfactory to the Administrative Trustees duly executed by the Holder or
such Holder's attorney duly authorized in writing. Each Security surrendered
for registration of transfer shall be canceled by the Administrative
Trustees. A transferee of a Security shall be entitled to the rights and
subject to the obligations of a Holder hereunder upon the receipt by such
transferee of a Security. By acceptance of a Security, each transferee shall
be deemed to have agreed to be bound by this Declaration.
SECTION 9.2 Transfer Procedures and Restrictions.
------------------------------------
(a) Transfer and Exchange of Definitive Capital Securities. When
------------------------------------------------------
Definitive Capital Securities are presented to the Registrar or co-Registrar
(x) to register the transfer of such Definitive Capital
Securities; or
(y) to exchange such Definitive Capital Securities which
became mutilated, destroyed, defaced, stolen or lost, for an equal number
of Definitive Capital Securities,
the Registrar or co-registrar shall register the transfer or make
the exchange as requested if its reasonable requirements for such transaction
are met; provided, however, that the Definitive Capital Securities surren-
-------- -------
dered for transfer or exchange shall be duly endorsed or accompanied by a
written instrument of transfer in form reasonably satisfactory to the Trust
and the Registrar or co-registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing.
(b) Transfer of a Definitive Capital Security for a Beneficial
----------------------------------------------------------
Interest in a Global Capital Security. Upon receipt
-------------------------------------
by the Property Trustee of a Definitive Capital Security, duly endorsed or
accompanied by appropriate instruments of transfer, in form satisfactory to
the Property Trustee, together with written instructions directing the
Property Trustee to make, or to direct the Clearing Agency to make, an
adjustment on its books and records with respect to the Global Capital
Security to reflect an increase in the number of the Capital Securities
represented by such Global Capital Security, then the Property Trustee shall
cancel such Definitive Capital Security and cause, or direct the Clearing
Agency to cause, the aggregate number of Capital Securities represented by
the appropriate Global Capital Security to be increased accordingly. If no
Global Capital Securities are then outstanding, the Trust shall issue and the
Property Trustee shall authenticate, upon written order of any Administrative
Trustee, an appropriate number of Capital Securities in global form.
(c) Transfer and Exchange of Global Capital Securities. Subject
--------------------------------------------------
to Section 9.02(d), the transfer and exchange of Global Capital Securities or
beneficial interests therein shall be effected through the Clearing Agency,
in accordance with this Declaration (including applicable restrictions on
transfer set forth herein, if any) and the procedures of the Clearing Agency
therefor.
(d) Transfer of a Beneficial Interest in a Global Capital Security
--------------------------------------------------------------
for a Definitive Capital Security.
---------------------------------
(i) Any person having a beneficial interest in a Global Capital
Security may upon request, but only upon 20 days prior notice to the
Property Trustee, and if accompanied by the information specified below,
exchange such beneficial interest for a Definitive Capital Security
representing the same number of Capital Securities. Upon receipt by the
Property Trustee from the Clearing Agency or its nominee on behalf of
any Person having a beneficial interest in a Global Capital Security of
written instructions or such other form of instructions as is customary
for the Clearing Agency or the person designated by the Clearing Agency
as having such a beneficial interest in a Global Capital Security, then
the Property Trustee will cause the aggregate number of Capital Securi-
ties represented by Global Capital Securities to be reduced on its books
and records and, following such reduction, the Trust will execute and
the Property Trustee will authenticate and make available for delivery
to the transferee a Definitive Capital Security.
(ii) Definitive Capital Securities issued in exchange for a
beneficial interest in a Global Capital Security pursuant to this
Section 9.2(d) shall be registered in such names and in such authorized
denominations as the Clearing Agency, pursuant to instructions from its
Participants or indirect participants or otherwise, shall instruct the
Property Trustee in writing. The Property Trustee shall deliver such
Capital Securities to the persons in whose names such Capital Securities
are so registered in accordance with such instructions of the Clearing
Agency.
(e) Restrictions on Transfer and Exchange of Global Capital
-------------------------------------------------------
Securities. Notwithstanding any other provisions of
----------
this Declaration (other than the provisions set forth in subsection (f) of
this Section 9.2), a Global Capital Security may not be transferred as a
whole except by the Clearing Agency to a nominee of the Clearing Agency or
another nominee of the Clearing Agency or by the Clearing Agency or any such
nominee to a successor Clearing Agency or a nominee of such successor
Clearing Agency.
(f) Authentication of Definitive Capital Securities. If at any
-----------------------------------------------
time:
(i) the Clearing Agency notifies the Company that it is unwilling
or unable to continue as Clearing Agency for such Global Capital
Security or if at any time such Clearing Agency ceases to be a "clearing
agency" registered under the Exchange Act and a clearing agency is not
appointed by the Sponsor within 90 days of such notice,
(ii) there occurs a Default or an Event of Default which is
continuing, or
(iii) the Trust, in its sole discretion, notifies the Property
Trustee in writing that it elects to cause the issuance of Definitive
Capital Securities under this Declaration, then the Trust will execute,
and the Property Trustee, upon receipt of a written order of the Trust
signed by one Administrative Trustee requesting the authentication and
delivery of Definitive Capital Securities to the Persons designated by
the Trust, will authenticate and make available for delivery Definitive
Capital Securities, equal in number to the number of Capital Securities
represented by the Global Capital Securities, in exchange for such
Global Capital Securities.
(g) Cancellation or Adjustment of Global Capital Security. At
-----------------------------------------------------
such time as all beneficial interests in a Global Capital Security have
either been exchanged for Definitive Capital Securities to the extent permit-
ted by this Declaration or redeemed, repurchased or canceled in accordance
with the terms of this Declaration, such Global Capital Security shall be re-
turned to the Clearing Agency for cancellation or retained and canceled by
the Property Trustee. At any time prior to such cancellation, if any
beneficial interest in a Global Capital Security is exchanged for Definitive
Capital Securities, Capital Securities represented by such Global Capital
Security shall be reduced and an adjustment shall be made on the books and
records of the Property Trustee (if it is then the custodian for such Global
Capital Security) with respect to such Global Capital Security, by the Prop-
erty Trustee or the Securities Custodian, to reflect such reduction.
(h) Obligations with Respect to Transfers and Exchanges of Capital
--------------------------------------------------------------
Securities.
----------
(i) To permit registrations of transfers and exchanges, the Trust
shall execute and the Property Trustee shall authenticate Definitive
Capital Securities and Global Capital Securities at the Registrar's or
co-Registrar's request in accordance with the terms of this Declaration.
(ii) Registrations of transfers or exchanges will be effected
without charge, but only upon payment (with such indemnity as the Trust
or the Sponsor may require) in respect of any tax or other governmental
charge that may be imposed in relation to it.
(iii) The Registrar or co-registrar shall not be required to
register the transfer of or exchange of (a) Capital Securities during a
period beginning at the opening of business 15 days before the day of
mailing of a notice of redemption or any notice of selection of Capital
Securities for redemption and ending at the close of business on the day
of such mailing; or (b) any Capital Security so selected for redemption
in whole or in part, except the unredeemed portion of any Capital
Security being redeemed in part.
(iv) Prior to the due presentation for registrations of transfer of
any Capital Security, the Trust, the Property Trustee, the Paying Agent,
the Registrar or any co-registrar may deem and treat the person in whose
name a Capital Security is registered as the absolute owner of such
Capital Security for the purpose of receiving Distributions on such
Capital Security and for all other purposes whatsoever, and none of the
Trust, the Property Trustee, the Paying Agent, the Registrar or any co-
registrar shall be affected by notice to the contrary.
(v) All Capital Securities issued upon any transfer or exchange
pursuant to the terms of this Declaration shall evidence the same
security and shall be entitled to the same benefits under this
Declaration as the Capital Securities surrendered upon such transfer or
exchange.
(i) No Obligation of the Property Trustee.
-------------------------------------
(i) The Property Trustee shall have no responsibility or
obligation to any beneficial owner of a Global Capital Security, a
Participant in the Clearing Agency or other Person with respect to the
accuracy of the records of the Clearing Agency or its nominee or of any
Participant thereof, with respect to any ownership interest in the Capi-
tal Securities or with respect to the delivery to any Participant, bene-
ficial owner or other Person (other than the Clearing Agency) of any
notice (including any notice of redemption) or the payment of any
amount, under or with respect to such Capital Securities. All notices
and communications to be given to the Holders and all payments to be
made to Holders under the Capital Securities shall be given or made only
to or upon the order of the registered Holders (which shall be the
Clearing Agency or its nominee in the case of a Global Capital Securi-
ty). The rights of beneficial owners in any Global Capital Security
shall be exercised only through the Clearing Agency subject to the
applicable rules and procedures of the Clearing Agency. The Property
Trustee may conclusively rely and shall be fully protected in relying
upon information furnished by the Clearing Agency or any agent thereof
with respect to its Participants and any beneficial owners.
(ii) The Property Trustee and Registrar shall have no obligation or
duty to monitor, determine or inquire as to compliance with any
restrictions on transfer imposed under this Declaration or under appli-
cable law with respect to any transfer of any interest in any Capital
Security (including any transfers between or among Clearing Agency
Participants or beneficial owners in any Global Capital Security) other
than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when
expressly required by, the terms of this Declaration, and to examine the
same to determine substantial compliance as to form with the express
requirements hereof.
SECTION 9.3 Deemed Security Holders.
-----------------------
The Trustees may treat the Person in whose name any Security shall
be registered on the books and records of the Trust as the sole owner of such
Security for purposes of receiving Distributions and for all other purposes
whatsoever and, accordingly, shall not be bound to recognize any equitable or
other claim to or interest in such Security on the part of any Person,
whether or not the Trust shall have actual or other notice thereof.
SECTION 9.4 Book Entry Interests.
--------------------
Global Capital Securities shall initially be registered on the
books and records of the Trust in the name of Cede & Co., the nominee of the
Clearing Agency, and no Capital Security Beneficial Owner will receive a
definitive Capital Security Certificate representing such Capital Security
Beneficial Owner's interests in such Global Capital Securities, except as
provided in Section 9.2. Unless and until definitive, fully registered Cap-
ital Securities certificates have been issued to the Capital Security
Beneficial Owners pursuant to Section 9.2:
(a) the provisions of this Section 9.4 shall be in full force and
effect;
(b) the Trust and the Trustees shall be entitled to deal with the
Clearing Agency for all purposes of this Declaration (including the
payment of Distributions on the Global Capital Securities and receiving
approvals, votes or consents hereunder) as the Holder of the Capital
Securities and the sole holder of the Global Certificates and shall have
no obligation to the Capital 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 Capital Security Beneficial Owners shall be
exercised only through the Clearing Agency and shall be limited to those
established by law and agreements between such Capital Security
Beneficial Owners and the Clearing Agency and/or the Clearing Agency
Participants and 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 Capital Security
Holders is required under this Declaration, the Trustees shall give all such
notices and communications specified herein to be given to the Holders of
Global Capital Securities to the Clearing Agency, and shall have no notice
obligations to the Capital 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 Capital Securities, the
Administrative Trustees may, in their sole discretion, appoint a successor
Clearing Agency with respect to such Capital Securities.
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability.
---------
(a) Except as expressly set forth in this Declaration, the
Securities Guarantees and the terms of the Securities, the Sponsor shall not
be:
(i) personally liable for the return of any portion of the capital
contributions (or any return thereon) of the Holders of the Securities
which shall be made solely from assets of the Trust; and
(ii) be required to pay to the Trust or to any Holder of Securities
any deficit upon dissolution of the Trust or otherwise.
(b) The Sponsor shall be liable for all of the debts and
obligations of the Trust (other than with respect to the Securities) to the
extent not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the
Holders of the Capital 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 ac-
countable 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 Per-
son'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 profes-
sional or expert competence and who has been selected with reasonable care by
or on behalf of the Trust, including information, opinions, reports or state-
ments as to the value and amount of the assets, liabilities, profits, losses,
or any other facts pertinent to the existence and amount of assets from which
Distributions to Holders of Securities might properly be paid.
SECTION 10.3 Fiduciary Duty.
--------------
(a) To the extent that, at law or in equity, an Indemnified Person
has duties (including fiduciary duties) and liabilities relating thereto to
the Trust or to any other Covered Person, an Indemnified Person acting under
this Declaration shall not be liable to the Trust or to any other Covered
Person for its good faith reliance on the provisions of this Declaration.
The provisions of this Declaration, to the extent that they restrict the
duties and liabilities of an Indemnified Person otherwise existing at law or
in equity (other than the duties imposed on the Property 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 per-
mitted 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 Declara-
tion 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, adminis-
trative or investigative (other than an action by or in the right of the
Trust) by reason of the fact that he is or was a Company Indemnified
Person against expenses (including attorneys' fees and expenses), judg-
ments, 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 per-
mitted 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) actual-
ly 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 determi-
nation that indemnification of the Company Indemnified Person is proper
in the circumstances because he has met the applicable standard of con-
duct set forth in paragraphs (i) and (ii). Such determination shall be
made (1) by the Administrative Trustees by a majority vote of a quorum
consisting of such Administrative Trustees who were not parties to such
action, suit or proceeding, (2) if such a quorum is not obtainable, or,
even if obtainable, if a quorum of disinterested Administrative 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, administra-
tive 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 ulti-
mately 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 Administrative
Trustees by a majority vote of a quorum of disinterested Administrative
Trustees, (ii) if such a quorum is not obtainable, or, even if obtain-
able, if a quorum of disinterested Administrative 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
Administrative 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 Administrative
Trustees, independent legal counsel or Common Security Holder reasonably
determine that such person deliberately breached his duty to the Trust
or its Common or Capital 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 Capital 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 be-
tween the Debenture Issuer and each Company Indemnified Person who
serves in such capacity at any time while this Section 10.4(a) is in ef-
fect. 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 indem-
nify him against such liability under the provisions of this Section
10.4(a).
(viii) For purposes of this Section 10.4(a), references to "the
Trust" shall include, in addition to the resulting or surviving entity,
any constituent entity (including any constituent of a constituent)
absorbed in a consolidation or merger, so that any person who is or was
a director, trustee, officer or employee of such constituent entity, or
is or was serving at the request of such constituent entity as a
director, trustee, officer, employee or agent of another entity, shall
stand in the same position under the provisions of this Section 10.4(a)
with respect to the resulting or surviving entity as he would have with
respect to such constituent entity if its separate existence had contin-
ued.
(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) Property
Trustee, (ii) the Delaware Trustee, (iii) any Affiliate of the Property
Trustee and the Delaware Trustee, and (iv) any officers, directors,
shareholders, members, partners, employees, representatives, custodians,
nominees or agents of the Property 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 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 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
Property Trustee may engage in or possess an interest in other business ven-
tures 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 Property 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 Property 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 Property Trustee may engage or be interested in any
financial or other transaction with the Sponsor or any Affiliate of the
Sponsor, or may act as depositary for, trustee or agent for, or act on any
committee or body of holders of, securities or other obligations of the Spon-
sor or its Affiliates.
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year.
-----------
The fiscal year ("Fiscal Year") of the Trust shall be the calendar
year, or such other year as is required by the Code.
SECTION 11.2 Certain Accounting Matters.
--------------------------
(a) At all times during the existence of the Trust, the Admi-
nistrative Trustees shall keep, or cause to be kept, full books of account,
records and supporting documents, which shall reflect in reasonable detail,
each transaction of the Trust. The books of account shall be maintained on
the accrual method of accounting, in accordance with generally accepted
accounting principles, consistently applied. The Trust shall use the accrual
method of accounting for United States Federal income tax purposes. The
books of account and the records of the Trust shall be examined by and
reported upon as of the end of each Fiscal Year of the Trust by a firm of
independent certified public accountants selected by the Administrative
Trustees.
(b) The Administrative Trustees shall cause to be prepared and de-
livered to each of the Holders of Securities, within 90 days after the end of
each Fiscal Year of the Trust, annual financial statements of the Trust,
including a balance sheet of the Trust as of the end of such Fiscal Year, and
the related statements of income or loss;
(c) The Administrative 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 re-
quired by the Code and the Treasury Regulations. Notwithstanding any right
under the Code to deliver any such statement at a later date, the
Administrative Trustees shall endeavor to deliver all such information state-
ments within 30 days after the end of each Fiscal Year of the Trust.
(d) The Administrative Trustees shall cause to be duly prepared
and filed with the appropriate taxing authority, an annual United States Fed-
eral 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 re-
quired to be filed by the Administrative 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 Property Trustee shall be made
directly to the Property Trustee Account and no other funds of the Trust
shall be deposited in the Property Trustee Account. The sole signatories for
such accounts shall be designated by the Administrative Trustees; provided,
however, that the Property Trustee shall designate the signatories for the
- -------
Property Trustee Account.
SECTION 11.4 Withholding.
-----------
The Trust and the Administrative Trustees shall comply with all
withholding requirements under United States Federal, state and local law.
The Trust shall request, and the Holders shall provide to the Trust, such
forms or certificates as are necessary to establish an exemption from
withholding with respect to each Holder, and any representations and forms as
shall reasonably be requested by the Trust to assist it in determining the
extent of, and in fulfilling, its withholding obligations. The
Administrative Trustees shall file required forms with applicable
jurisdictions and, unless an exemption from withholding is properly
established by a Holder, shall remit amounts withheld with respect to the
Holder to applicable jurisdictions. To the extent that the Trust is required
to withhold and pay over any amounts to any authority with respect to
Distributions or allocations to any Holder, the amount withheld shall be
deemed to be a Distribution in the amount of the withholding to the Holder.
In the event of any claimed over withholding, Holders shall be limited to an
action against the applicable jurisdiction. If the amount required to be
withheld was not withheld from actual Distributions made, the Trust may
reduce subsequent Distributions by the amount of such withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments.
----------
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Securities, this Declaration may only be amended by a
written instrument approved and executed by:
(i) the Administrative Trustees (or if there are more than two
Administrative Trustees a majority of the Administrative Trustees);
(ii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Property Trustee, the Property 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, in the case of any proposed amendment, the Property
Trustee shall have first received an Officers' Certificate from each of
the Trust and the Sponsor that such amendment is permitted by, and
conforms to, the terms of this Declaration (including the terms of the
Securities);
(ii) unless, in the case of any proposed amendment which affects
the rights, powers, duties, obligations or immunities of the Property
Trustee, the Property 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 Securi-
ties),
provided, however, that the Property Trustee shall not be required to
-------- -------
sign any such amendment, and
(iii) to the extent the result of such amendment would be to:
(A) cause the Trust to fail to continue to be classified for
purposes of United States Federal income taxation as a grantor
trust;
(B) reduce or otherwise adversely affect the powers of the
Property 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 Four 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 Five to increase or decrease the number of, and appoint and remove
Trustees shall not be amended without the consent of the Holders of a Majori-
ty 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, correct or supplement any provision in
this Declaration that may be 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 the other provisions of the Declaration; and
(ii) to modify, eliminate or add to any provisions of the Declara-
tion to such extent as shall be necessary to ensure that the Trust will
be classified for United States Federal income tax purposes as a grantor
trust at all times that any Securities are outstanding or to ensure that
the Trust will not be required to register as an Investment Company
under the Investment Company Act.
provided, however, that in the case of clause (i), such action shall not
- -------- -------
adversely affect in any material respect the interests of the Holders of the
Securities, and any amendments of this Declaration shall become effective
when notice thereof is given to the Holders of the Securities.
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 Administrative 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 Capital Securities are listed or admitted for trading. The
Administrative 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
Administrative Trustees one or more notice 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 Hold-
ers 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 re-
quired under this Declaration or the rules of any stock exchange on
which the Capital 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 set-
ting 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 Administrative 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 Administrative Trustees;
(ii) each Holder of a Security may authorize any Person to act for
it by proxy on all matters in which a Holder of Securities is entitled
to participate, including waiving notice of any meeting, or voting or
participating at a meeting. No proxy shall be valid after the expira-
tion 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 mat-
ters relating to the giving, voting or validity of proxies shall be
governed by the General Corporation Law of the State of Delaware relat-
ing 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 Administrative Trustees or by such other Person that
the Administrative 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 Capital Securities are then listed or trad-
ing, otherwise provides, the Administrative 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 meet-
ing, the establishment of a record date, quorum requirements, voting in
person or by proxy or any other matter with respect to the exercise of
any such right to vote.
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Property Trustee.
--------------------------------------------------
The Trustee that acts as initial Property Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Property Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Property Trustee's acceptance of its
appointment as Property Trustee that:
(a) The Property Trustee is a New York banking corporation with
trust powers and authority to execute and deliver, and to carry out and
perform its obligations under the terms of, this Declaration;
(b) The execution, delivery and performance by the Property
Trustee of the Declaration has been duly authorized by all necessary
corporate action on the part of the Property Trustee. The Declaration has
been duly executed and delivered by the Property Trustee and constitutes a
legal, valid and binding obligation of the Property 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 dis-
cretion 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 Property Trustee does not conflict with or constitute a breach of the
charter or by-laws of the Property 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 Property Trustee of this Decla-
ration.
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 obli-
gations under the terms of, this Declaration;
(b) The execution, delivery and performance by the Delaware Trust-
ee of this Declaration has been duly authorized by all necessary corporate
action on the part of the Delaware Trustee. This Declaration has been duly
executed and delivered by the Delaware Trustee and constitutes a legal, valid
and binding obligation of the Delaware Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting creditors' rights
generally and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law);
(c) No consent, approval or authorization of, or registration with
or notice to, any Federal banking authority is required for the execution,
delivery or performance by the Delaware Trustee of this Declaration; and
(d) The Delaware Trustee is a natural person who is a resident of
the State of Delaware or, if not a natural person, an entity which has its
principal place of business in the State of Delaware.
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 Administrative 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):
BankBoston Capital Trust (IV) (V)
P.O. Box 2016
Boston, Massachusetts 02106-2016
Attention: Kathleen M. McGillycuddy, Administrative
Trustee
(b) if given to the Delaware Trustee, at the mailing address set
forth below (or such other address as Delaware Trustee may give notice of to
the Holders of the Securities):
The Bank of New York (Delaware)
23 White Clay Center
Route 273
Newark, Delaware 19711
Attention: Corporate Trust Department
(c) if given to the Property Trustee, at the Property Trustee's
mailing address set forth below (or such other address as the Property Tr-
ustee may give notice of to the Holders of the Securities):
The Bank of New York
101 Barclay Street, 21 West
New York, New York 10283
Attention: Corporate Trust
Trustee Administration
(d) if given to the Holder of the Common Securities, at the
mailing address of the Sponsor set forth below (or such other address as the
Holder of the Common Securities may give notice to the Trust):
BankBoston Corporation
100 Federal Street, MA BOS 01-25-01
Boston, Massachusetts 02110
Attention: Gary A. Spiess, General Counsel
(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 14.5 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 14.6 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 14.7 Partial Enforceability.
----------------------
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder
of this Declaration, or the application of such provision to persons or cir-
cumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 14.8 Counterparts.
------------
This Declaration may contain more than one counterpart of the sig-
nature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed
a single signature page.
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
__________________________________
Robert T. Jefferson, as Administrative Trustee
__________________________________
Craig V. Starble, as Administrative Trustee
__________________________________
Kathleen M. McGillycuddy, as Administrative Trustee
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By:
---------------------------------
Name:
Title:
THE BANK OF NEW YORK
as Property Trustee
By:
---------------------------------
Name:
Title:
BANKBOSTON CORPORATION
as Sponsor
By: ---------------------------------
Name: Kathleen M. McGillycuddy
Title: Executive Director,
Global Treasury
ANNEX I
TERMS OF
( %)(FLOATING RATE) CAPITAL SECURITIES
( %)(FLOATING RATE) COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration of
Trust, dated as of , (as amended from time to time, the
----
"Declaration"), the designation, rights, privileges, restrictions, prefer-
ences and other terms and provisions of the Capital Securities and the Common
Securities (collectively, the "Securities") are set out below (each capital-
ized term used but not defined herein has the meaning set forth in the Decla-
ration or, if not defined in such Declaration, as defined in the Indenture):
1. Designation and Number.
----------------------
(a) Capital Securities. ( ) Capital Securities of the Trust,
------------------
with an aggregate liquidation amount with respect to the assets of the Trust
of ( ) million dollars ($( ),000,000), and with a liquidation
amount with respect to the assets of the Trust of $( ) per security, are
hereby designated for the purposes of identification only as "( %)(Floating
Rate) Capital Securities" (the "Capital Securities"). The certificates evi-
dencing the Capital Securities shall be substantially in the form of Exhibit
A-1 to the Declaration, with such changes and additions thereto or deletions
therefrom as may be required by ordinary usage, custom or practice or to
conform to the rules of any stock exchange or quotation system on which the
Capital Securities are listed or quoted.
(b) Common Securities. ( ) Common Securities of the Trust
-----------------
with an aggregate liquidation amount with respect to the assets of the Trust
of ( ) dollars ($( )), and with a liquidation amount with
respect to the assets of the Trust of $( ) per security, are hereby desig-
nated for the purposes of identification only as "( %)(Floating Rate)
Common Securities" (the "Common Securities"). The 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 there-
from as may be required by ordinary usage, custom or practice.
2. Distributions.
-------------
(a) Distributions on each Security will be payable at a rate per annum
(of ( %))(equal to LIBOR plus ( )%) (the "Distribution Rate")) of the
liquidation amount of $( ) per Security (the "Liquidation Amount"), such
rate being the rate of interest payable on the Debentures to be held by the
Property Trustee. (LIBOR and the amount payable in respect of a
Distribution for a Distribution Period (as defined herein) will be
calculated by the Calculation Agent in the same manner as LIBOR and the
interest payable in respect of each Interest Period for the Debentures, as
set forth in the Indenture.)* Distributions in arrears for more than one
( ) period will bear additional distributions thereon compounded
( ) at the (applicable periodic) Distribution Rate (to the extent
permitted by applicable law). The term "Distributions", as used herein,
includes any such additional distributions unless otherwise stated. A
Distribution is payable only to the extent that payments are made in
respect of the Debentures held by the Property Trustee and to the extent
the Property Trustee has funds on hand legally available therefor.
- --------------
* Applicable if the Securities are to bear interest at a floating rate.
(b) Distributions on the Securities will be cumulative, will accumulate
from the most recent date to which Distributions have been paid or, if no
Distributions have been paid, from , , to but excluding
----
the related Distribution Date (as defined herein) and will be payable ( )
in arrears on ( ) of each year, com-
mencing , (each, a "Distribution Date"), except as
----
otherwise described below. The amount of Distributions payable for any
Distribution Period will be computed on the basis of (a 360-day year
consisting of twelve 30-day months)(the actual number of days elapsed in such
period and a year of 360 days). "Distribution Period" means the period from
and including the immediately preceding Distribution Date (or , ,
----
in the case of the first Distribution Period) to but excluding the applicable
Distribution Date. If a Distribution Date is not a Business Day, then (such
Distribution Date and the first day of the Distribution Period commencing on
such Distribution Date will be the next succeeding Business Day, except if
such Business Day is in the next succeeding calendar month, such Distribution
Date and the first day of such Distribution Period will be the immediately
preceding Business Day)(payment of any Distributions payable on such date
will be made on the next succeeding Business Day, and no interest or other
payment will accumulate for the period from and after such date.)
As long as no Event of Default has occurred and is continuing under
the Indenture, the Debenture Issuer has the right under the Indenture to
defer payments of interest by extending the interest payment period at any
time and from time to time on the Debentures for a period not exceeding ( )
consecutive ( ) periods, including the first such
( ) period during such period (each an "Extension Period"), during
which Extension Period no interest shall be due and payable on the Deben-
tures, provided that no Extension Period shall extend beyond the Maturity
-------- ----
Date of the Debentures. As a consequence of such deferral, Distributions
will also be deferred. Despite such deferral, ( ) Distributions will
continue to accumulate with additional interest thereon (to the extent
permitted by applicable law but not at a rate greater than the rate at which
interest is then accruing on the Debentures) at the Distribution Rate then in
effect compounded ( ) during any such Extension Period. At the end of
the Extension Period, all accumulated and unpaid Distributions (but only to
the extent payments are made in respect of the Debentures held by the
Property Trustee and to the extent the Property Trustee has funds available
therefor) will be payable to the Holders as they appear on the books and
records of the Trust on the record date immediately preceding the end of the
Extension Period. 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 within such Extension Period, may not
exceed ( ) consecutive ( ) periods, including the first ( )
period during such Extension Period, 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.
(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 ( )
day of the month in which the relevant Distribution Date occurs. Subject to
any applicable laws and regulations and the provisions of the Declaration,
each such payment in respect of the Capital Securities will be made as de-
scribed under the heading "Description of Capital Securities -- Form,
Denomination, Book-Entry Procedures and Transfer" in the Prospectus dated
, , of the Debenture Issuer and the Trust relating to the Securities
----
and the Debentures. The relevant record dates for the Common Securities
shall be the same as the record dates for the Capital Securities. Distribu-
tions payable on any Securities that are not punctually paid on any Distribu-
tion Date, as a result of the Debenture Issuer having failed to make a
payment under the Debentures, will cease to be payable to the Holder on the
relevant record date, and such defaulted Distributions 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.
(d) (( )shall act as Calculation Agent to determine LIBOR
and calculate the Distribution Rate of, and the amount of Distributions
payable on, the Securities for each Distribution Period pursuant to the terms
set forth herein and in the Securities.)*
(e) In the event that there is any money or other property held by
or for the Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata (as defined herein) among the Holders of the Securities.
- --------------
* Applicable if the Securities are to bear interest at a floating rate.
3. Liquidation Distribution Upon Dissolution.
-----------------------------------------
In the event of any termination of the Trust or the Sponsor
otherwise gives notice of its election to liquidate the Trust pursuant to
Section 8.1(a)(iii) of the Declaration, the Trust shall be liquidated by the
Administrative Trustees as expeditiously as the Administrative Trustees
determine to be possible by distributing, after satisfaction of liabilities
to creditors of the Trust as provided by applicable law, to the Holders of
the Securities a Like Amount (as defined below) of the Debentures, unless
such distribution is determined by the Property Trustee not to be
practicable, in which event such Holders will be entitled to receive out of
the assets of the Trust legally available for distribution to Holders, after
satisfaction of liabilities to creditors of the Trust as provided by applica-
ble law, an amount equal to the aggregate of the liquidation amount of $( )
per Security plus accumulated and unpaid Distributions thereon to the date
of payment (such amount being the "Liquidation Distribution").
"Like Amount" means (i) with respect to a redemption of the
Securities, Securities having a Liquidation Amount equal to the principal
amount of Debentures to be paid in accordance with their terms and (ii) with
respect to a distribution of Debentures upon the liquidation of the Trust,
Debentures having a principal amount equal to the Liquidation Amount of the
Securities of the Holder to whom such Debentures are distributed.
If, upon any such liquidation, the Liquidation Distribution can be
paid only in part because the Trust has insufficient assets on hand legally
available to pay in full the aggregate Liquidation Distribution, then the
amounts payable directly by the Trust on the Securities shall be paid on a
Pro Rata basis.
4. Redemption and Distribution.
---------------------------
((a) Upon the repayment of the Debentures in whole or in part, at
maturity or upon early redemption (either at the option of the Debenture
Issuer or pursuant to a Special Event, as described below), the proceeds from
such repayment shall be simultaneously applied by the Property Trustee
(subject to the Property Trustee having received notice no later than 45 days
prior to such repayment) to redeem a Like Amount of the Securities at a re-
demption price equal to (i) in the case of the repayment of the Debentures at
maturity, the Maturity Redemption Price (as defined below), (ii) in the case
of the optional redemption of the Debentures upon the occurrence and
continuation of a Special Event, the Special Event Redemption Price (as
defined below) and (iii) in the case of the optional redemption of the
Debentures other than as a result of the occurrence and continuance of a
Special Event, the Optional Redemption Price (as defined below). The
Maturity Redemption Price, the Special Event Redemption Price and the Option-
al Redemption Price are referred to collectively as the "Redemption Price".
Holders will be given not less than 30 nor more than 60 days notice of such
redemption.
(b) (i) The "Maturity Redemption Price", shall mean a price equal
to 100% of the Liquidation Amount of the securities to be redeemed plus
accumulated and unpaid Distributions thereon, if any, to the date of
redemption.
(ii) In the case of an optional redemption other than as a result
of the occurrence and continuance of a Special Event, if fewer than all the
outstanding Securities are to be so redeemed, the Common Securities and the
Capital Securities will be redeemed Pro Rata and the Capital Securities to be
redeemed will be determined as described in Section 4(f)(ii) below. Upon the
entry of an order for the dissolution of the Trust by a court of competent
jurisdiction, the Debentures thereafter will be subject to optional
repayment, in whole, but not in part, on or after ( ).
The Debenture Issuer shall have the right (subject to the
conditions in the Indenture) to elect to redeem the Debentures in whole or in
part at any time on or after ( ), , upon not less than 30
-----
days and not more than 60 days notice, at the Optional Redemption Price and,
simultaneous with such redemption, to cause a Like Amount of the Securities
to be redeemed by the Trust at the Optional Redemption Price on a Pro Rata
basis. "Optional Redemption Price" shall mean a price equal to the percent-
age of the liquidation amount of Securities to be redeemed plus accumulated
and unpaid Distributions thereon, if any, to the date of such redemption if
redeemed during the 12-month period beginning ( ) of the years indicated
below:
Year Percentage
---- ----------
(c) If at any time a Tax Event or a Regulatory Capital Event (each as
defined below, and each a "Special Event") occurs, the Debenture Issuer shall
have the right (subject to the conditions set forth in the Indenture) at any
time, upon not less than 30 nor more than 60 days notice, to redeem the
Debentures in whole, but not in part, within the 90 days following the occur-
rence of such Special Event (the "90 Day Period"), and, simultaneous with
such redemption, to cause a Like Amount of the Securities to be redeemed by
the Trust at the Special Event Redemption Price on a Pro Rata basis.
"Tax Event" shall occur upon receipt by the Administrative Trustee
of an Opinion of Counsel (a "Tax Event Opinion") 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 an-
nounced on or after , , there is more than an insubstantial risk
----
that (i) the Trust is, or will be within 90 days of the date of such opinion,
subject to United States federal income tax with respect to income received
or accrued on the Debentures, (ii) interest payable by the Debenture Issuer
on the Debentures is not, or within 90 days of the date of such opinion, will
not be, deductible by the Debenture Issuer, 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 such opinion, subject to more than a de minimis amount
of other taxes, duties or other governmental charges.
"Regulatory Capital Event" shall mean that the Debenture Issuer
shall have received an opinion of independent bank regulatory counsel
experienced in such matters to the effect that, as a result of (a) any
amendment to, or change (including any announced prospective change) in, the
laws (or any regulations thereunder) of the United States or any rules,
guidelines or policies of the Federal Reserve Board or (b) any official
administrative pronouncement or judicial decision interpreting or applying
such laws or regulations, which amendment or change is effective or such
pronouncement or decision is announced on or after , , the
----
Capital Securities do not constitute, or within 90 days of the date
thereof, will not constitute, Tier I Capital (or its then equivalent);
provided, however, that the distribution of the Debentures in
- ---------- -------
connection with the liquidation of the Trust by the Debenture
Issuer shall not in and of itself constitute a Regulatory Capital Event
unless such liquidation shall have occurred in connection with a Tax Event.
"Special Event Redemption Price" shall mean a price equal to the
greater of (i) 100% of the liquidation amount of Securities to be redeemed or
(ii) the sums, as determined by a Quotation Agent (as defined in the
Indenture), of the present values of the remaining scheduled payments of
principal and interest thereon discounted to the redemption date on a (
) basis (assuming a 360-day year consisting of twelve 30-day months) at
the Adjusted Treasury Rate (as defined in the Indenture), plus, in each case,
accumulated and unpaid Distributions thereon, if any, to the date of such
redemption.)
((a) Upon the repayment of the Debentures in whole or in part, at
maturity or upon early redemption in accordance with the terms thereof, the
proceeds from such repayment shall be simultaneously applied by the Property
Trustee (subject to the Property Trustee having received notice no later than
45 days prior to such repayment) to redeem a Like Amount of the Securities at
a redemption price equal to (i) in the case of the repayment of the
Debentures at maturity, the Maturity Redemption Price (as defined below),
(ii) in the case of the optional redemption of the Debentures upon the occur-
rence and continuation of a Special Event, the Early Redemption Price (as
defined below) and (iii) in the case of the optional redemption of the Deben-
tures other than as a result of the occurrence and continuance of a Special
Event, the Early Redemption Price. The Maturity Redemption Price and the
Early Redemption Price are referred to collectively as the "Redemption
Price". Holders will be given not less than 30 nor more than 60 days notice
of such redemption.
(b) (i) "Maturity Redemption Price" shall mean a price equal to
100% of the Liquidation Amount of the Securities to be redeemed plus
accumulated and unpaid Distributions thereon, if any, to the date of
redemption.
(ii) "Early Redemption Price" shall mean a price equal to 100% of
the Liquidation Amount of the Securities to be redeemed plus accumulated
and unpaid Distributions thereon, if any, to the date of redemption.)
((c)) On and from the date fixed by the Administrative Trustees
for any distribution of Debentures and liquidation of the Trust: (i) the
Securities will no longer be deemed to be outstanding, (ii) the Clearing
Agency or its nominee (or any successor Clearing Agency or its nominee), as
the Holder of the Capital Securities, will receive a registered global cer-
tificate or certificates representing the Debentures to be delivered upon
such distribution and any certificates representing Securities not held by
the Clearing Agency or its nominee (or any successor Clearing Agency or its
nominee) will be deemed to represent beneficial interests in a Like Amount of
Debentures until such certificates are presented to the Debenture Issuer or
its agent for transfer or reissue.
((d)) The Trust may not redeem fewer than all the outstanding
Securities unless all accumulated and unpaid Distributions have been paid on
all Securities for all ( ) Distribution periods terminating on or
before the date of redemption.
((e)) The procedure with respect to redemptions or 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 "Re-
demption/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(e)(i), a Redemp-
tion/ 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) 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 Capital Securities, it
being understood that, in respect of Capital Securities registered
in the name of and held of record by the Clearing Agency 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 the Clearing Agency and disbursed by such Clearing
Agency in accordance with the procedures applied by such agency or
nominee.
(iii) If Securities are to be redeemed and the Trust gives a
Redemption/Distribution Notice, (which notice will be irrevocable),
then (A) with respect to Capital Securities issued in book-entry
form, by 12:00 noon, New York City time, on the redemption date,
provided that the Debenture Issuer has paid the Property Trustee a
sufficient amount of cash in connection with the related redemption
or maturity of the Debentures by 10:00 a.m., New York City time, on
the maturity date or the date of redemption, as the case requires,
the Property Trustee will deposit irrevocably with the Clearing
Agency or its nominee (or successor Clearing Agency or its
nominee) funds sufficient to pay the applicable Redemption Price
with respect to such Capital Securities and will give the Clearing
Agency irrevocable instructions and authority to pay the Redemption
Price to the relevant Clearing Agency Participants, and (B) with
respect to Capital Securities issued in certificated form and
Common Securities, provided that the Debenture Issuer has paid the
Property Trustee a sufficient amount of cash in connection with the
related redemption or maturity of the Debentures, the Property Tr-
ustee 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 immediately
prior to the close of business on the date of such deposit, or on
the redemption date, as applicable, Distributions will cease to
accumulate 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 re-
ceive the Redemption Price, but without interest on such Redemption
Price, and such Securities shall cease to be outstanding.
(iv) Payment of accumulated and unpaid Distributions on the
Redemption Date of the Securities will be subject to the rights of
Holders of Securities on the close of business on a regular record date
in respect of a Distribution Date occurring on or prior to such
Redemption Date.
Neither the Administrative 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 or any notice of selection of Securities for
redemption or (ii) any Securities selected for redemption except the
unredeemed portion of any Security being redeemed. 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 suc-
ceeding day that is a Business Day (and without any interest or other
payment in respect of any such delay), 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 Property Trustee or by the Sponsor as guarantor
pursuant to the relevant Securities Guarantee, Distributions on such
Securities will continue to accumulate 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 calcu-
lating the Redemption Price.
(v) Redemption/Distribution Notices shall be sent by the Property
Trustee on behalf of the Trust to (A) in respect of the Capital
Securities, the Clearing Agency or its nominee (or any successor
Clearing Agency or its nominee) if the Global Certificates have been
issued or, if Definitive Capital Security Certificates have been issued,
to the Holders 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), the Sponsor or any of its subsidiaries may at any time and from
time to time purchase outstanding Capital Securities by tender, in the
open market or by private agreement.
5. Voting Rights - Capital Securities.
----------------------------------
(a) Except as provided under Sections 5(b) and 7 and as otherwise
required by law and the Declaration, the Holders of the Capital Securities
will have no voting rights.
(b) So long as any Debentures are held by the Property Trustee,
the Trustees shall not (i) direct the time, method and place of conducting
any proceeding for any remedy available to the Debenture Trustee, or
executing any trust or power conferred on such Debenture Trustee with respect
to the Debentures, (ii) waive any past default that is waivable under Section
5.07 of the Indenture, (iii) exercise any right to rescind or annul a decla-
ration of acceleration of the maturity of the principal of the Debentures or
(iv) consent to any amendment, modification or termination of the Indenture
or the Debentures, where such consent shall be required, without, in each
case, obtaining the prior approval of the Holders of a majority in liquida-
tion amount of all outstanding Capital Securities; provided, however, that
-------- -------
where a consent under the Indenture would require the consent of each holder
of Debentures affected thereby, no such consent shall be given by the
Property Trustee without the prior approval of each Holder of the Capital
Securities. The Trustees shall not revoke any action previously authorized
or approved by a vote of the Holders of the Capital Securities except by
subsequent vote of such Holders. The Property Trustee shall notify each
Holder of Capital Securities of any notice of default with respect to the
Debentures. In addition to obtaining the foregoing approvals of such Holders
of the Capital Securities, prior to taking any of the foregoing actions, the
Trustees shall obtain an opinion of counsel experienced in such matters to
the effect that the Trust will not be classified as an association taxable as
a corporation for United States Federal income tax purposes on account of
such action.
If an Event of Default under the Declaration has occurred and is
continuing and such event is attributable to the failure of the Debenture
Issuer to pay principal of or premium, if any, or interest on the Debentures
on the date such principal, premium, if any, or interest is otherwise payable
(or in the case of redemption, on the redemption date), then a Holder of Cap-
ital Securities may directly institute a proceeding for enforcement of pay-
ment to such Holder of the principal of or premium, if any, or interest on a
Like Amount of Debentures (a "Direct Action") on or after the respective due
date specified in the Debentures. In connection with such Direct Action, the
rights of the Common Securities Holder will be subrogated to the rights of
such Holder of Capital Securities to the extent of any payment made by the
Debenture Issuer to such Holder of Capital Securities in such Direct Action.
Except as provided in the second preceding sentence, the Holders of Capital
Securities will not be able to exercise directly any other remedy available
to the holders of the Debentures.
Any approval or direction of Holders of Capital Securities may be
given at a separate meeting of Holders of Capital Securities convened for
such purpose, at a meeting of all of the Holders of Securities in the Trust
or pursuant to written consent. The Property Trustees will cause a notice of
any meeting at which Holders of Capital 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 Capital 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 Capital Securities will be
required for the Trust to redeem and cancel Capital Securities or to
distribute the Debentures in accordance with the Declaration and the terms of
the Securities.
Notwithstanding that Holders of Capital Securities are entitled to
vote or consent under any of the circumstances described above, any of the
Capital Securities that are owned by the Sponsor or any Affiliate of the
Sponsor shall not be entitled to vote or consent and shall, for purposes of
such vote or consent, be treated as if they were not outstanding.
6. Voting Rights - Common Securities.
---------------------------------
(a) Except as provided under Sections 6(b), 6(c), and 7 as other-
wise required by law and the Declaration, the Holders of the Common Secu-
rities will have no voting rights.
(b) Unless a Debenture Event of Default shall have occurred and be
continuing, any Trustee may be removed at any time by the holder of the
Common Securities. If a Debenture Event of Default has occurred and is
continuing, the Property Trustee and the Delaware Trustee may be removed at
such time by the holders of a majority in liquidation amount of the outstand-
ing Capital Securities. In no event will the holders of the Capital
Securities have the right to vote to appoint, remove or replace the
Administrative Trustees, which voting rights are vested exclusively in the
Sponsor as the holder of the Common Securities. No resignation or removal of
a Trustee and no appointment of a successor trustee shall be effective until
the acceptance of appointment by the successor trustee in accordance with the
provisions of the Declaration.
(c) So long as any Debentures are held by the Property Trustee,
the Trustees shall not (i) direct the time, method and place of conducting
any proceeding for any remedy available to the Debenture Trustee, or
executing any trust or power conferred on such Debenture Trustee with respect
to the Debentures, (ii) waive any past default that is waivable under Section
5.07 of the Indenture, (iii) exercise any right to rescind or annul a decla-
ration of acceleration of the maturity of the principal of the Debentures or
(iv) consent to any amendment, modification or termination of the Indenture
or the Debentures, where such consent shall be required, without, in each
case, obtaining the prior approval of the Holders of a majority in
liquidation amount of all outstanding Common Securities; provided, however,
-------- -------
that where a consent under the Indenture would require the consent of each
holder of Debentures affected thereby, no such consent shall be given by the
Property Trustee without the prior approval of each Holder of the Common
Securities. The Trustees shall not revoke any action previously authorized
or approved by a vote of the Holders of the Common Securities except by
subsequent vote of such Holders. The Property Trustee shall notify each
Holder of Common Securities of any notice of default with respect to the
Debentures. In addition to obtaining the foregoing approvals of such Holders
of the Common Securities, prior to taking any of the foregoing actions, the
Trustees shall obtain an opinion of counsel experienced in such matters to
the effect that the Trust will not be classified as an association taxable as
a corporation for United States Federal income tax purposes on account of
such action.
If an Event of Default under the Declaration has occurred and is
continuing and such event is attributable to the failure of the Debenture
Issuer to pay principal of or premium, if any, or interest on the Debentures
on the date such principal, premium, if any, or interest is otherwise payable
(or in the case of redemption, on the redemption date), then a Holder of Com-
mon Securities may institute a Direct Action for enforcement of payment to
such Holder of the principal of or premium, if any, or interest on a Like
Amount of Debentures on or after the respective due date specified in the
Debentures. In connection with Direct Action, the rights of the Common Secu-
rities Holder will be subordinated to the rights of such Holder of Capital
Securities to the extent of any payment made by the Debenture Issuer to such
Holder of Common Securities in such Direct Action. Except as provided in the
second preceding sentence, the Holders of Common Securities will not be able
to exercise directly any other remedy available to the holders of the Deben-
tures.
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 Administrative 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 dis-
tribute the Debentures in accordance with the Declaration and the terms of
the Securities.
7. Amendments to Declaration and Indenture.
---------------------------------------
In addition to the requirements set out in Section 12.1 of the
Declaration, the Declaration may be amended from time to time by the Sponsor,
the Property Trustee and the Administrative Trustees, without the consent of
the Holders of the Securities (i) to cure any ambiguity, correct or
supplement any provisions in the Declaration that may be inconsistent with
any other provisions, or to make any other provisions with respect to matters
or questions arising under the Declaration which shall not be inconsistent
with the other provisions of the Declaration, or (ii) to modify, eliminate or
add to any provisions of the Declaration to such extent as shall be necessary
to ensure that the Trust will be classified for United States Federal income
tax purposes as a grantor trust at all times that any Securities are
outstanding or to ensure that the Trust will not be required to register as
an "Investment Company" under the Investment Company Act; provided, however,
-------- -------
that in the case of clause (i), such action shall not
adversely affect in any material respect the interests of any Holder of
Securities, and any amendments of the Declaration shall become effective when
notice thereof is given to the holders of the Securities. The Declaration
may be amended by the Trustees and the Sponsor with (i) the consent of
Holders representing a majority in liquidation amount of all outstanding
Securities, and (ii) receipt by the Trustees of an Opinion of Counsel to the
effect that such amendment or the exercise of any power granted to the
Trustees in accordance with such amendment will not affect the Trust's status
as a grantor trust for United States Federal income tax purposes or the
Trust's exemption from status as an Investment Company under the Investment
Company Act, provided that, without the consent of each Holder of Trust
-------- ----
Securities, the Declaration may not be amended to (i) change the amount
or timing of any Distribution on the Trust Securities or otherwise
adversely affect the amount of any Distribution required to be made in
respect of the Trust Securities as of a specified date or (ii) restrict
the right of a holder of Trust Securities to institute suit for the
enforcement of any such payment on or after such date.
8. Pro Rata.
--------
A reference in these terms of the Securities to any payment, dis-
tribution 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 Capital Securities pro rata according to the aggregate Liquidation
Amount of Capital Securities held by the relevant Holder relative to the
aggregate Liquidation Amount of all Capital Securities outstanding, and only
after satisfaction of all amounts owed to the Holders of the Capital
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.
9. Ranking.
-------
The Capital 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, no payments in respect of Distributions on, or payments upon
liquidation, redemption or otherwise with respect to, the Common Securities
shall be made until the Holders of the Capital Securities shall be paid in
full the Distributions, Redemption Price, Liquidation Distribution and other
payments to which they are entitled at such time.
10. Acceptance of Securities Guarantees and Indenture.
-------------------------------------------------
Each Holder of Capital Securities and Common Securities, by the
acceptance thereof, agrees to the provisions of the Capital Securities
Guarantee, the Common Securities Guarantee and the Indenture including the
subordination provisions therein.
11. No Preemptive Rights.
--------------------
The Holders of the Securities shall have no preemptive rights to
subscribe for any additional securities.
12. Miscellaneous.
-------------
These terms constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration, the Capital
Securities Guarantee or the Common Securities Guarantee (as may be
appropriate) and the Indenture (including any supplemental indenture) to a
Holder without charge on written request to the Sponsor at its principal
place of business.
EXHIBIT A-1
FORM OF CAPITAL SECURITY CERTIFICATE
(FORM OF FACE OF SECURITY)
(IF THIS CAPITAL SECURITY IS A GLOBAL CAPITAL SECURITY, INSERT:
THIS CAPITAL SECURITY IS A GLOBAL CAPITAL SECURITY WITHIN THE MEANING OF THE
DECLARATION HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY (THE "CLEARING AGENCY") OR A NOMINEE OF THE CLEARING
AGENCY. THIS CAPITAL SECURITY IS EXCHANGEABLE FOR CAPITAL SECURITIES REGIS-
TERED IN THE NAME OF A PERSON OTHER THAN THE CLEARING AGENCY OR ITS NOMINEE
ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE DECLARATION AND NO TRANS-
FER OF THIS CAPITAL SECURITY (OTHER THAN A TRANSFER OF THIS CAPITAL SECURITY
AS A WHOLE BY THE CLEARING AGENCY TO A NOMINEE OF THE CLEARING AGENCY OR BY A
NOMINEE OF THE CLEARING AGENCY TO THE CLEARING AGENCY OR ANOTHER NOMINEE OF
THE CLEARING AGENCY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS CAPITAL SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE CLEARING AGENCY TO THE TRUST OR ITS AGENT FOR REGIS-
TRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CAPITAL SECURITY ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE CLEARING AGENCY 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.)
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 Capital Securities
__________________ ____________________________
CUSIP NO. __________
Certificate Evidencing Capital Securities
of
BANKBOSTON CAPITAL TRUST (IV) (V)
( %)(Floating Rate) Capital Securities
(liquidation amount $( ) per Capital Security)
BANKBOSTON CAPITAL TRUST (IV) (V), a statutory business trust
formed under the laws of the State of Delaware (the "Trust"), hereby
certifies that ______________ (the "Holder") is the registered owner of
__________ securities of the Trust representing undivided beneficial
interests in the assets of the Trust designated the ( %) (Floating Rate)
Capital Securities (liquidation amount $( ) per Capital Security) (the
"Capital Securities"). The Capital Securities are transferable on the books
and records of the Trust, in person or by a duly authorized attorney, upon
surrender of this certificate duly endorsed and in proper form for transfer.
The designation, rights, privileges, restrictions, preferences and other
terms and provisions of the Capital 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 , , as the
----
same may be amended from time to time (the "Declaration"), including the
designation of the terms of the Capital Securities as set forth in Annex I to
the Declaration. Capitalized terms used but not defined herein shall have
the meaning given them in the Declaration. The Sponsor will provide a copy
of the Declaration, the Capital 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 Decla-
ration and is entitled to the benefits thereunder and to the benefits of the
Capital Securities Guarantee to the extent provided therein.
By acceptance, the Holder agrees to treat, for United States Fed-
eral income tax purposes, the Debentures as indebtedness and the Capital
Securities as evidence of indirect beneficial ownership in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this
day of , .
- ---- ---------- ----
BANKBOSTON CAPITAL TRUST (IV) (V)
By:
--------------------------------
Name:
Administrative Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Capital Securities referred to in the within-
mentioned Declaration.
Dated: ,
------------ ---
THE BANK OF NEW YORK,
as Property Trustee
By:
---------------------
Authorized Signatory
(FORM OF REVERSE OF SECURITY)
Distributions on each Capital Security will be payable at a rate
per annum (of ( )%) (equal to LIBOR plus ( )%) (the "Distribution Rate"))
of the Liquidation Amount of $( ) per Capital Security, such rate being
the rate of interest payable on the Debentures to be held by the Property
Trustee. (LIBOR and the amount payable in respect of a Distribution for a
Distribution Period will be calculated by the Calculation Agent in the same
manner as LIBOR and the interest payable in respect of each Interest Period
for the Debentures, as set forth in the Indenture.)* Distributions in arrears
for more than one ( ) period will bear additional distributions thereon
compounded ( ) at the (applicable periodic) Distribution Rate (to
the extent permitted by applicable law). The term "Distributions", as used
herein, includes any such additional distributions unless otherwise stated.
A Distribution is payable only to the extent that payments are made in
respect of the Debentures held by the Property Trustee and to the extent the
Property Trustee has funds on hand legally available therefor.
Distributions on the Capital Securities will be cumulative, will
accumulate from the most recent date to which Distributions have been paid
or, if no Distributions have been paid, from , , to but excluding
----
the related Distribution Date (as defined herein) and will be payable ( )
in arrears on ( ) of each
year, commencing , (each, a "Distribution Date"), except as
----
otherwise described below and in the Declaration. The amount of Distribu-
tions payable for any Distribution Period will be computed on the basis of (a
360-day year consisting of twelve 30-day months) (the actual number of days
elapsed in such period and a year of 360 days.) "Distribution Period" means
the period from and including the immediately preceding Distribution Date (or
, , in the case of the first Distribution Period) to but
----
excluding the applicable Distribution Date. If a Distribution Date is not a
Business Day, then (such Distribution Date and the first day of the
Distribution Period commencing on such Distribution Date will be the next
succeeding Business Day, except if such Business Day is in the next
succeeding calendar month, such Distribution Date and the first day of such
Distribution Period will be the immediately preceding Business Day) (payments
of any Distribution payable on such date will be made on the next succeeding
Business Day, and no interest or other payment shall accumulate for the
period from and after such date.) As long as no Event of Default has oc-
curred and is continuing under the Indenture, the Debenture Issuer has the
- --------------
* Applicable if the Capital Securities are to bear interest at a floating rate.
right under the Indenture to defer payments of interest by extending the
interest payment period at any time and from time to time on the Debentures
for a period not exceeding ( ) consecutive ( ) periods, including the
first such ( ) period during such period (each an "Extension Period"),
during which Extension Period no interest shall be due and payable on the
Debentures, provided that no Extension Period shall extend
-------- ----
beyond the Maturity Date of the Debentures. As a consequence of such defer-
ral, Distributions will also be deferred. Despite such deferral, ( )
Distributions will continue to accumulate with additional interest thereon
(to the extent permitted by applicable law but not at a rate greater than the
rate at which interest is then accruing on the Debentures) at the
Distribution Rate then in effect compounded ( ) during any such Exten-
sion Period. At the end of the Extension Period, all accumulated and unpaid
Distributions (but only to the extent payments are made in respect of the
Debentures held by the Property Trustee and to the extent the Property
Trustee has funds available therefor) will be payable to the Holders as they
appear on the books and records of the Trust on the record date immediately
preceding the end of the Extension Period. 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
within such Extension Period, may not exceed ( ) consecutive ( )
periods, including the first ( ) period during such Extension Period,
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 Deben-
ture Issuer may commence a new Extension Period, subject to the above re-
quirements.
Subject to the prior approval of the Federal Reserve Board if such
approval is then required under applicable law or capital guidelines or
policies of the Federal Reserve Board and to certain other conditions set
forth in the Declaration and the Indenture, the Property Trustee may, at the
direction of the Sponsor, at any time liquidate the Trust and cause the
Debentures to be distributed to the holders of the Securities in liquidation
of the Trust or, simultaneously with any redemption of the Debentures, cause
a Like Amount of the Securities to be redeemed by the Trust.
The Capital Securities shall be redeemable as provided in the
Declaration.
_____________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Capital
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 Capital 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 Capital 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.
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number Number of Common Securities
__________ __________
Certificate Evidencing Common Securities
of
BANKBOSTON CAPITAL TRUST (IV) (V)
( %) (Floating Rate) Common Securities
(liquidation amount $( ) per Common Security)
BANKBOSTON CAPITAL TRUST (IV) (V), a statutory business trust
formed under the laws of the State of Delaware (the "Trust"), hereby
certifies that BankBoston Corporation (the "Holder") is the registered owner
of __________ securities of the Trust representing undivided beneficial
interests in the assets of the Trust designated the ( %) (Floating Rate)
Common Securities (liquidation amount $( ) per Common Security) (the
"Common Securities"). The Common Securities are not transferable. The
designation, rights, privileges, restrictions, preferences and other terms
and provisions of the Common Securities represented hereby are issued and
shall in all respects be subject to the provisions of the Amended and
Restated Declaration of Trust of the Trust dated as of , , 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 but not defined herein shall have
the meaning given them in the Declaration. 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 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 and to the benefits of
the Common Securities Guarantee to the extent provided therein.
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.
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.
IN WITNESS WHEREOF, the Trust has executed this certificate this
day of , .
- --- ------------ -----
BANKBOSTON CAPITAL TRUST (IV) (V)
By:
--------------------------------
Name:
Administrative Trustee
(FORM OF REVERSE OF SECURITY)
Distributions on each Common Security will be payable at a rate per
annum (of ( )%) (equal to LIBOR plus ( )% (the "Distribution Rate")) of the
Liquidation Amount of $( ) per Common Security, such rate being the rate
of interest payable on the Debentures to be held by the Property Trustee.
(LIBOR and the amount payable in respect of a Distribution for a Distribution
Period will be calculated by the Calculation Agent in the same manner as
LIBOR and the interest payable in respect of each Interest Period for the
Debentures, as set forth in the Indenture.)* Distributions in arrears for
more than one ( ) period will bear additional distributions thereon
compounded ( ) at the (applicable periodic) Distribution Rate (to
the extent permitted by applicable law). The term "Distributions", as used
herein, includes any such additional distributions unless otherwise stated.
A Distribution is payable only to the extent that payments are made in
respect of the Debentures held by the Property Trustee and to the extent the
Property Trustee has funds on hand legally available therefor.
- ---------------
* Applicable if the Debentures are to bear interest at a floating rate.
Distributions on the Common Securities will be cumulative, will
accumulate from the most recent date to which Distributions have been paid
or, if no Distributions have been paid, from , , to but excluding
----
the related Distribution Date (as defined herein) and will be payable (
) in arrears on ( ) of each year,
commencing , (each, a "Distribution Date"), except as
----
otherwise described below and in the Declaration. The amount of Distribu-
tions payable for any Distribution Period will be computed on the basis of (a
360-day year consisting of twelve 30-day months) (the actual number of days
elapsed in such period and a year of 360 days). "Distribution Period" means
the period from and including the immediately preceding Distribution Date (or
, , in the case of the first Distribution Period) to but excluding
----
the applicable Distribution Date. If a Distribution Date is not a Business
Day, then (such Distribution Date and the first day of the Distribution
Period commencing on such Distribution Date will be the next succeeding
Business Day, except if such Business Day is in the next succeeding
calendar month, such Distribution Date and the first day of such
Distribution Period will be the immediately preceding Business Day) (payment
of any Distributions payable on such date will be made on the next
succeeding Business Day, and no interest or other payment will accumulate
for the period from and after such date). As long as no Event of Default
has occurred and is continuing under the Indenture, the Debenture Issuer
has the right under the Indenture to defer payments of interest by
extending the interest payment period at any time and from time to time
on the Debentures for a period not exceeding ( ) consecutive ( )
periods, including the first such ( ) period during such period
(each an "Extension Period"), during which Extension Period no interest
shall be due and payable on the Debentures, provided that
-------- ----
no Extension Period shall extend beyond the Maturity Date of the Debentures.
As a consequence of such deferral, Distributions will also be deferred.
Despite such deferral, ( ) Distributions will continue to
accumulate with additional interest thereon (to the extent permitted by
applicable law but not at a rate greater than the rate at which interest
is then accruing on the Debentures) at the Distribution Rate then in
effect compounded ( ) during any such Extension Period. At
the end of the Extension Period, all accumulated and unpaid
Distributions (but only to the extent payments are made in respect of
the Debentures held by the Property Trustee and to the extent the
Property Trustee has funds available therefor) will be payable to the
Holders as they appear on the books and records of the Trust on the
record date immediately preceding the end of the Extension Period.
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
within such Extension Period, may not exceed ( ) consecutive ( )
periods, including the first ( ) period during such Extension Period,
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 Deben-
ture Issuer may commence a new Extension Period, subject to the above re-
quirements.
Subject to the prior approval of the Federal Reserve Board if such
approval is then required under applicable law or capital guidelines or
policies of the Federal Reserve Board and to certain other conditions set
forth in the Declaration and the Indenture, the Property Trustee may, at the
direction of the Sponsor, at any time liquidate the Trust and cause the
Debentures to be distributed to the holders to the Securities in liquidation
of the Trust or, simultaneously with any redemption of the Debentures, cause
a Like Amount of the Securities to be redeemed by the Trust.
The Common Securities shall be redeemable as provided in the
Declaration.
Exhibit 4.9
====================================
CAPITAL SECURITIES GUARANTEE AGREEMENT
BankBoston Corporation
Dated as of , ____
====================================
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation . . . . . . . . . . . 2
------------------------------
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application . . . . . . . . . . 6
--------------------------------
SECTION 2.2 Lists of Holders of Securities . . . . . . . . . . . 6
------------------------------
SECTION 2.3 Reports by the Capital Securities Guarantee
-------------------------------------------
Trustee . . . . . . . . . . . . . . . . . . . . . . . 6
-------
SECTION 2.4 Periodic Reports to Capital Securities Guarantee
------------------------------------------------
Trustee . . . . . . . . . . . . . . . . . . . . . . . 7
-------
SECTION 2.5 Evidence of Compliance with Conditions Precedent . . 7
------------------------------------------------
SECTION 2.6 Events of Default; Waiver . . . . . . . . . . . . . . 7
-------------------------
SECTION 2.7 Event of Default; Notice . . . . . . . . . . . . . . 7
------------------------
SECTION 2.8 Conflicting Interests . . . . . . . . . . . . . . . . 8
---------------------
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Capital Securities
-------------------------------------------
Guarantee Trustee . . . . . . . . . . . . . . . . . . 8
-------------
SECTION 3.2 Certain Rights of Capital Securities Guarantee
----------------------------------------------
Trustee . . . . . . . . . . . . . . . . . . . . . . . 10
-------
SECTION 3.3. Not Responsible for Recitals or Issuance of
-------------------------------------------
Capital Securities Guarantee . . . . . . . . . . . . 13
------------------------
ARTICLE IV
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Capital Securities Guarantee Trustee; Eligibility . . 13
-------------------------------------------------
SECTION 4.2 Appointment, Removal and Resignation of Capital
-----------------------------------------------
Securities Guarantee Trustee . . . . . . . . . . . . 14
----------------------------
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee . . . . . . . . . . . . . . . . . . . . . . 15
---------
SECTION 5.2 Waiver of Notice and Demand . . . . . . . . . . . . . 15
---------------------------
SECTION 5.3 Obligations Not Affected . . . . . . . . . . . . . . 15
------------------------
SECTION 5.4 Rights of Holders . . . . . . . . . . . . . . . . . . 16
-----------------
SECTION 5.5 Guarantee of Payment . . . . . . . . . . . . . . . . 17
--------------------
SECTION 5.6 Subrogation . . . . . . . . . . . . . . . . . . . . . 17
-----------
SECTION 5.7 Independent Obligations . . . . . . . . . . . . . . . 17
-----------------------
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions . . . . . . . . . . . . . 17
--------------------------
SECTION 6.2 Ranking . . . . . . . . . . . . . . . . . . . . . . . 18
-------
ARTICLE VII
TERMINATION
SECTION 7.1 Termination . . . . . . . . . . . . . . . . . . . . . 19
-----------
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation . . . . . . . . . . . . . . . . . . . . . 19
-----------
SECTION 8.2 Indemnification . . . . . . . . . . . . . . . . . . . 20
---------------
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns . . . . . . . . . . . . . . . 20
----------------------
SECTION 9.2 Amendments . . . . . . . . . . . . . . . . . . . . . 20
----------
SECTION 9.3 Notices . . . . . . . . . . . . . . . . . . . . . . . 20
-------
SECTION 9.4 Benefit . . . . . . . . . . . . . . . . . . . . . . . 21
-------
SECTION 9.5 Governing Law . . . . . . . . . . . . . . . . . . . . 22
-------------
CAPITAL SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Capital Securities Guarantee"),
dated as of , ____, is executed and delivered by BankBoston
Corporation, a Massachusetts corporation (the "Guarantor"), and The Bank of
New York, a New York banking corporation, as trustee (the "Capital Securities
Guaranteed Trustee"), for the benefit of the Holders (as defined herein) from
time to time of the Capital Securities (as defined herein) of BankBoston
Capital Trust (IV) (V), a statutory business trust formed under the laws of
the State of Delaware (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust
(the "Declaration"), dated as of , ____, among the trustees of
the Issuer, 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 ( ) capital securities, having an aggregate
liquidation amount of $( ), such capital securities being designated
the (%)(Floating Rate) Capital Securities (collectively, the "Capital
Securities").
WHEREAS, as incentive for the Holders to purchase the Capital
Securities, the Guarantor desires irrevocably and unconditionally to agree,
to the extent set forth in this Capital Securities Guarantee, to pay to the
Holders of the Capital Securities the Guarantee Payments (as defined below).
The Guarantor agrees to make certain other payments on the terms and
conditions set forth herein.
WHEREAS, the Guarantor is executing and delivering a guarantee
agreement (the "Common Securities Guarantee"), with substantially identical
terms to this Capital 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 Declaration) 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 extent and in the manner
set forth in the Common Securities Guarantee, to the rights of holders of
Capital Securities to receive Guarantee Payments under this Capital
Securities Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Capital Securities, which purchase the Guarantor hereby acknowledges shall
benefit the Guarantor, the Guarantor executes and delivers this Capital
Securities Guarantee for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
------------------------------
In this Capital Securities Guarantee, unless the context otherwise
requires:
(a) Capitalized terms used in this Capital Securities Guarantee
but not defined in the preamble above have the respective
meanings assigned to them in this Section 1.1;
(b) Terms defined in the Declaration as at the date of execution
of this Capital Securities Guarantee have the same meaning
when used in this Capital Securities Guarantee unless
otherwise defined in this Capital Securities Guarantee;
(c) a term defined anywhere in this Capital Securities Guarantee
has the same meaning throughout;
(d) all references to "the Capital Securities Guarantee" or "this
Capital Securities Guarantee" are to this Capital Securities
Guarantee as modified, supplemented or amended from time to
time;
(e) all references in this Capital Securities Guarantee to
Articles and Sections are to Articles and Sections of this
Capital Securities Guarantee, unless otherwise specified;
(f) a term defined in the Trust Indenture Act has the same meaning
when used in this Capital Securities Guarantee, unless
otherwise defined in this Capital Securities Guarantee or
unless the context otherwise requires; and
(g) a reference to the singular includes the plural and vice
versa.
"Affiliate" has the same meaning as given to that term in Rule
---------
405 under the Securities Act of 1933, as amended, or any successor rule
thereunder.
"Business Day" means any day other than a Saturday or a Sunday,
------------
or a day on which banking institutions in The City of New York or Boston,
Massachusetts are authorized or required by law or executive order to close.
"Capital Securities Guarantee Trustee" means The Bank of New
------------------------------------
York, a New York banking corporation, until a Successor Capital Securities
Guarantee Trustee has been appointed and has accepted such appointment
pursuant to the terms of this Capital Securities Guarantee and thereafter
means each such Successor Capital Securities Guarantee Trustee.
"Common Securities" means the securities representing common
-----------------
undivided beneficial interests in the assets of the Issuer.
"Corporate Trust Office" means the office of the Capital
----------------------
Securities Guarantee Trustee at which the corporate trust business of the
Capital Securities Guarantee Trustee shall, at any particular time, be
principally administered, which office at the date of execution of this
Agreement is located at 101 Barclay Street, 21 West, New York, New York
10286.
"Covered Person" means any Holder or beneficial owner of Capital
--------------
Securities.
"Debentures" means the series of junior subordinated debt
----------
securities of the Guarantor designated the ( %)(Floating Rate) Junior
Subordinated Deferrable Interest Debentures due , ____ held by the
Property 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 Capital Securities Guarantee.
"Guarantee Payments" means the following payments or
------------------
distributions, without duplication, with respect to the Capital Securities,
to the extent not paid or made by the Issuer: (i) any accumulated and unpaid
Distributions (as defined in the Declaration) that are required to be paid on
such Capital Securities, to the extent the Issuer has funds on hand legally
available therefor at such time, (ii) the redemption price, including all
accumulated and unpaid Distributions to the date of redemption (the
"Redemption Price"), to the extent the Issuer has funds on hand legally
available therefor at such time, with respect to any Capital Securities
called for redemption by the Issuer, and (iii) upon a voluntary or
involuntary termination and liquidation of the Issuer (other than in
connection with the distribution of Debentures to the Holders in exchange for
Capital Securities as provided in the Declaration), the lesser of (a) the
aggregate of the liquidation amount and all accumulated and unpaid Distribu-
tions on the Capital Securities to the date of payment, to the extent the
Issuer has funds on hand legally available therefor at such time, 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 has occurred and is continuing, no
Guarantee Payments under the Common Securities Guarantee with respect to the
Common Securities or any guarantee payment under any Other Common Securities
Guarantees shall be made until the Holders of Capital Securities shall be
paid in full the Guarantee Payments to which they are entitled under this
Capital Securities Guarantee.
"Holder" shall mean any holder, as registered on the books and
------
records of the Issuer, of any Capital Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Capital
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 Capital Securities Guarantee
------------------
Trustee, any Affiliate of the Capital Securities Guarantee Trustee, or any
officers, directors, shareholders, members, partners, employees,
representatives, nominees, custodians or agents of the Capital Securities
Guarantee Trustee.
"Indenture" means the Indenture dated as of , ____, among
---------
the Guarantor (the "Debenture Issuer") and The Bank of New York, as trustee,
pursuant to which the Debentures are to be issued to the Property Trustee of
the Issuer.
"Majority in liquidation amount of the Capital Securities"
--------------------------------------------------------
means, except as provided by the Trust Indenture Act, a vote by Holder(s) of
Capital Securities, voting separately as a class, of more than 50% of the
aggregate liquidation amount (including the amount payable on redemption,
liquidation or otherwise, plus accumulated and unpaid Distributions to the
date upon which the voting percentages are determined) of all Capital
Securities.
"Officers' Certificate" means, with respect to any person, a
---------------------
certificate signed by the Chairman, a Vice Chairman, the Chief Executive
Officer, the President, a Vice President, the Comptroller, the Executive
Director, Global Treasury, the Clerk or an Assistant Clerk, the Secretary or
an Assistant Secretary of the Guarantor. Any Officers' Certificate delivered
with respect to compliance with a condition or covenant provided for in this
Capital Securities Guarantee shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(b) 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
(c) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Other Common Securities Guarantees" shall have the same meaning
----------------------------------
as "Other Guarantees" in the Common Securities Guarantee.
"Other Debentures" means all junior subordinated debentures
----------------
issued by the Guarantor from time to time and sold to trusts established by
the Guarantor, in each case similar to the Issuer.
"Other Guarantees" means all guarantees issued by the Guarantor
----------------
with respect to capital securities similar to the Capital Securities issued
by other trusts established by the Guarantor, in each case similar to the
Issuer.
"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.
"Responsible Officer" means, with respect to the Capital
-------------------
Securities Guarantee Trustee, any officer within the Corporate Trust Office
of the Capital Securities Guarantee Trustee, including any vice president,
any assistant vice president, any assistant secretary, any assistant
treasurer or other officer of the Corporate Trust Office of the Capital
Securities Guarantee Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom
such matter is referred because of that officer's knowledge of and
familiarity with the particular subject.
"Successor Capital Securities Guarantee Trustee" means a
----------------------------------------------
successor Capital Securities Guarantee Trustee possessing the qualifications
to act as Capital Securities Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
-------------------
amended.
"Trust Securities" means the Common Securities and the Capital
----------------
Securities, collectively.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application
--------------------------------
(a) This Capital Securities Guarantee is subject to the provisions
of the Trust Indenture Act that are required to be part of this Capital
Securities Guarantee and shall, to the extent applicable, be governed by such
provisions.
(b) If and to the extent that any provision of this Capital
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 Capital Securities Guarantee
Trustee (unless the Capital Securities Guarantee Trustee is otherwise the
registrar of the Capital Securities) with a list, in such form as the Capital
Securities Guarantee Trustee may reasonably require, of the names and
addresses of the Holders of the Capital Securities ("List of Holders"), (i)
within one Business Day after ( ) and ( )of each year, 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 Capital Securities 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 Capital Securities Guarantee
Trustee by the Guarantor. The Capital Securities Guarantee Trustee may
destroy any List of Holders previously given to it on receipt of a new List
of Holders.
(b) The Capital Securities 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 Capital Securities Guarantee Trustee
---------------------------------------------------
Within 60 days after ( ) of each year, commencing
( ), the Capital Securities Guarantee Trustee shall provide to the
Holders of the Capital Securities such reports as are required by Section
313 of the Trust Indenture Act, if any, in the form and in the manner
provided by Section 313 of the Trust Indenture Act. The Capital Securities
Guarantee Trustee shall also comply with the requirements of Section 313(d)
of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Capital Securities Guarantee Trustee
--------------------------------------------------------
The Guarantor shall provide to the Capital Securities Guarantee
Trustee such documents, reports and information as required by Section 314 of
the Trust Indenture Act (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. Delivery of such
reports, information and documents to the Capital Securities Guarantee
Trustee is for informational purposes only and the Capital Securities
Guarantee Trustee's receipt of such shall not constitute constructive notice
of any information contained therein or determinable from information
contained therein, including the Guarantor's compliance with any of its
covenants hereunder (as to which the Capital Securities Guarantee Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 2.5 Evidence of Compliance with Conditions Precedent
------------------------------------------------
The Guarantor shall provide to the Capital Securities Guarantee
Trustee such evidence of compliance with any conditions precedent, if any,
provided for in this Capital 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 Capital
Securities may, by vote, on behalf of the Holders of all of the Capital
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 Capital 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 Capital Securities Guarantee Trustee shall, within 90 days
after the occurrence of a default with respect to this Capital Securities
Guarantee, mail by first class postage prepaid, to all Holders of the Capital
Securities, notices of all defaults actually known to a Responsible Officer
of the Capital Securities Guarantee Trustee, unless such defaults have been
cured before the giving of such notice, provided, that, except in
the case of default in the payment of any Guarantee Payment, the Capital
Securities Guarantee Trustee shall be protected in withholding such notice if
and so long as the board of directors, the executive committee, or a trust
committee of directors and/or Responsible Officers of the Capital Securities
Guarantee Trustee in good faith determines that the withholding of such
notice is in the interests of the holders of the Capital Securities.
(b) The Capital Securities Guarantee Trustee shall not be deemed
to have knowledge of any Event of Default unless the Capital Securities
Guarantee Trustee shall have received written notice, or a Responsible
Officer of the Capital Securities Guarantee Trustee charged with the
administration of the Declaration shall have obtained actual knowledge, of
such Event of Default.
SECTION 2.8 Conflicting Interests
---------------------
The Declaration shall be deemed to be specifically described in
this Capital 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
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Capital Securities Guarantee
-----------------------------------------------------
Trustee
-------
(a) This Capital Securities Guarantee shall be held by the Capital
Securities Guarantee Trustee for the benefit of the Holders of the Capital
Securities, and the Capital Securities Guarantee Trustee shall not transfer
this Capital Securities Guarantee to any Person except a Holder of Capital
Securities exercising his or her rights pursuant to Section 5.4(b) or to a
Successor Capital Securities Guarantee Trustee on acceptance by such
Successor Capital Securities Guarantee Trustee of its appointment to act as
Successor Capital Securities Guarantee Trustee. The right, title and
interest of the Capital Securities Guarantee Trustee shall automatically vest
in any Successor Capital Securities Guarantee Trustee, and such vesting and
succession of title shall be effective whether or not conveyancing documents
have been executed and delivered pursuant to the appointment of such
Successor Capital Securities Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible Officer
of the Capital Securities Guarantee Trustee has occurred and is continuing,
the Capital Securities Guarantee Trustee shall enforce this Capital
Securities Guarantee for the benefit of the Holders of the Capital
Securities.
(c) The Capital Securities 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 Capital Securities Guarantee, and no
implied covenants shall be read into this Capital Securities Guarantee
against the Capital Securities 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 Capital Securities
Guarantee Trustee, the Capital Securities Guarantee Trustee shall exercise
such of the rights and powers vested in it by this Capital 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 Capital Securities Guarantee shall be
construed to relieve the Capital Securities Guarantee Trustee from liability
for its own negligent action, its own negligent failure to act, or its own
willful misconduct, except that:
(i) prior to the occurrence of 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 Capital Securities
Guarantee Trustee shall be determined solely by the express
provisions of this Capital Securities Guarantee, and the Capital
Securities Guarantee Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set
forth in this Capital Securities Guarantee, and no implied
covenants or obligations shall be read into this Capital Securities
Guarantee against the Capital Securities Guarantee Trustee; and
(B) in the absence of bad faith on the part of the Capital
Securities Guarantee Trustee, the Capital Securities 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 Capital Securities
Guarantee Trustee and conforming to the requirements of this
Capital 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 Capital Securities
Guarantee Trustee, the Capital Securities Guarantee Trustee shall
be under a duty to examine the same to determine whether or not
they conform to the requirements of this Capital Securities
Guarantee;
(ii) the Capital Securities Guarantee Trustee shall not be liable
for any error of judgment made in good faith by a Responsible Officer of
the Capital Securities Guarantee Trustee, unless it shall be proved that
the Capital Securities Guarantee Trustee was negligent in ascertaining
the pertinent facts upon which such judgment was made;
(iii) the Capital Securities 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 a Majority in
liquidation amount of the Capital Securities relating to the time,
method and place of conducting any proceeding for any remedy available
to the Capital Securities Guarantee Trustee, or exercising any trust or
power conferred upon the Capital Securities Guarantee Trustee under this
Capital Securities Guarantee; and
(iv) no provision of this Capital Securities Guarantee shall
require the Capital Securities 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 Capital Securities 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
Capital Securities Guarantee or indemnity, reasonably satisfactory to
the Capital Securities Guarantee Trustee, against such risk or liability
is not reasonably assured to it.
SECTION 3.2 Certain Rights of Capital Securities Guarantee Trustee
------------------------------------------------------
(a) Subject to the provisions of Section 3.1:
(i) The Capital Securities 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
Capital Securities Guarantee may be sufficiently evidenced by an
Officers' Certificate.
(iii) Whenever, in the administration of this Capital Securities
Guarantee, the Capital Securities Guarantee Trustee shall deem it
desirable that a matter be proved or established before taking,
suffering or omitting any action hereunder, the Capital Securities
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 Capital Securities 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 Capital Securities 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 Capital Securities Guarantee
Trustee shall have the right at any time to seek instructions concerning
the administration of this Capital Securities Guarantee from any court
of competent jurisdiction.
(vi) The Capital Securities Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Capital Securities Guarantee at the request or direction of any Holder,
unless such Holder shall have provided to the Capital Securities
Guarantee Trustee such security and indemnity, reasonably satisfactory
to the Capital Securities Guarantee Trustee, against the costs, expenses
(including attorneys' fees and expenses and the expenses of the Capital
Securities 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 Capital Securities Guarantee Trustee; provided that, nothing
contained in this Section 3.2(a)(vi) shall be taken to relieve the
Capital Securities Guarantee Trustee, upon the occurrence of an Event of
Default, of its obligation to exercise the rights and powers vested in
it by this Capital Securities Guarantee.
(vii) The Capital Securities 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 Capital Securities
Guarantee Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit.
(viii) The Capital Securities 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 Capital Securities 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 Capital Securities Guarantee Trustee
or its agents hereunder shall bind the Holders of the Capital
Securities, and the signature of the Capital Securities 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 Capital Securities Guarantee Trustee to so act or as to
its compliance with any of the terms and provisions of this Capital
Securities Guarantee, both of which shall be conclusively evidenced by
the Capital Securities Guarantee Trustee's or its agent's taking such
action.
(x) Whenever in the administration of this Capital Securities
Guarantee the Capital Securities Guarantee Trustee shall deem it
desirable to receive instructions with respect to enforcing any remedy
or right or taking any other action hereunder, the Capital Securities
Guarantee Trustee (i) may request instructions from the Holders of a
Majority in liquidation amount of the Capital 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 Capital Securities Guarantee Trustee shall not be liable
for any action taken, suffered, or omitted to be taken by it in good
faith, without negligence, and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Capital Securities Guarantee.
(b) No provision of this Capital Securities Guarantee shall be
deemed to impose any duty or obligation on the Capital Securities 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 Capital Securities 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 Capital Securities
Guarantee Trustee shall be construed to be a duty.
SECTION 3.3. Not Responsible for Recitals or Issuance of Capital
---------------------------------------------------
Securities Guarantee
- --------------------
The recitals contained in this Capital Securities Guarantee shall
be taken as the statements of the Guarantor, and the Capital Securities
Guarantee Trustee does not assume any responsibility for their correctness.
The Capital Securities Guarantee Trustee makes no representation as to the
validity or sufficiency of this Capital Securities Guarantee.
ARTICLE IV
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Capital Securities Guarantee Trustee; Eligibility
-------------------------------------------------
(a) There shall at all times be a Capital Securities 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 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 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.
(b) If at any time the Capital Securities Guarantee Trustee shall
cease to be eligible to so act under Section 4.1(a), the Capital Securities
Guarantee Trustee shall immediately resign in the manner and with the effect
set out in Section 4.2(c).
(c) If the Capital Securities Guarantee Trustee has or shall
acquire any "conflicting interest" within the meaning of Section 310(b) of
the Trust Indenture Act, the Capital Securities Guarantee Trustee and
Guarantor shall in all respects comply with the provisions of Section 310(b)
of the Trust Indenture Act.
SECTION 4.2 Appointment, Removal and Resignation of Capital Securities
----------------------------------------------------------
Guarantee Trustee
-----------------
(a) Subject to Section 4.2(b), the Capital Securities Guarantee
Trustee may be appointed or removed without cause at any time by the
Guarantor except during an Event of Default.
(b) The Capital Securities Guarantee Trustee shall not be removed
in accordance with Section 4.2(a) until a Successor Capital Securities
Guarantee Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Capital Securities Guarantee
Trustee and delivered to the Guarantor.
(c) The Capital Securities Guarantee Trustee shall hold office
until a Successor Capital Securities Guarantee Trustee shall have been
appointed or until its removal or resignation. The Capital Securities
Guarantee Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument in writing executed by the Capital
Securities Guarantee Trustee and delivered to the Guarantor, which
resignation shall not take effect until a Successor Capital Securities
Guarantee Trustee has been appointed and has accepted such appointment by
instrument in writing executed by such Successor Capital Securities Guarantee
Trustee and delivered to the Guarantor and the resigning Capital Securities
Guarantee Trustee.
(d) If no Successor Capital Securities 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
Capital Securities Guarantee Trustee resigning or being removed may petition
any court of competent jurisdiction for appointment of a Successor Capital
Securities Guarantee Trustee. Such court may thereupon, after prescribing
such notice, if any, as it may deem proper, appoint a Successor Capital
Securities Guarantee Trustee.
(e) No Capital Securities Guarantee Trustee shall be liable for
the acts or omissions to act of any Successor Capital Securities Guarantee
Trustee.
(f) Upon termination of this Capital Securities Guarantee or
removal or resignation of the Capital Securities Guarantee Trustee pursuant
to this Section 4.2, the Guarantor shall pay to the Capital Securities
Guarantee Trustee all amounts due to the Capital Securities Guarantee
Trustee accrued to the date of such termination, removal or resignation.
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 Capital
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 Capital 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 Capital 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 Capital Securities or the
extension of time for the performance of any other obligation under, arising
out of, or in connection with, the Capital Securities (other than an exten-
sion 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 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 pursuant to the terms of the Capital
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 Capital
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
with respect to the Guarantee Payments 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 Holders of a Majority in liquidation amount of the Capital
Securities have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Capital Securities Guarantee
Trustee in respect of this Capital Securities Guarantee or exercising any
trust or power conferred upon the Capital Securities Guarantee Trustee under
this Capital Securities Guarantee.
(b) If the Capital Securities Guarantee Trustee fails to enforce
such Capital Securities Guarantee, any Holder of Capital Securities may
institute a legal proceeding directly against the Guarantor to enforce the
Capital Securities Guarantee Trustee's rights under this Capital Securities
Guarantee, without first instituting a legal proceeding against the Issuer,
the Capital Securities 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 Capital 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 of Capital Securities against the Issuer in respect of any amounts
paid to such Holders by the Guarantor under this Capital 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 Capital Securities Guarantee, if, at the time of any such
payment, any amounts are due and unpaid under this Capital 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 Capital
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Capital
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 Capital Securities remain outstanding, the Guarantor
shall not (i) declare or pay any dividends or distributions on, or redeem,
purchase, acquire, or make a liquidation payment with respect to, any of the
Guarantor's capital stock (which includes common and preferred stock) or (ii)
make any payment of principal, interest or premium, if any, on or repay or
repurchase or redeem any debt securities of the Guarantor (including any
Other Debentures) that rank pari passu with or junior in right of payment to
the Debentures or (iii) make any guarantee payments with respect to any
guarantee by the Guarantor of the debt securities of any subsidiary of the
Guarantor (including Other Guarantees) if such guarantee ranks pari passu or
junior in right of payment to the Debentures (other than (a) dividends or
distributions in shares of, or options, warrants, rights to subscribe for or
purchase shares of, common stock of the Guarantor, (b) any declaration of a
dividend in connection with the implementation of a stockholder's rights
plan, or the issuance of stock under any such plan in the future, or the
redemption or repurchase of any such rights pursuant thereto, (c) payments
under the Capital Securities Guarantee, (d) as a result of a
reclassification of the Guarantor's capital stock or the exchange or the
conversion of one class or series of the Guarantor's capital stock for
another class or series of the Guarantor's capital stock, (e) the purchase
of fractional interests in shares of the Guarantor's capital stock pursuant
to the conversion or exchange provisions of such capital stock or the
security being converted or exchanged, and (f) 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 or any of
the Guarantor's dividend rein- vestment plans) if at such time (i) there
shall have occurred any event of which the Guarantor has actual knowledge
that (a) is, or with the giving of notice or the lapse of time, or both,
would be an Event of Default and (b) in respect of which the Guarantor shall
not have taken reasonable steps to cure, (ii) if such Debentures are held by
the Property Trustee, the Guarantor shall be in default with respect to its
payment of any obligations under this Capital Securities Guarantee or (iii)
the Guarantor shall have given notice of its election of the exercise of its
right to extend the interest payment period pursuant to Section 16.01 of the
Indenture and any such extension shall be continuing.
SECTION 6.2 Ranking
-------
This Capital Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in right
of payment to Senior Indebtedness (as defined in the Indenture), to the same
extent and in the same manner that the Debentures are subordinated to Senior
Indebtedness pursuant to the Indenture (except as indicated below), it being
understood that the terms of Article XV of the Indenture shall apply to the
obligations of the Guarantor under this Capital Securities Guarantee as if
(x) such Article XV were set forth herein in full and (y) such obligations
were substituted for the term "Securities" appearing in such Article XV,
except that with respect to Section 15.03 of the Indenture only, the term
"Senior Indebtedness" shall mean all liabilities of the Guarantor, whether or
not for money borrowed (other than obligations referred to in clause (ii)
below), (ii) pari passu with the most senior preferred or preference stock
now or hereafter issued by the Guarantor, with any Other Guarantee and
(except to the extent otherwise specified therein) any Other Common
Securities Guarantee and any guarantee now or hereafter entered into by the
Guarantor in respect of any preferred or preference stock of any Affiliate
of the Guarantor, and (iii) senior to the Guarantor's common stock.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination
-----------
This Capital Securities Guarantee shall terminate (i) upon full
payment of the Redemption Price of all Capital Securities, or (ii) upon
liquidation of the Issuer, the full payment of the amounts payable in
accordance with the Declaration or the distribution of the Debentures to the
Holders of all of the Capital Securities. Notwithstanding the foregoing,
this Capital Securities Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder of Capital
Securities must restore payment of any sums paid under the Capital Securities
or under this Capital Securities Guarantee.
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 Capital 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 Capital 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 and who has been selected with
reasonable care by or on behalf of the Guarantor, 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 Capital
Securities 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 Capital Securities Guarantee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns
----------------------
All guarantees and agreements contained in this Capital 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 Capital Securities then outstanding.
SECTION 9.2 Amendments
----------
Except with respect to any changes that do not materially adversely
affect the rights of Holders (in which case no consent of Holders will be
required), this Capital Securities Guarantee may only be amended with the
prior approval of the Holders of a Majority in liquidation amount of the
Capital Securities (including the amount payable on redemption, liquidation
or otherwise, plus accumulated and unpaid Distributions to the date upon
which the voting percentages are determined). The provisions of Section 12.2
of the Declaration with respect to meetings of Holders of the Securities
apply to the giving of such approval.
SECTION 9.3 Notices
-------
All notices provided for in this Capital 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 Issuer, in care of the Administrative Trustee
at the Issuer's mailing address set forth below (or such other address as the
Issuer may give notice of to the Holders of the Common Securities):
BankBoston Capital Trust (IV)(V)
c/o BankBoston Corporation
P.O. Box 2016
Boston, Massachusetts 02106-2016
Attention: Kathleen M. McGillycuddy,
Administrative Trustee
Telecopy: (617) 434-0501
(b) If given to the Capital Securities Guarantee Trustee, at the
Capital Securities Guarantee Trustee's mailing address set forth below (or
such other address as the Capital Securities Guarantee Trustee may give
notice of to the Holders of the Capital Securities):
The Bank of New York
101 Barclay Street, 21 West
New York, New York 10286
Attention: Corporate Trust Trustee
Administration
Telecopy: (212) 815-5915
(c) 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 of the Capital Securities):
BankBoston Corporation
100 Federal Street, MA BOS 01-25-01
Boston, Massachusetts 02110
Attention: Gary A. Spiess, General Counsel
Telecopy: (617) 434-6525
(d) If given to any Holder of Capital Securities, 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 Capital Securities Guarantee is solely for the benefit of the
Holders of the Capital Securities and, subject to Section 3.1(a), is not
separately transferable from the Capital Securities.
SECTION 9.5 Governing Law
-------------
THIS CAPITAL SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
THIS CAPITAL SECURITIES GUARANTEE is executed as of the day and
year first above written.
BANKBOSTON CORPORATION,
as Guarantor
By: ______________________________
Name:
Title:
THE BANK OF NEW YORK, as Capital
Securities Guarantee Trustee
By: ______________________________
Name:
Title:
Exhibit 5.1
[BROWN & WOOD LLP LETTERHEAD]
March 6, 1998
BankBoston Corporation
100 Federal Street
Boston, MA 02110
Ladies and Gentlemen:
This opinion is delivered in connection with the Registration Statement
on Form S-3 (File Nos. 333-47125, 333-47125-01 and 333-47125-02) filed on
February 27, 1998, as amended by Pre-Effective Amendment No. 1 thereto filed
March 6, 1998 (the "Registration Statement"), with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Act"), by the BankBoston Corporation, a Massachusetts
corporation ("Corporation"), and BankBoston Capital Trust IV and BankBoston
Capital Trust V, each a Delaware business trust (the "Trusts", and together
with the Corporation, the "Registrants"), which Registration Statement
relates to (i) preferred securities to be issued by each of the Trusts
representing beneficial ownership interests in the related Trust (the
"Capital Securities"), (ii) junior subordinated deferrable interest
debentures to be issued by the Corporation (the "Debentures") in connection
with the issuance of Capital Securities by the applicable Trust and
(iii) guarantees to be issued by the Corporation (the "Guarantees") in
respect of certain obligations of each of the Trusts under their respective
Capital Securities.
We have examined an executed copy of the Registration Statement and all
exhibits thereto, including (i) the form of Indenture (the "Indenture")
between the Corporation and The Bank of New York, as Debenture Trustee (the
"Debenture Trustee"), pursuant to which the Debentures are to be issued and
(ii) the form of Capital Security Guarantee Agreement (the "Guarantee
Agreement") between the Corporation and The Bank of New York, as Guarantee
Trustee (the "Guarantee Trustee"). In addition, we have examined, and have
relied as to matters of fact upon, originals or copies, certified or
otherwise identified to our satisfaction, of such corporate records,
agreements, documents and other instruments and such certificates or
comparable documents of public officials and of officers and representatives
of the Corporation, and have made such other and further investigations, as
we have deemed relevant and necessary as a basis for the opinions
hereinafter set forth.
In our examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such latter documents. We have also assumed
that the Registration Statement will have become effective under the Act
prior to the time of issuance, offering and sale of any Capital Securities,
Debentures or Guarantees.
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, we are of the opinion that:
1. With respect to the Debentures to be issued under each
Indenture, such Debentures have been duly authorized by the
Corporation and, when (i) such Indenture has been duly authorized
and validly executed and delivered by the Corporation and by the
Debenture Trustee and (ii) such Debentures have been duly executed,
authenticated, issued and delivered in accordance with the
provisions of such Indenture upon payment of the consideration
therefor as contemplated by the Registration Statement, such
Debentures will constitute valid and legally binding obligations of
the Corporation, enforceable against the Corporation in accordance
with their terms.
2. With respect to the Guarantee to be issued under each
Guarantee Agreement, such Guarantee has been duly authorized by the
Corporation and, when such Guarantee Agreement has been duly
authorized and validly executed and delivered by the Corporation
and by the Guarantee Trustee as contemplated in the Registration
Statement, such Guarantee will constitute a valid and legally
binding obligation of the Corporation, enforceable against the
Corporation in accordance with its terms.
Our opinions set forth in paragraphs 1 and 2 above are subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally and general principles of equity (whether considered in a
proceeding in equity or at law).
We are members of the Bar of the State of New York and we express no
opinion as to the laws of any jurisdiction other than the laws of the State
of New York and the federal laws of the United States of America and, with
respect to the laws of the Commonwealth of Massachusetts, we have made no
independent investigation of such laws and have relied on all matters
governed by such laws upon the opinion of Gary A. Spiess, General Counsel of
the Corporation.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption
"Validity of Securities" contained in the Prospectus included therein.
Very truly yours,
/s/ Brown & Wood LLP
BROWN & WOOD LLP
Exhibit 5.2
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, NY 10022-3897
March 6, 1998
BankBoston Capital Trust IV
BankBoston Capital Trust V
BankBoston Corporation
c/o BankBoston Corporation
100 Federal Street
MA BOS 01-25-01
Boston, Massachusetts 02110
Re: BankBoston Capital Trust IV
BankBoston Capital Trust V
BankBoston Corporation
Registration Statement on Form S-3
----------------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel to BankBoston Capital
Trust IV and BankBoston Capital Trust V (each, a "Trust" and together, the
"Trusts"), each of which are business trusts formed under the Business Trust
Act of the State of Delaware (Chapter 38, Title 12, of the Delaware Code,
12 Del. C. Section 3801 et. seq.), and BankBoston Corporation, a Massachusetts
corporation (the "Company"), in connection with the preparation
of the Registration Statement on Form S-3 filed by the Company and each of
the Trusts with the Securities and Exchange Commission (the "Commission") on
February 27, 1998, and Amendment No. 1 thereto, to be filed with the
Commission on the date hereof (such Registration Statement, as so amended,
being hereinafter referred to as the "Registration Statement"), under the
Securities Act of 1933, as amended (the "Act"). The Registration Statement
relates to the issuance and sale from time to time pursuant to the Rule 415
of the General Rules and Regulations promulgated under the Act of, among
other securities, Capital Securities of the Trusts (the "Capital Securities")
with an aggregate public offering price of up to $500,000,000.
The Capital Securities are to be issued pursuant to the Amended and
Restated Declaration of Trust of such Trust (each, a "Declaration" and
together, the "Declarations"), each such Declaration being among the
Company, as sponsor of such Trust, Robert T. Jefferson, Kathleen M.
McGillycuddy and Craig V. Starble, as administrative trustees of such Trust,
The Bank of New York, as property trustee of such Trust (the "Property Trust-
ee"), and The Bank of New York (Delaware), as Delaware trustee of such Trust.
This opinion is being delivered in accordance with the requirements
of Item 601(b)(5) of Regulation S-K under the Act.
In connection with this opinion, we have examined originals or
copies, certified or otherwise identified to our satisfaction, of (i) the
Registration Statement; (ii) the certificates of trust of each of the Trusts
filed with the Secretary of State of the State of Delaware on February 26,
1998; (iii) the form of the Declaration of each of the Trusts; (iv) the form
of the Capital Securities of each of the Trusts and specimen certificates
thereof; (v) the form of the capital securities guarantee agreements (the
"Guarantee Agreements"), to be entered into by the Company and The Bank of
New York, as guarantee trustee; and (vi) the form of the Purchase Agreements
(the "Purchase Agreements") proposed to be entered into among the Company,
each of the Trusts and the representatives for the Underwriters to be named
therein (collectively, the "Underwriters") relating to, among other things,
the sale of the Capital Securities. We have also examined originals or cop-
ies, certified or otherwise identified to our satisfaction, of such other
documents, certificates and records as we have deemed necessary or appro-
priate as a basis for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original documents
of all documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such copies. In making our examination of
documents executed or to be executed by parties other than the Trusts, we
have assumed that such parties had or will have the power, corporate or
other, to enter into and perform all obligations thereunder and have also
assumed the due authorization by all requisite action, corporate or other,
and execution and delivery by such parties of such documents and the validity
and binding effect thereof on such parties. In addition, we have assumed that
the respective Declarations, the respective Capital Securities, the respective
Guarantee Agreements and the respective Purchase Agreements, when executed
will be in substantially the forms reviewed by us. As to any facts material
to the opinions expressed herein which we did not independently establish or
verify, we have relied upon oral or written statements and representations of
officers, trustees and other representatives of the Company, the Trusts and
others.
Members of our firm are admitted to the bar in the State of
Delaware, and we do not express any opinion as to laws of any other jurisdic-
tion.
Based upon and subject to the foregoing and the limitations,
qualifications, exceptions and assumptions set forth herein, we are of the
opinion that when (i) the Registration Statement, as finally amended
(including all necessary post-effective amendments), has become effective
under the Act; (ii) the appropriate prospectus with respect to the Capital
Securities has been prepared, delivered and filed in compliance with the Act
and the applicable rules and regulations thereunder; (iii) the Declaration of
such Trust and the applicable Purchase Agreement have been duly executed and
delivered by the parties thereto; (iv) the Declaration has been qualified
under the Trust Indenture Act of 1939, as amended; and (v) the terms of the
Capital Securities have been duly established in accordance with the
applicable Declaration and the Capital Securities have been duly executed and
authenticated in accordance with the applicable Declaration and delivered to
and paid for by the Underwriters as contemplated by the Registration
Statement, the applicable prospectus relating thereto and the applicable
Purchase Agreement, the Capital Securities will have been duly authorized
for issuance by such Trust and will be validly issued, fully paid and
nonassessable, representing undivided beneficial interests in the assets
of such Trust; and the holders of the Capital Securities 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. We bring to your attention, however, that
the holders of the Capital Securities may be obligated, pursuant to the
Declaration of such Trust, to (i) provide indemnity and/or security in
connection with, and pay taxes or governmental charges arising from,
transfers of Capital Securities and the issuance of replacement Capital
Securities and (ii) provide security and indemnity in connection with
requests of or directions to the Property Trustee to exercise its
rights and powers under the Declaration of such Trust.
We hereby consent to the use of our name under the heading
"Validity of Securities" in the prospectus which forms a part of the Regis-
tration Statement. We also hereby consent to the filing of this opinion with
the Commission as an exhibit 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 Act or the rules and
regulations of the Commission promulgated thereunder. This opinion is ex-
pressed as of the date hereof, and we disclaim any undertaking to advise you
of any subsequent changes in the facts stated or assumed herein or of any
subsequent changes in applicable law.
Very truly yours,
/s/ Skadden, Arps, Slate,
Meagher & Flom LLP
EXHIBIT 8
March 6, 1998
BankBoston Corporation
100 Federal Street
Boston, MA 02110
BankBoston Capital Trust IV and
BankBoston Capital Trust V
c/o BankBoston Corporation
100 Federal Street
Boston, MA 02110
Re: Registration Statement on Form S-3
Registration Nos. 333-47125, 333-47125-01, 333-47125-02
-------------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel to BankBoston Corporation, a Massachusetts
corporation (the "Corporation"), and each of BankBoston Capital Trust IV and
BankBoston Capital Trust 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 "Commission") for the
purpose of registering (i) Capital Securities representing undivided
beneficial interests in the assets of the Trusts and (ii) Junior Subordinated
Deferrable Interest Debentures (the "Junior Subordinated Debentures") issued
by the Corporation to the Trusts, in connection with the sale of the Capital
Securities. All capitalized terms used herein and not otherwise defined
shall have the meanings set forth in the Prospectus ("Prospectus").
We hereby confirm that, although the discussion set forth under the
heading "Certain Federal Income Tax Considerations" in the Prospectus does
not purport to discuss all possible United States federal income tax
consequences of the purchase, ownership and disposition of Capital
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 Capital
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.
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
"Validity of Securities" in the Prospectus 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
"Certain Federal Income Tax Considerations" set forth in the Prospectus filed
as of the date hereof. 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/ Brown & Wood LLP
Brown & Wood LLP
EXHIBIT 24
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this Power
of Attorney has been signed by the following persons in the capacities and on
the dates indicated. By so signing, each of the undersigned, in his or her
capacity as a director or officer, or both, as the case may be, of BankBoston
Corporation (the "Corporation"), does hereby appoint Charles K. Gifford,
Henrique de Campos Meirelles, Susannah M. Swihart, Kathleen M. McGillycuddy,
Robert T. Jefferson and Gary A. Spiess, and each of them severally, or if
more than one acts, a majority of them, his or her true and lawful attorneys
or attorney to execute in his or her name, place and stead, in his or her
capacity as a director or officer or both, as the case may be, of the
Corporation, the Registration Statement on Form S-3 to be filed with the
Securities and Exchange Commission (the "Commission"), and any and all
amendments to said Registration Statement and all instruments necessary or
incidental in connection therewith, and to file the same with the Commission.
Each of said attorneys shall have full power and authority to do and perform
in the name and on behalf of each of the undersigned, in any and all
capacities, every act whatsoever requisite or necessary to be done in the
premises as fully and to all intents and purposes as each of the undersigned
might or could do in person, hereby ratifying and approving the acts of said
attorneys and each of them.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ CHARLES K. GIFFORD Chairman and Chief Executive February 26, 1998
- --------------------------- Officer and Director (Chief
(Charles K. Gifford) Executive Officer)
/s/ HENRIQUE DE CAMPOS President and Chief February 26, 1998
MEIRELLES Operating Officer and
- --------------------------- Director
(Henrique de Campos
Meirelles)
/s/ SUSANNAH M. SWIHART Chief Financial Officer and February 26, 1998
- --------------------------- Treasurer (Chief Financial
(Susannah M. Swihart) Officer)
/s/ ROBERT T. JEFFERSON Comptroller (Chief February 26, 1998
- --------------------------- Accounting Officer)
(Robert T. Jefferson)
/s/ WAYNE A BUDD Director February 26, 1998
- ---------------------------
(Wayne A. Budd)
/s/ JOHN A. CERVIERI JR. Director February 26, 1998
- ---------------------------
(John A. Cervieri Jr.)
/s/ WILLIAM F. CONNELL Director February 26, 1998
- ---------------------------
(William F. Connell)
/s/ GARY L. COUNTRYMAN Director February 26, 1998
- ---------------------------
(Gary L. Countryman)
/s/ WILLIAM M. CROZIER, JR. Director February 26, 1998
- ---------------------------
(William M. Crozier, Jr.)
/s/ ALICE F. EMERSON Director February 26, 1998
- ---------------------------
(Alice F. Emerson)
/s/ THOMAS J. MAY Director February 26, 1998
- ---------------------------
(Thomas J. May)
/s/ DONALD F. McHENRY Director February 26, 1998
- ---------------------------
(Donald F. McHenry)
/s/ PAUL C. O'BRIEN Director February 26, 1998
- ---------------------------
(Paul C. O'Brien)
/s/ THOMAS R. PIPER Director February 26, 1998
- ---------------------------
(Thomas R. Piper)
/s/ FRANCENE S. RODGERS Director February 26, 1998
- ---------------------------
(Francene S. Rodgers)
/s/ JOHN W. ROWE Director February 26, 1998
- ---------------------------
(John W. Rowe)
/s/ GLENN P. STREHLE Director February 26, 1998
- ---------------------------
(Glenn P. Strehle)
/s/ WILLIAM C. VAN FAASEN Director February 26, 1998
- ---------------------------
(William C. Van Faasen)
/s/ THOMAS B. WHEELER Director February 26, 1998
- ---------------------------
(Thomas B. Wheeler)
/s/ ALFRED M. ZEIEN Director February 26, 1998
- ---------------------------
(Alfred M. Zeien)
</TABLE>
Exhibit 25.1
==========================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
- ------------------------------------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
- ------------------------------------------------
BANKBOSTON CORPORATION
(Exact name of obligor as specified in its charter)
Massachusetts 04-2471221
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
100 Federal Street
Boston, Massachusetts 02110
(Address of principal executive offices) (Zip code)
______________________
Junior Subordinated Deferrable Interest Debentures
relating to BankBoston Capital Trust IV
(Title of the indenture securities)
==========================================================
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
- --------------------------------------------------------------------------
Name Address
- -------------------------------------------------------------------------
Superintendent of Banks of the 2 Rector Street, New York,
State of New York N.Y. 10006,
and Albany,
N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Washington, D.C. 20429
Corporation
New York Clearing House New York, New York 10005
Association
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to
exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to
Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a
and 1b to Form T-1 filed with Registration Statement No. 33-21672
and Exhibit 1 to Form T-1 filed with Registration Statement No.
33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in The City of New
York, and State of New York, on the 26th day of February, 1998.
THE BANK OF NEW YORK
By: /S/JAMES W.P. HALL
---------------------
Name: JAMES W.P. HALL
Title: VICE PRESIDENT
Exhibit 25.2
============================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
- ------------------------------------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
- ------------------------------------------------
BANKBOSTON CAPITAL TRUST IV
(Exact name of obligor as specified in its charter)
Delaware Applied For
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
100 Federal Street
Boston, Massachusetts 02110
(Address of principal executive offices) (Zip code)
______________________
Capital Securities
(Title of the indenture securities)
=============================================================
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
- ------------------------------------------------------------------------
Name Address
- ------------------------------------------------------------------------
Superintendent of Banks of 2 Rector Street, New York,
the Staer of New York N.Y. 10006,
and Albany,
N.Y.
12203
Federal Reserve Bank of 33 Liberty Plaza, New York,
New York N.Y. 10045
Federal Deposit Insurance Washington, D.C. 20429
Corporation
New York Clearing House New York, New York 10005
Association
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to
exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to
Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a
and 1b to Form T-1 filed with Registration Statement No. 33-21672
and Exhibit 1 to Form T-1 filed with Registration Statement No.
33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in The City of New
York, and State of New York, on the 26th day of February, 1998.
THE BANK OF NEW YORK
By: /S/JAMES W.P. HALL
-------------------------
Name: JAMES W.P. HALL
Title: VICE PRESIDENT
Exhibit 25.3
==========================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
- ------------------------------------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
- ------------------------------------------------
BANKBOSTON CORPORATION
(Exact name of obligor as specified in its charter)
Massachusetts 04-2471221
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
100 Federal Street
Boston, Massachusetts 02110
(Address of principal executive offices) (Zip code)
______________________
Guarantee of Capital Securities of
BankBoston Capital Trust IV
(Title of the indenture securities)
==========================================================
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
- --------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------
Superintendent of Banks of the 2 Rector Street, New York,
State of New York N.Y. 10006, and
Albany, N.Y.
12203
Federal Reserve Bank of 33 Liberty Plaza, New York,
New York N.Y. 10045
Federal Deposit Insurance Washington, D.C. 20429
Corporation
New York Clearing House New York, New York 10005
Association
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to
exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to
Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a
and 1b to Form T-1 filed with Registration Statement No. 33-21672
and Exhibit 1 to Form T-1 filed with Registration Statement No.
33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in The City of New
York, and State of New York, on the 26th day of February, 1998.
THE BANK OF NEW YORK
By: /S/JAMES W.P. HALL
-----------------------
Name: JAMES W.P. HALL
Title: VICE PRESIDENT
Exhibit 25.4
==========================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
- ------------------------------------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
- ------------------------------------------------
BANKBOSTON CORPORATION
(Exact name of obligor as specified in its charter)
Massachusetts 04-2471221
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
100 Federal Street
Boston, Massachusetts 02110
(Address of principal executive offices) (Zip code)
______________________
Junior Subordinated Deferrable Interest Debentures
relating to BankBoston Capital Trust V
(Title of the indenture securities)
==========================================================
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
- --------------------------------------------------------------------------
Name Address
- -------------------------------------------------------------------------
Superintendent of Banks of the 2 Rector Street, New York,
State of New York N.Y. 10006,
and Albany,
N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Washington, D.C. 20429
Corporation
New York Clearing House New York, New York 10005
Association
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to
exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to
Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a
and 1b to Form T-1 filed with Registration Statement No. 33-21672
and Exhibit 1 to Form T-1 filed with Registration Statement No.
33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in The City of New
York, and State of New York, on the 26th day of February, 1998.
THE BANK OF NEW YORK
By: /S/JAMES W.P. HALL
---------------------
Name: JAMES W.P. HALL
Title: VICE PRESIDENT
Exhibit 25.5
==========================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
- ------------------------------------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
- ------------------------------------------------
BANKBOSTON CAPITAL TRUST V
(Exact name of obligor as specified in its charter)
Delaware Applied For
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
100 Federal Street
Boston, Massachusetts 02110
(Address of principal executive offices) (Zip code)
______________________
Capital Securities
(Title of the indenture securities)
=========================================================================
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
- --------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------
Superintendent of Banks of the 2 Rector Street, New York,
State of New York N.Y. 10006, and
Albany, N.Y.
12203
Federal Reserve Bank of 33 Liberty Plaza, New York,
New York N.Y. 10045
Federal Deposit Insurance Washington, D.C. 20429
Corporation
New York Clearing House New York, New York 10005
Association
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to
exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to
Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a
and 1b to Form T-1 filed with Registration Statement No. 33-21672
and Exhibit 1 to Form T-1 filed with Registration Statement No.
33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in The City of New
York, and State of New York, on the 26th day of February, 1998.
THE BANK OF NEW YORK
By: /S/JAMES W.P. HALL
------------------------
Name: JAMES W.P. HALL
Title: VICE PRESIDENT
Exhibit 25.6
==========================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
- ------------------------------------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
- ------------------------------------------------
BANKBOSTON CORPORATION
(Exact name of obligor as specified in its charter)
Massachusetts 04-2471221
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
100 Federal Street
Boston, Massachusetts 02110
(Address of principal executive offices) (Zip code)
______________________
Guarantee of Capital Securities of
BankBoston Capital Trust V
(Title of the indenture securities)
=========================================================
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
- -------------------------------------------------------------------
Name Address
- -------------------------------------------------------------------
Superintendent of Banks of 2 Rector Street, New York,
the State of New York N.Y. 10006, and
Albany, N.Y.
12203
Federal Reserve Bank of 33 Liberty Plaza, New York,
New York N.Y. 10045
Federal Deposit Insurance Washington, D.C. 20429
Corporation
New York Clearing House New York, New York 10005
Association
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to
exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to
Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a
and 1b to Form T-1 filed with Registration Statement No. 33-21672
and Exhibit 1 to Form T-1 filed with Registration Statement No.
33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in The City of New
York, and State of New York, on the 26th day of February, 1998.
THE BANK OF NEW YORK
By: /S/JAMES W.P. HALL
------------------------
Name: JAMES W.P. HALL
Title: VICE PRESIDENT
