SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) February 4, 1997
FLEET FINANCIAL GROUP, INC.
(Exact name of registrant as specified in its charter)
RHODE ISLAND
(State or other jurisdiction of incorporation)
1-6366 05-0341324
(Commission File Number) (IRS Employer Identification No.)
One Federal Street, Boston, MA 02110
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 617-292-2000
(Former name or former address, if changed since last report)
<PAGE>
Item 5. Other Events.
Pursuant to the terms and subject to the conditions set forth in a
Prospectus dated December 30, 1996 and accompanying Letters of Transmittal
(which together constituted the "Offer"), Fleet Financial Group, Inc. ("Fleet")
and Fleet Capital Trust I, a Delaware statutory business trust (the "Trust"),
offered to exchange 8.00% Trust Originated Preferred Securities SM ("TOPrSSM")
(the "Preferred Securities"), representing preferred undivided beneficial
interests in the assets of the Trust, for any and all of Fleet's depositary
shares ("Depositary Shares"), each representing a 1/10 interest in a share of
Series V 7.25% Perpetual Preferred Stock, not owned by Fleet. The Offer expired
on January 30, 1997. Prior to the expiration of the Offer, 3,349,905 of the
11,000,000 Depositary Shares outstanding and not owned by Fleet were validly
tendered and accepted for exchange, resulting in the Trust issuing 3,349,905
Preferred Securities on February 4, 1997, to the holders of Depositary Shares
tendered.
Fleet owns all of the Common Securities (the "Common Securities," and
together with the Preferred Securities, the "Trust Securities") representing
undivided beneficial interests in the assets of the Trust. Upon an event of
default under the Trust's Amended and Restated Declaration of Trust (the
"Declaration"), the holders of Preferred Securities will have a preference over
the holders of the Common Securities with respect to payments of distributions
and payments upon redemption, liquidation and otherwise. The Trust exists for
the sole purpose of issuing the Trust Securities and investing the proceeds
thereof in $86,338,075 principal amount of 8.00% Junior Subordinated Debentures
due 2027 (the "Junior Subordinated Debentures") of Fleet. The Junior
Subordinated Debentures will mature on February 15, 2027, which may be (i)
shortened to a date not earlier than April 15, 2001 or (ii) extended to a date
not later than February 15, 2046 (such date, as so shortened or extended, the
"Stated Maturity"), in each case subject to satisfying certain conditions,
including, in the event of a shortening of the maturity date, the prior approval
of the Board of Governors of the Federal Reserve System (the "Federal Reserve
Board"), if such approval is then required under applicable law, rules,
guidelines or policies.
The Preferred Securities and Junior Subordinated Debentures were registered
under a Registration Statement on Form S-4 (No. 333-16001) filed with the
Securities and Exchange Commission (the "Registration Statement").
Holders of the Preferred Securities are entitled to receive cumulative cash
distributions at an annual rate of 8.00% of the liquidation amount of $25 per
Preferred Security, accruing from January 31, 1997 and payable quarterly in
arrears on March 31, June 30, September 30 and December 31 of each year,
commencing March 31, 1997 ("distributions"), subject to any Extension Periods
(as defined herein). In addition, holders of the Preferred Securities will be
entitled to an additional cash distribution at the rate of 7.25% per annum of
the liquidation amount thereof from January 15, 1997 through the Expiration Date
("Pre-Issuance Interest") in lieu of dividends accumulating and unpaid from
January 15, 1997 on their Depositary Shares accepted for exchange, such
additional distribution to be made on March 31, 1997 to holders of Preferred
Securities on the record date for such distribution. The payment of
distributions out of moneys held by the Trust and payments on liquidation of the
Trust or the redemption of Preferred Securities are guaranteed by Fleet (the
"Guarantee"). The Guarantee covers payments of distributions and other payments
on the Preferred Securities if and to the extent that the Trust has funds
available therefor, which will not be the case unless Fleet has made a payment
of interest or principal or other payments on the Junior Subordinated Debentures
held by the Trust as its sole asset. The Guarantee, when taken together with
Fleet's obligations under the Junior Subordinated Debentures and the related
Indenture and its obligations under the Declaration, including its liabilities
to pay costs, expenses, debts and obligations of the Trust (other than with
respect to the Trust Securities), provide a full and unconditional guarantee of
amounts due on the Preferred Securities.
The obligations of Fleet under the Guarantee are subordinate and junior in
right of payment to all other liabilities of Fleet and rank pari passu with the
most senior preferred stock issued, from time to time, if any, by Fleet. The
obligations of Fleet under the Junior Subordinated Debentures are subordinate
and junior in right of payment to all present and future Senior Indebtedness and
Other Financial Obligations (each as defined in the Registration Statement) of
Fleet, which aggregated approximately $4.0 billion (holding company only) at
September 30, 1996, and rank pari passu with Fleet's other general unsecured
creditors. In addition, because Fleet is a holding company, the Junior
Subordinated Debentures are effectively subordinated to all existing and future
liabilities of Fleet's subsidiaries, including depositors.
With the exception of Pre-Issuance Interest, so long as Fleet shall not be
in default in the payment of interest on the Junior Subordinated Debentures,
Fleet has the right to defer payments of interest on the Junior Subordinated
Debentures by extending the interest payment period on the Junior Subordinated
Debentures at any time for up to 20 consecutive quarters (each, an "Extension
Period"), provided that an Extension Period may not extend beyond the Stated
Maturity of the Junior Subordinated Debentures. If interest payments are so
deferred, distributions on the Preferred Securities will also be deferred.
During such Extension Period, distributions will continue to accrue with
interest thereon (to the extent permitted by applicable law) at an annual rate
of 8.00% percent per annum compounded quarterly, and during any Extension
Period, holders of Preferred Securities will be required to include deferred
interest income in their gross income for United States federal income tax
purposes in advance of receipt of the cash distributions with respect to such
deferred interest payments. There could be multiple Extension Periods of varying
lengths throughout the term of the Junior Subordinated Debentures.
The Trust Securities will be subject to mandatory redemption (i) in whole
but not in part, on the Stated Maturity 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, (ii) in whole but
not in part, prior to April 15, 2001, contemporaneously with the optional
prepayment by Fleet of the Junior Subordinated Debentures, upon the occurrence
and continuation of a Special Event (as defined in the Registration Statement),
at a redemption price equal to the Special Event Prepayment Price (as defined
herein), and (iii) in whole or in part, on or after April 15, 2001,
contemporaneously with the optional prepayment by Fleet of the Junior
Subordinated Debentures, at a redemption price equal to the Optional Prepayment
Price (as defined herein).
The Junior Subordinated Debentures will be prepayable prior to the Stated
Maturity at the option of Fleet (i) at any time prior to April 15, 2001, in
whole but not in part, upon the occurrence and continuation of a Special Event,
at a prepayment price (the "Special Event Prepayment Price") equal to 104% of
the principal amount thereof from the Expiration Date through April 14, 1998,
declining ratably on each April 15 thereafter to 100% on or after April 15,
2001, or (ii) on or after April 15, 2001, in whole or in part, at a prepayment
price (the "Optional Prepayment Price") equal to 100% of the principal amount
thereof, plus, in either case, accrued interest thereon to the date of
prepayment.
Fleet 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. Any such redemption or distribution of the Junior Subordinated
Debentures may require the prior approval of the Federal Reserve Board, if such
approval is then required under applicable law, rules, guidelines or policies.
In the event of the involuntary or voluntary dissolution, winding-up or
termination of the Trust, the holders of the Preferred Securities will be
entitled to receive for each Preferred Security a liquidation amount of $25 plus
accrued and unpaid distributions thereon (including interest thereon) to the
date of payment, unless, in connection with such dissolution, the Junior
Subordinated Debentures are distributed to the holders of the Preferred
Securities.
Item 7. Financial Statements and Exhibits.
The following exhibits are filed as part of this report:
Item 601
Exhibit Table
Reference Exhibit Title
1 Dealer Manager Agreement dated December 30, 1996 by and among
Fleet, the Trust and Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated and Smith Barney Inc.
4(a) Amended and Restated Declaration of Trust of Fleet Capital Trust
I dated February 4, 1997 between Fleet and The First National
Bank of Chicago, as Trustee.
4(b) Indenture dated December 11, 1996 between Fleet and The First
National Bank of Chicago, as Trustee (incorporated by reference
to Exhibit 4(b) to Fleet's Form 8-K dated December 11, 1996).
4(c) Second Supplemental Indenture dated February 4, 1997 between
Fleet and The First National Bank of Chicago, as Trustee.
4(d) Form of Preferred Security (included in Exhibit 4(a)).
4(e) Form of Junior Subordinated Debenture (included in Exhibit 4(c)).
4(f) Preferred Securities Guarantee dated February 4, 1997 between
Fleet and The First National Bank of Chicago, as Trustee.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the Registrant has duly caused this report to be signed in its behalf
by the undersigned hereunto duly authorized.
FLEET FINANCIAL GROUP, INC.
By: /s/William C. Mutterperl
-----------------------------------------
William C. Mutterperl
Senior Vice President, Secretary
and General Counsel
Date: February 11, 1997
Exhibit 1
DEALER MANAGER AGREEMENT
December 30, 1996
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281-1329
SMITH BARNEY INC.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
Fleet Capital Trust I (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. C. ss. 3801 et. seq.),
pursuant to the Amended and Restated Declaration of Trust of the Trust, to be
dated as of the Exchange Date (as defined herein) (the "Declaration"), among
Fleet Financial Group, Inc. (the "Company"), as Sponsor, The First National Bank
of Chicago, as institutional trustee (the "Institutional Trustee"), First
Chicago Delaware Inc., as Delaware trustee (the "Delaware Trustee"), and Eugene
M. McQuade, Douglas L. Jacobs and John R. Rodehorst, as regular trustees (the
"Regular Trustees" and together with the Institutional Trustee and the Delaware
Trustee, the "Trustees"), and the holders from time to time of undivided
beneficial interests in the assets of the Trust, proposes to issue its 8.0%
Trust Originated Preferred SecuritiesSM ("TOPrSSM") (the "Preferred Securities")
in exchange for up to 11,000,000 depositary shares (the "Target Securities"),
each representing 1/10 of a share of Series 7.25% Perpetual Preferred Stock
(liquidation preference equivalent of $25 per depositary share) ("Preferred
Stock") of the Company. The Preferred Securities will be guaranteed (the
"Guarantee") by the Company to the extent described in the Prospectus (as
hereinafter defined). The exchange described above is herein referred to as the
"Exchange Offer" and any exchange of Preferred Securities for Target Securities
pursuant to the Exchange Offer is herein referred to as an "Exchange". In
connection with the Exchange Offer, the Company will deposit in the Trust as
trust assets its 8.0% Junior Subordinated Deferrable Interest Debentures due
February 15, 2027 (the "Debentures") as set forth in the Prospectus, to be
issued pursuant to an Indenture, dated December 11, 1996, between the Company
and The First National Bank of Chicago as trustee (the "Indenture Trustee"), as
supplemented by a Supplemental Indenture to be dated as of the Exchange Date
(the "Supplemental Indenture"), between the Company and the Indenture Trustee
(collectively, the "Indenture").
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SM "Trust Originated Preferred Securities" and "TOPrS" are service marks of
Merrill Lynch & Co., Inc.
Each of the Company and the Trust hereby confirms its agreement with
Merrill Lynch & Co. and Smith Barney Inc. (the "Dealer Managers") as follows:
1. Registration Statement, Prospectus and Offering Materials. The Company
and the Trust have prepared and filed with the Securities and Exchange
Commission (the "Commission"), under the Securities Act of 1933, as amended (the
"Securities Act"), and the rules and regulations of the Commission promulgated
thereunder (the "Securities Act Regulations"), a registration statement on Form
S-4 covering the registration of the Preferred Securities, the Guarantee and the
Debentures, including the related preliminary prospectus, and will prepare and
file, on or prior to the effective date of such registration statement,
amendments to such registration statement, including a final prospectus. Each
prospectus used before the time such registration statement becomes effective is
herein called a "preliminary prospectus". Such registration statement, including
the exhibits thereto and any documents incorporated by reference therein, as
amended at the time it becomes effective or as thereafter amended or
supplemented from time to time, is herein called the "Registration Statement".
The final prospectus included in the Registration Statement (including any
documents incorporated in the prospectus by reference) is herein called the
"Prospectus", except that if the final prospectus furnished to the Dealer
Managers for use in connection with the Exchange Offer differs from the
prospectus set forth in the Registration Statement (whether or not such
prospectus is required to be filed pursuant to Rule 424 (b)), the term
"Prospectus" shall refer to the final prospectus furnished to the Dealer
Managers for such use. The terms "supplement" and "amendment" or "amend" as used
herein with respect to the Prospectus shall include all documents deemed to be
incorporated by reference in the Prospectus that are filed subsequent to the
date of the Prospectus and prior to the termination of the Exchange Offer by the
Company and the Trust with the Commission pursuant to the Securities Exchange
Act of 1934, as amended, and the rules and regulations of the Commission
promulgated thereunder (collectively, the "Exchange Act").
The Registration Statement, Prospectus and the related letters from the
Dealer Managers to securities brokers, dealers, commercial banks, trust
companies and other nominees, letters to beneficial owners of Target Securities,
letters of transmittal (the "Letters of Transmittal"), notices of guaranteed
delivery (the "Notices of Guaranteed Delivery") and any newspaper announcements,
press releases and other offering materials and information the Company may use
or prepare, approve or authorize for use in connection with the Exchange Offer,
as amended or supplemented from time to time, are herein collectively referred
to as the "Offering Materials".
2. Exchange Offer; Agreement to Act as Dealer Managers. (a) The Company and
the Trust intend to commence the Exchange Offer as soon as practicable after the
Registration Statement becomes effective under the Securities Act by publicly
announcing its commencement and by mailing, or causing to be mailed on its
behalf, copies of the Prospectus, the related Letters of Transmittal and such of
the other Offering Materials as is required or as the Company and the Trust
elect to each holder of Target Securities (the date of the commencement of such
distribution being herein called the "Commencement Date").
(b) The Company hereby retains the Dealer Managers to advise the
Company and the Trust with respect to the terms and timing of the Exchange Offer
and to assist them in the preparation of the Offering Materials and retains and
authorizes the Dealer Managers to act as dealer managers and to assist the
Company and the Trust with the solicitation of Exchanges (each a "Solicitation"
and collectively the "Solicitations"). On the basis of the representations and
warranties and agreements of the Company and the Trust herein contained and
subject to and in accordance with the terms and conditions hereof and of the
Offering Materials, the Dealer Managers agree to advise the Company and the
Trust with respect to the terms and timing of the Exchange Offer, to assist them
in the preparation of the Offering Materials, to act as dealer managers in
connection with the Exchange Offer and to assist the Company and the Trust with
the Solicitations. The Dealer Managers agree to use their reasonable best
efforts to solicit Exchanges.
(c) The Company shall furnish the Dealer Managers, or cause the
transfer agent or registrar for the Target Securities (respectively, the
"Transfer Agent" and "Registrar") to furnish the Dealer Managers, as soon as
practicable after the date hereof (to the extent not previously furnished), with
cards or lists in reasonable quantities or copies thereof showing the names of
persons who were the holders of record or, to the extent available to the
Company, the beneficial owners of the Target Securities as of a recent date,
together with their addresses, and the number of shares of Target Securities
held by them. Additionally, the Company shall use its reasonable best efforts to
update, or to cause the Transfer Agent or Registrar to update, such information
from time to time during the term of this Agreement as may be reasonably
requested by the Dealer Managers. Except as otherwise provided herein, the
Dealer Managers agree to use such information only in connection with the
Solicitations. The Dealer Managers shall act hereunder as independent
contractors and nothing herein contained shall make the Dealer Managers agents
of the Company or any of its subsidiaries or the Trust in connection with any
Solicitation. Nothing contained in this Agreement shall constitute the Dealer
Managers partners of or joint venturers with the Company or any of their
subsidiaries or the Trust.
(d) The Company and the Trust authorize the Dealer Managers to use the
Offering Materials in connection with the Solicitations and for such period of
time as any Offering Materials are required by law to be delivered in connection
therewith. The Dealer Managers shall not have any obligation to cause any
Offering Materials to be transmitted generally to the holders of the Target
Securities. The Dealer Managers agree not to give any written information and
not to make any representations to holders of the Target Securities in
connection with any Solicitation other than as contained in the Offering
Materials.
(e) The Company and the Trust authorize the Dealer Managers to
communicate with any information agent (the "Information Agent") or exchange
agent (the "Exchange Agent") appointed by the Company and/or the Trust to act in
such capacity in connection with the Exchange Offer with respect to matters
relating to the Exchange Offer.
(f) The Company and the Trust agree that any reference to the Dealer
Managers in any Offering Materials or in any newspaper announcement or press
release or other public document or communication is subject to the Dealer
Managers' prior consent, which consent shall not be unreasonably withheld.
3. Compensation. (a) The Company hereby agrees to pay to the Dealer
Managers for services rendered and to be rendered by them in connection with the
Exchange Offer a fee (the "Management Fee") equal to $0.125 per share of Target
Securities validly submitted for exchange and not withdrawn in connection with
the Exchange Offer. The Management Fee shall be paid only if the Exchange Offer
is consummated, and shall be paid within one week of the consummation of the
Exchange Offer. The Management Fee shall be divided 70% to Merrill Lynch and 30%
to Smith Barney Inc. (as to each, its "Proportionate Share").
(b) The Company agrees to pay, or cause to be paid to, each soliciting
dealer (including any Dealer Managers acting as a soliciting dealer) whose name
has been inserted in the space provided in the Letter of Transmittal for that
purpose a fee (the "Soliciting Dealer Fee") equal to $0.50 per share of Target
Securities ($0.25 per share of Target Securities with respect to the
solicitation of beneficial holders of 10,000 or more shares) validly submitted
for exchange and not withdrawn in connection with the Exchange Offer; provided,
however, that no such fee shall be paid with respect to Target Securities
tendered, directly or indirectly, by soliciting dealers for their own account
and such fee shall not be remitted, in whole or in part, to the beneficial owner
of such Target Securities. The Soliciting Dealer Fee shall be paid only if the
Exchange Offer is consummated and shall be paid to the soliciting dealers within
one week of the consummation of the Exchange Offer.
4. Expenses, Reimbursement. The Company agrees to reimburse the Dealer
Managers directly for all of their reasonable out-of-pocket expenses incurred in
connection with the Exchange Offer, including, without limitation, the
reasonable fees and expenses of the law firm acting as legal counsel for the
Dealer Managers.
5. Certain Covenants of the Trust and the Company. Each of the Company and
the Trust covenants jointly and severally with the Dealer Managers:
(a) To use reasonable efforts to cause the Registration Statement,
including any post-effective amendment thereto, to become effective and will
notify the Dealer Managers as soon as practicable and, if requested by the
Dealer Managers, will confirm the notice in writing, (i) when any post-effective
amendment to the Registration Statement shall have become effective, or any
supplement to the Prospectus or any amended Prospectus or any amended or
additional Offering Materials shall have been filed, (ii) of the receipt of any
comments from the Commission relating to the Exchange Offer, (iii) of any
request by the Commission to amend the Registration Statement or amend or
supplement the Prospectus or the other Offering Materials or for additional
information relating to the Exchange Offer and (iv) of (A) the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or (B) the issuance by the Commission of any order preventing or
suspending the use of any of the Offering Materials or (C) the suspension of the
qualification of the Preferred Securities for offering or sale in connection
with the Exchange Offer in any jurisdiction or (D) the institution or
threatening of any proceedings for any of such purposes or (E) the occurrence of
any event which could cause the Company or the Trust to withdraw, rescind,
terminate or modify the Exchange Offer or would permit the Company or the Trust
to exercise any right not to accept the Target Securities tendered pursuant to
the Exchange Offer. The Company and the Trust will make every reasonable effort
to prevent the issuance of any such stop order, the issuance of any order
preventing or suspending such use and the suspension of any such qualification
and, if any such order is issued or qualification suspended, to obtain the
lifting of such order or suspension at the earliest practicable time.
(b) Prior to the termination of the Exchange Offer, before amending or
supplementing the Registration Statement or the Prospectus, to furnish copies of
drafts to, and consult with, the Dealer Managers and their counsel within a
reasonable time in advance of filing with the Commission of any amendment or
supplement to the Registration Statement, the Prospectus or the other Offering
Materials. Neither the Company nor the Trust shall file any such amendment or
supplement to which the Dealer Managers shall reasonably object in writing;
provided, however, that the foregoing shall not apply to any of the Company's
filings with the Commission required to be filed pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act, copies of which such filings the Company
will cause to be delivered to the Dealer Managers promptly after being
transmitted for filing with the Commission.
(c) To furnish promptly to each of the Dealer Managers, without
charge, one signed copy of the Registration Statement, all amendments thereto
and any other filing with the Commission in connection with the Exchange Offer,
whether filed before or after the Registration Statement becomes effective.
(d) To furnish promptly to the Dealer Managers, without charge, from
time to time until the effective date of the Registration Statement, as many
copies of each preliminary prospectus as the Dealer Managers may reasonably
request, and the Company and the Trust hereby consent to the use of such copies
for purposes permitted by the Securities Act and the Exchange Act. The Company
will furnish promptly to the Dealer Managers, without charge, as soon as the
Registration Statement shall have become effective and during the period
mentioned in the second sentence of paragraph (e) below such number of copies of
the Prospectus and the other Offering Materials (as supplemented or amended) as
the Dealer Managers may reasonably request and will cause all amendments and
supplements filed with the Commission to be distributed to holders of Target
Securities as may be required by the Securities Act and the Exchange Act.
(e) To comply in all material respects with the Securities Act, the
Exchange Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), in connection with the Offering Materials, the Exchange Offer
and the transactions contemplated hereby and thereby, as applicable. If at any
time when the Prospectus is required by the Securities Act or Exchange Act to be
delivered in connection with any Solicitation or Exchange any event shall occur
or condition shall exist as a result of which it is necessary, in the reasonable
opinion of counsel for the Dealer Managers or counsel for the Company and the
Trust, to amend the Registration Statement or amend or supplement the Prospectus
or any other Offering Materials in order that the Prospectus or such other
Offering Materials will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements in the
Prospectus or such other Offering Materials, in the light of the circumstances
under which they were made, not misleading or if, in the reasonable opinion of
either such counsel, it shall be necessary to amend the Registration Statement
or amend or supplement the Prospectus or any other Offering Materials to comply
with the requirements of the Securities Act or Exchange Act, the Company and the
Trust will promptly prepare, file with the Commission, subject to Section 5(b)
of this Agreement, and furnish, at its own expense, to the Dealer Managers and
to the dealers (whose names and address will be furnished to the Company by the
Dealer Managers) to which Preferred Securities may have been exchanged, such
amendment or supplement as may be necessary to correct such untrue statement or
omission or to make the Registration Statement or the Prospectus or such other
Offering Materials comply with such requirements.
(f) To endeavor, in cooperation with the Dealer Managers, to qualify
the Preferred Securities for offering and sale in connection with the Exchange
Offer under the applicable securities or Blue Sky laws of such jurisdictions as
the Company and the Trust may elect and to maintain such qualifications in
effect for such time as may be required for the consummation of the Exchange
Offer; provided, however, that neither the Company nor the Trust shall 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; provided
further that the Dealer Managers shall not be obligated to solicit tenders in
jurisdictions where the Preferred Securities are not qualified for offer and
sale. The Company and the Trust will file such statements and reports as may be
required by the laws of each jurisdiction in which the Preferred Securities have
been qualified as above provided.
(g) To make generally available to the holders of the Preferred
Securities and the Debentures as soon as practicable, but in any event not later
than 45 days after the end of the fiscal quarter of the Company during which the
first anniversary of the effective date of the Registration Statement occurs (or
90 days in case the period covered corresponds to a fiscal year of the Company)
an earnings statement of the Company (in form complying with the provisions of
Rule 158 of the Securities Act) covering such twelve-month period.
(h) To use its reasonable best efforts to effect the listing of the
Preferred Securities on the New York Stock Exchange ("NYSE"), subject to
official notice of issuance, as soon as practicable after the date hereof.
(i) To timely file any report or other document required to be filed
by the Company or the Trust with the Commission pursuant to Section 13, 14 or 15
of the Exchange Act during the period of time referred to in the second sentence
of Section 5(e) hereof.
(j) Subject to Section 4(a) of this Agreement, to pay all costs and
expenses incurred in connection with the performance of its obligations in
connection with this Agreement and the Solicitations including, without
limitation, (i) the preparation, printing and filing of the Registration
Statement (including financial statements and exhibits), as originally filed and
as amended, the preliminary prospectuses, the Prospectus and the other Offering
Materials and any amendments or supplements to any of the foregoing, and the
cost of furnishing copies thereof to the Dealer Managers, (ii) the preparation
and distribution of this Agreement and any Blue Sky surveys and the printing of
certificates for the Preferred Securities, (iii) the distribution of the
Offering Materials to the holders of the Target Securities, (iv) the reasonable
fees and disbursements of counsel to the Company and the Trust, counsel to the
Dealer Managers and the Company's and the Trust's accountants, (v) the
qualification of the Preferred Securities under the applicable securities laws
in accordance with Section 5(f) of this Agreement and any filing for review of
the Exchange Offer with the NASD (including filing fees and fees and
disbursements of counsel for the Dealer Managers in connection with such filing
with the NASD), (vi) the fees and expenses of the Transfer Agent, the Registrar,
the Trustees, the Indenture Trustee (as defined herein), the trustee under the
Guarantee (the "Guarantee Trustee"), the Information Agent and the Exchange
Agent and (vii) all other costs and expenses incident to the Solicitations
incurred by the Trust and the Company and its subsidiaries. The Company agrees
to pay all of the aforementioned costs and expenses whether or not the Exchange
Offer is consummated.
(k) To advise or cause the Exchange Agent to advise the Dealer
Managers at 5:00 P.M., New York City time, or as promptly as practicable
thereafter, daily (or more frequently if requested), by telephone or facsimile
transmission, as of 4:00 P.M. on such day with respect to Target Securities
tendered as follows:
(i) the number of shares of Target Securities validly tendered
represented by certificates physically held by the Exchange Agent (or for which
the Exchange Agent has received confirmation of receipt of book-entry transfer
of such Target Securities into the Exchange Agent's account at a Depository
Institution (as defined in the Prospectus) pursuant to the procedures set forth
in the Exchange Offer) on such day;
(ii) the number of shares of Target Securities represented by
Notices of Guaranteed Delivery on such day;
(iii) the number of shares of Target Securities properly
withdrawn on such day;
(iv) the cumulative number of shares of Target Securities in
categories (i) through (iii) above.
On the day following such oral communication, the Company shall furnish or
cause the Exchange Agent to furnish to the Dealer Managers a written report
confirming the above information which has been communicated orally. The Company
shall furnish or cause the Exchange Agent to furnish to the Dealer Managers such
reasonable information on the tendering holders of Targeted Securities as may be
requested from time to time.
(l) To give the Dealer Managers notice of any change of the expiration
time of the Exchange Offer (the "Expiration Time").
6. Representations and Warranties of the Company and the Trust. Each of the
Company and the Trust jointly and severally represent and warrant to and agrees
with each of the Dealer Managers that:
(a) Compliance with Registration Requirements. Each preliminary
prospectus filed as part of the Registration Statement as originally filed or as
part of any amendment thereto, or filed pursuant to Rule 424 of the Securities
Act, will comply when so filed, in all material respects, as to form with the
Securities Act and the Exchange Act; the Registration Statement at the time it
becomes effective and the Prospectus and any other Offering Materials, on the
Commencement Date and on the date on which the Company commences delivery of the
Preferred Securities for exchange of the Target Securities pursuant to the
Exchange Offer (such date, the "Exchange Date"), will comply, in all material
respects, as to form with the Securities Act and the Exchange Act; each part of
the Registration Statement when such part becomes effective will not contain,
and each such part, as amended, if applicable, will not contain, any 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; and
as of the Commencement Date and the Exchange Date, none of the Prospectus or the
other Offering Materials or any amendments or supplements to such Offering
Materials will contain any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this Section 6 (a) do not apply (A)
to statements or omissions made based upon and in conformity with information
supplied in writing by either of the Dealer Managers through Merrill Lynch,
Pierce, Fenner & Smith Incorporated expressly for use in the Registration
Statement, Prospectus, any other Offering Materials or any amendments or
supplements to any of the foregoing or (B) to that part of the Registration
Statement that constitutes the Statements of Eligibility and Qualification on
Form T-1 (the "Forms T-1") under the Trust Indenture Act of the trustee (the
"Indenture Trustee") under the Indenture (as defined herein), as institutional
trustee under the Declaration (as defined herein) and as trustee under the
Guarantee.
(b) Incorporated Documents. 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 Exchange Act and
the rules and regulations of the Commission thereunder (the "Exchange Act
Regulations") and, when read together with the other information in the
Prospectus, at the time the Registration Statement became effective, at the date
hereof, at the time the Prospectus was issued and at the Exchange Date, did not
and will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading.
(c) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included in the Registration
Statement are independent public accountants as required by the Securities Act
and the Securities Act Regulations.
(d) Financial Statements. The financial statements included in the
Registration Statement and the Prospectus, together with the related schedules
and notes, present fairly the financial position of the Company and its
consolidated subsidiaries at the dates indicated and the statement of
operations, stockholders' equity and cash flows of the Company and its
consolidated 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. The
supporting schedules, if any, included in the Registration Statement present
fairly in accordance with GAAP the information required to be stated therein.
The selected financial data and the summary financial information 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.
(e) No Material Adverse Change in Business. Since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, (A) there has been no material
adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business (a "Material Adverse Effect"), (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other than those in the
ordinary course of business, which are material with respect to the Company and
its subsidiaries considered as one enterprise, and (C) there has been no
dividend or distribution of any kind declared, paid or made by the Company on
any class of its capital stock, except for dividends paid by the Company in the
ordinary course of business consistent with past practice.
(f) Good Standing of the Company. Each of the Company and the
subsidiaries of the Company listed on Schedule A hereto, (the "Significant
Subsidiaries") has been duly incorporated and is validly existing as a
corporation or national banking association in good standing under the laws of
the jurisdiction in which it is chartered or organized, with full corporate
power and authority to own its properties and conduct its business as described
in the Prospectus; the Company is duly qualified to do business as a foreign
corporation under the laws of the State of New York and the laws of the
Commonwealth of Massachusetts; and neither the Company nor any Significant
Subsidiary is required to be qualified to do business as a foreign corporation
under the laws of any other jurisdiction, and the Company is duly registered as
a bank holding company under the Bank Holding Company Act of 1956, as amended.
(g) Existence of Trust. The Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware Act, is and
will be treated as a "grantor trust" for federal income tax purposes under
existing law, has the business trust power and authority to conduct its business
as presently conducted and as described in the Prospectus, and is not required
to be authorized to do business in any other jurisdiction.
(h) Absence of Defaults and Conflicts. The execution and delivery by
the Company and the Trust of, and the performance by the Company and the Trust
of their obligations under, this Agreement, the execution and delivery by the
Company of, and the performance by the Company of its obligations under, the
Declaration, the Guarantee and the Indenture, the issuance and delivery by the
Trust of the Common Securities and Preferred Securities and the consummation of
the Exchange Offer and the fulfillment of the terms herein contemplated will not
conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under (in each case material to the Company and its
subsidiaries (including the Trust) considered as a whole or as to the Trust
separately), any indenture, mortgage, deed of trust, loan agreement, guarantee,
lease, financing agreement or other similar agreement or instrument to which the
Company or any of its subsidiaries (including the Trust) is a party or by which
the Company or any of its subsidiaries (including the Trust) is bound or to
which any of the property or assets of the Company or any of its subsidiaries
(including the Trust) is subject, nor will such actions result in any violation
of the provisions of the certificate of incorporation or by-laws of the Company
or the Declaration of the Trust, nor will such actions result in any violation
(in each case material to the Company and its subsidiaries (including the Trust)
considered as a whole or as to the Trust separately) of any statute or any
order, rule or regulation of any court or regulatory authority or other
governmental body having jurisdiction over the Trust or the Company or any of
its subsidiaries or any of their properties; and no consent, approval,
authorization or order of, or qualification with, any governmental body or
agency is required for, and the absence of which would materially affect, the
performance by the Company and the Trust of their obligations under this
Agreement, the issuance and delivery of the Preferred Securities and the
consummation of the Exchange Offer, except such approvals as will be obtained
under the Securities Act, the Exchange Act or the Trust Indenture Act and as may
be required by the securities or Blue Sky laws of the various states or the
securities laws of non-U.S. jurisdictions in connection with the Exchange Offer.
(i) Common Securities. The Common Securities have been duly authorized
by the Declaration and, when issued and delivered by the Trust to the Company in
accordance with the terms of the Declaration and against payment therefor as
described in the Prospectus, will be validly issued and (subject to the terms of
the Declaration) fully paid and nonassessable undivided beneficial interests in
the assets of the Trust; the issuance of the Common Securities is not subject to
preemptive or other similar rights; no holder thereof will be subject to
personal liability by reason of being such a holder; and at the Exchange Date,
all of the issued and outstanding Common Securities of the Trust will be
directly owned by the Company free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity.
(j) Authorization of Declaration. The Declaration has been duly
authorized by the Company and duly qualified under the Trust Indenture Act and,
when validly executed and delivered by the Company and the Regular Trustees, and
assuming the due authorization, execution and delivery of the Declaration by the
Delaware Trustee and the Institutional Trustee, the Declaration will constitute
a valid and binding obligation of the Company and the Regular Trustees,
enforceable against the Company and the Regular Trustees in accordance with its
terms, except as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(k) Guarantee. The Guarantee has been duly authorized by the Company
and duly qualified under the Trust Indenture Act and, when validly executed and
delivered by the Company, and assuming due authorization, execution and delivery
of the Guarantee by the Guarantee Trustee, will constitute a valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law).
(l) Preferred Securities. The Preferred Securities to be issued
pursuant to the Exchange Offer have been duly authorized by the Declaration and,
when authenticated in the manner provided for in the Declaration and issued and
delivered in exchange for Target Securities pursuant to the Exchange Offer and
this Agreement against payment of the consideration set forth herein, will be
validly issued and (subject to the terms of the Declaration) fully paid and
nonassessable undivided beneficial interests in the assets of the Trust; the
issuance of the Preferred Securities is not subject to preemptive or other
similar rights; and holders of Preferred Securities will be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit incorporated under the General Corporation Law of the
State of Delaware.
(m) Authorization of Indenture. The Indenture has been duly authorized
by the Company and duly qualified under the Trust Indenture Act and, when duly
executed and delivered by the Company and assuming the due authorization,
execution and delivery of the Indenture by the Indenture Trustee, will
constitute a valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and except as enforcement
thereof is subject to generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law).
(n) Authorization of Debentures. The Debentures to be deposited in the
Trust as trust assets in connection with the Exchange Offer have been duly
authorized by the Company, and when executed, authenticated and issued in the
manner provided for in the Indenture and delivered, sold and paid for pursuant
to the terms of the Exchange Offer and as provided in this Agreement, the
Debentures will constitute valid and binding obligations of the Company entitled
to the benefits of the Indenture and enforceable against the Company in
accordance with their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(o) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company and the Trust.
(p) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental agency
or body, domestic or foreign, now pending, or, to the knowledge of the Company
or the Trust, threatened, against or affecting the Company or any subsidiary,
which is required to be disclosed in the Registration Statement (other than as
disclosed therein), or which might reasonably be expected to result in a
Material Adverse Effect, or which might reasonably be expected to materially and
adversely affect the properties or assets of the Company and its subsidiaries
taken as a whole or the consummation of the transactions contemplated in this
Agreement or the performance by the Company or the Trust of its obligations
hereunder; the aggregate of all pending legal or governmental proceedings to
which the Company or any subsidiary is a party or of which any of their
respective property or assets is the subject which are not described in the
Registration Statement, including ordinary routine litigation incidental to the
business, could not reasonably be expected to result in a Material Adverse
Effect.
(q) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the appropriate
federal, state, local or foreign regulatory agencies or bodies necessary to
conduct the business now operated by them, except for such Governmental Licenses
the absence of which would not cause a Material Adverse Effect; the Company and
its subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not, singly
or in the aggregate, have a Material Adverse Effect; all of the Governmental
Licenses are valid and in full force and effect, except when the invalidity of
such Governmental Licenses or the failure of such Governmental Licenses to be in
full force and effect would not have a Material Adverse Effect; and neither the
Company nor any of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such Governmental Licenses
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(r) Investment Company Act. Neither the Company nor the Trust is, and
after giving effect to the consummation of the Exchange Offer as herein
contemplated and the application of the net proceeds therefrom as described in
the Prospectus neither will be, an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended (the "1940 Act").
7. Indemnification and Contribution. (a) Each of the Company and the Trust
jointly and severally agrees: (A) to indemnify and hold the Dealer Managers
harmless against any loss, damage, expense, liability or claim (i) which (1)
with respect to the Registration Statement, is caused by any untrue statement or
alleged untrue statement of a material fact contained therein or which is caused
by the omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading, or
(2) with respect to the Offering Materials or in any amendment or supplement
thereto, is caused by any untrue statement or alleged untrue statement of a
material fact contained in such Offering Materials or which is caused by the
omission or alleged omission to state therein a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, except, in any such case, as to any of the
Dealer Managers insofar as such loss, damage, expense, liability or claim is
caused by any such untrue statement or omission or alleged untrue statement or
omission based upon information relating to such Dealer Manager furnished to the
Company or the Trust in writing through Merrill Lynch, Pierce, Fenner & Smith
Incorporated expressly for use in the Registration Statement or in such Offering
Materials or (ii) which arises out of or is based upon a withdrawal, rescission
or modification of or a failure to make or consummate the Exchange Offer; and
(B) to indemnify and hold each of the Dealer Managers harmless against any other
loss, damage, expense, liability or claim which otherwise arises out of or is
related to this Agreement or the Exchange Offer or the services provided by the
Dealer Managers in connection with this Agreement or the Exchange Offer, except
to the extent any such loss, damage, expense, liability or claim referred to in
this clause (B) is found by a final judgment of a court of competent
jurisdiction to have resulted from such Dealer Manager's gross negligence, bad
faith or willful misconduct. The Company and the Trust each jointly and
severally agree to indemnify and hold each of the Dealer Managers harmless
against and reimburse each of the Dealer Managers for any and all reasonable
expenses (including reasonable legal fees and expenses) as such expenses are
incurred by it in connection with investigating, preparing for or defending
against any such loss, damage, expense, liability or claim, whether or not
resulting in any liability, whether or not such person is a named party in
connection therewith and whether or not such loss, damage, expense, liability or
claim results from action initiated or brought by or on behalf of the Company or
any of its subsidiaries (including the Trust), and any amount paid in settlement
of any litigation, commenced or threatened, or of any claim whatsoever as set
forth herein if such settlement is effected with the prior written consent of
the Company; provided, however, with respect to clause (B) above, that neither
the Company nor the Trust shall be liable for any of the foregoing expenses and
any amounts previously paid shall be promptly repaid to the extent that any
loss, damage, liability or claim is found by a final judgment of a court of
competent jurisdiction to have resulted from such Dealer Manager's gross
negligence, bad faith or willful misconduct. In the event that you become
involved in any capacity in any action, proceeding or investigation brought by
or against any person, including stockholders of the Company, in connection with
any matter referred to in this Agreement or arising out of the Exchange Offer
for which you would be entitled to indemnification pursuant to the preceding
sentence, the Company and the Trust also agree to indemnify and hold you
harmless against and to reimburse you for any amount paid in settlement of any
litigation commenced or threatened or of any claim whatsoever as set forth
herein if such settlement is effected with the written consent of the Company
and the Trust, which shall not be unreasonably withheld. The Company and Trust
also agree that none of the Dealer Managers shall have any liability (whether
direct or indirect, in tort, contract or otherwise) to the Company or any of its
subsidiaries (including the Trust) or its or their security holders or creditors
related to or arising out of this Agreement or the Exchange Offer or the
services provided by such Dealer Manager in connection with this Agreement or
the Exchange Offer, except (i) for failure to perform its obligations under this
Agreement, (ii) to the extent such liability is found by a final judgment of a
court of competent jurisdiction to have resulted from such Dealer Manager's
gross negligence, bad faith or willful misconduct or (iii) as expressly provided
in the next succeeding paragraph.
Each of the Dealer Managers agrees, severally and not jointly, to indemnify
and hold harmless the Company and the Trust to the same extent as the foregoing
indemnity from the Company and the Trust to the Dealer Managers contained in
Section 7(a)(A)(i) above, but only with reference to information relating to the
Dealer Managers furnished to the Company in writing through Merrill Lynch,
Pierce, Fenner & Smith Incorporated expressly for use in the Registration
Statement or the Offering Materials.
(b) Promptly after receipt by a person indemnified under this Section
7 of notice of any suit, action, proceeding or investigation with respect to
which an indemnified party may be entitled to indemnification hereunder, such
indemnified person shall notify the person against whom such indemnity may be
sought in writing of the commencement or the written assertion thereof; but the
omission so to notify such indemnifying person shall not relieve such
indemnifying person from any liability which it may have to such indemnified
person unless the indemnifying person has been materially prejudiced by such
omission. Following such notification, such indemnifying person may elect in
writing to assume the defense of such suit, action, proceeding or investigation
and, upon such election, such indemnifying person shall not be liable for any
legal costs subsequently incurred by such indemnified person (other than
reasonable costs of investigation and providing evidence) in connection
therewith, unless (i) such indemnifying person has failed to provide counsel
reasonably satisfactory to such indemnified person in a timely manner, (ii)
counsel which has been provided by such indemnifying person reasonably
determines that its representation of such indemnified person would present it
with a conflict of interest or (iii) such indemnified person reasonably
determines that there may be legal defenses available to it which are different
from or in addition to those available to such indemnifying person. In the event
of a determination pursuant to clause (i), (ii) or (iii) above, such indemnified
person shall be entitled to retain separate counsel of their choice and the fees
and expenses of such separate counsel shall be borne by such indemnifying
person. Such indemnifying person shall not in any event be liable for the fees
and expenses of more than one separate firm of attorneys (in addition to any
local counsel) for all the Dealer Managers in any one action or group of related
actions, except as provided in the immediately preceding sentence. Whether or
not such indemnifying person shall have assumed the defense of any suit, action,
proceeding or investigation, the Company, the Trust, and the Dealer Managers
agree to cooperate in the defense thereof and shall furnish such records,
information and testimony, and attend such conferences, discovery proceedings,
hearings, trials and appeals, as may be reasonably requested in connection
therewith.
(c) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified person to the
extent provided under subsection (a) above in respect of any losses, damages,
expenses, liabilities or claims referred to therein, then the indemnifying
person shall contribute to the amount paid or payable by such indemnified person
as a result of such losses, damages, expenses, liabilities or claims (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and its subsidiaries (including the Trust) on the one hand and such
Dealer Manager on the other from the Exchange Offer or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) but also the relative fault of the Company and its subsidiaries
(including the Trust) on the one hand and such Dealer Manager on the other in
connection with any statements or omissions or any other matters which resulted
in such losses, damages, expenses, liabilities or claims, as well as any other
relevant equitable considerations. The relative benefits received by the Company
and its subsidiaries (including the Trust) on the one hand and such Dealer
Manager on the other shall be deemed to be in the same proportion as the maximum
aggregate liquidation preference of the Preferred Securities issuable pursuant
to the Exchange Offer bears to the maximum amount of fees payable to such Dealer
Manager. The relative fault of the Company and its subsidiaries (including the
Trust) on the one hand and such Dealer Manager on the other (i) in the case of
any untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact, shall be determined by reference to,
among other things, whether such statement or omission relates to information
supplied by the Company or any of its subsidiaries (including the Trust) or
their affiliates or such Dealer Manager, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission and (ii) in the case of any other action or omission,
shall be determined by reference to, among other things, whether such action or
omission was taken or omitted to be taken by the Company or any of its
subsidiaries (including the Trust) or their affiliates or by the Dealer Manager,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such action or omission. The Company and the
Dealer Managers agree that it would not be just and equitable if contribution
pursuant to this subsection (c) were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to in this subsection (c). Notwithstanding the
provisions of this Section 7(c), no Dealer Manager shall be required to
contribute any amount in excess of the fee paid to such Dealer Manager as
provided in Section 3 hereof. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act of 1933, as amended)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
8. Conditions to Dealer Managers' Obligations. The obligations of the
Dealer Managers hereunder are subject as of the Commencement Date and as of the
Exchange Date to the accuracy of the representations and warranties of the
Company and the Trust contained herein or in certificates of any officer of the
Company or Trustee of the Trust delivered pursuant to the provisions hereof, to
the performance, in all material respects, by the Company and the Trust of their
obligations hereunder to be performed, and to the following additional
conditions:
(a) On the Commencement Date and the Exchange Date, the Registration
Statement shall have become effective under the Securities Act; no stop order
suspending the effectiveness of the Registration Statement shall be in effect,
and no proceedings for such purpose shall be pending before or, to the Company's
or the Trust's knowledge, threatened by the Commission.
(b) On the Commencement Date and the Exchange Date, since the
respective dates as of which information is given in the Prospectus as amended
or supplemented, there shall not have occurred any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise whether or not arising in the ordinary course of business.
(c) The Dealer Managers shall have received on the Commencement Date
and the Exchange Date a certificate, dated such date and signed by an executive
officer of the Company, to the effect (i) set forth in clause (b) above, (ii)
that the representations and warranties of the Company contained in this
Agreement are true and correct with the same force and effect as though
expressly made as of such date (except for representations and warranties which
by their terms speak as of a different date or dates), (iii) that the Company
has complied in all material respects with all of the agreements and satisfied
all of the conditions on its part to be performed or satisfied on or before such
date and (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or are, to the best of the Company's knowledge,
threatened by the Commission. The officer signing and delivering such
certificate may rely upon the best of such officer's knowledge as to proceedings
threatened.
(d) On the Commencement Date and the Exchange Date, there shall not
have been 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 or business affairs of the Trust.
(e) The Dealer Managers shall have received on the Commencement Date
and the Exchange Date a certificate, dated such date and signed by a trustee of
the Trust, to the effect (i) set forth in clause (d) above, (ii) that the
representations and warranties of the Trust contained in this Agreement are true
and correct with the same force and effect as though expressly made as of such
date (except for representations and warranties which by their terms speak as of
a different date or dates), (iii) that the Trust has complied in all material
respects with all of the agreements and satisfied all of the conditions on its
part to be performed or satisfied on or before such date and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are pending or are, to
the best of the Trust's knowledge, threatened by the Commission. The trustee
signing and delivering such certificate may rely upon knowledge as to
proceedings threatened.
(f) On the Exchange Date and on the Commencement Date, the Dealer
Managers shall receive a signed opinion of Skadden, Arps, Slate, Meagher & Flom
(Delaware), special counsel for the Trust, dated as of such date, to the effect
that:
(i) the Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Act; all filings required
under the laws of the State of Delaware with respect to the creation and valid
existence of the Trust as a business trust have been made; and the Trust has the
trust power and authority to conduct its business, as described in the
Prospectus;
(ii) assuming due authorization, execution and delivery of the
Declaration by the Company and the Trustees, the Declaration is a valid and
binding obligation of the Company and the Trustees, enforceable against the
Company and the Trustees in accordance with its terms, except to the extent that
enforcement thereof may be limited by (i) bankruptcy, insolvency (including
without limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) general principles of equity (regardless of
whether enforceability is considered in a proceeding in equity or at law) and
except to the extent that the rights to indemnity and contribution contained
therein may be limited by state or securities laws or the public policy
underlying such laws;
(iii) under the Declaration and the Delaware Act, the Trust has
the requisite trust power and authority to execute and deliver this Agreement,
and to perform its obligations under this Agreement and in the Exchange Offer.
This Agreement has been duly authorized, executed and delivered by the Trust;
(iv) the Preferred Securities have been duly authorized for
issuance in accordance with the Declaration and, subject to the qualifications
set forth below, when certificates therefor in the form examined by us are
issued, executed and authenticated in accordance with the Declaration and
delivered and paid for in accordance with this Agreement, will be validly
issued, fully paid and non-assessable undivided beneficial interests in the
assets of the Trust and will entitle the holders of the Preferred Securities to
the benefits of the Declaration except to the extent that enforcement of the
Declaration may be limited by (i) bankruptcy, insolvency (including without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) general principles of equity (regardless of
whether enforceability is considered in a proceeding in equity or at law) and
except to the extent that the rights to indemnity and contribution contained
therein may be limited by state or securities laws or the public policy
underlying such laws; and the holders of the Preferred 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 Preferred Securities may be obligated, pursuant to the Declaration, to make
payments, including (i) to provide indemnity and/or security in connection with
and pay taxes or governmental charges arising from transfers of Preferred
Securities and the issuance of replacement Preferred Securities, and (ii) to
provide security and indemnity in connection with requests of or directions to
the Institutional Trustee to exercise its rights and powers under the
Declaration;
(v) the issuance of the Preferred Securities is not subject to
preemptive or other similar rights under the Delaware Act or the Declaration;
and
(vi) the statements made in the Prospectus under the caption
"Description of the Preferred Securities" insofar as such statements constitute
summaries of Delaware law are accurate in all material respects.
(g) On the Exchange Date and on the Commencement Date (provided,
however, that the opinions in paragraphs (iv), (v), (vi) and (vii) below may be
appropriately modified with respect to the Commencement Date), the Dealer
Managers shall have received a signed opinion of Edwards & Angell, counsel for
the Company, dated as of such date, to the effect that:
(i) each of the Company and the subsidiaries of the Company
listed on Schedule A hereto, (the "Significant Subsidiaries") has been duly
incorporated and is validly existing as a corporation or national banking
association in good standing under the laws of the jurisdiction in which it is
chartered or organized, with full corporate power and authority to own its
properties, conduct its business and enter into the agreements as described in
the Prospectus; the Company is duly qualified to do business as a foreign
corporation under the laws of the State of New York and the Commonwealth of
Massachusetts; and neither the Company nor any Significant Subsidiary is
required to be qualified to do business as a foreign corporation under the laws
of any other jurisdiction, and the Company is duly registered as a bank holding
company under the Bank Holding Company Act of 1956, as amended;
(ii) All the outstanding shares of the capital stock of the
Significant Subsidiaries have been duly and validly authorized and issued and
are fully paid and (except as provided in 12 U.S.C. ss. 55 in the case of Fleet
National Bank and Fleet Bank, National Association) nonassessable, and, except
as otherwise set forth in the Prospectus, all outstanding shares of capital
stock of the Significant Subsidiaries are owned by the Company, free and clear
of any perfected security interest and, to the knowledge of such counsel, after
due inquiry, any other security interests claims, liens or encumbrances;
(iii) this Agreement has been duly authorized by the Company and
has been duly executed and delivered by each of the Company and the Trust;
(iv) the Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights generally
and except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law);
(v) the Debentures have been duly authorized, executed and
delivered by the Company and when the Debentures have been duly authenticated by
the Indenture Trustee in accordance with the provisions of the Indenture and
delivered to and paid for by the Trust in exchange for the Target Securities
pursuant to the terms of the Exchange Offer, the Debentures will constitute
valid and binding obligations of the Company entitled to the benefits of the
Indenture and enforceable against the Company in accordance with their terms,
except as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law);
(vi) the Declaration has been duly authorized, executed and
delivered by the Company; and, assuming the due authorization, execution and
delivery of the Declaration by First Chicago Delaware Inc. and The First
National Bank of Chicago, the Declaration constitutes a valid and binding
obligation of the Company and is enforceable against the Company in accordance
with its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law);
(vii) the Guarantee has been duly authorized, executed and
delivered by the Company, and is a valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights generally
and except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law);
(viii) the Indenture, Guarantee and the Declaration have each
been duly qualified under the Trust Indenture Act;
(ix) the holders of outstanding shares of capital stock of the
Company are not entitled to any preemptive rights under the Articles of
Incorporation or By-Laws of the Company or the laws of the State of Rhode Island
to subscribe for the Preferred Securities or the Debentures;
(x) the documents incorporated by reference in the Prospectus or
any further amendment or supplement thereto made by the Company or the Trust
prior to the Exchange Date (other than the financial statements and supporting
schedules included therein or omitted therefrom, as to which such counsel need
express no opinion), when they were filed with the Commission complied as to
form in all material respects with the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder;
(xi) the statements made in the Prospectus under the captions
"Description of the Preferred Securities", "Description of the Preferred
Securities Guarantee", "Description of the Junior Subordinated Debentures",
"Description of the Preferred Stock and Depositary Shares" and "Relationship
Between the Preferred Securities, the Junior Subordinated Debentures and the
Preferred Securities Guarantee", insofar as such statements purport to summarize
certain provisions of the Preferred Securities, the Debentures, the Guarantee,
the Indenture, the Declaration, the Preferred Stock, the Depositary Shares and
the Articles of Incorporation of the Company, to the extent that they constitute
matters of law or legal conclusions, have been reviewed by such counsel and
fairly summarize the information required to be disclosed therein;
(xii) neither the issue and sale by the Trust of the Preferred
Securities, nor the consummation of the Exchange Offer and any other of the
transactions contemplated by this Agreement nor the fulfillment of the terms in
this Agreement will conflict with, result in a breach of, or constitute a
default under the charter or by-laws of the Company or the organizational
documents or Declaration of the Trust or the terms of any indenture or other
agreement or instrument known to such counsel and to which the Company or any of
its subsidiaries is a party or bound, or any order or regulation known to such
counsel to be applicable to the Company or any of its subsidiaries of any
governmental body or arbitrator having jurisdiction over the Company or any of
its subsidiaries;
(xiii) neither the Company nor the Trust is required to be
registered under the Investment Company Act of 1940, as amended;
(xiv) there is no pending or, to the best knowledge of such
counsel, threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the Company or any of its
subsidiaries, of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Prospectus, and there is no
franchise, contract or other document of a character required to be described in
the Registration Statement or Prospectus, or to be filed as an exhibit, which is
not described or filed as required;
(xv) such counsel has been orally advised by the Commission that
the Registration Statement was declared effective under the Securities Act on
December 26, 1996; any required filing of the Prospectus pursuant to Rule 424(b)
under the Securities Act has been made in the manner and within the time period
required by Rule 424(b) and, such counsel has been orally advised by the
Commission that no stop order suspending the effectiveness of the Registration
Statement has been issued by the Commission and, no proceeding for that purpose
is pending or, to such Counsel's knowledge, threatened by the Commission;
(xvi) no consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation of the
transactions contemplated by this Agreement, except such as have been obtained
under the Securities Act and such as may be required under the blue sky laws of
any jurisdiction in connection with the purchase and distribution of the
Preferred Securities by the Dealer Managers and such other approvals (specified
in such opinion) as have been obtained;
(xvii) no holders of securities of the Company have rights to the
registration of such securities under the Registration Statement; and
(xviii) the Registration Statement, as of its effective date, and
the Prospectus, as of its date, appeared on their face to be appropriately
responsive in all material respects to the requirements of the Securities Act
and the Securities Act Regulations, except that in each case such counsel need
not express an opinion as to the financial statements, schedules and other
financial data included therein or excluded therefrom or the exhibits to the
Registration Statement, and such counsel need not assume any responsibility for
the accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Prospectus except for those made under the
captions "Description of the Preferred Securities", "Description of the
Preferred Securities Guarantee", "Description of the Junior Subordinated
Debentures", "Relationship Between the Preferred Securities, the Junior
Subordinated Debentures and the Preferred Securities Guarantee", and
"Description of the Preferred Stock and Depositary Shares" in the Prospectus
insofar as they relate to provisions of documents therein described.
Additionally, in giving its opinion, such counsel shall state that such
counsel has participated in conferences with representatives of the Dealer
Managers, officers and other representatives of the Company and representatives
of the independent certified public accountants of the Company, at which
conferences the contents of the Registration Statement and the Prospectus and
related matters were discussed, and although such counsel does not pass upon and
does not assume any responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement and the Prospectus
(except and only to the extent as set forth in paragraphs (xviii) above), on the
basis of the foregoing (relying as to materiality to a large extent upon the
discussions with and representations and opinions of officers and other
representatives of the Company), no facts have come to the attention of such
counsel which lead such counsel to believe that the Registration Statement at
the time it became effective or at the date hereof contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus, as of its date or the date of such opinion, included an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that such counsel does not
express any comment with respect to the financial statements including the notes
thereto and supporting schedules, or any other financial and statistical data
set forth or referred to in the Registration Statement or the Prospectus.
In rendering such opinion, such counsel may indicate that they are members
of the bar of the State of Rhode Island and that they express no opinion as to
the laws of any jurisdiction other than the federal laws of the United States
and the laws of the State of Rhode Island. 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 officers of the Company and its
subsidiaries and certificates of public officials. In addition, such counsel
shall state that such counsel have participated in the preparation of the
Registration Statement, the Prospectus and the documents incorporated by
reference therein and no facts have come to such counsel's attention that leads
them to believe that the Registration Statement (including the documents
incorporated by reference therein pursuant to Item 11 of Form S-4) at the time
such Registration Statement became effective, or if an amendment to the
Registration Statement or an Annual Report on Form 10-K has been filed with the
Commission subsequent to the effectiveness of the Registration Statement, then
at the time such amendment became effective or at the time of the most recent
such filing, contained an untrue statement of a material fact omitted to state a
material fact required to be stated therein or necessary to make the statements
contained therein not misleading, or that the Prospectus as of its date and the
date of such opinion (including the documents incorporated by reference therein
pursuant to Item 11 of Form S-4) or any amendment or supplement thereto,
contained or contains an untrue statement of a material fact or omitted or omits
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, except that such counsel need express no belief with respect to
the financial statements and schedules and other financial data included or
incorporated by reference in the Registration Statement, or the Prospectus or
any amendment thereto or the Statement of Eligibility on Form T-1 of the
Trustee.
(h) On the Commencement Date and on the Exchange Date, the
Dealer Managers shall have received a signed opinion of Edwards & Angell, tax
counsel to the Trust, confirming their opinion under the caption "United States
Federal Income Taxation" in the Prospectus.
(i) The Dealer Managers shall have received the favorable
opinion of Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the Dealer
Managers, dated as of the Commencement Date and the Exchange Date, with respect
to the validity of the Preferred Securities, the Registration Statement, the
Prospectus and other related matters as the Dealer Managers may reasonably
require. In giving such opinion such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the law of the State of New
York and Delaware, and the federal law of the United States, upon the opinions
of counsel satisfactory to the Dealer Managers. 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 officers of the Company, trustees
of the Trust and certificates of public officials.
(j) On the Commencement Date, the Dealer Managers shall have
received from the Company's independent public accountants, in form and
substance reasonably satisfactory to the Dealer Managers and dated as of such
date, containing statements and information of the type ordinarily included in
accountants' "comfort letters" to dealer managers with respect to the financial
statements and certain financial information contained in or incorporated by
reference into the Prospectus.
(k) At the Exchange Date, the Dealer Managers shall have
received from the Company's independent public accountants, in form and
substance reasonably satisfactory to the Dealer Managers and dated as of such
dates, to the effect that such accountants reaffirm the statements made in the
letter furnished pursuant to Section 8(j).
(l) At the Exchange Date, the Preferred Securities shall have
been duly listed, subject to official notice of issuance, on the NYSE.
(m) By the Exchange Date, the Company shall have entered into
appropriate agreements with the Information Agent and the Exchange Agent for
purposes of the Exchange Offer.
9. Termination.
(a) This Agreement shall terminate upon the earliest to occur of (i)
the Exchange Date, (ii) the date on which the Dealer Managers give notice to the
Company and the Trust that any of the conditions specified in Section 8 have not
been fulfilled as of any date such conditions are required to be fulfilled
pursuant to Section 8 or (iii) the date on which the Company terminates or
withdraws the Exchange Offer for any reason (the earliest to occur of clauses
(i), (ii) or (iii) being referred to as the "Termination Date ").
(b) Notwithstanding termination of this Agreement pursuant to
subsection (a) of this Section 9, the obligations of the Company to compensate
and/or reimburse, as applicable, the Dealer Managers pursuant to Section 3, 4 or
5, the representations and warranties contained in Section 6 and the provisions
of Section 7 shall survive any termination of this Agreement.
10. 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 Dealer Managers shall be
directed to Merrill Lynch at North Tower, World Financial Center, New York, New
York 10281-1201, attention of Syndicate Operations; notices to the Trust shall
be directed to it at The First National Bank of Chicago, One North State Street,
9th Floor, Chicago, Illinois, attention of Corporate Trust Administrator and
notices to the Company shall be directed to it at Fleet Financial Group, Inc.,
One Federal Street, Boston, Massachusetts, 02110, attention of General Counsel.
11. Tombstone. The Company and the Trust acknowledge that the Dealer
Managers may, with the prior review and approval of the Company, which approval
shall not be unreasonably withheld, place an announcement in such newspapers and
periodicals as the Dealer Managers may choose, stating that the Dealer Managers
are or were acting as dealer manager and financial advisors to the Company and
the Trust in connection with the Exchange Offer. The costs relating to any such
tombstone shall be borne by the Dealer Managers.
12. Survival of Certain Provisions. The representations, warranties,
indemnities and agreements of the Company and the Trust will remain operative
and in full force and effect regardless of any investigation made by or on
behalf of any of the Dealer Managers or any affiliate or controlling person
thereof and, subject to Section 9(b), will survive the consummation of the
Exchange Offer.
13. Governing Law. This Agreement shall be construed in accordance with and
governed by the internal laws of the State of New York.
14. Counterparts. This Agreement may be executed in one or more
counterparts, and by different parties hereto on separate counterparts, each of
which counterparts, when so executed and delivered, shall be deemed to be an
original and all of which counterparts, taken together, shall constitute one and
the same Agreement.
15. Successors. This Agreement is made solely for the benefit of the Dealer
Managers, the Company and the Trust and, to the extent expressed, the parties
indemnified pursuant to Section 7, and no other persons shall acquire or have
any right under or by virtue of this Agreement. Nothing in this Agreement,
expressed or implied, is intended to confer on any person other than the parties
hereto or their respective successors and assigns, and, to the extent expressly
set forth herein, the parties indemnified pursuant to Section 7 hereof, any
rights or remedies under or by reason of this Agreement. Without limiting the
generality of the foregoing, the parties acknowledge that nothing in this
Agreement, expressed or implied, is intended to confer on holders of the
securities of the Trust, the Company or any of its subsidiaries or creditors of
the Company or any of its subsidiaries or the respective successors and assigns
of such creditors, any rights or remedies under or by reason of this Agreement.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this instrument
will become a binding agreement among the Company, the Trust and the Dealer
Managers in accordance with its terms.
Very truly yours,
FLEET FINANCIAL GROUP, INC.
By:/s/John R.Rodehorst
____________________________________________
Name: John R. Rodehorst
Title: Assistant Treasurer
FLEET CAPITAL TRUST I
By:/s/Douglas L. Jacobs
____________________________________________
Name: Douglas L. Jacobs
Title: Regular Trustee
By:/s/John R. Rodehorst
____________________________________________
Name: John R. Rodehorst
Title: Regular Trustee
<PAGE>
Confirmed and accepted as of
the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
SMITH BARNEY INC.
By: MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:/s/Lee Shavel
______________________________________
Lee Shavel
Authorized Signatory
<PAGE>
SCHEDULE A
List of Significant Subsidiaries
Fleet National Bank
Fleet Bank
Fleet Bank, National Association
Exhibit 4(a)
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
FLEET CAPITAL TRUST I
Dated as of February 4, 1997
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions 1
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 Institutional Trustee 7
SECTION 2.4 Periodic Reports to Institutional 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 9
ARTICLE III
ORGANIZATION
SECTION 3.1 Name 9
SECTION 3.2 Office 9
SECTION 3.3 Purpose 9
SECTION 3.4 Authority 10
SECTION 3.5 Title to Property of the Trust 10
SECTION 3.6 Powers and Duties of the Regular Trustees 10
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees 12
SECTION 3.8 Powers and Duties of the Institutional Trustee 12
SECTION 3.9 Certain Duties and Responsibilities of the
Institutional Trustee 14
SECTION 3.10 Certain Rights of the Institutional Trustee 15
SECTION 3.11 Delaware Trustee 17
SECTION 3.12 Execution of Documents 17
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities 17
SECTION 3.14 Duration of Trust 17
SECTION 3.15 Mergers 17
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities 18
SECTION 4.2 Responsibilities of the Sponsor 18
SECTION 4.3 Right to Proceed 19
SECTION 4.4 Expenses 19
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees 20
SECTION 5.2 Delaware Trustee 20
SECTION 5.3 Institutional Trustee; Eligibility 20
SECTION 5.4 Certain Qualifications of Regular Trustees and Delaware
Trustee Generally 21
SECTION 5.5 Regular Trustees 21
SECTION 5.6 Appointment, Removal and Resignation of Trustees 21
SECTION 5.7 Vacancies among Trustees 22
SECTION 5.8 Effect of Vacancies 22
SECTION 5.9 Meetings 22
SECTION 5.10 Delegation of Power 23
SECTION 5.11 Merger, Conversion, Consolidation or Succession to Business 23
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions 23
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities 23
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1 Termination of Trust 24
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities 25
SECTION 9.2 Transfer of Certificates 25
SECTION 9.3 Deemed Security Holders 26
SECTION 9.4 Book-Entry Interests 26
SECTION 9.5 Notices to Depository Institution 27
SECTION 9.6 Appointment of Successor Depository Institution 27
SECTION 9.7 Definitive Preferred Security Certificates 27
SECTION 9.8 Mutilated, Destroyed, Lost or Stolen Certificates 28
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability 28
SECTION 10.2 Exculpation 29
SECTION 10.3 Fiduciary Duty 29
SECTION 10.4 Indemnification 30
SECTION 10.5 Outside Businesses 31
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year 32
SECTION 11.2 Certain Accounting Matters 32
SECTION 11.3 Banking 32
SECTION 11.4 Withholding 33
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments 33
SECTION 12.2 Meetings of the Holders of Securities;
Action by Written Consent 34
ARTICLE XIII
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Institutional Trustee 35
SECTION 13.2 Representations and Warranties of Delaware Trustee 36
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices 36
SECTION 14.2 Governing Law 37
SECTION 14.3 Intention of the Parties 37
SECTION 14.4 Headings 37
SECTION 14.5 Successors and Assigns 37
SECTION 14.6 Partial Enforceability 37
SECTION 14.7 Counterparts 38
Signatures 39
ANNEX I TERMS OF SECURITIES A-1
EXHIBIT A-1 FORM OF PREFERRED SECURITY CERTIFICATE A1-1
EXHIBIT A-2 FORM OF COMMON SECURITY CERTIFICATE A2-1
EXHIBIT B SPECIMEN OF DEBENTURE B-1
EXHIBIT C DEALER MANAGER AGREEMENT C-1
<PAGE>
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) 3.10(a)
314(f) Inapplicable
315(a) 3.9(b)
315(b) 2.7(a)
315(c) 3.9(a)
315(d) 3.9(a)
316(a) and (b) 2.6 and Annex I (Sections 5 and 6)
316(c) 3.6(e)
317(a) 3.8(c)
317(b) 3.8(h)
* This Cross-Reference Table does not constitute part of the Declaration
and shall not affect the interpretation of any of its terms or
provisions.
<PAGE>
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
FLEET CAPITAL TRUST I
February 4, 1997
THIS AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") is dated and
effective as of February 4, 1997, 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 Fleet Capital Trust I
(the "Trust"), a statutory business trust under the Business Trust Act (as
defined herein), pursuant to a Declaration of Trust dated as of November 1, 1996
(the "Original Declaration"), and a Certificate of Trust filed with the
Secretary of State of the State of Delaware on November 1, 1996 (the
"Certificate of Trust"); and
WHEREAS, the Sponsor and the Trust have made an offer to exchange (the
"Offer") 8.00% Trust Originated Preferred Securities representing undivided
beneficial interests in the assets of the Trust (the "Preferred Securities"),
for any and all of the Sponsor's depositary shares (the "Depositary Shares"),
each representing a 1/10 interest in a share of Series V 7.25% Perpetual
Preferred Stock, $1.00 par value, of the Sponsor (the "Preferred Stock"); and
WHEREAS, concurrently with the issuance of the Preferred Securities in
exchange for Depositary Shares validly tendered in the Offer, (a) the Trust will
issue and sell to the Sponsor 8.00% Trust Originated Common Securities
representing undivided beneficial interests in the assets of the Trust (the
"Common Securities" and, together with the "Preferred Securities," the
"Securities") in an aggregate liquidation amount equal to at least 3% of the
total capital of the Trust and (b) the Sponsor will issue to the Trust its 8.00%
Junior Subordinated Deferrable Interest Debentures due 2027 (the "Debentures"),
having an aggregate principal amount equal to the aggregate stated liquidation
amount of the Securities so issued; and
WHEREAS, the Trust has been established for the sole purpose of issuing the
Securities and purchasing the Debentures from the Debenture Issuer (as defined
herein); and
WHEREAS, as of the date hereof, no Securities have been issued; and
WHEREAS, all of the Trustees and the Sponsor, by this Declaration, hereby
amend and restate each and every term and provision of the Original Declaration.
NOW, THEREFORE, it being the intention of the parties hereto to continue
the Trust as a business trust under the Business Trust Act and that this
Declaration 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, 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, Sections, Annexes and
Exhibits are to Articles and Sections of, and Annexes and Exhibits to, this
Declaration;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Declaration unless otherwise defined in this Declaration or unless
the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Additional Interest" has the meaning set forth in Section 2(d) of Annex I.
"Affiliate" has the same meaning as given to that term in Rule 405 of the
Securities Act or any successor rule thereunder.
"Agent" means any Paying Agent.
"Authorized Officer" of a Person means any Person that is authorized to
bind such Person.
"Book Entry Interest" means a beneficial interest in a Global Certificate,
ownership and transfers of which shall be maintained and made through book
entries by a Depository Institution as described in Section 9.4.
"Business Day" means any day other than a day on which Federal or State
banking institutions in the Borough of Manhattan, New York, New York or Chicago,
Illinois are authorized or obligated by law, executive order or regulation to
close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12
Del. Code Section 3801 et seq., as it may be amended from time to time, or any
successor legislation.
"Certificate" means a Common Security Certificate or a Preferred Security
Certificate.
"Closing Date" means the "Exchange Date" as defined in the Dealer Manager
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, or any successor legislation.
"Commission" means the Securities and Exchange Commission.
"Common Securities" has the meaning set forth in Section 7.1(a).
"Common Securities Guarantee" means the guarantee agreement to be dated as
of February 4, 1997 of the Sponsor in respect of the Common Securities.
"Common Security Certificate" means a definitive certificate in fully
registered form representing a Common Security substantially in the form of
Exhibit A-2.
"Company Indemnified Person" means (a) any Regular Trustee; (b) any
Affiliate of any Regular Trustee; (c) any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Regular Trustee;
or (d) any officer, employee or agent of the Trust or its Affiliates.
"Compound Interest" has the meaning set forth in Section 2(a) of Annex I.
"Corporate Trust Office" means the office of the Institutional Trustee at
which the corporate trust business of the Institutional Trustee shall, at any
particular time, be principally administered, which office at the date of
execution of this Agreement is located at One First National Plaza, Suite 0126,
Chicago, Illinois 60670-0126.
"Covered Person" means: (a) any officer, director, shareholder, partner,
member, representative, employee or agent of (i) the Trust or (ii) the Trust's
Affiliates; and (b) any Holder of Securities.
"Coupon Rate" has the meaning set forth in Section 2(a) of Annex I.
"Creditor" has the meaning set forth in Section 4.4(d).
"Dealer Manager Agreement" means the Dealer Manager Agreement between the
Debenture Issuer, the Trust and the dealer managers named thereunder.
"Debenture Issuer" means Fleet Financial Group, Inc., a Rhode Island
corporation, in its capacity as issuer of the Debentures under the Indenture.
"Debt Trustee" means The First National Bank of Chicago, a national banking
association, as trustee under the Indenture until a successor is appointed
thereunder, and thereafter means such successor trustee.
"Definitive Preferred Security Certificates" has the meaning set forth in
Section 9.4.
"Delaware Trustee" has the meaning set forth in Section 5.2.
"Depository Institution" shall mean DTC, another clearing agency, or any
successor registered as a clearing agency under the Exchange Act, or other
applicable statute or regulation, which, in each case, shall be designated by
the Debenture Issuer pursuant to either Section 2.03 or 2.11 of the Indenture.
"Depository Institution Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Depository
Institution effects book-entry transfers and pledges of securities deposited
with the Depository Institution.
"Direct Action" has the meaning set forth in Section 3.8(e).
"Distribution" means a distribution payable to Holders of Securities in
accordance with Section 6.1.
"Distribution Payment Date" has the meaning set forth in Section 2(b) of
Annex I.
"DTC" means The Depository Trust Company, the initial Depository
Institution.
"Event of Default" in respect of the Securities means an Event of Default
under the Indenture which has occurred and is continuing in respect of the
Debentures.
"Exchange" means the exchange of the Depositary Shares for the Preferred
Securities pursuant to the Offer.
"Exchange Act" means the Securities and Exchange Act of 1934, as amended
from time to time, or any successor legislation.
"Extension Period" has the meaning set forth in Section 2(b) of Annex I.
"Federal Reserve Board" means the Board of Governors of the Federal Reserve
System.
"Fiduciary Indemnified Person" has the meaning set forth in Section
10.4(b).
"Global Certificate" has the meaning set forth in Section 9.4.
"Holder" means a Person in whose name a Certificate representing a Security
is registered, such Person being a beneficial owner within the meaning of the
Business Trust Act.
"Indemnified Person" means a Company Indemnified Person or a Fiduciary
Indemnified Person.
"Indenture" means the Indenture dated as of December 11, 1996, among the
Debenture Issuer and the Debt Trustee, and any indenture supplemental thereto
pursuant to which the Debentures are to be issued.
"Institutional Trustee" means the Trustee meeting the eligibility
requirements set forth in Section 5.3.
"Institutional Trustee Account" has the meaning set forth in Section
3.8(c).
"Investment Company" means an investment company as defined in the
Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time, or any successor legislation.
"Legal Action" has the meaning set forth in Section 3.6(g).
"Liquidation" has the meaning set forth in Section 3 of Annex I.
"Liquidation Distribution" has the meaning set forth in Section 3 of Annex
I.
"List of Holders" has the meaning set forth in Section 2.2(a).
"Majority in liquidation amount of the Securities" means, except as
provided in the terms of the Preferred Securities set forth in Annex I hereto or
by the Trust Indenture Act, Holder(s) of outstanding Securities voting together
as a single class or, as the context may require, Holders of outstanding
Preferred Securities or Holders of outstanding Common Securities voting
separately as a class, who are the record owners of more than 50% of the
aggregate liquidation amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid Distributions to
the date upon which the voting percentages are determined) of all outstanding
Securities of the relevant class.
"NYSE" means the New York Stock Exchange, Inc.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by two Authorized Officers of such Person. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Declaration shall include:
(a) a statement that each 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.
"Paying Agent" has the meaning set forth in Section 3.8(h).
"Payment Amount" has the meaning set forth in Section 6.1.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Preferred Guarantee Trustee" means The First National Bank of Chicago, a
national banking association, as trustee under the Preferred Securities
Guarantee until a successor is appointed thereunder, and thereafter means such
successor trustee.
"Preferred Securities Guarantee" means the guarantee agreement to be dated
as of February 4, 1997, of the Sponsor in respect of the Preferred Securities.
"Preferred Security Beneficial Owner" means, with respect to a Book Entry
Interest, a Person who is the beneficial owner of such Book Entry Interest, as
reflected on the books of the Depository Institution, or on the books of a
Person maintaining an account with such Depository Institution (directly as a
Depository Institution Participant or as an indirect participant, in each case
in accordance with the rules of such Depository Institution).
"Pre-Issuance Interest" has the meaning set forth in Section 2(a) of Annex
I.
"Preferred Security Certificate" means a certificate representing a
Preferred Security substantially in the form of Exhibit A-1.
"Pro Rata" has the meaning set forth in Section 8 of Annex I.
"Quorum" means a majority of the Regular Trustees or, if there are only two
Regular Trustees, both of them.
"Redemption/Distribution Notice" has the meaning set forth in Section 4(g)
of Annex I.
"Redemption Price" has the meaning set forth in Section 4(c) of Annex I.
"Regular Trustee" has the meaning set forth in Section 5.1.
"Regulatory Capital Event" has the meaning set forth in Section 4(c) of
Annex I.
"Related Party" means, with respect to the Sponsor, any direct or indirect
wholly owned subsidiary of the Sponsor or any other Person that owns, directly
or indirectly, 100% of the outstanding voting securities of the Sponsor.
"Resignation Request" has the meaning set forth in Section 5.6(c).
"Responsible Officer" means, with respect to the Institutional Trustee, any
officer within the Corporate Trust Office of the Institutional Trustee,
including any vice-president, any assistant vice-president, any assistant
secretary, the treasurer, any assistant treasurer or other officer of the
Corporate Trust Office of the Institutional Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer's knowledge of
and familiarity with the particular subject.
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act.
"Securities" means the Common Securities and the Preferred Securities.
"Securities Act" means the Securities Act of 1933, as amended from time to
time, or any successor legislation.
"Securities Guarantees" means the Common Securities Guarantee and the
Preferred Securities Guarantee.
"Special Event" has the meaning set forth in Section 4(c) of Annex I.
"Sponsor" means Fleet Financial Group, Inc., a Rhode Island corporation, or
any successor entity in a merger, consolidation or amalgamation, in its capacity
as sponsor of the Trust.
"Stated Maturity" has the meaning set forth in Section 4(a) of Annex I.
"Successor Delaware Trustee" has the meaning set forth in Section
5.6(b)(ii).
"Successor Entity" has the meaning set forth in Section 3.15(b)(i).
"Successor Institutional Trustee" has the meaning set forth in Section
5.6(b)(i).
"Successor Securities" has the meaning set forth in Section 3.15(b)(i).
"Super Majority" has the meaning set forth in Section 2.6(a)(ii).
"Tax Event" has the meaning set forth in Section 4(c) of Annex I.
"10% in liquidation amount of the Securities" means, except as provided in
the terms of the Preferred Securities set forth in Annex I hereto or by the
Trust Indenture Act, Holder(s) of outstanding Securities voting together as a
single class or, as the context may require, Holders of outstanding Preferred
Securities or Holders of outstanding Common Securities voting separately as a
class, who are the record owners of 10% or more of the aggregate liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the date upon
which the voting percentages are determined) of all outstanding Securities of
the relevant class.
"Transfer Agent" has the meaning set forth in Section 9.2(e).
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
from time to time, or any successor legislation.
"Trustee" or "Trustees" means each Person who has signed this Declaration
as a trustee, so long as such Person shall continue in office in accordance with
the terms hereof, and all other Persons who may from time to time be duly
appointed, qualified and serving as Trustees in accordance with the provisions
hereof, and references herein to a Trustee or the Trustees shall refer to such
Person or Persons solely in their capacity as trustees hereunder.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the Trust Indenture
Act that are required to be part of this Declaration and shall, to the extent
applicable, be governed by such provisions.
(b) The Institutional Trustee shall be the only Trustee which is a trustee
for the purposes of the Trust Indenture Act.
(c) If, and to the extent that, any provision of this Declaration limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, the duties imposed by the Trust Indenture
Act shall control.
(d) The application of the Trust Indenture Act to this Declaration shall
not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
SECTION 2.2 Lists of Holders of Securities.
(a) Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide the Institutional Trustee (i) within 14 days after each record
date for payment of Distributions, a list, in such form as the Institutional
Trustee may reasonably require, of the names and addresses of the Holders ("List
of Holders") as of such record date, provided that neither the Sponsor nor the
Regular Trustees on behalf of the Trust shall be obligated to provide such List
of Holders at any time the List of Holders does not differ from the most recent
List of Holders given to the Institutional Trustee by the Sponsor and the
Regular Trustees on behalf of the Trust, and (ii) at any other time, within 30
days of receipt by the Trust of a written request for a List of Holders as of a
date no more than 14 days before such List of Holders is given to the
Institutional Trustee. The Institutional Trustee shall preserve, in as current a
form as is reasonably practicable, all information contained in the Lists of
Holders given to it or which it receives in its capacity as Paying Agent (if
acting in such capacity) provided that the Institutional Trustee may destroy any
List of Holders previously given to it on receipt of a new List of Holders.
(b) The Institutional Trustee shall comply with its obligations under
Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Institutional Trustee.
Within 60 days after May 15 of each year, the Institutional Trustee shall
provide to the Holders of the Preferred 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 Institutional Trustee
shall also comply with the requirements of Section 313(d) of the Trust Indenture
Act.
SECTION 2.4 Periodic Reports to Institutional Trustee.
Each of the Sponsor and the Regular Trustees on behalf of the Trust shall
provide to the Institutional Trustee, the Holders and the Securities and
Exchange Commission such documents, reports and information as required by
Section 314 (if any) and the compliance certificate required by Section 314 of
the Trust Indenture Act in the form, in the manner and at the times required by
Section 314 of the Trust Indenture Act (provided that any certificate to be
provided pursuant to Section 314(a)(4) of the Trust Indenture Act shall be
provided within 120 days of the end of each fiscal year).
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Regular Trustees on behalf of the Trust shall
provide to the Institutional Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Declaration that relate to
any of the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) may be given in the form of an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver.
(a) Subject to Section 2.6(c), the Holders of a Majority in liquidation
amount of Preferred Securities may, by vote, on behalf of the Holders of all of
the Preferred Securities, waive any past Event of Default in respect of the
Preferred Securities and its consequences, provided that, if the underlying
Event of Default under the Indenture:
(i) is not waivable under the Indenture, the Event of Default under
the Declaration shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority in
principal amount of the holders of the Debentures (a "Super
Majority") to be waived under the Indenture, then the Event of
Default under the Declaration may only be waived by the vote of
the Holders of at least the proportion in liquidation amount of
the Preferred Securities that the relevant Super Majority
represents of the aggregate principal amount of the Debentures
outstanding; or
(iii) requires the consent or vote of each holder of Debentures to be
waived under the Indenture, then the Event of Default under the
Declaration may only be waived by each Holder of Preferred
Securities.
The foregoing provisions of this Section 2.6(a) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act. Upon such waiver, any such
default shall cease to exist, and any Event of Default with respect to the
Preferred Securities arising therefrom shall be deemed to have been cured, for
every purpose of this Declaration, but no such waiver shall extend to any
subsequent or other default or an Event of Default with respect to the Preferred
Securities or impair any right consequent thereon. Any waiver by the Holders of
the Preferred Securities of an Event of Default with respect to the Preferred
Securities shall also be deemed to constitute a waiver by the Holders of the
Common Securities of any such Event of Default with respect to the Common
Securities for all purposes of this Declaration without any further act, vote,
or consent of the Holders of the Common Securities.
(b) Subject to Section 2.6(c), the Holders of a Majority in liquidation
amount of the Common Securities may, by vote, on behalf of the Holders of all of
the Common Securities, waive any past Event of Default with respect to the
Common Securities and its consequences, provided that, if the underlying Event
of Default under the Indenture:
(i) is not waivable under the Indenture, except where the Holders of
the Common Securities are deemed to have waived such Event of
Default under the Declaration as provided below in this Section
2.6(b), then the Event of Default under the Declaration shall
also not be waivable; or
(ii) requires the consent or vote of (A) a Super Majority to be
waived, then the Event of Default under the Declaration may only
be waived by the vote of the Holders of at least the proportion
in liquidation amount of the Common Securities that the relevant
Super Majority represents of the aggregate principal amount of
the Debentures outstanding or (B) each holder of Debentures to be
waived, then the Event of Default under the Declaration may only
be waived by each Holder of Preferred Securities, except where
the Holders of the Common Securities are deemed to have waived
such Event of Default under the Declaration as provided below in
this Section 2.6(b); provided further, each Holder of Common
Securities will be deemed to have waived any such Event of
Default and all Events of Default with respect to the Common
Securities and its consequences until all Events of Default with
respect to the Preferred Securities have been cured, waived or
otherwise eliminated, and until such Events of Default have been
so cured, waived or otherwise eliminated, the Institutional
Trustee will be deemed to be acting solely on behalf of the
Holders of the Preferred Securities and only the Holders of the
Preferred Securities will have the right to direct the
Institutional Trustee in accordance with the terms of the
Securities set forth in Annex I hereto. If any Event of Default
with respect to the Preferred Securities is waived by the Holders
of Preferred Securities as provided in this Declaration, the
Holders of Common Securities agree that such waiver shall also
constitute the waiver of such Event of Default with respect to
the Common Securities for all purposes under this Declaration
without any further act, vote or consent of the Holders of the
Common Securities. Subject to the foregoing provisions of this
Section 2.6(b), upon such waiver, any such default shall cease to
exist and any Event of Default with respect to the Common
Securities arising therefrom shall be deemed to have been cured
for every purpose of this Declaration, but no such waiver shall
extend to any subsequent or other default or Event of Default
with respect to the Common Securities or impair any right
consequent thereon. The foregoing provisions of this Section
2.6(b) shall be in lieu of Sections 316(a)(1)(A) and 316(a)(1)(B)
of the Trust Indenture Act and such Sections 316(a)(1)(A) and
316(a)(1)(B) of the Trust Indenture Act are hereby expressly
excluded from this Declaration and the Securities, as permitted
by the Trust Indenture Act. Subject to the foregoing provisions
of this Section 2.6(b), upon such waiver, any such default shall
cease to exist and any Event of Default with respect to the
Common Securities arising therefrom shall be deemed to have been
cured for every purpose of this Declaration, but no such waiver
shall extend to any subsequent or other default or Event of
Default with respect to the Common Securities or impair any right
consequent thereon.
(c) The right of any Holder to receive payment of Distributions in
accordance with this Declaration and the terms of the Securities set forth in
Annex I on or after the respective payment dates therefor, or to institute suit
for the enforcement of any such payment on or after such payment dates, shall
not be impaired without the consent of each such Holder.
(d) A waiver of an Event of Default under the Indenture by the
Institutional Trustee at the written direction of the Holders of the Preferred
Securities, constitutes a waiver of the corresponding Event of Default under
this Declaration. The foregoing provisions of this Section 2.6(d) shall be in
lieu of Section 316(a)(1)(B) of the Trust Indenture Act and such Section
316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from this
Declaration and the Securities, as permitted by the Trust Indenture Act.
SECTION 2.7 Event of Default; Notice.
(a) The Institutional Trustee shall, within 90 days after the occurrence of
an Event of Default, transmit by mail, first class postage prepaid, to the
Holders, notice of all defaults with respect to the Securities actually known to
a Responsible Officer, unless such defaults have been cured before the giving of
such notice (the term "defaults" for the purposes of this Section 2.7(a) being
hereby defined to be an Event of Default as defined in the Indenture, not
including any periods of grace provided for therein and irrespective of the
giving of any notice provided therein); provided that, except for a default in
the payment of principal of, premium, if any, or interest on any of the
Debentures or in the payment of any sinking fund installment established for the
Debentures, the Institutional Trustee shall be protected in withholding such
notice if and so long as a Responsible Officer in good faith determines that the
withholding of such notice is in the interests of the Holders; and provided
further, that in the case of any default of the character specified in Section
5.01(c) of the Indenture, no such notice to Holders shall be given until at
least 60 days after the occurrence thereof but shall be given within 90 days
after such occurrence.
(b) The Institutional Trustee shall not be deemed to have knowledge of any
default except:
(i) a default under Sections 5.01(a), (b), (d), (e) and (f) of the
Indenture; or
(ii) any default as to which the Institutional Trustee shall have
received written notice or of which a Responsible Officer
charged with the administration of the Declaration shall have
actual knowledge.
ARTICLE III
ORGANIZATION
SECTION 3.1 Name.
The Trust continued by this Declaration is named "Fleet Capital Trust I,"
as such name may be modified from time to time by the Regular Trustees following
written notice to the Holders. The Trust's activities may be conducted under the
name of the Trust or any other name deemed advisable by the Regular Trustees.
SECTION 3.2 Office.
The address of the principal office of the Trust is c/o Fleet Financial
Group, Inc., One Federal Street, Boston, Massachusetts 02110. Upon ten (10)
Business Days' written notice to the Holders of Securities, the Regular Trustees
may designate another principal office.
SECTION 3.3 Purpose.
The exclusive purposes and functions of the Trust are (i) to issue (a) its
Preferred Securities pursuant to the Dealer Manager Agreement in exchange for
Depositary Shares validly tendered in the Offer and deliver such Depositary
Shares to the Debenture Issuer in consideration of the deposit by the Debenture
Issuer in the Trust as trust assets of Debentures having an aggregate stated
principal amount equal to the aggregate stated liquidation amount of the
Depositary Shares so delivered and (b) its Common Securities to the Sponsor in
exchange for cash and invest the proceeds thereof in an equal aggregate
principal amount of Debentures, (ii) to enter into such agreements and
arrangements as may be necessary in connection with the Offer and to take all
actions, and exercise such discretion, as may be necessary or desirable in
connection with the Offer and to file such registration statements or make such
other filings under the Securities Act, the Exchange Act or state securities or
"Blue Sky" laws as may be necessary or desirable in connection with the Offer
and the issuance of the Preferred Securities, and (iii) except as otherwise
limited herein, to engage in only those other activities necessary or incidental
thereto. As more specifically provided in Section 3.7, the Trust shall not
borrow money, issue debt or reinvest proceeds derived from investments, pledge
any of its assets, or otherwise undertake (or permit to be undertaken) any
activity that would cause the Trust not to be classified for United States
federal income tax purposes as a grantor trust.
SECTION 3.4 Authority.
Subject to the limitations provided in this Declaration and to the specific
duties of the Institutional Trustee, the Regular Trustees shall have exclusive
and complete authority to carry out the purposes of the Trust. Any action taken
by the Regular Trustees in accordance with their powers shall constitute the act
of and serve to bind the Trust and any action taken by the Institutional Trustee
on behalf of the Trust in accordance with its powers shall constitute the act of
and serve to bind the Trust. In dealing with the Trustees acting on behalf of
the Trust, no person shall be required to inquire into the authority of the
Trustees to bind the Trust. Persons dealing with the Trust are entitled to rely
conclusively on the power and authority of the Trustees as set forth in this
Declaration.
SECTION 3.5 Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the Debentures and the
Institutional Trustee Account or as otherwise provided in this Declaration,
legal title to all assets of the Trust shall be vested in the Trust. The Holders
shall not have legal title to any part of the assets of the Trust, but shall
have an undivided beneficial interest in the assets of the Trust.
SECTION 3.6 Powers and Duties of the Regular Trustees.
The Regular Trustees shall have the exclusive power, duty and authority to
cause the Trust to engage in the following activities:
(a) to issue the Securities in accordance with this Declaration in
connection with the exchange of the Preferred Securities and the sale of the
Common Securities; provided, however, that the Trust may issue no more than one
series of Preferred Securities and no more than one series of Common Securities;
and, provided further, that there shall be no interests in the Trust other than
the Securities, and the issuance of Securities shall be limited to a one-time
simultaneous issuance of both Preferred Securities and Common Securities on the
Closing Date;
(b) in connection with the issue and exchange of the Preferred Securities,
at the direction of the Sponsor, to:
(i) execute and file with the Commission one or more registration
statements on Form S-4 prepared by the Sponsor, including any
and all amendments thereto, pertaining to the Preferred
Securities;
(ii) execute and file any documents prepared by the Sponsor, or take
any acts as determined by the Sponsor to be necessary in order
to qualify or register all or part of the Preferred Securities
in any State in which the Sponsor has determined to qualify or
register such Preferred Securities for exchange;
(iii) execute and file an application, prepared by the Sponsor, to
the NYSE, Inc. or any other national stock exchange or the
NASDAQ Stock Market's National Market for listing or quotation
upon notice of issuance of any Preferred Securities;
(iv) execute and file with the Commission a registration statement
on Form 8-A, including any amendments thereto, prepared by the
Sponsor, relating to the registration of the Preferred
Securities under Section 12(b) of the Exchange Act;
(v) prepare, execute and file with the Commission an Issuer Tender
Offer statement on Schedule 13E-3 or Schedule 13E-4, as
necessary, or any other appropriate document or schedule, and
any amendment thereto;
(vi) execute and enter into the Dealer Manager Agreement providing
for the exchange of the Preferred Securities;
(vii) execute and enter into one or more exchange agent agreements,
information agent agreements or other agreements as may be
required in connection with the Offer; and
(viii) execute and deliver letters, documents or instruments with DTC.
(c) to acquire the Debentures in consideration of the transfer of the
Depositary Shares received upon exchange of the Preferred Securities and the
sale of the Common Securities; provided, however, that the Regular Trustees
shall cause legal title to the Debentures to be held of record in the name of
the Institutional Trustee for the benefit of the Holders;
(d) to give the Sponsor and the Institutional Trustee prompt written notice
of the occurrence of a Special Event;
(e) to establish a record date with respect to all actions to be taken
hereunder that require a record date be established, including and with respect
to, for the purposes of Section 316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue relevant
notices to the Holders of Securities as to such actions and applicable record
dates;
(f) to take all actions and perform such duties as may be required of the
Regular Trustees pursuant to the terms of the Securities set forth in Annex I
hereto;
(g) to bring or defend, pay, collect, compromise, arbitrate, resort to
legal action, or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 3.8(e), the Institutional Trustee
has the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors, and
consultants and pay reasonable compensation for such services;
(i) to cause the Trust to comply with the Trust's obligations under the
Trust Indenture Act;
(j) to give the certificate required by Section 314(a)(4) of the Trust
Indenture Act to the Institutional Trustee, which certificate may be executed by
any Regular Trustee;
(k) to incur expenses that are necessary or incidental to carry out any of
the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar, transfer
agent and paying agent for the Securities;
(m) to give prompt written notice to the Holders of any notice received
from the Debenture Issuer of its election to defer payments of interest on the
Debentures by extending the interest payment period under the Indenture;
(n) to execute all documents or instruments, perform all duties and powers,
and do all things for and on behalf of the Trust in all matters necessary or
incidental to the foregoing;
(o) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders or to enable the Trust
to effect the purposes for which the Trust was created;
(p) to take any action, not inconsistent with this Declaration or with
applicable law, that the Regular Trustees determine in their discretion to be
necessary or desirable in carrying out the activities of the Trust as set out in
this Section 3.6, including, but not limited to:
(i) causing the Trust not to be deemed to be an Investment Company
required to be registered under the Investment Company Act;
(ii) causing the Trust to be classified for United States federal
income tax purposes as a grantor trust; and
(iii) cooperating with the Debenture Issuer to ensure that the
Debentures will be treated as indebtedness of the Debenture
Issuer for United States federal income tax purposes,
provided that such actions do not adversely affect the interests of
Holders; and
(q) to take all action necessary to cause all applicable tax returns and
tax information reports that are required to be filed with respect to the Trust
to be duly prepared and filed by the Regular Trustees, on behalf of the Trust.
The Regular Trustees shall exercise the powers set forth in this Section
3.6 in a manner that is consistent with the purposes and functions of the Trust
set out in Section 3.3, and the Regular Trustees shall not take any action that
is inconsistent with the purposes and functions of the Trust set forth in
Section 3.3.
Subject to this Section 3.6, the Regular Trustees shall have none of the
powers or the authority of the Institutional Trustee set forth in Section 3.8.
Any expenses incurred by the Regular Trustees pursuant to this Section 3.6
shall be reimbursed by the Debenture Issuer.
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees.
(a) The Trust shall not, and the Trustees (including the Institutional
Trustee) shall cause the Trust not to, engage in any activity other than in
connection with the purpose of the Trust or other than as required or authorized
by this Declaration. In particular, the Trust shall not, and the Trustees
(including the Institutional Trustee) shall cause the Trust not to:
(i) invest any proceeds received by the Trust from holding the
Debentures, but shall distribute all such proceeds to Holders
pursuant to the terms of this Declaration and of the
Securities;
(ii) acquire any assets other than as expressly provided herein;
(iii) possess Trust property for other than a Trust purpose;
(iv) make any investments, other than investments represented by the
Debentures;
(v) possess any power or otherwise act in such a way as to vary the
Trust assets or the terms of the Securities in any way
whatsoever;
(vi) issue any securities or other evidences of beneficial ownership
of, or beneficial interest in, the Trust other than the
Securities;
(vii) incur any indebtedness for borrowed money; or
(viii) other than as provided in this Declaration or Annex I hereto,
(A) direct the time, method and place of exercising any trust
or power conferred upon the Debt Trustee with respect to the
Debentures, (B) waive any past default that is waivable under
the Indenture, (C) exercise any right to rescind or annul any
declaration that the principal of all the Debentures held in
the Trust shall be due and payable, or (D) consent to any
amendment, modification or termination of the Indenture or the
Debentures if such action would cause the Trust to be
classified for United States federal income tax purposes as
other than a grantor trust or would cause the Trust to be
deemed an Investment Company required to be registered under
the Investment Company Act.
SECTION 3.8 Powers and Duties of the Institutional Trustee.
(a) The legal title to the Debentures shall be owned by and held of record
in the name of the Institutional Trustee in trust for the benefit of the
Holders. The right, title and interest of the Institutional Trustee to the
Debentures shall vest automatically in each Person who may hereafter be
appointed as Institutional Trustee in accordance with Section 5.6. Such vesting
and cessation of title shall be effective whether or not conveyancing documents
with regard to the Debentures have been executed and delivered.
(b) The Institutional Trustee shall not transfer its right, title and
interest in the Debentures to the Regular Trustees or to the Delaware Trustee
(if the Institutional Trustee does not also act as Delaware Trustee).
(c) The Institutional Trustee shall:
(i) establish and maintain a segregated non-interest bearing trust
account (the "Institutional Trustee Account") in the name of
and under the exclusive control of the Institutional Trustee on
behalf of the Holders and, upon the receipt of payments of
funds made in respect of the Debentures held by the
Institutional Trustee, deposit such funds into the
Institutional Trustee Account and make payments to the Holders
from the Institutional Trustee Account in accordance with
Section 6.1. Funds in the Institutional Trustee Account shall
be held uninvested until disbursed in accordance with this
Declaration;
(ii) engage in such ministerial activities as shall be necessary or
appropriate to effect the redemption of the Securities to the
extent the Debentures are redeemed or mature; and
(iii) upon written notice of distribution issued by the Regular
Trustees in accordance with the terms of the Securities, engage
in such ministerial activities as shall be necessary or
appropriate to effect the distribution of the Debentures to
Holders in accordance with the provisions of the Indenture.
(d) The Institutional Trustee shall take all actions and perform such
duties as may be specifically required of the Institutional Trustee pursuant to
the terms of the Securities.
(e) The Institutional Trustee shall take any Legal Action which arises out
of or in connection with (i) an Event of Default of which a Responsible Officer
has actual knowledge or (ii) the Institutional Trustee's duties and obligations
under this Declaration or the Trust Indenture Act. If the Institutional Trustee
fails to enforce its rights under the Debentures after a Holder of Preferred
Securities has made a written request, such Holder may institute a legal
proceeding against Fleet to enforce the Institutional Trustee's rights under the
Debentures without first instituting any legal proceeding against the
Institutional Trustee or any other person or entity. Notwithstanding the
foregoing, if an Event of Default has occurred and is continuing and such event
is attributable to the failure of the Debenture Issuer to pay interest or
principal on the Debentures on the date such interest or principal is otherwise
payable (or in the case of redemption, on the redemption date), then a Holder of
Preferred Securities may directly institute a proceeding for enforcement of
payment to such Holder of the principal of, or interest on, the Debentures
having a principal amount equal to the aggregate liquidation amount of the
Preferred Securities of such Holder (a "Direct Action") on or after the
respective due date specified in the Debentures. Notwithstanding any payments
made to such Holder of Preferred Securities by the Debenture Issuer in
connection with a Direct Action, the Debenture Issuer shall remain obligated to
pay the principal of or interest on the Debentures held by the Trust or the
Institutional Trustee of the Trust, and the Debenture Issuer shall be subrogated
to the rights of the Holder of such Preferred Securities with respect to
payments on the Preferred Securities. Except as provided in the preceding
sentences and in the Preferred Securities Guarantee, the Holders of Preferred
Securities will not be able to exercise directly any other remedy available to
the holders of the Debentures.
(f) The Institutional Trustee shall not resign as a Trustee unless either:
(i) the Trust has been completely liquidated and the proceeds of
the liquidation distributed to the Holders pursuant to the
terms of the Securities; or
(ii) a Successor Institutional Trustee has been appointed and has
accepted that appointment in accordance with Section 5.6.
(g) The Institutional Trustee shall have the legal power to exercise all of
the rights, powers and privileges of a holder of Debentures under the Indenture
and, if an Event of Default actually known to a Responsible Officer occurs and
is continuing, the Institutional Trustee shall, for the benefit of Holders,
enforce its rights as holder of the Debentures subject to the rights of the
Holders pursuant to the terms of such Securities.
(h) The Institutional Trustee may authorize one or more Persons acceptable
to the Trust (each, a "Paying Agent") to pay Distributions, redemption payments
or liquidation payments on behalf of the Trust with respect to the Securities
and any such Paying Agent shall comply with Section 317(b) of the Trust
Indenture Act. Any Paying Agent may be removed by the Institutional Trustee at
any time and a successor Paying Agent or additional Paying Agents may be
appointed at any time by the Institutional Trustee, in each case without prior
notice to the Holders. The Paying Agent may perform such functions whenever the
Institutional Trustee may do so. Each reference in this Declaration to payment
to the Holders by the Institutional Trustee includes such payment by a Paying
Agent. A Paying Agent has the same rights as the Institutional Trustee to deal
with the Sponsor or an Affiliate, and itself may be the Trust, an Affiliate of
the Trust or a Related Party of the Sponsor. The Institutional Trustee hereby
appoints Fleet National Bank to initially act as Paying Agent for the
Securities.
(i) The Institutional Trustee shall give prompt written notice to the
Holders of the Securities of any notice received by it from the Debenture Issuer
of the Debenture Issuer's election to defer payments of interest on the
Debentures by extending the interest payment period with respect thereto.
(j) The Institutional Trustee shall notify all Holders of the Preferred
Securities of any notice of default received from the Debt Trustee with respect
to the Debentures. Such notice shall state that such event of default under the
Indenture also constitutes an Event of Default hereunder.
(k) Subject to this Section 3.8, the Institutional Trustee shall have none
of the duties, liabilities, powers or the authority of the Regular Trustees set
forth in Section 3.6.
The Institutional Trustee shall exercise the powers set forth in this
Section 3.8 and in Sections 3.9 and 3.10 in a manner that is consistent with the
purposes and functions of the Trust set out in Section 3.3, and the
Institutional Trustee shall not take any action that is inconsistent with the
purposes and functions of the Trust set out in Section 3.3.
SECTION 3.9 Certain Duties and Responsibilities of the Institutional
Trustee.
(a) The Institutional Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Declaration and no implied covenants shall be read into this Declaration
against the Institutional Trustee. In case an Event of Default has occurred
(that has not been cured or waived pursuant to Section 2.6) of which a
Responsible Officer has actual knowledge, the Institutional Trustee shall
exercise such of the rights and powers vested in it by this Declaration, and use
the same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(b) No provision of this Declaration shall be construed to relieve the
Institutional Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and after the
curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Institutional Trustee shall
be determined solely by the express provisions of this
Declaration and the Institutional Trustee shall not be liable
except for the performance of such duties and obligations as
are specifically set forth in this Declaration, and no implied
covenants or obligations shall be read into this Declaration
against the Institutional Trustee; and
(B) in the absence of bad faith on the part of the Institutional
Trustee, the Institutional Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished
to the Institutional Trustee and conforming to the requirements
of this Declaration; but in the case of any such certificates
or opinions that by any provision hereof are specifically
required to be furnished to the Institutional Trustee, the
Institutional Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of
this Declaration;
(ii) the Institutional Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it
shall be proved that the Institutional Trustee was negligent in
ascertaining the pertinent facts;
(iii) the Institutional Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
Majority in liquidation amount of the Securities relating to
the time, method and place of conducting any proceeding for any
remedy available to the Institutional Trustee, or exercising
any trust or power conferred upon the Institutional Trustee
under this Declaration;
(iv) no provision of this Declaration shall require the
Institutional Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the performance
of any of its duties or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that
the repayment of such funds or liability is not reasonably
assured to it under the terms of this Declaration or adequate
indemnity against such risk is not reasonably assured to it;
(v) the Institutional Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the
Debentures and the Institutional Trustee Account shall be to
deal with such property in a similar manner as the
Institutional Trustee deals with similar property for its own
account, subject to the protections and limitations on
liability afforded to the Institutional Trustee under this
Declaration and the Trust Indenture Act;
(vi) the Institutional Trustee shall have no duty or liability for
or with respect to the value, genuineness, existence or
sufficiency of the Debentures or the payment of any taxes or
assessments levied thereon or in connection therewith;
(vii) the Institutional Trustee shall not be liable for any interest
on any money received by it except as it may otherwise agree
with the Sponsor. Money held by the Institutional Trustee need
not be segregated from other funds held by it except in
relation to the Institutional Trustee Account maintained by the
Institutional Trustee pursuant to Section 3.8(c)(i) and except
to the extent otherwise required by law; and
(viii) the Institutional Trustee shall not be responsible for
monitoring the compliance by the Regular Trustees or the
Sponsor with their respective duties under this Declaration,
nor shall the Institutional Trustee be liable for any default
or misconduct of the Regular Trustees or the Sponsor.
SECTION 3.10 Certain Rights of the Institutional Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Institutional Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, debenture or other paper or
document believed by it to be genuine and to have been signed,
sent or presented by the proper party or parties;
(ii) any direction or act of the Sponsor or the Regular Trustees
contemplated by this Declaration shall be sufficiently
evidenced by an Officers' Certificate;
(iii) whenever in the administration of this Declaration, the
Institutional Trustee shall deem it desirable that a matter be
proved or established before taking, suffering or omitting any
action hereunder, the Institutional Trustee (unless other
evidence is herein specifically prescribed) may, in the absence
of bad faith on its part, request and conclusively rely upon an
Officers' Certificate which, upon receipt of such request,
shall be promptly delivered by the Sponsor or the Regular
Trustees;
(iv) the Institutional Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including
any financing or continuation statement or any filing under tax
or securities laws) or any rerecording, refiling or
registration thereof;
(v) the Institutional Trustee may consult with counsel or other
experts 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, which counsel may be
counsel to the Sponsor or any of its Affiliates, and may
include any of its employees. The Institutional Trustee shall
have the right at any time to seek instructions concerning the
administration of this Declaration from any court of competent
jurisdiction;
(vi) the Institutional Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Declaration at the request, order or direction of any Holder,
unless such Holder shall have provided to the Institutional
Trustee reasonable security and indemnity against the costs,
expenses (including attorneys' fees and expenses and the
expenses of the Institutional Trustee's agents, nominees or
custodians) and liabilities that might be incurred by it in
complying with such request or direction, including such
reasonable advances as may be requested by the Institutional
Trustee provided, that, nothing contained in this Section
3.10(a)(vi) shall be taken to relieve the Institutional
Trustee, upon the occurrence of an Event of Default, of its
obligation to exercise the rights and powers vested in it by
this Declaration;
(vii) the Institutional Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond,
debenture, coupon or other paper or document, but the
Institutional Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may
see fit;
(viii) the Institutional Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents, custodians, nominees or
attorneys and the Institutional Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder;
(ix) any action taken by the Institutional Trustee or its agents
hereunder shall bind the Trust and the Holders; and the
signature of the Institutional Trustee or its agents alone
shall be sufficient and effective to perform any such action
and no third party shall be required to inquire as to the
authority of the Institutional Trustee to so act or as to its
compliance with any of the terms and provisions of this
Declaration, both of which shall be conclusively evidenced by
the Institutional Trustee's or its agent's taking such action;
(x) whenever in the administration of this Declaration the
Institutional Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or
taking any other action hereunder, the Institutional Trustee
(i) may request instructions from the Holders which
instructions may only be given by the Holders of the same
proportion in liquidation amount of the Securities as would be
entitled to direct the Institutional Trustee under the terms of
the Securities in respect of such remedy, right or action, (ii)
may refrain from enforcing such remedy or right or taking such
other action until such instructions are received, and (iii)
shall be protected in conclusively relying on or acting in or
accordance with such instructions; and
(xi) except as otherwise expressly provided by this Declaration, the
Institutional Trustee shall not be under any obligation to take
any action that is discretionary under the provisions of this
Declaration.
(b) No provision of this Declaration shall be deemed to impose any duty or
obligation on the Institutional Trustee to perform any act or acts or exercise
any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Institutional Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Institutional
Trustee shall be construed to be a duty.
SECTION 3.11 Delaware Trustee.
Notwithstanding any other provision of this Declaration other than Section
5.2, the Delaware Trustee shall not be entitled to exercise any powers, nor
shall the Delaware Trustee have any of the duties and responsibilities of the
Regular Trustees or the Institutional Trustee described in this Declaration.
Except as set forth in Section 5.2, the Delaware Trustee shall be a Trustee for
the sole and limited purpose of fulfilling the requirements of Section 3807 of
the Business Trust Act. Notwithstanding anything herein to the contrary, the
Delaware Trustee shall not be liable for the acts or omissions to act of the
Trust or of the Regular Trustees except such acts as the Delaware Trustee is
expressly obligated or authorized to undertake under this Declaration or the
Business Trust Act and except for the gross negligence or willful misconduct of
the Delaware Trustee.
SECTION 3.12 Execution of Documents.
Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act or applicable law, any one of the
Regular Trustees is authorized to execute on behalf of the Trust any documents
which the Regular Trustees have the power and authority to execute pursuant to
Section 3.6.
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this Declaration and the Securities shall be
taken as the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as to
the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this
Declaration or the Securities.
SECTION 3.14 Duration of Trust.
The Trust, unless terminated pursuant to the provisions of Article VIII
hereof, shall have existence until February 4, 2051.
SECTION 3.15 Mergers.
(a) The Trust may not consolidate, amalgamate, merge with or into, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body, except as
described in Section 3.15(b) and (c).
(b) The Trust may, with the consent of the Regular Trustees or, if there
are more than two, a majority of the Regular Trustees, and without the consent
of the Holders, the Institutional Trustee or the Delaware Trustee, consolidate,
amalgamate, merge with or into, or be replaced by a trust organized as such
under the laws of any State of the United States; provided that:
(i) if the Trust is not the survivor, such successor entity (the
"Successor Entity") either:
(A) expressly assumes all of the obligations of the Trust under the
Securities; or
(B) substitutes for the Preferred Securities other securities
having substantially the same terms as the Preferred Securities
(the "Successor Securities") so long as the Successor
Securities rank the same as the Preferred Securities rank with
respect to Distributions and payments upon liquidation,
redemption and otherwise;
(ii) the Debenture Issuer expressly acknowledges a trustee of the
Successor Entity that possesses the same powers and duties as
the Institutional Trustee as the holder of the Debentures;
(iii) the Preferred Securities or any Successor Securities are
listed, or any Successor Securities will be listed upon
notification of issuance, on any national securities exchange
or with another organization on which the Preferred Securities
are then listed or quoted;
(iv) such merger, consolidation, amalgamation or replacement does
not cause the Preferred Securities (including any Successor
Securities) to be downgraded by any nationally recognized
statistical rating organization;
(v) such merger, consolidation, amalgamation or replacement does
not adversely affect the rights, preferences and privileges of
the Holders (including any Successor Securities) in any
material respect (other than with respect to any dilution of
such Holders' interests in the Successor Entity);
(vi) such Successor Entity has a purpose identical to that of the
Trust;
(vii) prior to such merger, consolidation, amalgamation or
replacement, the Debenture Issuer has received an opinion of a
nationally recognized independent counsel to the Trust
experienced in such matters to the effect that:
(A) such merger, consolidation, amalgamation or replacement does
not adversely affect the rights, preferences and privileges of
the Holders (including any Successor Securities) in any
material respect (other than with respect to any dilution of
the Holders' interest in the Successor Entity); and
(B) following such merger, consolidation, amalgamation or
replacement, neither the Trust nor the Successor Entity will be
required to register as an Investment Company; and
(C) following such merger, consolidation, amalgamation or
replacement, the Trust (or the Successor Entity) will be
treated as a grantor trust for United States federal income tax
purposes; and
(viii) the Sponsor guarantees the obligations of such Successor Entity
under the Successor Securities at least to the extent provided
by the Preferred Securities Guarantee and the Common Securities
Guarantee.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except with the
consent of Holders of 100% in liquidation amount of the Securities, consolidate,
amalgamate, merge with or into, or be replaced by any other entity or permit any
other entity to consolidate, amalgamate, merge with or into, or replace it, if
such consolidation, amalgamation, merger or replacement would cause the Trust or
Successor Entity to be classified as other than a grantor trust for United
States federal income tax purposes.
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities.
On the Closing Date the Sponsor will purchase all of the Common Securities
issued by the Trust, in an amount at least equal to 3% of the total capital of
the Trust, at the same time as the Preferred Securities are issued in exchange
for Depositary Shares in the Offer.
SECTION 4.2 Responsibilities of the Sponsor.
In connection with the issue and sale of the Preferred Securities, the
Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) to prepare for filing by the Trust with the Commission one or more
registration statements on Form S-4 in relation to the Preferred Securities,
including any amendments thereto;
(b) to determine the states in which to take appropriate action to qualify
or register for sale all or part of the Preferred Securities and to do any and
all such acts, other than actions which must be taken by the Trust, and advise
the Trust of actions it must take, and prepare for execution and filing any
documents to be executed and filed by the Trust, as the Sponsor deems necessary
or advisable in order to comply with the applicable laws of any such states;
(c) to prepare for filing by the Trust an application to the NYSE, Inc. or
any other national stock exchange or the NASDAQ National Market for listing or
quotation upon notice of issuance of the Preferred Securities;
(d) to prepare for filing by the Trust with the Commission a registration
statement on Form 8-A relating to the registration of the Preferred Securities
under Section 12(b) of the Exchange Act, including any amendments thereto; and
(e) to negotiate the terms of the Dealer Manager Agreement providing for
the exchange of the Preferred Securities.
SECTION 4.3 Right to Proceed.
The Sponsor acknowledges the rights of the Holders to institute a Direct
Action as set forth in Section 3.8(e) hereto.
SECTION 4.4 Expenses.
In connection with the offering, sale and issuance of the Debentures to the
Institutional Trustee and in connection with the issuance of the Securities by
the Trust, the Debenture Issuer, in its capacity as borrower with respect to the
Debentures, shall:
(a) pay all costs and expenses relating to the offering, sale and issuance
of the Debentures, including fees to the dealer managers payable pursuant to the
Dealer Manager Agreement, and compensation of the Debt Trustee under the
Indenture in accordance with the provisions of Section 6.06 of the Indenture;
(b) be responsible and shall pay all debts and obligations (other than with
respect to the Securities) and all costs and expenses of the Trust (including,
but not limited to, costs and expenses relating to the organization, maintenance
and dissolution of the Trust, the offer, sale and issuance of the Securities
(including fees to the dealer managers in connection therewith), the fees and
expenses (including reasonable counsel fees and expenses) of the Institutional
Trustee, the Delaware Trustee and the Regular Trustees (including any amounts
payable under Article X of this Declaration), the costs and expenses relating to
the operation of the Trust, including, without limitation, costs and expenses of
accountants, attorneys, statistical or bookkeeping services, expenses for
printing and engraving and computing or accounting equipment, paying agent(s),
registrar(s), transfer agent(s), duplicating, travel and telephone and other
telecommunications expenses and costs and expenses incurred in connection with
the acquisition, financing and disposition of Trust assets and the enforcement
by the Institutional Trustee of the rights of Holders of the Preferred
Securities);
(c) be primarily liable for any indemnification obligations arising with
respect to this Declaration; and
(d) pay any and all taxes (other than United States withholding taxes
attributable to the Trust or its assets) and all liabilities, costs and expenses
with respect to such taxes of the Trust.
The Debenture Issuer's obligations under this Section 4.4 shall be for the
benefit of, and shall be enforceable by, any person to whom such debts,
obligations, costs, expenses and taxes are owed (a "Creditor") whether or not
such Creditor has received notice hereof. Any such Creditor may enforce the
Debenture Issuer's obligations under this Section 4.4 directly against the
Debenture Issuer and the Debenture Issuer irrevocably waives any right of remedy
to require that any such Creditor take any action against the Trust or any other
Person before proceeding against the Debenture Issuer. The Debenture Issuer
agrees to execute such additional agreements as may be necessary or desirable in
order to give full effect to the provisions of this Section 4.4.
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees.
(a) The number of Trustees initially shall be five. At any time before the
issuance of any Securities, the Sponsor may, by written instrument, increase or
decrease the number of Trustees. After the issuance of any Securities, the
number of Trustees may be increased or decreased by vote of the Holders of a
majority in liquidation amount of the Common Securities voting as a class at a
meeting of the Holders of the Common Securities; provided, however, that, the
number of Trustees shall in no event be less than two; and provided further that
(i) one Trustee, in the case of a natural person, shall be a person who is a
resident of the State of Delaware or that, if not a natural person, is an entity
which has its principal place of business in the State of Delaware (the
"Delaware Trustee"); (ii) there shall be at least one Trustee who is an employee
or officer of, or is affiliated with the Sponsor (a "Regular Trustee"); and
(iii) one Trustee shall be the Institutional Trustee for so long as this
Declaration is required to qualify as an indenture under the Trust Indenture
Act, and such Trustee may also serve as Delaware Trustee if it meets the
applicable requirements.
(b) Any action taken by Holders of Common Securities pursuant to this
Article V shall be taken at a meeting of Holders of Common Securities convened
for such purpose or by written consent of such Holders.
(c) Except as otherwise provided herein, no amendment may be made to this
Section 5.1 which would change any rights with respect to the number, existence
or appointment and removal of Trustees, except with the consent of each Holder
of Common Securities.
SECTION 5.2 Delaware Trustee.
If required by the Business Trust Act, one Trustee (the "Delaware Trustee")
shall be:
(a) a natural person who is a resident of the State of Delaware; or
(b) if not a natural person, an entity which has its principal place of
business in the State of Delaware, and otherwise meets the requirements of
applicable law, provided that, if the Institutional Trustee has its principal
place of business in the State of Delaware and otherwise meets the requirements
of applicable law, then the Institutional Trustee shall also be the Delaware
Trustee and Section 3.11 shall have no application.
The initial Delaware Trustee shall be First Chicago Delaware Inc., an
affiliate of the Institutional Trustee, until removed or replaced in accordance
with Section 5.6.
SECTION 5.3 Institutional Trustee; Eligibility.
(a) There shall at all times be one Trustee which shall act as
Institutional Trustee which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under the laws of
the United States of America or any State or Territory thereof
or of the District of Columbia, or a corporation or Person
permitted by the Commission to act as an institutional trustee
under the Trust Indenture Act, authorized under such laws to
exercise corporate trust powers, having a combined capital and
surplus of at least $50,000,000 (US), and subject to
supervision or examination by Federal, State, Territorial or
District of Columbia authority. If such corporation publishes
reports of condition at least annually, pursuant to law or to
the requirements of the supervising or examining authority
referred to above, then for the purposes of this Section
5.3(a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Institutional Trustee shall cease to be eligible to
so act under Section 5.3(a), the Institutional Trustee shall immediately resign
in the manner and with the effect set forth in Section 5.6(c).
(c) If the Institutional Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act or
becomes a creditor of the Sponsor during the time periods specified in Section
311 of the Trust Indenture Act, the Institutional Trustee and the Holder of the
Common Securities (as if it were the obligor referred to in Section 310(b) of
the Trust Indenture Act) shall in all respects comply with the provisions of
Section 310(b) and 311 of the Trust Indenture Act, as applicable.
(d) The Preferred Securities Guarantee shall be deemed to be specifically
described in this Declaration for purposes of clause (i) of the first provision
contained in Section 310(b) of the Trust Indenture Act.
(e) The initial Institutional Trustee shall be The First National Bank of
Chicago until removed or replaced in accordance with Section 5.6.
SECTION 5.4 Certain Qualifications of the Regular Trustees and Delaware
Trustee Generally.
Each Regular Trustee and the Delaware Trustee (unless the Institutional
Trustee also acts as Delaware Trustee) shall be either a natural person who is
at least 21 years of age or a legal entity that shall act through one or more
Authorized Officers.
SECTION 5.5 Regular Trustees.
The initial Regular Trustees shall be Eugene M. McQuade, Douglas L. Jacobs
and John R. Rodehorst.
(a) Except as expressly set forth in this Declaration and except if a
meeting of the Regular Trustees is called with respect to any matter over which
the Regular Trustees have power to act, any power of the Regular Trustees may be
exercised by, or with the consent of, any one such Regular Trustee.
(b) Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act or applicable law, any one of the
Regular Trustees is authorized to execute on behalf of the Trust any documents
which the Regular Trustees have the power and authority to execute pursuant to
Section 3.6; and
(c) a Regular Trustee may, by power of attorney consistent with applicable
law, delegate to any other natural person over the age of 21 his or her power
for the purposes of signing any documents which the Regular Trustees have power
and authority to cause the Trust to execute pursuant to Section 3.6.
SECTION 5.6 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 5.6(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; and
(ii) after the issuance of any Securities, by vote of the Holders of
a Majority in liquidation amount of the Common Securities
voting as a class at a meeting of the Holders of the Common
Securities.
(b) (i) The Trustee that acts as Institutional Trustee shall not be
removed in accordance with Section 5.6(a) until a successor
institutional Trustee possessing the qualifications to act as
Institutional Trustee under Section 5.3(a) (a "Successor
Institutional Trustee") has been appointed and has accepted
such appointment by written instrument executed by such
Successor Institutional Trustee and delivered to the Regular
Trustees, the Sponsor and the Institutional Trustee being
removed; and
(ii) the Trustee that acts as Delaware Trustee shall not be removed
in accordance with this Section 5.6(a) until a successor
Trustee possessing the qualifications to act as Delaware
Trustee under Sections 5.2 and 5.4 (a "Successor Delaware
Trustee") has been appointed and has accepted such appointment
by written instrument executed by such Successor Delaware
Trustee and delivered to the Regular Trustees, the Sponsor and
the Delaware Trustee being removed.
(c) A Trustee appointed to office shall hold office until his successor
shall have been appointed or until his death, removal or resignation. Any
Trustee may resign from office (without need for prior or subsequent accounting)
by an instrument (a "Resignation Request") in writing signed by the Trustee and
delivered to the Sponsor and the Trust, which resignation shall take effect upon
such delivery or upon such later date as is specified therein; provided,
however, that:
(i) no such resignation of the Trustee that acts as the
Institutional Trustee shall be effective:
(A) until a Successor Institutional Trustee has been appointed and
has accepted such appointment by instrument executed by such
Successor Institutional Trustee and delivered to the Trust,
the Sponsor and the resigning Institutional Trustee; or
(B) until the assets of the Trust have been completely liquidated
and the proceeds thereof distributed to the holders of the
Securities; and
(ii) no such resignation of the Trustee that acts as the Delaware
Trustee shall be effective until a Successor Delaware Trustee
has been appointed and has accepted such appointment by
instrument executed by such Successor Delaware Trustee and
delivered to the Trust, the Sponsor and the resigning Delaware
Trustee.
(d) The Holders of the Common Securities shall use their best efforts to
promptly appoint a Successor Institutional Trustee or Successor Delaware Trustee
as the case may be if the Institutional Trustee or the Delaware Trustee delivers
a Resignation Request in accordance with this Section 5.6.
(e) If no Successor Institutional Trustee or Successor Delaware Trustee
shall have been appointed and accepted appointment as provided in this Section
5.6 within 60 days after delivery to the Sponsor and the Trust of a Resignation
Request, the resigning Institutional Trustee or Delaware Trustee, as applicable,
may petition any court of competent jurisdiction for appointment of a Successor
Institutional Trustee or Successor Delaware Trustee. Such court may thereupon,
after prescribing such notice, if any, as it may deem proper and prescribe,
appoint a Successor Institutional Trustee or Successor Delaware Trustee, as the
case may be.
(f) No Institutional Trustee or Delaware Trustee shall be liable for the
acts or omissions to act of any Successor Institutional Trustee or Successor
Delaware Trustee, as the case may be.
SECTION 5.7 Vacancies among Trustees.
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 5.1, or if the number of Trustees is
increased pursuant to Section 5.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by the Regular Trustees or, if there
are more than two, a majority of the Regular Trustees, shall be conclusive
evidence of the existence of such vacancy. The vacancy shall be filled with a
Trustee appointed in accordance with Section 5.6.
SECTION 5.8 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee shall
not operate to annul the Trust. Whenever a vacancy in the number of Regular
Trustees shall occur, until such vacancy is filled by the appointment of a
Regular Trustee in accordance with Section 5.6, the Regular Trustees in office,
regardless of their number, shall have all the powers granted to the Regular
Trustees and shall discharge all the duties imposed upon the Regular Trustees by
this Declaration.
SECTION 5.9 Meetings.
If there is more than one Regular Trustee, meetings of the Regular Trustees
shall be held from time to time upon the call of any Regular Trustee. Regular
meetings of the Regular Trustees may be held at a time and place fixed by
resolution of the Regular Trustees. Notice of any in-person meetings of the
Regular Trustees shall be hand delivered or otherwise delivered in writing
(including by facsimile, with a hard copy by overnight courier) not less than 48
hours before such meeting. Notice of any telephonic meetings of the Regular
Trustees or any committee thereof shall be hand delivered or otherwise delivered
in writing (including by facsimile, with a hard copy by overnight courier) not
less than 24 hours before a meeting. Notices shall contain a brief statement of
the time, place and anticipated purposes of the meeting. The presence (whether
in person or by telephone) of a Regular Trustee at a meeting shall constitute a
waiver of notice of such meeting except where a Regular Trustee attends a
meeting for the express purpose of objecting to the transaction of any activity
on the ground that the meeting has not been lawfully called or convened. Unless
provided otherwise in this Declaration, any action of the Regular Trustees may
be taken at a meeting by vote of a majority of the Regular Trustees present
(whether in person or by telephone) and eligible to vote with respect to such
matter, provided that a Quorum is present, or without a meeting by the unanimous
written consent of the Regular Trustees. In the event there is only one Regular
Trustee, any and all action of such Regular Trustee shall be evidenced by a
written consent of such Regular Trustee.
SECTION 5.10 Delegation of Power.
The Regular Trustees shall have power to delegate from time to time to such
of their number or to officers of the Trust the doing of such things and the
execution of such instruments either in the name of the Trust or the names of
the Regular Trustees or otherwise as the Regular Trustees may deem expedient, to
the extent such delegation is not prohibited by applicable law or contrary to
the provisions of the Trust, as set forth herein.
Section 5.11 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Institutional Trustee or the Delaware
Trustee, as the case may be, may be merged or converted or with which either may
be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Institutional Trustee or the Delaware Trustee, as the
case may be, shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Institutional Trustee or
the Delaware Trustee, as the case may be, shall be the successor of the
Institutional Trustee or the Delaware Trustee, as the case may be, hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions.
Holders shall receive Distributions (as defined herein) in accordance with
the applicable terms of the relevant Holder's Securities as set forth in Annex
I. If and to the extent that the Debenture Issuer makes a payment of interest
(including Compound Interest and Additional Interest), premium and/or principal
on the Debentures held by the Institutional Trustee (the amount of any such
payment being a "Payment Amount"), the Institutional Trustee shall and is
directed, to the extent funds are available for that purpose, to make a
distribution (a "Distribution") of the Payment Amount to Holders.
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.
(a) The Regular Trustees shall on behalf of the Trust issue one class of
preferred securities (the "Preferred Securities"), representing undivided
beneficial interests in the assets of the Trust having such terms as are set
forth in Annex I (which terms are incorporated by reference in, and made a part
of, this Declaration as if specifically set forth herein) and one class of
common securities (the "Common Securities"), representing undivided beneficial
interests in the assets of the Trust having such terms as are set forth in Annex
I (which terms are incorporated by reference in, and made a part of, this
Declaration as if specifically set forth herein). The Trust shall issue no
securities or other interests in the assets of the Trust other than the
Preferred Securities and the Common Securities. Each Security shall be dated the
date of its authentication.
(b) The Certificates shall be signed on behalf of the Trust by a Regular
Trustee. Such signature shall be the manual signature of any present or any
future Regular Trustee. Typographical and other minor errors or defects in any
such reproduction of any such signature shall not affect the validity of any
Security. In case any Regular Trustee of the Trust who shall have signed any of
the Securities shall cease to be such Regular Trustee before the Certificates so
signed shall be delivered by the Trust, such Certificates nevertheless may be
delivered as though the person who signed such Certificates had not ceased to be
such Regular Trustee; and any Certificate may be signed on behalf of the Trust
by such persons who, at the actual date of execution of such Security, shall be
the Regular Trustees of the Trust, although at the date of the execution and
delivery of the Declaration any such person was not such a Regular Trustee.
Certificates shall be printed, lithographed or engraved or may be produced in
any other manner as is reasonably acceptable to the Regular Trustees, as
evidenced by their execution thereof, and may have such letters, numbers or
other marks of identification or designation and such legends or endorsements as
the Regular Trustees may deem appropriate, or as may be required to comply with
any law or with any rule or regulation of any stock exchange on which Securities
may be listed, or to conform to usage. Pending the preparation of definitive
Certificates, the Regular Trustees on behalf of the Trust may execute and the
Institutional Trustee shall authenticate, temporary Certificates (printed,
lithographed or typewritten), substantially in the form of the definitive
Certificates in lieu of which they are issued, but with such omissions,
insertions and variations as may be appropriate for temporary Certificates all
as may be determined by the Regular Trustees on behalf of the Trust upon the
same conditions and in substantially the same manner, and with like effect, as
definitive Certificates. Without unnecessary delay, the Regular Trustees on
behalf of the Trust will execute and furnish and the Institutional Trustee shall
authenticate, definitive Certificates and thereupon any or all temporary
Certificates may be surrendered to the transfer agent and registrar in exchange
therefor (without charge to the Holders).
(c) A Security shall not be valid until authenticated by the manual
signature of an authorized signatory of the Institutional Trustee. The signature
shall be conclusive evidence that the Security has been authenticated under this
Declaration.
The Institutional Trustee may appoint an authenticating agent acceptable to
the Trust to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Institutional Trustee may do so. Each reference in this
Declaration to authentication by the Institutional Trustee includes
authentication by such agent. An authenticating agent has the same rights as the
Institutional Trustee to deal with the Sponsor or an Affiliate, and may itself
be an Affiliate of the Trust or a Related Party of the Sponsor. The
Institutional Trustee hereby appoints Fleet National Bank to initially act as
authenticating agent for the Securities.
(d) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(e) Upon issuance of the Securities as provided in this Declaration, the
Securities so issued shall be deemed to be validly issued, fully paid and
non-assessable.
(f) Every Person, by virtue of having become a Holder or a Preferred
Security Beneficial Owner in accordance with the terms of this Declaration,
shall be deemed to have expressly assented and agreed to the terms of, and shall
be bound by, this Declaration.
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1 Termination of Trust.
(a) The Declaration and the Trust shall terminate and be of no further
force or effect:
(i) on February 4, 2051, the expiration of the term of the Trust;
(ii) upon the bankruptcy of the Sponsor or the Trust;
(iii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor, the filing of a
certificate of cancellation with respect to the Trust after
having obtained the consent of the Holders of at least a
Majority in liquidation amount of the Securities voting
together as a single class to file such certificate of
cancellation, or the revocation of the Sponsor's charter and
the expiration of 90 days after the date of revocation without
a reinstatement thereof;
(iv) upon the entry of a decree of judicial dissolution of the
Holder of the Common Securities, the Sponsor or the Trust;
(v) when all of the Securities shall have been called for
redemption and the amounts necessary for redemption thereof,
including any Additional Interest or Compound Interest, shall
have been paid to the Holders in accordance with the terms of
the Securities;
(vi) upon the distribution of all of the Debentures to the Holders
in exchange for all of the Securities in accordance with the
terms of the Securities; or
(vii) before the issuance of any Securities, with the consent of all
of the Regular Trustees and the Sponsor.
(b) As soon as is practicable after the occurrence of an event referred to
in Section 8.1(a), the Trustees shall file a certificate of cancellation with
the Secretary of State of the State of Delaware.
(c) The provisions of Section 3.9 and Article X shall survive the
termination of the Trust.
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities.
(a) Securities may only be transferred, in whole or in part, in accordance
with the terms and conditions set forth in this Declaration and in the terms of
the Securities. Any transfer or purported transfer of any Security not made in
accordance with this Declaration shall be null and void.
(b) Subject to this Article IX, Preferred Securities shall be freely
transferable.
(c) The Sponsor may not transfer the Common Securities.
SECTION 9.2 Transfer of Certificates.
(a) The Regular Trustees shall provide for the registration of Certificates
and of transfers of Certificates, which will be effected without charge but only
upon payment (with such indemnity as the Regular Trustees may require) in
respect of any tax or other government charges that may be imposed in relation
to it. Upon surrender for registration of transfer of any Certificate, the
Regular Trustees shall cause one or more new Certificates to be issued and
authenticated by the Institutional Trustee in the name of the designated
transferee or transferees. Every Certificate surrendered for registration of
transfer shall be accompanied by a written instrument of transfer in form
satisfactory to the Regular Trustees duly executed by the Holder or such
Holder's attorney duly authorized in writing. Each Certificate surrendered for
registration of transfer shall be canceled by the Regular Trustees. A transferee
of a Certificate shall be entitled to the rights and subject to the obligations
of a Holder hereunder upon the receipt by such transferee of a Certificate. By
acceptance of a Certificate, each transferee shall be deemed to have agreed to
be bound by this Declaration.
(b) Upon receipt by the Institutional Trustee of a Definitive Preferred
Security Certificate, duly endorsed or accompanied by appropriate instruments of
transfer, in form satisfactory to the Institutional Trustee, requesting transfer
of such Definitive Preferred Security Certificate for a beneficial interest in a
Global Certificate, the Institutional Trustee shall cancel such Definitive
Preferred Security Certificate and cause, or direct the Depository Institution
to cause, the aggregate number of Preferred Securities represented by the
appropriate Global Certificate to be increased accordingly. If no Global
Certificates are then outstanding, the Trust shall issue and the Institutional
Trustee shall authenticate, upon written order of any Regular Trustee, an
appropriate number of Preferred Securities in global form.
(c) Upon receipt by the Institutional Trustee from the Depository
Institution or its nominee on behalf of any Person having a beneficial interest
in a Global Certificate of written instructions or such other form of
instructions as is customary for the Depository Institution or the person
designated by the Depository Institution, requesting transfer of a beneficial
interest in a Global Certificate for a Definitive Preferred Security
Certificate, then the Institutional Trustee or the securities custodian, at the
direction of the Institutional Trustee, will cause, in accordance with the
standing instructions and procedures existing between the Depository Institution
and the securities custodian, the aggregate principal amount of the Global
Certificate to be reduced on its books and records and, following such
reduction, the Trust will execute and the Institutional Trustee will
authenticate and deliver to the transferee a Definitive Preferred Security
Certificate.
Definitive Preferred Security Certificates issued in exchange for a
beneficial interest in a Global Certificate shall be registered in such names
and in such authorized denominations as the Depository Institution, pursuant to
instructions from its Depository Institution Participants or indirect
participants or otherwise, shall instruct the Institutional Trustee. The
Institutional Trustee shall deliver such Preferred Securities to the persons in
whose names such Preferred Securities are so registered in accordance with the
instructions of the Depository Institution.
(d) Notwithstanding any other provisions of this Declaration, a Global
Certificate may not be transferred as a whole except by the Depository
Institution to a nominee of the Depository Institution or another nominee of the
Depository Institution or by the Depository Institution or any such nominee to a
successor Depository Institution or a nominee of such successor Depository
Institution.
(e) The Institutional Trustee may appoint a transfer agent and registrar
("Transfer Agent") acceptable to the Trust to perform the functions set forth in
this Section 9.2. The Transfer Agent may perform such functions whenever the
Institutional Trustee may do so. Each reference in this Declaration to
registration and transfer of Preferred Securities by the Institutional Trustee
includes such activities by the Transfer Agent. The Transfer Agent has the same
rights as the Institutional Trustee to deal with the Sponsor or an Affiliate,
and itself may be the Trust, an Affiliate of the Trust or a Related Party of the
Sponsor. The Institutional Trustee hereby appoints Fleet National Bank to
initially act as Transfer Agent for the Preferred Securities.
SECTION 9.3 Deemed Security Holders.
The Trustees may treat the Person in whose name any Certificate shall be
registered on the books and records of the Trust as the sole holder of such
Certificate and of the Securities represented by such Certificate for purposes
of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such Certificate or in the Securities represented by such
Certificate on the part of any Person, whether or not the Trust shall have
actual or other notice thereof.
SECTION 9.4 Book-Entry Interests.
The Preferred Securities Certificates, on original issuance, will be
executed and issued by the Trust and authenticated by the Institutional Trustee
either (i) in the form of one or more, fully-registered, global Preferred
Security Certificates (each a "Global Certificate"), to be delivered to DTC, the
initial Depository Institution, by, or on behalf of, the Trust to those
tendering holders of Depositary Shares held in global form or (ii) in
certificated form (the "Definitive Preferred Security Certificates") to be held
directly by the Holder to those tendering holders of Depositary Shares held
directly in certificated form. Investors may elect to hold their Preferred
Securities directly or hold their interest through a Global Certificate. Global
Certificates shall initially be registered on the books and records of the Trust
in the name of DTC or its nominee. With respect to Preferred Security Beneficial
Owners holding their interest in Preferred Securities pursuant to a Global
Certificate:
(a) the Trust and the Trustees shall be entitled to deal with the
Depository Institution, with respect to such Preferred Security Beneficial
Owners, for all purposes of this Declaration (including the payment of
Distributions on the Global Certificates and receiving approvals, votes or
consents hereunder) as the Holder of such Preferred Securities and the sole
holder of the Global Certificates and shall have no obligation to such Preferred
Security Beneficial Owners;
(b) 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
(c) the rights of such Preferred Security Beneficial Owners shall be
exercised only through the Depository Institution and shall be limited to those
established by law and agreements between such Preferred Security Beneficial
Owners and the Depository Institution and/or the Depository Institution
Participants. The Depository Institution will make book-entry transfers among
the Depository Institution Participants and receive and transmit payments of
Distributions on the Global Certificates to such Depository Institution
Participants.
Depository Institution Participants shall have no rights under this
Declaration with respect to any Global Certificate held on their behalf by the
Depository Institution or by the Institutional Trustee as the custodian of the
Depository Institution or under such Global Certificate, and the Depository
Institution may be treated by the Trust, the Institutional Trustee and any agent
of the Trust or the Institutional Trustee as the absolute owner of such Global
Certificate for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Trust, the Institutional Trustee or any agent of the
Trust or the Institutional Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depository
Institution or impair, as between the Depository Institution and its Depository
Institution Participants, the operation of customary practices of such
Depository Institution governing the exercise of the rights of a holder of a
beneficial interest in any Global Certificate.
At such time as all beneficial interests in a Global Certificate have
either been exchanged for Definitive Preferred Security Certificates to the
extent permitted by this Declaration or redeemed, repurchased or canceled in
accordance with the terms of this Declaration, such Global Certificate shall be
returned to the Depository Institution for cancellation or retained and canceled
by the Institutional Trustee. At any time prior to such cancellation, if any
beneficial interest in a Global Certificate is exchanged for Definitive
Preferred Security Certificates, or if Definitive Preferred Security
Certificates are exchanged for a beneficial interest in a Global Certificate,
Preferred Securities represented by such Global Certificate shall be reduced or
increased and an adjustment shall be made on the books and records of the
Institutional Trustee (if it is then the securities custodian for such Global
Certificate) with respect to such Global Certificate, by the Institutional
Trustee or the securities custodian, to reflect such reduction or increase.
SECTION 9.5 Notices to Depository Institution.
Whenever a notice or other communication to the Preferred Security Holders
is required under this Declaration, unless and until Definitive Preferred
Security Certificates shall have been issued to the Preferred Security
Beneficial Owners pursuant to Sections 9.2, 9.4 or 9.7, the Regular Trustees
shall give all such notices and communications specified herein to be given to
the Preferred Security Holders to the Depository Institution, and shall have no
notice obligations to the Preferred Security Beneficial Owners.
SECTION 9.6 Appointment of Successor Depository Institution.
If any Depository Institution elects to discontinue its services as
securities depositary with respect to the Preferred Securities, the Regular
Trustees may, in their sole discretion, appoint a successor Depository
Institution with respect to such Preferred Securities.
SECTION 9.7 Definitive Preferred Security Certificates.
If:
(a) a Depository Institution elects to discontinue its services as
securities depositary with respect to the Preferred Securities and a successor
Depository Institution is not appointed within 90 days after such discontinuance
pursuant to Section 9.6; or
(b) the Regular Trustees elect after consultation with the Sponsor to
terminate the book-entry system through the Depository Institution with respect
to the Preferred Securities; or
(c) there shall have occurred a Declaration Event of Default,
then:
(d) Definitive Preferred Security Certificates shall be prepared by the
Regular Trustees on behalf of the Trust with respect to such Preferred
Securities; and
(e) upon surrender of the Global Certificates by the Depository
Institution, accompanied by registration instructions, the Regular Trustees
shall cause Definitive Preferred Security Certificates to be delivered to
Preferred Security Beneficial Owners in accordance with the instructions of the
Depository Institution. Neither the Trustees nor the Trust shall be liable for
any delay in delivery of such instructions and each of them may conclusively
rely on and shall be protected in relying on, said instructions of the
Depository Institution. The Definitive Preferred Security Certificates shall be
printed, lithographed or engraved or may be produced in any other manner as is
reasonably acceptable to the Regular Trustees, as evidenced by their execution
thereof, and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements as the Regular Trustees may deem
appropriate, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which Preferred Securities may be listed, or to conform to usage.
SECTION 9.8 Mutilated, Destroyed, Lost or Stolen Certificates.
If:
(a) any mutilated Certificates should be surrendered to the Regular
Trustees, or if the Regular Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Regular Trustees, the Institutional
Trustee or any authenticating agent such security or indemnity as may be
required by them to keep each of them harmless,
then, in the absence of notice that such Certificate shall have been acquired by
a bona fide purchaser, any Regular Trustee on behalf of the Trust shall execute
and deliver and the Institutional Trustee shall authenticate, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like denomination. In connection with the issuance of any new
Certificate under this Section 9.8, the Regular Trustees may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection therewith. Any duplicate Certificate issued pursuant to
this Section shall constitute conclusive evidence of an ownership interest in
the relevant Securities, as if originally issued, whether or not the lost,
stolen or destroyed Certificate shall be found at any time.
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability.
(a) Except as expressly set forth in this Declaration, the Securities
Guarantees and the terms of the Securities, the Sponsor shall not be:
(i) personally liable for the return of any portion of the capital
contributions (or any return thereon) of the Holders which
shall be made solely from assets of the Trust; and
(ii) be required to pay to the Trust or to any Holder any deficit
upon dissolution of the Trust or otherwise.
(b) The Debenture Issuer shall be liable for all of the debts and
obligations of the Trust (other than payments of distributions, if any, with
respect to the Securities) to the extent not satisfied out of the Trust's
assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the Holders
shall be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.
SECTION 10.2 Exculpation.
(a) No Indemnified Person shall be liable, responsible or accountable in
damages or otherwise to the Trust or any Covered Person for any loss, damage or
claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's gross negligence or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good faith
upon the records of the Trust and upon such information, opinions, reports or
statements presented to the Trust by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Trust, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which Distributions to
Holders might properly be paid.
SECTION 10.3 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to any other Covered Person for
its good faith reliance on the provisions of this Declaration. The provisions of
this Declaration, to the extent that they restrict the duties and liabilities of
an Indemnified Person otherwise existing at law or in equity (other than the
duties imposed on the Institutional Trustee under the Trust Indenture Act), are
agreed by the parties hereto to replace such other duties and liabilities of
such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between an
Indemnified Person and any Covered Persons; or
(ii) whenever this Declaration or any other agreement contemplated
herein or therein provides that an Indemnified Person shall act
in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any Holder,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is permitted or
required to make a decision:
(i) in its "discretion" or under a grant of similar authority, the
Indemnified Person shall be entitled to consider such interests
and factors as it desires, including its own interests, and
shall have no duty or obligation to give any consideration to
any interest of or factors affecting the Trust or any other
Person; or
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and
shall not be subject to any other or different standard imposed
by this Declaration or by applicable law.
SECTION 10.4 Indemnification.
(a) (i) The Debenture Issuer shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is
a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action
by or in the right of the Trust) by reason of the fact that he
is or was a Company Indemnified Person against expenses
(including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in
good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the Trust, and, with
respect to any criminal action or proceeding, had no reasonable
cause to believe his conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the
Company Indemnified Person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to
the best interests of the Trust, and, with respect to any
criminal action or proceeding, had reasonable cause to believe
that his conduct was unlawful.
(ii) The Debenture Issuer shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is
a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the
Trust to procure a judgment in its favor by reason of the fact
that he is or was a Company Indemnified Person against expenses
(including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action
or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
Trust and except that no such indemnification shall be made in
respect of any claim, issue or matter as to which such Company
Indemnified Person shall have been adjudged to be liable to the
Trust unless and only to the extent that the Court of Chancery
of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which such Court of Chancery or
such other court shall deem proper.
(iii) To the extent that a Company Indemnified Person shall be
successful on the merits or otherwise (including dismissal of
an action without prejudice or the settlement of an action
without admission of liability) in defense of any action, suit
or proceeding referred to in paragraphs (i) and (ii) of this
Section 10.4(a), or in defense of any claim, issue or matter
therein, he shall be indemnified, to the full extent permitted
by law, against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii) of this
Section 10.4(a) (unless ordered by a court) shall be made by
the Debenture Issuer only as authorized in the specific case
upon a determination that indemnification of the Company
Indemnified Person is proper in the circumstances because he
has met the applicable standard of conduct set forth in
paragraphs (i) and (ii). Such determination shall be made (1)
by the Regular Trustees by a majority vote of a quorum
consisting of such Regular Trustees who were not parties to
such action, suit or proceeding, (2) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of
disinterested Regular Trustees so directs, by independent legal
counsel in a written opinion, or (3) by the Common Security
Holder of the Trust.
(v) Expenses (including attorneys' fees) incurred by a Company
Indemnified Person in defending a civil, criminal,
administrative or investigative action, suit or proceeding
referred to in paragraphs (i) and (ii) of this Section 10.4(a)
shall be paid by the Debenture Issuer in advance of the final
disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of such Company Indemnified
Person to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the
Debenture Issuer as authorized in this Section 10.4(a).
Notwithstanding the foregoing, no advance shall be made by the
Debenture Issuer if a determination is reasonably and promptly
made (i) by the Regular Trustees by a majority vote of a quorum
of disinterested Regular Trustees, (ii) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of
disinterested Regular Trustees so directs, by independent legal
counsel in a written opinion or (iii) by the Debenture Issuer,
that, based upon the facts known to the Regular Trustees,
counsel or the Debenture Issuer, as the case may be, at the
time such determination is made, such Company Indemnified
Person acted in bad faith or in a manner that such person did
not believe to be in or not opposed to the best interests of
the Trust, or, with respect to any criminal proceeding, that
such Company Indemnified Person believed or had reasonable
cause to believe his conduct was unlawful. In no event shall
any advance be made in instances where the Regular Trustees,
independent legal counsel or Debenture Issuer reasonably
determine that such person deliberately breached his duty to
the Trust or its Holders.
(vi) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other paragraphs of this Section
10.4(a) shall not be deemed exclusive of any other rights to
which those seeking indemnification and advancement of expenses
may be entitled under any agreement, vote of stockholders or
disinterested directors of the Debenture Issuer or Preferred
Security Holders of the Trust or otherwise, both as to action
in his official capacity and as to action in another capacity
while holding such office. All rights to indemnification under
this Section 10.4(a) shall be deemed to be provided by a
contract between the Debenture Issuer and each Company
Indemnified Person who serves in such capacity at any time
while this Section 10.4(a) is in effect. Any repeal or
modification of this Section 10.4(a) shall not affect any
rights or obligations then existing.
(vii) The Debenture Issuer or the Trust may purchase and maintain
insurance on behalf of any person who is or was a Company
Indemnified Person against any liability asserted against him
and incurred by him in any such capacity, or arising out of his
status as such, whether or not the Debenture Issuer would have
the power to indemnify him against such liability under the
provisions of this Section 10.4(a).
(viii) For purposes of this Section 10.4(a), references to "the Trust"
shall include, in addition to the resulting or surviving
entity, any constituent entity (including any constituent of a
constituent) absorbed in a consolidation or merger, so that any
person who is or was a director, trustee, officer or employee
of such constituent entity, or is or was serving at the request
of such constituent entity as a director, trustee, officer,
employee or agent of another entity, shall stand in the same
position under the provisions of this Section 10.4(a) with
respect to the resulting or surviving entity as he would have
with respect to such constituent entity if its separate
existence had continued.
(ix) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section 10.4(a) shall, unless
otherwise provided when authorized or ratified, continue as to
a person who has ceased to be a Company Indemnified Person and
shall inure to the benefit of the heirs, executors and
administrators of such a person.
(b) The Debenture Issuer agrees to indemnify the (i) Institutional Trustee,
(ii) the Delaware Trustee, (iii) any Affiliate of the Institutional Trustee and
the Delaware Trustee, and (iv) any officers, directors, shareholders, members,
partners, employees, representatives, custodians, nominees or agents of the
Institutional Trustee and the Delaware Trustee (each of the Persons in (i)
through (iv) being referred to as a "Fiduciary Indemnified Person") for, and to
hold each Fiduciary Indemnified Person harmless against, any 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 10.4(b)
shall survive the satisfaction and discharge of this Declaration.
SECTION 10.5 Outside Businesses.
Any Covered Person, the Sponsor, the Delaware Trustee and the Institutional
Trustee may engage in or possess an interest in other business ventures of any
nature or description, independently or with others, similar or dissimilar to
the business of the Trust, and the Trust and the Holders shall have no rights by
virtue of this Declaration in and to such independent ventures or the income or
profits derived therefrom, and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. No Covered Person, the Sponsor, the Delaware Trustee, or the
Institutional Trustee shall be obligated to present any particular investment or
other opportunity to the Trust even if such opportunity is of a character that,
if presented to the Trust, could be taken by the Trust, and any Covered Person,
the Sponsor, the Delaware Trustee and the Institutional Trustee shall have the
right to take for its own account (individually or as a partner or fiduciary) or
to recommend to others any such particular investment or other opportunity. Any
Covered Person, the Delaware Trustee and the Institutional Trustee may engage or
be interested in any financial or other transaction with the Sponsor or any
Affiliate of the Sponsor, or may act as depositary for, trustee or agent for, or
act on any committee or body of holders of, securities or other obligations of
the Sponsor or its Affiliates.
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the calendar year, or
such other year as is required by the Code.
SECTION 11.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the Regular Trustees
shall keep, or cause to be kept, full books of account, records and supporting
documents, which shall reflect in reasonable detail, each transaction of the
Trust. The books of account shall be maintained on the accrual method of
accounting, in accordance with generally accepted accounting principles,
consistently applied. The Trust shall use the accrual method of accounting for
United States federal income tax purposes. The books of account and the records
of the Trust shall be examined by and reported upon as of the end of each Fiscal
Year of the Trust by a firm of independent certified public accountants selected
by the Regular Trustees. The books and records of the Trust, together with a
copy of the Declaration and a certified copy of the Certificate of Trust, and
any amendment thereto shall at all times be maintained at the principal office
of the Trust and shall be open for inspection for any examination by any Holder
or its duly authorized representative for any purpose reasonably related to its
interest in the Trust during normal business hours.
(b) The Regular Trustees shall cause to be prepared and delivered to each
of the Holders, within 90 days after the end of each Fiscal Year of the Trust,
annual financial statements of the Trust, including a balance sheet of the Trust
as of the end of such Fiscal Year, and the related statements of income or loss;
(c) The Regular Trustees shall cause to be duly prepared and delivered to
each of the Holders, any annual United States federal income tax information
statement, required by the Code, containing such information with regard to the
Securities held by each Holder as is required by the Code and the Treasury
Regulations. Notwithstanding any right under the Code to deliver any such
statement at a later date, the Regular Trustees shall endeavor to deliver all
such statements within 30 days after the end of each Fiscal Year of the Trust.
(d) The Regular Trustees shall cause to be duly prepared and filed with the
appropriate taxing authority, an annual United States federal income tax return,
on a Form 1041 or such other form required by United States federal income tax
law, and any other annual income tax returns required to be filed by the Regular
Trustees on behalf of the Trust with any state or local taxing authority.
SECTION 11.3 Banking.
The Trust shall maintain one or more bank accounts in the name and for the
sole benefit of the Trust; provided, however, that all payments of funds in
respect of the Debentures held by the Institutional Trustee shall be made
directly to the Institutional Trustee Account and no other funds of the Trust
shall be deposited in the Institutional Trustee Account. The sole signatories
for such accounts shall be designated by the Regular Trustees; provided,
however, that the Institutional Trustee shall designate the signatories for the
Institutional Trustee Account.
SECTION 11.4 Withholding.
The Trust and the Regular Trustees shall comply with all withholding
requirements under United States federal, state and local law. The Trust shall
request, and the Holders shall provide to the Trust, such forms or certificates
as are necessary to establish an exemption from withholding with respect to each
Holder, and any representations and forms as shall reasonably be requested by
the Trust to assist it in determining the extent of, and in fulfilling, its
withholding obligations. The Regular Trustees shall file required forms with
applicable jurisdictions and, unless an exemption from withholding is properly
established by a Holder, shall remit amounts withheld with respect to the Holder
to applicable jurisdictions. To the extent that the Trust is required to
withhold and pay over any amounts to any authority with respect to distributions
or allocations to any Holder, the amount withheld shall be deemed to be a
distribution in the amount of the withholding to the Holder. In the event of any
claimed over withholding, Holders shall be limited to an action against the
applicable jurisdiction. If the amount required to be withheld was not withheld
from actual Distributions made, the Trust may reduce subsequent Distributions by
the amount of such withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments.
(a) Except as otherwise provided in this Declaration or by any applicable
terms of the Securities, this Declaration may only be amended by a written
instrument approved and executed by:
(i) the Regular Trustees (or, if there are more than two Regular
Trustees, a majority of the Regular Trustees);
(ii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Institutional Trustee, the
Institutional Trustee; and
(iii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, the Delaware
Trustee;
(b) No amendment shall be made, and any such purported amendment shall be
void and ineffective:
(i) unless, in the case of any proposed amendment, the
Institutional Trustee shall have first received an Officers'
Certificate from each of the Trust and the Sponsor that such
amendment is permitted by, and conforms to, the terms of this
Declaration (including the terms of the Securities);
(ii) unless, in the case of any proposed amendment which affects the
rights, powers, duties, obligations or immunities of the
Institutional Trustee, the Institutional Trustee shall have
first received:
(A) an Officers' Certificate from each of the Trust and the Sponsor
that such amendment is permitted by, and conforms to, the terms
of this Declaration (including the terms of the Securities);
and
(B) an opinion of counsel (who may be counsel to the Sponsor or the
Trust) that such amendment is permitted by, and conforms to,
the terms of this Declaration (including the terms of the
Securities); and
(iii) to the extent the result of such amendment would be to:
(A) cause the trust to fail to continue to be classified for
purposes of United States federal income taxation as a grantor
trust;
(B) reduce or otherwise adversely affect the powers of the
Institutional Trustee in contravention of the Trust Indenture
Act; or
(C) cause the Trust to be deemed to be an Investment Company
required to be registered under the Investment Company Act;
(c) At such time after the Trust has issued any Securities that remain
outstanding, any amendment that would adversely affect the rights, privileges or
preferences of any Holder may be effected only with such additional requirements
as may be set forth in the terms of such Securities;
(d) Sections 4.4, 9.1(c) and this Section 12.1 shall not be amended without
the consent of all of the Holders of the Securities;
(e) Article IV shall not be amended without the consent of the Holders of a
Majority in liquidation amount of the Common Securities and;
(f) The rights of the holders of the Common Securities under Article V to
increase or decrease the number of, and appoint and remove Trustees shall not be
amended without the consent of the Holders of a Majority in liquidation amount
of the Common Securities; and
(g) Notwithstanding Section 12.1(c), this Declaration may be amended
without the consent of the Holders to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this Declaration that
may be defective or inconsistent with any other provision of
this Declaration;
(iii) add to the covenants, restrictions or obligations of the
Sponsor;
(iv) conform to any change in Rule 3a-5 or written change in
interpretation or application of Rule 3a-5 by any legislative
body, court, government agency or regulatory authority which
amendment does not have a material adverse effect on the right,
preferences or privileges of the Holders; and
(v) preserve the status of the Trust as a grantor trust for federal
income tax purposes.
SECTION 12.2 Meetings of the Holders; Action by Written Consent.
(a) Meetings of the Holders of any class of Securities may be called at any
time by the Regular Trustees (or as provided in the terms of the Securities) to
consider and act on any matter on which Holders of such class of Securities are
entitled to act under the terms of this Declaration, the terms of the Securities
or the rules of any stock exchange on which the Preferred Securities are listed
or admitted for trading. The Regular Trustees shall call a meeting of the
Holders of such class if directed to do so by the Holders of at least 10% in
liquidation amount of such class of Securities. Such direction shall be given by
delivering to the Regular Trustees one or more calls in a writing stating that
the signing Holders wish to call a meeting and indicating the general or
specific purpose for which the meeting is to be called. Any Holders calling a
meeting shall specify in writing the Certificates held by the Holders exercising
the right to call a meeting and only those Securities specified shall be counted
for purposes of determining whether the required percentage set forth in the
second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the Securities,
the following provisions shall apply to meetings of Holders:
(i) notice of any such meeting shall be given to all the Holders
having a right to vote thereat at least 7 days and not more
than 60 days before the date of such meeting. Whenever a vote,
consent or approval of the Holders is permitted or required
under this Declaration or the rules of any stock exchange on
which the Preferred Securities are listed or admitted for
trading, such vote, consent or approval may be given at a
meeting of the Holders. Any action that may be taken at a
meeting of the Holders may be taken without a meeting if a
consent in writing setting forth the action so taken is signed
by the Holders owning not less than the minimum amount of
Securities in liquidation amount that would be necessary to
authorize or take such action at a meeting at which all Holders
having a right to vote thereon were present and voting. Prompt
notice of the taking of action without a meeting shall be given
to the Holders entitled to vote who have not consented in
writing. The Regular Trustees may specify that any written
ballot submitted to the Holders for the purpose of taking any
action without a meeting shall be returned to the Trust within
the time specified by the Regular Trustees;
(ii) each Holder may authorize any Person to act for it by proxy on
all matters in which a Holder is entitled to participate,
including waiving notice of any meeting, or voting or
participating at a meeting. No proxy shall be valid after the
expiration of 11 months from the date thereof unless otherwise
provided in the proxy. Every proxy shall be revocable at the
pleasure of the Holder executing it. Except as otherwise
provided herein, all matters relating to the giving, voting or
validity of proxies shall be governed by the General
Corporation Law of the State of Delaware relating to proxies,
and judicial interpretations thereunder, as if the Trust were a
Delaware corporation and the Holders were stockholders of a
Delaware corporation;
(iii) each meeting of the Holders shall be conducted by the Regular
Trustees or by such other Person that the Regular Trustees may
designate; and
(iv) unless the Business Trust Act, this Declaration, the terms of
the Securities, the Trust Indenture Act or the listing rules of
any stock exchange on which the Preferred Securities are then
listed or trading, otherwise provides, the Regular Trustees, in
their sole discretion, shall establish all other provisions
relating to meetings of Holders, including notice of the time,
place or purpose of any meeting at which any matter is to be
voted on by any Holders, waiver of any such notice, action by
consent without a meeting, the establishment of a record date,
quorum requirements, voting in person or by proxy or any other
matter with respect to the exercise of any such right to vote.
ARTICLE XIII
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Institutional Trustee.
The Trustee that acts as initial Institutional Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Institutional Trustee represents and warrants to the Trust and
the Sponsor at the time of the Successor Institutional Trustee's acceptance of
its appointment as Institutional Trustee that:
(a) the Institutional Trustee is a national banking association with trust
powers, duly organized, validly existing and in good standing under the laws of
the United States, with trust power and authority to execute and deliver, and to
carry out and perform its obligations under the terms of, this Declaration;
(b) the execution, delivery and performance by the Institutional Trustee of
this Declaration has been duly authorized by all necessary corporate action on
the part of the Institutional Trustee. This Declaration has been duly executed
and delivered by the Institutional Trustee, and constitutes the legal, valid and
binding obligation of the Institutional Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting creditors' rights
generally and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law);
(c) the execution, delivery and performance of this Declaration by the
Institutional Trustee does not conflict with or constitute a breach of the
Articles of Incorporation or By-laws of the Institutional Trustee; and
(d) no consent, approval or authorization of, or registration with or
notice to, any State or Federal banking authority is required for the execution,
delivery or performance by the Institutional Trustee, of this Declaration.
(e) on the closing date of the Offer, the Institutional Trustee will be the
record holder of the Debentures and the Institutional Trustee has not knowingly
created any liens or encumbrances on such Debentures.
(f) the Institutional Trustee satisfies the qualifications set forth in
Section 5.3.
SECTION 13.2 Representations and Warranties of Delaware Trustee.
The Trustee that acts as initial Delaware Trustee represents and warrants
to the Trust and to the Sponsor at the date of this Declaration, and each
Successor Delaware Trustee represents and warrants to the Trust and the Sponsor
at the time of the Successor Delaware Trustee's acceptance of its appointment as
Delaware Trustee that:
(a) The Delaware Trustee is a Delaware banking corporation with trust
powers, duly organized, validly existing and in good standing under the laws of
the State of Delaware, with trust power and authority to execute and deliver,
and to carry out and perform its obligations under the terms of, this
Declaration.
(b) The Delaware Trustee has been authorized to perform its obligations
under the Certificate of Trust and this Declaration. The Declaration under
Delaware law constitutes a legal, valid and binding obligation of the Delaware
Trustee, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, reorganization, moratorium, insolvency, and other similar
laws affecting creditors' rights generally and to general principles of equity
and the discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law).
(c) No consent, approval or authorization of, or registration with or
notice to, any State or Federal banking authority is required for the execution,
delivery or performance by the Delaware Trustee, of this Declaration.
(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 registered or certified mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at the Trust's
mailing address set forth below (or such other address as the Trust may give
notice of to the Holders):
Fleet Capital Trust I
c/o Fleet Financial Group, Inc.
One Federal Street
Boston, Massachusetts 02110
Attention: General Counsel
(b) if given to the Delaware Trustee, at the mailing address set forth
below (or such other address as the Delaware Trustee may give notice of to the
Holders):
First Chicago Delaware, Inc.
300 King Street
Wilmington, Delaware 19801
Attention: Michael Majchrzak
(c) if given to the Institutional Trustee, at the Institutional Trustee's
mailing address set forth below (or such other address as the Institutional
Trustee may give notice of to the Holders):
The First National Bank of Chicago
One First National Plaza
Suite 0126
Chicago, Illinois 60670-0126
Attention: Corporate Trust 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):
Fleet Financial Group, Inc.
One Federal Street
Boston, Massachusetts 02110
Attention: General Counsel
(e) if given to any other Holder, at the address set forth on the books and
records of the Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 14.2 Governing Law.
THIS DECLARATION AND THE RIGHTS OF THE PARTIES HEREUNDER SHALL BE GOVERNED
BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE AND ALL
RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO PRINCIPLES
OF CONFLICT OF LAWS.
SECTION 14.3 Intention of the Parties.
It is the intention of the parties hereto that the Trust be classified for
United States federal income tax purposes as a grantor trust. The provisions of
this Declaration shall be interpreted to further this intention of the parties.
SECTION 14.4 Headings.
Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or any
provision hereof.
SECTION 14.5 Successors and Assigns
Whenever in this Declaration any of the parties hereto is named or referred
to, the successors and assigns of such party shall be deemed to be included, and
all covenants and agreements in this Declaration by the Sponsor and the Trustees
shall bind and inure to the benefit of their respective successors and assigns,
whether so expressed.
SECTION 14.6 Partial Enforceability.
If any provision of this Declaration, or the application of such provision
to any Person or circumstance, shall be held invalid, the remainder of this
Declaration, or the application of such provision to persons or circumstances
other than those to which it is held invalid, shall not be affected thereby.
SECTION 14.7 Counterparts.
This Declaration may contain more than one counterpart of the signature
page and this Declaration may be executed by the affixing of the signature of
each of the Trustees to one of such counterpart signature pages. All of such
counterpart signature pages shall be read as though one, and they shall have the
same force and effect as though all of the signers had signed a single signature
page.
[The rest of this page is left blank intentionally.]
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
/s/Eugene M. McQuade
____________________________________________
Eugene M. McQuade, as Regular Trustee
/s/Douglas L. Jacobs
____________________________________________
Douglas L. Jacobs, as Regular Trustee
/s/John R. Rodehorst
____________________________________________
John R. Rodehorst, as Regular Trustee
FIRST CHICAGO DELAWARE INC.,
as Delaware Trustee
By:/s/Steven M. Wagner
____________________________________________
Name: Steven M. Wagner
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO,
as Institutional Trustee
By:/s/Steven M. Wagner
____________________________________________
Name: Steven M. Wagner
Title: Vice President
FLEET FINANCIAL GROUP, INC., as Sponsor
By:/s/Douglas L. Jacobs
____________________________________________
Name: Douglas L. Jacobs
Title: Vice President and Treasurer
<PAGE>
ANNEX I
TERMS OF
8.00% TRUST ORIGINATED PREFERRED SECURITIES
8.00% TRUST ORIGINATED COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration of Trust,
dated as of February 4, 1997 (as amended from time to time, the "Declaration"),
the designation, rights, privileges, restrictions, preferences and other terms
and provisions of the Securities are set out below (each capitalized term used
but not defined herein has the meaning set forth in the Declaration or, if not
defined in the Declaration, as defined in the Prospectus referred to below):
1. Designation and Number.
(a) Preferred Securities. Three Million Three Hundred Forty-Nine Thousand
Nine Hundred Five (3,349,905) Preferred Securities of the Trust with an
aggregate stated liquidation amount with respect to the assets of the Trust of
Eighty-Three Million Seven Hundred Forty-Seven Thousand Six Hundred Twenty-Five
Dollars ($83,747,625) and a stated liquidation amount with respect to the assets
of the Trust of $25 per preferred security, are hereby designated for the
purposes of identification only as "8.00% Trust Originated Preferred
SecuritiesSM" ("TOPrSSM") (the "Preferred Securities"). The Preferred Security
Certificates evidencing the Preferred Securities shall be substantially in the
form of Exhibit A-1 to the Declaration, with such changes and additions thereto
or deletions therefrom as may be required by ordinary usage, custom or practice
or to conform to the rules of any stock exchange on which the Preferred
Securities are listed. The Preferred Securities shall be issued to former
holders of Depositary Shares ("Depositary Shares") each representing 1/10 of a
share of Series V 7.25% Perpetual Preferred Stock (the "Preferred Stock"), of
Fleet Financial Group, Inc. (the "Sponsor") in exchange for such Depositary
Shares pursuant to the Offer.
(b) Common Securities. One Hundred Three Thousand Six Hundred Eighteen
(103,618) Common Securities of the Trust with an aggregate stated liquidation
amount with respect to the assets of the Trust of Two Million Five Hundred
Ninety Thousand Four Hundred Fifty Dollars ($2,590,450) and a stated liquidation
amount with respect to the assets of the Trust of $25 per common security, are
hereby designated for the purposes of identification only as "8.00% Trust
Originated Common Securities" (the "Common Securities"). The Common Security
Certificates evidencing the Common Securities shall be substantially in the form
of Exhibit A-2 to the Declaration, with such changes and additions thereto or
deletions therefrom as may be required by ordinary usage, custom or practice.
The Common Securities are to be issued and sold to the Sponsor in consideration
of $2,590,450 in cash.
(c) The Preferred Securities and the Common Securities represent undivided
beneficial interests in the assets of the Trust.
(d) In connection with the Offer and the purchase by the Sponsor of the
Common Securities, the Sponsor will deposit in the Trust, and the Trust will
purchase, respectively, as trust assets, Debentures of the Sponsor having an
aggregate principal amount equal to Eighty-Six Million Three Hundred
Thirty-Eight Thousand Seventy-Five Dollars ($86,338,075), and bearing interest
at an annual rate equal to the annual Distribution rate on the Preferred
Securities and Common Securities and having payment and redemption provisions
which correspond to the payment and redemption provisions of the Preferred
Securities and Common Securities.
2. Distributions.
(a) Distributions payable on each Security will be fixed at a rate per
annum of 8.00% (the "Coupon Rate") of the stated liquidation amount of $25 per
Security, such rate being the rate of interest payable on the Debentures to be
held by the Institutional Trustee. Distributions in arrears for more than one
quarter will bear interest thereon compounded quarterly at the Coupon Rate
("Compound Interest") (to the extent permitted by applicable law). The term
"Distributions" as used herein includes such cash distributions and any such
interest (including Additional Interest and Compound Interest) payable unless
otherwise stated. A Distribution will be made by the Institutional Trustee only
to the extent that payments are made in respect of the Debentures held by the
Institutional Trustee and to the extent the Trust has funds available in the
Institutional Trustee Account. The amount of Distributions payable for any
period will be computed for any full quarterly Distribution period on the basis
of a 360-day year of twelve 30-day months, and for
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SM "Trust Originated Preferred Securities" and "TOPrS" are service marks of
Merrill Lynch & Co.
any period shorter than a full quarterly Distribution period for which
Distributions are computed, Distributions will be computed on the basis of the
actual number of days elapsed. In addition, Holders of Preferred Securities will
be entitled to an additional cash distribution at the rate of 7.25% per annum of
the liquidation amount thereof from January 15, 1997 through January 30, 1997,
the expiration date of the Offer, in lieu of dividends accumulating and unpaid
from January 15, 1997 on Depositary Shares accepted for exchange in the Offer,
such additional distributions to be made on March 31, 1997 to Holders of the
Preferred Securities on the record date for such distribution ("Pre-Issuance
Interest"). Payment of Pre-Issuance Interest may not be deferred as provided in
subsection (b) below.
(b) Distributions on the Securities will be cumulative, will accrue from
January 31, 1997, the first date following the expiration date of the Offer,
and, except as otherwise described below, will be payable quarterly in arrears,
on March 31, June 30, September 30, and December 31 of each year, commencing on
March 31, 1997, when, as and if available for payment (a "Distribution Payment
Date"). With the exception of Pre-Issuance Interest, so long as the Debenture
Issuer shall not be in default in the payment of interest on the Debentures, the
Debenture Issuer has the right under the Indenture to defer payments of interest
on the Debentures by extending the interest payment period from time to time on
the Debentures for a period not exceeding 20 consecutive quarters (each an
"Extension Period"), during which Extension Period no interest shall be due and
payable on the Debentures, provided that no Extension Period shall last beyond
the Stated Maturity of the Debentures. As a consequence of such deferral,
Distributions will also be deferred. Despite such deferral, quarterly
Distributions will continue to accrue with interest thereon (to the extent
permitted by applicable law) at the Coupon Rate compounded quarterly to the
extent permitted by law during any such Extension Period. Prior to the
termination of any such Extension Period, the Debenture Issuer may further
extend such Extension Period; provided that such Extension Period, together with
all such previous and further extensions thereof, may not exceed 20 consecutive
quarters or extend beyond the Stated Maturity of the Debentures. Any interest
accrued on the Debentures during an Extension Period shall be paid Pro Rata to
holders of Debentures on the first payment date following the Extension Period
and the Payment Amount shall be paid Pro Rata to the Holders on the first
Distribution Payment Date following the Extension Period. Upon the termination
of any Extension Period and the payment of all amounts then due, the Debenture
Issuer may commence a new Extension Period, subject to the above requirements.
In the event that the Debenture Issuer exercises this right, then (i) the
Debenture Issuer shall not declare or pay any dividend on, make a distribution
with respect to, or redeem, purchase or acquire, or make a liquidation payment
with respect to, any of its capital stock (other than (a) purchases or
acquisitions of shares of its common stock in connection with the satisfaction
by the Debenture Issuer of its obligations under any employee benefit plans or
any other contractual obligation of the Debenture Issuer (other than a
contractual obligation ranking pari passu with or junior to the Debentures), (b)
as a result of a reclassification of the Debenture Issuer's capital stock or the
exchange or conversion of one class or series of the Debenture Issuer's capital
stock for another class or series of the Debenture Issuer's capital stock or (c)
the purchase of fractional interests in shares of the Debenture Issuer's capital
stock pursuant to the conversion or exchange provisions of such capital stock or
the security being converted or exchanged), (ii) the Debenture Issuer shall not
make any payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities issued by the Debenture Issuer that
rank pari passu with or junior to such Debentures and (iii) the Debenture Issuer
shall not make any guarantee payments with respect to the foregoing (other than
pursuant to the Preferred Securities Guarantee).
(c) Distributions on the Securities will be payable promptly by the
Institutional Trustee upon receipt of immediately available funds to the Holders
thereof as they appear on the books and records of the Trust on the relevant
record dates, which will be 15 days prior to the relevant distribution dates.
The record dates and distribution dates shall be the same as the record dates
and payment dates on the Debentures. Distributions payable on any Securities
that are not punctually paid on any Distribution Payment Date, as a result of
the Debenture Issuer having failed to make the corresponding interest payment on
the Debentures, will forthwith cease to be payable to the Person in whose name
such Securities are registered on the relevant record date, and such defaulted
Distribution will instead be payable to the Person in whose name such Securities
are registered on the special record date established by the Regular Trustees,
which record date shall correspond to the special record date or other specified
date determined in accordance with the Indenture; provided, however, that
Distributions shall not be considered payable on any Distribution Payment Date
falling within an Extension Period unless the Debenture Issuer has elected to
make a full or partial payment of interest accrued on the Debentures on such
Distribution Payment Date. Distributions on the Securities will be paid by the
Trust. All Distributions paid with respect to the Securities shall be paid on a
Pro Rata basis to Holders thereof entitled thereto. If any date on which
Distributions are payable on the Securities is not a Business Day, then payment
of the Distribution payable on such date will be made on the next succeeding day
that is a Business Day (and without any interest or other payment in respect of
any such delay) except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such date.
(d) If at any time while the Institutional Trustee is the Holder of any
Securities, the Trust or the Institutional Trustee is required to pay any taxes,
duties, assessments or governmental charges of whatever nature (other than
withholding taxes) imposed by the United States, or any other taxing authority,
then, in any such case, the Debenture Issuer will pay as additional interest
("Additional Interest") on the Securities held by the Institutional Trustee,
such amounts as shall be required so that the net amounts received and retained
by the Trust and the Institutional Trustee after paying any such taxes, duties,
assessments or other governmental charges will be equal to the amounts the Trust
and the Institutional Trustee would have received had no such taxes, duties,
assessments or other governmental charges been imposed.
(e) In the event that there is any money or other property held by or for
the Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata among the Holders.
3. Liquidation Distribution Upon Dissolution.
In the event of any voluntary or involuntary liquidation, dissolution,
winding-up or termination of the Trust (each a "Liquidation"), the Holders on
the date of the Liquidation will be entitled to receive Pro Rata out of the
assets of the Trust available for distribution to Holders after satisfaction of
liabilities of creditors distributions in an amount equal to the aggregate of
the stated liquidation amount of $25 per Security plus accrued and unpaid
Distributions thereon to the date of payment (such amount being the "Liquidation
Distribution"), unless, in connection with such Liquidation, Debentures in an
aggregate stated principal amount equal to the aggregate stated liquidation
amount of such Securities, with an interest rate equal to the Coupon Rate of,
and bearing accrued and unpaid interest in an amount equal to the accrued and
unpaid Distributions on, such Securities, shall be distributed on a Pro Rata
basis to the Holders in exchange for such Securities.
4. Redemption and Distribution.
(a) Redemption of the Securities will occur simultaneously with any
repayment of the Debentures. The Debentures will mature on February 15, 2027
(which date may be shortened to a date no earlier than April 15, 2001 or
extended to a date no later than February 15, 2046, subject in each case to
certain conditions) (such date, as so shortened or extended, the "Stated
Maturity"). Upon the repayment of the Debentures at maturity, the proceeds from
such repayment shall be simultaneously applied to redeem Securities having an
aggregate liquidation amount equal to the aggregate principal amount of the
Debentures so repaid at a redemption price of $25 per Security, plus an amount
equal to accrued and unpaid Distributions thereon at the date of the redemption,
payable in cash (the "Maturity Redemption Price"). Holders will be given not
less than 30 nor more than 60 days notice of such redemption.
(b) If, at any time prior to April 15, 2001, a Special Event shall occur
and be continuing, the Debenture Issuer shall have the right, upon not less than
30 and no more than 60 days' notice, at its option, to redeem the Debentures, in
whole (but not in part), for cash within 90 days following the occurrence of
such Special Event at a prepayment price (the "Special Event Prepayment Price")
equal to (i) 104% of the principal amount of the Debentures if prepaid during
the period commencing on January 31, 1997 through and including April 14, 1998
and (ii) the percentage of the principal amount of the Debentures specified
below, if prepaid during the 12-month period beginning April 15 of the years
indicated below, plus, in each case, any accrued and unpaid interest thereon to
the date of prepayment:
Year Percentage
1998...........................................................103%
1999...........................................................102
2000...........................................................101
2001 and thereafter............................................100
Upon such redemption, all Securities shall be redeemed by the Trust at a
redemption price equal to the Special Event Prepayment Price (the "Special Event
Redemption Price"), plus any accrued and unpaid distributions through the
redemption date.
(c) The Debentures are redeemable in whole or in part, from time to time,
on or after April 15, 2001, upon not less than 30 nor more than 60 days' notice,
at a prepayment price (the "Optional Prepayment Price") equal to 100% of the
principal amount thereof, plus any accrued and unpaid interest thereon to the
date of prepayment. Upon such prepayment, the proceeds from such prepayment
shall simultaneously be applied to redeem Securities having an aggregate
liquidation amount equal to the aggregate principal amount of the Debentures so
prepaid at a redemption price equal to the Optional Prepayment Price (the
"Optional Redemption Price"), plus any accrued and unpaid distributions through
the redemption date.
"Redemption Price" means the Maturity Redemption Price, the Optional
Redemption Price or the Special Event Redemption Price, as the context requires.
"Regulatory Capital Event" means that the Debenture Issuer shall have
received an opinion of independent bank regulatory counsel experienced in such
matters to the effect that, as a result of (a) any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any rules, guidelines or policies of the
Federal Reserve Board or (b) any official administrative pronouncement or
judicial decision interpreting or applying such laws or regulations, which
amendment or change is effective or such pronouncement or decision is announced
on or after the date of original issuance of the Preferred Securities, the
Preferred Securities do not constitute, or within 90 days of the date thereof,
will not constitute, Tier 1 capital (or its equivalent) for purposes of the
Federal Reserve Board's capital guidelines for bank holding companies; provided,
however, that the distribution of the Debentures in connection with the
liquidation of the Trust by the Debenture Issuer and the treatment thereafter of
the Debentures as other than Tier 1 capital shall not in and or itself
constitute a Regulatory Capital Event unless such liquidation shall have
occurred in connection with a Tax Event.
"Special Event" means a Tax Event or a Regulatory Capital Event, as the
case may be.
"Tax Event" means that the Regular Trustees shall have received an opinion
of a nationally recognized independent tax counsel experienced in such matters
to the effect that, as a result of (a) any amendment to, or change (including
any announced prospective change) in, the laws or any regulations thereunder of
the United States or any political subdivision or taxing authority thereof or
therein, or (b) any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or such pronouncement or decision is announced on or after the date of
the original issuance of the Securities, there is more than an insubstantial
risk that (i) the Trust is, or will be within 90 days of the date of such
opinion, subject to United States federal income tax with respect to income
received or accrued on the Debentures, (ii) interest payable on the Debentures
is not, or within 90 days of the date thereof will not be, deductible by the
Company, in whole or in part, for United States federal income tax purposes, or
(iii) the Trust is, or will be within 90 days of the date thereof, subject to
more than a de minimis amount of other taxes, duties or other governmental
charges.
(d) If fewer than all the outstanding Securities are to be so redeemed, the
Common Securities and the Preferred Securities will be redeemed Pro Rata as
described in Section 4(g)(ii) below.
(e) The Trust may not redeem fewer than all the outstanding Securities
unless all accrued and unpaid Distributions have been paid on all Securities for
all quarterly Distribution periods terminating on or before the date of
redemption.
(f) The Debenture Issuer will have the right at any time to liquidate the
Trust and cause the Debentures to be distributed to the Holders, subject to the
prior approval of the Federal Reserve Board if such approval is then required
under applicable law, rules, guidelines or policies. If the Debentures are
distributed to the Holders and the Preferred Securities are then listed on an
exchange, the Debenture Issuer will use its best efforts to cause the Debentures
to be listed on the NYSE or on such other exchange as the Preferred Securities
are then listed.
On the date fixed for any distribution of Debentures upon dissolution of
the Trust, (i) the Preferred Securities will no longer be deemed to be
outstanding, (ii) the Depository Institution or its nominee, as the record
holder of the Preferred Securities, will receive a registered global certificate
or certificates representing the Debentures to be delivered upon such
distribution, and (iii) any certificates representing Preferred Securities not
held by the Depository Institution or its nominee will be deemed to represent
Debentures having an aggregate principal amount equal to the aggregate stated
liquidation amount of, with an interest rate identical to the distribution rate
of, and accrued and unpaid interest equal to accrued and unpaid distributions
on, such Preferred Securities until such certificates are presented to the
Debenture Issuer or its agent for transfer or reissuance.
(g) Redemption or Distribution Procedures.
(i) Notice of any redemption of the Debentures, or notice of
distribution of Debentures in exchange for the Securities (a
"Redemption/Distribution Notice") will be given by the Trust by
mail to each Holder of Securities to be redeemed or exchanged
not fewer than 30 nor more than 60 days before the date fixed
for redemption or exchange thereof which, in the case of a
redemption, will be the date fixed for redemption of the
Debentures. For purposes of the calculation of the date of
redemption or exchange and the dates on which notices are given
pursuant to this Section 4(f)(i), a Redemption/Distribution
Notice shall be deemed to be given on the day such notice is
first mailed by first-class mail, postage prepaid, to Holders.
Each Redemption/Distribution Notice shall be addressed to the
Holders at the address of each such Holder appearing in the
books and records of the Trust. No defect in the
Redemption/Distribution Notice or in the mailing of either
thereof with respect to any Holder shall affect the validity of
the redemption or exchange proceedings with respect to any
other Holder.
(ii) In the event that fewer than all the outstanding Securities are
to be redeemed, the Securities to be redeemed shall be redeemed
Pro Rata from each Holder, it being understood that, in respect
of Preferred Securities registered in the name of and held of
record by the Depository Institution or its nominee, the
distribution of the proceeds of such redemption will be made to
each Depository Institution Participant (or Person on whose
behalf such nominee holds such securities) in accordance with
the procedures applied by such agency or nominee.
(iii) If Securities are to be redeemed and the Trust gives a
Redemption/Distribution Notice, which notice may only be issued
if the Debentures are redeemed as set out in this Section 4
(which notice will be irrevocable), then by 12:00 noon, New
York City time, on the redemption date, the Debenture Issuer
will deposit with one or more paying agents an amount of money
sufficient to redeem on the redemption date all the Securities
so called for redemption at the Redemption Price. If a
Redemption/Distribution Notice shall have been given and funds
deposited as required, if applicable, then immediately prior to
the close of business on the date of such deposit, or on the
redemption date, as applicable, distributions will cease to
accrue on the Securities so called for redemption and all
rights of Holders of such Securities so called for redemption
will cease, except the right of the Holders of such Securities
to receive the Redemption Price, but without interest on such
Redemption Price. On presentation and surrender of such
Securities at a place of payment specified in said notice, the
said Securities or the specified portions thereof shall be paid
and redeemed by the Trust at the applicable Redemption Price.
Neither the Regular Trustees nor the Trust shall be required to
register or cause to be registered the transfer of any
Securities that have been so called for redemption. If any date
fixed for redemption of Securities is not a Business Day, then
payment of the Redemption Price payable on such date will be
made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such
delay) except that, if such Business Day falls in the next
calendar year, such payment will be made on the immediately
preceding Business Day, in each case with the same force and
effect as if made on such date fixed for redemption. If payment
of the Redemption Price in respect of any Securities is
improperly withheld or refused and not paid either by the
Institutional Trustee or by the Sponsor as guarantor pursuant
to the relevant Securities Guarantee, Distributions on such
Securities will continue to accrue from the original redemption
date to the actual date of payment, in which case the actual
payment date will be considered the date fixed for redemption
for purposes of calculating the Redemption Price.
(iv) The Trust shall not be required to (i) issue, or register the
transfer or exchange of, any Securities during a period
beginning at the opening of business 15 days before the mailing
of a notice of redemption of Securities and ending at the close
of business on the day of the mailing of the relevant notice of
redemption and (ii) register the transfer or exchange of any
Securities so selected for redemption, in whole or in part,
except the unredeemed portion of any Securities being redeemed
in part.
(v) Subject to the foregoing and applicable law (including, without
limitation, United States federal securities laws and
regulations of the Federal Reserve Board), the Sponsor or any
of its subsidiaries may at any time and from time to time
purchase outstanding Preferred Securities by tender, in the
open market or by private agreement.
5. Voting Rights - Preferred Securities.
(a) Except as provided under Sections 5(b) and 7 and as otherwise required
by law and the Declaration, the Holders of the Preferred Securities will have no
voting rights.
(b) Subject to the requirements set forth in the immediately following
paragraph, the Holders of a majority in aggregate liquidation amount of the
Preferred Securities, voting separately as a class, have the right to direct the
time, method, and place of conducting any proceeding for any remedy available to
the Institutional Trustee, or to direct the exercise of any trust or power
conferred upon the Institutional Trustee under the Declaration, including the
right to direct the Institutional Trustee, as holder of the Debentures, to (i)
exercise the remedies available to it under the Indenture as holder of the
Debentures, (ii) waive any past Event of Default and its consequences that is
waivable under Section 5.07 of the Indenture, (iii) exercise any right to
rescind or annul a declaration that the principal of all the Debentures shall be
due and payable, or (iv) consent to any amendment, modification or termination
of the Indenture or the Debentures where such consent shall be required;
provided, however, that, where a consent or action under the Indenture would
require the consent or act of a Super Majority, only the Holders of at least
such Super Majority in aggregate liquidation amount of the Preferred Securities
may direct the Institutional Trustee to give such consent or take such action;
and provided further, that where a consent or action under the Indenture is only
effective against each holder of Debentures who has consented thereto, such
consent or action will only be effective against a holder of Preferred
Securities who directs the Institutional Trustee to give such consent or take
such action. A waiver of an Indenture Event of Default will constitute a waiver
of the corresponding Declaration Event of Default. The Institutional Trustee
shall not revoke any action previously authorized or approved by a vote of the
Holders of the Preferred Securities. If the Institutional Trustee fails to
enforce its rights under the Debentures after a holder of record of Preferred
Securities has made a written request, such holder of record of Preferred
Securities may institute a legal proceeding directly against the Debenture
Issuer to enforce the Institutional Trustee's rights under the Debentures
without first instituting any legal proceeding against the Institutional Trustee
or any other person or entity. Notwithstanding the foregoing, if an Event of
Default has occurred and is continuing and such event is attributable to the
failure of the Debenture Issuer to pay interest or principal on the Debentures
on the date such interest or principal is otherwise payable (or in the case of
redemption, on the redemption date), then a Holder of Preferred Securities may
institute a Direct Action for enforcement of payment to such Holder of the
principal of or interest on the Debentures having a principal amount equal to
the aggregate liquidation amount of the Preferred Securities of such holder on
or after the respective due date specified in the Debentures. Notwithstanding
any payments made to such Holder of Preferred Securities by the Debenture Issuer
in connection with a Direct Action, the Debenture Issuer shall remain obligated
to pay the principal of or interest on the Debentures held by the Trust or the
Institutional Trustee of the Trust, and the Debenture Issuer shall be subrogated
to the rights of the Holder of such Preferred Securities with respect to
payments on the Preferred Securities to the extent of any payments made by the
Debenture Issuer to such Holder in any Direct Action. Except as provided in the
preceding sentences, the Holders of Preferred Securities will not be able to
exercise directly any other remedy available to the holders of the Debentures.
Except with respect to directing the time, method and place of conducting a
proceeding for a remedy, the Institutional Trustee shall not take any of the
actions described in clauses (i), (ii) or (iii) above unless the Institutional
Trustee has obtained an opinion of a nationally-recognized tax counsel
experienced in such matters to the effect that, as a result of such action, the
Trust will not fail to be classified as a grantor trust for United States
federal income tax purposes.
Any approval or direction of Holders of Preferred Securities may be given
at a separate meeting of Holders of Preferred Securities convened for such
purpose, at a meeting of all of the Holders of Securities in the Trust or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Preferred Securities are entitled to vote, or of any
matter upon which action by written consent of such Holders is to be taken, to
be mailed to each Holder of record of Preferred Securities. Each such notice
will include a statement setting forth (i) the date of such meeting or the date
by which such action is to be taken, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders are entitled to vote
or of such matter upon which written consent is sought and (iii) instructions
for the delivery of proxies or consents.
No vote or consent of the Holders of the Preferred Securities will be
required for the Trust to redeem and cancel Preferred Securities or to
distribute the Debentures in accordance with the Declaration and the terms of
the Securities.
Notwithstanding that Holders of Preferred Securities are entitled to vote
or consent under any of the circumstances described above, any of the Preferred
Securities that are owned by the Sponsor or any Affiliate of the Sponsor shall
not be entitled to vote or consent and shall, for purposes of such vote or
consent, be treated as if they were not outstanding.
Holders of the Preferred Securities will have no rights to appoint or
remove the Trustees, who may be appointed, removed or replaced solely by the
Sponsor, as Holder of all of the Common Securities.
6. Voting Rights - Common Securities.
(a)Except as provided under Sections 6(b), (c) and 7 and as otherwise
required by law and the Declaration, the Holders of the Common Securities will
have no voting rights.
(b)The Holders of the Common Securities are entitled, in accordance with
Article V of the Declaration, to vote to appoint, remove or replace any Trustee
or to increase or decrease the number of Trustees.
(c)Subject to Section 2.6 of the Declaration and only after the Event of
Default with respect to the Preferred Securities has been cured, waived, or
otherwise eliminated and subject to the requirements of the second to last
sentence of this paragraph, the Holders of a Majority in liquidation amount of
the Common Securities, voting separately as a class, may direct the time,
method, and place of conducting any proceeding for any remedy available to the
Institutional Trustee, or exercising any trust or power conferred upon the
Institutional Trustee under the Declaration, including (i) directing the time,
method, place of conducting any proceeding for any remedy available to the Debt
Trustee, or exercising any trust or power conferred on the Debt Trustee with
respect to the Debentures, (ii) waive any past default and its consequences that
is waivable under Section 5.07 of the Indenture, or (iii) exercise any right to
rescind or annul a declaration that the principal of all the Debentures shall be
due and payable; provided that, where a consent or action under the Indenture
would require the consent or act of a Super Majority of holders of Debentures
affected thereby the Institutional Trustee may only give such consent or take
such action at the written direction of the holders of at least the proportion
in liquidation amount of the Common Securities which the relevant Super Majority
represents of the aggregate principal amount of the Debentures outstanding; and
provided further, that where a consent or action under the Indenture would
require the consent or action of each holder of Debentures, each Holder of
Preferred Securities must direct the Institutional Trustee to give such consent
or take such action. Pursuant to this Section 6(c), the Institutional Trustee
shall not revoke any action previously authorized or approved by a vote of the
Holders of the Preferred Securities. Except with respect to directing the time,
method and place of conducting a proceeding for a remedy, the Institutional
Trustee shall not take any action in accordance with the directions of the
Holders of the Common Securities under this paragraph unless the Institutional
Trustee has obtained an opinion of a nationally-recognized tax counsel
experienced in such matters to the effect that, as a result of such action, the
Trust will not fail to be classified as a grantor trust for United States
federal income tax purposes. If the Institutional Trustee fails to enforce its
rights under the Declaration, any Holder of Common Securities may institute a
legal proceeding directly against any Person to enforce the Institutional
Trustee's rights under the Declaration, without first instituting a legal
proceeding against the Institutional Trustee or any other Person.
Any approval or direction of Holders of Common Securities may be given at a
separate meeting of Holders of Common Securities convened for such purpose, at a
meeting of all of the Holders of Securities in the Trust or pursuant to written
consent. The Regular Trustees will cause a notice of any meeting at which
Holders of Common Securities are entitled to vote, or of any matter upon which
action by written consent of such Holders is to be taken, to be mailed to each
Holder of record of Common Securities. Each such notice will include a statement
setting forth (i) the date of such meeting or the date by which such action is
to be taken, (ii) a description of any resolution proposed for adoption at such
meeting on which such Holders are entitled to vote or of such matter upon which
written consent is sought and (iii) instructions for the delivery of proxies or
consents.
No vote or consent of the Holders of the Common Securities will be required
for the Trust to redeem and cancel Common Securities or to distribute the
Debentures in accordance with the Declaration and the terms of the Securities.
7. Amendments to Declaration and Indenture.
(a) In addition to any requirements under Section 12.1 of the Declaration,
if any proposed amendment to the Declaration provides for, or the Regular
Trustees otherwise propose to effect, (i) any action that would adversely affect
the powers, preferences or special rights of the Securities, whether by way of
amendment to the Declaration or otherwise, or (ii) the dissolution, winding-up
or termination of the Trust, other than as described in Section 8.1 of the
Declaration, then the Holders of outstanding Securities voting together as a
single class will be entitled to vote on such amendment or proposal (but not on
any other amendment or proposal) and such amendment or proposal shall not be
effective except with the approval of the Holders of at least a Majority in
liquidation amount of the Securities affected thereby, provided, that, if any
amendment or proposal referred to in clause (i) above would adversely affect
only the Preferred Securities or only the Common Securities, then only the
affected class will be entitled to vote on such amendment or proposal and such
amendment or proposal shall not be effective except with the approval of a
Majority in liquidation amount of such class of Securities.
(b) In the event the consent of the Institutional Trustee, as the holder of
the Debentures, is required under the Indenture with respect to any amendment,
modification or termination on the Indenture, the Institutional Trustee shall
request the written direction of the Holders of the Securities with respect to
such amendment, modification or termination and shall vote with respect to such
amendment, modification or termination as directed by a Majority in liquidation
amount of the Securities voting together as a single class; provided, however,
that where a consent under the Indenture would require the consent of a Super
Majority, the Institutional Trustee may only give such consent at the direction
of the Holders of at least the proportion in liquidation amount of the
Securities which the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding; provided, that where a consent
or action under the Indenture is only effective against each holder of
Debentures who has consented thereto, such consent or action will only be
effective against a holder of Preferred Securities who directs the Institutional
Trustee to give such consent or take such action; and provided further, that the
Institutional Trustee shall not take any action in accordance with the
directions of the Holders of the Securities under this Section 7(b) unless the
Institutional Trustee has obtained an opinion of a nationally recognized tax
counsel experienced in such matters to the effect that for the purposes of
United States federal income tax the Trust will not be classified as other than
a grantor trust on account of such action.
(c) Notwithstanding the foregoing, no amendment or modification may be made
to the Declaration if such amendment or modification would (i) cause the Trust
to be classified for purposes of United States federal income taxation as other
than a grantor trust, (ii) reduce or otherwise adversely affect the powers of
the Institutional Trustee or (iii) cause the Trust to be deemed an "investment
company" which is required to be registered under the Investment Company Act.
8. Pro Rata.
A reference in these terms of the Securities to any payment, distribution
or treatment as being "Pro Rata" shall mean pro rata to each Holder according to
the aggregate stated liquidation amount of the Securities held by the relevant
Holder in relation to the aggregate stated liquidation amount of all Securities
outstanding unless, in relation to a payment, an Event of Default under the
Declaration has occurred and is continuing, in which case any funds available to
make such payment shall be paid first to each Holder of the Preferred Securities
pro rata according to the aggregate stated liquidation amount of Preferred
Securities held by the relevant Holder relative to the aggregate stated
liquidation amount of all Preferred Securities outstanding, and only after
satisfaction of all amounts owed to the Holders of the Preferred Securities, to
each Holder of Common Securities pro rata according to the aggregate stated
liquidation amount of Common Securities held by the relevant Holder relative to
the aggregate stated liquidation amount of all Common Securities outstanding.
9. Ranking.
The Preferred Securities rank pari passu, and payment thereon shall be made
Pro Rata, with the Common Securities except that, where an Event of Default
occurs and is continuing, the rights of Holders of the Common Securities to
receive payment of periodic Distributions and payments upon liquidation,
redemption and otherwise will be subordinated to the rights of the Holders of
the Preferred Securities.
10. Listing.
The Regular Trustees shall use their best efforts to cause the Preferred
Securities to be listed for quotation on the NYSE.
11. Acceptance of Securities Guarantee and Indenture.
Each Holder of Preferred Securities and Common Securities, by the
acceptance thereof, agrees to the provisions of the Preferred Securities
Guarantee and the Common Securities Guarantee, respectively, including the
subordination provisions therein, and to the provisions of the Indenture.
12. No Preemptive Rights.
The Holders shall have no preemptive rights to subscribe for any additional
securities.
13. Miscellaneous.
These terms constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration, the Preferred
Securities Guarantee or the Common Securities Guarantee (as may be appropriate),
and the Indenture to a Holder without charge on written request to the Sponsor
at its principal place of business.
<PAGE>
EXHIBIT A-1
FORM OF PREFERRED SECURITY CERTIFICATE
Certificate Number [ ] Number of Preferred Securities [ ]
CUSIP NO. [ ]
Certificate Evidencing Preferred Securities
of
FLEET CAPITAL TRUST I
8.00% Trust Originated Preferred SecuritiesSM ("TOPrSSM")
(liquidation amount $25 per Preferred Security)
FLEET CAPITAL TRUST I, a statutory business trust formed under the laws of
the State of Delaware (the "Trust"), hereby certifies that ______________ (the
"Holder") is the registered owner of preferred securities of the Trust
representing undivided beneficial interests in the assets of the Trust,
designated the 8.00% Trust Originated Preferred SecuritiesSM (liquidation amount
$25 per Preferred Security) (the "Preferred Securities"). The Preferred
Securities are transferable on the books and records of the Trust, in person or
by a duly authorized attorney, upon surrender of this certificate duly endorsed
and in proper form for transfer. The designation, rights, privileges,
restrictions, preferences and other terms and provisions of the Preferred
Securities represented hereby are issued and shall in all respects be subject to
the provisions of the Amended and Restated Declaration of Trust of the Trust
dated as of February 4, 1997, as the same may be amended from time to time (the
"Declaration"), including the designation of the terms of the Preferred
Securities as set forth in Annex I to the Declaration. Capitalized terms used
herein but not defined shall have the meanings given them in the Declaration.
The Holder is entitled to the benefits of the Preferred Securities Guarantee to
the extent provided therein. The Sponsor will provide a copy of the Declaration,
the Preferred Securities Guarantee and the Indenture to a Holder without charge
upon written request to the Trust at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the Declaration
and is entitled to the benefits thereunder. In addition, the Holder is deemed to
have (i) agreed to the terms of the Indenture and the Debentures, including that
the Debentures are subordinate and junior in right of payment to all present and
future Senior Indebtedness and Other Financial Obligations (as defined in the
Indenture) as and to the extent provided in the Indenture and (ii) agreed to the
terms of the Preferred Securities Guarantee, including that the Preferred
Securities Guarantee is subordinate and junior in right of payment to all other
liabilities of the Sponsor, including the Debentures, except those made pari
passu or subordinate by their terms, and pari passu with the most senior
preferred or preference stock now or hereafter issued by the Sponsor and with
any guarantee now or hereafter entered into by the Sponsor in respect of any
preferred or preference stock of any Affiliate of the Sponsor.
By accepting this certificate, the Holder agrees to treat, for United
States federal income tax purposes, the Debentures as indebtedness and the
Preferred Securities as evidence of indirect beneficial ownership in the
Debentures.
Unless the Authenticating Agent's Certificate of Authentication hereon has
been properly executed, these Preferred Securities shall not be entitled to any
benefit under the Declaration or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Trust has caused this certificate to be signed by its
duly authorized Regular Trustees.
FLEET CAPITAL TRUST I
By:__________________________________________
Name: Title: Regular Trustee
By:__________________________________________
Name: Title: Regular Trustee
CERTIFICATE OF AUTHENTICATION
This is one of the Preferred Securities referred to in the
within-mentioned Declaration.
Dated _____________, ________
Fleet National Bank, as Authenticating Agent
By:__________________________________________
Authorized Signatory
<PAGE>
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Preferred Security will be fixed at a rate
per annum of 8.00% (the "Coupon Rate") of the stated liquidation amount of $25
per Preferred Security, such rate being the rate of interest payable on the
Debentures to be held by the Institutional Trustee. Distributions in arrears for
more than one quarter will bear interest thereon compounded quarterly at the
Coupon Rate ("Compound Interest") (to the extent permitted by applicable law).
The term "Distributions" as used herein includes such cash distributions and any
such interest (including Additional Interest and Compound Interest) payable
unless otherwise stated. A Distribution will be made by the Institutional
Trustee only to the extent that payments are made in respect of the Debentures
held by the Institutional Trustee and to the extent the Institutional Trustee
has funds available in the Institutional Trustee Account. The amount of
Distributions payable for any period will be computed for any full quarterly
Distribution period on the basis of a 360-day year of twelve 30-day months, and
for any period shorter than a full quarterly Distribution period for which
Distributions are computed, Distributions will be computed on the basis of the
actual number of days elapsed. In addition, Holders will be entitled to an
additional cash distribution at the rate of 7.25% per annum of the stated
liquidation amount from January 15, 1997 through January 30, 1997, the
expiration date of the Offer, in lieu of dividends accumulating and unpaid from
January 15, 1997 on Depositary Shares accepted for exchange in the Offer, such
additional distributions to be made on March 31, 1997 to Holders of record on
the record date for such distribution ("Pre-Issuance Interest"). Payment of such
additional cash distribution may not be deferred as provided in the succeeding
paragraph.
Except as otherwise described below, Distributions on the Preferred
Securities will be cumulative, will accrue from January 31, 1997, the first date
following the expiration date of the Offer, and, except as otherwise described
below, will be payable quarterly in arrears, on March 31, June 30, September 30
and December 31 of each year, commencing on March 31, 1997, to Holders of record
on the relevant record dates, which will be 15 days prior to the relevant
distribution dates. The record dates and distribution dates shall be the same as
the record dates and payment dates on the Debentures. With the exception of
Pre-Issuance Interest, so long as the Debenture Issuer shall not be in default
in the payment of interest on the Debentures, the Debenture Issuer has the right
under the Indenture to defer payments of interest by extending the interest
payment period from time to time on the Debentures for a period not exceeding 20
consecutive quarters (each an "Extension Period"), provided that no Extension
Period shall last beyond Stated Maturity of the Debentures. As a consequence of
such deferral, Distributions will also be deferred. Despite such deferral,
quarterly Distributions will continue to accrue with interest thereon (to the
extent permitted by applicable law) at the Coupon Rate compounded quarterly
during any such Extension Period. Prior to the termination of any such Extension
Period, the Debenture Issuer may further extend such Extension Period; provided
that such Extension Period together with all such previous and further
extensions thereof may not exceed 20 consecutive quarters or extend beyond the
Stated Maturity of the Debentures. Payments of accrued Distributions will be
payable to Holders as they appear on the books and records of the Trust on the
first record date after the end of the Extension Period. Upon the termination of
any Extension Period and the payment of all amounts then due, the Debenture
Issuer may commence a new Extension Period, subject to the above requirements.
The Preferred Securities shall be redeemable as provided in the
Declaration.
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security Certificate to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints _______________________________________________ to
transfer this Preferred Security Certificate on the books of the Trust. The
agent may substitute another to act for him or her.
Date:
Signature:___________________________________
(Sign exactly as your name appears on the
other side of this Preferred Security
Certificate)
(Signature(s) must be guaranteed by an
"eligible guarantor institution" meeting the
requirements of the Trustee, which
requirements include membership or
participation in STAMP or such other
"signature guaranty program" as may be
determined by the Trustee in addition to or
in substitution for STAMP, all in accordance
with the Securities Exchange Act of 1934, as
amended.)
<PAGE>
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
Certificate Number [ ] Number of Common Securities [ ]
Certificate Evidencing Common Securities
of
FLEET CAPITAL TRUST I
8.00% Trust Originated Common Securities
(liquidation amount $25 per Common Security)
FLEET CAPITAL TRUST I, 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 common securities of the Trust representing
undivided beneficial interests in the assets of the Trust, designated the 8.00%
Trust Originated Common Securities (liquidation amount $25 per Common Security)
(the "Common Securities"). The Common Securities are transferable on the books
and records of the Trust, in person or by a duly authorized attorney, upon
surrender of this certificate duly endorsed and in proper form for transfer. The
designation, rights, privileges, restrictions, preferences and other terms and
provisions of the Common Securities represented hereby are issued and shall in
all respects be subject to the provisions of the Amended and Restated
Declaration of Trust of the Trust dated as of February 4, 1997, as the same may
be amended from time to time (the "Declaration"), including the designation of
the terms of the Common Securities as set forth in Annex I to the Declaration.
Capitalized terms used herein but not defined shall have the meaning given them
in the Declaration. The Holder is entitled to the benefits of the Common
Securities Guarantee to the extent provided therein. The Sponsor will provide a
copy of the Declaration, the Common Securities Guarantee and the Indenture to a
Holder without charge upon written request to the Sponsor at its principal place
of business.
Upon receipt of this certificate, the Sponsor is bound by the Declaration and
is entitled to the benefits thereunder. In addition, the Holder is deemed to
have (i) agreed to the terms of the Indenture and the Debentures, including that
the Debentures are subordinate and junior in right of payment to all present and
future Senior Indebtedness and Other Financial Obligations (as defined in the
Indenture) as and to the extent provided in the Indenture and (ii) agreed to the
terms of the Preferred Securities Guarantee, including that the Preferred
Securities Guarantee is subordinate and junior in right of payment to all other
liabilities of the Sponsor, including the Debentures, except those made pari
passu or subordinate by their terms, and pari passu with the most senior
preferred or preference stock now or hereafter issued by the Sponsor and with
any guarantee now or hereafter entered into by the Sponsor in respect of any
preferred or preference stock of any Affiliate of the Sponsor.
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.
Unless the Authenticating Agent's Certificate of Authentication hereon has
been properly executed, these Common Securities shall not be entitled to any
benefit under the Declaration or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Trust has caused this certificate to be signed by its
duly authorized Regular Trustees.
FLEET CAPITAL TRUST I
By:_________________________________________
Name:
Title: Regular Trustee
By:__________________________________________
Name:
Title: Regular Trustee
CERTIFICATE OF AUTHENTICATION
This is one of the Common Securities referred to in the
within-mentioned Declaration.
Dated _____________, ________
Fleet National Bank, as Authenticating Agent
By:__________________________________________
Authorized Signatory
<PAGE>
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Common Security will be fixed at a rate per
annum of 8.00% (the "Coupon Rate") of the stated liquidation amount of $25 per
Common Security, such rate being the rate of interest payable on the Debentures
to be held by the Institutional Trustee. Distributions in arrears for more than
one quarter will bear interest thereon compounded quarterly at the Coupon Rate
("Compound Interest") (to the extent permitted by applicable law). The term
"Distributions" as used herein includes such cash distributions and any such
interest (including Additional Interest and Compound Interest) payable unless
otherwise stated. A Distribution will be made by the Institutional Trustee only
to the extent that payments are made in respect of the Debentures held by the
Institutional Trustee and to the extent the Institutional Trustee has funds
available in the Institutional Trustee Account. The amount of Distributions
payable for any period will be computed for any full quarterly Distribution
period on the basis of a 360-day year of twelve 30-day months, and for any
period shorter than a full quarterly Distribution period for which Distributions
are computed, Distributions will be computed on the basis of the actual number
of days elapsed.
Except as otherwise described below, distributions on the Common Securities
will be cumulative, will accrue from January 31, 1997, the first date following
the expiration date of the Offer, and, except as otherwise described below, will
be payable quarterly in arrears, on March 31, June 30, September 30 and December
31 of each year, commencing on March 31, 1997, to Holders of record on relevant
record dates, which will be 15 days prior to the relevant distribution dates.
The record dates and distribution dates shall be the same as the record and
payment dates on the Debentures. So long as the Debenture Issuer shall not be in
default in the payment of interest on the Debentures, the Debenture Issuer has
the right under the Indenture to defer payments of interest by extending the
interest payment period from time to time on the Debentures for a period not
exceeding 20 consecutive quarters (each an "Extension Period"), provided that no
Extension Period shall last beyond the Stated Maturity of the Debentures. As a
consequence of such deferral, Distributions will also be deferred. Despite such
deferral, quarterly Distributions will continue to accrue with interest thereon
(to the extent permitted by applicable law) at the Coupon Rate compounded
quarterly during any such Extension Period. Prior to the termination of any such
Extension Period, the Debenture Issuer may further extend such Extension Period;
provided that such Extension Period together with all such previous and further
extensions thereof may not exceed 20 consecutive quarters or extend beyond the
Stated Maturity of the Debentures. Payments of accrued Distributions will be
payable to Holders as they appear on the books and records of the Trust on the
first record date after the end of the Extension Period. Upon the termination of
any Extension Period and the payment of all amounts then due, the Debenture
Issuer may commence a new Extension Period, subject to the above requirements.
The Common Securities shall be redeemable as provided in the Declaration.
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common
Security Certificate to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints _______________________ this Common Security
Certificate on the books of the Trust. The agent may substitute another to
act for him or her.
Date:________________________________________
Signature:___________________________________
(Sign exactly as your name appears on the
other side of this Common Security
Certificate)
(Signature(s) must be guaranteed by an
"eligible guarantor institution" meeting the
requirements of the Trustee, which
requirements include membership or
participation in STAMP or such other
"signature guaranty program" as may be
determined by the Trustee in addition to or
in substitution for STAMP, all in accordance
with the Securities Exchange Act of 1934, as
amended.)
<PAGE>
EXHIBIT B
SPECIMEN OF DEBENTURE
[Included in Exhibit 4(c)]
<PAGE>
EXHIBIT C
DEALER MANAGER AGREEMENT
[See Exhibit 1]
Exhibit 4(c)
SECOND SUPPLEMENTAL INDENTURE
between
FLEET FINANCIAL GROUP, INC.
and
THE FIRST NATIONAL BANK OF CHICAGO
Dated as of February 4, 1997
<PAGE>
TABLE OF CONTENTS*
Page
ARTICLE I
DEFINITIONS
SECTION 1.1 Definition of Terms 1
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1 Designation and Principal Amount 3
SECTION 2.2 Maturity 3
SECTION 2.3 Form and Payment 3
SECTION 2.4 Global Debenture 4
SECTION 2.5 Interest 5
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1 Special Event Redemption 5
SECTION 3.2 Optional Redemption by Company 6
SECTION 3.3 No Sinking Fund 6
SECTION 3.4 Required Approval 6
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1 Extension of Interest Payment Period 6
SECTION 4.2 Notice of Extension 7
SECTION 4.3 Limitation of Transactions 7
ARTICLE V
EXPENSES
SECTION 5.1 Payment of Expenses 7
SECTION 5.2 Payment Upon Resignation or Removal 8
ARTICLE VI
COVENANT TO LIST ON EXCHANGE
SECTION 6.1 Listing on an Exchange 8
ARTICLE VII
FORM OF DEBENTURE
SECTION 7.1 Form of Debenture 9
ARTICLE VIII
ORIGINAL ISSUE OF DEBENTURES
SECTION 8.1 Original Issue of Debentures 13
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Ratification of Indenture 14
SECTION 9.2 Trustee Not Responsible for Recitals 14
SECTION 9.3 Governing Law 14
SECTION 9.4 Separability 14
SECTION 9.5 Counterparts 14
*THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE A PART OF
THIS SECOND SUPPLEMENTAL INDENTURE.
<PAGE>
SECOND SUPPLEMENTAL INDENTURE, dated as of February 4, 1997 (the "Second
Supplemental Indenture"), between Fleet Financial Group, Inc., a Rhode Island
corporation (the "Company"), and The First National Bank of Chicago, as trustee
(the "Trustee") under the Indenture dated as of December 11, 1996 between the
Company and the Trustee (the "Indenture").
WHEREAS, the Company executed and delivered the Indenture to the Trustee to
provide for the future issuance of the Company's unsecured junior subordinated
debt securities to be issued from time to time in one or more series as might be
determined by the Company under the Indenture, in an unlimited aggregate
principal amount which may be authenticated and delivered as provided in the
Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company desires to
provide for the establishment of a new series of such securities to be known as
its 8.00% Junior Subordinated Deferrable Interest Debentures due 2027 (the
"Debentures"), the form and substance of such Debentures and the terms,
provisions and conditions thereof to be set forth as provided in the Indenture
and this Second Supplemental Indenture;
WHEREAS, the Company and Fleet Capital Trust I, a Delaware statutory
business trust (the "Trust"), have made an offer to exchange (the "Offer") the
Trust's 8.00% Trust Originated Preferred Securities (the "Preferred
Securities"), representing preferred undivided beneficial interests in the
assets of the Trust, for any and all of the Company's depositary shares (the
"Depositary Shares"), each representing a 1/10 interest in a share of Series V
7.25% Perpetual Preferred Stock, $1.00 par value, of the Company (the "Preferred
Stock") not owned by the Company;
WHEREAS, concurrently with the issuance of the Preferred Securities in
exchange for Depositary Shares validly tendered in the Offer, (a) the Trust will
issue and sell to the Company 8.00% Trust Originated Common Securities (the
"Common Securities") in an aggregate stated liquidation amount equal to at least
3% of the total capital of the Trust and (b) the Company will deposit in the
Trust as trust assets the Debentures having an aggregate principal amount equal
to the aggregate stated liquidation amount of the Preferred Securities and the
Common Securities so issued; and
WHEREAS, the Company has requested that the Trustee execute and deliver
this Second Supplemental Indenture and all requirements necessary to make this
Second Supplemental Indenture a valid instrument in accordance with its terms,
and to make the Debentures, when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company, have been
performed, and the execution and delivery of this Second Supplemental Indenture
has been duly authorized in all respects.
NOW THEREFORE, in consideration of the purchase and acceptance of the
Debentures by the Holders thereof, and for the purpose of setting forth, as
provided in the Indenture, the form and substance of the Debentures and the
terms, provisions and conditions thereof, the Company covenants and agrees with
the Trustee as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used in this
Second Supplemental Indenture;
(b) a term defined anywhere in this Second Supplemental Indenture has the
same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or Article of this
Second Supplemental Indenture;
(e) headings are for convenience of reference only and do not affect
interpretation;
(f) the following terms have the meanings given to them in the
Declaration: (i) Dealer Manager Agreement; (ii) Delaware Trustee;
(iii) Distributions; (iv) Institutional Trustee; (v) Preferred
Securities Guarantee; (vi) Preferred Security Certificate and (vii)
Regular Trustee.
(g) the following terms have the meanings given to them in this Section
1.1(g):
"Additional Interest" shall have the meaning set forth in Section 2.5(c).
"Compound Interest" shall have the meaning set forth in Section 4.1.
"Coupon Rate" shall have the meaning set forth in Section 2.5(a).
"Creditor" shall have the meaning set forth in Section 5.1
"Declaration" means the Amended and Restated Declaration of Trust of Fleet
Capital Trust I, a Delaware statutory business trust, dated as of February 4,
1997.
"Deferred Interest" shall have the meaning set forth in Section 4.1.
"Dissolution Event" means the dissolution of the Trust and distribution of
the Debentures held by the Institutional Trustee pro rata to the holders of the
Trust Securities in accordance with the Declaration, such event to occur at the
option of the Company at any time.
"Extended Interest Payment Period" shall have the meaning set forth in
Section 4.1.
"Federal Reserve Board" means the Board of Governors of the Federal Reserve
System.
"Global Debenture" shall have the meaning set forth in Section 2.4(a).
"Holder" means any person in whose name at the time a Debenture is
registered on the Security Register.
"Interest Payment Date" shall have the meaning set forth in Section 2.5(a).
"Non Book-Entry Preferred Securities" shall have the meaning set forth in
Section 2.4(a).
"Optional Prepayment Price" shall have the meaning set forth in Section
3.2.
"Redemption Price" shall mean either the Special Event Prepayment Price or
the Optional Prepayment Price, as the context requires.
"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 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 date of
original issuance of the Preferred Securities, the Preferred Securities do not
constitute, or within 90 days of the date thereof, will not constitute, Tier 1
capital (or its equivalent) for purposes of the Federal Reserve Board's capital
guidelines for bank holding companies; provided, however, that the distribution
of the Debentures in connection with the liquidation of the Trust by the Company
and the treatment thereafter of the Debentures as other than Tier 1 capital
shall not in and of itself constitute a Regulatory Capital Event unless such
liquidation shall have occurred in connection with a Tax Event.
"Special Event" means a Tax Event or Regulatory Capital Event, as the case
may be.
"Special Event Prepayment Price" shall have the meaning set forth in
Section 3.1.
"Stated Maturity" means the date on which the Debentures mature and on
which the principal shall be due and payable, together with all accrued and
unpaid interest thereon including Compound Interest and Additional Interest, if
any, which date shall be February 15, 2027, unless shortened to a date not
earlier than April 15, 2001, or extended to a date not later than February 15,
2046, as more fully described in Section 2.2.
"Tax Event" means that the Regular Trustees shall have received an opinion
of a nationally recognized independent tax counsel experienced in such matters
to the effect that, as a result of (a) any amendment to, or change (including
any announced prospective change) in, the laws or any regulations thereunder of
the United States or any political subdivision or taxing authority thereof or
therein, or (b) any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or such pronouncement or decision is announced on or after the date of
the original issuance of the Debentures, 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 Company on
the Debentures is not, or within 90 days of the date thereof will not be,
deductible by the Company, in whole or in part, for United States federal income
tax purposes, or (iii) the Trust is, or will be within 90 days of the date of
such opinion, subject to more than a de minimis amount of other taxes, duties or
other governmental charges.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1. Designation and Principal Amount.
There is hereby authorized a series of Securities designated the "8.00%
Junior Subordinated Deferrable Interest Debentures due 2027", limited in
aggregate principal amount to the aggregate stated liquidation amount of the
Preferred Securities and Common Securities to be issued by the Trust, which
amount shall be as set forth in any written order of the Company for the
authentication and delivery of Debentures pursuant to Section 2.04 of the
Indenture.
SECTION 2.2. Maturity.
(a) The Debentures shall mature on February 15, 2027. The Company has the
right at any time to shorten the maturity of the Debentures to a date not
earlier than April 15, 2001. The exercise of such right is subject to the prior
approval of the Federal Reserve Board if such approval is then required under
applicable law, rules, guidelines or policies. The Company also has the right to
extend the maturity of the Debentures to a date no later than February 15, 2046,
so long as at the time such election is made and at the time such extension
commences (i) the Company is not in bankruptcy, otherwise insolvent or in
liquidation, (ii) the Company is not in default in the payment of any interest
or principal on the Debentures, (iii) the Trust is not in arrears on payments of
distributions on the Preferred Securities and no deferred distributions on the
Preferred Securities are accumulated and (iv) the Debentures or, if the
Preferred Securities are so rated, the Preferred Securities are rated at least
BBB- by Standard & Poor's Ratings Services, at least Baa3 by Moody's Investors
Service, Inc. or at least the equivalent by any other nationally recognized
statistical rating organization
(b) In the event that the Company elects to shorten or extend the maturity
date of the Debentures, it shall give notice to the Trustee, and the Trustee
shall give notice of such shortening or extension to the holders of the
Debentures no more than 90 and no less than 30 days prior to the effectiveness
thereof.
SECTION 2.3. Form and Payment.
Except as provided in Section 2.4, the Debentures shall be issued in fully
registered certificated form without interest coupons. Principal and interest on
the Debentures issued in certificated form will be payable, the transfer of such
Debentures will be registrable and such Debentures will be exchangeable for
Debentures bearing identical terms and provisions at the office or agency of the
Trustee in New York, New York; provided, however, that payment of interest may
be made at the option of the Company by check mailed to the Holder entitled
thereto at such address as shall appear in the Security Register or by wire
transfer to an account appropriately designated by the Holder entitled thereto.
Notwithstanding the foregoing, so long as the Holder of any Debentures is the
Institutional Trustee, the payment of the principal of and interest (including
Compound Interest and Additional Interest, if any) on such Debentures held by
the Institutional Trustee will be made at such place and to such account as may
be designated by the Institutional Trustee.
SECTION 2.4. Global Debenture.
(a) In connection with a Dissolution Event,
(i) the Debentures in certificated form may be presented to the
Trustee by the Institutional Trustee in exchange for a global Debenture in
an aggregate principal amount equal to the aggregate principal amount of
all outstanding Debentures (a "Global Debenture"), to be registered in the
name of the Depository Institution, or its nominee, and delivered by the
Trustee to the Depository Institution for crediting to the accounts of its
participants pursuant to the instructions of the Regular Trustees. The
Company upon any such presentation shall execute a Global Debenture in such
aggregate principal amount and deliver the same to the Trustee for
authentication and delivery in accordance with the Indenture and this
Second Supplemental Indenture. Payments on the Debentures issued as a
Global Debenture will be made to the Depository Institution; and
(ii) if any Preferred Securities are held in non book-entry
certificated form, the Debentures in certificated form may be presented to
the Trustee by the Institutional Trustee and any Preferred Security
Certificate which represents Preferred Securities other than Preferred
Securities held by the Depository Institution or its nominee ("Non
Book-Entry Preferred Securities") will be deemed to represent beneficial
interests in Debentures presented to the Trustee by the Institutional
Trustee having an aggregate principal amount equal to the aggregate
liquidation amount of the Non Book-Entry Preferred Securities until such
Preferred Security Certificates are presented to the Security registrar for
transfer or reissuance, at which time such Preferred Security Certificates
will be cancelled and a Debenture, registered in the name of the holder of
the Preferred Security Certificate or the transferee of the holder of such
Preferred Security Certificate, as the case may be, with an aggregate
principal amount equal to the aggregate liquidation amount of the Preferred
Security Certificate cancelled, will be executed by the Company and
delivered to the Trustee for authentication and delivery in accordance with
the Indenture and this Second Supplemental Indenture. On issue of such
Debentures, Debentures with an equivalent aggregate principal amount that
were presented by the Institutional Trustee to the Trustee will be deemed
to have been cancelled.
(b) A Global Debenture may be transferred, in whole but not in part, only
to another nominee of the Depository Institution, or to a successor Depository
Institution selected or approved by the Company or to a nominee of such
successor Depository Institution.
(c) If (i) at any time the Depository Institution notifies the Company that
it is unwilling or unable to continue as Depository Institution or if at any
time the Depository Institution for such series shall no longer be registered or
in good standing under the Securities Exchange Act of 1934, as amended, or other
applicable statute or regulation, and a successor Depository Institution for
such series 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,
(ii) the Company at any time determines that the Debentures shall no longer be
represented by a Global Debenture or (iii) there shall have occurred an Event of
Default, then the Company will execute, and, subject to Article II of the
Indenture, the Trustee, upon written notice from the Company, will authenticate
and deliver the Debentures in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Debenture in exchange for such Global Debenture.
In such event the Company will execute, and subject to Section 2.07 of the
Indenture, the Trustee, upon receipt of an Officers' Certificate evidencing such
determination by the Company, will authenticate and deliver the Debentures in
definitive registered form without coupons, in authorized denominations, and in
an aggregate principal amount equal to the principal amount of the Global
Debenture in exchange for such Global Debenture. Upon the exchange of the Global
Debenture for such Debentures in definitive registered form without coupons, in
authorized denominations, the Global Debenture shall be cancelled by the
Trustee. Such Debentures in definitive registered form issued in exchange for
the Global Debenture shall be registered in such names and in such authorized
denominations as the Depository Institution, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such Securities to the Depository Institution for delivery
to the Persons in whose names such Securities are so registered.
SECTION 2.5. Interest.
(a) Each Debenture will bear interest at the rate of 8.00% per annum (the
"Coupon Rate") from January 31, 1997, the first date following the expiration
date of the Offer (the "Accrual Date"), 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 quarterly, payable quarterly in arrears
on March 31, June 30, September 30 and December 31 of each year (each, an
"Interest Payment Date"), commencing on March 31, 1997, to the Person in whose
name such Debenture or any predecessor Debenture is registered, at the close of
business on the March 15, June 15, September 15 and December 15 prior to the
applicable Interest Payment Date, except as otherwise provided herein. Payments
of interest may be deferred by the Company pursuant to the provisions of Article
IV hereof. The Debentures will also accrue interest at the rate of 7.25% per
annum of the principal amount thereof from January 15, 1997 through January 30,
1997, the expiration date of the Offer, payable on March 31, 1997 to holders of
the Debentures on the record date for such distribution ("Pre-Issuance
Interest"). No deferral of interest will be permitted with respect to interest
accruing from January 15, 1997 through January 30, 1997.
(b) The amount of interest payable for any period will be computed on the
basis of a 360-day year of twelve 30-day months. Except as provided in the
following sentence, the amount of interest payable for any period shorter than a
full quarterly period for which interest is computed, will be computed on the
basis of the actual number of days elapsed. In the event that any date on which
interest is payable on the Debentures 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), except that, if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such date.
(c) If, at any time while the Institutional Trustee is the holder of any
Junior Subordinated Debentures, the Trust or the Institutional Trustee is
required to pay any taxes, duties, assessments or governmental charges of
whatever nature (other than withholding taxes) imposed by the United States, or
any other taxing authority, then, in any such case, the Company will pay as
additional interest ("Additional Interest") on the Debentures held by the
Institutional Trustee, such additional amounts as shall be required so that the
net amounts received and retained by the Trust and the Institutional Trustee
after paying such taxes, duties, assessments or other governmental charges will
be equal to the amounts the Trust would have received had no such taxes, duties,
assessments or other governmental charges been imposed.
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1. Special Event Redemption.
If, prior to April 15, 2001, a Special Event has occurred and is
continuing, the Company shall have the right, upon not less than 30 days and no
more than 60 days notice to the Holders, at its option, to redeem the
Debentures, in whole (but not in part), for cash within 90 days following the
occurrence of such Special Event at a prepayment price (the "Special Event
Prepayment Price") equal to (i) 104% of the principal amount of the Debentures
if prepaid during the period commencing on the Accrual Date through and
including April 14, 1998 and (ii) the percentage of the principal amount of the
Debentures specified below, if prepaid during the 12-month period beginning
April 15 of the years indicated below, plus, in each case, any accrued and
unpaid interest thereon to the date of prepayment:
Year Percentage
1998 103%
1999 102
2000 101
2001 and thereafter 100
The Special Event Prepayment 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 Prepayment Price by 10:00 a.m., New York
time, on the date such Special Event Prepayment Price is to be paid.
SECTION 3.2. Optional Redemption by Company.
Subject to the provisions of Article XIV of the Indenture, except as
otherwise may be specified in this Second Supplemental Indenture, the Company
shall have the right, upon not less than 30 days and no more than 60 days notice
to the Holder, to redeem the Debentures, in whole or in part, from time to time,
on or after April 15, 2001, for cash at a prepayment price (the "Optional
Prepayment Price") equal to 100% of the principal amount thereof, plus any
accrued and unpaid interest thereon to the redemption date. If the Debentures
are only partially redeemed pursuant to this Section 3.2, the Debentures will be
redeemed pro rata or by lot or by any other method utilized by the Trustee;
provided, that if at the time of redemption the Debentures are registered as a
Global Debenture, the Depository Institution shall determine, in accordance with
its procedures, the principal amount of such Debentures held by each Holder to
be redeemed. The Optional Prepayment Price 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 Optional Prepayment Price by 10:00 a.m., New York
time, on the date such Optional Prepayment Price is to be paid.
SECTION 3.3. No Sinking Fund.
The Debentures are not entitled to the benefit of any sinking fund.
SECTION 3.4. Required Approval.
Any redemption of the Debentures in accordance with the foregoing Sections
may require the prior approval of the Federal Reserve Board if such approval is
then required under applicable law, rules, guidelines or policies.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period.
With the exception of Pre-Issuance Interest, so long as the Company shall
not be in default in the payment of interest on the Debentures, the Company
shall have the right, at any time and from time to time during the term of the
Debentures, to defer payments of interest by extending the interest payment
period of such Debentures for a period not exceeding 20 consecutive quarters
(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 Stated Maturity. To the extent permitted by
applicable law, interest, the payment of which has been deferred because of the
extension of the interest payment period pursuant to this Section 4.1, will bear
interest thereon at the Coupon Rate compounded quarterly for each quarter of the
Extended Interest Payment Period ("Compound Interest"). At the end of the
Extended Interest Payment Period, the Company shall pay all interest accrued and
unpaid on the Debentures, including any Additional Interest and Compound
Interest (together, "Deferred Interest") that shall be payable to the Holders in
whose names the Debentures are registered in the Security Register on the first
record date after the end of the Extended Interest Payment Period. Before the
termination of any Extended Interest Payment Period, the Company may further
extend such period, provided that such period together with all such further
extensions thereof shall not exceed 20 consecutive quarters, or extend beyond
the Stated Maturity of the Debentures. Upon the termination of any Extended
Interest Payment Period and upon 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.
SECTION 4.2. Notice of Extension.
(a) If the Institutional Trustee is the only registered Holder at the time
the Company selects an Extended Interest Payment Period, the Company shall give
written notice to the Regular Trustees, the Institutional Trustee and the
Trustee of its selection of such Extended Interest Payment Period one Business
Day before the earlier of (i) the next succeeding date on which Distributions on
the Trust Securities issued by the Trust are payable, or (ii) the date the Trust
is required to give notice of the record date, or the date such Distributions
are payable, to the New York Stock Exchange or other applicable self-regulatory
organization or to holders of the Preferred Securities issued by the Trust, but
in any event at least one Business Day before such record date.
(b) If the Institutional Trustee is not the only Holder at the time the
Company selects an Extended Interest Payment Period, the Company shall give the
Holders of the Debentures and the Trustee written notice of its selection of
such Extended Interest Payment Period at least ten 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 the New York Stock Exchange or other applicable
self-regulatory organization or to Holders of the Debentures.
(c) The quarter in which any notice is given pursuant to paragraphs (a) or
(b) of this Section 4.2 shall be counted as one of the 20 quarters permitted in
the maximum Extended Interest Payment Period permitted under Section 4.1.
SECTION 4.3. Limitation of Transactions.
If (i) the Company shall exercise its right to defer payment of interest as
provided in Section 4.1, or (ii) there shall have occurred any Event of Default,
as defined in the Indenture, or (iii) there shall have occurred any Event of
Default, as defined in the Preferred Securities Guarantee, then (a) the Company
shall not declare or pay any dividend on, make any distribution with respect to,
or redeem, purchase, acquire or make a liquidation payment with respect to, any
of its capital stock (other than (1) purchases or acquisitions of shares of its
common stock in connection with the satisfaction by the Company of its
obligations under any employee benefit plans or any other contractual obligation
of the Company (other than a contractual obligation ranking pari passu with or
junior to the Debentures), (2) as a result of a reclassification of the
Company's capital stock or the exchange or conversion of one class or series of
the Company's capital stock for another class or series of the Company's capital
stock or (3) 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), (b) the Company shall not
make any payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities issued by the Company that rank pari
passu with or junior to the Debentures and (c) the Company shall not make any
guarantee payments with respect to the foregoing (other than pursuant to the
Preferred Securities Guarantee).
ARTICLE V
EXPENSES
SECTION 5.1. Payment of Expenses.
In connection with the offering, sale and issuance of the Debentures to the
Institutional Trustee and in connection with the sale of the Trust Securities by
the Trust, the Company, in its capacity as borrower with respect to the
Debentures, shall:
(a) pay all costs and expenses relating to the offering, sale and issuance
of the Debentures, including fees to the dealer managers payable pursuant to the
Dealer Manager Agreement and compensation of the Trustee under the Indenture in
accordance with the provisions of Section 6.06 of the Indenture;
(b) be responsible for and shall pay all debts and obligations (other than
payments of principal, interest and premium, if any, with respect to the Trust
Securities) and costs and expenses of the Trust (including, but not limited to,
costs and expenses relating to the organization, maintenance and dissolution of
the Trust, the offer, sale and issuance of the Trust Securities (including fees
to the dealer managers in connection therewith), the fees and expenses
(including reasonable counsel fees and expenses) of the Institutional Trustee,
the Delaware Trustee and the Regular Trustees (including any amounts payable
under Article 10 of the Declaration), the costs and expenses relating to the
operation of the Trust, including without limitation, costs and expenses of
accountants, attorneys, statistical or bookkeeping services, expenses for
printing and engraving and computing or accounting equipment, paying agent(s),
registrar(s), transfer agent(s), duplicating, travel and telephone and other
telecommunications expenses and costs and expenses incurred in connection with
the acquisition, financing, and disposition of Trust assets and the enforcement
by the Institutional Trustee of the rights of the holders of the Preferred
Securities);
(c) be primarily liable for any indemnification obligations arising with
respect to the Declaration; and
(d) pay any and all taxes (other than United States withholding taxes
attributable to the Trust or its assets) and all liabilities, costs and expenses
with respect to such taxes of the Trust.
The Company's obligations under this Section 5.1 shall be for the benefit
of, and shall be enforceable by, any person to whom such debts, obligations,
costs, expenses and taxes are owed (a "Creditor") whether or not such Creditor
has received notice hereof. Any such Creditor may enforce the Company's
obligations under this Section 5.1 directly against the Company and the Company
irrevocably waives any right of remedy to require that any such Creditor take
any action against the Trust or any other Person before proceeding against the
Company. The Company agrees to execute such additional agreements as may be
necessary or desirable in order to give full effect to the provisions of this
Section 5.1.
SECTION 5.2. Payment Upon Resignation or Removal.
Upon termination of this Second Supplemental Indenture or the Indenture or
the removal or resignation of the Trustee, unless otherwise stated, the Company
shall pay to the Trustee all amounts accrued to the date of such termination,
removal or resignation. Upon termination of the Declaration or the removal or
resignation of the Delaware Trustee or the Institutional Trustee, as the case
may be, pursuant to Section 5.6 of the Declaration, the Company shall pay to the
Delaware Trustee or the Institutional Trustee, as the case may be, all amounts
accrued to the date of such termination, removal or resignation.
ARTICLE VI
COVENANT TO LIST ON EXCHANGE
SECTION 6.1. Listing on an Exchange.
If the Debentures are distributed to the holders of the Preferred
Securities issued by the Trust, and the Preferred Securities are then so listed,
the Company will use its best efforts to list such Debentures on the New York
Stock Exchange, Inc. or on such other exchange as the Preferred Securities are
then listed.
ARTICLE VII
FORM OF DEBENTURE
SECTION 7.1. Form of Debenture.
The Debentures and the Certificate of Authentication to be endorsed thereon
are to be substantially in the following forms:
(FORM OF FACE OF DEBENTURE)
IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT - This Debenture is a
Global Debenture within the meaning of the Indenture hereinafter referred to and
is registered in the name of a Depositary or a nominee of a Depositary. This
Debenture is exchangeable for Debentures registered in the name of a person
other than the Depositary or its nominee only in the limited circumstances
described in the Indenture, and no transfer of this Debenture (other than a
transfer of this Debenture as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary) may be registered except in limited circumstances.
Unless this Debenture is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York, New York) to the issuer or
its agent for registration of transfer, exchange or payment, and any Debenture
issued is registered in the name of Cede & Co. or such other name as requested
by an authorized representative of The Depository Trust Company and any payment
hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner hereof, Cede &
Co., has an interest herein.
No. ______________________________
FLEET FINANCIAL GROUP, INC.
8.00% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE
DUE 2027
FLEET FINANCIAL GROUP, INC., a Rhode Island corporation (the "Company",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to The First National
Bank of Chicago, as Institutional Trustee of Fleet Capital Trust I under that
certain Amended and Restated Declaration of Trust dated as of February 4, 1997,
or registered assigns, the principal sum of Eighty-Six Million Three Hundred
Thirty-Eight Thousand Seventy-Five Dollars ($86,338,075.00) on February 15, 2027
(such date, as it may be shortened or extended as provided below, the "Stated
Maturity"), and to pay interest on said principal sum from January 31, 1997, or
from the most recent interest payment date (each such date, an "Interest Payment
Date") to which interest has been paid or duly provided for, quarterly (subject
to deferral as set forth herein) in arrears on March 31, June 30, September 30
and December 31 of each year commencing March 31, 1997, at the rate of 8.00% per
annum until the principal hereof shall have become due and payable, and on any
overdue principal and premium, if any, 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 same rate per annum compounded quarterly.
The amount of interest payable on any Interest Payment Date shall be computed on
the basis of a 360-day year of twelve 30-day months. In the event that any date
on which interest is payable on this Debenture is not a Business Day, then
payment of interest payable on such date will be made on the next succeeding day
that is a Business Day (and without any interest or other payment in respect of
any such delay), except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such date. The
interest installment so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Indenture, be paid to the
person in whose name this Debenture (or one or more Predecessor Securities, as
defined in said Indenture) is registered at the close of business on the March
15, June 15, September 15 and December 15 prior to the applicable Interest
Payment Date. Payments of interest may be deferred by the Company pursuant to
the provisions of Article IV hereof. The Debentures will also accrue interest at
the rate of 7.25% per annum of the principal amount thereof from January 15,
1997 through January 30, 1997, payable on March 31, 1997 to holders of the
Debentures on the record date for such distribution. No deferral of interest
will be permitted with respect to interest accruing from January 15, 1997
through January 30, 1997. Any such interest installment not punctually paid or
duly provided for shall forthwith cease to be payable to the registered Holders
on such regular record date and may be paid to the Person in whose name this
Debenture (or one or more Predecessor Securities) is registered at the close of
business on a special record date to be fixed by the Trustee for the payment of
such defaulted interest, notice whereof shall be given to the registered Holders
of this series of Debentures not less than 10 days prior to such special record
date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Debentures may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in the Indenture. The principal of (and premium, if any) and the
interest on this Debenture shall be payable at the office or agency of the
Trustee maintained for that purpose in any coin or currency of the United States
of America that at the time of payment is legal tender for payment of public and
private debts; provided, however, that payment of interest may be made at the
option of the Company by check mailed to the registered Holder at such address
as shall appear in the Security Register. Notwithstanding the foregoing, so long
as the Holder of this Debenture is the Institutional Trustee, the payment of the
principal of (and premium, if any) and interest on this Debenture will be made
at such place and to such account as may be designated by the Institutional
Trustee.
The Company has the right at any time to shorten the maturity of the
Debentures to a date not earlier than April 15, 2001. The exercise of such right
is subject to the prior approval of the Federal Reserve Board if such approval
is then required under applicable law, rules, guidelines or policies. The
Company also has the right to extend the maturity of the Debentures to a date no
later than February 15, 2046, so long as at the time such election is made and
at the time such extension commences (i) the Company is not in bankruptcy,
otherwise insolvent or in liquidation, (ii) the Company is not in default in the
payment of any interest or principal on the Debentures, (iii) the Trust is not
in arrears on payments of distributions on the Preferred Securities and no
deferred distributions on the Preferred Securities are accumulated and (iv) the
Debentures or, if the Preferred Securities are so rated, the Preferred
Securities are rated at least BBB- by Standard & Poor's Ratings Services, at
least Baa3 by Moody's Investors Service, Inc. or at least the equivalent by any
other nationally recognized statistical rating organization.
The indebtedness evidenced by this Debenture is, to the extent provided in
the Indenture, subordinate and junior in right of payment to the prior payment
in full of all Senior Indebtedness and Other Financial Obligations, and this
Debenture is issued subject to the provisions of the Indenture with respect
thereto. Each Holder of this Debenture, by accepting the same, (a) agrees to and
shall be bound by such provisions, (b) authorizes and directs the Trustee on his
or her behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination so provided and (c) appoints the
Trustee his or her attorney-in-fact for any and all such purposes. Each Holder
hereof, by his or her acceptance hereof, hereby waives all notice of the
acceptance of the subordination provisions contained herein and in the Indenture
by each holder of Senior Indebtedness and Other Financial Obligations, whether
now outstanding or hereafter incurred, and waives reliance by each such holder
upon said provisions.
This Debenture 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.
The provisions of this Debenture are continued on the reverse side hereof
and such continued provisions shall for all purposes have the same effect as
though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be executed.
Dated: February __, 1997
FLEET FINANCIAL GROUP, INC.
By:_________________________________________
Name
Title
Attest:
By:_______________________________
Name:
Title:
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
The First National Bank of Chicago as Trustee
By___________________________________________
Authorized Officer
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of Debentures of the
Company (herein sometimes referred to as the "Debentures"), specified in the
Indenture, all issued or to be issued in one or more series under and pursuant
to an Indenture dated as of December 11, 1996, duly executed and delivered
between the Company and The First National Bank of Chicago as Trustee (the
"Trustee"), as supplemented by the Second Supplemental Indenture dated as of
February 4, 1997, between the Company and the Trustee (the Indenture as so
supplemented, the "Indenture"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the Holders of the Debentures. By the terms of the
Indenture, the Debentures are issuable in series that may vary as to amount,
date of maturity, rate of interest and in other respects as provided in the
Indenture. This series of Debentures is limited in aggregate principal amount as
specified in said Second Supplemental Indenture.
If, prior to April 15, 2001, a Special Event has occurred and is
continuing, the Company shall have the right, upon not less than 30 days and no
more than 60 days notice to the Holders, at its option, to redeem the
Debentures, in whole (but not in part), for cash within 90 days following the
occurrence of such Special Event at a prepayment price (the "Special Event
Prepayment Price") equal to (i) 104% of the principal amount of the Debentures
if prepaid during the period commencing on January 31, 1997 through and
including April 14, 1998 and (ii) the percentage of the principal amount of the
Debentures specified below, if prepaid during the 12-month period beginning
April 15 of the years indicated below, plus, in each case, any accrued and
unpaid interest thereon to the date of prepayment:
<PAGE>
Year Percentage
1998 103%
1999 102
2000 101
2001 and thereafter 100
Subject to the provisions of Article XIV of the Indenture, except as
otherwise may be specified in the Second Supplemental Indenture, the Company
shall have the right, upon not less than 30 days and no more than 60 days notice
to the Holder, to redeem the Debentures, in whole or in part, from time to time,
on or after April 15, 2001 (an "Optional Redemption"), for cash at a prepayment
price (the "Optional Prepayment Price") equal to 100% of the principal amount
thereof, plus any accrued and unpaid interest thereon to the date of prepayment.
The Redemption Price 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 by 10:00 a.m., New York time, on the date such
Redemption Price is to be paid. If the Debentures are only partially redeemed by
the Company pursuant to an Optional Redemption, the Debentures will be redeemed
pro rata or by lot or by any other method utilized by the Trustee; provided that
if, at the time of redemption, the Debentures are registered as a Global
Debenture, the Depository Institution shall determine the principal amount of
such Debentures held by each Holder to be redeemed in accordance with its
procedures.
In the event of redemption of this Debenture in part only, a new Debenture
or Debentures of this series for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Debentures may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the Holders of not less than a majority in aggregate
principal amount of the Debentures of each series affected 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 any supplemental indenture or of
modifying in any manner the rights of the Holders of the Debentures; provided,
however, that no such supplemental indenture shall (i) extend the fixed maturity
of any Debentures of any series, or reduce the principal amount thereof or any
premium thereon, or reduce the rate or extend the time of payment of interest
thereon, or reduce any amount payable on redemption thereof or make the
principal thereon or any interest or premium thereon payable in any coin or
currency other than that provided in this Debenture, or impair or affect the
right of any Holder of a Debenture to institute suit for payment thereof or the
right of repayment, if any, at the option of the Holder, without the consent of
the Holder of each Debenture so affected, or (ii) reduce the aforesaid
percentage of Debentures, the Holders of which are required to consent to any
such supplemental indenture, without the consent of the Holders of each
Debenture then outstanding and affected thereby. The Indenture also contains
provisions permitting the Holders of a majority in aggregate principal amount of
the Debentures of any series at the time outstanding affected thereby, on behalf
of all of the Holders of the Debentures of such series, to waive any past
default in the performance of any of the covenants contained in the Indenture,
or established pursuant to the Indenture with respect to such series, and its
consequences, except a default in the payment of the principal of or premium, if
any, or interest on any of the Debentures of such series. Any such consent or
waiver by the registered Holder of this Debenture (unless revoked as provided in
the Indenture) shall be conclusive and binding upon such Holder and upon all
future Holders and owners of this Debenture and of any Debenture issued in
exchange hereof or in place hereof (whether by registration of transfer or
otherwise), irrespective of whether or not any notation of such consent or
waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this Debenture or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Debenture at the time and place and at the rate and in the
money herein prescribed.
The Company shall have the right at any time during the term of the
Debentures and from time to time to extend the interest payment period of such
Debentures for up to 20 consecutive quarters (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 rate specified for the
Debentures to the extent that payment of such interest is enforceable under
applicable law); provided that no Extended Interest Payment Period may last
beyond the Stated Maturity of the Debentures. Before the termination of any such
Extended Interest Payment Period, the Company may further extend such Extended
Interest Payment Period, provided that such Extended Interest Payment Period
together with all such further extensions thereof shall not exceed 20
consecutive quarters or last beyond the Stated Maturity date of the Debentures.
At the termination of any such Extended Interest Payment Period and upon the
payment of all accrued and unpaid interest and any additional amounts then due,
the Company may commence a new Extended Interest Payment Period.
As provided in the Indenture and subject to certain limitations therein set
forth, this Debenture is transferable by the registered Holder hereof on the
Security Register of the Company, upon surrender of this Debenture for
registration of transfer at the office or agency of the Trustee in the City and
State of New York accompanied by a written instrument or instruments of transfer
in form satisfactory to the Company or the Trustee duly executed by the
registered Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Debentures of authorized denominations and for the
same aggregate principal amount and series will be issued to the designated
transferee or transferees. No service charge will be made for any such transfer,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Debenture,
the Company, the Trustee, any paying agent and the Security registrar may deem
and treat the registered holder hereof as the absolute owner hereof (whether or
not this Debenture shall be overdue and notwithstanding any notice of ownership
or writing hereon made by anyone other than the Security registrar) for the
purpose of receiving payment of or on account of the principal hereof and
premium, if any, and interest due hereon and for all other purposes, and neither
the Company nor the Trustee nor any paying agent nor any Security registrar
shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
The Debentures of this series are issuable only in registered form without
coupons in denominations of $25 and any integral multiple thereof. As provided
in the Indenture and subject to certain limitations herein and therein set
forth, Debentures of this series so issued are exchangeable for a like aggregate
principal amount of Debentures of this series of a different authorized
denomination, as requested by the Holder surrendering the same.
All terms used in this Debenture that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
ARTICLE VIII
ORIGINAL ISSUE OF DEBENTURES
SECTION 8.1. Original Issue of Debentures.
Debentures in the aggregate principal amount of the aggregate stated
liquidation amount of the Preferred Securities and Common Securities to be
issued by the Trust, may, upon execution of this Second Supplemental Indenture
or any written order of the Company setting forth the amount therefor, be
executed by the Company and delivered to the Trustee for authentication, and the
Trustee shall thereupon authenticate and deliver said Debentures to or upon the
written order of the Company, signed by its Chairman, its President, or any Vice
President and its Treasurer, its Secretary, any Assistant Treasurer, or any
Assistant Secretary, without any further action by the Company.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Ratification of Indenture.
The Indenture, as supplemented by this Second Supplemental Indenture, is in
all respects ratified and confirmed, and this Second Supplemental Indenture
shall be deemed part of the Indenture in the manner and to the extent herein and
therein provided.
SECTION 9.2. Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and not by the
Trustee, and the Trustee assumes no responsibility for the correctness thereof.
The Trustee makes no representation as to the validity or sufficiency of this
Second Supplemental Indenture.
SECTION 9.3. Governing Law.
This Second Supplemental Indenture and each Debenture shall be deemed to be
a contract made under the internal laws of the State of New York, and for all
purposes shall be construed in accordance with the laws of said State.
SECTION 9.4. Separability.
In case any one or more of the provisions contained in this Second
Supplemental Indenture or in the Debentures shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Second
Supplemental Indenture or of the Debentures, but this Second Supplemental
Indenture and the Debentures shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
SECTION 9.5. Counterparts.
This Second Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
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.
FLEET FINANCIAL GROUP, INC.
By:/s/Douglas L. Jacobs
____________________________________________
Name: Douglas L. Jacobs
Title: Vice President and Treasurer
THE FIRST NATIONAL BANK OF CHICAGO as Trustee
By:/s/Steven M. Wagner
____________________________________________
Name: Steven M. Wagner
Title: Vice President
<PAGE>
STATE OF )
COUNTY OF ) ss.:
On the ____ day of __________, 1997 before me personally came
_______________________, to me known, who, being by me duly sworn, did depose
and say that he resides at ____________________________________________; that he
is ___________________________________ of Fleet Financial Group, Inc., one of
the corporations described in and which executed the above instrument; that he
knows the corporate seal of said corporation; that the seal affixed to the said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation; and that he signed his name thereto by
like authority.
________________________________________
NOTARY PUBLIC
[seal] Commission expires:
STATE OF )
COUNTY OF ) ss.:
On the _____ day of ________________, 1997, before me personally came
__________________________, to me known, who, being by me duly sworn, did depose
and say that he resides at _______________________________; that he is
___________________ of The First National Bank of Chicago, one of the
corporations described in and which executed the above instrument; that he knows
the corporate seal of said corporation; that the seal affixed to the said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his name thereto by
like authority.
________________________________________
NOTARY PUBLIC
[seal] Commission expires:
Exhibit 4(f)
PREFERRED SECURITIES GUARANTEE AGREEMENT
Fleet Capital Trust I
Dated as of February 4, 1997
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation 1
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application 4
SECTION 2.2 Lists of Holders of Securities 4
SECTION 2.3 Reports by the Preferred Guarantee Trustee 4
SECTION 2.4 Periodic Reports to Preferred Guarantee Trustee 4
SECTION 2.5 Evidence of Compliance with Conditions Precedent 5
SECTION 2.6 Events of Default; Waiver 5
SECTION 2.7 Event of Default; Notice 5
SECTION 2.8 Conflicting Interests 5
ARTICLE III
POWERS, DUTIES AND RIGHTS OF PREFERRED GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Preferred Guarantee Trustee 5
SECTION 3.2 Certain Rights of Preferred Guarantee Trustee 7
SECTION 3.3 Not Responsible for Recitals or Issuance of Preferred
Securities Guarantee 8
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 Preferred Guarantee Trustee; Eligibility 8
SECTION 4.2 Appointment, Removal and Resignation of Preferred
Guarantee Trustee 9
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee 9
SECTION 5.2 Waiver of Notice and Demand 10
SECTION 5.3 Obligations Not Affected 10
SECTION 5.4 Enforcement of Guarantee; Rights of Holders 10
SECTION 5.5 Guarantee of Payment 11
SECTION 5.6 Subrogation 11
SECTION 5.7 Independent Obligations 11
ARTICLE VI
LIMITATION OF TRANSACTIONS; RANKING
SECTION 6.1 Limitation of Transactions 11
SECTION 6.2 Ranking 12
ARTICLE VII
TERMINATION
SECTION 7.1 Termination 12
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation 12
SECTION 8.2 Indemnification 13
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns 13
SECTION 9.2 Amendments 13
SECTION 9.3 Notices 13
SECTION 9.4 Benefit 14
SECTION 9.5 Governing Law 14
SECTION 9.6 Genders 14
SECTION 9.7 Counterparts 14
<PAGE>
PREFERRED SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Preferred Securities Guarantee"), dated as
of February 4, 1997, is executed and delivered by Fleet Financial Group, Inc., a
Rhode Island corporation (the "Guarantor"), and The First National Bank of
Chicago, a national banking association, as trustee (the "Preferred Guarantee
Trustee"), for the benefit of the Holders (as defined herein) of Fleet Capital
Trust I, a Delaware statutory business trust (the "Issuer").
WHEREAS, Guarantor and the Issuer have made an offer to exchange (the
"Offer") 8.00% Trust Originated Preferred Securities (the "Preferred
Securities"), representing preferred undivided beneficial interests in the
assets of the Issuer (the "Preferred Securities"), for any and all of the
Guarantor's depositary shares (the "Depositary Shares"), each representing a
1/10 interest in a share of Series V 7.25% Perpetual Preferred Stock, $1.00 par
value, of the Guarantor (the "Preferred Stock") not owned by the Guarantor; and
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of February 4, 1997, among the trustees of the Issuer
named therein, the Guarantor, as sponsor, and the holders from time to time of
undivided beneficial interests in the assets of the Issuer, the Issuer is
issuing on the date hereof one Preferred Security in exchange for each
Depositary Share validly tendered in the Offer; and
WHEREAS, concurrently with the issuance of the Preferred Securities in
exchange for Depositary Shares validly tendered in the Offer, (a) the Issuer
will issue and sell to the Guarantor 8.00% Trust Originated Common Securities
(the "Common Securities") in an aggregate liquidation amount equal to at least
3% of the total capital of the Issuer and (b) the Guarantor will deposit with
the Issuer as trust assets its 8.00% Junior Subordinated Deferrable Interest
Debentures due 2027 (the "Debentures") having an aggregate principal amount
equal to the aggregate stated liquidation amount of the Preferred Securities and
the Common Securities so issued; and
WHEREAS, as incentive for the holders of Depositary Shares to exchange the
Depositary Shares for Preferred Securities, the Guarantor desires irrevocably
and unconditionally to agree, to the extent set forth in this Preferred
Securities Guarantee, to pay to the Holders the Guarantee Payments (as defined
herein) and to make certain other payments on the terms and conditions set forth
herein.
WHEREAS, the Guarantor is also executing and delivering a guarantee
agreement (the "Common Securities Guarantee") in substantially identical terms
to this Preferred Securities Guarantee for the benefit of the holders of the
Common Securities (as defined herein), except that if an Event of Default (as
defined in the Indenture), has occurred and is continuing, the rights of holders
of the Common Securities to receive Guarantee Payments under the Common
Securities Guarantee are subordinated to the rights of Holders to receive
Guarantee Payments under this Preferred Securities Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder, which
purchase the Guarantor hereby agrees shall benefit the Guarantor, the Guarantor
executes and delivers this Preferred Securities Guarantee for the benefit of the
Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
In this Preferred Securities Guarantee, unless the context otherwise
requires:
(a) capitalized terms used in this Preferred Securities Guarantee but not
defined in the preamble above have the respective meanings assigned to them in
this Section 1.1;
(b) a term defined anywhere in this Preferred Securities Guarantee has the
same meaning throughout;
(c) all references to "the Preferred Securities Guarantee" or "this
Preferred Securities Guarantee" are to this Preferred Securities Guarantee as
modified, supplemented or amended from time to time;
(d) all references in this Preferred Securities Guarantee to Articles and
Sections are to Articles and Sections of this Preferred Securities Guarantee,
unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Preferred Securities Guarantee, unless otherwise defined in this
Preferred Securities Guarantee or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of the
Securities Act of 1933, as amended, or any successor rule thereunder.
"Business Day" means any day other than a day on which Federal or State
banking institutions in the Borough of Manhattan, The City of New York, or
Chicago, Illinois are authorized or obligated by any law, executive order or
regulation to close.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer.
"Corporate Trust Office" means the office of the Preferred Guarantee
Trustee at which the corporate trust business of the Preferred Guarantee Trustee
shall, at any particular time, be principally administered, which office at the
date of execution of this Agreement is located at One First National Plaza,
Suite 0126, Chicago, Illinois 60670-0126.
"Covered Person" means any Holder or beneficial owner of Preferred
Securities.
"Debentures" means the 8.00% Junior Subordinated Deferrable Interest
Debentures due 2027 issued by the
Guarantor to the Issuer.
"Event of Default" means a default by the Guarantor on any of its payment
or other obligations under this Preferred Securities Guarantee.
"Guarantee Payments" means the following payments or distributions, without
duplication, with respect to the Preferred Securities, to the extent not paid or
made by the Issuer: (i) any accrued and unpaid Distributions (as defined in the
Declaration) that are required to be paid on such Preferred Securities to the
extent the Issuer shall have funds available therefor, (ii) the redemption
price, including all accrued and unpaid Distributions to the date of redemption
(the "Redemption Price") to the extent the Issuer has funds available therefor,
with respect to any Preferred Securities called for redemption by the Issuer,
and (iii) upon a voluntary or involuntary dissolution, winding-up or termination
of the Issuer (other than in connection with the distribution of Debentures to
the Holders or the redemption of all of the Preferred Securities as provided in
the Declaration), the lesser of (a) the aggregate of the liquidation amount and
all accrued and unpaid Distributions on the Preferred Securities to the date of
payment, to the extent the Issuer shall have funds available therefor, and (b)
the amount of assets of the Issuer remaining available for distribution to
Holders in liquidation of the Issuer (in either case, the "Liquidation
Distribution"). If an event of default under the Indenture has occurred and is
continuing, the rights of holders of the Common Securities to receive payments
under the Common Securities Guarantee Agreement are subordinated to the rights
of Holders to receive Guarantee Payments.
"Holder" means any holder, as registered on the books and records of the
Issuer, of any Preferred Securities; provided, however, that, in determining
whether the holders of the requisite percentage of Preferred Securities have
given any request, notice, consent or waiver hereunder, "Holder" shall not
include the Guarantor or any Affiliate of the Guarantor, but only to the extent
that the Issuer has actual knowledge of such ownership.
"Indemnified Person" means the Preferred Guarantee Trustee, any Affiliate
of the Preferred Guarantee Trustee, or any officers, directors, shareholders,
members, partners, employees, representatives, nominees, custodians or agents of
the Preferred Guarantee Trustee.
"Indenture" means the Indenture dated as of December 11, 1996, among the
Guarantor (the "Debenture Issuer") and The First National Bank of Chicago, as
trustee, and any indenture supplemental thereto pursuant to which certain
subordinated debt securities of the Debenture Issuer are to be issued to the
Institutional Trustee of the Issuer.
"Majority in liquidation amount of the Securities" means, except as
provided by the Trust Indenture Act, a vote by Holder(s), voting separately as a
class, of more than 50% of the liquidation amount (including the stated amount
that would be paid on redemption, liquidation or otherwise, plus accrued and
unpaid Distributions to the date upon which the voting percentages are
determined) of all outstanding Preferred Securities.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by two Authorized Officers of such Person. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Preferred Securities Guarantee shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definition relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers' Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer, such
condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Preferred Guarantee Trustee" means The First National Bank of Chicago, a
national banking association, until a Successor Preferred Guarantee Trustee has
been appointed and has accepted such appointment pursuant to the terms of this
Preferred Securities Guarantee and thereafter means each such Successor
Preferred Guarantee Trustee.
"Resignation Request" has the meaning set forth in Section 4.2(c).
"Responsible Officer" means, with respect to the Preferred Guarantee
Trustee, any officer within the Corporate Trust Office of the Preferred
Guarantee Trustee, including any vice president, any assistant vice president,
any assistant secretary, the treasurer, any assistant treasurer or other officer
of the Corporate Trust Office of the Preferred 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 Preferred Guarantee Trustee" means a successor Preferred
Guarantee Trustee possessing the qualifications to act as Preferred Guarantee
Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
"Trust Securities" means the Common Securities and the Preferred
Securities.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application
(a) This Preferred Securities Guarantee is subject to the provisions of the
Trust Indenture Act that are required to be part of this Preferred Securities
Guarantee and shall, to the extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Preferred Securities
Guarantee limits, qualifies or conflicts with the duties imposed by Section 310
to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
(c) The application of the Trust Indenture Act to this Preferred Securities
Guarantee shall not affect the nature of the Preferred Securities as equity
securities representing undivided beneficial interest in the assets of the
Trust.
SECTION 2.2 Lists of Holders of Securities
(a) The Guarantor shall provide the Preferred Guarantee Trustee with a
list, in such form as the Preferred Guarantee Trustee may reasonably require, of
the names and addresses of the Holders ("List of Holders") as of such date, (i)
within one Business Day after January 1 and June 30 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. Such list shall be as of a date no more than 14 days
before such List of Holders is given to the Preferred Guarantee Trustee. The
Guarantor shall not be obligated to provide such List of Holders if at any time
the List of Holders does not differ from the most recent List of Holders given
to the Preferred Guarantee Trustee by the Guarantor. The Preferred Guarantee
Trustee may destroy any List of Holders previously given to it on receipt of a
new List of Holders.
(b) The Preferred Guarantee Trustee shall comply with its obligations under
Sections 311(a), 311(b) and Section 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Preferred Guarantee Trustee
Within 60 days after May 15 of each year, the Preferred Guarantee Trustee
shall provide to the Holders 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 Preferred Guarantee Trustee shall also
comply with the requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Preferred Guarantee Trustee
The Guarantor shall provide to the Preferred Guarantee Trustee such
documents, reports and information as required by Section 314 (if any) and the
compliance certificate required by Section 314 of the Trust Indenture Act in the
form, in the manner and at the times required by Section 314 of the Trust
Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent
The Guarantor shall provide to the Preferred Guarantee Trustee such
evidence of compliance with any conditions precedent, if any, provided for in
this Preferred Securities Guarantee that relate to any of the matters set forth
in Section 314(c) of the Trust Indenture Act. Any certificate or opinion
required to be given by an officer pursuant to Section 314(c)(1) may be given in
the form of an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver
(a) The Holders of a Majority in liquidation amount of Preferred Securities
may, by vote, on behalf of all of the Holders waive any past Event of Default
and its consequences. Upon such waiver, any such Event of Default shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Preferred Securities Guarantee, but no such
waiver shall extend to any subsequent or other default or Event of Default or
impair any right consequent thereon.
(b) Notwithstanding the provisions of subsection (a) of this Section 2.6,
the right of any Holder of Preferred Securities to receive payment of the
Guarantee Payments in accordance with this Preferred Securities Guarantee, or to
institute suit for the enforcement of any such payment, shall not be impaired
without the consent of each such Holder.
SECTION 2.7 Event of Default; Notice
(a) The Preferred Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders, notices of all Events of Default actually known to a
Responsible Officer of the Preferred Guarantee Trustee, unless such defaults
have been cured before the giving of such notice, provided, that, the Preferred
Guarantee Trustee shall be protected in withholding such notice if and so long
as a Responsible Officer in good faith determines that the withholding of such
notice is in the interests of the Holders of the Preferred Securities.
(b) The Preferred Guarantee Trustee shall not be deemed to have actual
knowledge of any Event of Default unless the Preferred Guarantee Trustee shall
have received written notice, or of which a Responsible Officer charged with the
administration of this Preferred Securities Guarantee shall have obtained actual
knowledge.
SECTION 2.8 Conflicting Interests
The Declaration shall be deemed to be specifically described in this
Preferred Securities Guarantee for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF PREFERRED
GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Preferred Guarantee Trustee
(a) This Preferred Securities Guarantee shall be held by the Preferred
Guarantee Trustee in trust for the benefit of the Holders, and the Preferred
Guarantee Trustee shall not transfer its right, title and interest in this
Preferred Securities Guarantee to any Person except a Holder exercising his or
her rights pursuant to Section 5.4(d) or to a Successor Preferred Guarantee
Trustee on acceptance by such Successor Preferred Guarantee Trustee of its
appointment to act as Successor Preferred Guarantee Trustee. The right, title
and interest of the Preferred Guarantee Trustee shall automatically vest in any
Successor Preferred Guarantee Trustee, and such vesting and cessation of title
shall be effective whether or not conveyancing documents have been executed and
delivered pursuant to the appointment of such Successor Preferred Guarantee
Trustee.
(b) If an Event of Default actually known to a Responsible Officer has
occurred and is continuing, the Preferred Guarantee Trustee shall enforce this
Preferred Securities Guarantee for the benefit of the Holders.
(c) This Preferred Securities Guarantee and all moneys received by the
Preferred Guarantee Trustee hereunder in respect of the Guarantee Payments will
not be subject to any right, charge, security interest, lien or claim of any
kind in favor of, or for the benefit of, the Preferred Guarantee Trustee or its
agents or their creditors.
(d) The Preferred Guarantee Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Preferred Securities Guarantee, and no implied covenants shall be read into
this Preferred Securities Guarantee against the Preferred Guarantee Trustee. In
case an Event of Default has occurred (that has not been cured or waived
pursuant to Section 2.6) and is actually known to a Responsible Officer, the
Preferred Guarantee Trustee shall exercise such of the rights and powers vested
in it by this Preferred Securities Guarantee, and use the same degree of care
and skill in its exercise thereof, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs.
(e) No provision of this Preferred Securities Guarantee shall be construed
to relieve the Preferred Guarantee Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Preferred Guarantee Trustee
shall be determined solely by the express provisions of this Preferred
Securities Guarantee, and the Preferred Guarantee Trustee shall not be
liable except for the performance of such duties and obligations as are
specifically set forth in this Preferred Securities Guarantee, and no
implied covenants or obligations shall be read into this Preferred
Securities Guarantee against the Preferred Guarantee Trustee; and
(B) in the absence of bad faith on the part of the Preferred Guarantee
Trustee, the Preferred Guarantee Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Preferred
Guarantee Trustee and conforming to the requirements of this Preferred
Securities Guarantee; but in the case of any such certificates or opinions
that by any provision hereof are specifically required to be furnished to
the Preferred Guarantee Trustee, the Preferred Guarantee Trustee shall be
under a duty to examine the same to determine whether or not they conform
to the requirements of this Preferred Securities Guarantee;
(ii) the Preferred Guarantee Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer, unless it shall be
proved that the Preferred Guarantee Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(iii) the Preferred Guarantee Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of not less than a Majority in liquidation
amount of the Preferred Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Preferred Guarantee
Trustee, or exercising any trust or power conferred upon the Preferred Guarantee
Trustee under this Preferred Securities Guarantee; and
(iv) no provision of this Preferred Securities Guarantee shall require
the Preferred Guarantee Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of its duties or in
the exercise of any of its rights or powers, if the Preferred Guarantee Trustee
shall have reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this Preferred
Securities Guarantee or indemnity, reasonably satisfactory to the Preferred
Guarantee Trustee, against such risk or liability is not reasonably assured to
it.
SECTION 3.2 Certain Rights of Preferred Guarantee Trustee
(a) Subject to the provisions of Section 3.1:
(i) The Preferred Guarantee Trustee may conclusively rely, and shall
be fully protected in acting or refraining from acting upon, any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it in good faith to be genuine and to have been
signed, sent or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this
Preferred Securities Guarantee shall be sufficiently evidenced by an Officers'
Certificate.
(iii) Whenever, in the administration of this Preferred Securities
Guarantee, the Preferred Guarantee Trustee shall deem it desirable that a matter
be proved or established before taking, suffering or omitting any action
hereunder, the Preferred Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part, request
and conclusively rely upon an Officers' Certificate which, upon receipt of such
request, shall be promptly delivered by the Guarantor.
(iv) The Preferred Guarantee Trustee shall have no duty to see to any
recording, filing or registration of any instrument (or any rerecording,
refiling or registration thereof).
(v) The Preferred Guarantee Trustee may consult with counsel, and the
written advice or opinion of such counsel with respect to legal matters shall be
full and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in accordance with such
advice or opinion. Such counsel may be counsel to the Guarantor or any of its
Affiliates and may include any of its employees. The Preferred Guarantee Trustee
shall have the right at any time to seek instructions concerning the
administration of this Preferred Securities Guarantee from any court of
competent jurisdiction.
(vi) The Preferred Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Preferred Securities
Guarantee at the request or direction of any Holder, unless such Holder shall
have provided to the Preferred Guarantee Trustee such security and indemnity,
reasonably satisfactory to the Preferred Guarantee Trustee, against the costs,
expenses (including attorneys' fees and expenses and the expenses of the
Preferred Guarantee Trustee's agents, nominees or custodians) and liabilities
that might be incurred by it in complying with such request or direction,
including such reasonable advances as may be requested by the Preferred
Guarantee Trustee; provided that, nothing contained in this Section 3.2(a)(vi)
shall relieve the Preferred Guarantee Trustee, upon the occurrence of an Event
of Default which has not been cured or waived, of its obligation to exercise the
rights and powers vested in it by this Preferred Securities Guarantee and to use
the same degree of care and skill in this exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(vii) The Preferred Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Preferred Guarantee Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see fit.
(viii) The Preferred Guarantee Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or by or
through agents, nominees, custodians or attorneys, and the Preferred Guarantee
Trustee shall not be responsible for any misconduct or negligence on the part of
any agent or attorney appointed with due care by it hereunder.
(ix) Any action taken by the Preferred Guarantee Trustee or its agents
hereunder shall bind the Holders, and the signature of the Preferred Guarantee
Trustee or its agents alone shall be sufficient and effective to perform any
such action. No third party shall be required to inquire as to the authority of
the Preferred Guarantee Trustee to so act or as to its compliance with any of
the terms and provisions of this Preferred Securities Guarantee, both of which
shall be conclusively evidenced by the Preferred Guarantee Trustee's or its
agent's taking such action.
(x) Whenever in the administration of this Preferred Securities
Guarantee the Preferred Guarantee Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or taking any other
action hereunder, the Preferred Guarantee Trustee (i) may request instructions
from the Holders of a Majority in liquidation amount of the Preferred
Securities, (ii) may refrain from enforcing such remedy or right or taking such
other action until such instructions are received, and (iii) shall be protected
in conclusively relying on or acting in accordance with such instructions.
(b) No provision of this Preferred Securities Guarantee shall be deemed to
impose any duty or obligation on the Preferred Guarantee Trustee to perform any
act or acts or exercise any right, power, duty or obligation conferred or
imposed on it in any jurisdiction in which it shall be illegal, or in which the
Preferred Guarantee Trustee shall be unqualified or incompetent in accordance
with applicable law, to perform any such act or acts or to exercise any such
right, power, duty or obligation. No permissive power or authority available to
the Preferred Guarantee Trustee shall be construed to be a duty.
SECTION 3.3. Not Responsible for Recitals or Issuance of Preferred
Securities Guarantee
The recitals contained in this Preferred Securities Guarantee shall be
taken as the statements of the Guarantor, and the Preferred Guarantee Trustee
does not assume any responsibility for their correctness. The Preferred
Guarantee Trustee makes no representation as to the validity or sufficiency of
this Preferred Securities Guarantee.
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 Preferred Guarantee Trustee; Eligibility
(a) There shall at all times be a Preferred Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the laws of
the United States of America or any State or Territory thereof or of the
District of Columbia, or a corporation or Person permitted by the Securities and
Exchange Commission to act as an institutional trustee under the Trust Indenture
Act, authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least 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 Preferred Guarantee Trustee shall cease to be
eligible to so act under Section 4.1(a), the Preferred Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.2(c).
(c) If the Preferred Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Preferred Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
SECTION 4.2 Appointment, Removal and Resignation of Preferred Guarantee
Trustee
(a) Subject to Section 4.2(b), the Preferred Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor.
(b) The Preferred Guarantee Trustee shall not be removed in accordance with
Section 4.2(a) until a Successor Preferred Guarantee Trustee has been appointed
and has accepted such appointment by written instrument executed by such
Successor Preferred Guarantee Trustee and delivered to the Guarantor and to the
Preferred Guarantee Trustee being removed.
(c) The Preferred Guarantee Trustee appointed to office shall hold office
until a Successor Preferred Guarantee Trustee shall have been appointed or until
its removal or resignation. The Preferred Guarantee Trustee may resign from
office (without need for prior or subsequent accounting) by an instrument (a
"Resignation Request") in writing executed by the Preferred Guarantee Trustee
and delivered to the Guarantor which resignation shall take effect upon such
delivery or upon such later date as is specified therein; provided, however,
that no such resignation of the Preferred Guarantee Trustee shall be effective
until a Successor Preferred Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such Successor
Preferred Guarantee Trustee and delivered to the Guarantor and the resigning
Preferred Guarantee Trustee.
(d) If no Successor Preferred Guarantee Trustee shall have been appointed
and accepted appointment as provided in this Section 4.2 within 60 days after
delivery to the Guarantor of a Resignation Request, the resigning Preferred
Guarantee Trustee may petition any court of competent jurisdiction for
appointment of a Successor Preferred Guarantee Trustee. Such court may
thereupon, after prescribing such notice, if any, as it may deem proper, appoint
a Successor Preferred Guarantee Trustee.
(e) No Preferred Guarantee Trustee shall be liable for the acts or
omissions to act of any Successor Preferred Guarantee Trustee.
(f) Upon termination of this Preferred Securities Guarantee or removal or
resignation of the Preferred Guarantee Trustee pursuant to this Section 4.2, the
Guarantor shall pay to the Preferred Guarantee Trustee all amounts 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 Preferred
Securities Guarantee and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first against
the Issuer or any other Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
SECTION 5.3 Obligations Not Affected
The obligations, covenants, agreements and duties of the Guarantor under
this Preferred Securities Guarantee shall in no way be affected or impaired by
reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be performed
or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Preferred Securities or the extension
of time for the performance of any other obligation under, arising out of, or in
connection with, the Preferred Securities (other than an extension of time for
payment of Distributions, Redemption Price, Liquidation Distribution or other
sum payable that results from the extension of any interest payment period on
the Debentures or any extension of the maturity date of the Debentures permitted
by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of the
Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Preferred Securities, or
any action on the part of the Issuer granting indulgence or extension of any
kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer or any of the assets of the
Issuer;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain
consent of, the Guarantor with respect to the happening of any of the foregoing.
SECTION 5.4 Enforcement of Guarantee; Rights of Holders
The Guarantor and the Preferred Guarantee Trustee expressly acknowledge
that:
(a) this Preferred Securities Guarantee will be deposited with the
Preferred Guarantee Trustee to be held for the benefit of the Holders;
(b) the Preferred Guarantee Trustee has the right to enforce this Preferred
Securities Guarantee on behalf of the Holders;
(c) the Holders of a Majority in liquidation amount of the Preferred
Securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Preferred Guarantee Trustee in
respect of this Preferred Securities Guarantee or exercising any trust or power
conferred upon the Preferred Guarantee Trustee under this Preferred Securities
Guarantee; and
(d) any Holder may institute a legal proceeding directly against the
Guarantor to enforce the Preferred Guarantee Trustee's rights and the
obligations of the Guarantor under this Preferred Securities Guarantee, without
first instituting a legal proceeding against the Issuer, the Preferred Guarantee
Trustee or any other person or entity, and the Guarantor waives any right or
remedy to require that any action be brought first against the Issuer or any
other person or entity before proceeding directly against the Guarantor.
SECTION 5.5 Guarantee of Payment
This Preferred Securities Guarantee creates a guarantee of payment and not
of collection. This Preferred Securities Guarantee will not be discharged except
by payment of the Guarantee Payments in full (without duplication of amounts
therefor paid by the Issuer).
SECTION 5.6 Subrogation
The Guarantor shall be subrogated to all (if any) rights of the Holders
against the Issuer in respect of any amounts paid to such Holders by the
Guarantor under this Preferred Securities Guarantee; provided, however, that the
Guarantor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any right that it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as
a result of payment under this Preferred Securities Guarantee, if, at the time
of any such payment, any amounts are due and unpaid under this Preferred
Securities Guarantee. If any amount shall be paid to the Guarantor in violation
of the preceding sentence, the Guarantor agrees to hold such amount in trust for
the Holders and to pay over such amount to the Holders.
SECTION 5.7 Independent Obligations
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Issuer with respect to the Preferred Securities, and
that the Guarantor shall be liable as principal and as debtor hereunder to make
Guarantee Payments pursuant to the terms of this Preferred Securities Guarantee
notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; RANKING
SECTION 6.1 Limitation of Transactions
So long as any Preferred Securities remain outstanding, if (a) there shall
have occurred an Event of Default, (b) there shall have occurred an Event of
Default under the Indenture or (c) the Guarantor has exercised its option to
defer interest payments on the Debentures by extending the interest payment
period and such period or extension thereof shall be continuing, then (i) the
Guarantor shall not declare or pay any dividend on, make any distribution with
respect to, or redeem, purchase, acquire, or make a liquidation payment with
respect to, any of its capital stock (other than (A) purchases or acquisitions
of shares of Guarantor's common stock in connection with the satisfaction by the
Guarantor of its obligations under any employee benefit plans or any other
contractual obligation of the Guarantor (other than a contractual obligation
ranking pari passu with or junior to the Debentures), (B) as a result of a
reclassification of the Guarantor's capital stock or the exchange or conversion
of one class or series of the Guarantor's capital stock for another class or
series of the Guarantor's capital stock or (C) 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), (ii) the Guarantor shall not make any payment of interest, principal
or premium, if any, on or repay, repurchase or redeem any debt securities issued
by the Guarantor that rank pari passu with or junior to the Debentures and (iii)
the Guarantor shall not make any guarantee payments with respect to the
foregoing (other than pursuant to this Preferred Securities Guarantee).
In addition, so long as any Preferred Securities remain outstanding, the
Guarantor (i) will remain the sole direct or indirect owner of all of the
outstanding Common Securities to be transferred; provided that any permitted
successor of the Guarantor under the Indenture may succeed to the Guarantor's
ownership of the Common Securities and (ii) will not take any action which would
cause the Issuer to cease to be treated as a grantor trust for United States
federal income tax purposes except in connection with a distribution of
Debentures as provided in the Declaration.
SECTION 6.2 Ranking
This Preferred Securities Guarantee will constitute an unsecured obligation
of the Guarantor and will rank (i) subordinate and junior in right of payment to
all other liabilities of the Guarantor, except those made pari passu or
subordinate by their terms, (ii) pari passu with the most senior preferred or
preference stock now or hereafter issued by the Guarantor and with 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 Preferred Securities Guarantee shall terminate and be of no further
force and effect upon (i) full payment of the Redemption Price of all Preferred
Securities, (ii) upon the distribution of the Debentures to all of the Holders
or (iii) upon full payment of the amounts payable in accordance with the
Declaration upon liquidation of the Issuer. Notwithstanding the foregoing, this
Preferred Securities Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder must restore payment
of any sums paid under the Preferred Securities or under this Preferred
Securities Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation
(a) No Indemnified Person shall be liable, responsible or accountable in
damages or otherwise to the Guarantor or any Covered Person for any loss, damage
or claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith in accordance with this Preferred Securities
Guarantee and in a manner that such Indemnified Person reasonably believed to be
within the scope of the authority conferred on such Indemnified Person by this
Preferred Securities Guarantee or by law, except that an Indemnified Person
shall be liable for any such loss, damage or claim incurred by reason of such
Indemnified Person's negligence or willful misconduct with respect to such acts
or omissions.
(b) An Indemnified Person shall be fully protected in relying in good faith
upon the records of the Guarantor and upon such information, opinions, reports
or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence 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 might properly be paid.
SECTION 8.2 Indemnification
To the fullest extent permitted by applicable law, the Guarantor agrees to
indemnify each Indemnified Person for, and to hold each Indemnified Person
harmless against, any loss, liability or expense incurred by such Indemnified
Person by reason of any act or omission performed or omitted by such Indemnified
Person without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses (including reasonable legal fees and
expenses) of defending itself against, or investigating, any claim or liability
in connection with the exercise or performance of any of its powers or duties
hereunder. The obligation to indemnify as set forth in this Section 8.2 shall
survive the termination of this Preferred Securities Guarantee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns
All guarantees and agreements contained in this Preferred Securities
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Preferred Securities then outstanding. Except in connection with any
merger or consolidation of the Guarantor with or into another entity or any
sale, transfer or lease of the Guarantor's assets to another entity, each as
permitted by the Indenture, the Guarantor may not assign its rights or delegate
its obligations under this Preferred Securities Guarantee without the prior
approval of the Holders of at least a Majority in liquidation amount of the
Preferred Securities then outstanding.
SECTION 9.2 Amendments
Except with respect to any changes that do not adversely affect the rights
of Holders (in which case no consent of Holders will be required), this
Preferred Securities Guarantee may only be amended with the prior approval of
the Holders of at least a Majority in liquidation amount of all the outstanding
Preferred Securities. The provisions of Section 12.2 of the Declaration with
respect to meetings of Holders apply to the giving of such approval.
SECTION 9.3 Notices
All notices provided for in this Preferred Securities Guarantee shall be in
writing, duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by registered or certified mail, as follows:
(a) If given to the Preferred Guarantee Trustee, at the Preferred Guarantee
Trustee's mailing address set forth below (or such other address as the
Preferred Guarantee Trustee may give notice of to the Holders):
The First National Bank of Chicago
One First National Plaza
Suite 0126
Chicago, Illinois 60670-0126
Attention: Corporate Trust Administration
(b) If given to the Guarantor, at the Guarantor's mailing address set forth
below (or such other address as the Guarantor may give notice of to the
Holders):
Fleet Financial Group, Inc.
One Federal Street
Boston, Massachusetts 02211
Attention: General Counsel
(c) If given to any Holder, at the address set forth on the books and
records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 9.4 Benefit
This Preferred Securities Guarantee is solely for the benefit of the
Holders and, subject to Section 3.1(a), is not separately transferable from the
Preferred Securities.
SECTION 9.5 Governing Law
THIS PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK AND ALL RIGHTS
AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAWS.
SECTION 9.6 Genders
The masculine, feminine and neuter genders used herein shall include the
masculine, feminine and neuter genders.
SECTION 9.7 Counterparts
This Preferred Securities Guarantee may be executed in counterparts, each
of which shall be an original, but such counterparts shall together constitute
one and the same instrument.
THIS PREFERRED SECURITIES GUARANTEE is executed as of the day and year
first above written.
FLEET FINANCIAL GROUP, INC., as Guarantor
By:/s/Douglas L. Jacobs
_____________________________________________
Douglas L. Jacobs
Name: Douglas L. Jacobs
Title: Vice President and Treasurer
THE FIRST NATIONAL BANK OF CHICAGO, as
Preferred Guarantee Trustee
By:/s/Steven M. Wagner
_____________________________________________
Steven M. Wagner
Name: Steven M. Wagner
Title: Vice President
