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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
AMENDMENT No. 1
TO
FORM S-2
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CENTURY BANCORP, INC. CENTURY BANCORP
CAPITAL TRUST
(Exact name of Registrant as (Exact name of Registrant as
specified in its charter) specified in its Trust Agreement)
MASSACHUSETTS DELAWARE
(State or other jurisdiction (State or other jurisdiction
of incorporation or organization) of incorporation or organization)
6712 6719
(Primary Standard Industrial (Primary Standard Industrial
Classification Code Number) Classification Code Number)
04-2498617 (applied for)
(I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
400 MYSTIC AVENUE
MEDFORD, MASSACHUSETTS 02155
(781) 391-4000
(Address, including zip code, and telephone number, including area code of
Registrant's principal executive offices)
MARSHALL M. SLOANE
Chairman, President and Chief Executive Officer
CENTURY BANCORP, INC.
400 Mystic Avenue
Medford, Massachusetts 02155
(781) 391-4000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
PETER W. COOGAN, ESQ. REGINA M. PISA, P.C.
DAVID W. WALKER, ESQ.
Foley, Hoag & Eliot LLP Goodwin, Procter & Hoar LLP
One Post Office Square Exchange Place
Boston, MA 02109 Boston, MA 02109
(617) 832-1000 (617) 570-1000
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The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to Section 8(a), may determine.
PART I. INFORMATION REQUIRED IN PROSPECTUS
[No change in this Amendment]
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS.
The following is a complete list of exhibits filed as part of this
Registration Statement.
1.1 *Form of Underwriting Agreement by and between the Company and
Tucker Anthony Incorporated as representative of the several
Underwriters, subject to negotiation.
4.1 Form of Indenture of the Company relating to the Junior
Subordinated Debentures.
4.2 *Form of Junior Subordinated Debenture (corrected).
4.3 Certificate of Trust of Century Bancorp Capital Trust.
4.4 *Form of Amended and Restated Trust Agreement of Century Bancorp
Capital Trust (corrected).
4.5 Form of Preferred Security Certificate for Century Bancorp
Capital Trust (included as an exhibit to Exhibit 4.4)
4.6 Form of Preferred Securities Guarantee Agreement of the Company
relating to the Preferred Securities.
4.7 Form of Agreement as to Expenses and Liabilities (included as an
exhibit to Exhibit 4.4).
5.1 **Opinion of Foley, Hoag & Eliot LLP as to legality of the
Junior Subordinated Debentures and the Guarantee to be issued by
the Company.
5.2 **Opinion of Morris, Nichols, Arsht & Tunnell as to legality of
the Preferred Securities to be issued by Century Bancorp Capital
Trust.
8.1 *Form of opinion of Foley, Hoag & Eliot LLP as to certain
federal income tax matters.
12.1 Computation of ratio of earnings to fixed charges (excluding
interest on deposits).
12.2 Computation of ratio of earnings to fixed charges (including
interest on deposits).
13.1 Annual Report on Form 10-K of Century Bancorp, Inc. for the
fiscal year ended December 31, 1997 (the "10-K").
23.1 Consent of KPMG Peat Marwick LLP.
23.2 **Consent of Foley, Hoag & Eliot LLP (included in Exhibits 5.1
and 8.1).
23.3 **Consent of Morris, Nichols, Arsht & Tunnell (included in
Exhibit 5.2).
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24.1 Power of Attorney of certain officers and directors of the
Company (located on the signature page hereto).
25.1 Form T-1 Statement of Eligibility of State Street Bank and Trust
Company to act as trustee under the Indenture.
25.2 Form T-1 Statement of Eligibility of State Street Bank and Trust
Company to act as trustee under the Declaration of Trust of
Century Bancorp Capital Trust.
25.3 Form T-1 Statement of Eligibility of State Street Bank and Trust
Company under the Guarantee for the benefit of the holders of
Preferred Securities of Century Bancorp Capital Trust.
* Filed with this Amendment
** To be filed by further amendment
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-2 and has duly caused this
Amendment to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Medford, Massachusetts, on May , 1998.
CENTURY BANCORP, INC.
By: /s/ Marshall M. Sloane*
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Chairman, President and Chief Executive Officer
Pursuant to the requirements of Securities Act of 1933, Century Bancorp
Capital Trust certifies that it has reasonable grounds to believe that it meets
all the requirements for filing on Form S-2 and has duly caused this Amendment
to be signed on its behalf by the undersigned, thereunto duly authorized, in the
Town of Medford, Massachusetts, on May , 1998.
CENTURY BANCORP CAPITAL TRUST
By: /s/ Marshall M. Sloane*
-----------------------------------------------
Administrative Trustee
By: /s/ Jonathan G. Sloane*
-----------------------------------------------
Administrative Trustee
By: /s/ Paul V. Cusick, Jr.
-----------------------------------------------
Administrative Trustee
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated on May , 1998.
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/s/ George R. Baldwin*
- -------------------------------------
George R. Baldwin
Director
/s/ Roger S. Berkowitz*
- -------------------------------------
Roger S. Berkowitz
Director
/s/ Karl E. Case*
- -------------------------------------
Karl E. Case, Ph.D.
Director
/s/ Henry L. Foster*
- -------------------------------------
Henry L. Foster, D.V.M.
Director
/s/ Marshall I. Goldman*
- -------------------------------------
Marshall I. Goldman, Ph.D.
Director
/s/ Russell B. Higley*
- -------------------------------------
Russell B. Higley
Esquire, Director
/s/ Jonathan B. Kay*
- -------------------------------------
Jonathan B. Kay
Director
/s/ Fraser Lemley*
- -------------------------------------
Fraser Lemley
Director
/s/ Joseph P. Mercurio*
- -------------------------------------
Joseph P. Mercurio
Director
/s/ Joseph J. Senna*
- -------------------------------------
Joseph J. Senna
Esquire, Director
/s/ Barry R. Sloane*
- -------------------------------------
Barry R. Sloane
Director
/s/ Stephanie Sonnabend*
- -------------------------------------
Stephanie Sonnabend
Director
/s/ Jon Westling*
- -------------------------------------
Jon Westling
Director
/s/ Jonathan G. Sloane*
- -------------------------------------
Jonathan G. Sloane
Director and Senior Vice President
/s/ Marshall M. Sloane*
- -------------------------------------
Marshall M. Sloane, Chairman,
President and Chief Executive Officer
/s/ George F. Swansburg*
- -------------------------------------
George F. Swansburg
Director
/s/ Paul V. Cusick, Jr.
- -------------------------------------
Paul V. Cusick, Jr.
Vice President and Treasurer,
Principal Financial Officer
/s/ Kenneth A. Samuelian*
- -------------------------------------
Kenneth A. Samuelian
Vice President, Controller and
Compliance Officer, Century Bank
and Trust Company Principal
Accounting Officer
* By /s/ Paul V. Cusick, Jr.
-------------------------------
Paul V. Cusick, Jr.
Attorney-in-Fact
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EXHIBIT INDEX
1.1 *Form of Underwriting Agreement by and between the Company and Tucker
Anthony Incorporated as representative of the several Underwriters,
subject to negotiation.
4.1 Form of Indenture of the Company relating to the Junior Subordinated
Debentures.
4.2 *Form of Junior Subordinated Debenture (corrected).
4.3 Certificate of Trust of Century Bancorp Capital Trust.
4.4 *Form of Amended and Restated Trust Agreement of Century Bancorp Capital
Trust (corrected).
4.5 Form of Preferred Security Certificate for Century Bancorp Capital Trust
(included as an exhibit to Exhibit 4.4)
4.6 Form of Preferred Securities Guarantee Agreement of the Company relating
to the Preferred Securities.
4.7 Form of Agreement as to Expenses and Liabilities (included as an exhibit
to Exhibit 4.4).
5.1 **Opinion of Foley, Hoag & Eliot LLP as to legality of the Junior
Subordinated Debentures and the Guarantee to be issued by the Company.
5.2 **Opinion of Morris, Nichols, Arsht & Tunnell as to legality of the
Preferred Securities to be issued by Century Bancorp Capital Trust.
8.1 *Form of opinion of Foley, Hoag & Eliot LLP as to certain federal income
tax matters.
12.1 Computation of ratio of earnings to fixed charges (excluding interest on
deposits).
12.2 Computation of ratio of earnings to fixed charges (including interest on
deposits).
13.1 Annual Report on Form 10-K of Century Bancorp, Inc. for the fiscal year
ended December 31, 1997 (the "10-K").
23.1 Consent of KPMG Peat Marwick LLP.
23.2 **Consent of Foley, Hoag & Eliot LLP (included in Exhibits 5.1 and 8.1).
23.3 **Consent of Morris, Nichols, Arsht & Tunnell (included in Exhibit 5.2).
24.1 Power of Attorney of certain officers and directors of the Company
(located on the signature page hereto).
25.1 Form T-1 Statement of Eligibility of State Street Bank and Trust Company
to act as trustee under the Indenture.
25.2 Form T-1 Statement of Eligibility of State Street Bank and Trust Company
to act as trustee under the Declaration of Trust of Century Bancorp
Capital Trust.
25.3 Form T-1 Statement of Eligibility of State Street Bank and Trust Company
under the Guarantee for the benefit of the holders of Preferred
Securities of Century Bancorp Capital Trust.
* Filed with this Amendment
** To be filed by further amendment
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Exhibit 1.1
2,500,000 PREFERRED SECURITIES
CENTURY BANCORP CAPITAL TRUST
____% CUMULATIVE TRUST PREFERRED SECURITIES
(LIQUIDATION AMOUNT $10 PER PREFERRED SECURITY)
UNDERWRITING AGREEMENT
Boston, Massachusetts
________ __, 1998
TUCKER ANTHONY INCORPORATED
One Beacon Street
Boston, Massachusetts 02108
Ladies and Gentlemen:
Century Bancorp, Inc., a Massachusetts corporation (the "Company") and its
financing subsidiary, Century Bancorp Capital Trust, a Delaware business trust
(the "Trust", and hereinafter together with the Company, the "Offerors"),
confirm their agreement with Tucker Anthony Incorporated ("Tucker Anthony") and
each of the other Underwriters, if any, named in Schedule A hereto
(collectively, the "Underwriters", which term shall also include any
Underwriters substituted as hereinafter provided in Section 11), for whom Tucker
Anthony is acting as representative (in such capacity, Tucker Anthony is herein
called the "Representative"), with respect to the sale by the Trust and the
purchase by the Underwriters, acting severally and not jointly, of an aggregate
of 2,500,000 of the Trust's ___% Cumulative Trust Preferred Securities, with a
liquidation amount of $10 per preferred security ("Preferred Securities"), to be
issued under the Trust Agreement (as hereinafter defined), the terms of which
are more fully described in the prospectus (as hereinafter defined) (the
aforementioned 2,500,000 Preferred Securities to be sold to the Underwriters
being referred to herein as the "Firm Preferred Securities"), and with respect
to the grant by the Trust to the Underwriters, acting severally and not jointly,
of the option described in Section 2(b) hereof to purchase therefrom all or any
part of an additional 375,000 Preferred Securities for the purpose of covering
over-allotments, if any. The Firm Preferred Securities and all or any part of
the Preferred Securities subject to the option described in Section 2(b) hereof
(the "Option Preferred Securities") are hereinafter collectively referred to as
the "Designated Preferred Securities." The words "you" and "your" refer to the
Representative of the Underwriters.
1. REPRESENTATIONS AND WARRANTIES OF THE OFFERORS.
The Offerors jointly and severally represent and warrant to, and agree
with, each of the Underwriters as of the date hereof, and as of the Closing
Date, as defined in Section 2(a) hereof, and the Option Closing Date, as defined
in Section 2(b) hereof, if any, as follows:
(a) A registration statement on Form S-2 (File No. 333-50843) with
respect to
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the Designated Preferred Securities, the Guarantee (as defined in Section
2(d) hereof) and $28,750,000 aggregate principal amount of Debentures (as
defined in Section 2(d) hereof), including a prospectus subject to
completion, has been prepared by the Offerors in conformity with the
requirements of the Securities Act of 1933, as amended (the "Act"), and the
applicable Rules and Regulations (as defined below) of the Securities and
Exchange Commission (the "Commission") and the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act") and the rules and regulations
thereunder, and has been filed with the Commission; such amendments to such
registration statement, and such amended prospectuses subject to
completion, as may have been required prior to the date hereof have been
similarly prepared and filed with the Commission; and the Offerors will
file such additional amendments to such registration statement, and such
amended prospectuses subject to completion, as may hereafter be required.
Copies of such registration statement and each such amendment, each such
related prospectus subject to completion (collectively, the "Preliminary
Prospectuses" and individually, a "Preliminary Prospectus"), each document
incorporated by reference therein and each exhibit thereto have been
delivered to you. For purposes hereof, "Rules and Regulations" means the
rules and regulations adopted by the Commission under either the Act or the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), as
applicable. If the registration statement has been declared effective under
the Act by the Commission, the Company will prepare and promptly file with
the Commission, pursuant to subparagraph (1) or (4) of Rule 424(b) of the
Rules and Regulations under the Act or as part of a post-effective
amendment to the registration statement (including a final form of
prospectus), the information omitted from the registration statement
pursuant to Rule 430A(a) of the Rules and Regulations under the Act. If the
registration statement has not been declared effective under the Act by the
Commission, the Company will prepare and promptly file a further amendment
to the registration statement, including a final form of prospectus. The
term "Registration Statement" as hereinafter used in this Agreement shall
mean such registration statement, including financial statements, schedules
and exhibits in the form in which it became or becomes effective
(including, if the Company omitted information from the registration
statement pursuant to Rule 430A(a) of the Rules and Regulations under the
Act, the information deemed to be a part of the registration statement at
the time it became effective pursuant to Rule 430A(b) of the Rules and
Regulations under the Act) and, in the event of any amendment thereto after
the effective date of such registration statement, shall also mean (from
and after the effectiveness of such amendment) such registration statement
as so amended, together with any registration statement filed by the
Company pursuant to Rule 462(b) under the Act. The term "Prospectus" as
used in this Agreement shall mean the prospectus relating to the Designated
Preferred Securities as included in such registration statement at the time
it became or becomes effective, except that if any revised prospectus shall
be provided to the Underwriters by the Offerors for use in connection with
the offering of the Designated Preferred Securities that differs from the
Prospectus on file with the Commission at the time the registration
statement became or becomes effective (whether or not such revised
prospectus is required to be filed with the Commission pursuant to Rule
424(b)(3) of the Rules and Regulations under the Act), the term
"Prospectus" shall refer to such revised prospectus from and after the time
it is first provided to the Underwriters for
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such use, together with the term sheet or abbreviated term sheet filed with
the Commission pursuant to Rule 424(b)(7) under the Act. Any reference
herein to the Registration Statement, the Prospectus, any amendment or
supplement thereto or any Preliminary Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein, and any
reference herein to the terms "amend," "amendment" or "supplement" with
respect to the Registration Statement or Prospectus shall be deemed to
refer to and include the filing of any document with the Commission deemed
to be incorporated by reference therein.
(b) Neither the Commission nor any state regulatory authority has
issued any order preventing or suspending the use of any Preliminary
Prospectus, at the time of filing thereof, or instituted proceedings for
that purpose, and each such Preliminary Prospectus, at the time of filing
thereof, has conformed in all material respects to the requirements of the
Act and the Rules and Regulations and, at the time of filing thereof, has
not included any untrue statement of a material fact or omitted to state
any material fact necessary to make the statements therein not misleading
and at the time the Registration Statement became or becomes effective and
at all times subsequent thereto up to and including the Closing Date (as
hereinafter defined) and any Option Closing Date (as hereinafter defined),
and during such longer period as the Prospectus may be required to be
delivered in connection with sales by an Underwriter or a dealer, (i) the
Registration Statement and Prospectus, and any amendments or supplements
thereto, contained and will contain all material information required to be
included therein by the Act and the Rules and Regulations and conformed and
will conform in all material respects to the requirements of the Act and
the Rules and Regulations and the Trust Indenture Act (and the rules and
regulations thereunder), and (ii) neither the Registration Statement nor
the Prospectus, nor any amendment or supplement thereto included or will
include any untrue statement of a material fact or omitted or will omit to
state any 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. The documents incorporated by reference in the
Registration Statement, the Prospectus, any amendment or supplement thereto
or any Preliminary Prospectus, when they became or become effective under
the Act or were or are filed with the Commission under the Exchange Act,
conformed or will conform in all material respects with the requirements of
the Act or the Exchange Act, as applicable, and the Rules and Regulations,
and as of the date any such document was or is filed with the Commission
under the Exchange Act such document did not, and on the Closing Date and
on any Option Closing Date will not, omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading.
(c) (i) The Company has been duly organized and is validly existing
as a corporation in good standing under the laws of The Commonwealth of
Massachusetts and is duly registered as a bank holding company under the
Bank Holding Company Act of 1956, as amended (the "BHC Act"). Each of the
subsidiaries of the Company (collectively, the "Subsidiaries" and
individually, a "Subsidiary") has been duly organized and is validly
existing in good standing under the laws of its jurisdiction of
organization. The Company
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and each of the Subsidiaries are duly qualified and licensed as foreign
corporations and in good standing in each jurisdiction in which their
respective operations requires such qualification or licensing, except
where the failure to be so qualified would not have a material adverse
effect on the condition, financial or otherwise, or on the business
affairs, position, prospects, value, operation, properties, business or
results of operation of the Company and the Subsidiaries taken as a whole
whether or not arising in the ordinary course of business (a "Material
Adverse Effect"). The Company and each of the Subsidiaries have all
requisite power and authority, and have obtained any and all necessary
authorizations, approvals, orders, licenses, certificates, franchises and
permits of and from all governmental or regulatory officials and bodies to
own or lease their respective properties and conduct their respective
businesses as described in the Prospectus (collectively, "Government
Approvals"), except where the failure to so obtain any such Government
Approval would not have a Material Adverse Effect; the Company and each of
the Subsidiaries are and have been doing business in compliance with all
such Government Approvals, except where the failure to so comply would not
have a Material Adverse Effect; and neither the Company nor any of the
Subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Government Approvals. All of the
outstanding shares of capital stock of each of the Subsidiaries have been
duly authorized and validly issued, are fully paid and non-assessable and
are owned by the Company free and clear of all liens, encumbrances and
security interests, and no options, warrants or other rights to purchase,
agreements or other obligations to issue or other rights to convert any
obligations into, or exchange any securities for shares of capital stock of
or ownership interests in any of the Subsidiaries are outstanding. The
Company's only bank subsidiary is Century Bank and Trust Company (the
"Bank"). The deposit accounts of the Bank are insured by the Bank Insurance
Fund administered by the Federal Deposit Insurance corporation (the "FDIC")
up to the maximum amount provided by law and no proceedings for the
modification, termination or revocation of any such insurance are pending
or threatened.
(ii) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Delaware Business Trust
Act with the power and authority (trust and other) to issue and sell its
common securities (the "Common Securities") to the Company pursuant to the
Trust Agreement, to issue and sell the Designated Preferred Securities, to
enter into and perform its obligations under this Agreement and to
consummate the transactions herein contemplated; the Trust has conducted
and will conduct no business other than the transactions contemplated by
this Agreement and described in the Prospectus; the Trust is not a party to
or bound by any agreement or instrument other than this Agreement, the
Trust Agreement and the agreements and instruments contemplated by the
Trust Agreement and described in the Prospectus; the Trust has no
liabilities or obligations other than those arising out of the transactions
contemplated by this Agreement and the Trust Agreement and described in the
Prospectus; the Trust is not a party to or subject to any action, suit or
proceeding of any nature; the Trust is not, and at the Closing Date or any
Option Closing Date will not be, to the knowledge of the Offerors,
classified as an association taxable as a corporation for United States
federal income tax purposes; and the Trust is, and as of the Closing Date
or any Option Closing Date will be, treated as a
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consolidated subsidiary of the Company pursuant to generally accepted
accounting principles.
(d) (i) The capital stock of the Company and the equity securities of
the Trust, the Debentures and the Guarantee conform to the description
thereof contained in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), and neither Offeror is
a party to or bound by any instrument, agreement or other arrangement
(except as disclosed in the Prospectus) providing for it to issue any
capital stock, rights, warrants, options or other securities, except for
this Agreement. All issued and outstanding shares of capital stock and
equity securities of each Offeror have been duly authorized and validly
issued and are fully paid and non-assessable and were not issued in
violation of any preemptive rights or other rights to subscribe for or
purchase securities.
(ii) (A) The Trust has all requisite power and authority to
issue, sell and deliver the Designated Preferred Securities in
accordance with and upon the terms and conditions set forth in this
Agreement, the Trust Agreement, the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus). All corporate and trust action required to be
taken by the Offerors for the authorization, issuance, sale and
delivery of the Designated Preferred Securities in accordance with
such terms and conditions has been validly and sufficiently taken. The
Designated Preferred Securities, when delivered in accordance with
this Agreement, will be duly and validly issued and outstanding, will
be fully paid and nonassessable undivided beneficial interests in the
assets of the Trust, will be entitled to the benefits of the Trust
Agreement, will not be issued in violation of or subject to any
preemptive or similar rights, and will conform in all material
respects to the description thereof in the Registration Statement, the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and the Trust Agreement. None of the
Designated Preferred Securities, immediately prior to delivery, will
be subject to any security interest, lien, mortgage, pledge,
encumbrance, restriction upon voting or transfer, preemptive rights,
claim, equity or other title defect.
(B) The Debentures have been duly and validly authorized,
and, when duly and validly executed, authenticated and issued as
provided in the Indenture and delivered to the Trust pursuant to the
Trust Agreement, will constitute valid and legally binding obligations
of the Company entitled to the benefits of the Indenture and will
conform in all material respects to the description thereof contained
in the Prospectus.
(C) The Guarantee has been duly and validly authorized, and,
when duly and validly executed and delivered to the guarantee trustee
for the benefit of the Trust, will constitute a valid and legally
binding obligation of the Company and will conform in all material
respects to the description thereof contained in the Prospectus.
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(D) The Agreement as to Expenses and Liabilities (the
"Expense Agreement") has been duly and validly authorized, and, when
duly and validly executed and delivered to the Company, will
constitute a valid and legally binding obligation of the Company and
will conform in all material respects to the description thereof
contained in the Prospectus.
(e) The audited and unaudited consolidated financial statements of
the Company, together with the notes and schedules thereto, included in the
Registration Statement, each Preliminary Prospectus and the Prospectus
fairly present the financial position and the results of operations,
changes in cash flows and changes in stockholders' equity of the Company at
the respective dates and for the respective periods to which they apply;
and each of such audited consolidated financial statements has been
prepared in conformity with generally accepted accounting principles and
the Rules and Regulations, consistently applied throughout the periods
involved, all adjustments necessary for a fair presentation of results for
such periods have been made and such unaudited consolidated financial
statements have been prepared on a basis substantially consistent with that
of such audited consolidated financial statements. Except as described in
the Prospectus, there has been no change or development involving a
Material Adverse Effect since the date of the consolidated financial
statements included in any of the Preliminary Prospectuses, the Prospectus
and the Registration Statement, and the outstanding debt, the property,
both tangible and intangible, and the business of the Company and each of
the Subsidiaries conform in all material respects to the descriptions
thereof contained in the Registration Statement and the Prospectus. The
summary and selected consolidated financial and statistical data included
in the Registration Statement and the Prospectus present fairly the
information shown therein or incorporated by reference and have been
compiled on a basis consistent with the unaudited and audited consolidated
financial statements included therein. The Company's internal accounting
controls are sufficient to cause the Company to comply with the Foreign
Corrupt Practices Act of 1977, as amended. Neither the Company nor any of
the Subsidiaries has any material contingent obligation which is not
disclosed in the Registration Statement.
(f) KPMG Peat Marwick LLP ("KPMG"), whose reports are filed with the
Commission as a part of the Registration Statement, are independent
certified public accountants as required by the Act and the Rules and
Regulations.
(g) (i) the Company and each of the Subsidiaries have paid all
federal, state, local and foreign taxes for which they are respectively
liable and which are due and payable, including, but not limited to,
withholding taxes and amounts payable under Chapters 21 through 24 of the
Internal Revenue Code of 1986, as amended, and (ii) none of the Company or
any Subsidiary has any tax deficiency or claims outstanding, assessed or,
to its knowledge, proposed against it.
(h) No transfer tax, stamp duty or other similar tax is payable by or
on behalf of the Underwriters in connection with (i) the issuance by the
Trust of the Designated Preferred Securities, (ii) the purchase by the
Underwriters of the Designated Preferred Securities, or
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(iii) the consummation by the Offerors of any of their respective
obligations under this Agreement.
(i) The Offerors and each of the Subsidiaries maintain insurance of
the types and in the amounts which are adequate for their businesses, all
of which insurance is in full force and effect.
(j) Except as disclosed in the Prospectus, there is no action, suit,
proceeding, inquiry, investigation, litigation or governmental proceeding,
domestic or foreign, pending or, to the Offerors' knowledge, threatened
against (or currently existing or previously occurring facts or
circumstances that provide a basis for the same), or involving the
properties or business of the Offerors or any of the Subsidiaries, that (i)
questions the validity of the capital stock or equity securities of the
Offerors or this Agreement or of any action taken or to be taken by the
Offerors pursuant to or in connection with this Agreement, (ii) is required
to be disclosed in the Registration Statement that is not so disclosed (and
such proceedings, if any, as are summarized in the Registration Statement
are accurately summarized in all material respects), or (iii) would have a
Material Adverse Effect.
(k) Each of the Offerors has full legal right, power and authority to
enter into this Agreement and to consummate the transactions provided for
herein and therein; and this Agreement has been duly authorized, executed
and delivered by each of the Offerors. This Agreement, assuming it has been
duly authorized, executed and delivered by the Underwriters, constitutes a
legal, valid and binding agreement of the each of the Offerors enforceable
against each of the Offerors in accordance with its terms. Each of the
Indenture, the Trust Agreement, the Guarantee and the Expense Agreement has
been duly authorized by the Company, and, when executed and delivered by
the Company on the Closing Date, each of said agreements will constitute a
valid and legally binding obligation of the Company and will be enforceable
against the Company in accordance with its terms. Each of the Indenture,
the Trust Agreement and the Guarantee has been duly qualified under the
Trust Indenture Act and will conform to the description thereof contained
in the Prospectus. The execution and delivery of this Agreement by the
Offerors, their performance hereunder, their consummation of the
transactions contemplated herein and the conduct of their business and that
of each of the Subsidiaries as described in the Registration Statement, the
Prospectus and any amendments or supplements thereto does not and will not
conflict with in any material respect or result in any breach or violation
of any of the material terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge, claim,
encumbrance, pledge, security interest, defect or other restriction on
equity of any kind whatsoever upon, any property or assets (tangible or
intangible) of either Offeror or any of the Subsidiaries, pursuant to the
terms of (i) the corporate charter, operating agreement or by-laws of the
Company or any of the Subsidiaries or the Trust Agreement, the Guarantee or
the Indenture, (ii) any license, contract, indenture, mortgage, deed of
trust, voting trust agreement, stockholders agreement, note, loan or credit
agreement or any other agreement or instrument to which either Offeror or
any of the Subsidiaries is a party or by which any of them is or may be
bound or to which any of their respective properties or assets (tangible
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<PAGE> 8
or intangible) is or may be subject or (iii) any statute, judgment, decree,
order, rule or regulation applicable to either Offeror or any of the
Subsidiaries of any arbitrator, court, regulatory body or administrative
agency or other governmental agency or body, domestic or foreign, having
jurisdiction over either Offeror or any of the Subsidiaries or any of their
respective activities or properties.
(l) No consent, approval, authorization or order of, and no filing
with, any court, regulatory body, government agency or other body, domestic
or foreign, is required for the issuance of the Designated Preferred
Securities pursuant to the Prospectus and the Registration Statement, or
the performance of this Agreement, the Trust Agreement, the Guarantee or
the Indenture and the transactions contemplated thereby, except such as
have been or may be obtained under the Act, the Exchange Act or the Rules
and Regulations or may be required under state securities or Blue Sky laws
in connection with the Underwriters' purchase and distribution of the
Designated Preferred Securities.
(m) All executed agreements which are filed as exhibits to the
Registration Statement to which either Offeror or any of the Subsidiaries
is a party or by which any of them may be bound or to which any of their
respective assets, properties or businesses may be subject have been duly
and validly authorized, executed and delivered by such Offeror or such
Subsidiaries, and, assuming due authorization, execution and delivery by
the other parties thereto, constitute the legal, valid and binding
agreements of such Offeror and such Subsidiaries enforceable against such
Offeror and such Subsidiaries in accordance with their respective terms
(except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of general application
relating to or affecting enforcement of creditors' rights and the
application of equitable principles in any action, legal or equitable, and
except as rights to indemnity or contribution may be limited by applicable
law). The descriptions in the Registration Statement of contracts and other
documents are accurate in all material respects and fairly present the
information required to be shown with respect thereto by Form S-2, and
there are no contracts or other documents that are required by the Act to
be described in the Registration Statement or filed as exhibits to the
Registration Statements that are not described or filed as required, and
the exhibits that have been filed are complete and correct copies of the
documents of which they purport to be copies.
(n) Subsequent to the respective dates as of which information is set
forth in the Registration Statement and Prospectus, and except as may
otherwise be indicated or contemplated herein or therein, neither Offeror
nor any of the Subsidiaries has (i) issued any securities or incurred any
liability or obligation, direct or contingent, for borrowed money, (ii)
entered into any transaction which could reasonably be expected to have a
Material Adverse Effect or (iii) declared or paid any dividend or made any
other distribution on or in respect of its capital stock or equity
securities.
(o) Except as disclosed in the Registration Statement, (i) neither of
the Offerors is in violation of its corporate charter, bylaws or other
governing documents (including
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<PAGE> 9
without limitation the Trust Agreement), and (ii) no material default
exists in the due performance and observance of any term, covenant or
condition of any license, contract, indenture, mortgage, installment sale
agreement, lease, deed of trust, voting trust agreement, stockholders
agreement, note, loan or credit agreement or any other agreement or
instrument evidencing an obligation for borrowed money, or any other
agreement or instrument to which either Offeror or any of the Subsidiaries
is a party or by which either Offeror or any of the Subsidiaries may be
bound or to which any of the property or assets (tangible or intangible) of
either Offeror or any of the Subsidiaries is subject or affected.
(p) The Offerors and each of the Subsidiaries have a generally
satisfactory employer-employee relationship with their respective employees
and are in compliance with all federal, state, local, and, where
applicable, foreign, laws and regulations respecting employment and
employment practices, terms and conditions of employment and wages and
hours, except where the failure to so comply would not have a Material
Adverse Effect. To the Offerors' knowledge, there are no pending
investigations involving the Offerors or any of the Subsidiaries by the
United States Department of Labor or any other governmental agency
responsible for the enforcement of such federal, state, local or foreign
laws and regulations. To the Offerors' knowledge, there is no unfair labor
practice charge or complaint against either Offeror or any of the
Subsidiaries pending before the National Labor Relations Board or any
strike, picketing, boycott, dispute, slowdown or stoppage pending or
threatened against or involving either Offeror or any of the Subsidiaries,
and no such strike, picketing, boycott, dispute, slowdown or stoppage has
ever occurred. No representation question exists respecting the employees
of either Offeror or any of the Subsidiaries, and no collective bargaining
agreement or modification thereof is currently being negotiated by either
Offeror or any of the Subsidiaries. There are no expired or existing
collective bargaining agreements of either Offeror or any of the
Subsidiaries.
(q) Neither Offeror nor any of the Subsidiaries has incurred any
liability arising under or as a result of any breach of the provisions of
the Act.
(r) Except as disclosed in the Prospectus, neither Offeror nor any of
the Subsidiaries maintains, sponsors or contributes to any program or
arrangement that is an "employee pension benefit plan", an "employee
welfare benefit plan", or a "multiemployer plan" (collectively, the "ERISA
Plans") as such terms are defined in Sections 3(2), 3(1) and 3(37),
respectively, of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"). With respect to any ERISA Plan that an Offeror or any of
the Subsidiaries, now or at any time previously, maintains or contributes
to, all applicable federal laws and regulations have been complied with,
except for such instances of noncompliance which, either singly or in the
aggregate, would not have a Material Adverse Effect. Neither Offeror nor
any of the Subsidiaries has ever completely or partially withdrawn from a
"multiemployer plan."
(s) The Offerors and the Subsidiaries have complied in all material
respects with all federal, state and local statutes, regulations,
ordinances and rules applicable to the
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<PAGE> 10
ownership and operation of their properties or the conduct of their
businesses as described in and contemplated by the Registration Statement
and the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus) and as currently being conducted.
(t) Each Offeror maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific authorization;
(ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (iii) access to
assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(u) The Offerors have not distributed and will not distribute prior
to the Closing Date any prospectus in connection with the Offering, other
than a Preliminary Prospectus, the Prospectus, the Registration Statement
and the other materials permitted by the 1933 Act and the 1933 Act
Regulations and reviewed by the Underwriters.
(v) No holders of any equity securities of the Offerors or of any
options, warrants or other convertible or exchangeable securities of the
Offerors exercisable for or convertible or exchangeable for equity
securities of the Offerors have the right (except as may have been waived),
to include any securities issued by the Company in the Registration
Statement or any registration statement to be filed by the Company within
180 days of the date hereof or to require the Company or the Trust to file
a registration statement under the Act during such 180 day period.
(w) Neither Offeror has taken or will take, directly or indirectly
(except for any action that may be taken by the Underwriters), any action
designed to or which has constituted or which might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation of the price of any security of either Offeror to
facilitate the sale or resale of the Designated Preferred Securities or
otherwise.
(x) Except to the extent disclosed in the Prospectus, (i) the
Offerors and each of the Subsidiaries own or possess, or have a license or
other right to use, the patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), technology, trademarks, service marks and trade names,
together with all applications for any of the foregoing, currently used or
held for use by them in connection with their respective businesses, except
where the failure to own or possess, alone or in aggregate, would not have
a Material Adverse Effect on the Offerors, (ii) neither the Offerors nor
any of the Subsidiaries has received any notice of infringement of or
conflict with asserted rights of others with respect to any of the
foregoing which has not been finally resolved and (iii) except as set forth
in the Registration Statement, neither the Offerors nor any of the
Subsidiaries is obligated or under any liability whatsoever to make any
material
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payments by way of royalties, fees or otherwise to any owner or licensee
of, or other claimant to, any patent, patent right, license, invention,
trademark, service mark, trade name, copyright, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), technology or other
intangible asset, with respect to the use thereof or in connection with the
conduct of its business or otherwise.
(y) The Offerors and each of the Subsidiaries have good and
marketable title to, or valid and enforceable leasehold estates in, all
items of real and personal property stated in the Prospectus (including the
financial statements included or incorporated by reference therein) to be
owned or leased by them, free and clear of all liens, charges, claims,
encumbrances, pledges, security interests, defects or other restrictions on
equity of any kind whatsoever, other than (i) those referred to in the
Prospectus (including such financial statements), (ii) liens for taxes not
yet due and payable and (iii) mechanics, materialmen, warehouse and other
statutory liens arising in the ordinary course of business which, either
individually or in the aggregate, do not have a Material Adverse Effect.
(z) Except as described in the Prospectus under "Underwriting" and on
the cover page thereof, there are no claims, payments, issuances,
arrangements or understandings for services in the nature of a finder's or
origination fee with respect to the sale of the Designated Preferred
Securities hereunder or any other arrangements, agreements, understandings,
payments or issuance with respect to the Offerors or any of the
Subsidiaries or any of their respective officers, directors, employees or
affiliates that may affect the Underwriters' compensation, as determined by
the National Association of Securities Dealers, Inc. ("NASD").
(aa) The Preferred Securities have been approved for listing on the
Nasdaq Stock Market, Inc.'s National Market System (the "NASDAQ-NM") under
the symbol "CNBKP" subject to official notice of issuance.
(ab) The Company is not an "investment company" or an "affiliated
person" or "promoter" of, or "principal Underwriters" for, an "investment
company", as such terms are defined in the Investment Company Act of 1940,
as amended (the "1940 Act"), or subject to regulation under the 1940 Act.
(ac) Any certificate signed by any officer of either Offeror and
delivered to the Underwriters or to the Underwriters' Counsel (as
hereinafter defined) shall be deemed a representation and warranty by such
Offeror to the Underwriters as to the matters covered thereby.
(ad) There are no contractual encumbrances or restrictions or material
legal restrictions on the ability of any of the Subsidiaries (i) to pay
dividends or make any other distributions on its capital stock or to pay
any indebtedness owed to the Offerors, (ii) to make any loans or advances
to, or investments in, the Offerors or (iii) to transfer any of its
property
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or assets to the Offerors.
2. PURCHASE, SALE AND DELIVERY OF THE DESIGNATED PREFERRED SECURITIES;
DESCRIPTION OF DESIGNATED PREFERRED SECURITIES.
(a) On the basis of the representations, warranties and agreements
herein contained, and subject to the terms and conditions herein set forth,
the Offerors hereby agree that the Trust shall issue and sell the Firm
Preferred Securities to the several Underwriters, and each Underwriter,
severally and not jointly, agrees to purchase that number of Firm Preferred
Securities set forth in Schedule A opposite its name plus any additional
number of Firm Preferred Securities that such Underwriter may become
obligated purchase pursuant to the provisions of Section 11 hereof. The
time and date of payment for and delivery of the Firm Preferred Securities
is herein called the "Closing Date." Because the proceeds from the sale of
the Firm Preferred Securities will be used to purchase from the Company its
Subordinated Debentures (as described in the Prospectus), the Company shall
pay to the Underwriters a commission of $_____ per Firm Preferred Security
purchased (the "Firm Preferred Securities Commission").
(b) In addition, on the basis of the representations, warranties,
covenants and agreements herein contained and upon not less than two
business days' notice from the Representative of the Underwriters, for a
period of thirty days from the effective date of this Agreement, the Trust
grants to the Underwriters an option to purchase up to 375,000 Option
Preferred Securities. Such option is granted solely for the purpose of
covering over-allotments in the sale of Firm Preferred Securities and is
exercisable by written notice to the Trust within 30 days after the Closing
Date. Option Preferred Securities shall be purchased severally for the
account of the Underwriters in proportion to the number of Firm Preferred
Securities set forth opposite the name of such Underwriters in Schedule A
hereto. The time and date of delivery of any of the Option Preferred
Securities is herein called the "Option Closing Date". Because the proceeds
from the sale of the Option Preferred Securities will be used to purchase
from the Company its Subordinated Debentures (as described in the
Prospectus), the Company shall pay to the Underwriters a commission of
$_____ per Option Preferred Security purchased (the "Option Preferred
Securities Commission"). The respective purchase obligations of each
Underwriter with respect to the Option Preferred Securities may be adjusted
by the Representative so that no Underwriter shall be obligated to purchase
Option Preferred Securities other than in 100 unit increments. The price of
both the Firm Preferred Securities and any Option Preferred Securities
shall be $10 per Preferred Security.
(c) Payment of the purchase price and Firm Preferred Securities
Commission and Option Preferred Securities Commission for, and delivery of
certificates for, the Firm Preferred Securities and the Option Preferred
Securities shall be made on each of the Closing Date and the Option Closing
Date, respectively, by wire transfer of immediately available funds,
payable to the order of the Trust, at the offices of Tucker Anthony at One
Beacon Street, Boston, Massachusetts, or at such other place as shall be
agreed upon by the
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<PAGE> 13
Representative and the Offerors or, if mutually agreed to by the
Representative and the Offerors, by wire transfer, upon delivery of
certificates (in form and substance satisfactory to the Representative)
representing such securities to the Representative. Delivery and payment
for the Firm Preferred Securities shall be made at 10:00 a.m. (Eastern
Time) on the third business day following the public offering, or at such
other time and date as shall be agreed upon by the Representative and the
Trust. In the event that any or all of the Option Preferred Securities are
purchased by the Underwriters, the date and time at which certificates for
Option Preferred Securities are to be delivered shall be determined by the
Representative and the Trust but shall not be earlier than three nor later
than ten full business days after the exercise of such option, nor in any
event prior to the Closing Date. Certificates for the Firm Preferred
Securities and the Option Preferred Securities, if any, shall be in
definitive, fully registered form, shall bear no restrictive legends and
shall be in such denominations and registered in such names as the
Representative may request in writing at least two (2) business days prior
to the Closing Date or the Option Closing Date, as applicable. The
certificates for the Firm Preferred Securities and the Option Preferred
Securities, if any, shall be made available to the Representative at such
office or such other place as the Representative may designate for
inspection and packaging not later than 9:30 a.m. (Eastern Time) on the
last business day prior to the Closing Date or the Option Closing Date, as
applicable.
(d) The Offerors propose that the Trust issue the Designated
Preferred Securities pursuant to an Amended and Restated Trust Agreement
among State Street Bank and Trust Company, as Property Trustee, Wilmington
Trust Company, as Delaware Trustee, the Administrative Trustees named
therein (collectively, the "Trustees"), and the Company, in substantially
the form heretofore delivered to the Underwriters, said Agreement being
hereinafter referred to as the "Trust Agreement." In connection with the
issuance of the Designated Preferred Securities, the Company proposes (i)
to issue its Subordinated Debentures (the "Debentures") pursuant to an
Indenture, dated as of ___________, 1998, between the Company and State
Street Bank and Trust Company, as debenture trustee (the "Indenture") and
(ii) to guarantee certain payments on the Designated Preferred Securities
pursuant to a Guarantee Agreement between the Company and State Street Bank
and Trust Company, as guarantee trustee (the "Guarantee"), to the extent
described therein.
3. PUBLIC OFFERING OF THE DESIGNATED PREFERRED SECURITIES.
As soon after the Registration Statement becomes effective as the
Underwriters deem advisable, the Underwriters shall make a public offering of
the Designated Preferred Securities at the price and upon the other terms set
forth in the Prospectus. The Underwriters may from time to time thereafter
reduce the public offering price and change the other selling terms, provided
the proceeds to the Trust shall not be reduced as a result of such reduction or
change. Because the NASD is expected to view the Preferred Securities as
interests in a direct participation program, the offering of the Preferred
Securities is being made in compliance with the applicable provisions of Rule
2810 of the NASD's Conduct Rules.
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The Underwriters may reserve and sell such of the Designated Preferred
Securities purchased by the Underwriters as the Underwriters may elect to
dealers chosen by them (the "Selected Dealers") at the public offering price set
forth in the Prospectus less the applicable Selected Dealers' concessions set
forth therein, for re-offering by Selected Dealers to the public at the public
offering price. The Underwriters may allow, and Selected Dealers may re-allow, a
concession set forth in the Prospectus to certain other brokers and dealers.
4. COVENANTS OF THE COMPANY AND THE SELLING STOCKHOLDERS.
The Offerors jointly and severally agree with each of the Underwriters as
follows:
(a) The Offerors will use their best efforts to cause the
Registration Statement and any amendment thereof, if not effective at the
time and date that this Agreement is executed and delivered by the parties
hereto, to become effective as promptly as possible; they will notify the
Representative, promptly after they shall receive notice thereof, of the
time when the Registration Statement or any subsequent amendment to the
Registration Statement has become effective or any supplement to the
Prospectus has been filed; if the Offerors omitted information from the
Registration Statement at the time it was originally declared effective in
reliance upon Rule 430A(a), the Offerors will provide evidence satisfactory
to the Representative that the Prospectus contains such information and has
been filed, within the time period prescribed, with the Commission pursuant
to subparagraph (1) or (4) of Rule 424(b) of the Rules and Regulations
under the Act or as part of a post-effective amendment to such Registration
Statement as originally declared effective which is declared effective by
the Commission; if for any reason the filing of the final form of
Prospectus is required under Rule 424(b)(3) of the Rules and Regulations
under the Act, they will provide evidence satisfactory to the
Representative that the Prospectus contains such information and has been
filed with the Commission within the time period prescribed; they will
notify the Representative promptly of any request by the Commission for the
amending or supplementing of the Registration Statement or the Prospectus
or for additional information; promptly upon the Representative's request,
they will prepare and file with the Commission any amendments or
supplements to the Registration Statement or Prospectus which, in the
opinion of counsel for the Underwriters ("Underwriters' Counsel"), may be
necessary or advisable so as to comply with all applicable laws and
regulations (including, without limitation, Section 11 under the Act and
Rule 10b-5 under the Exchange Act) in connection with the distribution of
the Designated Preferred Securities by the Underwriters; they will promptly
prepare and file with the Commission, and promptly notify the
Representative of the filing of, any amendments or supplements to the
Registration Statement or Prospectus which may be necessary to correct any
statements or omissions, if, at any time when a prospectus relating to the
Designated Preferred Securities is required to be delivered under the Act,
any event shall have occurred as a result of which the Prospectus or any
other prospectus relating to the Designated Preferred Securities as then in
effect would include an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading; in case
any Underwriter is required so as to comply with all applicable laws and
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<PAGE> 15
regulations (including, without limitation, Section 11 under the Act and
Rule 10b-5 under the Exchange Act) to deliver a prospectus nine months or
more after the effective date of the Registration Statement in connection
with the sale of the Designated Preferred Securities, they will prepare
promptly upon request, but at the expense of the Underwriters, such
amendment or amendments to the Registration Statement and such prospectus
or prospectuses as may be necessary to permit compliance with the
requirements of Section 10(a)(3) of the Act; they will file no amendment or
supplement to the Registration Statement or Prospectus (other than any
document required to be filed under the Exchange Act that upon filing is
deemed incorporated therein by reference) which shall not previously have
been submitted to the Representative a reasonable time prior to the
proposed filing thereof or to which you shall reasonably object in writing
or which is not in compliance with the Act and the Rules and Regulations
under the Act and until the distribution of the Designated Preferred
Securities pursuant to the Prospectus has been completed, the Offerors will
furnish to the Representative at or prior to the filing thereof a copy of
any document that upon filing is deemed to be incorporated by reference in
the Registration Statement or Prospectus.
(b) The Offerors will advise the Representative, promptly after they
shall receive notice or obtain knowledge thereof, of the issuance of any
stop order by the Commission suspending the effectiveness of the
Registration Statement or of the initiation or threat of any proceeding for
that purpose; and they will promptly use their best efforts to prevent the
issuance of any stop order or to obtain their withdrawal at the earliest
possible moment if such stop order should be issued.
(c) The Offerors will use their best efforts to qualify the
Designated Preferred Securities for offering and sale under the securities
laws of such jurisdictions as the Representative may designate and to
continue such qualifications in effect for so long as may be required for
the purposes of the distribution of the Designated Preferred Securities,
except that either Offeror shall not be required in connection therewith or
as a condition thereof to qualify as a foreign corporation or to execute a
general consent to service of process in any jurisdiction. In each
jurisdiction in which the Designated Preferred Securities shall have been
qualified as above provided, the Offerors will make and file such
statements and reports in each year as are or may be reasonably required by
the laws of such jurisdiction.
(d) The Offerors will furnish to the Representative, as soon as
available, copies of the Registration Statement (as filed in EDGAR format,
including exhibits, with the commission's confirmation of filing), each
Preliminary Prospectus, the Prospectus and any amendment or supplements to
such documents, including any prospectus prepared to permit compliance with
Section 10(a)(3) of the Act, all in such quantities as you may from time to
time reasonably request.
(e) The Offerors will make generally available to their
securityholders as soon as practicable, but in any event not later than the
45th day following the end of the fiscal quarter first occurring after the
first anniversary of the effective date of the Registration Statement, an
earnings statement (which will be in reasonable detail but need not be
audited)
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complying with the provisions of Section 11(a) of the Act and covering a
twelve-month period beginning after the effective date of the Registration
Statement.
(f) For five years from the date hereof, the Offerors shall furnish
to the Representative copies of all reports and communications (financial
or otherwise) furnished by the Offerors to the holders of the Designated
Preferred Securities as a class, copies of all reports and financial
statements filed with or furnished to the Commission or with any national
securities exchange or the NASDAQ-NM and such other documents, reports and
information concerning the business and financial conditions of the
Offerors as the Representative may reasonably request. During such five
year period the Offerors' financial statements shall be on a consolidated
basis to the extent that the accounts of the Offerors and the Subsidiaries
are consolidated, and shall be accompanied by similar financial statements
for any Subsidiary which is not so consolidated.
(g) The Offerors will apply the net proceeds from the sale of the
Designated Preferred Securities being sold by it in the manner set forth
under the caption "Use of Proceeds" in the Prospectus.
(h) The Offerors will maintain a transfer agent and a registrar
(which may be the same entity as the transfer agent) for the Preferred
Securities.
(i) If at any time during the 90-day period after the Registration
Statement becomes effective, any publication or event relating to or
affecting either Offeror shall occur as a result of which in your opinion
the market price of the Preferred Securities has been or is likely to be
materially affected (regardless of whether such publication or event
necessitates a supplement to or amendment of the Prospectus), the Offerors
will, after written notice from the Representative advising the Offerors to
the effect set forth above, forthwith prepare, consult with the
Representative concerning the substance of and disseminate a press release
or other public statement, reasonably satisfactory to the Representative,
responding to or commenting on such publication or event, consistent with
past practice.
(j) For a period ending 180 days from the date of the Prospectus, the
Offerors will not, without your prior written consent, directly or
indirectly, offer for sale, sell or agree to sell or otherwise dispose of
any Preferred Securities other than pursuant to this Agreement, any other
beneficial interests in the assets of the Trust or any securities of the
Trust or the Company that are substantially similar to the Designated
Preferred Securities or the Debentures, including any guarantee of such
beneficial interests or substantially similar securities, or securities
convertible into or exchangeable for or that represent the right to receive
any such beneficial interest or substantially similar securities.
5. PAYMENT OF EXPENSES.
(a) Subject to Section 5(b), the Company hereby agrees to pay on each
of the Closing Date and the Option Closing Date (to the extent not paid on
the Closing Date) all
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expenses and fees (other than fees of Underwriters' Counsel, except as
provided in (iii), (v) and (vii) below) incident to the performance of the
obligations of the Offerors under this Agreement, including, without
limitation, (i) the fees and expenses of accountants and counsel for the
Offerors; (ii) all costs and expenses incurred in connection with the
preparation, duplication, printing, filing (including the filing fees of
the Commission), mailing (including postage with respect thereto) and
delivery of the Registration Statement, the Preliminary Prospectuses and
the Prospectus and any amendments and supplements thereto, including the
cost of all copies thereof supplied to the Representative in quantities as
hereinabove stated, (iii) all costs and expenses incurred in connection
with the printing, mailing and delivery of this Agreement, the Selected
Dealer Agreements, the Agreement Among Underwriters, Underwriters'
Questionnaires, Underwriters' Powers of Attorney and related documents,
including the cost of all copies thereof supplied to the Underwriters in
quantities as hereinabove stated, (iv) the printing, engraving, issuance
and delivery of the Designated Preferred Securities, including any transfer
or other taxes payable thereon, (v) the qualification of the Designated
Preferred Securities under state or foreign securities or Blue Sky laws,
including the costs of printing and mailing a Blue Sky Memorandum and any
supplements or amendments thereto and disbursements and fees of
Underwriters' Counsel, in connection therewith, (vi) fees and expenses of
the Trust's transfer agent, (vii) fees and expenses incurred in connection
with the review by the NASD of certain of the matters set forth in this
Agreement, and (viii) the fees and expenses incurred in connection with the
listing of the Designated Preferred Securities on the NASDAQ-NM and any
other exchange.
(b) In connection with the Offering, the Offerors agree to reimburse
the Underwriters up to a limit of $20,000 for their out of pocket expenses
("Reimbursable Expenses"), including: (i) their out-of-pocket expenses in
connection with the Registration Statement and related documentation; (ii)
the cost of advertising the Offering; and (iii) the Underwriters' travel
and promotional expenses. To the extent the Reimbursable Expenses exceed
the $20,000 limit, the Underwriters will bear their own out-of-pocket
expenses.
(c) If this Agreement is terminated by the Representative in
accordance with the provisions of Section 6, Section 10(b) or Section 12,
or if the Offerors shall terminate this Agreement under Section 10(a),
unless the basis upon which the Representative terminates this Agreement
results from the default or omission of any Underwriter, the Company shall
reimburse and indemnify the Underwriters for (i) all of their reasonable
out-of-pocket expenses up to $75,000, including the fees and disbursements
of Underwriters' Counsel, plus (ii) the Blue Sky fees and expenses
identified in Section 5(a)(v) above.
6. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS.
The obligations of the Underwriters hereunder shall be subject to the
continuing accuracy of the representations and warranties of the Offerors herein
as of the date hereof and as of the Closing Date and the Option Closing Date, if
any, as if they had been made on and as of the Closing Date or the Option
Closing Date, as the case may be; the accuracy on and as of the Closing Date or
Option Closing Date, if any, of the statements of officers of the Offerors made
pursuant to the
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provisions hereof; and the performance by the Offerors on and as of the Closing
Date and the Option Closing Date, if any, of their respective covenants and
obligations hereunder and to the following further conditions:
(a) The Registration Statement shall have become effective not later
than 5:00 p.m., Eastern Time, on the date of this Agreement or such later
date and time as shall be consented to in writing by the Representative,
and, at the Closing Date and the Option Closing Date, if any, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or
shall be pending or contemplated by the Commission and any request on the
part of the Commission for additional information shall have been complied
with to the satisfaction of Underwriters' Counsel. If the Offerors have
elected to rely upon Rule 430A of the Rules and Regulations under the Act,
the price of the Designated Preferred Securities and any other information
previously omitted from the effective Registration Statement pursuant to
such Rule 430A shall have been transmitted to the Commission for filing
pursuant to Rule 424(b) of the Rules and Regulations under the Act within
the prescribed time period, and, prior to the Closing Date, the Offerors
shall have provided evidence satisfactory to the Representative of such
timely filing, or a post-effective amendment providing such information
shall have been promptly filed and declared effective in accordance with
the requirements of Rule 430A of the Rules and Regulations under the Act.
(b) The Representative shall not have advised the Offerors that the
Registration Statement, or any amendment thereto, contains an untrue
statement of fact that, in the Representative's opinion or in the opinion
of Underwriters' Counsel, is material, or omits to state a fact that, in
the Representative's opinion or in the opinion of Underwriters' Counsel, is
material and is required to be stated therein or is necessary to make the
statements therein not misleading, or that the Prospectus, or any
supplement thereto, contains an untrue statement of fact that, in the
Representative's opinion or in the opinion of Underwriters' Counsel, is
material, or omits to state a fact that, in the Representative's opinion or
in the opinion of Underwriters' Counsel, is material and is required to be
stated therein or is necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(c) On the Closing Date and the Option Closing Date, if any, the
Representative shall have received from Underwriters' Counsel the favorable
opinion to the effect that:
(i) the Preferred Securities conform in all material respects to
the description thereof contained in the Prospectus;
(ii) the Registration Statement is effective under the Act, and
if applicable, the filing of all pricing and other
information has been timely made in the appropriate form
under Rule 430A of the Rules and Regulations, and, to such
counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been
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<PAGE> 19
issued, and no proceedings for that purpose have been
instituted or threatened by the Commission. Such counsel
shall state that such counsel has participated in
conferences with officers and other representatives of the
Company, counsel for the Company, representatives of the
independent certified public accountants for the Company
and the Representative, at which conferences the contents
of the Registration Statement and the Prospectus and
related matters were discussed and, although such counsel
is not passing upon and does not assume any responsibility
for, nor has such counsel independently verified, the
accuracy, completeness or fairness of the statements
contained in the Registration Statement and Prospectus
(except as to matters referred to in subparagraph (i) above
of this Section 6(c)), no facts have come to the attention
of such counsel (relying as to materiality to a large
extent upon the opinions of officers and other
representatives of the Company) that lead them to believe
that either the Registration Statement or any amendment
thereto, at the time such Registration Statement or
amendment became effective or any Preliminary Prospectus
(other than information omitted pursuant to Rule 430A) or
the Prospectus or any amendment or supplement thereto as of
the date of such opinion contained or contains any 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 not misleading (it being
understood that such counsel need express no view with
respect to the financial statements and schedules and other
financial and statistical data included in any Preliminary
Prospectus, the Registration Statement (including any
exhibit thereto) or the Prospectus or any amendment or
supplement thereto); and
(iii) each of the Preliminary Prospectuses, the Registration
Statement and the Prospectus and any amendments or
supplements thereto (other than the financial statements
and schedules, related notes and other financial and
statistical data included therein, as to which no opinion
need be rendered) comply as to form in all material
respects with the requirements of the Act and the Rules and
Regulations.
The opinion of Underwriters' Counsel to be dated the Option Closing Date,
if any, may confirm as of the Option Closing Date the statements made by
such counsel in their opinion delivered on the Closing Date.
(d) (1) On the Closing Date and the Option Closing Date, if any, the
Underwriters shall have received the favorable opinion of Foley, Hoag &
Eliot LLP, counsel to the Offerors, dated the Closing Date and the Option
Closing Date, if any, addressed to the Underwriters and in form and
substance reasonably satisfactory to Underwriters' Counsel,
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<PAGE> 20
to the effect that:
(i) (A) the Company and each of the Subsidiaries are duly
organized, validly existing and in good standing under the
laws of their respective jurisdictions of organization, (B)
the Company is duly registered as a bank holding company
under the BHC Act, and (C) the Company is duly qualified as
a foreign corporation and in good standing in listed
jurisdictions; all of the outstanding shares of capital
stock of each of the Subsidiaries have been duly authorized
and validly issued and are fully-paid and non-assessable and
are owned of record by the Company; the outstanding shares
of capital stock of the Subsidiaries are owned by the
Company free and clear of all liens, encumbrances and
security interests and, to such counsel's knowledge, no
options, warrants or other rights to purchase, agreements or
other obligations to issue or other rights to convert any
obligations into, or exchange any securities for, any shares
of capital stock of or ownership interests in any of the
Subsidiaries are outstanding;
(ii) the Company and each of the Subsidiaries have the corporate
power to own, lease and operate their respective properties
and to conduct their respective businesses as described in
the Prospectus;
(iii) The capital stock, Debentures and Guarantee of the Company
and the equity securities of the Trust conform to the
description thereof contained in the Prospectus in all
material respects. The capital stock of the Company
authorized and issued as of December 31, 1997 is as set
forth under the caption "Capitalization" in the Prospectus,
has been duly authorized and validly issued, and is fully
paid and nonassessable. To such counsel's knowledge, there
are no outstanding rights, options or warrants to purchase,
no other outstanding securities convertible into or
exchangeable for, and no commitments, plans or arrangements
to issue, any shares of capital stock of the Company or
equity securities of the Trust, except as described in the
Prospectus. To such counsel's knowledge, the Firm Preferred
Securities and the Option Preferred Securities are not and
will not be subject to any preemptive rights under the
Massachusetts Business Corporation Law or similar statutory
rights. The issuance, sale and delivery of the Designated
Preferred Securities and Debentures in accordance with the
terms and conditions of this Agreement and the Indenture
have been duly authorized by all necessary actions of the
Offerors. All of the Designated Preferred Securities have
been duly and validly authorized and, when delivered in
accordance with this Agreement will be duly and validly
issued,
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<PAGE> 21
fully paid and nonassessable, and will conform in all
material respects to the description thereof in the
Registration Statement, the Prospectus and the Trust
Agreement; the certificates representing the Designated
Preferred Securities are in due and proper form; and the
Designated Preferred Securities have been approved for
quotation on NASDAQ-NMS subject to official notice of
issuance. There are no preemptive or other rights to
subscribe for or to purchase, and no restrictions upon the
voting or transfer of, any shares of capital stock or equity
securities of the Offerors or the Subsidiaries pursuant to
the corporate charter, by-laws or other governing documents
(including, without limitation, the Trust Agreement) of the
Offerors or the Subsidiaries, or, to the best of such
counsel's knowledge, any agreement or other instrument to
which either Offeror or any of the Subsidiaries is a party
or by which either Offeror or any of the Subsidiaries may be
bound. To the best of such counsel's knowledge, holders of
securities of the Offerors either do not have any right
that, if exercised, would require the Offerors to cause such
securities to be included in the Registration Statement or
any registration statement to be filed by the Company within
180 days of the date hereof or to require the Company to
file a registration statement under the Act during such 180
day period, or have waived such right.
(iv) the Registration Statement is effective under the Act, and,
if applicable, the filing of all pricing and other
information has been timely made in the appropriate form
under Rule 430A of the Rules and Regulations under the Act,
and, to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement
has been issued, and no proceedings for that purpose have
been instituted or, to such counsel's knowledge, threatened
by the Commission;
(v) the Registration Statement and the Prospectus and any
amendment or supplement thereto (other than the financial
statements and schedules, related notes and other financial
and statistical data included therein, as to which no
opinion need be rendered) comply as to form in all material
respects with the requirements of the Act and the Rules and
Regulations under the Act; and to the best of such counsel's
knowledge, there are no contracts, agreements, leases or
other documents of a character required to be disclosed in
the Registration Statement or Prospectus or to be filed as
exhibits to the Registration Statement that are not so
disclosed or filed;
(vi) (A) to such counsel's knowledge, there is not pending or
threatened against the Offerors or any of the Subsidiaries,
or involving any of
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their respective properties or businesses, any action, suit,
proceeding, inquiry, investigation, litigation or
governmental proceeding, domestic or foreign, that (y) is
required to be disclosed in the Registration Statement and
is not so disclosed (and such proceedings as are summarized
in the Registration Statement are accurately summarized in
all material respects), or (z) questions the validity of the
capital stock or equity securities of the Company or the
Trust, this Agreement, or any action taken or to be taken by
the Offerors pursuant to or in connection with this
Agreement and (B) no statute or regulation or legal or, to
such counsel's knowledge, governmental proceeding required
to be described in the Prospectus is not described as
required;
(vii) the Offerors have all requisite corporate and trust power
and authority to enter into this Agreement and to consummate
the transactions provided for herein; and this Agreement has
been duly authorized, executed and delivered by the Offerors
and constitutes the legal, valid and binding obligation of
the Offerors enforceable in accordance with its terms. The
execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated herein and
in the Trust Agreement does not and will not result in any
breach or violation of any of the material terms or
provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge, claim,
pledge, security interest, or other encumbrance upon, any
property or assets (tangible or intangible) of the Offerors
or any of the Subsidiaries or the Designated Preferred
Securities pursuant to the terms of (A) the corporate
charter, operating agreement or by-laws, or other governing
instrument (including without limitation the Trust
Agreement) of the Offerors or any of the Subsidiaries, (B)
to such counsel's knowledge, the Guarantee, the Indenture,
the Expense Agreement, any voting trust agreement or any
stockholders agreement, or any indenture, mortgage, deed of
trust, note, loan or credit agreement or other agreement or
instrument known to such counsel to which either of the
Offerors or any of the Subsidiaries is a party or by which
any of them is or may be bound or to which any of their
respective properties or assets (tangible or intangible) is
or may be subject, or (C) any statute, rule or regulation
or, to such counsel's knowledge, any judgment, decree or
order applicable to either of the Offerors or any of the
Subsidiaries of any arbitrator, court, regulatory body or
administrative agency or other governmental agency or body
having jurisdiction over either of the Offerors or any of
the Subsidiaries or any of their respective activities or
properties, the violation of which would have a Material
Adverse Effect;
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(viii) each of the Indenture, the Trust Agreement and the
Guarantee has been duly qualified under the Trust Indenture
Act, has been duly authorized, executed and delivered by the
Company, and is a valid and legally binding obligation of
the Company enforceable in accordance with its terms;
(ix) the Debentures have been duly authorized, executed,
authenticated and delivered by the Company, are entitled to
the benefits of the Indenture and are legal, valid and
binding obligations of the Company enforceable against the
Company in accordance with their terms;
(x) the Expense Agreement has been duly authorized, executed and
delivered by the Company, and is a valid and legally binding
obligation of the Company enforceable in accordance with its
terms;
(xi) no consent, approval, authorization or order of, and no
filing with, any federal or state court, regulatory body,
government agency or other body (other than such as have
been effected under the Act and the Exchange Act and such as
may be required under Blue Sky or state securities laws or
the rules of the NASD in connection with the purchase and
distribution of the Designated Preferred Securities by the
Underwriters, as to which no opinion need be rendered) is
required in connection with the issuance of the Designated
Preferred Securities pursuant to the Prospectus and the
Registration Statement, the performance of this Agreement
and the transactions contemplated hereby;
(xii) to such counsel's knowledge neither the Offerors nor any of
the Subsidiaries is in violation of any term or provision of
its corporate charter, operating agreement, or by-laws or
other governing instrument (including without limitation the
Trust Agreement);
(xiii) the statements in the Prospectus (or incorporated therein
by reference) under the captions "Holding Company
Regulation," "Description of the Preferred Securities,"
"Description of the Junior Subordinated Debentures,"
"Description of the Guarantee," "Relationship Among the
Preferred Securities, the Subordinated Debentures and the
Guarantee," "Certain Federal Income Tax Consequences," and
"ERISA Considerations" have been reviewed by such counsel,
and insofar as they refer to statements of law, descriptions
of statutes, written contracts, or rules or regulations, are
correct in all material respects; and
(xiv) Except as set forth in the Prospectus, to the best of such
counsel's
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<PAGE> 24
knowledge, there are no contractual encumbrances or
restrictions, or material legal restrictions required to be
described therein on the ability of the Subsidiaries (A) to
pay dividends or make any other distributions on their
capital stock or to pay indebtedness owed to the Offerors,
(B) to make any loans or advances to, or investments in, the
Offerors or (C) to transfer any of their property or assets
to the Offerors.
Such counsel shall state that such counsel has participated in
conferences with officers and other representatives of the Offerors
and representatives of the independent certified public accountants
for the Offerors, at which conferences the contents of the
Registration Statement and the Prospectus and related matters were
discussed, and, although such counsel is not passing upon and does not
assume any responsibility for, nor has such counsel independently
verified, the accuracy, completeness or fairness of the statements
contained in the Registration Statement and Prospectus, no facts have
come to the attention of such counsel that lead them to believe that
either the Registration Statement or any amendment thereto, at any
time such Registration Statement or amendment became effective or any
Preliminary Prospectus circulated by the Underwriters (other than
information omitted pursuant to Rule 430A as of the date of such
Preliminary Prospectus) or the Prospectus or any amendment or
supplement thereto as of the date of such opinion contained or
contains any 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 not misleading in light of the
circumstances under which they were made (it being understood that
such counsel need express no view with respect to the financial
statements and schedules, related notes, and other financial and
statistical data included or incorporated by reference in any
Preliminary Prospectus circulated by the Underwriters, the
Registration Statement (including any exhibit thereto) or the
Prospectus or any amendment or supplement thereto).
The foregoing opinion may be limited to the laws of The Commonwealth
of Massachusetts, the laws of the jurisdictions of incorporation of
the Subsidiaries and applicable United States federal law. In
rendering the foregoing opinions, counsel may rely, to the extent they
deem such reliance proper, on the opinions of other counsel as to
matters governed by the laws of jurisdictions other than the United
States and The Commonwealth of Massachusetts. In rendering such
opinions, such counsel may rely as to matters of fact, to the extent
they deem proper, on certificates and written statements of
responsible officers of the Offerors and the Subsidiaries and
certificates or other written statements of officers of departments of
various jurisdictions having custody of documents respecting the
corporate existence or good standing of the Company and the
Subsidiaries, provided that copies of any such statements or
certificates shall be delivered to Underwriters' Counsel if requested.
For purposes of any of the opinions to be rendered by such counsel
pursuant to this subsection (d) of Section 6, the term "to such
counsel's knowledge" shall mean, to
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the extent that such opinion relates to a factual issue or to a mixed
question of law and fact, that after examination of documents in such
counsel's files relating to the Offering and considering the actual
knowledge of the individual attorneys in such counsel's firm who have
given substantive attention to matters on behalf of the Offerors, such
counsel finds no reason to believe that any of such opinions is
factually incorrect.
The opinion of counsel to the Offerors, to be dated the Option Closing
Date, if any, may confirm as of the Option Closing Date the statements
made by such counsel in their opinion delivered on the Closing Date.
(2) Morris, Nichols, Arsht & Tunnell, special Delaware counsel to the
Offerors, shall have furnished to you their signed opinion, dated as of Closing
Date or the Option Closing Date, as the case may be, in form and substance
satisfactory to Underwriters' Counsel, 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 Business Trust
Act, 12 DEL. C. secs. 3801 ET SEQ. (the "Delaware Act"), with
the business trust power and authority to (a) own its property
and conduct its business as described in the Prospectus, (b)
execute and deliver, and perform its obligations under, this
Agreement and (c) issue and perform its obligations under the
Trust Preferred Securities.
(ii) The Trust Agreement constitutes a legal, valid and binding
obligation of the Company and the trustees of the Trust in
accordance with its terms.
(iii) Under the Trust Agreement and the Delaware Act, all necessary
trust action has been taken on the part of the Trust to duly
authorize the execution and delivery of this Agreement by the
Trust and the performance of its obligations hereunder.
(iv) The Designated Preferred Securities have been duly authorized for
issuance by the Trust Agreement and, when issued and delivered
in accordance with the terms of the Trust Agreement and this
Agreement and as described in the Prospectus, will be validly
issued and (subject to the terms of the Trust Agreement) fully
paid and non-assessable undivided beneficial interests in the
assets of the Trust. The holders of the Preferred Securities
will be entitled to the benefits of the Trust Agreement and will
be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit
organized under the Delaware General Corporation Law. Such
opinion may note that the holders of the Preferred Securities
may be required to make payment or provide indemnity or security
as set forth in the Trust Agreement.
(v) Under the Trust Agreement and the Delaware Act, the issuance of
the Preferred Securities is not subject to preemptive rights.
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(vi) The issuance and sale by the Trust of the Designated Preferred
Securities and the Common Securities, the execution, delivery and
performance by the Trust of this Agreement, and the consummation
by the Trust of the transactions contemplated by this Agreement
do not violate (a) any of the provisions of the Certificate of
Trust or the Trust Agreement or (b) any applicable Delaware law
or administrative regulation.
Such opinion may state that is limited to the laws of the State of Delaware
and that the opinion expressed in paragraph (ii) above is subject to the effect
upon the Trust Agreement of (i) bankruptcy, insolvency, receivership,
liquidation, fraudulent conveyance, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors' rights and
remedies, (ii) general principles of equity (regardless of whether considered
and applied in a proceeding in equity or at law), and (iii) considerations of
public policy and the effect of applicable law relating to fiduciary duties.
(e) On or prior to each of the Closing Date and the Option Closing
Date, if any, Underwriters' Counsel shall have been furnished such
customary documents, certificates and opinions as they may reasonably
require for the purpose of enabling them to review or pass upon the matters
referred to in subsection (d) of this Section 6, or in order to evidence
the accuracy, completeness or satisfaction of any of the representations,
warranties or conditions of the Offerors herein contained.
(f) Prior to each of the Closing Date and the Option Closing Date, if
any, (i) from the respective dates as of which information is set forth in
the Registration Statement and Prospectus, there shall have been no
developments that, individually or in the aggregate, have had a Material
Adverse Effect; (ii) there shall have been no transaction, not in the
ordinary course of business, entered into by either of the Offerors or any
of the Subsidiaries, from the latest date as of which the financial
condition of the Offerors and the Subsidiaries is set forth in the
Registration Statement and Prospectus, that, individually or in the
aggregate, has had a Material Adverse Effect; (iii) neither the Offerors
nor any of the Subsidiaries shall be in default under any provision of any
instrument relating to any of their respective outstanding indebtedness;
(iv) no material amount of the assets of the Offerors or any of the
Subsidiaries shall have been pledged or mortgaged, except as set forth in
the Registration Statement and Prospectus (including the exhibits to the
Registration Statement); (v) no action, suit or proceeding, at law or in
equity, shall have been pending or, to the knowledge of the Offerors,
threatened against the Offerors or any of the Subsidiaries, or affecting
any of their respective properties or businesses before or by any court or
federal, state or foreign commission, board or other administrative agency
wherein an unfavorable decision, ruling or finding would have a Material
Adverse Effect; and (vi) no stop order shall have been issued under the Act
and no proceedings therefor shall have been initiated, or, to the
Offerors's knowledge, threatened or contemplated by the Commission.
(g) At each of the Closing Date and the Option Closing Date, if any,
the
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Representative shall have received a certificate of the Offerors signed by
the principal executive officer and by the chief financial officer of the
Company and by the Administrative Trustees of the Trust, dated the Closing
Date or Option Closing Date, as the case may be, to the effect that each of
such persons has carefully examined the Registration Statement, the
Prospectus and this Agreement and that:
(i) the representations and warranties of the applicable Offeror
in this Agreement are true and correct, as if made on and as
of the Closing Date or the Option Closing Date, as the case
may be, and the applicable Offeror has complied with all
agreements and covenants and satisfied all conditions
contained in this Agreement on its part to be performed or
satisfied at or prior to such Closing Date or Option Closing
Date, as the case may be;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings
for that purpose have been instituted or are pending or, to
the knowledge of such officer, are threatened under the Act;
(iii) none of the Registration Statement, the Prospectus nor any
amendment or supplement thereto includes any untrue
statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading and neither the
Preliminary Prospectus nor any supplement thereto included
any untrue statement of a material fact or omitted to state
any 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;
and
(iv) subsequent to the respective dates as of which information
is given in the Registration and the Prospectus, neither the
Offerors nor any of the Subsidiaries has incurred up to and
including the Closing Date or the Option Closing Date, as
the case may be, other than in the ordinary course of their
respective businesses, any material liabilities or
obligations, direct or contingent; the Offerors has not paid
or declared any dividends or other distributions on its
capital or equity securities; neither the Offerors nor any
of the Subsidiaries has entered into any transactions not in
the ordinary course of business; and there has not been any
material change in the capital stock or long-term debt or
any material increase in the short-term borrowings of the
Offerors or any of the Subsidiaries; neither the Offerors
nor any of the Subsidiaries has sustained any material loss
or damage to its property or assets, whether or not insured;
there is no litigation that is pending or, to the knowledge
of such officers, threatened against the Offerors
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or any of the Subsidiaries that is required to be set forth
in an amended or supplemented Prospectus that has not been
set forth; and there has occurred no event required to be
set forth in an amended or supplemented Prospectus that has
not been set forth.
References to the Registration Statement and the Prospectus in this
subsection (g) are to such documents as amended and supplemented at the
date of such certificate.
(h) On the date of this Agreement, the Representative shall have
received a letter in form and substance satisfactory to the Representative
and the Underwriters' Counsel addressed to the Underwriters and dated the
date of this Agreement from KPMG and signed by such firm with respect to
such matters as shall have been specified to such firm by the Underwriters
prior to the date hereof. At the Closing Date and the Option Closing Date,
if any, the Underwriters shall have received from KPMG a letter, dated as
of the Closing Date or the Option Closing Date, as the case may be,
reaffirming the statements made in the letter furnished by KPMG to the
Underwriters concurrently with the execution of this Agreement, each such
reaffirming letter to be in form and substance satisfactory to the
Underwriters and the Underwriters' Counsel.
(i) On each of the Closing Date and the Option Closing Date, if any,
there shall have been duly tendered to the Representative for the several
Underwriters' accounts the appropriate number of Designated Preferred
Securities.
(j) No order suspending the sale of the Designated Preferred
Securities in any jurisdiction designated by the Representative pursuant to
subsection (c) of Section 4 hereof shall have been issued on either the
Closing Date or the Option Closing Date, if any, and no proceedings for
that purpose shall have been instituted or to the knowledge of the
Representative or the Offerors shall be contemplated.
(k) The Designated Preferred Securities delivered on the Closing Date
or the Option Closing Date shall have been duly listed, subject to notice
of official issuance, on the NASDAQ-NM.
(l) On the Closing Date, you shall have received duly executed
counterparts of the Trust Agreement, the Guarantee, the Indenture and the
Expense Agreement.
(m) The NASD, upon review of the terms of the public offering of the
Designated Preferred Securities, shall not have objected to the
Underwriters' participation in such offering.
(n) Prior to the Closing Date and, if applicable, the Option Closing
Date, the Offerors shall have furnished to you and Underwriters' Counsel
all such other documents, certificates and opinions as they have reasonably
requested.
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If any condition to the Underwriters' obligations hereunder to be fulfilled
prior to or at the Closing Date or the relevant Option Closing Date, as the case
may be, is not so fulfilled, the Underwriters may terminate this Agreement or,
if the Underwriters so elects, it may waive any such conditions that have not
been fulfilled or extend the time for their fulfillment.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Offerors jointly and severally agree to defend, indemnify and
hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any breach of any representation, warranty, agreement or
covenant of the Company or the Trust herein contained or any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances in which they were made, not misleading; and agrees to
reimburse each Underwriter subject to subsection (d) for any legal or other
expenses reasonably incurred by it in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
however, that the Offerors shall not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement, such Preliminary
Prospectus or the Prospectus, or any such amendment or supplement, in
reliance upon and in conformity in all material respects with written
information furnished with respect to any Underwriters by such Underwriter
expressly for use in the Registration Statement, any Preliminary Prospectus
or the Prospectus or any amendment or supplement thereto, provided that
such written information or omissions only pertain to disclosures in the
Registration Statement, any preliminary Prospectus or the Prospectus or any
amendment or supplement thereto directly relating to the transactions
effected by the Underwriters in connection with this offering, and provided
further that the foregoing indemnity with respect to any Preliminary
Prospectus shall not inure to the benefit of any Underwriter (or to the
benefit of any person controlling such Underwriter) if such untrue
statement or omission or alleged untrue statement or omission made in any
Preliminary Prospectus is eliminated or remedied in the Prospectus and a
copy of the Prospectus has not been furnished to the person asserting any
such loss, claim, damage or liability at or prior to the written
confirmation of the sale of such Preferred Securities to such person.
The indemnity agreement in this Section 7(a) shall extend upon the
same terms and conditions to, and shall inure to the benefit of each
person, if any, who controls any Underwriter within the meaning of the Act.
This indemnity agreement shall be in addition to any liabilities which the
Offerors may otherwise have.
(b) Each Underwriter, severally and not jointly, agrees to indemnify
and hold
29
<PAGE> 30
harmless the Offerors to the same extent as the foregoing indemnity from
the Company to the Underwriters but only with respect to statements or
omissions, if any, made in the Registration Statement, any Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto made in
reliance upon, and in conformity in all material respects with, written
information furnished with respect to any Underwriter by such Underwriter
expressly for use in the Registration Statement, any Preliminary Prospectus
or the Prospectus or any amendment or supplement thereto, provided that
such written information or omissions only pertain to disclosures in the
Registration Statement, any Preliminary Prospectus or the Prospectus or any
amendment or supplement thereto directly relating to the transactions
effected by the Underwriters in connection with this offering.
The indemnity agreement in this Section 7(b) shall extend upon the
same terms and conditions to, and shall inure to the benefit of, each
officer and director of the Company and the Trust who has signed the
Registration Statement, and each person, if any, who controls the Company
or the Trust within the meaning of the Act. This indemnity agreement shall
be in addition to any liabilities which each Underwriter may otherwise
have. For purposes of this Agreement, the Offerors acknowledge that the
statements with respect to the public offering of the Designated Preferred
Securities set forth under the heading "UNDERWRITING" and the stabilization
legend in the Prospectus and the last paragraph on the outside front cover
page of the Prospectus have been furnished by the Underwriters expressly
for use therein and constitute the only information furnished in writing by
or on behalf of the Underwriters for inclusion in the Prospectus.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 7, notify the indemnifying party in writing of the
commencement thereof but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party under this Section 7 (except to the extent that the omissions of such
notice causes actual prejudice to the indemnifying party), or otherwise
than under this Section 7. In case any such action is brought against any
indemnified party, and it notified the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein, and to the extent that it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party; provided,
however, if the defendants in any such action include both the indemnified
parties and the indemnifying party and counsel for the indemnified party
shall have reasonably concluded that there may be legal defenses available
to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel reasonably
satisfactory to the indemnifying party or parties to assume such legal
defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from
the indemnifying party to such indemnified party of its election so to
assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying
30
<PAGE> 31
party will not be liable to such indemnified party under this Section 7 for
any legal or other expenses subsequently incurred by such indemnified party
in connection with the defense thereof unless (i) the indemnified party
shall have employed separate counsel in accordance with the proviso to the
next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel approved by the indemnifying party, representing all the
indemnified parties under Section 7(a), 7(b) or 7(c) hereof who are parties
to such action), (ii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of
the action, or (iii) the indemnifying party has authorized the employment
of counsel for the indemnified party at the expense of the indemnifying
party. In no event shall any indemnifying party be liable in respect of any
amounts paid in settlement of any action unless the indemnifying party
shall have approved the terms of such settlement; provided however that
such consent shall not be unreasonably withheld.
(d) In order to provide for just and equitable contribution in any
action in which a claim for indemnification is made pursuant to this
Section 7 but it is judicially determined (by the entry of a final judgment
or decree by a court of competent jurisdiction and the expiration of time
to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding the fact
that this Section 7 provides for indemnification in such case, all the
parties hereto shall contribute to the aggregate losses, claims, damages or
liabilities to which they may be subject (after contribution from others)
in such proportion so that the Underwriters are responsible pro rata for
the portion represented by the percentage that the underwriting discount
bears to the public offering price, and the Offerors are responsible for
the remaining portion, provided, however, that (i) no Underwriter shall not
be required to contribute any amount in excess of the underwriting discount
applicable to the Preferred Securities purchased by such Underwriter and
(ii) no person guilty of a fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to a contribution from any
person who is not guilty of such fraudulent misrepresentation.
(e) The parties to this Agreement hereby acknowledge that they are
sophisticated business persons who were represented by counsel during the
negotiations regarding the provisions hereof including without limitation
the provisions of this Section 7, and are fully informed regarding such
provisions. They further acknowledge that the provisions of this Section 7
fairly allocate the risks in light of the ability of the parties to
investigate the Offerors and their business in order to assure that
adequate disclosure is made in the Registration Statement and Prospectus as
required by the Act and the Exchange Act. The parties are advised that
federal or state public policy, as interpreted by the courts in certain
jurisdictions, may be contrary to certain of the provisions of this Section
7, and the parties hereto hereby expressly waive and relinquish any right
or ability to assert such public policy as a defense to a claim under this
Section 7 and further agree not to attempt to assert any such defense.
31
<PAGE> 32
8. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this Agreement
or contained in certificates of officers of the Offerors submitted pursuant
thereto shall be deemed to be representations, warranties and agreements at the
Closing Date and the Option Closing Date, as the case may be, and such
representations, warranties and agreements, and the indemnity and contribution
agreements contained in Section 7 hereof, shall remain operative and in full
force and effect regardless of any investigation made by or on behalf of any
Underwriter, the Offerors or any controlling person, and shall survive
termination of this Agreement or the issuance or sale and delivery of the
Designated Preferred Securities to the Underwriters.
9. EFFECTIVE DATE.
This Agreement shall become effective at 9:30 a.m., Eastern Time, on the
date hereof, or at such earlier time after the Registration Statement becomes
effective as the Representative, in its sole discretion, shall release the
Designated Preferred Securities for the sale to the public, provided, however
that the provisions of Sections 5, 7 and 9 of this Agreement shall at all times
be effective. For purposes of this Section 9, the Designated Preferred
Securities to be purchased hereunder shall be deemed to have been so released
upon the earlier of dispatch by the Representative of telegrams to securities
dealers releasing such Designated Preferred Securities for offering or the
release by the Representative for publication of the first newspaper
advertisement that is subsequently published relating to the Designated
Preferred Securities.
10. TERMINATION.
(a) Subject to subsection (d) of this Section 10, the Offerors may at
any time before this Agreement becomes effective in accordance with Section
9, terminate this Agreement.
(b) Subject to subsection (d) of this Section 10, the Representative
shall have the right to terminate this Agreement, (i) if any calamitous
domestic or international event or act or occurrence has materially
disrupted, or in the Representative's opinion will in the immediate future
materially disrupt, general securities markets in the United States; or
(ii) if trading on the New York Stock Exchange, the NASDAQ-NM or in the
over-the-counter market shall have been suspended, or minimum or maximum
prices for trading shall have been fixed, or maximum ranges for prices for
securities shall have been required on the over-the-counter market by the
NASD or by order of the Commission or any other government authority having
jurisdiction; or (iii) if the United States shall have become involved in a
war or major hostilities; or (iv) if a banking moratorium has been declared
by the State of New York, the Commonwealth of Massachusetts or any federal
authority; or (v) if a moratorium in foreign exchange trading has been
declared; or (vi) if the Company or the Trust shall have sustained a loss
material or substantial to the Company or the Trust by fire, flood,
accident, hurricane, earthquake, theft, sabotage or other calamity or
malicious act that, whether or not such loss shall have been insured, will,
in the Representative's reasonable opinion, make it
32
<PAGE> 33
inadvisable to proceed with the delivery of the Designated Preferred
Securities; or (vii) if there shall have been a Material Adverse Effect.
(c) If any party hereto elects to prevent this Agreement from
becoming effective or to terminate this Agreement as provided in this
Section 10, such party shall notify, on the same day as such election is
made, the other parties hereto in accordance with the provisions of Section
13 hereof.
(d) Notwithstanding any contrary provision contained in this
Agreement, any election hereunder or any termination of this Agreement
(including, without limitation, pursuant to Sections 11 and 12 hereof), and
whether or not this Agreement is otherwise carried out, the provisions of
Sections 5, 7 and 9 shall not be in any way affected by such election or
termination or failure to carry out the terms of this Agreement or any part
thereof.
11. SUBSTITUTION OF THE UNDERWRITERS.
If one or more of the Underwriters shall fail (otherwise than for a reason
sufficient to justify the termination of this Agreement under the provisions of
Section 6, Section 10 or Section 12 hereof) to purchase the Designated Preferred
Securities that it or they are obligated to purchase on such date under this
Agreement (the "Defaulted Securities"), the Representative shall use its best
efforts within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Representative shall not
have completed such arrangements within such 24 hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
total number of Firm Preferred Securities to be purchased on such date, the
non-defaulting Underwriters shall be obligated to purchase the full amount
thereof in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the total
number of Firm Preferred Securities and arrangements satisfactory to the
Representative for the purchase of the Defaulted Securities are not made
within 36 hours, this Agreement shall terminate without liability on the
part of any non-defaulting Underwriters. The Offerors may assist the
Representative in making such arrangements by procuring another party
satisfactory to the Representative to purchase the Defaulted Securities on
the terms set forth herein.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of any default by such Underwriter under
this Agreement.
In the event of any such default that does not result in a termination of
this Agreement, the Representative shall have the right to postpone the Closing
Date for a period not exceeding seven
33
<PAGE> 34
days in order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements.
12. DEFAULT BY THE TRUST.
If the Trust shall fail at the Closing Date or the Option Closing Date, as
applicable, to sell and deliver the number of Preferred Securities that it is
obligated to sell hereunder on such date, then this Agreement shall terminate
(or, if such default shall occur with respect to any Option Preferred Securities
to be purchased on the Option Closing Date, the Underwriters may, at the
Representative's option, by notice from the Representative to the Company,
terminate the Underwriters' several obligations to purchase Designated Preferred
Securities from the Company on such date) without any liability on the part of
any non-defaulting party other than pursuant to Section 5 and Section 7 hereof.
No action taken pursuant to this Section shall relieve the Trust from liability,
if any, in respect of such default.
13. NOTICES.
All notices and communications hereunder may be mailed or transmitted by
any standard form of telecommunication and, except as herein otherwise
specifically provided, shall be in writing and shall be deemed to have been duly
given when delivered to a notice party hereto at the address specified herein or
at the address subsequently communicated in writing to the notice parties.
Notices to the Underwriters shall be directed to the Representative c/o Tucker
Anthony Incorporated, One Beacon Street, Boston, Massachusetts 02108, Attention:
Gregory W. Benning, Managing Director, with a copy to Regina M. Pisa, P.C.,
Goodwin, Procter & Hoar LLP, Exchange Place, Boston, Massachusetts 02109.
Notices to the Company or the Trust shall be directed to c/o Century Bancorp,
Inc., 400 Mystic Avenue, Medford, Massachusetts 02155, with a copy to Peter W.
Coogan, Esq., Foley, Hoag & Eliot, LLP, One Post Office Square, Boston,
Massachusetts 02109. In each case a notice party may change its address for
notice hereunder by a written communication to the other notice parties.
14. PARTIES.
This Agreement shall inure solely to the benefit of and shall be binding
upon, the Underwriters, the Offerors and the controlling persons, directors and
officers referred to in Section 7 hereof, and their respective successors, legal
representatives and assigns, and no other person shall have or be construed to
have any legal or equitable right, remedy or claim under or in respect of or by
virtue of this Agreement or any provisions herein contained. No purchaser of
Preferred Securities from any Underwriter shall be deemed to be a successor by
reason merely of such purchase.
15. CONSTRUCTION.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS WITHOUT GIVING
EFFECT TO THE CHOICE OF LAW OR CONFLICT
34
<PAGE> 35
OF LAWS PRINCIPLES.
16. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, and all of which taken together shall be
deemed to be one and the same instrument.
17. ENTIRE AGREEMENT.
This Agreement and the Schedules hereto contain the entire agreement
between the parties hereto in connection with the subject matter hereof and
supersede all prior agreements, written or oral, with respect to such subject
matter.
18. AMENDMENT.
This Agreement and the Schedules hereto may not be amended, modified or
altered without the written agreement of the Offerors and the Underwriters. If
the foregoing correctly sets forth the understanding between the Underwriters
and the Offerors, please so indicate in the space provided below for that
purpose, whereupon this letter shall constitute a binding agreement among us.
Very truly yours,
CENTURY BANCORP, INC.
By:_________________________________________
Name:
Title:
CENTURY BANCORP CAPITAL TRUST
By:_________________________________________
Name:
Title:
CONFIRMED AND ACCEPTED AS OF THE
DATE FIRST ABOVE WRITTEN:
TUCKER ANTHONY INCORPORATED
By:_________________________________________
Name:
Title:
35
<PAGE> 36
SCHEDULE A
NAME NUMBER OF FIRM PREFERRED SECURITIES
- ---- -----------------------------------
Tucker Anthony Incorporated
- ------------------------
- ------------------------
Total 2,500,000
<PAGE> 1
Exhibit 4.2
Certificate No. 1 $___________
CUSIP No. ____________
CENTURY BANCORP, INC.
____% JUNIOR SUBORDINATED DEBENTURE
DUE JUNE 30, 2029
Century Bancorp, Inc., a Massachusetts corporation (the "Company,"
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to State Street Bank
and Trust Company, as Property Trustee for Century Bancorp Capital Trust, or
registered assigns, the principal sum of ______________________________ Thousand
Dollars ($__________) on June 30, 2029 (the "Stated Maturity"), and to pay
interest on said principal sum from May __, 1998, 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 June 30, 1998, at the rate of _____% per annum until the
principal hereof shall have become due and payable, and on any overdue principal
and (without duplication) 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. The amount of interest for any partial period shall be computed
on the basis of the number of days elapsed in 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
shall be made on the next succeeding day that is a Business Day (as defined in
the Indenture) (and without any interest or other payment in respect of any such
delay) with the same force and effect as if made on such date. The interest
installment so payable, and punctually paid or duly provided for, on any
Interest Payment Date shall, as provided in the Indenture, be paid to the person
in whose name this Debenture (or one or more Predecessor Debentures, as defined
in said Indenture) is registered at the close of business on the regular record
date for such interest installment, which shall be the close of business on the
fifteenth day of the last month of the calendar quarter in which the Interest
Payment Date occurs unless otherwise provided in the Indenture. 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 Debentures) 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 the
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 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,
<PAGE> 2
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
Debenture Register. Notwithstanding the foregoing, so long as the holder of this
Debenture is the Property Trustee, the payment of the principal of and interest
on this Debenture shall be made at such place and to such account as may be
designated by the Trustee.
This Debenture may be redeemed by the Company on any date not earlier
than June 30, 2003, subject to the Company having received prior approval of the
Federal Reserve if then required under applicable capital guidelines or policies
of the Federal Reserve.
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 (as defined in the Indenture), 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, 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: , 1998
CENTURY BANCORP, INC.
By:______________________________
President and Chief Executive Officer
Attest:
By: _____________________________
Vice President and Treasurer
<PAGE> 3
____% SUBORDINATED DEBENTURE
(CONTINUED)
This Debenture is one of the subordinated debentures of the Company
(herein sometimes referred to as the "Debentures"), all issued or to be issued
under and pursuant to an Indenture dated as of May __, 1998 (the "Indenture")
duly executed and delivered between the Company and State Street Bank and Trust
Company, as Trustee (the "Trustee"), to which Indenture reference is hereby made
for a description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the holders of the
Debentures. The Debentures are limited in aggregate principal amount as
specified in the Indenture.
The Company shall have the right to redeem this Debenture at the option
of the Company, without premium or penalty, in whole or in part at any time on
or after June 30, 2003 (an "Optional Redemption"), or at any time in certain
circumstances upon the occurrence of a Special Event (as defined in the
Indenture), at a redemption price (the "Redemption Price") equal to 100% of the
principal amount hereof plus any accrued but unpaid interest hereon, to the date
of such redemption, plus Additional Interest, if any. Any redemption pursuant to
this paragraph shall be made upon not less than 30 days nor more than 60 days
notice, at the Redemption Price. If the Debentures are only partially redeemed
by the Company pursuant to an Optional Redemption, the Debentures shall be
redeemed pro rata or by lot or by any other method utilized by the Trustee as
described in the Indenture.
In the event of redemption of this Debenture in part only, a new
Debenture or Debentures for the unredeemed portion hereof shall 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 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 the Debentures
except as provided in the Indenture, or reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon, 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
<PAGE> 4
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 at the time outstanding, on behalf
of all of the holders of the Debentures, to waive any past default in the
performance of any of the covenants contained in the Indenture, or established
pursuant to the Indenture, and its consequences, except a default in the payment
of the principal of or interest on any of the Debentures. 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 herefor 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 and interest on this
Debenture at the time and place and at the rate and in the money herein
prescribed.
The Company, as further described in the Indenture, 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 (each, an "Extended Interest Payment Period"), at the end of which
period the Company shall pay all interest then accrued and unpaid, including any
Additional Interest and Compounded Interest (as defined in the Indenture and
together, the "Deferred Payments") that shall be payable to the holders of the
Debentures in whose names the Debentures are registered in the Debenture
Register on the first record date after the end of the Extension Period. 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. At the termination of any such
Extended Interest Payment Period and upon the payment of all Deferred Payments
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
Debenture Register of the Company, upon surrender of this Debenture for
registration of transfer at the office or agency of the Trustee 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 shall be
issued to the designated transferee or transferees. No service charge shall 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 Debenture
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 Debenture
<PAGE> 5
Registrar) for the purpose of receiving payment of or on account of the
principal hereof and interest due hereon and for all other purposes, and neither
the Company nor the Trustee nor any Paying Agent nor any Debenture Registrar
shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
The Debentures are issuable only in registered form without coupons in
denominations of $10 and any integral multiple thereof (or such other
denominations and any integral multiple thereof as may be deemed necessary by
the Company for the purpose of maintaining the eligibility of the Debentures for
quotation on The Nasdaq Stock Market's National Market or any successor
thereto).
All terms used in this Debenture that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
<PAGE> 6
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures described in the
within-mentioned Indenture.
Dated: , 1998
STATE STREET BANK AND TRUST COMPANY
as Trustee
By ___________________________
Authorized Signatory
<PAGE> 1
EXHIBIT 4.4
=====================================================================
-----------------------------
AMENDED AND RESTATED
TRUST AGREEMENT
AMONG
CENTURY BANCORP, INC., AS DEPOSITOR
STATE STREET BANK AND TRUST COMPANY, AS PROPERTY TRUSTEE
WILMINGTON TRUST COMPANY, AS DELAWARE TRUSTEE,
AND
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
DATED AS OF MAY __, 1998
==================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I
DEFINED TERMS........................................................................................... 2
SECTION 101. DEFINITIONS. ............................................................................ 2
ARTICLE II
ESTABLISHMENT OF THE TRUST
....................................................................................................... 10
SECTION 202. OFFICE OF THE DELAWARE TRUSTEE; PRINCIPAL PLACE
OF BUSINESS.................................................................. 10
SECTION 203. INITIAL CONTRIBUTION OF TRUST PROPERTY;
ORGANIZATIONAL EXPENSES...................................................... 10
SECTION 205. ISSUANCE OF THE COMMON SECURITIES; SUBSCRIPTION
AND PURCHASE OF DEBENTURES................................................... 11
SECTION 206. DECLARATION OF TRUST......................................................... 11
SECTION 207. AUTHORIZATION TO ENTER INTO CERTAIN
TRANSACTIONS................................................................. 12
SECTION 208. ASSETS OF TRUST.............................................................. 15
SECTION 209. TITLE TO TRUST PROPERTY...................................................... 15
ARTICLE III
PAYMENT ACCOUNT......................................................................................... 16
SECTION 301. PAYMENT ACCOUNT.............................................................. 16
ARTICLE IV
DISTRIBUTIONS; REDEMPTION............................................................................... 16
SECTION 401. DISTRIBUTIONS................................................................ 16
SECTION 402. REDEMPTION................................................................... 17
SECTION 403. SUBORDINATION OF COMMON SECURITIES........................................... 19
SECTION 404. PAYMENT PROCEDURES........................................................... 19
SECTION 405. TAX RETURNS AND REPORTS...................................................... 19
SECTION 406. PAYMENT OF TAXES, DUTIES, ETC. OF THE TRUST................................. 20
SECTION 407. PAYMENTS UNDER INDENTURE..................................................... 20
ARTICLE V
TRUST SECURITIES CERTIFICATES........................................................................... 20
SECTION 501. INITIAL OWNERSHIP............................................................ 20
SECTION 502. THE TRUST SECURITIES CERTIFICATES............................................ 20
</TABLE>
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<TABLE>
<S> <C>
SECTION 503. EXECUTION, AUTHENTICATION AND DELIVERY OF TRUST
SECURITIES CERTIFICATES...................................................... 21
SECTION 504. REGISTRATION OF TRANSFER AND EXCHANGE OF
PREFERRED SECURITIES CERTIFICATES............................................ 21
SECTION 505. MUTILATED, DESTROYED, LOST OR STOLEN TRUST
SECURITIES CERTIFICATES...................................................... 22
SECTION 506. PERSONS DEEMED SECURITYHOLDERS............................................... 23
SECTION 507. ACCESS TO LIST OF SECURITYHOLDERS' NAMES AND
ADDRESSES.................................................................... 23
SECTION 508. MAINTENANCE OF OFFICE OR AGENCY.............................................. 23
SECTION 509. APPOINTMENT OF PAYING AGENT.................................................. 24
SECTION 510. OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR.
............................................................................ 24
SECTION 511. PREFERRED SECURITIES CERTIFICATES............................................ 24
SECTION 512. [Intentionally Omitted]...................................................... 25
SECTION 513. [Intentionally Omitted]...................................................... 25
SECTION 514. RIGHTS OF SECURITYHOLDERS.................................................... 25
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING............................................................... 26
SECTION 601. LIMITATIONS ON VOTING RIGHTS................................................. 26
SECTION 602. NOTICE OF MEETINGS........................................................... 27
SECTION 603. MEETINGS OF PREFERRED SECURITYHOLDERS........................................ 27
SECTION 604. VOTING RIGHTS................................................................ 27
SECTION 605. PROXIES, ETC................................................................. 27
SECTION 606. SECURITYHOLDER ACTION BY WRITTEN CONSENT..................................... 28
SECTION 607. RECORD DATE FOR VOTING AND OTHER PURPOSES.................................... 28
SECTION 608. ACTS OF SECURITYHOLDERS...................................................... 28
SECTION 609. INSPECTION OF RECORDS........................................................ 29
ARTICLE VII
REPRESENTATIONS AND WARRANTIES.......................................................................... 29
SECTION 701. REPRESENTATIONS AND WARRANTIES OF THE BANK AND
THE PROPERTY TRUSTEE......................................................... 29
SECTION 702. REPRESENTATIONS AND WARRANTIES OF THE DELAWARE
BANK AND THE DELAWARE TRUSTEE................................................ 31
SECTION 703. REPRESENTATIONS AND WARRANTIES OF DEPOSITOR.
............................................................................ 32
ARTICLE VIII
TRUSTEES................................................................................................ 32
SECTION 801. CERTAIN DUTIES AND RESPONSIBILITIES.......................................... 32
SECTION 802. CERTAIN NOTICES.............................................................. 34
SECTION 803. CERTAIN RIGHTS OF PROPERTY TRUSTEE........................................... 34
</TABLE>
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<TABLE>
<S> <C>
SECTION 804. NOT RESPONSIBLE FOR RECITALS OR USE OF PROCEEDS.
36
SECTION 805. MAY HOLD SECURITIES.......................................................... 36
SECTION 806. COMPENSATION; INDEMNITY; FEES................................................ 36
SECTION 807. CORPORATE PROPERTY TRUSTEE REQUIRED; ELIGIBILITY
OF TRUSTEES.................................................................. 37
SECTION 808. CONFLICTING INTERESTS........................................................ 38
SECTION 809. CO-TRUSTEES AND SEPARATE TRUSTEE............................................. 38
SECTION 810. RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR.................................................................... 39
SECTION 811. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR....................................... 41
SECTION 812. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION
TO BUSINESS.................................................................. 41
SECTION 813. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
DEPOSITOR OR TRUST........................................................... 42
SECTION 814. REPORTS BY PROPERTY TRUSTEE.................................................. 42
SECTION 815. REPORTS TO THE PROPERTY TRUSTEE.............................................. 42
SECTION 816. EVIDENCE OF COMPLIANCE WITH CONDITIONS
PRECEDENT.................................................................... 42
SECTION 817. NUMBER OF TRUSTEES........................................................... 42
SECTION 818. DELEGATION OF POWER.......................................................... 43
SECTION 819. VOTING....................................................................... 43
ARTICLE IX
DISSOLUTION, LIQUIDATION AND MERGER..................................................................... 43
SECTION 901. DISSOLUTION UPON EXPIRATION DATE............................................. 43
SECTION 902. EARLY TERMINATION............................................................ 43
SECTION 903. TERMINATION.................................................................. 44
SECTION 904. LIQUIDATION.................................................................. 44
SECTION 905. MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR
REPLACEMENTS OF THE TRUST.................................................... 46
ARTICLE X
MISCELLANEOUS PROVISIONS................................................................................ 47
SECTION 1001. LIMITATION OF RIGHTS OF SECURITYHOLDERS...................................... 47
SECTION 1002. AMENDMENT.................................................................... 47
SECTION 1003. SEPARABILITY................................................................. 49
SECTION 1004. GOVERNING LAW................................................................ 49
SECTION 1005. PAYMENTS DUE ON NON-BUSINESS DAY............................................. 49
SECTION 1006. SUCCESSORS................................................................... 50
SECTION 1007. HEADINGS..................................................................... 50
SECTION 1008. REPORTS, NOTICES AND DEMANDS................................................. 50
SECTION 1009. AGREEMENT NOT TO PETITION.................................................... 51
</TABLE>
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<TABLE>
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SECTION 1010. TRUST INDENTURE ACT; CONFLICT WITH TRUST
INDENTURE ACT................................................................ 51
SECTION 1011. ACCEPTANCE OF TERMS OF TRUST AGREEMENT,
GUARANTEE AND INDENTURE...................................................... 51
</TABLE>
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<PAGE> 6
CROSS-REFERENCE TABLE
Section of Section of Amended
Trust Indenture Act and Restated
of 1939, as amended Trust Agreement
- ------------------- ---------------
310(a)(1)....................................................................807
310(a)(2)....................................................................807
310(a)(3)....................................................................807
310(a)(4).............................................................207(a)(ii)
310(b).......................................................................808
311(a).......................................................................813
311(b).......................................................................813
312(a).......................................................................507
312(b).......................................................................507
312(c).......................................................................507
313(a)....................................................................814(a)
313(a)(4).................................................................814(b)
313(b)....................................................................814(b)
313(c)......................................................................1008
313(d)....................................................................814(b)
314(a).......................................................................815
314(b)............................................................Not Applicable
314(c)(1)....................................................................816
314(c)(2)....................................................................816
314(c)(3).........................................................Not Applicable
314(d)............................................................Not Applicable
314(e)..................................................................101, 816
315(a)............................................................801(a), 803(a)
315(b).................................................................802, 1008
315(c)....................................................................801(a)
315(d)..................................................................801, 803
316(a)(2).........................................................Not Applicable
316(b)............................................................Not Applicable
316(c).......................................................................607
317(a)(1).........................................................Not Applicable
317(a)(2).........................................................Not Applicable
317(b).......................................................................509
318(a)......................................................................1010
Note: This Cross-Reference Table does not constitute part of this Agreement
and shall not affect any interpretation of any of its terms or
provisions.
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<PAGE> 7
AMENDED AND RESTATED TRUST AGREEMENT
AMENDED AND RESTATED TRUST AGREEMENT, dated as of _________, 1998,
among (i) CENTURY BANCORP, INC., a Massachusetts corporation (including any
successors or assigns, the "Depositor"), (ii) STATE STREET BANK AND TRUST
COMPANY, a trust company duly organized and existing under the laws of the
Commonwealth of Massachusetts, as property trustee (the "Property Trustee" and,
in its separate corporate capacity and not in its capacity as Property Trustee,
the "Bank"), (iii) WILMINGTON TRUST COMPANY, a Delaware banking corporation duly
organized and existing under the laws of the State of Delaware, as Delaware
trustee (the "Delaware Trustee," and, in its separate corporate capacity and not
in its capacity as Delaware Trustee, the "Delaware Bank") (iv) Marshall M.
Sloane, an individual, Jonathan C. Sloane, an individual, and Paul V. Cusick,
Jr., an individual, each of whose address is c/o Century Bancorp, Inc., 400
Mystic Avenue, Medford, Massachusetts 02155 (each an "Administrative Trustee"
and collectively the "Administrative Trustees") (the Property Trustee, the
Delaware Trustee and the Administrative Trustees referred to collectively as the
"Trustees"), and (v) the several Holders (as hereinafter defined).
RECITALS
WHEREAS, the Depositor, the Delaware Trustee, and Marshall M. Sloane,
Jonathan A. Sloane and Paul V. Cusick, Jr., each as an Administrative Trustee,
have heretofore duly declared and established a business trust pursuant to the
Delaware Business Trust Act (as hereinafter defined) by the entering into of
that certain Trust Agreement, dated as of April __, 1998 (the "Original Trust
Agreement"), and by the execution and filing by the Delaware Trustee, the
Depositor and the Administrative Trustees with the Secretary of State of the
State of Delaware of the Certificate of Trust, filed on April __, 1998, the form
of which is attached as Exhibit A; and
WHEREAS, the Depositor, the Delaware Trustee, the Property Trustee and
the Administrative Trustees desire to amend and restate the Original Trust
Agreement in its entirety as set forth herein to provide for, among other
things, (i) the issuance of the Common Securities (as defined herein) by the
Trust (as defined herein) to the Depositor; (ii) the issuance and sale of the
Preferred Securities (as defined herein) by the Trust pursuant to the
Underwriting Agreement (as defined herein); (iii) the acquisition by the Trust
from the Depositor of all of the right, title and interest in the Debentures (as
defined herein); and (iv) the appointment of the Trustees;
NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each party, for the benefit of the
other parties and for the benefit of the Securityholders (as defined herein),
hereby amends and restates the Original Trust Agreement in its entirety and
agrees as follows:
<PAGE> 8
ARTICLE I
DEFINED TERMS
SECTION 101. DEFINITIONS. For all purposes of this Trust Agreement,
except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article I have the meanings assigned to
them in this Article I and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may be,
of this Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 608.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, the amount of additional interest
accrued on interest in arrears and paid by the Depositor on a Like Amount of
Debentures for such period.
"Additional Interest" has the meaning specified in Section 1.1 of the
Indenture.
"Administrative Trustee" means each of Marshall M. Sloane, Jonathan A.
Sloane and Paul V. Cusick, Jr., solely in his capacity as Administrative Trustee
of the Trust formed and continued hereunder and not in his individual capacity,
or such Administrative Trustee's successor in interest in such capacity, or any
successor trustee appointed as herein provided.
"Affiliate" means, with respect to a specified Person, (a) any Person
directly or indirectly owning, controlling or holding with power to vote 10% or
more of the outstanding voting securities or other ownership interests of the
specified Person, any Person 10% or more of whose outstanding voting securities
or other ownership interests are directly or indirectly owned, controlled or
held with power to vote by the specified Person; (c) any Person directly or
indirectly controlling, controlled by, or under common control with the
specified Person; (d) a partnership in which the specified Person is a general
partner; (e) any officer or director of the specified Person; and (f) if the
specified Person is an individual, any entity of which the specified Person is
an officer, director or general partner.
"Authenticating Agent" means an authenticating agent with respect to
the Preferred Securities appointed by the Property Trustee pursuant to Section
503.
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<PAGE> 9
"Bank" has the meaning specified in the Preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in
the premises adjudging such Person a bankrupt or insolvent, or approving as
properly filed a petition seeking liquidation or reorganization of or in respect
of such Person under the United States Bankruptcy Code of 1978, as amended, or
any other similar applicable federal or state law, and the continuance of any
such decree or order unvacated and unstayed for a period of 90 days; or the
commencement of an involuntary case under the United States Bankruptcy Code of
1978, as amended, in respect of such Person, which shall continue undismissed
for a period of 90 days or entry of an order for relief in such case; or the
entry of a decree or order of a court having jurisdiction in the premises for
the appointment on the ground of insolvency or bankruptcy of a receiver,
custodian, liquidator, trustee or assignee in bankruptcy or insolvency of such
Person or of its property, or for the winding up or liquidation of its affairs,
and such decree or order shall have remained in force unvacated and unstayed for
a period of 90 days; or
(b) the institution by such Person of proceedings to be adjudicated a
voluntary bankrupt, or the consent by such Person to the filing of a bankruptcy
proceeding against it, or the filing by such Person of a petition or answer or
consent seeking liquidation or reorganization under the United States Bankruptcy
Code of 1978, as amended, or other similar applicable Federal or State law, or
the consent by such Person to the filing of any such petition or to the
appointment on the ground of insolvency or bankruptcy of a receiver or custodian
or liquidator or trustee or assignee in bankruptcy or insolvency of such Person
or of its property, or shall make a general assignment for the benefit of
creditors.
"Bankruptcy Laws" has the meaning specified in Section 1009.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly adopted
by the Depositor's Board of Directors, or such committee of the Board of
Directors or officers of the Depositor to which authority to act on behalf of
the Board of Directors has been delegated, and to be in full force and effect on
the date of such certification, and delivered to the appropriate Trustee.
"Business Day" means a day other than a Saturday or Sunday, a day on
which banking institutions in the City of Boston are authorized or required by
law, executive order or regulation to remain closed, or a day on which the
Property Trustee's Corporate Trust Office or the Corporate Trust Office of the
Debenture Trustee is closed for business.
"Certificate of Trust" means the certificate of trust filed with the
Secretary of State of the State of Delaware with respect to the Trust, as
amended or restated from time to time.
"Closing Date" means the date of execution and delivery of this Trust
Agreement.
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<PAGE> 10
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Security" means an undivided beneficial interest in the assets
of the Trust, having a Liquidation Amount of $10 and having the rights provided
therefor in this Trust Agreement, including the right to receive Distributions
and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as Exhibit B.
"Corporate Trust Office" means the office at which, at any particular
time, the corporate trust business of the Property Trustee or the Debenture
Trustee, as the case may be, shall be principally administered, which office at
the date hereof, in each such case, is located at Two International Place, 4th
Floor, Boston, Massachusetts 02110, Attention: Corporate Trust Department.
"Debenture Event of Default" means an "Event of Default" as defined in
Section 7.1 of the Indenture.
"Debenture Redemption Date" means, with respect to any Debentures to be
redeemed under the Indenture, the date fixed for redemption under the Indenture.
"Debenture Trustee" means State Street Bank and Trust Company, a trust
company organized under the laws of The Commonwealth of Massachusetts and any
successor thereto, as trustee under the Indenture.
"Debentures" means the $25,773,200 aggregate principal amount (or up to
$29,639,180 aggregate principal amount if the Underwriter exercises its Option
and there is an Option Closing Date) of the Depositor's ____% Junior
Subordinated Debentures due 2029, issued pursuant to the Indenture.
"Delaware Bank" has the meaning specified in the Preamble to this Trust
Agreement.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Delaware Code Sections 3801 et seq. as it may be amended from
time to time.
"Delaware Trustee" means the commercial bank or trust company
identified as the "Delaware Trustee" in the Preamble to this Trust Agreement
solely in its capacity as Delaware
-4-
<PAGE> 11
Trustee of the Trust formed and continued hereunder and not in its individual
capacity, or its successor in interest in such capacity, or any successor
trustee appointed as herein provided.
"Depositor" has the meaning specified in the Preamble to this Trust
Agreement.
"Distribution Date" has the meaning specified in Section 401(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 401.
"Early Termination Event" has the meaning specified in Section 902.
"Event of Default" means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Trust or the Property Trustee in the payment of any
Distribution when it becomes due and payable, and continuation of such default
for a period of 30 days; or
(c) default by the Trust or the Property Trustee in the payment of any
Redemption Price of any Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect, of
any covenant or warranty of the Trustees in this Trust Agreement (other than a
covenant or warranty a default in the performance of which or the breach of
which is dealt with in clause (b) or (c), above) and continuation of such
default or breach for a period of 60 days after there has been given, by
registered or certified mail, to the defaulting Trustee or Trustees by the
Holders of at least 25% in aggregate Liquidation Amount of the Outstanding
Preferred Securities a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the Property
Trustee and the failure by the Depositor to appoint a successor Property Trustee
within 60 days thereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Expense Agreement" means the Agreement as to Expenses and Liabilities
between the Depositor and the Trust, substantially in the form attached as
Exhibit C, as amended from time to time.
"Expiration Date" has the meaning specified in Section 901.
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<PAGE> 12
"Extension Period" has the meaning specified in Section 4.1 of the
Indenture.
"Guarantee" means the Preferred Securities Guarantee Agreement executed
and delivered by the Depositor and State Street Bank and Trust Company, as
trustee, contemporaneously with the execution and delivery of this Trust
Agreement, for the benefit of the Holders of the Preferred Securities, as
amended from time to time.
"Indenture" means the Indenture, dated as of April __, 1998, between
the Depositor and the Debenture Trustee, as trustee, as amended or supplemented
from time to time pertaining to the Debentures of the Depositor.
"Investment Company Act," means the Investment Company Act of 1940, as
amended, as in effect at the date of execution of this instrument.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust
Securities, Trust Securities having a Liquidation Amount equal to the principal
amount of Debentures to be contemporaneously redeemed in accordance with the
Indenture and the proceeds of which shall be used to pay the Redemption Price of
such Trust Securities; and (b) with respect to a distribution of Debentures to
Holders of Trust Securities in connection with a dissolution or liquidation of
the Trust, Debentures having a principal amount equal to the Liquidation Amount
of the Trust Securities of the Holder to whom such Debentures are distributed.
Each Debenture distributed pursuant to clause (b) above shall carry with it
accumulated interest in an amount equal to the accumulated and unpaid interest
then due on such Debenture.
"Liquidation Amount" means the stated amount of $10 per Trust Security.
"Liquidation Date" means the date on which Debentures are to be
distributed to Holders of Trust Securities in connection with a dissolution and
liquidation of the Trust pursuant to Section 904(a).
"Liquidation Distribution" has the meaning specified in Section 904(d).
"Officers' Certificate" means a certificate signed by the President or
a Vice President and by the Treasurer or an Assistant Treasurer or the
Controller or an Assistant Controller or the Secretary or an Assistant
Secretary, of the Depositor, and delivered to the appropriate Trustee. One of
the officers signing an Officers' Certificate given pursuant to Section 816
shall be the principal executive, financial or accounting officer of the
Depositor. Any Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Trust Agreement shall include:
-6-
<PAGE> 13
(a) a statement that each officer signing the Officers' 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 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.
"Opinion of Counsel" means an opinion in writing of legal counsel, who
may be counsel for the Trust, the Property Trustee, the Delaware Trustee or the
Depositor, but not an employee of any thereof, and who shall be reasonably
acceptable to the Property Trustee.
"Option" means the grant by the Trust to the Underwriters of an option
to purchase all or any portion of an additional 375,000 Preferred Securities,
pursuant to the terms of the Underwriting Agreement.
"Option Closing Date" means the time, date of payment and delivery of
the Preferred Securities Certificates purchased pursuant to the Underwriters'
exercise of the Option, as more particularly described in the Underwriting
Agreement.
"Original Trust Agreement" has the meaning specified in the Recitals to
this Trust Agreement.
"Outstanding", when used with respect to Preferred Securities, means,
as of the date of determination, all Preferred Securities theretofore executed
and delivered under this Trust Agreement, except:
(a) Preferred Securities theretofore canceled by the Property Trustee
or delivered to the Property Trustee for cancellation;
(b) Preferred Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property Trustee or any
Paying Agent for the Holders of such Preferred Securities; provided that, if
such Preferred Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Trust Agreement; and
(c) Preferred Securities which have been paid or in exchange for or in
lieu of which other Preferred Securities have been executed and delivered
pursuant to Sections 504, 505 and 511; provided, however, that in determining
whether the Holders of the requisite Liquidation Amount of the Outstanding
Preferred Securities have given any request, demand, authorization, direction,
-7-
<PAGE> 14
notice, consent or waiver hereunder, Preferred Securities owned by the
Depositor, any Trustee or any Affiliate of the Depositor or any Trustee shall be
disregarded and deemed not to be Outstanding, except that (a) in determining
whether any Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Preferred Securities
that such Trustee knows to be so owned shall be so disregarded; and (b) the
foregoing shall not apply at any time when all of the Outstanding Preferred
Securities are owned by the Depositor, one or more of the Trustees and/or any
such Affiliate. Preferred Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Administrative Trustees the pledgee's right so to act with
respect to such Preferred Securities and the pledgee is not the Depositor or any
other Obligor upon the Preferred Securities or a Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Depositor or any Affiliate of the Depositor.
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 509 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing corporate
trust account maintained by the Property Trustee with the Bank in its trust
department for the benefit of the Securityholders in which all amounts paid in
respect of the Debentures shall be held and from which the Property Trustee
shall make payments to the Securityholders in accordance with Sections 401 and
402.
"Person" means any individual, corporation, partnership, joint venture,
trust, limited liability company or corporation, unincorporated organization or
government or any agency or political subdivision thereof.
"Preferred Security" means an undivided beneficial interest in the
assets of the Trust, having a Liquidation Amount of $10 and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Preferred Securities Certificate", means a certificate evidencing
ownership of Preferred Securities, substantially in the form attached as Exhibit
D.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee," in the Preamble to this Trust Agreement
solely in its capacity as Property Trustee of the Trust heretofore formed and
continued hereunder and not in its individual capacity, or its successor in
interest in such capacity, or any successor property trustee appointed as herein
provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Debenture Redemption Date and the stated maturity
of the Debentures shall be a Redemption Date for a Like Amount of Trust
Securities.
-8-
<PAGE> 15
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date, paid by the Depositor upon the concurrent
redemption of a Like Amount of Debentures, allocated on a pro rata basis (based
on Liquidation Amounts) among the Trust Securities.
"Relevant Trustee" shall have the meaning specified in Section 810.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 504.
"Securityholder" or "Holder" means a Person in whose name a Trust
Security or Securities are registered in the Securities Register; any such
Person is a beneficial owner within the meaning of the Delaware Business Trust
Act.
"Trust" means Century Bancorp Capital Trust, the Delaware business
trust created and continued hereby.
"Trust Agreement" means this Amended and Restated Trust Agreement, as
the same may be modified, amended or supplemented in accordance with the
applicable provisions hereof, including all exhibits hereto, including, for all
purposes of this Trust Agreement and any such modification, amendment or
supplement, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this Trust Agreement and any such modification, amendment or
supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this instrument was executed;
provided, however, that in the event the Trust Indenture Act of 1939, as
amended, is amended after such date, "Trust Indenture Act" means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Debentures; (b) the rights of the
Property Trustee under the Guarantee; (c) any cash on deposit in, or owing to,
the Payment Account; and (d) all proceeds and rights in respect of the foregoing
and any other property and assets for the time being held or deemed to be held
by the Property Trustee pursuant to the provisions of this Trust Agreement.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Preferred Securities Certificates.
"Trustees" means, collectively, the Property Trustee, the Delaware
Trustee and the Administrative Trustees.
"Underwriters" means Tucker Anthony Incorporated and the other
underwriters named in the Underwriting Agreement.
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"Underwriting Agreement" means the Underwriting Agreement, dated as of
__________, 1998, among the Trust, the Depositor and the Underwriters named
therein.
ARTICLE II
ESTABLISHMENT OF THE TRUST
SECTION 201. NAME.
The Trust created and continued hereby shall be known as "Century
Bancorp Capital Trust", as such name may be modified from time to time by the
Administrative Trustees following written notice to the Holders of Trust
Securities and the other Trustees, in which name the Trustees may engage in the
transactions contemplated hereby, make and execute contracts and other
instruments on behalf of the Trust and sue and be sued.
SECTION 202. OFFICE OF THE DELAWARE TRUSTEE; PRINCIPAL PLACE
OF BUSINESS.
The address of the Delaware Trustee in the State of Delaware is c/o
Wilmington Trust Company, Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890-0001, Attention: Corporate Trust Administration, or
such other address in the State of Delaware as the Delaware Trustee may
designate by written notice to the Securityholders and the Depositor. The
principal executive office of the Trust is c/o Century Bancorp, Inc., 400 Mystic
Avenue, Medford, Massachusetts 02155.
SECTION 203. INITIAL CONTRIBUTION OF TRUST PROPERTY;
ORGANIZATIONAL EXPENSES.
The Trustees acknowledge receipt in trust from the Depositor in
connection with the Original Trust Agreement of the sum of $10, which
constituted the initial Trust Property. The Depositor shall pay organizational
expenses of the Trust as they arise or shall, upon request of any Trustee,
promptly reimburse such Trustee for any such expenses paid by such Trustee. The
Depositor shall make no claim upon the Trust Property for the payment of such
expenses.
SECTION 204. ISSUANCE OF THE PREFERRED SECURITIES.
On __________, 1998, the Depositor and an Administrative Trustee, on
behalf of the Trust and pursuant to the Original Trust Agreement, executed and
delivered the Underwriting Agreement. Contemporaneously with the execution and
delivery of this Trust Agreement, an Administrative Trustee, on behalf of the
Trust, shall execute in accordance with Section 502 and deliver in accordance
with the Underwriting Agreement, Preferred Securities Certificates, registered
in the name of the Persons entitled thereto, in an aggregate amount of 2,500,000
Preferred Securities having an aggregate Liquidation Amount of $25,000,000
against receipt of the aggregate purchase price of such Preferred Securities of
$25,000,000, which amount such Administrative Trustee shall promptly deliver to
the Property Trustee. If the Underwriters
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exercise their Option and there is an Option Closing Date, then an
Administrative Trustee, on behalf of the Trust, shall execute in accordance with
Section 502 and deliver in accordance with the Underwriting Agreement, Preferred
Securities Certificates, registered in the name of the Persons entitled thereto,
in an aggregate amount of up to 375,000 Preferred Securities having an aggregate
Liquidation Amount of up to $3,750,000 against receipt of the aggregate purchase
price of such Preferred Securities equal to the product of $10 multiplied by the
number of Preferred Securities purchased pursuant to the Option, which amount
such Administrative Trustee shall promptly deliver to the Property Trustee.
SECTION 205. ISSUANCE OF THE COMMON SECURITIES; SUBSCRIPTION
AND PURCHASE OF DEBENTURES.
(a) Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrative Trustee, on behalf of the Trust, shall execute in
accordance with Section 502 and deliver to the Depositor, Common Securities
Certificates, registered in the name of the Depositor, in an aggregate amount of
77,320 Common Securities having an aggregate Liquidation Amount of $773,200
against payment by the Depositor of such amount. Contemporaneously therewith, an
Administrative Trustee, on behalf of the Trust, shall subscribe to and purchase
from the Depositor Debentures, registered in the name of the Property Trustee on
behalf of the Trust and having an aggregate principal amount equal to
$25,773,200, and, in satisfaction of the purchase price for such Debentures, the
Property Trustee, on behalf of the Trust, shall deliver to the Depositor the sum
of $25,773,200.
(b) If the Underwriters exercise the Option and there is an Option
Closing Date, then an Administrative Trustee, on behalf of the Trust, shall
execute in accordance with Section 502 and deliver to the Depositor, Common
Securities Certificates, registered in the name of the Depositor, in an
aggregate amount of up to 11,598 Common Securities having an aggregate
Liquidation Amount of up to $115,980 against payment by the Depositor of such
amount. Contemporaneously therewith, an Administrative Trustee, on behalf of the
Trust, shall subscribe to and purchase from the Depositor, Debentures,
registered in the name of the Trust and having an aggregate principal amount of
up to $3,865,980, and, in satisfaction of the purchase price of such Debentures,
the Property Trustee, on behalf of the Trust, shall deliver to the Depositor the
amount received from one of the Administrative Trustees pursuant to the last
sentence of Section 204.
SECTION 206. DECLARATION OF TRUST.
The exclusive purposes and functions of the Trust are (a) to issue and
sell Trust Securities and use the proceeds from such sale to acquire the
Debentures; and (b) to engage in those activities necessary, convenient or
incidental thereto. The Depositor hereby appoints the Trustees as trustees of
the Trust, to have all the rights, powers and duties to the extent set forth
herein, and the Trustees hereby accept such appointment. The Property Trustee
hereby declares that it shall hold the Trust Property in trust upon and subject
to the conditions set forth herein for the benefit of the Securityholders. The
Administrative Trustees shall have all rights, powers and duties set
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forth herein and in accordance with applicable law with respect to accomplishing
the purposes of the Trust. 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 Property Trustee or the Administrative Trustees set
forth herein. The Delaware Trustee shall be one of the Trustees of the Trust for
the sole and limited purpose of fulfilling the requirements of Section 3807 of
the Delaware Business Trust Act.
SECTION 207. AUTHORIZATION TO ENTER INTO CERTAIN TRANSACTIONS.
(a) The Trustees shall conduct the affairs of the Trust in accordance
with the terms of this Trust Agreement. Subject to the limitations set forth in
paragraph (b) of this Section 207 and Article VIII, and in accordance with the
following provisions (i) and (ii), the Administrative Trustees shall have the
authority to enter into all transactions and agreements determined by the
Administrative Trustees to be appropriate in exercising the authority, express
or implied, otherwise granted to the Administrative Trustees under this Trust
Agreement, and to perform all acts in furtherance thereof, including without
limitation, the following:
(i) As among the Trustees, each Administrative Trustee, acting
singly or jointly, shall have the power and authority to act on behalf
of the Trust with respect to the following matters:
(A) the issuance and sale of the Trust Securities;
(B) to cause the Trust to enter into, and to execute,
deliver and perform on behalf of the Trust, the Expense
Agreement and such other agreements or documents as may be
necessary or desirable in connection with the purposes and
function of the Trust;
(C) assisting in the registration of the Preferred
Securities under the Securities Act of 1933, as amended, and
under state securities or blue sky laws, and the qualification
of this Trust Agreement as a trust indenture under the Trust
Indenture Act;
(D) assisting in the listing of the Preferred
Securities upon The Nasdaq Stock Market's National Market or
such securities exchange or exchanges as shall be determined
by the Depositor and the registration of the Preferred
Securities under the Exchange Act, and the preparation and
filing of all periodic and other reports and other documents
pursuant to the foregoing;
(E) the sending of notices (other than notices of
default) and other information regarding the Trust Securities
and the Debentures to the Securityholders in accordance with
this Trust Agreement;
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(F) the appointment of a Paying Agent, Authenticating
Agent and Securities Registrar in accordance with this Trust
Agreement;
(G) to the extent provided in this Trust Agreement,
the winding up of the affairs of and liquidation of the Trust
and the preparation, execution and filing of the certificate
of cancellation with the Secretary of State of the State of
Delaware;
(H) to take all action that may be necessary or
appropriate for the preservation and the continuation of the
Trust's valid existence, rights, franchises and privileges as
a statutory business trust under the laws of the State of
Delaware and of each other jurisdiction in which such
existence is necessary to protect the limited liability of the
Holders of the Preferred Securities or to enable the Trust to
effect the purposes for which the Trust was created; and
(I) the taking of any action incidental to the
foregoing as the Administrative Trustees may from time to time
determine is necessary or advisable to give effect to the
terms of this Trust Agreement for the benefit of the
Securityholders (without consideration of the effect of any
such action on any particular Securityholder).
(ii) As among the Trustees, the Property Trustee shall have
the power, duty and authority to act on behalf of the Trust with
respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
(C) the collection of interest, principal and any
other payments made in respect of the Debentures in the
Payment Account;
(D) the distribution of amounts owed to the
Securityholders in respect of the Trust Securities in
accordance with the terms of this Trust Agreement;
(E) the exercise of all of the rights, powers and
privileges of a holder of the Debentures;
(F) the sending of notices of default and other
information regarding the Trust Securities and the Debentures
to the Securityholders in accordance with this Trust
Agreement;
(G) the distribution of the Trust Property in
accordance with the terms of this Trust Agreement;
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(H) to the extent provided in this Trust Agreement,
the winding up of the affairs of and liquidation of the Trust;
(I) after an Event of Default, the taking of any
action incidental to the foregoing as the Property Trustee may
from time to time determine is necessary or advisable to give
effect to the terms of this Trust Agreement and protect and
conserve the Trust Property for the benefit of the
Securityholders (without consideration of the effect of any
such action on any particular Securityholder);
(J) registering transfers of the Trust Securities in
accordance with this Trust Agreement; and
(K) except as otherwise provided in this Section
207(a)(ii), the Property Trustee shall have none of the
duties, liabilities, powers or the authority of the
Administrative Trustees set forth in Section 207(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or
the Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trustees shall not (i) acquire any investments or
engage in any activities not authorized by this Trust Agreement; (ii) sell,
assign, transfer, exchange, mortgage, pledge, set-off or otherwise dispose of
any of the Trust Property or interests therein, including to Securityholders,
except as expressly provided herein; (iii) take any action that would cause the
Trust to fail or cease to qualify as a "grantor trust" for United States federal
income tax purposes; (iv) incur any indebtedness for borrowed money or issue any
other debt; or (v) take or consent to any action that would result in the
placement of a Lien on any of the Trust Property. The Administrative Trustees
shall defend all claims and demands of all Persons at any time claiming any Lien
on any of the Trust Property adverse to the interest of the Trust or the
Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities,
the Depositor shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the Trust, the following (and any actions
taken by the Depositor in furtherance of the following prior to the date of this
Trust Agreement are hereby ratified and confirmed in all respects):
(i) the preparation and filing by the Trust with the
Commission and the execution on behalf of the Trust of a registration
statement on the appropriate form in relation to the Preferred
Securities and the Debentures, including any amendments thereto;
(ii) the determination of 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 or on behalf of the Trust, and advise
the Trustees of actions they must take on behalf of the Trust, and
prepare for execution and filing any documents to be executed and filed
by the Trust or on behalf of the Trust, as the
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Depositor deems necessary or advisable in order to comply with the
applicable laws of any such States;
(iii) the preparation for filing by the Trust and execution on
behalf of the Trust of an application to The Nasdaq Stock Market's
National Market or a national stock exchange or other organizations for
listing upon notice of issuance of any Preferred Securities and to file
or cause an Administrative Trustee to file thereafter with such
exchange or organization such notifications and documents as may be
necessary from time to time;
(iv) the preparation for filing by the Trust with the
Commission and the execution on behalf of the Trust of a registration
statement on Form 8-A relating to the registration of the Preferred
Securities under Section 12(b) or 12(g) of the Exchange Act, including
any amendments thereto;
(v) the negotiation of the terms of, and the execution and
delivery of, the Underwriting Agreement providing for the sale of the
Preferred Securities; and
(vi) the taking of any other actions necessary or desirable to
carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative
Trustees are authorized and directed to conduct the affairs of the Trust and to
operate the Trust so that the Trust shall not be deemed to be an "investment
company" required to be registered under the Investment Company Act, shall be
classified as a "grantor trust" and not as an association taxable as a
corporation for United States federal income tax purposes and so that the
Debentures shall be treated as indebtedness of the Depositor for United States
federal income tax purposes. In this connection, subject to Section 1002, the
Depositor and the Administrative Trustees are authorized to take any action, not
inconsistent with applicable law or this Trust Agreement, that each of the
Depositor and the Administrative Trustees determines in their discretion to be
necessary or desirable for such purposes.
SECTION 208. ASSETS OF TRUST.
The assets of the Trust shall consist of the Trust Property.
SECTION 209. TITLE TO TRUST PROPERTY.
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered by
the Property Trustee for the benefit of the Securityholders in accordance with
this Trust Agreement.
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ARTICLE III
PAYMENT ACCOUNT
SECTION 301. PAYMENT ACCOUNT.
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and any agent of the
Property Trustee shall have exclusive control and sole right of withdrawal with
respect to the Payment Account for the purpose of making deposits and
withdrawals from the Payment Account in accordance with this Trust Agreement.
All monies and other property deposited or held from time to time in the Payment
Account shall be held by the Property Trustee in the Payment Account for the
exclusive benefit of the Securityholders and for distribution as herein
provided, including (and subject to) any priority of payments provided for
herein.
(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal of or interest on, and any other
payments or proceeds with respect to, the Debentures. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
SECTION 401. DISTRIBUTIONS.
(a) Distributions on the Trust Securities shall be cumulative, and
shall accumulate whether or not there are funds of the Trust available for the
payment of Distributions. Distributions shall accumulate from May __, 1998, and,
except during any Extension Period with respect to the Debentures, shall be
payable quarterly in arrears on March 31, June 30, September 30 and December 31
of each year, commencing on September 30, 1998. If any date on which a
Distribution is otherwise payable on the Trust Securities is not a Business Day,
then the payment of such Distribution shall 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) with the same force and effect as if made on such date (each
date on which distributions are payable in accordance with this Section 401(a),
a "Distribution Date").
(b) The Trust Securities represent undivided beneficial interests in
the Trust Property. Distributions on the Trust Securities shall be payable at a
rate of ___% per annum of the Liquidation Amount of the Trust Securities. The
amount of Distributions payable for any full period shall be computed on the
basis of a 360-day year of twelve 30-day months. The amount of Distributions for
any partial period shall be computed on the basis of the number of days elapsed
in a 360-day year of twelve 30 day months. During any Extension Period with
respect to the Debentures, Distributions on the Preferred Securities shall be
deferred for a period equal to the Extension Period. The amount of Distributions
payable for any period shall include the Additional Amounts, if any.
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(c) Distributions on the Trust Securities shall be made by the Property
Trustee solely from the Payment Account and shall be payable on each
Distribution Date only to the extent that the Trust has funds then on hand and
immediately available by 12:30 p.m., Boston time, on each Distribution Date in
the Payment Account for the payment of such Distributions.
(d) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on the
Securities Register for the Trust Securities on the relevant record date, which
shall be 15th day of the month in which the Distribution is payable.
SECTION 402. REDEMPTION.
(a) On each Debenture Redemption Date at maturity of the Debentures,
the Trust shall be required to redeem a Like Amount of Trust Securities at the
Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date to each Holder of Trust Securities to be redeemed,
at such Holder's address appearing in the Securities Register. The Property
Trustee shall have no responsibility for the accuracy of any CUSIP number
contained in such notice. All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the outstanding Trust Securities are to
be redeemed, the identification and the aggregate Liquidation Amount of
the particular Trust Securities to be redeemed; and
(v) that, on the Redemption Date, the Redemption Price shall
become due and payable upon each such Trust Security to be redeemed and
that Distributions thereon shall cease to accumulate on and after said
date.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption of Debentures. Redemptions of the Trust Securities shall be made and
the Redemption Price shall be payable on each Redemption Date only to the extent
that the Trust has immediately available funds then on hand and available in the
Payment Account for the payment of such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in respect of
any Preferred Securities, then, by 12:00 noon, Boston time, on the Redemption
Date, subject to Section 402(c), the Property Trustee shall deposit with the
Paying Agent funds sufficient to pay the applicable
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Redemption Price and shall give the Paying Agent irrevocable instructions and
authority to pay the Redemption Price to the Holders thereof upon surrender of
their Preferred Securities Certificates. Notwithstanding the foregoing,
Distributions payable on or prior to the Redemption Date for any Trust
Securities called for redemption shall be payable to the Holders of such Trust
Securities as they appear on the Securities Register for the Trust Securities on
the relevant record dates for the related Distribution Dates. If notice of
redemption shall have been given and funds deposited as required, then upon the
date of such deposit, all rights of Securityholders holding Trust Securities so
called for redemption shall cease, except the right of such Securityholders to
receive the Redemption Price and any Distribution payable on or prior to the
Redemption Date, but without interest, and such Trust Securities shall cease to
be Outstanding. In the event that any date on which any Redemption Price is
payable is not a Business Day, then payment of the Redemption Price payable on
such date shall 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) with the
same force and effect as if made on such date. In the event that payment of the
Redemption Price in respect of any Trust Securities called for redemption is
improperly withheld or refused and not paid either by the Trust or by the
Depositor pursuant to the Guarantee, Distributions on such Trust Securities
shall continue to accumulate, at the then applicable rate, from the Redemption
Date originally established by the Trust for such Trust Securities to the date
such Redemption Price is actually paid, in which case the actual payment date
shall be the date fixed for redemption for purposes of calculating the
Redemption Price.
(e) Payment of the Redemption Price on the Trust Securities shall be
made to the record holders thereof as they appear on the Securities Register for
the Trust Securities on the relevant record date, which shall be the date 15
days prior to the relevant Redemption Date.
(f) Subject to Section 403(a), if less than all the Outstanding Trust
Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be allocated on a
pro rata basis (based on Liquidation Amounts) among the Common Securities and
the Preferred Securities. The particular Preferred Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the
Property Trustee from the Outstanding Preferred Securities not previously called
for redemption, by such method (including, without limitation, by lot) as the
Property Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the Liquidation Amount or an
integral multiple of the Liquidation Amount in excess thereof) of the
Liquidation Amount of Preferred Securities of a denomination larger than the
Liquidation Amount. The Property Trustee shall promptly notify the Securities
Registrar in writing of the Preferred Securities selected for redemption and, in
the case of any Preferred Securities selected for partial redemption, the
Liquidation Amount thereof to be redeemed. For all purposes of this Trust
Agreement, unless the context otherwise requires, all provisions relating to the
redemption of Preferred Securities shall relate, in the case of any Preferred
Securities redeemed or to be redeemed only in part, to the portion of the
Liquidation Amount of Preferred Securities which has been or is to be redeemed.
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SECTION 403. SUBORDINATION OF COMMON SECURITIES.
(a) Payment of Distributions (including Additional Amounts, if
applicable) on, and the Redemption Price of, the Trust Securities, as
applicable, shall be made, subject to Section 402(f), pro rata among the Common
Securities and the Preferred Securities based on the Liquidation Amount of the
Trust Securities; provided, however, that if on any Distribution Date or
Redemption Date any Event of Default resulting from a Debenture Event of Default
shall have occurred and be continuing, no payment of any Distribution (including
Additional Amounts, if applicable) on, or Redemption Price of, any Common
Security, and no other payment on account of the redemption, liquidation or
other acquisition of Common Securities, shall be made unless payment in full in
cash of all accumulated and unpaid Distributions (including Additional Amounts,
if applicable) on all Outstanding Preferred Securities for all Distribution
periods terminating on or prior thereto, or in the case of payment of the
Redemption Price the full amount of such Redemption Price on all Outstanding
Preferred Securities then called for redemption, shall have been made or
provided for, and all funds immediately available to the Property Trustee shall
first be applied to the payment in full in cash of all Distributions (including
Additional Amounts, if applicable) on, or the Redemption Price of, Preferred
Securities then due and payable.
(b) In the case of the occurrence of any Event of Default resulting
from a Debenture Event of Default, the Holder of Common Securities shall be
deemed to have waived any right to act with respect to any such Event of Default
under this Trust Agreement until the effect of all such Events of Default with
respect to the Preferred Securities shall have been cured, waived or otherwise
eliminated. Until any such Event of Default under this Trust Agreement with
respect to the Preferred Securities shall have been so cured, waived or
otherwise eliminated, the Property Trustee shall act solely on behalf of the
Holders of the Preferred Securities and not the Holder of the Common Securities,
and only the Holders of the Preferred Securities shall have the right to direct
the Property Trustee to act on their behalf.
SECTION 404. PAYMENT PROCEDURES.
Payments of Distributions (including Additional Amounts, if applicable)
in respect of the Preferred Securities shall be made by check mailed to the
address of the Person entitled thereto as such address shall appear on the
Securities Register. Payments in respect of the Common Securities shall be made
in such manner as shall be mutually agreed between the Property Trustee and the
Common Securityholder.
SECTION 405. TAX RETURNS AND REPORTS.
The Administrative Trustees shall prepare (or cause to be prepared), at
the Depositor's expense, and file all United States federal, state and local tax
and information returns and reports required to be filed by or in respect of the
Trust. In this regard, the Administrative Trustees shall (a) prepare and file
(or cause to be prepared and filed) the appropriate Internal Revenue Service
form required to be filed in respect of the Trust in each taxable year of the
Trust; and (b) prepare and furnish (or cause to be prepared and furnished) to
each Securityholder the appropriate
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Internal Revenue Service form required to be furnished to such Securityholder or
the information required to be provided on such form. The Administrative
Trustees shall provide the Depositor with a copy of all such returns and reports
promptly after such filing or furnishing. The Property Trustee shall comply with
United States federal withholding and backup withholding tax laws and
information reporting requirements with respect to any payments to
Securityholders under the Trust Securities.
SECTION 406. PAYMENT OF TAXES, DUTIES, ETC. OF THE TRUST.
Upon receipt under the Debentures of Additional Interest, the Property
Trustee, at the direction of an Administrative Trustee or the Depositor, shall
promptly pay any taxes, duties or governmental charges of whatsoever nature
(other than withholding taxes) imposed on the Trust by the United States or any
other taxing authority.
SECTION 407. PAYMENTS UNDER INDENTURE.
Any amount payable hereunder to any Holder of Preferred Securities
shall be reduced by the amount of any corresponding payment such Holder has
directly received under the Indenture pursuant to Section 514(b) or (c) hereof.
ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION 501. INITIAL OWNERSHIP.
Upon the creation of the Trust and the contribution by the Depositor
pursuant to Section 203 and until the issuance of the Trust Securities, and at
any time during which no Trust Securities are outstanding, the Depositor shall
be the sole beneficial owner of the Trust.
SECTION 502. THE TRUST SECURITIES CERTIFICATES.
The Preferred Securities Certificates shall be issued in minimum
denominations of the Liquidation Amount and integral multiples of the
Liquidation Amount in excess thereof, and the Common Securities Certificates
shall be issued in denominations of the Liquidation Amount and integral
multiples thereof. The Trust Securities Certificates shall be executed on behalf
of the Trust by manual or facsimile signature of at least one Administrative
Trustee. Trust Securities Certificates bearing the manual or facsimile
signatures of individuals who were, at the time when such signatures shall have
been affixed, authorized to sign on behalf of the Trust, shall be validly issued
and entitled to the benefits of this Trust Agreement, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the
delivery of such Trust Securities Certificates or did not hold such offices at
the date of delivery of such Trust Securities Certificates. A transferee of a
Trust Securities Certificate shall become a Securityholder, and shall be
entitled to the rights and subject to the obligations of a Securityholder
hereunder, upon due
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registration of such Trust Securities Certificate in such transferee's name
pursuant to Sections 504 and 511.
SECTION 503. EXECUTION, AUTHENTICATION AND DELIVERY OF TRUST
SECURITIES CERTIFICATES.
(a) On the Closing Date and on the Option Closing Date, the
Administrative Trustees shall cause Trust Securities Certificates, in an
aggregate Liquidation Amount as provided in Sections 204 and 205, to be executed
on behalf of the Trust by at least one of the Administrative Trustees and
delivered to or upon the written order of the Depositor, signed by its Chief
Executive Officer, President, any Vice President, the Treasurer or any Assistant
Treasurer without further corporate action by the Depositor, in authorized
denominations.
(b) A Preferred Securities Certificate shall not be valid until
authenticated by the manual signature of an authorized signatory of the Property
Trustee. The signature shall be conclusive evidence that the Preferred
Securities Certificate has been authenticated under this Trust Agreement. Each
Preferred Securities Certificate shall be dated the date of its authentication.
(c) Upon the written order of the Trust signed by the Administrative
Trustee, the Property Trustee shall authenticate and make available for delivery
the Preferred Securities Certificates.
(d) The Property Trustee may appoint an Authenticating Agent acceptable
to the Trust to authenticate the Preferred Securities. An Authenticating Agent
may authenticate the Preferred Securities whenever the Property Trustee may do
so. Each reference in this Trust Agreement to authentication by the Property
Trustee includes authentication by such agent. An Authenticating Agent has the
same rights as the Property Trustee to deal with the Depositor or the Trust.
SECTION 504. REGISTRATION OF TRANSFER AND EXCHANGE OF
PREFERRED SECURITIES CERTIFICATES.
(a) The Depositor shall keep or cause to be kept, at the office or
agency maintained pursuant to Section 508, a register or registers for the
purpose of registering Trust Securities Certificates and transfers and exchanges
of Preferred Securities Certificates (herein referred to as the "Securities
Register") in which the registrar designated by the Depositor (the "Securities
Registrar"), subject to such reasonable regulations as it may prescribe, shall
provide for the registration of Preferred Securities Certificates and Common
Securities Certificates (subject to Section 510 in the case of the Common
Securities Certificates) and registration of transfers and exchanges of
Preferred Securities Certificates as herein provided. The Property Trustee shall
be the initial Securities Registrar.
(b) Upon surrender for registration of transfer of any Preferred
Securities Certificate at the office or agency maintained pursuant to Section
508, the Administrative Trustees or any one of them shall execute and deliver,
in the name of the designated transferee or transferees, one or
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more new Preferred Securities Certificates in authorized denominations of a like
aggregate Liquidation Amount dated the date of execution by such Administrative
Trustee or Trustees. The Securities Registrar shall not be required to register
the transfer of any Preferred Securities that have been called for redemption.
At the option of a Holder, Preferred Securities Certificates may be exchanged
for other Preferred Securities Certificates in authorized denominations of the
same class and of a like aggregate Liquidation Amount upon surrender of the
Preferred Securities Certificates to be exchanged at the office or agency
maintained pursuant to Section 508.
(c) Every Preferred Securities Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Property Trustee and the
Securities Registrar duly executed by the Holder or his attorney duly authorized
in writing. Each Preferred Securities Certificate surrendered for registration
of transfer or exchange shall be canceled and subsequently disposed of by the
Property Trustee in accordance with its customary practice. The Trust shall not
be required to (i) issue, register the transfer of, or exchange any Preferred
Securities during a period beginning at the opening of business 15 calendar days
before the date of mailing of a notice of redemption of any Preferred Securities
called for redemption and ending at the close of business on the day of such
mailing; or (ii) register the transfer of or exchange any Preferred Securities
so selected for redemption, in whole or in part, except the unredeemed portion
of any such Preferred Securities being redeemed in part.
(d) No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but the Securities Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Preferred
Securities Certificates.
SECTION 505. MUTILATED, DESTROYED, LOST OR STOLEN TRUST
SECURITIES CERTIFICATES.
If (a) any mutilated Trust Securities Certificate shall be surrendered
to the Securities Registrar, or if the Securities Registrar shall receive
evidence to its satisfaction of the destruction, loss or theft of any Trust
Securities Certificate; and (b) there shall be delivered to the Securities
Registrar, the Property Trustee and the Administrative Trustees such security or
indemnity as may be required by them to save each of them harmless, then in the
absence of notice that such Trust Securities Certificate shall have been
acquired by a bona fide purchaser, the Administrative Trustees, or any one of
them, on behalf of the Trust shall execute and make available for delivery, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen Trust
Securities Certificate, a new Trust Securities Certificate of like class, tenor
and denomination. In connection with the issuance of any new Trust Securities
Certificate under this Section 505, the Administrative Trustees or the
Securities Registrar may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection therewith.
Any duplicate Trust Securities Certificate issued pursuant to this Section 505
shall constitute conclusive evidence of an undivided beneficial interest in the
assets of the Trust, as if originally
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issued, whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.
SECTION 506. PERSONS DEEMED SECURITYHOLDERS.
The Trustees, the Paying Agent and the Securities Registrar shall treat
the Person in whose name any Trust Securities Certificate shall be registered in
the Securities Register as the owner of such Trust Securities Certificate for
the purpose of receiving Distributions and for all other purposes whatsoever,
and neither the Trustees nor the Securities Registrar shall be bound by any
notice to the contrary.
SECTION 507. ACCESS TO LIST OF SECURITYHOLDERS' NAMES AND
ADDRESSES.
At any time when the Property Trustee is not also acting as the
Securities Registrar, the Administrative Trustees or the Depositor shall furnish
or cause to be furnished to the Property Trustee (a) semi-annually on or before
January 15 and July 15 in each year, a list, in such form as the Property
Trustee may reasonably require, of the names and addresses of the
Securityholders as of the most recent record date; and (b) promptly after
receipt by any Administrative Trustee or the Depositor of a request therefor
from the Property Trustee in order to enable the Property Trustee to discharge
its obligations under this Trust Agreement, in each case to the extent such
information is in the possession or control of the Administrative Trustees or
the Depositor and is not identical to a previously supplied list or has not
otherwise been received by the Property Trustee in its capacity as Securities
Registrar. The rights of Securityholders to communicate with other
Securityholders with respect to their rights under this Trust Agreement or under
the Trust Securities, and the corresponding rights of the Trustee shall be as
provided in the Trust Indenture Act. Each Holder, by receiving and holding a
Trust Securities Certificate, and each owner shall be deemed to have agreed not
to hold the Depositor, the Property Trustee or the Administrative Trustees
accountable by reason of the disclosure of its name and address, regardless of
the source from which such information was derived.
SECTION 508. MAINTENANCE OF OFFICE OR AGENCY.
The Administrative Trustees shall maintain in a location or locations
designated by the Administrative Trustees, an office or offices or agency or
agencies where Preferred Securities Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Trustees in respect of the Trust Securities Certificates may be served. The
Administrative Trustees initially designate the Corporate Trust Office of the
Property Trustee, Two International Place, 4th Floor, Boston, Massachusetts
02110, as the principal corporate trust office for such purposes. The
Administrative Trustees shall give prompt written notice to the Depositor and to
the Securityholders of any change in the location of the Securities Register or
any such office or agency.
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SECTION 509. APPOINTMENT OF PAYING AGENT.
The Paying Agent shall initially be the Property Trustee, and any
co-paying agent chosen by the Property Trustee must be acceptable to the
Administrative Trustees and the Depositor. The Paying Agent shall make
Distributions to Securityholders from the Payment Account and shall report the
amounts of such Distributions to the Property Trustee and the Administrative
Trustees. Any Paying Agent shall have the revocable power to withdraw funds from
the Payment Account for the purpose of making the Distributions referred to
above. The Administrative Trustees may revoke such power and remove the Paying
Agent if such Trustees determine in their sole discretion that the Paying Agent
shall have failed to perform its obligations under this Trust Agreement in any
material respect. Any Person acting as Paying Agent shall be permitted to resign
as Paying Agent upon 30 days' written notice to the Administrative Trustees, the
Property Trustee and the Depositor. In the event that the Property Trustee shall
no longer be the Paying Agent or a successor Paying Agent shall resign or its
authority to act be revoked, the Administrative Trustees shall appoint a
successor that is acceptable to the Property Trustee and the Depositor to act as
Paying Agent (which shall be a bank or trust company). The Administrative
Trustees shall cause such successor Paying Agent or any additional Paying Agent
appointed by the Administrative Trustees to execute and deliver to the Trustees
an instrument in which such successor Paying Agent or additional Paying Agent
shall agree with the Trustees that as Paying Agent, such successor Paying Agent
or additional Paying Agent shall hold all sums, if any, held by it for payment
to the Securityholders in trust for the benefit of the Securityholders entitled
thereto until such sums shall be paid to such Securityholders. The Paying Agent
shall return all unclaimed funds to the Property Trustee and, upon removal of a
Paying Agent, such Paying Agent shall also return all funds in its possession to
the Property Trustee. The provisions of Sections 801, 803 and 806 shall apply to
the Property Trustee also in its role as Paying Agent, for so long as the
Property Trustee shall act as Paying Agent and, to the extent applicable, to any
other Paying Agent appointed hereunder. Any reference in this Trust Agreement to
the Paying Agent shall include any co-paying agent unless the context requires
otherwise.
SECTION 510. OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR.
On the Closing Date, the Depositor shall acquire and retain beneficial
and record ownership of the Common Securities. To the fullest extent permitted
by law, any attempted transfer of the Common Securities (other than a transfer
in connection with a merger or consolidation of the Depositor into another
corporation pursuant to Section 12.1 of the Indenture) shall be void. The
Administrative Trustees shall cause each Common Securities Certificate issued to
the Depositor to contain a legend stating "THIS CERTIFICATE IS NOT
TRANSFERABLE".
SECTION 511. PREFERRED SECURITIES CERTIFICATES.
(a) Each owner shall receive a Preferred Securities Certificate
representing such owner's interest in such Preferred Securities. Upon the
issuance of Preferred Securities Certificates, the Trustees shall recognize the
record holders of the Preferred Securities Certificates as
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Securityholders. The Preferred Securities Certificates shall be printed,
lithographed or engraved or may be produced in any other manner as is reasonably
acceptable to the Administrative Trustees, as evidenced by the execution thereof
by the Administrative Trustees or any one of them.
(b) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
SECTION 512. [Intentionally Omitted]
SECTION 513. [Intentionally Omitted]
SECTION 514. RIGHTS OF SECURITYHOLDERS.
(a) The legal title to the Trust Property is vested exclusively in the
Property Trustee (in its capacity as such) in accordance with Section 209, and
the Securityholders shall not have any right or title therein other than the
undivided beneficial interest in the assets of the Trust conferred by their
Trust Securities and they shall have no right to call for any partition or
division of property, profits or rights of the Trust except as described below.
The Trust Securities shall be personal property giving only the rights
specifically set forth therein and in this Trust Agreement. The Trust Securities
shall have no preemptive or similar rights. When issued and delivered to Holders
of the Preferred Securities against payment of the purchase price therefor, the
Preferred Securities shall be fully paid and nonassessable interests in the
Trust. The Holders of the Preferred Securities, in their capacities as such,
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.
(b) For so long as any Preferred Securities remain Outstanding, upon a
Debenture Event of Default, the Debenture Trustee fails or the holders of not
less than 25% in principal amount of the outstanding Debentures fail to declare
the principal of all of the Debentures to be immediately due and payable, the
Holders of at least 25% in Liquidation Amount of the Preferred Securities then
Outstanding shall have such right by a notice in writing to the Depositor and
the Debenture Trustee; and upon any such declaration such principal amount of
and the accrued interest on all of the Debentures shall become immediately due
and payable, provided that the payment of principal and interest on such
Debentures shall remain subordinated to the extent provided in the Indenture.
(c) For so long as any Preferred Securities remain Outstanding, upon a
Debenture Event of Default arising from the failure to pay interest or principal
on the Debentures, the Holders of any Preferred Securities then Outstanding
shall, to the fullest extent permitted by law, have the right to directly
institute proceedings for enforcement of payment to such Holders of principal of
or interest on the Debentures having a principal amount equal to the Liquidation
Amount of the Preferred Securities of such Holders.
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ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 601. LIMITATIONS ON VOTING RIGHTS.
(a) Except as provided in this Section 601, in Sections 514, 810 and
1002 and in the Indenture and as otherwise required by law, no Holder of
Preferred Securities shall have any right to vote or in any manner otherwise
control the administration, operation and management of the Trust or the
obligations of the parties hereto, nor shall anything herein set forth, or
contained in the terms of the Trust Securities Certificates, be construed so as
to constitute the Securityholders from time to time as partners or members of an
association.
(b) So long as any Debentures are held by the Property Trustee, the
Trustees shall not (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Debenture Trustee, or executing any
trust or power conferred on the Debenture Trustee with respect to such
Debentures; (ii) waive any past default which is waivable under Article VII 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, without, in each case, obtaining the prior
approval of the Holders of at least a majority in Liquidation Amount of all
Outstanding Preferred Securities; provided, however, that where a consent under
the Indenture would require the consent of each holder of outstanding Debentures
affected thereby, no such consent shall be given by the Property Trustee without
the prior written consent of each Holder of Preferred Securities. The Trustees
shall not revoke any action previously authorized or approved by a vote of the
Holders of the Outstanding Preferred Securities, except when authorized by a
subsequent vote of the Holders of the Outstanding Preferred Securities. The
Property Trustee shall notify each Holder of the Outstanding Preferred
Securities of any notice of default received from the Debenture Trustee with
respect to the Debentures. In addition to obtaining the foregoing approvals of
the Holders of the Preferred Securities, prior to taking any of the foregoing
actions, the Trustees shall, at the expense of the Depositor, obtain an Opinion
of Counsel experienced in such matters to the effect that the Trust shall
continue to be classified as a grantor trust and not as an association taxable
as a corporation for United States federal income tax purposes on account of
such action.
(c) If any proposed amendment to the Trust Agreement provides for, or
the Trustees otherwise propose to effect, (i) any action that would adversely
affect in any material respect the powers, preferences or special rights of the
Preferred Securities, whether by way of amendment to the Trust Agreement or
otherwise; or (ii) the dissolution, winding-up or termination of the Trust,
other than pursuant to the terms of this Trust Agreement, then the Holders of
Outstanding Preferred Securities as a class shall be entitled to vote on such
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 Outstanding Preferred Securities. No amendment to this Trust
Agreement may be made if, as a result of such amendment, the Trust would cease
to be
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classified as a grantor trust or would be classified as an association taxable
as a corporation for United States federal income tax purposes.
SECTION 602. NOTICE OF MEETINGS.
Notice of all meetings of the Preferred Securityholders, stating the
time, place and purpose of the meeting, shall be given by the Property Trustee
pursuant to Section 1008 to each Preferred Securityholder of record, at his
registered address, at least 15 days and not more than 90 days before the
meeting. At any such meeting, any business properly before the meeting may be so
considered whether or not stated in the notice of the meeting. Any adjourned
meeting may be held as adjourned without further notice.
SECTION 603. MEETINGS OF PREFERRED SECURITYHOLDERS.
(a) No annual meeting of Securityholders is required to be held. The
Administrative Trustees, however, shall call a meeting of Securityholders to
vote on any matter in respect of which Preferred Securityholders are entitled to
vote upon the written request of the Preferred Securityholders of 25% of the
Outstanding Preferred Securities (based upon their aggregate Liquidation Amount)
and the Administrative Trustees or the Property Trustee may, at any time in
their discretion, call a meeting of Preferred Securityholders to vote on any
matters as to which the Preferred Securityholders are entitled to vote.
(b) Preferred Securityholders of record of 50% of the Outstanding
Preferred Securities (based upon their aggregate Liquidation Amount), present in
person or by proxy, shall constitute a quorum at any meeting of Securityholders.
(c) If a quorum is present at a meeting, an affirmative vote by the
Preferred Securityholders of record present, in person or by proxy, holding more
than a majority of the Preferred Securities (based upon their aggregate
Liquidation Amount) held by the Preferred Securityholders of record present,
either in person or by proxy, at such meeting shall constitute the action of the
Securityholders, unless this Trust Agreement requires a greater number of
affirmative votes.
SECTION 604. VOTING RIGHTS.
Securityholders shall be entitled to one vote for each dollar value of
Liquidation Amount represented by their Trust Securities in respect of any
matter as to which such Securityholders are entitled to vote (and such dollar
value shall be $10 per Preferred Security until such time, if any, as the
Liquidation Amount is changed as provided herein).
SECTION 605. PROXIES, ETC.
At any meeting of Securityholders, any Securityholder entitled to vote
thereat may vote by proxy, provided that no proxy, shall be voted at any meeting
unless it shall have been placed on
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file with the Administrative Trustees, or with such other officer or agent of
the Trust as the Administrative Trustees may direct, for verification prior to
the time at which such vote shall be taken. When Trust Securities are held
jointly by several persons, any one of them may vote at any meeting in person or
by proxy in respect of such Trust Securities, but if more than one of them shall
be present at such meeting in person or by proxy, and such joint owners or their
proxies so present disagree as to any vote to be cast, such vote shall not be
received in respect of such Trust Securities. A proxy purporting to be executed
by or on behalf of a Securityholder shall be deemed valid unless challenged at
or prior to its exercise, and, the burden of proving invalidity shall rest on
the challenger. No proxy shall be valid more than three years after its date of
execution.
SECTION 606. SECURITYHOLDER ACTION BY WRITTEN CONSENT.
Any action which may be taken by Securityholders at a meeting may be
taken without a meeting if Securityholders holding more than a majority of all
Outstanding Trust Securities (based upon their aggregate Liquidation Amount)
entitled to vote in respect of such action (or such larger proportion thereof as
shall be required by any express provision of this Trust Agreement) shall
consent to the action in writing.
SECTION 607. RECORD DATE FOR VOTING AND OTHER PURPOSES.
For the purposes of determining the Securityholders who are entitled to
notice of and to vote at any meeting or by written consent, or to participate in
any Distribution on the Trust Securities in respect of which a record date is
not otherwise provided for in this Trust Agreement, or for the purpose of any
other action, the Administrative Trustees may from time to time fix a date, not
more than 90 days prior to the date of any meeting of Securityholders or the
payment of Distribution or other action, as the case may be, as a record date
for the determination of the identity of the Securityholders of record for such
purposes.
SECTION 608. ACTS OF SECURITYHOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Trust Agreement to be
given, made or taken by Securityholders may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such
Securityholders in person or by an agent duly appointed in writing; and, except
as otherwise expressly provided herein, such action shall become effective when
such instrument or instruments are delivered to an Administrative Trustee. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Securityholders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Trust Agreement and (subject to Section 801) conclusive in favor
of the Trustees, if made in the manner provided in this Section 608.
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(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which any Trustee receiving the same deems sufficient.
(c) The ownership of Preferred Securities shall be proved by the
Securities Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Securityholder of any Trust Security shall bind every
future Securityholder of the same Trust Security and the Securityholder of every
Trust Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
(e) Without limiting the foregoing, a Securityholder entitled hereunder
to take any action hereunder with regard to any particular Trust Security may do
so with regard to all or any part of the Liquidation Amount of such Trust
Security or by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any part of such Liquidation
Amount.
(f) A Securityholder may institute a legal proceeding directly against
the Depositor under the Guarantee to enforce its rights under the Guarantee
without first instituting a legal proceeding against the Guarantee Trustee (as
defined in the Guarantee), the Trust or any Person.
SECTION 609. INSPECTION OF RECORDS.
Upon reasonable notice to the Administrative Trustees and the Property
Trustee, the records of the Trust shall be open to inspection and copying by
Securityholders and their authorized representatives during normal business
hours for any purpose reasonably related to such Securityholder's interest as a
Securityholder.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 701. REPRESENTATIONS AND WARRANTIES OF THE BANK AND
THE PROPERTY TRUSTEE.
The Bank and the Property Trustee, each severally on behalf of and as
to itself, as of the date hereof, and each successor Property Trustee at the
time of the successor Property Trustee's acceptance of its appointment as
Property Trustee hereunder (the term "Bank" being used to refer
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to such successor Property Trustee in its separate corporate capacity) hereby
represents and warrants (as applicable) for the benefit of the Depositor and the
Securityholders that:
(a) the Bank is a trust company duly organized, validly existing and in
good standing under the laws of the Commonwealth of Massachusetts;
(b) the Bank has full corporate power, authority and legal right to
execute, deliver and perform its obligations under this Trust Agreement and has
taken all necessary action to authorize the execution, delivery and performance
by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and
delivered by the Property Trustee and constitutes the valid and legally binding
agreement of the Property Trustee enforceable against it in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors, rights and to general equity principles;
(d) the execution, delivery and performance by the Property Trustee of
this Trust Agreement has been duly authorized by all necessary corporate or
other action on the part of the Property Trustee and does not require any
approval of stockholders of the Bank and such execution, delivery and
performance shall not (i) violate the Bank's charter or by-laws; (ii) violate
any provision of, or constitute, with or without notice or lapse of time, a
default under, or result in the creation or imposition of, any Lien on any
properties included in the Trust Property pursuant to the provisions of, any
indenture, mortgage, credit agreement, license or other agreement or instrument
to which the Property Trustee or the Bank is a party or by which it is bound; or
(iii) violate any law, governmental rule or regulation of the United States or
the Commonwealth of Massachusetts, as the case may be, governing the banking or
trust powers of the Bank or the Property Trustee (as appropriate in context) or
any order, judgment or decree applicable to the Property Trustee or the Bank;
(e) neither the authorization, execution or delivery by the Property
Trustee of this Trust Agreement nor the consummation of any of the transactions
by the Property Trustee contemplated herein or therein requires the consent or
approval of, the giving of notice to, the registration with or the taking of any
other action with respect to any governmental authority or agency under any
existing federal law governing the banking or trust powers of the Bank or the
Property Trustee, as the case may be, under the laws of the United States or the
Commonwealth of Massachusetts; and
(f) there are no proceedings pending or, to the best of the Property
Trustee's knowledge, threatened against or affecting the Bank or the Property
Trustee in any court or before any governmental authority, agency or arbitration
board or tribunal which, individually or in the aggregate, would materially and
adversely affect the Trust or would question the right, power and authority of
the Property Trustee to enter into or perform its obligations as one of the
Trustees under this Trust Agreement.
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SECTION 702. REPRESENTATIONS AND WARRANTIES OF THE DELAWARE
BANK AND THE DELAWARE TRUSTEE.
The Delaware Bank and the Delaware Trustee, each severally on behalf of
and as to itself, as of the date hereof, and each successor Delaware Trustee at
the time of the successor Delaware Trustee's acceptance of appointment as
Delaware Trustee hereunder (the term "Delaware Bank" being used to refer to such
successor Delaware Trustee in its separate corporate capacity), hereby
represents and warrants (as applicable) for the benefit of the Depositor and the
Securityholders that:
(a) the Delaware Bank is a Delaware banking corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware;
(b) the Delaware Bank has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Trust Agreement
and has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and
delivered by the Delaware Trustee and constitutes the valid and legally binding
agreement of the Delaware Trustee enforceable against it in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors, rights and to general equity principles;
(d) the execution, delivery and performance by the Delaware Trustee of
this Trust Agreement has been duly authorized by all necessary corporate or
other action on the part of the Delaware Trustee and does not require any
approval of stockholders of the Delaware Bank and such execution, delivery and
performance shall not (i) violate the Delaware Bank's charter or by-laws; (ii)
violate any provision of, or constitute, with or without notice or lapse of
time, a default under, or result in the creation or imposition of, any Lien on
any properties included in the Trust Property pursuant to the provisions of, any
indenture, mortgage, credit agreement, license or other agreement or instrument
to which the Delaware Bank or the Delaware Trustee is a party or by which it is
bound; or (iii) violate any law, governmental rule or regulation of the United
States or the State of Delaware, as the case may be, governing the banking or
trust powers of the Delaware Bank or the Delaware Trustee (as appropriate in
context) or any order, judgment or decree applicable to the Delaware Bank or the
Delaware Trustee;
(e) neither the authorization, execution or delivery by the Delaware
Trustee of this Trust Agreement nor the consummation of any of the transactions
by the Delaware Trustee contemplated herein or therein requires the consent or
approval of, the giving of notice to, the registration with or the taking of any
other action with respect to any governmental authority or agency under any
existing federal law governing the banking or trust powers of the Delaware Bank
or the Delaware Trustee, as the case may be, under the laws of the United States
or the State of Delaware; and
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(f) there are no proceedings pending or, to the best of the Delaware
Trustee's knowledge, threatened against or affecting the Delaware Bank or the
Delaware Trustee in any court or before any governmental authority, agency or
arbitration board or tribunal which, individually or in the aggregate, would
materially and adversely affect the Trust or would question the right, power and
authority of the Delaware Trustee to enter into or perform its obligations as
one of the Trustees under this Trust Agreement.
SECTION 703. REPRESENTATIONS AND WARRANTIES OF DEPOSITOR.
The Depositor hereby represents and warrants for the benefit of the
Securityholders that:
(a) the Trust Securities Certificates issued on the Closing Date or the
Option Closing Date, if applicable, on behalf of the Trust have been duly
authorized and, shall be, as of such date or dates, if applicable, duly and
validly executed, issued and delivered by the Administrative Trustees pursuant
to the terms and provisions of, and in accordance with the requirements of, this
Trust Agreement and the Securityholders shall be, as of such date or dates, if
applicable, entitled to the benefits of this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges payable by
the Trust (or the Trustees on behalf of the Trust) under the laws of the State
of Delaware or any political subdivision thereof in connection with the
execution, delivery and performance by the Bank, the Property Trustee or the
Delaware Trustee, as the case may be, of this Trust Agreement.
ARTICLE VIII
TRUSTEES
SECTION 801. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The duties and responsibilities of the Trustees shall be as
provided by this Trust Agreement and, in the case of the Property Trustee, by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Trust Agreement shall require the Trustees to expend or risk their own funds or
otherwise incur any financial liability in the performance of any of their
duties hereunder, or in the exercise of any of their rights or powers, if they
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
them. No Administrative Trustee nor the Delaware Trustee shall be liable for its
act or omissions hereunder except as a result of its own gross negligence or
willful misconduct. The Property Trustee's liability shall be determined under
the Trust Indenture Act. Whether or not therein expressly so provided, every
provision of this Trust Agreement relating to the conduct or affecting the
liability of or affording protection to the Trustees shall be subject to the
provisions of this Section 801. To the extent that, at law or in equity, the
Delaware Trustee or an Administrative Trustee has duties (including fiduciary
duties) and liabilities relating thereto to the Trust or to the Securityholders,
the Delaware Trustee or such Administrative Trustee shall not be liable to the
Trust or to any Securityholder for such Trustee's good faith reliance on the
provisions of this Trust Agreement. The provisions of this Trust Agreement, to
the extent that
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they restrict the duties and liabilities of the Delaware Trustee or the
Administrative Trustees otherwise existing at law or in equity, are agreed by
the Depositor and the Securityholders to replace such other duties and
liabilities of the Delaware Trustee and the Administrative Trustees, as the case
may be.
(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the revenue and proceeds
from the Trust Property and only to the extent that there shall be sufficient
revenue or proceeds from the Trust Property to enable the Property Trustee or a
Paying Agent to make payments in accordance with the terms hereof. With respect
to the relationship of each Securityholder and the Trustee, each Securityholder,
by its acceptance of a Trust Security, agrees that it shall look solely to the
revenue and proceeds from the Trust Property to the extent legally available for
distribution to it as herein provided and that the Trustees are not personally
liable to it for any amount distributable in respect of any Trust Security or
for any other liability in respect of any Trust Security. This Section 801(b)
does not limit the liability of the Trustees expressly set forth elsewhere in
this Trust Agreement or, in the case of the Property Trustee, in the Trust
Indenture Act.
(c) No provision of this Trust Agreement shall be construed to relieve
the Property Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
(ii) the Property 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 Trust Securities relating to the
time, method and place of conducting any proceeding for any remedy
available to the Property Trustee, or exercising any trust or power
conferred upon the Property Trustee under this Trust Agreement;
(iii) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and
the Payment Account shall be to deal with such property in a similar
manner as the Property Trustee deals with similar property for its own
account, subject to the protections and limitations on liability
afforded to the Property Trustee under this Trust Agreement and the
Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any interest
on any money received by it except as it may otherwise agree with the
Depositor and money held by the Property Trustee need not be segregated
from other funds held by it except in relation to the Payment Account
maintained by the Property Trustee pursuant to Section 301 and except
to the extent otherwise required by law; and
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(v) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the
Depositor with their respective duties under this Trust Agreement, nor
shall the Property Trustee be liable for the negligence, default or
misconduct of the Administrative Trustees or the Depositor.
SECTION 802. CERTAIN NOTICES.
(a) Within 5 Business Days after the occurrence of any Event of Default
actually known to the Property Trustee, the Property Trustee shall transmit, in
the manner and to the extent provided in Section 1008, notice of such Event of
Default to the Securityholders, the Administrative Trustees and the Depositor,
unless such Event of Default shall have been cured or waived. For purposes of
this Section 802 the term "Event of Default" means any event that is, or after
notice or lapse of time or both would become, an Event of Default.
(b) The Administrative Trustees shall transmit, to the Securityholders
in the manner and to the extent provided in Section 1008, notice of the
Depositor's election to begin or further extend an Extension Period on the
Debentures (unless such election shall have been revoked), and of any election
by the Depositor to accelerate the Maturity Date of the Debentures within the
time specified for transmitting such notice to the holders of the Debentures
pursuant to the Indenture as originally executed.
SECTION 803. CERTAIN RIGHTS OF PROPERTY TRUSTEE.
Subject to the provisions of Section 801:
(a) the Property Trustee may rely and shall be protected in acting or
refraining from acting in good faith upon any resolution, Opinion of Counsel,
certificate, written representation of a Holder or transferee, certificate of
auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) if (i) in performing its duties under this Trust Agreement the
Property Trustee is required to decide between alternative courses of action; or
(ii) in construing any of the provisions of this Trust Agreement the Property
Trustee finds the same ambiguous or inconsistent with other provisions contained
herein; or (iii) the Property Trustee is unsure of the application of any
provision of this Trust Agreement, then, except as to any matter as to which the
Preferred Securityholders are entitled to vote under the terms of this Trust
Agreement, the Property Trustee shall deliver a notice to the Depositor
requesting written instructions of the Depositor as to the course of action to
be taken and the Property Trustee shall take such action, or refrain from taking
such action, as the Property Trustee shall be instructed in writing to take, or
to refrain from taking, by the Depositor; provided, however, that if the
Property Trustee does not receive such instructions of the Depositor within 10
Business Days after it has delivered such notice, or such reasonably shorter
period of time set forth in such notice (which to the extent practicable shall
not
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be less than 2 Business Days), it may, but shall be under no duty to, take or
refrain from taking such action not inconsistent with this Trust Agreement as it
shall deem advisable and in the best interests of the Securityholders, in which
event the Property Trustee shall have no liability except for its own bad faith,
negligence or willful misconduct;
(c) any direction or act of the Depositor or the Administrative
Trustees contemplated by this Trust Agreement shall be sufficiently evidenced by
an Officers' Certificate;
(d) whenever in the administration of this Trust Agreement, the
Property Trustee shall deem it desirable that a matter be established before
undertaking, suffering or omitting any action hereunder, the Property Trustee
(unless other evidence is herein specifically prescribed) may, in the absence of
bad faith on its part, request and conclusively rely upon an Officer's
Certificate which, upon receipt of such request, shall be promptly delivered by
the Depositor or the Administrative Trustees;
(e) the Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including any financing or
continuation statement, any filing under tax or securities laws or any filing
under tax or securities laws) or any rerecording, refiling or reregistration
thereof;
(f) the Property Trustee may consult with counsel of its choice (which
counsel may be counsel to the Depositor or any of its Affiliates) and the advice
of such counsel 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 reliance thereon and, in accordance with such advice, such counsel may be
counsel to the Depositor or any of its Affiliates, and may include any of its
employees; the Property Trustee shall have the right at any time to seek
instructions concerning the administration of this Trust Agreement from any
court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Trust Agreement at the request,
order or direction of any of the Securityholders pursuant to this Trust
Agreement, unless such Securityholders shall have offered to the Property
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request, order
or direction; nothing contained herein shall, however, relieve the Property
Trustee of the obligation, upon the occurrence of an Event of Default (that has
not been cured or waived) to exercise with respect to the Debentures, such of
the rights and powers vested in it by this Trust Agreement, and to use the same
degree of care and skill in their exercise as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs;
(h) the Property Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other evidence of indebtedness or other paper or document,
unless requested in writing to do so by one or more Securityholders, but the
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Property Trustee may make such further inquiry or investigation into such facts
or matters as it may see fit;
(i) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through its
agents or attorneys, provided that the Property Trustee shall be responsible for
its own negligence or recklessness with respect to selection of any agent or
attorney appointed by it hereunder;
(j) whenever in the administration of this Trust Agreement the Property
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder the Property
Trustee (i) may request instructions from the Holders of the Trust Securities
which instructions may only be given by the Holders of the same proportion in
Liquidation Amount of the Trust Securities as would be entitled to direct the
Property Trustee under the terms of the Trust 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 acting in accordance with such instructions; and
(k) except as otherwise expressly provided by this Trust Agreement, the
Property Trustee shall not be under any obligation to take any action that is
discretionary under the provisions of this Trust Agreement. No provision of this
Trust Agreement shall be deemed to impose any duty or obligation on the Property
Trustee to perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it, in any jurisdiction in which it shall be
illegal, or in which the Property Trustee shall be unqualified or incompetent in
accordance with applicable law, to perform any such act or acts, or to exercise
any such right, power, duty or obligation. No permissive power or authority
available to the Property Trustee shall be construed to be a duty.
SECTION 804. NOT RESPONSIBLE FOR RECITALS OR USE OF PROCEEDS.
The Recitals contained herein and in the Trust Securities Certificates
shall be taken as the statements of the Trust, and the Trustees do not assume
any responsibility for their correctness. The Trustees shall not be accountable
for the use or application by the Depositor of the proceeds of the Debentures.
SECTION 805. MAY HOLD SECURITIES.
Any Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee of Trust
Securities and, subject to Sections 808 and 813 and except as provided in the
definition of the term "Outstanding" in Article I, may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee or such other
agent.
SECTION 806. COMPENSATION; INDEMNITY; FEES.
The Depositor agrees:
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(a) to pay to the Trustees from time to time reasonable compensation
for all services rendered by them hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements and advances
incurred or made by the Trustees in accordance with any provision of this Trust
Agreement (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to such Trustee's negligence, bad faith or
willful misconduct (or, in the case of the Administrative Trustees or the
Delaware Trustee, any such expense, disbursement or advance as may be
attributable to its, his or her gross negligence, bad faith or willful
misconduct); and
(c) to indemnify each of the Trustees or any predecessor Trustee for,
and to hold the Trustees harmless against, any loss, damage, claims, liability,
penalty or expense incurred without negligence or bad faith on its part, arising
out of or in connection with the acceptance or administration of this Trust
Agreement, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder, except any such expense, disbursement or advance as
may be attributable to such Trustee's negligence, bad faith or willful
misconduct (or, in the case of the Administrative Trustees or the Delaware
Trustee, any such expense, disbursement or advance as may be attributable to
its, his or her gross negligence, bad faith or willful misconduct).
No Trustee may claim any Lien on any Trust Property as a result of any
amount due pursuant to this Section 806.
SECTION 807. CORPORATE PROPERTY TRUSTEE REQUIRED; ELIGIBILITY
OF TRUSTEES.
(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000. If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this Section
807, the combined capital and surplus of such Person shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Property Trustee with respect to the Trust
Securities shall cease to be eligible in accordance with the provisions of this
Section 807, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article VIII.
(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative 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 persons authorized to bind that
entity.
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(c) There shall at all times be a Delaware Trustee with respect to the
Trust Securities. The Delaware Trustee shall either be (i) a natural person who
is at least 21 years of age and a resident of the State of Delaware; or (ii) a
legal entity with its principal place of business in the State of Delaware and
that otherwise meets the requirements of applicable Delaware law that shall act
through one or more persons authorized to bind such entity.
SECTION 808. CONFLICTING INTERESTS.
If the Property Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Property Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Trust
Agreement.
SECTION 809. CO-TRUSTEES AND SEPARATE TRUSTEE.
(a) Unless an Event of Default shall have occurred and be continuing,
at any time or times, for the purpose of meeting the legal requirements of the
Trust Indenture Act or of any jurisdiction in which any part of the Trust
Property may at the time be located, the Depositor shall have power to appoint,
and upon the written request of the Property Trustee, the Depositor shall for
such purpose join with the Property Trustee in the execution, delivery and
performance of all instruments and agreements necessary or proper to appoint,
one or more Persons approved by the Property Trustee either to act as
co-trustee, jointly with the Property Trustee, of all or any part of such Trust
Property, or to the extent required by law to act as separate trustee of any
such property, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or Persons in the capacity
aforesaid, any property, title, right or power deemed necessary or desirable,
subject to the other provisions of this Section 809. If the Depositor does not
join in such appointment within 15 days after the receipt by it of a request so
to do, or in case a Debenture Event of Default has occurred and is continuing,
the Property Trustee alone shall have power to make such appointment. Any
co-trustee or separate trustee appointed pursuant to this Section 809 shall
either be (i) a natural person who is at least 21 years of age and a resident of
the United States; or (ii) a legal entity with its principal place of business
in the United States that shall act through one or more persons authorized to
bind such entity.
(b) Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged, and delivered
by the Depositor.
(c) Every co-trustee or separate trustee shall, to the extent permitted
by law, but to such extent only, be appointed subject to the following terms,
namely:
(i) The Trust Securities shall be executed and delivered and
all rights, powers, duties and obligations hereunder in respect of the
custody of securities, cash and other personal property held by, or
required to be deposited or pledged with, the Trustees
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specified hereunder, shall be exercised, solely by such Trustees and
not by such co-trustee or separate trustee.
(ii) The rights, powers, duties and obligations hereby
conferred or imposed upon the Property Trustee in respect of any
property covered by such appointment shall be conferred or imposed upon
and exercised or performed by the Property Trustee or by the Property
Trustee and such co-trustee or separate trustee jointly, as shall be
provided in the instrument appointing such co-trustee or separate
trustee, except to the extent that under any law of any jurisdiction in
which any particular act is to be performed, the Property Trustee shall
be incompetent or unqualified to perform such act, in which event such
rights, powers, duties and obligations shall be exercised and performed
by such co-trustee or separate trustee.
(iii) The Property Trustee at any time, by an instrument in
writing executed by it, with the written concurrence of the Depositor,
may accept the resignation of or remove any co-trustee or separate
trustee appointed under this Section 809, and, in case a Debenture
Event of Default has occurred and is continuing, the Property Trustee
shall have the power to accept the resignation of, or remove, any such
co-trustee or separate trustee without the concurrence of the
Depositor. Upon the written request of the Property Trustee, the
Depositor shall join with the Property Trustee in the execution,
delivery and performance of all instruments and agreements necessary or
proper to effectuate such resignation or removal. A successor to any
co-trustee or separate trustee so resigned or removed may be appointed
in the manner provided in this Section 809.
(iv) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Property
Trustee or any other trustee hereunder.
(v) The Property Trustee shall not be liable by reason of any
act of a co-trustee or separate trustee.
(vi) Any Act of Holders delivered to the Property Trustee
shall be deemed to have been delivered to each such co-trustee and
separate trustee.
SECTION 810. RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR.
(a) Except as otherwise provided herein, no resignation or removal of
any Trustee (the "Relevant Trustee") and no appointment of a successor Trustee
pursuant to this Article VIII shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 811.
(b) Subject to the immediately preceding paragraph, the Relevant
Trustee may resign at any time with respect to the Trust Securities by giving
written notice thereof to the Securityholders. If the instrument of acceptance
by the successor Trustee required by Section
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811 shall not have been delivered to the Relevant Trustee within 30 days after
the giving of such notice of resignation, the Relevant Trustee may petition, at
the expense of the Depositor, any court of competent jurisdiction for the
appointment of a successor Relevant Trustee with respect to the Trust
Securities.
(c) Unless a Debenture Event of Default shall have occurred and be
continuing, any Trustee may be removed at any time by Act of the Common
Securityholder. If a Debenture Event of Default shall have occurred and be
continuing, the Property Trustee or the Delaware Trustee, or both of them, may
be removed at such time by Act of the Holders of a majority in Liquidation
Amount of the Preferred Securities, delivered to the Relevant Trustee (in its
individual capacity and on behalf of the Trust). An Administrative Trustee may
be removed by the Common Securityholder at any time.
(d) If any Trustee shall resign, be removed or become incapable of
acting as Trustee, or if a vacancy shall occur in the office of any Trustee for
any cause, at a time when no Debenture Event of Default shall have occurred and
be continuing, the Common Securityholder, by Act of the Common Securityholder
delivered to the retiring Trustee, shall promptly appoint a successor Trustee or
Trustees with respect to the Trust Securities and the Trust, and the successor
Trustee shall comply with the applicable requirements of Section 811. If the
Property Trustee or the Delaware Trustee shall resign, be removed or become
incapable of continuing to act as the Property Trustee or the Delaware Trustee,
as the case may be, at a time when a Debenture Event of Default shall have
occurred and is continuing, the Preferred Securityholders, by Act of the
Securityholders of a majority in Liquidation Amount of the Preferred Securities
then Outstanding delivered to the retiring Relevant Trustee, shall promptly
appoint a successor Relevant Trustee or Trustees with respect to the Trust
Securities and the Trust, and such successor Trustee shall comply with the
applicable requirements of Section 811. If an Administrative Trustee shall
resign, be removed or become incapable of acting as Administrative Trustee, at a
time when a Debenture Event of Default shall have occurred and be continuing,
the Common Securityholder, by Act of the Common Securityholder delivered to an
Administrative Trustee, shall promptly appoint a successor Administrative
Trustee or Administrative Trustees with respect to the Trust Securities and the
Trust, and such successor Administrative Trustee or Administrative Trustees
shall comply with the applicable requirements of Section 811. If no successor
Relevant Trustee with respect to the Trust Securities shall have been so
appointed by the Common Securityholder or the Preferred Securityholders and
accepted appointment in the manner required by Section 811, any Securityholder
who has been a Securityholder of Trust Securities for six consecutive months on
behalf of himself and all others similarly situated may petition a court of
competent jurisdiction for the appointment of a successor Relevant Trustee with
respect to the Trust Securities.
(e) The Property Trustee shall give notice of each resignation and each
removal of a Trustee and each appointment of a successor Trustee to all
Securityholders in the manner provided in Section 1008 and shall give notice to
the Depositor. Each notice shall include the name of the successor Relevant
Trustee and the address of its Corporate Trust Office if it is the Property
Trustee.
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(f) Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee or a Delaware Trustee who is
a natural person dies or becomes, in the opinion of the Depositor, incompetent
or incapacitated, the vacancy created by such death, incompetence or incapacity
may be filled by (a) the unanimous act of remaining Administrative Trustees if
there are at least two of them; or (b) otherwise by the Depositor (with the
successor in each case being a Person who satisfies the eligibility requirement
for Administrative Trustees set forth in Section 807).
SECTION 811. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Relevant
Trustee with respect to the Trust Securities and the Trust, the retiring
Relevant Trustee and each successor Relevant Trustee with respect to the Trust
Securities shall execute and deliver an instrument hereto wherein each successor
Relevant Trustee shall accept such appointment and which shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Relevant Trustee all the rights, powers, trusts and
duties of the retiring Relevant Trustee with respect to the Trust Securities and
the Trust and upon the execution and delivery of such instrument the resignation
or removal of the retiring Relevant Trustee shall become effective to the extent
provided therein and each such successor Relevant Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Relevant Trustee with respect to the Trust Securities
and the Trust; but, on request of the Trust or any successor Relevant Trustee
such retiring Relevant Trustee shall duly assign, transfer and deliver to such
successor Relevant Trustee all Trust Property, all proceeds thereof and money
held by such retiring Relevant Trustee hereunder with respect to the Trust
Securities and the Trust.
(b) Upon request of any such successor Relevant Trustee, the Trust
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Relevant Trustee all such rights, powers and
trusts referred to in the immediately preceding paragraph, as the case may be.
(c) No successor Relevant Trustee shall accept its appointment unless
at the time of such acceptance such successor Relevant Trustee shall be
qualified and eligible under this Article VIII.
SECTION 812. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION
TO BUSINESS.
Any Person into which the Property Trustee, the Delaware Trustee or any
Administrative Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which such Relevant Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of such Relevant Trustee, shall be the successor of such Relevant Trustee
hereunder, provided such Person shall be otherwise qualified and eligible under
this Article VIII, without the execution or filing of any paper or any further
act on the part of any of the parties hereto.
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SECTION 813. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
DEPOSITOR OR TRUST.
If and when the Property Trustee or the Delaware Trustee shall be or
become a creditor of the Depositor or the Trust (or any other obligor upon the
Debentures or the Trust Securities), the Property Trustee or the Delaware
Trustee, as the case may be, shall be subject to and shall take all actions
necessary in order to comply with the provisions of the Trust Indenture Act
regarding the collection of claims against the Depositor or Trust (or any such
other obligor).
SECTION 814. REPORTS BY PROPERTY TRUSTEE.
(a) The Property Trustee shall transmit to Securityholders such reports
concerning the Property Trustee, its actions under this Trust Agreement and the
property and funds in its possession as Property Trustee as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant thereto.
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Property Trustee with The Nasdaq Stock Market's
National Market, and each national securities exchange or other organization
upon which the Trust Securities are listed, and also with the Commission and the
Depositor.
SECTION 815. REPORTS TO THE PROPERTY TRUSTEE.
The Depositor and the Administrative Trustees on behalf of the Trust
shall provide to the Property Trustee such documents, reports and information as
required by Section 314 of the Trust Indenture Act (if any) and the compliance
certificate required by Section 314(a) 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 816. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
Each of the Depositor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Trust Agreement that relate
to any of the matters set forth in Section 314(c) of the Trust Indenture Act.
Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) of the Trust Indenture Act shall be given in the form of an
Officers' Certificate.
SECTION 817. NUMBER OF TRUSTEES.
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(a) The number of Trustees shall be five, provided that the Holder of
all of the Common Securities by written instrument may increase or decrease the
number of Administrative Trustees. The Property Trustee and the Delaware Trustee
may be the same Person.
(b) If a Trustee ceases to hold office for any reason and the number of
Administrative Trustees is not reduced pursuant to Section 817(a), or if the
number of Trustees is increased pursuant to Section 817(a), a vacancy shall
occur. The vacancy shall be filled with a Trustee appointed in accordance with
Section 810.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul the Trust. Whenever a vacancy in the number of Administrative Trustees
shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 810, the Administrative
Trustees in office, regardless of their number (and notwithstanding any other
provision of this Agreement), shall have all the powers granted to the
Administrative Trustees and shall discharge all the duties imposed upon the
Administrative Trustees by this Trust Agreement.
SECTION 818. DELEGATION OF POWER.
(a) Any Administrative Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21 his
or her power for the purpose of executing any documents contemplated in Section
207(a); and
(b) The Administrative Trustees shall have power to delegate from time
to time to such of their number or to the Depositor the doing of such things and
the execution of such instruments either in the name of the Trust or the names
of the Administrative Trustees or otherwise as the Administrative Trustees may
deem expedient, to the extent such delegation is not prohibited by applicable
law or contrary to the provisions of the Trust, as set forth herein.
SECTION 819. VOTING.
Except as otherwise provided in this Trust Agreement, the consent or
approval of the Administrative Trustees shall require consent or approval by not
less than a majority of the Administrative Trustees, unless there are only two,
in which case both must consent.
ARTICLE IX
DISSOLUTION, LIQUIDATION AND MERGER
SECTION 901. DISSOLUTION UPON EXPIRATION DATE.
Unless earlier dissolved, the Trust shall automatically dissolve on
March 31, 2053 (the "Expiration Date") and the Trust Property shall be
distributed in accordance with Section 904.
SECTION 902. EARLY TERMINATION.
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The first to occur of any of the following events is an "Early
Termination Event:"
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor;
(b) delivery of written direction to the Property Trustee by the
Depositor at any time (which direction is wholly optional and within the
discretion of the Depositor) to dissolve the Trust and distribute the Debentures
to Securityholders in exchange for the Preferred Securities in accordance with
Section 904;
(c) the redemption of all of the Preferred Securities in connection
with the redemption of all of the Debentures; and
(d) the entry of an order for dissolution of the Trust by a court of
competent jurisdiction.
SECTION 903. TERMINATION.
The respective obligations and responsibilities of the Trustees and the
Trust created and continued hereby shall terminate upon the latest to occur of
the following: (a) the distribution by the Property Trustee to Securityholders
upon the liquidation of the Trust pursuant to Section 904, or upon the
redemption of all of the Trust Securities pursuant to Section 402, of all
amounts required to be distributed hereunder upon the final payment of the Trust
Securities; (b) the payment of any expenses owed by the Trust; (c) the discharge
of all administrative duties of the Administrative Trustees, including the
performance of any tax reporting obligations with respect to the Trust or the
Securityholders; and (d) the filing of a Certificate of Cancellation by the
Administrative Trustee under the Delaware Business Trust Act.
SECTION 904. LIQUIDATION.
(a) If an Early Termination Event specified in clause (a), (b), or (d)
of Section 902 occurs or upon the Expiration Date, the Trust shall be liquidated
by the Trustees as expeditiously as the Trustees determine to be possible by
distributing, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, (including, without limitation, after paying or
making reasonable provision to pay all claims and obligations of the Trust in
accordance with Section 3808(e) of the Delaware Business Trust Act), to each
Securityholder a Like Amount of Debentures, subject to Section 904(d). Notice of
liquidation shall be given by the Property Trustee by first-class mail, postage
prepaid, mailed not later than 30 nor more than 60 days prior to the Liquidation
Date to each Holder of Trust Securities at such Holder's address appearing in
the Securities Register. All notices of liquidation shall:
(i) state the Liquidation Date;
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(ii) state that from and after the Liquidation Date, the Trust
Securities shall no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange shall be deemed to
represent a Like Amount of Debentures; and
(iii) provide such information with respect to the mechanics
by which Holders may exchange Trust Securities Certificates for
Debentures, or, if Section 904(d) applies, receive a Liquidation
Distribution, as the Administrative Trustees or the Property Trustee
shall deem appropriate.
(b) Except where Section 902(c) or 904(d) applies, in order to effect
the liquidation of the Trust and distribution of the Debentures to
Securityholders, the Property Trustee shall establish a record date for such
distribution (which shall be not more than 45 days prior to the Liquidation
Date) and, either itself acting as exchange agent or through the appointment of
a separate exchange agent, shall establish such procedures as it shall deem
appropriate to effect the distribution of Debentures in exchange for the
Outstanding Trust Securities Certificates.
(c) Except where Section 902(c) or 904(d) applies, after the
Liquidation Date, (i) the Trust Securities shall no longer be deemed to be
outstanding; (ii) certificates representing a Like Amount of Debentures shall be
issued to Holders of Trust Securities Certificates upon surrender of such
certificates to the Administrative Trustees or their agent for exchange; (iii)
the Depositor shall use its reasonable efforts to have the Debentures listed on
The Nasdaq Stock Market's National Market or on such other securities exchange
or other organization as the Preferred Securities are then listed or traded;
(iv) any Trust Securities Certificates not so surrendered for exchange shall be
deemed to represent a Like Amount of Debentures, accruing interest at the rate
provided for in the Debentures from the last Distribution Date on which a
Distribution was made on such Trust Securities Certificates until such
certificates are so surrendered (and until such certificates are so surrendered,
no payments of interest or principal shall be made to holders of Trust
Securities Certificates with respect to such Debentures); and (v) all rights of
Securityholders holding Trust Securities shall cease, except the right of such
Securityholders to receive Debentures upon surrender of Trust Securities
Certificates.
(d) In the event that, notwithstanding the other provisions of this
Section 904, whether because of an order for dissolution entered by a court of
competent jurisdiction or otherwise, distribution of the Debentures in the
manner provided herein is determined by the Property Trustee not to be
practical, the Trust Property shall be liquidated, and the Trust shall be
dissolved by the Property Trustee in such manner as the Property Trustee
determines. In such event, on the date of the dissolution of the Trust,
Securityholders shall be entitled to receive out of the assets of the Trust
available for distribution to Securityholders, after satisfaction of liabilities
to creditors of the Trust as provided by applicable law, (including, without
limitation, after paying or making reasonable provision to pay all claims and
obligations of the Trust in accordance with Section 3808(e) of the Delaware
Business Trust Act), an amount equal to the Liquidation Amount per Trust
Security plus accumulated and unpaid Distributions thereon to the date of
payment (such amount being the "Liquidation Distribution"). If, upon any such
dissolution the Liquidation Distribution can be paid only in part because the
Trust has insufficient assets available to pay in
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full the aggregate Liquidation Distribution, then, subject to the next
succeeding sentence, the amounts payable by the Trust on the Trust Securities
shall be paid on a pro rata basis (based upon Liquidation Amounts, subject to
Section 407). The Holder of the Common Securities shall be entitled to receive
Liquidation Distributions upon any such dissolution pro rata (determined as
aforesaid) with Holders of Preferred Securities, except that, if a Debenture
Event of Default has occurred and is continuing, the Preferred Securities shall
have a priority over the Common Securities.
SECTION 905. MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR
REPLACEMENTS OF THE TRUST.
The Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other Person, except pursuant
to this Section 905. At the request of the Depositor, with the consent of the
Administrative Trustees and without the consent of the Holders of the Preferred
Securities, the Property Trustee or the Delaware Trustee, the Trust may merge
with or into, consolidate, amalgamate, be replaced by or convey, transfer or
lease its properties and assets substantially as an entirety to a trust
organized as such under the laws of any State; provided, that (i) such successor
entity either (a) expressly assumes all of the obligations of the Trust with
respect to the Preferred 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 in priority with respect to
distributions and payments upon liquidation, redemption and otherwise; (ii) the
Depositor expressly appoints a trustee of such successor entity possessing
substantially the same powers and duties as the Property Trustee as the holder
of the Debentures; (iii) the Successor Securities are listed or traded, or any
Successor Securities shall be listed or traded upon notification of issuance, on
any national securities exchange or other organization on which the Preferred
Securities are then listed, if any; (iv) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the Holders of the Preferred
Securities (including any Successor Securities) in any material respect; (v)
prior to such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease, the Depositor has received an Opinion of Counsel to the
effect that (a) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights, preferences
and privileges of the Holders of the Preferred Securities (including any
Successor Securities) in any material respect; and (b) following such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease, neither
the Trust nor such successor entity shall be required to register as an
"investment company" under the Investment Company Act; and (vi) the Depositor
owns all of the Common Securities of such successor entity and guarantees the
obligations of such successor entity under the Successor Securities at least to
the extent provided by the Guarantee, the Debentures, the Indenture, this Trust
Agreement and the Expense Agreement. Notwithstanding the foregoing, the Trust
shall not, except with the consent of Holders of 100% in Liquidation Amount of
the Preferred Securities, 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 other Person or permit any other
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Person to consolidate, amalgamate, merge with or into, or replace it if such
consolidation, amalgamation, merger or replacement would cause the Trust or the
successor entity to be classified as other than a grantor trust for United
States federal income tax purposes.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 1001. LIMITATION OF RIGHTS OF SECURITYHOLDERS.
The death or incapacity of any Person having an interest, beneficial or
otherwise, in Trust Securities shall not operate to terminate this Trust
Agreement, nor entitle the legal representatives or heirs of such Person or any
Securityholder for such Person, to claim an accounting, take any action or bring
any proceeding in any court for a partition or winding-up of the arrangements
contemplated hereby, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
SECTION 1002. AMENDMENT.
(a) This Trust Agreement may be amended from time to time by the
Trustees and the Depositor, without the consent of any Securityholders, (i) as
provided in Section 811 with respect to acceptance of appointment by a successor
Trustee; (ii) to cure any ambiguity, correct or supplement any provision herein
or therein which may be inconsistent with any other provision herein or therein,
or to make any other provisions with respect to matters or questions arising
under this Trust Agreement, that shall not be inconsistent with the other
provisions of this Trust Agreement; or (iii) to modify, eliminate or add to any
provisions of this Trust Agreement to such extent as shall be necessary to
ensure that the Trust shall be classified for United States federal income tax
purposes as a grantor trust at all times that any Trust Securities are
outstanding or to ensure that the Trust shall not be required to register as an
"investment company" under the Investment Company Act; or (iv) to reduce or
increase the Liquidation Amount per Trust Security and simultaneously to
increase or reduce the number of Trust Securities issued and outstanding solely
for the purpose of maintaining the eligibility of the Preferred Securities for
listing or quotation on any national securities exchange or other organization
on which the Preferred Securities are then listed or quoted (including, if
applicable, The Nasdaq Stock Market's National Market), provided, however, that
in the case of clause (ii), such action shall not adversely affect in any
material respect the interests of any Securityholder, and that, in the case of
clause (iv), the aggregate Liquidation Amount of the Trust Securities
outstanding upon completion of any such reduction or increase, must be the same
as the aggregate Liquidation Amount of the Trust Securities outstanding
immediately prior to such reduction or increase, and any amendments of such
Trust Agreement will become effective when notice thereof is given to the
Securityholders (or, in the case of an amendment pursuant to clause (iv), as of
the date specified in the notice).
(b) Except as provided in Section 601(c) or Section 1002(c) hereof, any
provision of this Trust Agreement may be amended by the Trustees and the
Depositor (i) with the consent of Trust
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Securityholders representing not less than a majority (based upon Liquidation
Amounts) of the Trust Securities then Outstanding; and (ii) upon receipt by the
Trustees of an Opinion of Counsel to the effect that such amendment or the
exercise of any power granted to the Trustees in accordance with such amendment
shall not affect the Trust's status as a grantor trust for United States federal
income tax purposes or the Trust's exemption from status of an "investment
company" under the Investment Company Act.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Securityholder (such
consent being obtained in accordance with Section 603 or 606 hereof), this Trust
Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust Securities as of a
specified date; or (ii) restrict the right of a Securityholder to institute suit
for the enforcement of any such payment on or after such date; notwithstanding
any other provision herein, without the unanimous consent of the Securityholders
(such consent being obtained in accordance with Section 603 or 606 hereof), this
paragraph (c) of this Section 1002 may not be amended.
(d) Notwithstanding any other provisions of this Trust Agreement, no
Trustee shall enter into or consent to any amendment to this Trust Agreement
which would cause the Trust to fail or cease to qualify for the exemption from
status of an "investment company" under the Investment Company Act or to fail or
cease to be classified as a grantor trust for United States federal income tax
purposes.
(e) Notwithstanding anything in this Trust Agreement to the contrary,
without the consent of the Depositor, this Trust Agreement may not be amended in
a manner which imposes any additional obligation on the Depositor.
(f) In the event that any amendment to this Trust Agreement is made,
the Administrative Trustees shall promptly provide to the Depositor a copy of
such amendment.
(g) Upon the request of the Depositor, accompanied by its board
resolutions authorizing the execution of any such amendments to this Trust
Agreement, and upon the filing with the Property Trustee and the Delaware
Trustee of evidence of the consent of the Securityholders required to consent
thereto as aforesaid, the Property Trustee and the Delaware Trustee shall join
with the Depositor in the execution of such amendment to this Trust Agreement
unless such amendment affects the Property Trustee's or the Delaware Trustee's
own rights, duties, or immunities under this Trust Agreement or otherwise, in
which case the Property Trustee and Delaware Trustee may in their own discretion
but shall not be obligated to enter into such amendment to this Trust Agreement.
The Property Trustee and Delaware Trustee, subject to the provisions of Section
801, may receive an Opinion of Counsel as conclusive evidence that any amendment
to this Trust Agreement executed pursuant to this Article X is authorized or
permitted by, and conforms to, the terms of this Article X and that it is proper
for the Property Trustee and Delaware Trustee under the provisions of this
Article X to join in the execution thereof.
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SECTION 1003. SEPARABILITY.
In case any provision in this Trust Agreement or in the Trust
Securities Certificates shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 1004. GOVERNING LAW.
THIS TRUST AGREEMENT 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 THE
PRINCIPLES OF CONFLICT OF LAWS OF THE STATE OF DELAWARE OR ANY OTHER
JURISDICTION THAT WOULD CALL FOR THE APPLICATION OF THE LAW OF ANY JURISDICTION
OTHER THAN THE STATE OF DELAWARE; PROVIDED, HOWEVER, THAT THERE SHALL NOT BE
APPLICABLE TO THE PARTIES HEREUNDER OR THIS TRUST AGREEMENT ANY PROVISION OF THE
LAWS (STATUTORY OR COMMON) OF THE STATE OF DELAWARE PERTAINING TO TRUSTS THAT
RELATE TO OR REGULAR, IN A MANNER INCONSISTENT WITH THE TERMS HEREOF (A) THE
FILING WITH ANY COURT OR GOVERNMENTAL BODY OR AGENCY OF TRUSTEE ACCOUNTS OR
SCHEDULES OF TRUSTEE FEES AND CHARGES (B) AFFIRMATIVE REQUIREMENTS TO POST BONDS
FOR TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A TRUST, (C) THE NECESSITY FOR
OBTAINING COURT OR OTHER GOVERNMENTAL APPROVAL CONCERNING THE ACQUISITION,
HOLDING OR DISPOSITION OF REAL OR PERSONAL PROPERTY, (D) FEES OR OTHER SUMS
PAYABLE TO TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A TRUST, (E) THE
ALLOCATION OF RECEIPTS AND EXPENDITURES TO INCOME OR PRINCIPAL, (F) RESTRICTIONS
OR LIMITATIONS ON THE PERMISSIBLE NATURE, AMOUNT OR CONCENTRATION OF TRUST
INVESTMENTS OR REQUIREMENTS RELATING TO THE TITLING, STORAGE OR OTHER MANNER OF
HOLDING OR INVESTING TRUST ASSETS OR (G) THE ESTABLISHMENT OF FIDUCIARY OR OTHER
STANDARDS OF RESPONSIBILITY OR LIMITATIONS ON THE ACTS OR POWERS OF TRUSTEES
THAT ARE INCONSISTENT WITH THE LIMITATIONS OR LIABILITIES OR AUTHORITIES AND
POWERS OF THE TRUSTEES HEREUNDER AS SET FORTH OR REFERENCED IN THIS TRUST
AGREEMENT. SECTION 3540 OF TITLE 12 OF THE DELAWARE CODE SHALL NOT APPLY TO THE
TRUST.
SECTION 1005. PAYMENTS DUE ON NON-BUSINESS DAY.
If the date fixed for any payment on any Trust Security shall be a day
that is not a Business Day, then such payment need not be made on such date but
may be made on the next succeeding day which is a Business Day, with the same
force and effect as though made on the date fixed for such payment, and no
distribution shall accumulate thereon for the period after such date.
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SECTION 1006. SUCCESSORS.
This Trust Agreement shall be binding upon and shall inure to the
benefit of any successor to the Depositor, the Trust or the Relevant Trustee(s),
including any successor by operation of law. Except in connection with a
consolidation, merger or sale involving the Depositor that is permitted under
Article XII of the Indenture and pursuant to which the assignee agrees in
writing to perform the Depositor's obligations hereunder, the Depositor shall
not assign its obligations hereunder.
SECTION 1007. HEADINGS.
The Article and Section headings are for convenience only and shall not
affect the construction of this Trust Agreement.
SECTION 1008. REPORTS, NOTICES AND DEMANDS.
Any report, notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be given or served
to or upon any Securityholder or the Depositor may be given or served in writing
by deposit thereof, first-class postage prepaid, in the United States mail, hand
delivery or facsimile transmission, in each case, addressed, (a) in the case of
a Preferred Securityholder, to such Preferred Securityholder as such
Securityholder's name and address may appear on the Securities Register; and (b)
in the case of the Common Securityholder or the Depositor, to Century Bancorp,
Inc., 400 Mystic Avenue, Medford, Massachusetts 02155, Attention: Chief
Financial Officer, facsimile no.: 781-393-4071. Any notice to Preferred
Securityholders shall also be given to such owners as have, within two years
preceding the giving of such notice, filed their names and addresses with the
Property Trustee for that purpose. Such notice, demand or other communication to
or upon a Securityholder shall be deemed to have been sufficiently given or
made, for all purposes, upon hand delivery, mailing or transmission.
Any notice, demand or other communication which by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
the Trust, the Property Trustee or the Administrative Trustees shall be given in
writing addressed (until another address is published by the Trust) as follows:
(a) with respect to the Property Trustee to State Street Bank and Trust Company,
Two International Place, 4th Floor, Boston, Massachusetts 02110, Attention:
Corporate Trust Department; (b) with respect to the Delaware Trustee, to
Wilmington Trust Company, Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890-0001, Attention: Corporate Trust Administration; and
(c) with respect to the Administrative Trustees, to them at the address above
for notices to the Depositor, marked "Attention: Administrative Trustees of
Century Bancorp Capital Trust." Such notice, demand or other communication to or
upon the Trust or the Property Trustee shall be deemed to have been sufficiently
given or made only upon actual receipt of the writing by the Trust or the
Property Trustee.
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SECTION 1009. AGREEMENT NOT TO PETITION.
Each of the Trustees and the Depositor agrees for the benefit of the
Securityholders that, until at least one year and 1 day after the Trust has been
terminated in accordance with Article IX, they shall not file, or join in the
filing of, a petition against the Trust under any bankruptcy, insolvency,
reorganization or other similar law (including, without limitation, the United
States Bankruptcy Code of 1978, as amended) (collectively, "Bankruptcy Laws") or
otherwise join in the commencement of any proceeding against the Trust under any
Bankruptcy Law. In the event the Depositor takes action in violation of this
Section 1009, the Property Trustee agrees, for the benefit of Securityholders,
that at the expense of the Depositor (which expense shall be paid prior to the
filing), it shall file an answer with the bankruptcy court or otherwise properly
contest the filing of such petition by the Depositor against the Trust or the
commencement of such action and raise the defense that the Depositor has agreed
in writing not to take such action and should be stopped and precluded
therefrom. The provisions of this Section 1009 shall survive the termination of
this Trust Agreement.
SECTION 1010. TRUST INDENTURE ACT; CONFLICT WITH TRUST
INDENTURE ACT.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Agreement and shall, to
the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a trustee
for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Trust Agreement by any
of the provisions of the Trust Indenture Act, such required provision shall
control. If any provision of this Trust Agreement modifies or excludes any
provision of the Trust Indenture Act which may be so modified or excluded, the
latter provision shall be deemed to apply to this Trust Agreement as so modified
or to be excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Trust Agreement
shall not affect the nature of the Trust Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
SECTION 1011. ACCEPTANCE OF TERMS OF TRUST AGREEMENT,
GUARANTEE AND INDENTURE.
The receipt and acceptance of a Trust Security or any interest therein
by or on behalf of a Securityholder or any beneficial owner, without any
signature or further manifestation of assent, shall constitute the unconditional
acceptance by the Securityholder and all others having a beneficial interest in
such Trust Security of all the terms and provisions of this Trust Agreement
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and agreement to the subordination provisions and other terms of the Guarantee
and the Indenture, and shall constitute the agreement of the Trust, such
Securityholder and such others that the terms and provisions of this trust
agreement shall be binding, operative and effective as between the Trust and
such Securityholder and such others.
CENTURY BANCORP, INC.
By:___________________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY,
as Property Trustee
By:____________________________________
Name:
Title:
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By:_____________________________________
Name:
Title:
______________________, as Administrative Trustee
Marshall M. Sloane
______________________, as Administrative Trustee
Jonathan G. Sloane
______________________, as Administrative Trustee
Paul V. Cusick, Jr.
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Exhibit A
CERTIFICATE OF TRUST
OF
CENTURY BANCORP CAPITAL TRUST
THIS CERTIFICATE OF TRUST OF CENTURY BANCORP CAPITAL TRUST (the
"Trust"), dated as of April 21, 1998, is being duly executed and filed by
WILMINGTON TRUST COMPANY, a Delaware banking corporation, Marshall M. Sloane,
Jonathan G. Sloane and Paul V. Cusick, Jr., each an individual, as trustees, to
form a business trust under the Delaware Business Trust Act (12 Del. C. Section
3801 et seq.).
1. NAME. The name of the business trust formed hereby is Century
Bancorp Capital Trust.
2. DELAWARE TRUSTEE. The name and business address of the trustee of
the Trust in the State of Delaware is Wilmington Trust Company, Rodney Square
North, 1100 North Market Street, Wilmington, Delaware 19890-0001, Attention:
Corporate Trust Administration.
3. EFFECTIVE DATE. This Certificate of Trust shall be effective on
April 21, 1998.
IN WITNESS WHEREOF, the undersigned, being the sole trustees of the
Trust, has executed this Certificate of Trust as of the date first above
written.
WILMINGTON TRUST COMPANY, as trustee
By:_________________________________
Name:
Title:
/s/Marshall M. Sloane , as Trustee
_______________________________
Marshall M. Sloane
/s/Jonathan G. Sloane , as Trustee
_______________________________
Jonathan G. Sloane
/s/Paul V. Cusick, Jr. , as Trustee
_______________________________
Paul V. Cusick, Jr.
<PAGE> 60
Exhibit B
THIS CERTIFICATE IS NOT TRANSFERABLE
CERTIFICATE NUMBER ________. NUMBER OF COMMON SECURITIES
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
CENTURY BANCORP CAPITAL TRUST
(LIQUIDATION AMOUNT $10 PER COMMON SECURITY)
COMMON SECURITIES
CENTURY BANCORP CAPITAL TRUST , a statutory business trust created
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 and designated the ___% Common Securities
(liquidation amount $10 per Common Security) (the "Common Securities"). In
accordance with Section 510 of the Trust Agreement (as defined below), the
Common Securities are not transferable and any attempted transfer hereof shall
be void. The designations, rights, privileges, restrictions, preferences, and
other terms and provisions of the Common Securities are set forth in, and this
certificate and the Common Securities represented hereby are issued and shall in
all respects be subject to the terms and provisions of, the Amended and Restated
Trust Agreement of the Trust dated as of _______________, 1998, as the same may
be amended from time to time (the "Trust Agreement"), including the designation
of the terms of the Common Securities as set forth therein. The Trust shall
furnish a copy of the Trust Agreement to the Holder without charge upon written
request to the Trust at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this _____ day of __________, 1998.
CENTURY BANCORP CAPITAL TRUST
By:____________________________________
Administrative Trustee
<PAGE> 61
Exhibit C
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT AS TO EXPENSES AND LIABILITIES (this "Agreement") dated as of
_____________, 1998, between Century Bancorp, Inc., a Massachusetts corporation
(the "Company"), and Century Bancorp Capital Trust, a Delaware business trust
(the "Trust").
RECITALS
WHEREAS, the Trust intends to issue its common securities (the "Common
Securities") to, and receive Debentures from, the Company and to issue and sell
2,500,000 __% Cumulative Trust Preferred Securities (the "Preferred Securities")
with such powers, preferences and special rights and restrictions as are set
forth in the Amended and Restated Trust Agreement of the Trust dated as of May
___, 1998, as the same may be amended from time to time (the "Trust Agreement");
WHEREAS, the Company shall directly or indirectly own all of the Common
Securities of the Trust and shall issue the Debentures;
NOW, THEREFORE, in consideration of the purchase by each holder of the
Preferred Securities, which purchase the Company hereby agrees shall benefit the
Company and which purchase the Company acknowledges shall be made in reliance
upon the execution and delivery of this Agreement, the Company, including in its
capacity as holder of the Common Securities, and the Trust hereby agree as
follows:
ARTICLE I
SECTION 1.1. GUARANTEE BY THE COMPANY.
Subject to the terms and conditions hereof, the Company, including in
its capacity as holder of the Common Securities, hereby irrevocably and
unconditionally guarantees to each person or entity to whom the Trust is now or
hereafter becomes indebted or liable (the "Beneficiaries") the full payment when
and as due, of any and all Obligations (as hereinafter defined) to such
Beneficiaries. As used herein, "Obligations" means any costs, expenses or
liabilities of the Trust other than obligations of the Trust to pay to holders
of any Preferred Securities or other similar interests in the Trust the amounts
due such holders pursuant to the terms of the Preferred Securities or such other
similar interests, as the case may be. This Agreement is intended to be for the
benefit of, and to be enforceable by, all such Beneficiaries, whether or not
such Beneficiaries have received notice hereof.
SECTION 1.2. TERM OF AGREEMENT.
This Agreement shall terminate and be of no further force and effect
upon the later of (a) the date on which full payment has been made of all
amounts payable to all holders of all the Preferred Securities (whether upon
redemption, liquidation, exchange or otherwise); and (b) the date on which there
are no Beneficiaries remaining; provided, however, that this Agreement shall
<PAGE> 62
continue to be effective or shall be reinstated, as the case may be, if at any
time any holder of Preferred Securities or any Beneficiary must restore payment
of any sums paid under the Preferred Securities, under any obligation, under the
Preferred Securities Guarantee Agreement dated the date hereof by the Company
and State Street Bank and Trust Company as guarantee trustee, or under this
Agreement for any reason whatsoever. This Agreement is continuing, irrevocable,
unconditional and absolute.
SECTION 1.3. WAIVER OF NOTICE.
The Company hereby waives notice of acceptance of this Agreement and of
any obligation to which it applies or may apply, and the Company hereby waives
presentment, demand for payment, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
SECTION 1.4. NO IMPAIRMENT.
The obligations, covenants, agreements and duties of the Company under
this Agreement shall in no way be affected or impaired by reason of the
happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all or any
portion of the obligations or for the performance of any other obligation under,
arising out of, or in connection with, the obligations;
(b) any failure, omission, delay or lack of diligence on the part of
the Beneficiaries to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Beneficiaries with respect to the obligations or any
action on the part of the Trust granting indulgence or extension of any kind; or
(c) 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 Trust or any of the assets of the
Trust.
There shall be no obligation of the Beneficiaries to give notice to, or
obtain the consent of, the Company with respect to the happening of any of the
foregoing.
SECTION 1.5. ENFORCEMENT.
A Beneficiary may enforce this Agreement directly against the Company,
and the Company waives any right or remedy to require that any action be brought
against the Trust or any other person or entity before proceeding against the
Company.
<PAGE> 63
ARTICLE II
SECTION 2.1. BINDING EFFECT.
All guarantees and agreements contained in this Agreement shall bind
the successors, assigns, receivers, trustees and representatives of the Company
and shall inure to the benefit of the Beneficiaries.
SECTION 2.2. AMENDMENT.
So long as there remains any Beneficiary or any Preferred Securities of
any series are outstanding, this Agreement shall not be modified or amended in
any manner adverse to such Beneficiary or to the holders of the Preferred
Securities.
SECTION 2.3. NOTICES.
Any notice, request or other communication required or permitted to be
given hereunder shall be given in writing by delivering the same by facsimile
transmission (confirmed by mail), telex, or by registered or certified mail,
addressed as follows (and if so given, shall be deemed given when mailed or upon
receipt of an answer back, if sent by telex):
Century Bancorp, Inc., 400 Mystic Avenue, Medford, Massachusetts 02155,
facsimile no. (781)393-4071, Attention: Chief Financial Officer.
Century Bancorp Capital Trust, c/o Century Bancorp, Inc., 400 Mystic
Avenue, Medford, Massachusetts 02155, facsimile no. (781) 393-4071, Attention:
Chief Financial Officer.
SECTION 2.4 This agreement shall be governed by and construed and
interpreted in accordance with the laws of The Commonwealth of Massachusetts
(without regard to conflict of laws principles).
THIS AGREEMENT is executed as of the day and year first above written.
CENTURY BANCORP, INC.
By:____________________________________
Name:
Title:
CENTURY BANCORP CAPITAL TRUST
By:_____________________________________
Name:
Title: Administrative Trustee
<PAGE> 64
Exhibit D
Certificate Number Number of Preferred Securities
P-
Certificate Evidencing Preferred Securities
of
Century Bancorp Capital Trust
___% Cumulative Trust Preferred Securities
(liquidation amount $10 per Preferred Security)
Century Bancorp Capital Trust, a statutory business trust created 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 and designated the __________% Cumulative Trust Preferred
Securities (liquidation amount $10 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 as provided in Section
504 of the Trust Agreement. The designations, rights, privileges, restrictions,
preferences, and other terms and provisions of the Preferred Securities are set
forth in, and this certificate and the Preferred Securities represented hereby
are issued and shall in all respects be subject to the terms and provisions of,
the Amended and Restated Trust Agreement of the Trust dated as of April ___,
1998, as the same may be amended from time to time (the "Trust Agreement"),
including the designation of the terms of Preferred Securities as set forth
therein. The Holder is entitled to the benefits of the Preferred Securities
Guarantee Agreement entered into by Century Bancorp, Inc., a Massachusetts
corporation, and State Street Bank and Trust Company, as guarantee trustee,
dated as of _______________, 1998 (the "Guarantee"), to the extent provided
therein. The Trust shall furnish a copy of the Trust Agreement and the Guarantee
to the Holder without charge upon written request to the Trust at its principal
place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this _____day of _______________, 1998.
CENTURY BANCORP CAPITAL TRUST
By:_______________________________
Name:
Title:
<PAGE> 65
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
This is one of the _____% Cumulative Trust Preferred Securities
described in the within-mentioned Amended and Restated Trust Agreement.
Dated:____________________________
STATE STREET BANK AND TRUST COMPANY,
as Authentication Agent and Registrar
By_______________________________
Authorized Signatory
By______________________________
Administrative Trustee
<PAGE> 1
Exhibit 8.1
[Date], 1998
Century Bancorp, Inc.
400 Mystic Avenue
Medford, Massachusetts 02155
Century Bancorp Capital Trust
c/o Century Bancorp, Inc.
400 Mystic Avenue
Medford, Massachusetts 02155
Re: Century Bancorp Capital Trust
-----------------------------
Ladies and Gentlemen:
We have acted as counsel to Century Bancorp, Inc., a Massachusetts
corporation (the "Company"), and to Century Bancorp Capital Trust, a statutory
business trust created under the laws of Delaware (the "Trust"), in connection
with the proposed issuance of (i) Preferred Securities (the "Preferred
Securities") of the Trust pursuant to the terms of the Amended and Restated
Trust Agreement (the "Trust Agreement") among the Company, as Depositor, State
Street Bank and Trust Company, as Property Trustee, Wilmington Trust Company, as
Delaware Trustee, and the Administrative Trustees, to be offered in an
underwritten public offering, and (ii) Junior Subordinated Debentures (the
"Debentures") of the Company pursuant to the terms of an indenture from the
Company to State Street Bank and Trust Company, as Trustee (the "Indenture"), to
be sold by the Company to the Trust. The Preferred Securities and the Debentures
are to be issued as contemplated by the registration statement on Form S-2 (the
"Registration Statement") to be filed by the Company and the Trust to register
the issuance of the Preferred Securities and the Debentures under the Securities
Act of 1933, as amended. You have requested our opinion on certain federal
income tax matters relating to the Preferred Securities.
In preparing this opinion, we have examined and relied on (i) the
Registration Statement, (ii) the Form of Indenture attached as an exhibit to the
Registration Statement, (iii) the Form of Debenture included as an exhibit to
the Form of Indenture, (iv) the Form of Trust Agreement attached as an exhibit
to the Registration Statement, (v) the Form of Preferred Security
<PAGE> 2
Century Bancorp, Inc.
Century Bancorp Capital Trust
___________1998
Page 2
Certificate included as an exhibit to the Form of Trust Agreement, and (vi) the
Form of Guarantee attached as an exhibit to the Registration Statement, and such
other documents and instruments (collectively, the "Documents"), and we have
made such investigations of law, as we have deemed appropriate as a basis for
the opinion expressed below.
Based on the foregoing, and assuming (i) the final Documents will be
substantially identical to the forms attached as exhibits to the Registration
Statement and (ii) full compliance with all terms of the final Documents, we are
of the opinion that the discussion set forth under the caption "Certain Federal
Income Tax Consequences" in the preliminary prospectus constituting part of the
Registration Statement constitutes, in all material respects, a fair and
accurate summary of the United States federal income tax consequences of the
purchase, ownership and disposition of Preferred Securities, based upon current
law. The opinion rendered above is not binding on the Internal Revenue Service
or a court of law, and no assurance can be given that legislative or
administrative action or judicial decisions that differ from the opinion
rendered above will not be forthcoming. We note that there is no authority
directly on point dealing with securities such as the Preferred Securities. We
express no opinion as to the federal income tax consequences other than those
described, if any, or as to any state, local or foreign income or other tax
consequences of the purchase, ownership and disposition of the Preferred
Securities.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. We also consent to the reference to Foley, Hoag & Eliot
LLP under the captions "Certain Federal Income Tax Consequences" and "Legal
Matters" in the Registration Statement. In giving this consent, we do not admit
that we are in the category of persons whose consent is required by Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations promulgated
there under by the Securities and Exchange Commission.
Very truly yours,
FOLEY, HOAG & ELIOT LLP
By: _____________________________________
A Partner
