EXHIBIT 4.7
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CAPITAL SECURITIES GUARANTEE AGREEMENT
BankBoston Corporation
Dated as of ______, 1997
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation . . . . . . 2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application . . . . . 6
SECTION 2.2 Lists of Holders of Securities . . . . . . 6
SECTION 2.3 Reports by the Capital Securities Guaran-
tee Trustee . . . . . . . . . . . . . . . 6
SECTION 2.4 Periodic Reports to Capital Securities
Guarantee Trustee . . . . . . . . . . . . 7
SECTION 2.5 Evidence of Compliance with Conditions
Precedent . . . . . . . . . . . . . . . . 7
SECTION 2.6 Events of Default; Waiver . . . . . . . . 7
SECTION 2.7 Event of Default; Notice . . . . . . . . . 7
SECTION 2.8 Conflicting Interests . . . . . . . . . . 8
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Capital Securi-
ties Guarantee Trustee . . . . . . . . . . 8
SECTION 3.2 Certain Rights of Capital Securities
Guarantee Trustee . . . . . . . . . . . . 10
SECTION 3.3. Not Responsible for Recitals or Issuance
of Capital Securities Guarantee . . . . . 13
ARTICLE IV
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Capital Securities Guarantee Trustee;
Eligibility . . . . . . . . . . . . . . . 13
SECTION 4.2 Appointment, Removal and Resignation of
Capital Securities Guarantee Trustee . . . 14
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee . . . . . . . . . . . . . . . . 15
SECTION 5.2 Waiver of Notice and Demand . . . . . . . 15
SECTION 5.3 Obligations Not Affected . . . . . . . . . 15
SECTION 5.4 Rights of Holders . . . . . . . . . . . . 16
SECTION 5.5 Guarantee of Payment . . . . . . . . . . . 17
Page
SECTION 5.6 Subrogation . . . . . . . . . . . . . . . 17
SECTION 5.7 Independent Obligations . . . . . . . . . 17
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions . . . . . . . . 17
SECTION 6.2 Ranking . . . . . . . . . . . . . . . . . 18
ARTICLE VII
TERMINATION
SECTION 7.1 Termination . . . . . . . . . . . . . . . 19
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation . . . . . . . . . . . . . . . 19
SECTION 8.2 Indemnification . . . . . . . . . . . . . 19
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns . . . . . . . . . . 20
SECTION 9.2 Amendments . . . . . . . . . . . . . . . . 20
SECTION 9.3 Notices . . . . . . . . . . . . . . . . . 20
SECTION 9.4 Benefit . . . . . . . . . . . . . . . . . 21
SECTION 9.5 Governing Law . . . . . . . . . . . . . . 22
ii
CAPITAL SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Capital Securities
Guarantee"), dated as of ______, 1997, is executed and delivered
by BankBoston Corporation, a Massachusetts corporation (the
"Guarantor"), and The Bank of New York, a New York banking
corporation, as trustee (the "Capital Securities Guarantee
Trustee"), for the benefit of the Holders (as defined herein)
from time to time of the Capital Securities (as defined herein)
of BankBoston Capital Trust III, a statutory business trust
formed under the laws of the State of Delaware (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declara-
tion of Trust (the "Declaration"), dated as of ______, 1997,
among the trustees of the Issuer, the Guarantor, as sponsor, and
the holders from time to time of undivided beneficial interests
in the assets of the Issuer, the Issuer is issuing on the date
hereof 250,000 capital securities, having an aggregate liquida-
tion amount of $250,000,000, such capital securities being
designated the Floating Rate Capital Securities (collectively,
the "Capital Securities").
WHEREAS, as incentive for the Holders to purchase the
Capital Securities, the Guarantor desires irrevocably and uncon-
ditionally to agree, to the extent set forth in this Capital
Securities Guarantee, to pay to the Holders of the Capital
Securities the Guarantee Payments (as defined below). The
Guarantor agrees to make certain other payments on the terms and
conditions set forth herein.
WHEREAS, the Guarantor is executing and delivering a
guarantee agreement (the "Common Securities Guarantee"), with
substantially identical terms to this Capital Securities Guaran-
tee, for the benefit of the holders of the Common Securities (as
defined herein), except that if an Event of Default (as defined
in the Declaration) has occurred and is continuing, the rights of
holders of the Common Securities to receive Guarantee Payments
under the Common Securities Guarantee are subordinated, to the
extent and in the manner set forth in the Common Securities
Guarantee, to the rights of holders of Capital Securities to
receive Guarantee Payments under this Capital Securities Guaran-
tee.
NOW, THEREFORE, in consideration of the purchase by
each Holder of Capital Securities, which purchase the Guarantor
hereby acknowledges shall benefit the Guarantor, the Guarantor
executes and delivers this Capital Securities Guarantee for the
benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
In this Capital Securities Guarantee, unless the
context otherwise requires:
(a) Capitalized terms used in this Capital Securities
Guarantee but not defined in the preamble above
have the respective meanings assigned to them in
this Section 1.1;
(b) Terms defined in the Declaration as at the date of
execution of this Capital Securities Guarantee
have the same meaning when used in this Capital
Securities Guarantee unless otherwise defined in
this Capital Securities Guarantee;
(c) a term defined anywhere in this Capital Securities
Guarantee has the same meaning throughout;
(d) all references to "the Capital Securities Guaran-
tee" or "this Capital Securities Guarantee" are to
this Capital Securities Guarantee as modified,
supplemented or amended from time to time;
(e) all references in this Capital Securities Guaran-
tee to Articles and Sections are to Articles and
Sections of this Capital Securities Guarantee,
unless otherwise specified;
(f) a term defined in the Trust Indenture Act has the
same meaning when used in this Capital Securities
Guarantee, unless otherwise defined in this Capi-
tal Securities Guarantee or unless the context
otherwise requires; and
(g) a reference to the singular includes the plural
and vice versa.
"Affiliate" has the same meaning as given to that term
in Rule 405 under the Securities Act of 1933, as amended, or any
successor rule thereunder.
"Business Day" means any day other than a Saturday or a
Sunday, or a day on which banking institutions in The City of New
York or Boston, Massachusetts are authorized or required by law
or executive order to close.
"Capital Securities Guarantee Trustee" means The Bank
of New York, a New York banking corporation, until a Successor
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Capital Securities Guarantee Trustee has been appointed and has
accepted such appointment pursuant to the terms of this Capital
Securities Guarantee and thereafter means each such Successor
Capital Securities Guarantee Trustee.
"Common Securities" means the securities representing
common undivided beneficial interests in the assets of the
Issuer.
"Corporate Trust Office" means the office of the
Capital Securities Guarantee Trustee at which the corporate trust
business of the Capital Securities Guarantee Trustee shall, at
any particular time, be principally administered, which office at
the date of execution of this Agreement is located at 000 Xxxxxxx
Xxxxxx, 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Covered Person" means any Holder or beneficial owner
of Capital Securities.
"Debentures" means the series of junior subordinated
debt securities of the Guarantor designated the Floating Rate
Junior Subordinated Deferrable Interest Debentures due ______,
2027 held by the Property Trustee (as defined in the Declaration)
of the Issuer.
"Event of Default" means a default by the Guarantor on
any of its payment or other obligations under this Capital
Securities Guarantee.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Capital
Securities, to the extent not paid or made by the Issuer: (i)
any accumulated and unpaid Distributions (as defined in the
Declaration) that are required to be paid on such Capital Securi-
ties, to the extent the Issuer has funds on hand legally avail-
able therefor at such time, (ii) the redemption price, including
all accumulated and unpaid Distributions to the date of redemp-
tion (the "Redemption Price"), to the extent the Issuer has funds
on hand legally available therefor at such time, with respect to
any Capital Securities called for redemption by the Issuer, and
(iii) upon a voluntary or involuntary termination and liquidation
of the Issuer (other than in connection with the distribution of
Debentures to the Holders in exchange for Capital Securities as
provided in the Declaration), the lesser of (a) the aggregate of
the liquidation amount and all accumulated and unpaid Distribu-
tions on the Capital Securities to the date of payment, to the
extent the Issuer has funds on hand legally available therefor at
such time, and (b) the amount of assets of the Issuer remaining
available for distribution to Holders in liquidation of the
Issuer (in either case, the "Liquidation Distribution"). If an
Event of Default has occurred and is continuing, no Guarantee
Payments under the Common Securities Guarantee with respect to
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the Common Securities or any guarantee payment under any Other
Common Securities Guarantees shall be made until the Holders of
Capital Securities shall be paid in full the Guarantee Payments
to which they are entitled under this Capital Securities Guaran-
tee.
"Holder" shall mean any holder, as registered on the
books and records of the Issuer, of any Capital Securities;
provided, however, that, in determining whether the holders of
the requisite percentage of Capital Securities have given any
request, notice, consent or waiver hereunder, "Holder" shall not
include the Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Capital Securities
Guarantee Trustee, any Affiliate of the Capital Securities
Guarantee Trustee, or any officers, directors, shareholders,
members, partners, employees, representatives, nominees, custodi-
ans or agents of the Capital Securities Guarantee Trustee.
"Indenture" means the Indenture dated as of ______,
1997, among the Guarantor (the "Debenture Issuer") and The Bank
of New York, as trustee, pursuant to which the Debentures are to
be issued to the Property Trustee of the Issuer.
"Majority in liquidation amount of the Capital Securi-
ties" means, except as provided by the Trust Indenture Act, a
vote by Holder(s) of Capital Securities, voting separately as a
class, of more than 50% of the aggregate liquidation amount
(including the amount payable on redemption, liquidation or
otherwise, plus accumulated and unpaid Distributions to the date
upon which the voting percentages are determined) of all Capital
Securities.
"Officers' Certificate" means, with respect to any
person, a certificate signed by the Chairman, a Vice Chairman,
the Chief Executive Officer, the President, a Vice President, the
Comptroller, the Executive Director, Global Treasury, the Clerk
or an Assistant Clerk, the Secretary or an Assistant Secretary of
the Guarantor. Any Officers' Certificate delivered with respect
to compliance with a condition or covenant provided for in this
Capital Securities Guarantee shall include:
(a) a statement that each officer signing the
Officers' Certificate has read the covenant or condition and
the definitions relating thereto;
(b) a statement that each such officer has made such
examination or investigation as, in such officer's opinion,
is necessary to enable such officer to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and
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(c) a statement as to whether, in the opinion of each
such officer, such condition or covenant has been complied
with.
"Other Common Securities Guarantees" shall have the
same meaning as "Other Guarantees" in the Common Securities
Guarantee.
"Other Debentures" means all junior subordinated
debentures issued by the Guarantor from time to time and sold to
trusts established by the Guarantor, in each case similar to the
Issuer.
"Other Guarantees" means all guarantees issued by the
Guarantor with respect to capital securities similar to the
Capital Securities issued by other trusts established by the
Guarantor, in each case similar to the Issuer.
"Person" means a legal person, including any individu-
al, corporation, estate, partnership, joint venture, association,
joint stock company, limited liability company, trust, unincorpo-
rated association, or government or any agency or political
subdivision thereof, or any other entity of whatever nature.
"Responsible Officer" means, with respect to the
Capital Securities Guarantee Trustee, any officer within the
Corporate Trust Office of the Capital Securities Guarantee
Trustee, including any vice president, any assistant vice presi-
dent, any assistant secretary, any assistant treasurer or other
officer of the Corporate Trust Office of the Capital Securities
Guarantee Trustee customarily performing functions similar to
those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of that
officer's knowledge of and familiarity with the particular
subject.
"Successor Capital Securities Guarantee Trustee" means
a successor Capital Securities Guarantee Trustee possessing the
qualifications to act as Capital Securities Guarantee Trustee
under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of
1939, as amended.
"Trust Securities" means the Common Securities and the
Capital Securities, collectively.
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ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application
(a) This Capital Securities Guarantee is subject to
the provisions of the Trust Indenture Act that are required to be
part of this Capital Securities Guarantee and shall, to the
extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this
Capital Securities Guarantee limits, qualifies or conflicts with
the duties imposed by Section 310 to 317, inclusive, of the Trust
Indenture Act, such imposed duties shall control.
SECTION 2.2 Lists of Holders of Securities
(a) The Guarantor shall provide the Capital Securities
Guarantee Trustee (unless the Capital Securities Guarantee
Trustee is otherwise the registrar of the Capital Securities)
with a list, in such form as the Capital Securities Guarantee
Trustee may reasonably require, of the names and addresses of the
Holders of the Capital Securities ("List of Holders"), (i) within
one Business Day after November 15 and May 15 of each year, and
(ii) at any other time within 30 days of receipt by the Guarantor
of a written request for a List of Holders as of a date no more
than 14 days before such List of Holders is given to the Capital
Securities Guarantee Trustee, provided that the Guarantor shall
not be obligated to provide such List of Holders at any time the
List of Holders does not differ from the most recent List of
Holders given to the Capital Securities Guarantee Trustee by the
Guarantor. The Capital Securities Guarantee Trustee may destroy
any List of Holders previously given to it on receipt of a new
List of Holders.
(b) The Capital Securities Guarantee Trustee shall
comply with its obligations under Sections 311(a), 311(b) and
Section 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Capital Securities Guarantee Trustee
Within 60 days after December 15 of each year, commenc-
ing December 15, 1997, the Capital Securities Guarantee Trustee
shall provide to the Holders of the Capital Securities such
reports as are required by Section 313 of the Trust Indenture
Act, if any, in the form and in the manner provided by Section
313 of the Trust Indenture Act. The Capital Securities Guarantee
Trustee shall also comply with the requirements of Section 313(d)
of the Trust Indenture Act.
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SECTION 2.4 Periodic Reports to Capital Securities Guarantee
Trustee
The Guarantor shall provide to the Capital Securities
Guarantee Trustee such documents, reports and information as
required by Section 314 (if any) of the Trust Indenture Act and
the compliance certificate required by Section 314 of the Trust
Indenture Act in the form, in the manner and at the times re-
quired by Section 314 of the Trust Indenture Act. Delivery of
such reports, information and documents to the Capital Securities
Guarantee Trustee is for informational purposes only and the
Capital Securities Guarantee Trustee's receipt of such shall not
constitute constructive notice of any information contained
therein or determinable from information contained therein,
including the Guarantor's compliance with any of its covenants
hereunder (as to which the Capital Securities Guarantee Trustee
is entitled to rely exclusively on Officers' Certificates).
SECTION 2.5 Evidence of Compliance with Conditions Precedent
The Guarantor shall provide to the Capital Securities
Guarantee Trustee such evidence of compliance with any conditions
precedent, if any, provided for in this Capital Securities
Guarantee that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion
required to be given by an officer pursuant to Section 314(c)(1)
may be given in the form of an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver
The Holders of a Majority in liquidation amount of
Capital Securities may, by vote, on behalf of the Holders of all
of the Capital Securities, waive any past Event of Default and
its consequences. Upon such waiver, any such Event of Default
shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured, for every purpose of this
Capital Securities Guarantee, but no such waiver shall extend to
any subsequent or other default or Event of Default or impair any
right consequent thereon.
SECTION 2.7 Event of Default; Notice
(a) The Capital Securities Guarantee Trustee shall,
within 90 days after the occurrence of a default with respect to
this Capital Securities Guarantee, mail by first class postage
prepaid, to all Holders of the Capital Securities, notices of all
defaults actually known to a Responsible Officer of the Capital
Securities Guarantee Trustee, unless such defaults have been
cured before the giving of such notice, provided, that, except in
the case of default in the payment of any Guarantee Payment, the
Capital Securities Guarantee Trustee shall be protected in
withholding such notice if and so long as the board of directors,
7
the executive committee, or a trust committee of directors and/or
Responsible Officers of the Capital Securities Guarantee Trustee
in good faith determines that the withholding of such notice is
in the interests of the holders of the Capital Securities.
(b) The Capital Securities Guarantee Trustee shall not
be deemed to have knowledge of any Event of Default unless the
Capital Securities Guarantee Trustee shall have received written
notice, or a Responsible Officer of the Capital Securities
Guarantee Trustee charged with the administration of the Declara-
tion shall have obtained actual knowledge, of such Event of
Default.
SECTION 2.8 Conflicting Interests
The Declaration shall be deemed to be specifically
described in this Capital Securities Guarantee for the purposes
of clause (i) of the first proviso contained in Section 310(b) of
the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Capital Securities Guar-
xxxxx Trustee
(a) This Capital Securities Guarantee shall be held by
the Capital Securities Guarantee Trustee for the benefit of the
Holders of the Capital Securities, and the Capital Securities
Guarantee Trustee shall not transfer this Capital Securities
Guarantee to any Person except a Holder of Capital Securities
exercising his or her rights pursuant to Section 5.4(b) or to a
Successor Capital Securities Guarantee Trustee on acceptance by
such Successor Capital Securities Guarantee Trustee of its
appointment to act as Successor Capital Securities Guarantee
Trustee. The right, title and interest of the Capital Securities
Guarantee Trustee shall automatically vest in any Successor
Capital Securities Guarantee Trustee, and such vesting and
succession of title shall be effective whether or not conveyanc-
ing documents have been executed and delivered pursuant to the
appointment of such Successor Capital Securities Guarantee
Trustee.
(b) If an Event of Default actually known to a Respon-
sible Officer of the Capital Securities Guarantee Trustee has
occurred and is continuing, the Capital Securities Guarantee
Trustee shall enforce this Capital Securities Guarantee for the
benefit of the Holders of the Capital Securities.
8
(c) The Capital Securities Guarantee Trustee, before
the occurrence of any Event of Default and after the curing of
all Events of Default that may have occurred, shall undertake to
perform only such duties as are specifically set forth in this
Capital Securities Guarantee, and no implied covenants shall be
read into this Capital Securities Guarantee against the Capital
Securities Guarantee Trustee. In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section
2.6) and is actually known to a Responsible Officer of the
Capital Securities Guarantee Trustee, the Capital Securities
Guarantee Trustee shall exercise such of the rights and powers
vested in it by this Capital Securities Guarantee, and use the
same degree of care and skill in its exercise thereof, as a
prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(d) No provision of this Capital Securities Guarantee
shall be construed to relieve the Capital Securities Guarantee
Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except
that:
(i) prior to the occurrence of any Event of Default
and after the curing or waiving of all such Events of De-
fault that may have occurred:
(A) the duties and obligations of the Capital
Securities Guarantee Trustee shall be determined solely
by the express provisions of this Capital Securities
Guarantee, and the Capital Securities Guarantee Trustee
shall not be liable except for the performance of such
duties and obligations as are specifically set forth in
this Capital Securities Guarantee, and no implied
covenants or obligations shall be read into this Capi-
tal Securities Guarantee against the Capital Securities
Guarantee Trustee; and
(B) in the absence of bad faith on the part of
the Capital Securities Guarantee Trustee, the Capital
Securities Guarantee Trustee may conclusively rely, as
to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates
or opinions furnished to the Capital Securities Guaran-
tee Trustee and conforming to the requirements of this
Capital Securities Guarantee; but in the case of any
such certificates or opinions that by any provision
hereof are specifically required to be furnished to the
Capital Securities Guarantee Trustee, the Capital
Securities Guarantee Trustee shall be under a duty to
examine the same to determine whether or not they
conform to the requirements of this Capital Securities
Guarantee;
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(ii) the Capital Securities Guarantee Trustee shall not
be liable for any error of judgment made in good faith by a
Responsible Officer of the Capital Securities Guarantee
Trustee, unless it shall be proved that the Capital Securi-
ties Guarantee Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(iii) the Capital Securities Guarantee Trustee shall
not be liable with respect to any action taken or omitted to
be taken by it in good faith in accordance with the direc-
tion of the Holders of a Majority in liquidation amount of
the Capital Securities relating to the time, method and
place of conducting any proceeding for any remedy available
to the Capital Securities Guarantee Trustee, or exercising
any trust or power conferred upon the Capital Securities
Guarantee Trustee under this Capital Securities Guarantee;
and
(iv) no provision of this Capital Securities Guarantee
shall require the Capital Securities Guarantee Trustee to
expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties
or in the exercise of any of its rights or powers, if the
Capital Securities Guarantee Trustee shall have reasonable
grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of
this Capital Securities Guarantee or indemnity, reasonably
satisfactory to the Capital Securities Guarantee Trustee,
against such risk or liability is not reasonably assured to
it.
SECTION 3.2 Certain Rights of Capital Securities Guarantee
Trustee
(a) Subject to the provisions of Section 3.1:
(i) The Capital Securities Guarantee Trustee may
conclusively rely, and shall be fully protected in acting or
refraining from acting, upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed
by it to be genuine and to have been signed, sent or pre-
sented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplat-
ed by this Capital Securities Guarantee may be sufficiently
evidenced by an Officers' Certificate.
(iii) Whenever, in the administration of this Capital
Securities Guarantee, the Capital Securities Guarantee
Trustee shall deem it desirable that a matter be proved or
10
established before taking, suffering or omitting any action
hereunder, the Capital Securities Guarantee Trustee (unless
other evidence is herein specifically prescribed) may, in
the absence of bad faith on its part, request and conclu-
sively rely upon an Officers' Certificate which, upon re-
ceipt of such request, shall be promptly delivered by the
Guarantor.
(iv) The Capital Securities Guarantee Trustee shall
have no duty to see to any recording, filing or registration
of any instrument (or any rerecording, refiling or registra-
tion thereof).
(v) The Capital Securities Guarantee Trustee may
consult with counsel of its selection, and the advice or
opinion of such counsel with respect to legal matters shall
be full and complete authorization and protection in respect
of any action taken, suffered or omitted by it hereunder in
good faith and in accordance with such advice or opinion.
Such counsel may be counsel to the Guarantor or any of its
Affiliates and may include any of its employees. The Capi-
tal Securities Guarantee Trustee shall have the right at any
time to seek instructions concerning the administration of
this Capital Securities Guarantee from any court of compe-
tent jurisdiction.
(vi) The Capital Securities Guarantee Trustee shall be
under no obligation to exercise any of the rights or powers
vested in it by this Capital Securities Guarantee at the
request or direction of any Holder, unless such Holder shall
have provided to the Capital Securities Guarantee Trustee
such security and indemnity, reasonably satisfactory to the
Capital Securities Guarantee Trustee, against the costs,
expenses (including attorneys' fees and expenses and the
expenses of the Capital Securities Guarantee Trustee's
agents, nominees or custodians) and liabilities that might
be incurred by it in complying with such request or direc-
tion, including such reasonable advances as may be requested
by the Capital Securities Guarantee Trustee; provided that,
nothing contained in this Section 3.2(a)(vi) shall be taken
to relieve the Capital Securities Guarantee Trustee, upon
the occurrence of an Event of Default, of its obligation to
exercise the rights and powers vested in it by this Capital
Securities Guarantee.
(vii) The Capital Securities Guarantee Trustee shall
not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Capital
Securities Guarantee Trustee, in its discretion, may make
11
such further inquiry or investigation into such facts or
matters as it may see fit.
(viii) The Capital Securities Guarantee Trustee may
execute any of the trusts or powers hereunder or perform any
duties hereunder either directly or by or through agents,
nominees, custodians or attorneys, and the Capital Securi-
ties Guarantee Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attor-
ney appointed with due care by it hereunder.
(ix) Any action taken by the Capital Securities Guar-
xxxxx Trustee or its agents hereunder shall bind the Holders
of the Capital Securities, and the signature of the Capital
Securities Guarantee Trustee or its agents alone shall be
sufficient and effective to perform any such action. No
third party shall be required to inquire as to the authority
of the Capital Securities Guarantee Trustee to so act or as
to its compliance with any of the terms and provisions of
this Capital Securities Guarantee, both of which shall be
conclusively evidenced by the Capital Securities Guarantee
Trustee's or its agent's taking such action.
(x) Whenever in the administration of this Capital
Securities Guarantee the Capital Securities Guarantee Trust-
ee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other
action hereunder, the Capital Securities Guarantee Trustee
(i) may request instructions from the Holders of a Majority
in liquidation amount of the Capital Securities, (ii) may
refrain from enforcing such remedy or right or taking such
other action until such instructions are received, and (iii)
shall be protected in conclusively relying on or acting in
accordance with such instructions.
(xi) The Capital Securities Guarantee Trustee shall
not be liable for any action taken, suffered, or omitted to
be taken by it in good faith, without negligence, and rea-
sonably believed by it to be authorized or within the dis-
cretion or rights or powers conferred upon it by this Capi-
tal Securities Guarantee.
(b) No provision of this Capital Securities Guarantee
shall be deemed to impose any duty or obligation on the Capital
Securities Guarantee Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or
imposed on it in any jurisdiction in which it shall be illegal,
or in which the Capital Securities Guarantee Trustee shall be
unqualified or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such right,
power, duty or obligation. No permissive power or authority
available to the
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Capital Securities Guarantee Trustee shall be construed to be a
duty.
SECTION 3.3. Not Responsible for Recitals or Issuance of Capi-
tal Securities Guarantee
The recitals contained in this Capital Securities
Guarantee shall be taken as the statements of the Guarantor, and
the Capital Securities Guarantee Trustee does not assume any
responsibility for their correctness. The Capital Securities
Guarantee Trustee makes no representation as to the validity or
sufficiency of this Capital Securities Guarantee.
ARTICLE IV
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Capital Securities Guarantee Trustee; Eligibility
(a) There shall at all times be a Capital Securities
Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business
under the laws of the United States of America or any State
or Territory thereof or of the District of Columbia, or a
corporation or Person permitted by the Securities and Ex-
change Commission to act as an institutional trustee under
the Trust Indenture Act, authorized under such laws to
exercise corporate trust powers, having a combined capital
and surplus of at least 50 million U.S. dollars
($50,000,000), and subject to supervision or examination by
Federal, State, Territorial or District of Columbia authori-
ty. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of
the supervising or examining authority referred to above,
then, for the purposes of this Section 4.1(a)(ii), the
combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published.
(b) If at any time the Capital Securities Guarantee
Trustee shall cease to be eligible to so act under Section
4.1(a), the Capital Securities Guarantee Trustee shall immediate-
ly resign in the manner and with the effect set out in Section
4.2(c).
(c) If the Capital Securities Guarantee Trustee has or
shall acquire any "conflicting interest" within the meaning of
Section 310(b) of the Trust Indenture Act, the Capital Securities
13
Guarantee Trustee and Guarantor shall in all respects comply with
the provisions of Section 310(b) of the Trust Indenture Act.
SECTION 4.2 Appointment, Removal and Resignation of Capital
Securities Guarantee Trustee
(a) Subject to Section 4.2(b), the Capital Securities
Guarantee Trustee may be appointed or removed without cause at
any time by the Guarantor except during an Event of Default.
(b) The Capital Securities Guarantee Trustee shall not
be removed in accordance with Section 4.2(a) until a Successor
Capital Securities Guarantee Trustee has been appointed and has
accepted such appointment by written instrument executed by such
Successor Capital Securities Guarantee Trustee and delivered to
the Guarantor.
(c) The Capital Securities Guarantee Trustee shall
hold office until a Successor Capital Securities Guarantee
Trustee shall have been appointed or until its removal or resig-
nation. The Capital Securities Guarantee Trustee may resign from
office (without need for prior or subsequent accounting) by an
instrument in writing executed by the Capital Securities Guaran-
tee Trustee and delivered to the Guarantor, which resignation
shall not take effect until a Successor Capital Securities
Guarantee Trustee has been appointed and has accepted such
appointment by instrument in writing executed by such Successor
Capital Securities Guarantee Trustee and delivered to the Guaran-
tor and the resigning Capital Securities Guarantee Trustee.
(d) If no Successor Capital Securities Guarantee
Trustee shall have been appointed and accepted appointment as
provided in this Section 4.2 within 60 days after delivery of an
instrument of removal or resignation, the Capital Securities
Guarantee Trustee resigning or being removed may petition any
court of competent jurisdiction for appointment of a Successor
Capital Securities Guarantee Trustee. Such court may thereupon,
after prescribing such notice, if any, as it may deem proper,
appoint a Successor Capital Securities Guarantee Trustee.
(e) No Capital Securities Guarantee Trustee shall be
liable for the acts or omissions to act of any Successor Capital
Securities Guarantee Trustee.
(f) Upon termination of this Capital Securities
Guarantee or removal or resignation of the Capital Securities
Guarantee Trustee pursuant to this Section 4.2, the Guarantor
shall pay to the Capital Securities Guarantee Trustee all amounts
due to the Capital Securities Guarantee Trustee accrued to the
date of such termination, removal or resignation.
14
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee
The Guarantor irrevocably and unconditionally agrees to
pay in full to the Holders the Guarantee Payments (without
duplication of amounts theretofore paid by the Issuer), as and
when due, regardless of any defense, right of set-off or counter-
claim that the Issuer may have or assert. The Guarantor's
obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders
or by causing the Issuer to pay such amounts to the Holders.
SECTION 5.2 Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of
this Capital Securities Guarantee and of any liability to which
it applies or may apply, presentment, demand for payment, any
right to require a proceeding first against the Issuer or any
other Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption
and all other notices and demands.
SECTION 5.3 Obligations Not Affected
The obligations, covenants, agreements and duties of
the Guarantor under this Capital Securities Guarantee shall in no
way be affected or impaired by reason of the happening from time
to time of any of the following:
(a) the release or waiver, by operation of law or
otherwise, of the performance or observance by the Issuer of any
express or implied agreement, covenant, term or condition relat-
ing to the Capital Securities to be performed or observed by the
Issuer;
(b) the extension of time for the payment by the
Issuer of all or any portion of the Distributions, Redemption
Price, Liquidation Distribution or any other sums payable under
the terms of the Capital Securities or the extension of time for
the performance of any other obligation under, arising out of, or
in connection with, the Capital Securities (other than an exten-
sion of time for payment of Distributions, Redemption Price,
Liquidation Distribution or other sum payable that results from
the extension of any interest payment period on the Debentures
permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence
on the part of the Holders to enforce, assert or exercise any
right, privilege, power or remedy conferred on the Holders
pursuant to the terms of the Capital Securities, or any action on
15
the part of the Issuer granting indulgence or extension of any
kind;
(d) the voluntary or involuntary liquidation, dissolu-
tion, sale of any collateral, receivership, insolvency, bankrupt-
cy, assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of debt of, or other
similar proceedings affecting, the Issuer or any of the assets of
the Issuer;
(e) any invalidity of, or defect or deficiency in, the
Capital Securities;
(f) the settlement or compromise of any obligation
guaranteed hereby or hereby incurred; or
(g) any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge or defense of
a guarantor;
it being the intent of this Section 5.3 that the obligations of
the Guarantor with respect to the Guarantee Payments shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give
notice to, or obtain consent of, the Guarantor with respect to
the happening of any of the foregoing.
SECTION 5.4 Rights of Holders
(a) The Holders of a Majority in liquidation amount of
the Capital Securities have the right to direct the time, method
and place of conducting any proceeding for any remedy available
to the Capital Securities Guarantee Trustee in respect of this
Capital Securities Guarantee or exercising any trust or power
conferred upon the Capital Securities Guarantee Trustee under
this Capital Securities Guarantee.
(b) If the Capital Securities Guarantee Trustee fails
to enforce such Capital Securities Guarantee, any Holder of
Capital Securities may institute a legal proceeding directly
against the Guarantor to enforce the Capital Securities Guarantee
Trustee's rights under this Capital Securities Guarantee, without
first instituting a legal proceeding against the Issuer, the
Capital Securities Guarantee Trustee or any other person or
entity. The Guarantor waives any right or remedy to require that
any action be brought first against the Issuer or any other person
or entity before proceeding directly against the Guarantor.
16
SECTION 5.5 Guarantee of Payment
This Capital Securities Guarantee creates a guarantee
of payment and not of collection.
SECTION 5.6 Subrogation
The Guarantor shall be subrogated to all (if any)
rights of the Holders of Capital Securities against the Issuer in
respect of any amounts paid to such Holders by the Guarantor
under this Capital Securities Guarantee; provided, however, that
the Guarantor shall not (except to the extent required by manda-
tory provisions of law) be entitled to enforce or exercise any
right that it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of
payment under this Capital Securities Guarantee, if, at the time
of any such payment, any amounts are due and unpaid under this
Capital Securities Guarantee. If any amount shall be paid to the
Guarantor in violation of the preceding sentence, the Guarantor
agrees to hold such amount in trust for the Holders and to pay
over such amount to the Holders.
SECTION 5.7 Independent Obligations
The Guarantor acknowledges that its obligations hereun-
der are independent of the obligations of the Issuer with respect
to the Capital Securities, and that the Guarantor shall be liable
as principal and as debtor hereunder to make Guarantee Payments
pursuant to the terms of this Capital Securities Guarantee
notwithstanding the occurrence of any event referred to in
subsections (a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions
So long as any Capital Securities remain outstanding,
the Guarantor shall not (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire, or make a liqui-
dation payment with respect to, any of the Guarantor's capital
stock (which includes common and preferred stock) or (ii) make
any payment of principal, interest or premium, if any, on or
repay or repurchase or redeem any debt securities of the Guaran-
tor (including any Other Debentures) that rank pari passu with or
junior in right of payment to the Debentures or (iii) make any
guarantee payments with respect to any guarantee by the Guarantor
of the debt securities of any subsidiary of the Guarantor (in-
cluding Other Guarantees) if such guarantee ranks pari passu or
junior in right of payment to the Debentures (other than (a)
dividends or distributions in shares of, or options, warrants,
17
rights to subscribe for or purchase shares of, common stock of
the Guarantor, (b) any declaration of a dividend in connection
with the implementation of a stockholder's rights plan, or the
issuance of stock under any such plan in the future, or the
redemption or repurchase of any such rights pursuant thereto, (c)
payments under the Capital Securities Guarantee, (d) as a result
of a reclassification of the Guarantor's capital stock or the
exchange or the conversion of one class or series of the
Guarantor's capital stock for another class or series of the
Guarantor's capital stock, (e) the purchase of fractional inter-
ests in shares of the Guarantor's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the
security being converted or exchanged, and (f) purchases of
common stock related to the issuance of common stock or rights
under any of the Guarantor's benefit plans for its directors,
officers or employees or any of the Guarantor's dividend rein-
vestment plans) if at such time (i) there shall have occurred any
event of which the Guarantor has actual knowledge that (a) is, or
with the giving of notice or the lapse of time, or both, would be
an Event of Default and (b) in respect of which the Guarantor
shall not have taken reasonable steps to cure, (ii) if such
Debentures are held by the Property Trustee, the Guarantor shall
be in default with respect to its payment of any obligations
under this Capital Securities Guarantee or (iii) the Guarantor
shall have given notice of its election of the exercise of its
right to extend the interest payment period pursuant to Section
16.01 of the Indenture and any such extension shall be continu-
ing.
SECTION 6.2 Ranking
This Capital Securities Guarantee will constitute an
unsecured obligation of the Guarantor and will rank (i) subordi-
nate and junior in right of payment to Senior Indebtedness (as
defined in the Indenture), to the same extent and in the same
manner that the Debentures are subordinated to Senior Indebted-
ness pursuant to the Indenture (except as indicated below), it
being understood that the terms of Article XV of the Indenture
shall apply to the obligations of the Guarantor under this
Capital Securities Guarantee as if (x) such Article XV were set
forth herein in full and (y) such obligations were substituted
for the term "Securities" appearing in such Article XV, except
that with respect to Section 15.03 of the Indenture only, the
term "Senior Indebtedness" shall mean all liabilities of the
Guarantor, whether or not for money borrowed (other than obliga-
tions referred to in clause (ii) below), (ii) pari passu with the
most senior preferred or preference stock now or hereafter issued
by the Guarantor and with any Other Guarantee, any Other Common
Securities Guarantee and any guarantee now or hereafter entered
into by the Guarantor in respect of any preferred or preference
stock of any Affiliate of the Guarantor, and (iii) senior to the
Guarantor's common stock.
18
ARTICLE VII
TERMINATION
SECTION 7.1 Termination
This Capital Securities Guarantee shall terminate (i)
upon full payment of the Redemption Price of all Capital Securi-
ties, or (ii) upon liquidation of the Issuer, the full payment of
the amounts payable in accordance with the Declaration or the
distribution of the Debentures to the Holders of all of the
Capital Securities. Notwithstanding the foregoing, this Capital
Securities Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder of
Capital Securities must restore payment of any sums paid under
the Capital Securities or under this Capital Securities Guaran-
tee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation
(a) No Indemnified Person shall be liable, responsible
or accountable in damages or otherwise to the Guarantor or any
Covered Person for any loss, damage or claim incurred by reason
of any act or omission performed or omitted by such Indemnified
Person in good faith in accordance with this Capital Securities
Guarantee and in a manner that such Indemnified Person reasonably
believed to be within the scope of the authority conferred on
such Indemnified Person by this Capital Securities Guarantee or
by law, except that an Indemnified Person shall be liable for any
such loss, damage or claim incurred by reason of such Indemnified
Person's negligence or willful misconduct with respect to such
acts or omissions.
(b) An Indemnified Person shall be fully protected in
relying in good faith upon the records of the Guarantor and upon
such information, opinions, reports or statements presented to
the Guarantor by any Person as to matters the Indemnified Person
reasonably believes are within such other Person's professional
or expert competence and who has been selected with reasonable
care by or on behalf of the Guarantor, including information,
opinions, reports or statements as to the value and amount of the
assets, liabilities, profits, losses, or any other facts perti-
nent to the existence and amount of assets from which Distribu-
tions to Holders of Capital Securities might properly be paid.
SECTION 8.2 Indemnification
The Guarantor agrees to indemnify each Indemnified
Person for, and to hold each Indemnified Person harmless against,
19
any and all loss, liability, damage, claim or expense incurred
without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against,
or investigating, any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
The obligation to indemnify as set forth in this Section 8.2
shall survive the termination of this Capital Securities Guaran-
tee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns
All guarantees and agreements contained in this Capital
Securities Guarantee shall bind the successors, assigns, receiv-
ers, trustees and representatives of the Guarantor and shall
inure to the benefit of the Holders of the Capital Securities
then outstanding.
SECTION 9.2 Amendments
Except with respect to any changes that do not materi-
ally adversely affect the rights of Holders (in which case no
consent of Holders will be required), this Capital Securities
Guarantee may only be amended with the prior approval of the
Holders of a Majority in liquidation amount of the Capital
Securities (including the amount payable on redemption, liquida-
tion or otherwise, plus accumulated and unpaid Distributions to
the date upon which the voting percentages are determined). The
provisions of Section 12.2 of the Declaration with respect to
meetings of Holders of the Securities apply to the giving of such
approval.
SECTION 9.3 Notices
All notices provided for in this Capital Securities
Guarantee shall be in writing, duly signed by the party giving
such notice, and shall be delivered, telecopied or mailed by
first class mail, as follows:
20
(a) If given to the Issuer, in care of the Administra-
tive Trustee at the Issuer's mailing address set forth below (or
such other address as the Issuer may give notice of to the
Holders of the Common Securities):
BankBoston Capital Trust III
c/o BankBoston Corporation
X.X. Xxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Xxxxxxxx X. XxXxxxxxxxxx,
Administrative Trustee
Telecopy: (000) 000-0000
(b) If given to the Capital Securities Guarantee
Trustee, at the Capital Securities Guarantee Trustee's mailing
address set forth below (or such other address as the Capital
Securities Guarantee Trustee may give notice of to the Holders of
the Capital Securities):
The Bank of New York
000 Xxxxxxx Xxxxxx, 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Trustee
Administration
Telecopy: (000) 000-0000
(c) If given to the Guarantor, at the Guarantor's
mailing address set forth below (or such other address as the
Guarantor may give notice of to the Holders of the Capital
Securities):
BankBoston Corporation
000 Xxxxxxx Xxxxxx, XX BOS 01-25-01
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx, General Counsel
Telecopy: (000) 000-0000
(d) If given to any Holder of Capital Securities, at
the address set forth on the books and records of the Issuer.
All such notices shall be deemed to have been given
when received in person, telecopied with receipt confirmed, or
mailed by first class mail, postage prepaid except that if a
notice or other document is refused delivery or cannot be deliv-
ered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been
delivered on the date of such refusal or inability to deliver.
SECTION 9.4 Benefit
This Capital Securities Guarantee is solely for the
benefit of the Holders of the Capital Securities and, subject to
21
Section 3.1(a), is not separately transferable from the Capital
Securities.
SECTION 9.5 Governing Law
THIS CAPITAL SECURITIES GUARANTEE SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES
THEREOF.
22
THIS CAPITAL SECURITIES GUARANTEE is executed as of the
day and year first above written.
BANKBOSTON CORPORATION,
as Guarantor
By:
--------------------------------
Name:
Title:
THE BANK OF NEW YORK, as Capital
Securities Guarantee Trustee
By:
--------------------------------
Name:
Title:
(Capital Securities Guarantee)
THIS CAPITAL SECURITIES GUARANTEE is executed as of the
day and year first above written.
BANKBOSTON CORPORATION,
as Guarantor
By:
--------------------------------
Name:
Title:
THE BANK OF NEW YORK, as Capital
Securities Guarantee Trustee
By:
--------------------------------
Name:
Title:
(Capital Securities Guarantee)
