EXHIBIT 4.1
BANKBOSTON CORPORATION
______________________________
______________________________
INDENTURE
DATED AS OF _______, 1997
______________________________
THE BANK OF NEW YORK
AS TRUSTEE
______________________________
FLOATING RATE JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES
TIE-SHEET
of provisions of Trust Indenture Act of 1939 with Indenture
dated as of _______, 1997 between BankBoston Corporation and The
Bank of New York, Trustee:
ACT SECTION INDENTURE SECTION
310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 6.09
310(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
310(a)(5) . . . . . . . . . . . . . . . . . . . . . . 6.10, 6.11
310(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
310(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13
311(a) and (b) . . . . . . . . . . . . . . . . . . . . . . . N/A
311(c) . . . . . . . . . . . . . . . . . . . . . . 4.01, 4.02(a)
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 4.02
312(b) and (c) . . . . . . . . . . . . . . . . . . . . . . 4.04
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 4.04
313(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 4.04
313(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 4.04
313(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 4.04
313(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 4.04
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 4.03
314(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
314(c)(1) and (2) . . . . . . . . . . . . . . . . . . . . . 6.07
314(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
314(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
314(e) . . . . . . . . . . . . . . . . . . . . . . . . . . 6.07
314(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
315(a)(c) and (d) . . . . . . . . . . . . . . . . . . . . . 6.01
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 5.08
315(e) . . . . . . . . . . . . . . . . . . . . . . . . . . 5.09
316(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . 5.07
316(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . N/A
316(a) last sentence . . . . . . . . . . . . . . . . . . . 2.09
316(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 9.02
317(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 5.05
317(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 6.05
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 13.08
THIS TIE-SHEET IS NOT PART OF THE INDENTURE AS EXECUTED.
TABLE OF CONTENTS*
Page
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions . . . . . . . . . . . . . . . 1
Additional Interest . . . . . . . . . . . . . . . . . . 1
Affiliate . . . . . . . . . . . . . . . . . . . . . . . 1
Allocable Amounts . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . 2
Bankruptcy Law . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . 2
Calculation Agent . . . . . . . . . . . . . . . . . . . 3
Capital Securities . . . . . . . . . . . . . . . . . . . 3
Capital Securities Guarantee . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . . . 3
Common Securities . . . . . . . . . . . . . . . . . . . 3
Common Securities Guarantee . . . . . . . . . . . . . . 3
Common Stock . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Request . . . . . . . . . . . . . . . . . . . . 4
Compounded Interest . . . . . . . . . . . . . . . . . . 4
Custodian . . . . . . . . . . . . . . . . . . . . . . . 4
Declaration . . . . . . . . . . . . . . . . . . . . . . 4
Default . . . . . . . . . . . . . . . . . . . . . . . . 4
Deferred Interest . . . . . . . . . . . . . . . . . . . 4
Definitive Securities . . . . . . . . . . . . . . . . . 4
Depositary . . . . . . . . . . . . . . . . . . . . . . . 4
Determination Date . . . . . . . . . . . . . . . . . . . 4
Dissolution Event . . . . . . . . . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . . . . . . 4
Exchange Act . . . . . . . . . . . . . . . . . . . . . . 4
Extended Interest Payment Period . . . . . . . . . . . . 4
Federal Reserve . . . . . . . . . . . . . . . . . . . . 5
Global Security . . . . . . . . . . . . . . . . . . . . 5
Indebtedness for Money Borrowed . . . . . . . . . . . . 5
Indebtedness Ranking on a Parity with the Securities . . 5
Indebtedness Ranking Junior to the Securities . . . . . 5
Indenture . . . . . . . . . . . . . . . . . . . . . . . 5
Interest Payment Date . . . . . . . . . . . . . . . . . 5
Interest Period . . . . . . . . . . . . . . . . . . . . 6
LIBOR . . . . . . . . . . . . . . . . . . . . . . . . . 6
----------------------
* THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE
DEEMED TO BE A PART OF THE INDENTURE.
i
Page
London Business Day . . . . . . . . . . . . . . . . . . 6
Maturity Date . . . . . . . . . . . . . . . . . . . . . 6
Mortgage . . . . . . . . . . . . . . . . . . . . . . . . 6
Non Book-Entry Capital Securities . . . . . . . . . . . 6
Officers . . . . . . . . . . . . . . . . . . . . . . . . 6
Officers' Certificate . . . . . . . . . . . . . . . . . 6
Opinion of Counsel . . . . . . . . . . . . . . . . . . . 6
Other Debentures . . . . . . . . . . . . . . . . . . . . 6
Other Guarantees . . . . . . . . . . . . . . . . . . . . 6
outstanding . . . . . . . . . . . . . . . . . . . . . . 6
Person . . . . . . . . . . . . . . . . . . . . . . . . . 7
Predecessor Security . . . . . . . . . . . . . . . . . . 7
Principal office of the Trustee . . . . . . . . . . . . 7
Redemption Price . . . . . . . . . . . . . . . . . . . . 7
Regulatory Capital Event . . . . . . . . . . . . . . . . 7
Responsible Officer . . . . . . . . . . . . . . . . . . 8
Reuters Page LIBO . . . . . . . . . . . . . . . . . . . 8
Securities . . . . . . . . . . . . . . . . . . . . . . . 8
Securities Act . . . . . . . . . . . . . . . . . . . . . 8
Securityholder . . . . . . . . . . . . . . . . . . . . . 8
holder of Securities . . . . . . . . . . . . . . . . . . 8
Security Register . . . . . . . . . . . . . . . . . . . 8
Senior Indebtedness . . . . . . . . . . . . . . . . . . 8
Special Event . . . . . . . . . . . . . . . . . . . . . 8
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . 8
Tax Event . . . . . . . . . . . . . . . . . . . . . . . 9
Trust . . . . . . . . . . . . . . . . . . . . . . . . . 9
Trustee . . . . . . . . . . . . . . . . . . . . . . . . 9
Trust Indenture Act of 1939 . . . . . . . . . . . . . . 9
Trust Securities . . . . . . . . . . . . . . . . . . . . 10
U.S. Government Obligations . . . . . . . . . . . . . . 10
ARTICLE II
SECURITIES
SECTION 2.01. Forms Generally . . . . . . . . . . . . . 10
SECTION 2.02. Execution and Authentication . . . . . . 10
SECTION 2.03. Form and Payment . . . . . . . . . . . . 11
SECTION 2.04. [Reserved]. . . . . . . . . . . . . . . . 11
SECTION 2.05. Global Security . . . . . . . . . . . . . 11
SECTION 2.06. Interest . . . . . . . . . . . . . . . . 13
SECTION 2.07. Transfer and Exchange . . . . . . . . . . 16
SECTION 2.08. Replacement Securities . . . . . . . . . 17
SECTION 2.09. Treasury Securities . . . . . . . . . . . 17
SECTION 2.10. Temporary Securities. . . . . . . . . . . 17
SECTION 2.11. Cancellation . . . . . . . . . . . . . . 18
SECTION 2.12. Defaulted Interest . . . . . . . . . . . 18
SECTION 2.13. CUSIP Numbers . . . . . . . . . . . . . . 19
ii
Page
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01. Payment of Principal, Premium and
Interest . . . . . . . . . . . . . . . . 20
SECTION 3.02. Offices for Notices and Payments, etc. . 20
SECTION 3.03. Appointments to Fill Vacancies in
Trustee's Office . . . . . . . . . . . . 21
SECTION 3.04. Provision as to Paying Agent . . . . . . 21
SECTION 3.05. Certificate to Trustee . . . . . . . . . 22
SECTION 3.06. Compliance with Consolidation
Provisions . . . . . . . . . . . . . . . 22
SECTION 3.07. Limitation on Dividends . . . . . . . . . 22
SECTION 3.08. Covenants as to the Trust . . . . . . . . 23
SECTION 3.09. Payment of Expenses . . . . . . . . . . . 23
SECTION 3.10. Payment Upon Resignation or Removal . . . 24
ARTICLE IV
SECURITYHOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
SECTION 4.01. Securityholders' Lists . . . . . . . . . 25
SECTION 4.02. Preservation and Disclosure of Lists . . 25
SECTION 4.03. Reports by Company . . . . . . . . . . . 27
SECTION 4.04. Reports by the Trustee . . . . . . . . . 28
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.01. Events of Default . . . . . . . . . . . . 28
SECTION 5.02. Payment of Securities on Default; Suit
Therefor . . . . . . . . . . . . . . . . 31
SECTION 5.03. Application of Moneys Collected by
Trustee . . . . . . . . . . . . . . . . . 33
SECTION 5.04. Proceedings by Securityholders . . . . . 33
SECTION 5.05. Proceedings by Trustee . . . . . . . . . 34
SECTION 5.06. Remedies Cumulative and Continuing . . . 35
SECTION 5.07. Direction of Proceedings and Xxxxxx of
Defaults by Majority of Securityholders . 35
SECTION 5.08. Notice of Defaults . . . . . . . . . . . 36
SECTION 5.09. Undertaking to Pay Costs . . . . . . . . 36
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of Trustee . 37
SECTION 6.02. Reliance on Documents, Opinions, etc. . . 38
SECTION 6.03. No Responsibility for Recitals, etc. . . 40
iii
Page
SECTION 6.04. Trustee, Authenticating Agent, Paying
Agents, Transfer Agents or Registrar May
Own Securities . . . . . . . . . . . . . 40
SECTION 6.05. Moneys to be Held in Trust . . . . . . . 41
SECTION 6.06. Compensation and Expenses of Trustee . . 41
SECTION 6.07. Officers' Certificate as Evidence . . . . 42
SECTION 6.08. Conflicting Interest of Trustee . . . . . 42
SECTION 6.09. Eligibility of Trustee . . . . . . . . . 42
SECTION 6.10. Resignation or Removal of Trustee . . . . 43
SECTION 6.11. Acceptance by Successor Trustee . . . . . 44
SECTION 6.12. Succession by Xxxxxx, etc. . . . . . . . 45
SECTION 6.13. Limitation on Rights of Trustee as a
Creditor . . . . . . . . . . . . . . . . 46
SECTION 6.14. Authenticating Agents . . . . . . . . . . 46
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Action by Securityholders . . . . . . . . 47
SECTION 7.02. Proof of Execution by Securityholders . . 48
SECTION 7.03. Who Are Deemed Absolute Owners . . . . . 48
SECTION 7.04. Securities Owned by Company Deemed Not
Outstanding . . . . . . . . . . . . . . . 49
SECTION 7.05. Revocation of Consents; Future Holders
Bound . . . . . . . . . . . . . . . . . . 49
ARTICLE VIII
SECURITYHOLDERS' MEETINGS
SECTION 8.01. Purposes of Meetings . . . . . . . . . . 50
SECTION 8.02. Call of Meetings by Trustee . . . . . . . 50
SECTION 8.03. Call of Meetings by Company or
Securityholders . . . . . . . . . . . . . 51
SECTION 8.04. Qualifications for Voting . . . . . . . . 51
SECTION 8.05. Regulations . . . . . . . . . . . . . . . 51
SECTION 8.06. Voting . . . . . . . . . . . . . . . . . 52
ARTICLE IX
AMENDMENTS
SECTION 9.01. Without Consent of Securityholders . . . 52
SECTION 9.02. With Consent of Securityholders . . . . . 54
SECTION 9.03. Compliance with Trust Indenture Act;
Effect of Supplemental Indentures . . . . 55
SECTION 9.04. Notation on Securities . . . . . . . . . 56
SECTION 9.05. Evidence of Compliance of Supplemental
Indenture to be Furnished Trustee . . . . 56
iv
Page
ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 10.01. Company May Consolidate, etc., on
Certain Terms . . . . . . . . . . . . . . 56
SECTION 10.02. Successor Corporation to be Substituted
for Company . . . . . . . . . . . . . . . 57
SECTION 10.03. Opinion of Counsel to be Given Trustee . 57
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01. Discharge of Indenture . . . . . . . . . 58
SECTION 11.02. Deposited Moneys and U.S. Government
Obligations to be Held in Trust by
Trustee . . . . . . . . . . . . . . . . . 58
SECTION 11.03. Paying Agent to Repay Moneys Held . . . . 59
SECTION 11.04. Return of Unclaimed Moneys . . . . . . . 59
SECTION 11.05. Defeasance Upon Deposit of Moneys or
U.S. Government Obligations . . . . . . . 59
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. Indenture and Securities Solely
Corporate Obligations . . . . . . . . . . 61
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. Successors . . . . . . . . . . . . . . . 62
SECTION 13.02. Official Acts by Successor Corporation . 62
SECTION 13.03. Surrender of Company Powers . . . . . . . 62
SECTION 13.04. Addresses for Notices, etc. . . . . . . . 62
SECTION 13.05. Governing Law . . . . . . . . . . . . . . 62
SECTION 13.06. Evidence of Compliance with Conditions
Precedent . . . . . . . . . . . . . . . . 63
SECTION 13.07. Business Days . . . . . . . . . . . . . . 63
SECTION 13.08. Trust Indenture Act to Control . . . . . 63
SECTION 13.09. Table of Contents, Headings, etc . . . . 64
SECTION 13.10. Execution in Counterparts . . . . . . . . 64
SECTION 13.11. Separability . . . . . . . . . . . . . . 64
SECTION 13.12. Assignment . . . . . . . . . . . . . . . 64
SECTION 13.13. Acknowledgement of Rights . . . . . . . . 64
ARTICLE XIV
REDEMPTION OF SECURITIES --
MANDATORY AND OPTIONAL SINKING FUND
v
Page
SECTION 14.01. Special Event Redemption . . . . . . . . 65
SECTION 14.02. Optional Redemption by Company . . . . . 65
SECTION 14.03. No Sinking Fund . . . . . . . . . . . . . 66
SECTION 14.04. Notice of Redemption; Selection of
Securities . . . . . . . . . . . . . . . 66
SECTION 14.05. Payment of Securities Called for
Redemption . . . . . . . . . . . . . . . 67
ARTICLE XV
SUBORDINATION OF SECURITIES
SECTION 15.01. Agreement to Subordinate . . . . . . . . 68
SECTION 15.02. Default on Senior Indebtedness . . . . . 68
SECTION 15.03. Liquidation; Dissolution; Bankruptcy . . 69
SECTION 15.04. Subrogation . . . . . . . . . . . . . . . 70
SECTION 15.05. Trustee to Effectuate Subordination . . . 71
SECTION 15.06. Notice by the Company . . . . . . . . . . 72
SECTION 15.07. Rights of the Trustee; Holders of Senior
Indebtedness . . . . . . . . . . . . . . 73
SECTION 15.08. Subordination May Not Be Impaired . . . . 73
ARTICLE XVI
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 16.01. Extension of Interest Payment Period . . 74
SECTION 16.02. Notice of Extension . . . . . . . . . . . 75
EXHIBIT A . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
Testimonium
Signatures
vi
THIS INDENTURE, dated as of _______, 1997, between
BankBoston Corporation, a Massachusetts corporation (hereinafter
sometimes called the "Company"), and The Bank of New York, a New
York banking corporation, as trustee (hereinafter sometimes
called the "Trustee"),
W I T N E S S E T H :
In consideration of the premises, and the purchase of
the Securities by the holders thereof, the Company covenants and
agrees with the Trustee for the equal and proportionate benefit
of the respective holders from time to time of the Securities, as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions.
The terms defined in this Section 1.01 (except as
herein otherwise expressly provided or unless the context
otherwise requires) for all purposes of this Indenture shall have
the respective meanings specified in this Section 1.01. All
other terms used in this Indenture which are defined in the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), or
which are by reference therein defined in the Securities Act,
shall (except as herein otherwise expressly provided or unless
the context otherwise requires) have the meanings assigned to
such terms in said Trust Indenture Act and in said Securities Act
as in force at the date of this Indenture as originally executed.
The following terms have the meanings given to them in the
Declaration: (i) Clearing Agency; (ii) Delaware Trustee;
(iii) Capital Security Certificate; (iv) Property Trustee; (v)
Administrative Trustees; (vi) Direct Action; and (vii) Purchase
Agreement. All accounting terms used herein and not expressly
defined shall have the meanings assigned to such terms in
accordance with generally accepted accounting principles and the
term "generally accepted accounting principles" means such
accounting principles as are generally accepted at the time of
any computation. The words "herein", "hereof" and "hereunder"
and other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision. Headings are used for convenience of reference only
and do not affect interpretation. The singular includes the
plural and vice versa.
"Additional Interest" shall have the meaning set forth
in Section 2.06(d).
"Affiliate" means, with respect to a specified Person,
(a) any Person directly or indirectly owning, controlling or
holding the power to vote 10% or more of the outstanding voting
securities or other ownership interests of the specified Person,
(b) any Person 10% or more of whose outstanding voting securities
or other ownership interests are directly or indirectly owned,
controlled or held with power to vote by the specified Person,
(c) any Person directly or indirectly controlling, controlled by,
or under common control with the specified Person, (d) a
partnership in which the specified Person is a general partner,
(e) any officer or director of the specified Person, and (f) if
the specified Person is an individual, any entity of which the
specified Person is an officer, director or general partner.
"Allocable Amounts," when used with respect to any
Senior Indebtedness, means all amounts due or to become due on
such Senior Indebtedness less, if applicable, any amount which
would have been paid to, and retained by, the holders of such
Senior Indebtedness (whether as a result of the receipt of
payments by the holders of such Senior Indebtedness from the
Company or any other obligor thereon or from any holders of, or
trustee in respect of, other indebtedness that is subordinate and
junior in right of payment to such Senior Indebtedness pursuant
to any provision of such indebtedness for the payment over of
amounts received on account of such indebtedness to the holders
of such Senior Indebtedness or otherwise) but for the fact that
such Senior Indebtedness is subordinate or junior in right of
payment to (or subject to a requirement that amounts received on
such Senior Indebtedness be paid over to obligees on) trade
accounts payable or accrued liabilities arising in the ordinary
course of business.
"Authenticating Agent" shall mean any agent or agents
of the Trustee which at the time shall be appointed and acting
pursuant to Section 6.14.
"Bankruptcy Law" shall mean Title 11, U.S. Code, or any
similar Federal or state law for the relief of debtors.
"Board of Directors" shall mean either the Board of
Directors of the Company or any duly authorized committee of that
board.
"Board Resolution" shall mean a copy of a resolution
certified by the Clerk or an Assistant Clerk of the Company to
have been duly adopted by the Board of Directors and to be in
full force and effect on the date of such certification, and
delivered to the Trustee.
"Business Day" shall mean, with respect to any
Securities, any day other than a Saturday or a Sunday or a day on
which banking institutions in The City of New York or Boston,
Massachusetts are authorized or required by law or executive
order to close.
2
"Calculation Agent" shall mean The Bank of New York or
any successor as shall be appointed by the Company.
"Capital Securities" shall mean undivided beneficial
interests in the assets of the Trust designated as the Floating
Rate Capital Securities, which rank pari passu with the Common
Securities issued by the Trust; provided, however, that if an
Event of Default has occurred and is continuing, no payments in
respect of Distributions on, or payments upon liquidation,
redemption or otherwise with respect to, the Common Securities
shall be made until the holders of the Capital Securities shall
be paid in full the Distributions and the liquidation, redemption
and other payments to which they are entitled.
"Capital Securities Guarantee" shall mean any guarantee
that the Company may enter into with The Bank of New York or
other Persons that operate directly or indirectly for the benefit
of holders of Capital Securities of the Trust.
"Commission" shall mean the Securities and Exchange
Commission, as from time to time constituted, created under the
Exchange Act, or if at any time after the execution of this
Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Securities" shall mean undivided beneficial
interests in the assets of the Trust designated as the Floating
Rate Common Securities, which rank pari passu with Capital
Securities issued by the Trust; provided, however, that if an
Event of Default has occurred and is continuing, no payments in
respect of Distributions on, or payments upon liquidation,
redemption or otherwise with respect to, the Common Securities
shall be made until the holders of the Capital Securities shall
be paid in full the Distributions and the liquidation, redemption
and other payments to which they are entitled.
"Common Securities Guarantee" shall mean any guarantee
that the Company executes directly or indirectly for the benefit
of holders of Common Securities of the Trust.
"Common Stock" shall mean the Common Stock, par value
$1.50 per share, of the Company or any other class of stock
resulting from changes or reclassifications of such Common Stock
consisting solely of changes in par value, or from par value to
no par value, or from no par value to par value.
"Company" shall mean BankBoston Corporation, a
Massachusetts corporation, and, subject to the provisions of
Article X, shall include its successors and assigns.
3
"Company Request" or "Company Order" shall mean a
written request or order signed in the name of the Company by the
Chairman, the Chief Executive Officer, the President, a Vice
Chairman, a Vice President, the Comptroller, the Executive
Director, Global Treasury, the Clerk or an Assistant Clerk of the
Company, and delivered to the Trustee.
"Compounded Interest" shall have the meaning set forth
in Section 16.01.
"Custodian" shall mean any receiver, trustee, assignee,
liquidator, or similar official under any Bankruptcy Law.
"Declaration" means the Amended and Restated
Declaration of Trust of the Trust, dated as of _______, 1997.
"Default" means any event, act or condition that with
notice or lapse of time, or both, would constitute an Event of
Default.
"Deferred Interest" shall have the meaning set forth in
Section 16.01.
"Definitive Securities" shall mean those securities
issued in fully registered certificated form not otherwise in
global form.
"Depositary" shall mean, with respect to the
Securities, The Depository Trust Company, New York, New York,
another clearing agency, or any successor registered as a
clearing agency under the Exchange Act or other applicable
statute or regulation, as designated by the Company pursuant to
Section 2.05(d).
"Determination Date" shall have the meaning set forth
in Section 2.06(c).
"Dissolution Event" means the liquidation of the Trust
pursuant to the Declaration, and the distribution of the
Securities held by the Property Trustee to the holders of the
Trust Securities issued by the Trust pro rata in accordance with
the Declaration.
"Event of Default" shall mean any event specified in
Section 5.01, continued for the period of time, if any, and after
the giving of the notice, if any, therein designated.
"Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended.
"Extended Interest Payment Period" shall have the
meaning set forth in Section 16.01.
4
"Federal Reserve" shall mean the Board of Governors of
the Federal Reserve System.
"Global Security" means, with respect to the
Securities, a Security executed by the Company and delivered by
the Trustee to the Depositary or pursuant to the Depositary's
instruction, all in accordance with the Indenture, which shall be
registered in the name of the Depositary or its nominee.
"Indebtedness for Money Borrowed" shall mean any
obligation of, or any obligation guaranteed by, the Company for
the repayment of borrowed money, whether or not evidenced by
bonds, debentures, notes or other written instruments.
"Indebtedness Ranking on a Parity with the Securities"
shall mean (i) Indebtedness for Money Borrowed, whether
outstanding on the date of execution of this Indenture or
hereafter created, assumed or incurred, which specifically by its
terms ranks equally with and not prior to the Securities in the
right of payment upon the happening of any dissolution or winding
up or liquidation or reorganization of the Company, and (ii) all
other debt securities, and guarantees in respect of those debt
securities, issued to any trust other than the Trust, or a
trustee of such trust, partnership or other entity affiliated
with the Company that is a financing vehicle of the Company (a
"financing entity") in connection with the issuance by such
financing entity of equity securities or other securities
guaranteed by the Company pursuant to an instrument that ranks
pari passu with or junior in right of payment to the Capital
Securities Guarantee.
"Indebtedness Ranking Junior to the Securities" shall
mean any Indebtedness for Money Borrowed, whether outstanding on
the date of execution of this Indenture or hereafter created,
assumed or incurred, which specifically by its terms ranks junior
to and not equally with or prior to the Securities (and any other
Indebtedness Ranking on a Parity with the Securities) in right of
payment upon the happening of any dissolution or winding up or
liquidation or reorganization of the Company. The securing of
any Indebtedness for Money Borrowed of the Company, otherwise
constituting Indebtedness Ranking on a Parity with the Securities
or Indebtedness Ranking Junior to the Securities, as the case may
be, shall not be deemed to prevent such Indebtedness for Money
Borrowed from constituting Indebtedness Ranking on a Parity with
the Securities or Indebtedness Ranking Junior to the Securities,
as the case may be.
"Indenture" shall mean this instrument as originally
executed or, if amended as herein provided, as so amended.
"Interest Payment Date" shall have the meaning set
forth in Section 2.06(a).
5
"Interest Period" shall have the meaning set forth in
Section 2.06(a).
"LIBOR" shall have the meaning set forth in Section
2.06(c)
"London Business Day" shall have the meaning set forth
in Section 2.06(c).
"Maturity Date" shall mean _______, 2027.
"Mortgage" shall mean and include any mortgage, pledge,
lien, security interest, conditional sale or other title
retention agreement or other similar encumbrance.
"Non Book-Entry Capital Securities" shall have the
meaning set forth in Section 2.05.
"Officers" shall mean any of the Chairman, a Vice
Chairman, the Chief Executive Officer, the President, a Vice
President, the Comptroller, the Executive Director, Global
Treasury, the Clerk or an Assistant Clerk of the Company.
"Officers' Certificate" shall mean a certificate signed
by two Officers and delivered to the Trustee.
"Opinion of Counsel" shall mean a written opinion of
counsel, who may be an employee of the Company, and who shall be
acceptable to the Trustee.
"Other Debentures" means all junior subordinated
debentures issued by the Company from time to time and sold to
trusts to be established by the Company, in each case similar to
the Trust.
"Other Guarantees" means all guarantees issued by the
Company with respect to capital securities and issued to other
trusts established by the Company, in each case similar to the
Trust.
The term "outstanding" when used with reference to
Securities, shall, subject to the provisions of Section 7.04,
mean, as of any particular time, all Securities authenticated and
delivered by the Trustee or the Authenticating Agent under this
Indenture, except
(a) Securities theretofore cancelled by the Trustee or
the Authenticating Agent or delivered to the
Trustee for cancellation;
(b) Securities, or portions thereof, for the payment
or redemption of which moneys in the necessary
6
amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the
Company) or shall have been set aside and
segregated in trust by the Company (if the Company
shall act as its own paying agent); provided that,
if such Securities, or portions thereof, are to be
redeemed prior to maturity thereof, notice of such
redemption shall have been given as in Article XIV
provided or provision satisfactory to the Trustee
shall have been made for giving such notice; and
(c) Securities in lieu of or in substitution for which
other Securities shall have been authenticated and
delivered pursuant to the terms of Section 2.08
unless proof satisfactory to the Company and the
Trustee is presented that any such Securities are
held by bona fide holders in due course.
"Person" shall mean any individual, corporation,
estate, partnership, joint venture, association, joint-stock
company, limited liability company, trust, unincorporated
organization or government or any agency or political subdivision
thereof.
"Predecessor Security" of any particular Security means
every previous Security evidencing all or a portion of the same
debt and as that evidenced by such particular Security; and, for
the purposes of this definition, any Security authenticated and
delivered under Section 2.08 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the
lost, destroyed or stolen Security.
"Principal office of the Trustee", or other similar
term, shall mean the principal office of the Trustee, at which at
any particular time its corporate trust business shall be
administered.
"Redemption Price" shall mean, with respect to any
redemption of the Securities pursuant to Sections 14.01 or 14.02
hereof, an amount in cash equal to 100% of the principal amount
of Securities to be redeemed, plus any accrued and unpaid
interest thereon, including Compounded Interest and Additional
Interest, if any, to the date of such redemption.
"Regulatory Capital Event" means that the Company shall
have received an opinion of independent bank regulatory counsel
experienced in such matters to the effect that, as a result of
(a) any amendment to, or change (including any announced
prospective change) in, the laws (or any regulations thereunder)
of the United States or any rules, guidelines or policies of the
Federal Reserve or (b) any official administrative pronouncement
or judicial decision interpreting or applying such laws or
regula-
7
tions, which amendment or change is effective or such pronouncement or
decision is announced on or after the date of original issuance of the
Capital Securities, the Capital Securities do not constitute, or within 90
days of the date thereof, will not constitute, Tier I Capital (or its then
equivalent); provided, however, that the distribution of the Capital
Securities in connection with the liquidation of the Trust by the Company,
as sponsor, shall not in and of itself constitute a Regulatory Capital
Event unless such liquidation shall have occurred in connection with a Tax
Event.
"Responsible Officer", when used with respect to the
Trustee, shall mean any vice president, any assistant secretary,
any assistant treasurer, any trust officer or assistant trust
officer or any other officer or assistant officer of the Trustee
customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom
such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Reuters Page LIBO" shall have the meaning set forth in
Section 2.06(c).
"Securities" means the Company's Floating Rate Junior
Subordinated Deferrable Interest Debentures due _______, 2027, as
authenticated and issued under this Indenture.
"Securities Act" shall mean the Securities Act of 1933,
as amended.
"Securityholder", "holder of Securities", or other
similar terms, shall mean any person in whose name at the time a
particular Security is registered on the register kept by the
Company or the Trustee for that purpose in accordance with the
terms hereof.
"Security Register" shall have the meaning specified in
Section 2.07(b).
"Senior Indebtedness" shall mean all Indebtedness for
Money Borrowed, whether outstanding on the date of execution of
this Indenture or hereafter created, assumed or incurred, except
Indebtedness Ranking on a Parity with the Securities or
Indebtedness Ranking Junior to the Securities, and any deferrals,
renewals or extensions of such Senior Indebtedness.
"Special Event" means either a Regulatory Capital Event
or a Tax Event.
"Subsidiary" shall mean with respect to any Person,
(i) any corporation at least a majority of whose outstanding
8
voting stock of which is owned, directly or indirectly, by such
Person or by one or more of its Subsidiaries, or by such Person
and one or more of its Subsidiaries, (ii) any general
partnership, joint venture or similar entity, at least a majority
of whose outstanding partnership or similar interests shall at
the time be owned by such Person, or by one or more of its
Subsidiaries, or by such Person and one or more of its
Subsidiaries and (iii) any limited partnership of which such
Person or any of its Subsidiaries is a general partner. For the
purposes of this definition, "voting stock" means shares,
interests, participations or other equivalents in the equity
interest (however designated) in such Person having ordinary
voting power for the election of a majority of the directors (or
the equivalent) of such Person, other than shares, interests,
participations or other equivalents having such power only by
reason of the occurrence of a contingency.
"Tax Event" shall mean the receipt by the Trust and the
Company of an opinion of counsel experienced in such matters to
the effect that, as a result of any amendment to, or change
(including any announced prospective change) in, the laws or any
regulations thereunder of the United States or any political
subdivision or taxing authority thereof or therein or as a result
of any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which
amendment or change is effective or which pronouncement or
decision is announced on or after _______, 1997, there is more
than an insubstantial risk that (i) the Trust is, or will be
within 90 days of the date of such opinion, subject to United
States Federal income tax with respect to income received or
accrued on the Securities, (ii) interest payable by the Company
on the Securities is not, or within 90 days of the date of such
opinion, will not be, deductible by the Company, in whole or in
part, for United States Federal income tax purposes, or (iii) the
Trust is, or will be within 90 days of the date of such opinion,
subject to more than a de minimis amount of other taxes, duties
or other governmental charges.
"Trust" shall mean BankBoston Capital Trust III, a
Delaware business trust created for the purpose of issuing its
undivided beneficial interests in connection with the issuance of
Securities under this Indenture.
"Trustee" shall mean the Person identified as "Trustee"
in the first paragraph hereof, and, subject to the provisions of
Article VI hereof, shall also include its successors and assigns
as Trustee hereunder.
"Trust Indenture Act of 1939" shall mean the Trust
Indenture Act of 1939 as in force at the date of execution of
this Indenture, except as provided in Section 9.03.
9
"Trust Securities" shall mean the Capital Securities
and the Common Securities, collectively.
"U.S. Government Obligations" shall mean securities
that are (i) direct obligations of the United States of America
for the payment of which its full faith and credit is pledged or
(ii) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States of America,
which, in either case under clauses (i) or (ii) are not callable
or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as
custodian with respect to any such U.S. Government Obligation or
a specific payment of interest on or principal of any such U.S.
Government Obligation held by such custodian for the account of
the holder of a depository receipt, provided that (except as
required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment
of interest on or principal of the U.S. Government Obligation
evidenced by such depository receipt.
ARTICLE II
SECURITIES
SECTION 2.01. Forms Generally.
The Securities and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A,
the terms of which are incorporated in and made a part of this
Indenture. The Securities may have notations, legends or
endorsements required by law, stock exchange rule, agreements to
which the Company is subject or usage. Each Security shall be
dated the date of its authentication. The Securities shall be
issued in denominations of $1,000 and integral multiples thereof.
SECTION 2.02. Execution and Authentication.
An Officer shall sign the Securities for the Company by
manual or facsimile signature. If an Officer whose signature is
on a Security no longer holds that office at the time the
Security is authenticated, the Security shall nevertheless be
valid.
A Security shall not be valid until authenticated by
the manual signature of the Trustee. The signature of the
Trustee shall be conclusive evidence that the Security has been
authenticated under this Indenture. The form of Trustee's
10
certificate of authentication to be borne by the Securities shall
be substantially as set forth in Exhibit A hereto.
The Trustee shall, upon a Company Order, authenticate
for original issue up to and including, and the aggregate
principal amount of Securities outstanding at any time may not
exceed, $257,732,000 aggregate principal amount of the
Securities, except as provided in Sections 2.07, 2.08, 2.10 and
14.05.
SECTION 2.03. Form and Payment.
Except as provided in Section 2.05, the Securities
shall be issued in fully registered certificated form without
interest coupons. Principal of and premium, if any, and interest
on the Securities issued in certificated form will be payable,
the transfer of such Securities will be registrable and such
Securities will be exchangeable for Securities bearing identical
terms and provisions at the office or agency of the Trustee;
provided, however, that payment of interest with respect to
Securities in global form may be made at the option of the
Company (i) by check mailed to the holder at such address as
shall appear in the Security Register or (ii) by transfer to an
account maintained by the Person entitled thereto, provided that
proper transfer instructions have been received in writing by the
relevant record date. Notwithstanding the foregoing, so long as
the holder of any Securities is the Property Trustee, the payment
of the principal of and premium, if any, and interest (including
Compounded Interest and Additional Interest, if any) on such
Securities held by the Property Trustee will be made at such
place and to such account as may be designated by the Property
Trustee.
SECTION 2.04. [Reserved].
SECTION 2.05. Global Security.
(a) In connection with a Dissolution Event,
(i) if any Capital Securities are held in book-
entry form, the related Definitive Securities shall be
presented to the Trustee (if an arrangement with the
Depositary has been maintained) by the Property Trustee in
exchange for one or more Global Securities (as may be
required pursuant to Section 2.07) in an aggregate principal
amount equal to the aggregate principal amount of all
outstanding Securities, to be registered in the name of the
Depositary, or its nominee, and delivered by the Trustee to
the Depositary for crediting to the accounts of its
participants pursuant to the instructions of the
Administrative Trustees; the Company upon any such
presentation shall execute one or more Global Securities in
such aggregate principal amount and deliver the same to the
Trustee for authentication and delivery in
11
accordance with the Indenture; and payments on the Securities
issued as a Global Security will be made to the Depositary; and
(ii) if any Capital Securities are held in
certificated form, the related Definitive Securities may be
presented to the Trustee by the Property Trustee and any
Capital Security certificate which represents Capital
Securities other than Capital Securities in book-entry form
("Non Book-Entry Capital Securities") will be deemed to
represent beneficial interests in Securities presented to
the Trustee by the Property Trustee having an aggregate
principal amount equal to the aggregate liquidation amount
of the Non Book-Entry Capital Securities until such Capital
Security certificates are presented to the Security
registrar for transfer or reissuance, at which time such
Capital Security certificates will be cancelled and a
Security, registered in the name of the holder of the
Capital Security certificate or the transferee of the holder
of such Capital Security certificate, as the case may be,
with an aggregate principal amount equal to the aggregate
liquidation amount of the Capital Security certificate
cancelled, will be executed by the Company and delivered to
the Trustee for authentication and delivery in accordance
with the Indenture. Upon the issuance of such Securities,
Securities with an equivalent aggregate principal amount
that were presented by the Property Trustee to the Trustee
will be deemed to have been cancelled.
(b) The Global Securities shall represent the
aggregate amount of outstanding Securities from time to time
endorsed thereon; provided, that the aggregate amount of
outstanding Securities represented thereby may from time to time
be reduced or increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of a Global Security to reflect the
amount of any increase or decrease in the amount of outstanding
Securities represented thereby shall be made by the Trustee, in
accordance with instructions given by the Company as required by
this Section 2.05.
(c) The Global Securities may be transferred, in whole
but not in part, only to another nominee of the Depositary, or to
a successor Depositary selected or approved by the Company or to
a nominee of such successor Depositary.
(d) If at any time the Depositary notifies the Company
that it is unwilling or unable to continue as Depositary or the
Depositary has ceased to be a clearing agency registered under
the Exchange Act, and a successor Depositary is not appointed by
the Company within 90 days after the Company receives such notice
or becomes aware of such condition, as the case may be, the
Company will execute, and the Trustee, upon written notice from
12
the Company, will authenticate and make available for delivery
the Definitive Securities, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the
Global Security in exchange for such Global Security. If there
is a Default or an Event of Default, the Depositary shall have
the right to exchange the Global Securities for Definitive
Securities. In addition, the Company may at any time determine
that the Securities shall no longer be represented by a Global
Security. In the event of such a Default or an Event of Default
or such a determination, the Company shall execute, and subject
to Section 2.07, the Trustee, upon receipt of an Officers'
Certificate evidencing such determination by the Company, will
authenticate and make available for delivery the Definitive
Securities, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global
Security in exchange for such Global Security. Upon the exchange
of the Global Security for such Definitive Securities, in
authorized denominations, the Global Security shall be cancelled
by the Trustee. Such Definitive Securities issued in exchange
for the Global Security shall be registered in such names and in
such authorized denominations as the Depositary, pursuant to
instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. The Trustee shall deliver
such Definitive Securities to the Depositary for delivery to the
Persons in whose names such Definitive Securities are so
registered.
SECTION 2.06. Interest.
(a) Each Security will bear interest at the rate
determined as provided below, payable quarterly in arrears
(subject to the provisions of Article XVI) on __________,
__________, __________ and ___________ of each year, commencing
on __________, 1997 (each, an "Interest Payment Date"), to the
Person in whose name such Security or any predecessor Security is
registered, at the close of business on the regular record date
for such interest installment, which shall be the __________,
__________, __________ and ___________ prior to the applicable
Interest Payment Date. Interest payable on each Interest Payment
Date shall include interest accrued from and including the
immediately preceding Interest Payment Date (or, if no interest
has been paid or duly provided for, the date of original
issuance) to but excluding such Interest Payment Date (each, an
"Interest Period").
(b) The amount of interest payable for any Interest
Period shall be computed on the basis of the actual number of
days elapsed in such Interest Period and a year of 360 days.
Accrued interest that is not paid on the applicable Interest
Payment Date will bear additional interest on the amount thereof
(to the extent permitted by law) at the periodic rate determined
as provided below, compounded quarterly from the relevant Inter-
13
est Payment Date. If an Interest Payment Date is not a
Business Day, then such Interest Payment Date and the first day
of the Interest Period commencing on such Interest Payment Date
shall be postponed to the next succeeding Business Day, except if
such Business Day is in the next succeeding calendar month, such
Interest Payment Date and the first day of such Interest Period
will be the immediately preceding Business Day. The term
"interest" as used herein shall include quarterly interest
payments, interest on quarterly interest payments not paid on the
applicable Interest Payment Date (to the extent permitted by law)
and Additional Interest, as applicable.
(c) The per annum rate of interest payable with
respect to the Securities shall equal LIBOR plus _____% (the
"Interest Rate"). The Interest Rate on the Securities for each
Interest Period will be adjusted on the first day of such
Interest Period based on LIBOR determined as of two London
Business Days prior to the first day of such Interest Period
(each, a "Determination Date").
"LIBOR" with respect to any Determination Date will be
determined by the Calculation Agent in accordance with the
following provisions (in the following order of priority):
(1) the rate (expressed as a percentage per
annum) for U.S. dollar deposits having a three-month
maturity that appears on Telerate Page 3750 as of 11:00 a.m.
(London time) on the related Determination Date;
(2) if such rate does not appear on Telerate Page
3750 as of 11:00 a.m. (London time) on the related
Determination Date, LIBOR will be the arithmetic mean (if
necessary rounded upwards to the nearest whole multiple of
0.00001%) of the rates (expressed as percentages per annum)
for U.S. dollar deposits having a three-month maturity that
appear on Reuters Monitor Money Rates Page LIBO ("Reuters
Page LIBO") as of 11:00 a.m. (London time) on such
Determination Date;
(3) if such rate does not appear on Reuters Page
LIBO as of 11:00 a.m. (London time) on the related
Determination Date, the Calculation Agent will request the
principal London offices of four leading banks in the London
interbank market to provide such banks' offered quotations
(expressed as percentages per annum) to prime banks in the
London interbank market for U.S. dollar deposits having a
three-month maturity as of 11:00 a.m. (London time) on such
Determination Date and, if at least two quotations are so
provided, LIBOR will be the arithmetic mean (if necessary
rounded upwards to the nearest whole multiple of 0.00001%)
of such quotations;
14
(4) if fewer than two such quotations are
provided as requested in clause (3) above, the Calculation
Agent will request four major New York City banks to provide
such banks' offered quotations (expressed as percentages per
annum) to leading European banks for loans in U.S. dollars
having a three-month maturity as of 11:00 a.m. (London time)
on such Determination Date and, if at least two such
quotations are so provided, LIBOR will be the arithmetic
mean (if necessary rounded upwards to the nearest whole
multiple of 0.00001%) of such quotations; and
(5) if fewer than two such quotations are
provided as requested in clause (4) above, LIBOR will be
LIBOR as determined on the immediately preceding
Determination Date.
If the rate for U.S. dollar deposits having a
three-month maturity that initially appears on Telerate Page 3750
or Reuters Page LIBO, as the case may be, as of 11:00 a.m.
(London time) on the related Determination Date is superseded on
Telerate Page 3750 or Reuters Page LIBO, as the case may be, by a
corrected rate before 12:00 noon (London time) on such
Determination Date, such corrected rate will be the applicable
LIBOR for such Determination Date.
As used herein, "London Business Day" means a day on
which dealings in deposits in U.S. dollars are transacted in the
London interbank market.
The Calculation Agent will, upon the request of any
Securityholder, provide the Interest Rate then in effect. Absent
manifest error, the Calculation Agent's determination of LIBOR
and its calculation of the applicable Interest Rate will be final
and binding on the holders of the Securities.
All percentages resulting from any calculation of
interest on the Securities will be rounded to the nearest one
hundred-thousandth of a percentage point, with five
one-millionths of a percentage point rounded upward (e.g.,
5.687665% (or .05687665) would be rounded to 5.68767% (or
.0568767)), and all dollar amounts used or resulting from such
calculation will be rounded to the nearest cent (with one-half
cent being rounded upward).
The Interest Rate on the Securities will in no event be
higher than the maximum rate permitted by New York law, as the
same may be modified by United States law of general application.
(d) During such time as the Property Trustee is the
holder of any Securities, the Company shall pay any additional
amounts on the Securities as may be necessary in order that the
amount of distributions then due and payable by the Trust on the
outstanding Trust Securities shall not be reduced as a result of
15
any additional taxes, duties and other governmental charges to
which the Trust has become subject as a result of a Tax Event
("Additional Interest").
(e) The Company hereby appoints The Bank of New York
as the Calculation Agent with respect to the Securities to be
issued by the Company. The Bank of New York hereby accepts its
appointment to determine LIBOR and calculate the Interest Rate
of, and the amount of interest payable on, the Securities for
each Interest Period pursuant to the terms set forth herein and
in the Securities.
In the event of a resignation or removal of The Bank of
New York as the Calculation Agent, the Company shall promptly
appoint a successor Calculation Agent. Such successor
Calculation Agent shall, without any further act, deed or
conveyance, become vested with all of the authority, rights,
duties and obligations of the Calculation Agent with the like
effect as if originally appointed as Calculation Agent.
SECTION 2.07. Transfer and Exchange.
(a) [Reserved].
(b) The Company shall cause to be kept at the
principal office of the Trustee a register in which, subject to
such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Securities and of transfers
of Securities. Such register is herein sometimes referred to as
the "Securities Register."
To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate
Definitive Securities and Global Securities at the Trustee's
request. All Definitive Securities and Global Securities issued
upon any registration of transfer or exchange of Definitive
Securities or Global Securities shall be the valid obligations of
the Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Definitive Securities or
Global Securities surrendered upon such registration of transfer
or exchange.
No service charge shall be made to a holder for any
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith.
The Company shall not be required to (i) issue,
register the transfer of or exchange Securities during a period
beginning at the opening of business 15 days before the day of
mailing of a notice of redemption or any notice of selection of
Securities for redemption under Article XV hereof and ending at
the close of business on the day of such mailing; or (ii) regis-
16
ter the transfer of or exchange any Security so selected for
redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
Prior to due presentment for the registration of a
transfer of any Security, the Trustee, any Agent and the Company
may deem and treat the Person in whose name any Security is
registered as the absolute owner of such Security for the purpose
of receiving payment of principal of and premium, if any, and
interest on such Securities, and neither the Trustee, any Agent
nor the Company shall be affected by notice to the contrary.
SECTION 2.08. Replacement Securities.
If any mutilated Security is surrendered to the
Trustee, or the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Security,
the Company shall issue and the Trustee shall authenticate a
replacement Security if the Trustee's requirements for
replacements of Securities are met. An indemnity bond must be
supplied by the holder that is sufficient in the judgment of the
Trustee and the Company to protect the Company, the Trustee, any
Agent or any authenticating agent from any loss that any of them
may suffer if a Security is replaced. The Company or the Trustee
may charge for its expenses in replacing a Security.
Every replacement Security is an obligation of the
Company and shall be entitled to all of the benefits of this
Indenture equally and proportionately with all other Securities
duly issued hereunder.
SECTION 2.09. Treasury Securities.
In determining whether the holders of the required
principal amount of Securities have concurred in any direction,
waiver or consent, Securities owned by the Company or any
Affiliate of the Company shall be considered as though not
outstanding, except that for purposes of determining whether the
Trustee shall be protected in relying on any such direction,
waiver or consent, only Securities that a Responsible Officer of
the Trustee actually knows to be so owned shall be so considered.
SECTION 2.10. Temporary Securities.
Pending the preparation of Definitive Securities, the
Company may execute, and upon Company Order the Trustee shall
authenticate and make available for delivery, temporary
Securities that are printed, lithographed, typewritten,
mimeographed or otherwise reproduced, in any authorized
denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other
variations as the officers executing such
17
Securities may determine, as conclusively evidenced by their
execution of such Securities.
If temporary Securities are issued, the Company shall
cause Definitive Securities to be prepared without unreasonable
delay. The Definitive Securities shall be printed, lithographed
or engraved, or provided by any combination thereof, or in any
other manner permitted by the rules and regulations of any
applicable securities exchange or interdealer quotation system,
all as determined by the officers executing such Definitive
Securities. After the preparation of Definitive Securities, the
temporary Securities shall be exchangeable for Definitive
Securities upon surrender of the temporary Securities at the
office or agency maintained by the Company for such purpose
pursuant to Section 3.02 hereof, without charge to the holder.
Upon surrender for cancellation of any one or more temporary
Securities, the Company shall execute, and the Trustee shall
authenticate and make available for delivery, in exchange
therefor the same aggregate principal amount of Definitive
Securities of authorized denominations. Until so exchanged, the
temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as Definitive Securities.
SECTION 2.11. Cancellation.
The Company at any time may deliver Securities to the
Trustee for cancellation. The Trustee and no one else shall
cancel all Securities surrendered for registration of transfer,
exchange, payment, replacement or cancellation and shall retain
or destroy cancelled Securities in accordance with its normal
practices (subject to the record retention requirement of the
Exchange Act) unless the Company directs them to be returned to
it. The Company may not issue new Securities to replace
Securities that have been redeemed or paid or that have been
delivered to the Trustee for cancellation. All cancelled
Securities held by the Trustee shall be delivered to the Company.
SECTION 2.12. Defaulted Interest.
Any interest on any Security that is payable, but is
not punctually paid or duly provided for, on any Interest Payment
Date (herein called "Defaulted Interest") shall forthwith cease
to be payable to the holder on the relevant regular record date
by virtue of having been such holder; and such Defaulted Interest
shall be paid by the Company, at its election, as provided in
clause (a) or clause (b) below:
(a) The Company may make payment of any Defaulted
Interest on Securities to the Persons in whose names such
Securities (or their respective Predecessor Securities) are
registered at the close of business on a special record date
for the payment of such Defaulted Interest, which shall be
18
fixed in the following manner: the Company shall notify the
Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Security and the date of
the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon
the Trustee shall fix a special record date for the payment
of such Defaulted Interest which shall not be more than 15
nor less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such special record
date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted
Interest and the special record date therefor to be mailed,
first class postage prepaid, to each Securityholder at his
or her address as it appears in the Security Register, not
less than 10 days prior to such special record date. Notice
of the proposed payment of such Defaulted Interest and the
special record date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the
Persons in whose names such Securities (or their respective
Predecessor Securities) are registered on such special
record date and shall be no longer payable pursuant to the
following clause (b).
(b) The Company may make payment of any Defaulted
Interest on any Securities in any other lawful manner not
inconsistent with the requirements of any securities
exchange or interdealer quotation system on which such
Securities may be listed, and upon such notice as may be
required by such exchange or interdealer quotation system,
if, after notice given by the Company to the Trustees of the
proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
SECTION 2.13. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP"
numbers (if then generally in use), and, if so, the Trustee shall
use "CUSIP" numbers in notices of redemption as a convenience to
Securityholders; provided that any such notice may state that no
representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice
of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of
19
such numbers. The Company will promptly notify the Trustee of
any change in the CUSIP numbers.
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01. Payment of Principal, Premium and
Interest.
The Company covenants and agrees for the benefit of the
holders of the Securities that it will duly and punctually pay or
cause to be paid the principal of and premium, if any, and
interest on the Securities at the place, at the respective times
and in the manner provided herein.
SECTION 3.02. Offices for Notices and Payments, etc.
So long as any of the Securities remains outstanding,
the Company will maintain in the Borough of Manhattan, The City
of New York, an office or agency where the Securities may be
presented for payment, an office or agency where the Securities
may be presented for registration of transfer and for exchange as
in this Indenture provided and an office or agency where notices
and demands to or upon the Company in respect of the Securities
or of this Indenture may be served. The Company will give to the
Trustee written notice of the location of any such office or
agency and of any change of location thereof. Until otherwise
designated from time to time by the Company in a notice to the
Trustee, any such office or agency for all of the above purposes
shall be the office or agency of the Trustee. In case the
Company shall fail to maintain any such office or agency in the
Borough of Manhattan, The City of New York, or shall fail to give
such notice of the location or of any change in the location
thereof, presentations and demands may be made and notices may be
served at the principal corporate trust office of the Trustee.
In addition to any such office or agency, the Company
may from time to time designate one or more offices or agencies
outside the Borough of Manhattan, The City of New York, where the
Securities may be presented for registration of transfer and for
exchange in the manner provided in this Indenture, and the
Company may from time to time rescind such designation, as the
Company may deem desirable or expedient; provided, however, that
no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain any such office or agency
in the Borough of Manhattan, The City of New York, for the
purposes above mentioned. The Company will give to the Trustee
prompt written notice of any such designation or rescission
thereof.
20
SECTION 3.03. Appointments to Fill Vacancies in
Trustee's Office.
The Company, whenever necessary to avoid or fill a
vacancy in the office of Trustee, will appoint, in the manner
provided in Section 6.10, a Trustee, so that there shall at all
times be a Trustee hereunder.
SECTION 3.04. Provision as to Paying Agent.
(a) If the Company shall appoint a paying agent other
than the Trustee with respect to the Securities,
it will cause such paying agent to execute and
deliver to the Trustee an instrument in which such
agent shall agree with the Trustee, subject to the
provision of this Section 3.04,
(1) that it will hold all sums held by it as such
agent for the payment of the principal of and
premium, if any, or interest on the
Securities (whether such sums have been paid
to it by the Company or by any other obligor
on the Securities) in trust for the benefit
of the holders of the Securities; and
(2) that it will give the Trustee notice of any
failure by the Company (or by any other
obligor on the Securities) to make any
payment of the principal of and premium or
interest on the Securities when the same
shall be due and payable.
(b) If the Company shall act as its own paying agent,
it will, on or before each due date of the
principal of and premium, if any, or interest on
the Securities, set aside, segregate and hold in
trust for the benefit of the holders of the
Securities a sum sufficient to pay such principal,
premium or interest so becoming due and will
notify the Trustee of any failure to take such
action and of any failure by the Company (or by
any other obligor under the Securities) to make
any payment of the principal of and premium, if
any, or interest on the Securities when the same
shall become due and payable.
(c) Anything in this Section 3.04 to the contrary
notwithstanding, the Company may, at any time, for
the purpose of obtaining a satisfaction and
discharge with respect to the Securities
hereunder, or for any other reason, pay or cause
to be paid to the Trustee all sums held in trust
for any such
21
Securities by the Trustee or any paying agent hereunder,
as required by this Section 3.04, such sums to be held
by the Trustee upon the trusts herein contained.
(d) Anything in this Section 3.04 to the contrary
notwithstanding, the agreement to hold sums in
trust as provided in this Section 3.04 is subject
to Sections 11.03 and 11.04.
SECTION 3.05. Certificate to Trustee.
The Company will deliver to the Trustee on or before
120 days after the end of each fiscal year in each year,
commencing with the first fiscal year ending after the date
hereof, so long as Securities are outstanding hereunder, an
Officers' Certificate, one of the signers of which shall be the
principal executive, principal financial or principal accounting
officer of the Company stating that in the course of the
performance by the signers of their duties as officers of the
Company they would normally have knowledge of any default by the
Company in the performance of any covenants contained herein,
stating whether or not they have knowledge of any such default
and, if so, specifying each such default of which the signers
have knowledge and the nature thereof.
SECTION 3.06. Compliance with Consolidation
Provisions.
The Company will not, while any of the Securities
remain outstanding, consolidate with, or merge into, or merge
into itself, or sell or convey all or substantially all of its
property to any other Person unless the provisions of Article X
hereof are complied with.
SECTION 3.07. Limitation on Dividends.
The Company will not (i) declare or pay any dividends
or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Company's capital
stock (which includes common and preferred stock) or (ii) make
any payment of principal, interest or premium, if any, on or
repay or repurchase or redeem any debt securities of the Company
(including any Other Debentures) that rank pari passu with or
junior in right of payment to the Securities or (iii) make any
guarantee payments with respect to any guarantee by the Company
of the debt securities of any Subsidiary of the Company
(including Other Guarantees) if such guarantee ranks pari passu
or junior in right of payment to the Securities (other than (a)
dividends or distributions in shares of, or options, warrants or
rights to subscribe for or purchase shares of, Common Stock of
the Company, (b) any declaration of a dividend in connection with
22
the implementation of a stockholder's rights plan, or the
issuance of stock under any such plan in the future, or the
redemption or repurchase of any such rights pursuant thereto, (c)
payments under the Capital Securities Guarantee and (d) as a
result of a reclassification of the Company's capital stock or
the exchange or the conversion of one class or series of the
Company's capital stock for another class or series of the
Company's capital stock; (e) the purchase of fractional interests
in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the
security being converted or exchanged; and (f) purchases of
Common Stock related to the issuance of Common Stock or rights
under any of the Company's benefit plans for its directors,
officers or employees or any of the Company's dividend
reinvestment plans) if at such time (i) there shall have occurred
any event of which the Company has actual knowledge that (a) with
the giving of notice or the lapse of time, or both, would
constitute an Event of Default and (b) in respect of which the
Company shall not have taken reasonable steps to cure, (ii) if
such Securities are held by the Property Trustee, the Company
shall be in default with respect to its payment of any
obligations under the Capital Securities Guarantee or (iii) the
Company shall have given notice of its election of the exercise
of its right to extend the interest payment period pursuant to
Section 16.01 and any such extension shall be continuing.
SECTION 3.08. Covenants as to the Trust
In the event Securities are issued to the Trust or a
trustee of such trust in connection with the issuance of Trust
Securities by the Trust, for so long as such Trust Securities
remain outstanding, the Company will (i) maintain 100% direct
ownership of the Common Securities of the Trust; provided,
however, that any successor of the Company, permitted pursuant to
Article X, may succeed to the Company's ownership of such Common
Securities, (ii) use its reasonable efforts to cause the Trust
(a) to remain a business trust, except in connection with a
distribution of Securities, the redemption of all of the Trust
Securities of the Trust or certain mergers, consolidations or
amalgamations, each as permitted by the Declaration of the Trust,
and (b) to otherwise continue to be treated as a grantor trust
and not an association taxable as a corporation for United States
Federal income tax purposes and (iii) to use its reasonable
efforts to cause each holder of Trust Securities to be treated as
owning an individual beneficial interest in the Securities.
SECTION 3.09. Payment of Expenses.
In connection with the offering, sale and issuance of
the Securities to the Trust and in connection with the sale of
the Trust Securities by the Trust, the Company, in its capacity
as borrower with respect to the Securities, shall:
23
(a) pay all costs and expenses relating to the
offering, sale and issuance of the Securities, including
commissions to the initial purchasers payable pursuant to the
Purchase Agreement, fees and expenses in connection with the
registration of the Securities under the Securities Act and
compensation of the Trustee in accordance with the provisions of
Section 6.06;
(b) pay all costs and expenses of the Trust
(including, but not limited to, costs and expenses relating to
the organization of the Trust, the offering, sale and issuance of
the Trust Securities (including commissions to the initial
purchasers in connection therewith), the fees and expenses of the
Property Trustee and the Delaware Trustee, the costs and expenses
relating to the operation of the Trust, including without
limitation, costs and expenses of accountants, attorneys,
statistical or bookkeeping services, expenses for printing and
engraving and computing or accounting equipment, paying agent(s),
registrar(s), transfer agent(s), duplicating, travel and
telephone and other telecommunications expenses and costs and
expenses incurred in connection with the acquisition, financing,
and disposition of Trust assets;
(c) be primarily and fully liable for any
indemnification obligations arising with respect to the
Declaration;
(d) pay any and all taxes (other than United States
withholding taxes attributable to the Trust or its assets) and
all liabilities, costs and expenses with respect to such taxes of
the Trust; and
(e) pay all other fees, expenses, debts and
obligations (other than the Trust Securities) related to the
Trust.
SECTION 3.10. Payment Upon Resignation or Removal.
Upon termination of this Indenture or the removal or
resignation of the Trustee, unless otherwise stated, the Company
shall pay to the Trustee all amounts accrued and owing to the
date of such termination, removal or resignation. Upon
termination of the Declaration or the removal or resignation of
the Delaware Trustee or the Property Trustee, as the case may be,
pursuant to Section 5.7 of the Declaration, the Company shall pay
to the Delaware Trustee or the Property Trustee, as the case may
be, all amounts accrued and owing to the date of such
termination, removal or resignation.
24
ARTICLE IV
SECURITYHOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
SECTION 4.01. Securityholders' Lists.
The Company covenants and agrees that it will furnish
or cause to be furnished to the Trustee:
(a) on a semi-annual basis on November 15 and May 15
of each year, a list, in such form as the Trustee
may reasonably require, of the names and addresses
of the Securityholders as of such record date; and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the
Company, of any such request, a list of similar
form and content as of a date not more than 15
days prior to the time such list is furnished,
except that, no such lists need be furnished so
long as the Trustee is in possession thereof by
reason of its acting as Security registrar.
SECTION 4.02. Preservation and Disclosure of Lists.
(a) The Trustee shall preserve, in as current a form
as is reasonably practicable, all information as
to the names and addresses of the holders of the
Securities (1) contained in the most recent list
furnished to it as provided in Section 4.01 or (2)
received by it in the capacity of Securities
registrar (if so acting) hereunder. The Trustee
may destroy any list furnished to it as provided
in Section 4.01 upon receipt of a new list so
furnished.
(b) In case three or more holders of Securities
(hereinafter referred to as "applicants") apply in
writing to the Trustee and furnish to the Trustee
reasonable proof that each such applicant has
owned a Security for a period of at least six
months preceding the date of such application, and
such application states that the applicants desire
to communicate with other holders of Securities or
with holders of all Securities with respect to
their rights under this Indenture and is
accompanied by a copy of the form of proxy or
other communication which such applicants propose
to transmit, then the Trustee shall within 5
Business Days after the receipt of such
application, at its election, either:
25
(1) afford such applicants access to the information
preserved at the time by the Trustee in accordance
with the provisions of subsection (a) of this
Section 4.02, or
(2) inform such applicants as to the approximate
number of holders of all Securities, whose names
and addresses appear in the information preserved
at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section 4.02,
and as to the approximate cost of mailing to such
Securityholders the form of proxy or other
communication, if any, specified in such
application.
If the Trustee shall elect not to afford such
applicants access to such information, the Trustee
shall, upon the written request of such
applicants, mail to each Securityholder whose name
and address appear in the information preserved at
the time by the Trustee in accordance with the
provisions of subsection (a) of this Section 4.02
a copy of the form of proxy or other communication
which is specified in such request with reasonable
promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision
for the payment, of the reasonable expenses of
mailing, unless within five days after such
tender, the Trustee shall mail to such applicants
and file with the Commission, together with a copy
of the material to be mailed, a written statement
to the effect that, in the opinion of the Trustee,
such mailing would be contrary to the best
interests of the holders of Securities or would be
in violation of applicable law. Such written
statement shall specify the basis of such opinion.
If the Commission, after opportunity for a hearing
upon the objections specified in the written
statement so filed, shall enter an order refusing
to sustain any of such objections or if, after the
entry of an order sustaining one or more of such
objections, the Commission shall find, after
notice and opportunity for hearing, that all the
objections so sustained have been met and shall
enter an order so declaring, the Trustee shall
mail copies of such material to all such
Securityholders with reasonable promptness after
the entry of such order and the renewal of such
tender; otherwise the Trustee shall be relieved of
any obligation or duty to such applicants
respecting their application.
26
(c) Each and every holder of Securities, by receiving
and holding the same, agrees with the Company and
the Trustee that neither the Company nor the
Trustee nor any paying agent shall be held
accountable by reason of the disclosure of any
such information as to the names and addresses of
the holders of Securities in accordance with the
provisions of subsection (b) of this Section 4.02,
regardless of the source from which such
information was derived, and that the Trustee
shall not be held accountable by reason of mailing
any material pursuant to a request made under said
subsection (b).
SECTION 4.03. Reports by Company.
(a) The Company covenants and agrees to file with the
Trustee, within 15 days after the date on which
the Company is required to file the same with the
Commission, copies of the annual reports and of
the information, documents and other reports (or
copies of such portions of any of the foregoing as
said Commission may from time to time by rules and
regulations prescribe) which the Company may be
required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act;
or, if the Company is not required to file
information, documents or reports pursuant to
either of such sections, then to file with the
Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time
by the Commission, such of the supplementary and
periodic information, documents and reports which
may be required pursuant to Section 13 of the
Exchange Act in respect of a security listed and
registered on a national securities exchange as
may be prescribed from time to time in such rules
and regulations.
(b) The Company covenants and agrees to file with the
Trustee and the Commission, in accordance with the
rules and regulations prescribed from time to time
by said Commission, such additional information,
documents and reports with respect to compliance
by the Company with the conditions and covenants
provided for in this Indenture as may be required
from time to time by such rules and regulations.
(c) The Company covenants and agrees to transmit by
mail to all holders of Securities, as the names
and addresses of such holders appear upon the
Security Register, within 30 days after the filing
27
thereof with the Trustee, such summaries of any
information, documents and reports required to be
filed by the Company pursuant to subsections (a)
and (b) of this Section 4.03 as may be required by
rules and regulations prescribed from time to time
by the Commission.
(d) Delivery of such reports, information and
documents to the Trustee is for informational
purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any
information contained therein or determinable from
information contained therein, including the
Company's compliance with any of its covenants
hereunder (as to which the Trustee is entitled to
rely exclusively on Officers' Certificates).
SECTION 4.04. Reports by the Trustee.
(a) The Trustee shall transmit to Securityholders such
reports concerning the Trustee and its actions
under this Indenture as may be required pursuant
to the Trust Indenture Act at the times and in the
manner provided pursuant thereto. If required by
Section 313(a) of the Trust Indenture Act, the
Trustee shall, within sixty days after each
December 15 following the date of this Indenture,
commencing December 15, 1997, deliver to
Securityholders a brief report, dated as of such
December 15, which complies with the provisions of
such Section 313(a).
(b) A copy of each such report shall, at the time of
such transmission to Securityholders, be filed by
the Trustee with each stock exchange, if any, upon
which the Securities are listed, with the
Commission and with the Company. The Company will
promptly notify the Trustee when the Securities
are listed on any stock exchange.
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.01. Events of Default.
One or more of the following events of default shall
constitute an Event of Default hereunder:
(a) default in the payment of any interest upon any
Security or any Other Debentures when it becomes
28
due and payable, and continuance of such default
for a period of 30 days; provided, however, that a
valid extension of an interest payment period by
the Company in accordance with the terms hereof or
thereof shall not constitute a default in the
payment of interest for this purpose; or
(b) default in the payment of all or any part of the
principal of (or premium, if any, on) any Security
or any Other Debentures as and when the same shall
become due and payable, whether at maturity, upon
redemption, by declaration or otherwise; or
(c) default in the performance, or breach, of any
covenant or warranty of the Company in this
Indenture (other than a covenant or warranty a
default in whose performance or whose breach is
elsewhere in this Section specifically dealt
with), and continuance of such default or breach
for a period of 90 days after there has been
given, by registered or certified mail, to the
Company by the Trustee or to the Company and the
Trustee by the holders of at least 25% in
aggregate principal amount of the outstanding
Securities a written notice specifying such
default or breach and requiring it to be remedied
and stating that such notice is a "Notice of
Default" hereunder; or
(d) a court having jurisdiction in the premises shall
enter a decree or order for relief in respect of
the Company in an involuntary case under any
applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the
Company or for any substantial part of its
property, or ordering the winding-up or
liquidation of its affairs and such decree or
order shall remain unstayed and in effect for a
period of 90 consecutive days; or
(e) the Company shall commence a voluntary case under
any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, shall
consent to the entry of an order for relief in an
involuntary case under any such law, or shall
consent to the appointment of or taking possession
by a receiver, liquidator, assignee, trustee,
custodian, sequestrator (or other similar
official) of the Company or of any substantial
part of its property, or shall make any general
assignment
29
for the benefit of creditors, or shall fail
generally to pay its debts as they become due.
If an Event of Default with respect to Securities at
the time outstanding occurs and is continuing, then in every such
case the Trustee or the holders of not less than 25% in aggregate
principal amount of the Securities then outstanding may declare
the principal amount of all Securities to be due and payable
immediately, by a notice in writing to the Company (and to the
Trustee if given by the holders of the outstanding Securities),
and upon any such declaration the same shall become immediately
due and payable.
The foregoing provisions, however, are subject to the
condition that if, at any time after the principal of the
Securities shall have been so declared due and payable, and
before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, (i)
the Company shall pay or shall deposit with the Trustee a sum
sufficient to pay (A) all matured installments of interest upon
all the Securities and the principal of and premium, if any, on
any and all Securities which shall have become due otherwise than
by acceleration (with interest upon such principal and premium,
if any, and, to the extent that payment of such interest is
enforceable under applicable law, on overdue installments of
interest, at the same rate as the rate of interest specified in
the Securities to the date of such payment or deposit) and (B)
such amount as shall be sufficient to cover reasonable
compensation to the Trustee and each predecessor Trustee, their
respective agents, attorneys and counsel, and all other expenses
and liabilities incurred, and all advances made, by the Trustee
and each predecessor Trustee except as a result of negligence or
bad faith, and (ii) any and all Events of Default under the
Indenture shall have been cured, waived or otherwise remedied as
provided herein, then, in every such case, the holders of a
majority in aggregate principal amount of the Securities then
outstanding, by written notice to the Company and to the Trustee,
may rescind and annul such declaration and its consequences, but
no such waiver or rescission and annulment shall extend to or
shall affect any subsequent default or shall impair any right
consequent thereon.
In case the Trustee shall have proceeded to enforce any
right under this Indenture and such proceedings shall have been
discontinued or abandoned because of such rescission or annulment
or for any other reason or shall have been determined adversely
to the Trustee, then and in every such case the Company, the
Trustee and the holders of the Securities shall be restored
respectively to their several positions and rights hereunder, and
all rights, remedies and powers of the Company, the Trustee and
the holders of the Securities shall continue as though no such
proceeding had been taken.
30
SECTION 5.02. Payment of Securities on Default; Suit
Therefor.
The Company covenants that (a) in case default shall be
made in the payment of any installment of interest upon any of
the Securities as and when the same shall become due and payable,
and such default shall have continued for a period of 30 days, or
(b) in case default shall be made in the payment of the principal
of or premium, if any, on any of the Securities as and when the
same shall have become due and payable, whether at maturity of
the Securities or upon redemption or by declaration or otherwise,
then, upon demand of the Trustee, the Company will pay to the
Trustee, for the benefit of the holders of the Securities, the
whole amount that then shall have become due and payable on all
such Securities for principal and premium, if any, or interest,
or both, as the case may be, with interest upon the overdue
principal and premium, if any, and (to the extent that payment of
such interest is enforceable under applicable law and, if the
Securities are held by the Trust or a trustee of such trust,
without duplication of any other amounts paid by the Trust or
trustee in respect thereof) upon the overdue installments of
interest at the rate borne by the Securities; and, in addition
thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including a reasonable
compensation to the Trustee, its agents, attorneys and counsel,
and any expenses or liabilities incurred by the Trustee hereunder
other than through its negligence or bad faith.
In case the Company shall fail forthwith to pay such
amounts upon such demand, the Trustee, in its own name and as
trustee of an express trust, shall be entitled and empowered to
institute any actions or proceedings at law or in equity for the
collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may
enforce any such judgment or final decree against the Company or
any other obligor on the Securities and collect in the manner
provided by law out of the property of the Company or any other
obligor on the Securities wherever situated the moneys adjudged
or decreed to be payable.
In case there shall be pending proceedings for the
bankruptcy or for the reorganization of the Company or any other
obligor on the Securities under Title 11, United States Code, or
any other applicable law, or in case a receiver or trustee shall
have been appointed for the property of the Company or such other
obligor, or in the case of any other similar judicial proceedings
relative to the Company or other obligor upon the Securities, or
to the creditors or property of the Company or such other
obligor, the Trustee, irrespective of whether the principal of
the Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand pursuant to the provisions of
31
this Section 5.02, shall be entitled and empowered, by
intervention in such proceedings or otherwise, to file and prove
a claim or claims for the whole amount of principal and interest
owing and unpaid in respect of the Securities and, in case of any
judicial proceedings, to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for
reasonable compensation to the Trustee and each predecessor
Trustee, and their respective agents, attorneys and counsel, and
for reimbursement of all expenses and liabilities incurred, and
all advances made, by the Trustee and each predecessor Trustee,
except as a result of negligence or bad faith) and of the
Securityholders allowed in such judicial proceedings relative to
the Company or any other obligor on the Securities, or to the
creditors or property of the Company or such other obligor,
unless prohibited by applicable law and regulations, to vote on
behalf of the holders of the Securities in any election of a
trustee or a standby trustee in arrangement, reorganization,
liquidation or other bankruptcy or insolvency proceedings or
person performing similar functions in comparable proceedings,
and to collect and receive any moneys or other property payable
or deliverable on any such claims, and to distribute the same
after the deduction of its charges and expenses; and any
receiver, assignee or trustee in bankruptcy or reorganization is
hereby authorized by each of the Securityholders to make such
payments to the Trustee, and, in the event that the Trustee shall
consent to the making of such payments directly to the
Securityholders, to pay to the Trustee such amounts as shall be
sufficient to cover reasonable compensation to the Trustee, each
predecessor Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee except
as a result of negligence or bad faith.
Nothing herein contained shall be construed to
authorize the Trustee to authorize or consent to or accept or
adopt on behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities
or the rights of any holder thereof or to authorize the Trustee
to vote in respect of the claim of any Securityholder in any such
proceeding.
All rights of action and of asserting claims under this
Indenture, or under any of the Securities, may be enforced by the
Trustee without the possession of any of the Securities, or the
production thereof on any trial or other proceeding relative
thereto, and any such suit or proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment shall be for the ratable
benefit of the holders of the Securities.
32
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this
Indenture to which the Trustee shall be a party) the Trustee
shall be held to represent all the holders of the Securities, and
it shall not be necessary to make any holders of the Securities
parties to any such proceedings.
SECTION 5.03. Application of Moneys Collected by
Trustee.
Any moneys collected by the Trustee shall be applied in
the order following, at the date or dates fixed by the Trustee
for the distribution of such moneys, upon presentation of the
Securities in respect of which moneys have been collected, and
stamping thereon the payment, if only partially paid, and upon
surrender thereof if fully paid:
First: To the payment of costs and expenses of
collection applicable to the Securities and reasonable
compensation to the Trustee, its agents, attorneys and counsel,
and of all other expenses and liabilities incurred, and all
advances made, by the Trustee except as a result of its
negligence or bad faith;
Second: To the payment of all Senior Indebtedness of
the Company if and to the extent required by Article XV;
Third: To the payment of the amounts then due and
unpaid upon Securities for principal of (and premium, if any) and
interest on the Securities, in respect of which or for the
benefit of which money has been collected, ratably, without
preference of priority of any kind, according to the amounts due
on such Securities for principal (and premium, if any) and
interest, respectively; and
Fourth: To the Company.
SECTION 5.04. Proceedings by Securityholders.
No holder of any Security shall have any right by
virtue of or by availing of any provision of this Indenture to
institute any suit, action or proceeding in equity or at law upon
or under or with respect to this Indenture or for the appointment
of a receiver or trustee, or for any other remedy hereunder,
unless such holder previously shall have given to the Trustee
written notice of an Event of Default and of the continuance
thereof with respect to the Securities specifying such Event of
Default, as hereinbefore provided, and unless also the holders of
not less than 25% in aggregate principal amount of the Securities
then outstanding shall have made written request upon the Trustee
to institute such action, suit or proceeding in its own name as
Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expens-
33
es and liabilities to be incurred therein or thereby, and
the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity shall have failed to institute any such
action, suit or proceeding, it being understood and intended, and
being expressly covenanted by the taker and holder of every
Security with every other taker and holder and the Trustee, that
no one or more holders of Securities shall have any right in any
manner whatever by virtue of or by availing of any provision of
this Indenture to affect, disturb or prejudice the rights of any
other holder of Securities, or to obtain or seek to obtain
priority over or preference to any other such holder, or to
enforce any right under this Indenture, except in the manner
herein provided and for the equal, ratable and common benefit of
all holders of Securities.
Notwithstanding any other provisions in this Indenture,
however, the right of any holder of any Security to receive
payment of the principal of (premium, if any) and interest on
such Security, on or after the same shall have become due and
payable, or to institute suit for the enforcement of any such
payment, shall not be impaired or affected without the consent of
such holder and by accepting a Security hereunder it is expressly
understood, intended and covenanted by the taker and holder of
every Security with every other such taker and holder and the
Trustee, that no one or more holders of Securities shall have any
right in any manner whatsoever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the
rights of the holders of any other Securities, or to obtain or
seek to obtain priority over or preference to any other such
holder, or to enforce any right under this Indenture, except in
the manner herein provided and for the equal, ratable and common
benefit of all holders of Securities. For the protection and
enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief
as can be given either at law or in equity.
The Company and the Trustee acknowledge that pursuant
to the Declaration, the holders of Capital Securities are
entitled, in the circumstances and subject to the limitations set
forth therein, to commence a Direct Action with respect to any
Event of Default under this Indenture and the Securities.
SECTION 5.05. Proceedings by Trustee.
In case an Event of Default occurs with respect to
Securities and is continuing, the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any of such
rights, either by suit in equity or by action at law or by
proceeding in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this
34
Indenture or in aid of the exercise of any power granted in this
Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
SECTION 5.06. Remedies Cumulative and Continuing.
All powers and remedies given by this Article V to the
Trustee or to the Securityholders shall, to the extent permitted
by law, be deemed cumulative and not exclusive of any other
powers and remedies available to the Trustee or the holders of
the Securities, by judicial proceedings or otherwise, to enforce
the performance or observance of the covenants and agreements
contained in this Indenture or otherwise established with respect
to the Securities, and no delay or omission of the Trustee or of
any holder of any of the Securities to exercise any right or
power accruing upon any Event of Default occurring and continuing
as aforesaid shall impair any such right or power, or shall be
construed to be a waiver of any such default or an acquiescence
therein; and, subject to the provisions of Section 5.04, every
power and remedy given by this Article V or by law to the Trustee
or to the Securityholders may be exercised from time to time, and
as often as shall be deemed expedient, by the Trustee or by the
Securityholders.
SECTION 5.07. Direction of Proceedings and Xxxxxx of
Defaults by Majority of Securityholders.
The holders of a majority in aggregate principal amount
of the Securities at the time outstanding shall have the right to
direct the time, method, and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee; provided, however, that
(subject to the provisions of Section 6.01) the Trustee shall
have the right to decline to follow any such direction if the
Trustee shall determine that the action so directed would be
unjustly prejudicial to the holders not taking part in such
direction or if the Trustee being advised by counsel determines
that the action or proceeding so directed may not lawfully be
taken or if the Trustee in good faith by its board of directors
or trustees, executive committee, or a trust committee of
directors or trustees and/or Responsible Officers shall determine
that the action or proceedings so directed would involve the
Trustee in personal liability. Prior to any declaration
accelerating the maturity of the Securities, the holders of a
majority in aggregate principal amount of the Securities at the
time outstanding may on behalf of the holders of all of the
Securities waive any past default or Event of Default and its
consequences except a default (a) in the payment of principal of
or premium, if any, or interest on any of the Securities or (b)
in respect of covenants or provisions hereof which cannot be
modified or amended without the consent of the holder of each
Security affected; provided, however, that if the Securities are
held by Property Trustee,
35
such waiver or modification to such waiver shall not be effective until the
holders of a majority in aggregate liquidation amount of Trust Securities
shall have consented to such waiver or modification to such waiver;
provided further, that if the consent of the holder of each outstanding
Security is required, such waiver shall not be effective until each holder
of the Trust Securities shall have consented to such waiver. Upon any such
waiver, the default covered thereby shall be deemed to be cured for all
purposes of this Indenture and the Company, the Trustee and the holders of
the Securities shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent
or other default or impair any right consequent thereon. Whenever any
default or Event of Default hereunder shall have been waived as permitted
by this Section 5.07, said default or Event of Default shall for all
purposes of the Securities and this Indenture be deemed to have been cured
and to be not continuing .
SECTION 5.08. Notice of Defaults.
The Trustee shall, within 90 days after the occurrence
of a default with respect to the Securities mail to all
Securityholders, as the names and addresses of such holders
appear upon the Security register, notice of all defaults known
to the Trustee, unless such defaults shall have been cured before
the giving of such notice (the term "defaults" for the purpose of
this Section 5.08 being hereby defined to be the events specified
in clauses (a), (b), (c), (d) and (e) of Section 5.01, not
including periods of grace, if any, provided for therein, and
irrespective of the giving of written notice specified in clause
(c) of Section 5.01); and provided that, except in the case of
default in the payment of the principal of or premium, if any, or
interest on any of the Securities, the Trustee shall be protected
in withholding such notice if and so long as the board of
directors, the executive committee, or a trust committee of
directors and/or Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in the
interests of the Securityholders; and provided further, that in
the case of any default of the character specified in Section
5.01(c) no such notice to Securityholders shall be given until at
least 60 days after the occurrence thereof but shall be given
within 90 days after such occurrence.
SECTION 5.09. Undertaking to Pay Costs.
All parties to this Indenture agree, and each holder of
any Security by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture,
or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and
36
that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees and expenses, against any
party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant;
but the provisions of this Section 5.09 shall not apply to any
suit instituted by the Trustee, to any suit instituted by any
Securityholder, or group of Securityholders, holding in the
aggregate more than 10% in aggregate principal amount of the
Securities outstanding, or to any suit instituted by any
Securityholder for the enforcement of the payment of the
principal of (or premium, if any) or interest on any Security
against the Company on or after the same shall have become due
and payable.
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of Trustee.
With respect to the holders of the Securities issued
hereunder, the Trustee, prior to the occurrence of an Event of
Default and after the curing or waiving of all Events of Default
which may have occurred, undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture.
In case an Event of Default has occurred (which has not been
cured or waived) the Trustee shall exercise such of the rights
and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of
his own affairs.
No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action,
its own negligent failure to act or its own willful misconduct,
except that
(a) prior to the occurrence of an Event of Default and
after the curing or waiving of all Events of
Default which may have occurred
(1) the duties and obligations of the Trustee
shall be determined solely by the express
provisions of this Indenture, and the Trustee
shall not be liable except for the
performance of such duties and obligations as
are specifically set forth in this Indenture,
and no implied covenants or obligations shall
be read into this Indenture against the
Trustee; and
37
(2) in the absence of bad faith on the part of
the Trustee, the Trustee may conclusively
rely, as to the truth of the statements and
the correctness of the opinions expressed
therein, upon any certificates or opinions
furnished to the Trustee and conforming to
the requirements of this Indenture; but, in
the case of any such certificates or opinions
which by any provision hereof are
specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not
they conform to the requirements of this
Indenture;
(b) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible
Officer or Officers of the Trustee, unless it
shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in
good faith, in accordance with the direction of
the Securityholders pursuant to Section 5.07,
relating to the time, method and place of
conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture
shall require the Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the performance
of any of its duties or in the exercise of any of its rights or
powers, if there is reasonable ground for believing that the
repayment of such funds or liability is not reasonably assured to
it under the terms of this Indenture or adequate indemnity
against such risk is not reasonably assured to it.
SECTION 6.02. Reliance on Documents, Opinions, etc.
Except as otherwise provided in Section 6.01:
(a) the Trustee may conclusively rely and shall be
protected in acting or refraining from acting upon
any resolution, certificate, statement,
instrument, opinion, report, notice, request,
consent, order, bond, note, debenture or other
paper or document believed by it to be genuine and
to have been signed or presented by the proper
party or parties;
38
(b) any request, direction, order or demand of the
Company mentioned herein may be sufficiently
evidenced by an Officers' Certificate (unless
other evidence in respect thereof be herein
specifically prescribed); and any Board Resolution
may be evidenced to the Trustee by a copy thereof
certified by the Clerk or an Assistant Clerk of
the Company;
(c) the Trustee may consult with counsel of its
selection and any advice or Opinion of Counsel
shall be full and complete authorization and
protection in respect of any action taken or
suffered omitted by it hereunder in good faith and
in accordance with such advice or Opinion of
Counsel;
(d) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it
by this Indenture at the request, order or
direction of any of the Securityholders, pursuant
to the provisions of this Indenture, unless such
Securityholders shall have offered to the Trustee
reasonable security or indemnity against the
costs, expenses and liabilities which may be
incurred therein or thereby;
(e) the Trustee shall not be liable for any action
taken or omitted by it in good faith and believed
by it to be authorized or within the discretion or
rights or powers conferred upon it by this
Indenture; nothing contained herein shall,
however, relieve the Trustee of the obligation,
upon the occurrence of an Event of Default (that
has not been cured or waived), to exercise such of
the rights and powers vested in it by this
Indenture, and to use the same degree of care and
skill in their exercise, as a prudent man would
exercise or use under the circumstances in the
conduct of his own affairs;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in
any resolution, certificate, statement,
instrument, opinion, report, notice, request,
consent, order, approval, bond, debenture, coupon
or other paper or document, unless requested in
writing to do so by the holders of a majority in
aggregate principal amount of the outstanding
Securities; provided, however, that if the payment
within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be
incurred by it in the making of such investigation
is, in the opinion of the Trustee, not reasonably
assured to the Trustee
39
by the security afforded to it by the terms of this
Indenture, the Trustee may require reasonable indemnity
against such expense or liability as a condition to so
proceeding;
(g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder
either directly or by or through agents (including
any Authenticating Agent) or attorneys, and the
Trustee shall not be responsible for any
misconduct or negligence on the part of any such
agent or attorney appointed by it with due care;
(h) the Trustee shall not be liable for any action
taken, suffered, or omitted to be taken by it in
good faith and reasonably believed by it to be
authorized or within the discretion or rights or
powers conferred upon it by this Indenture; and
(i) the Trustee shall not be deemed to have notice of
any Default or Event of Default unless a
responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any
event which is in fact such a default is received
by the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the
Securities and this Indenture.
SECTION 6.03. No Responsibility for Recitals, etc.
The recitals contained herein and in the Securities
(except in the certificate of authentication of the Trustee or
the Authenticating Agent) shall be taken as the statements of the
Company and the Trustee and the Authenticating Agent assume no
responsibility for the correctness of the same. The Trustee and
the Authenticating Agent make no representations as to the
validity or sufficiency of this Indenture or of the Securities.
The Trustee and the Authenticating Agent shall not be accountable
for the use or application by the Company of any Securities or
the proceeds of any Securities authenticated and delivered by the
Trustee or the Authenticating Agent in conformity with the
provisions of this Indenture.
SECTION 6.04. Trustee, Authenticating Agent, Paying
Agents, Transfer Agents or Registrar May
Own Securities.
The Trustee or any Authenticating Agent or any paying
agent or any transfer agent or any Security registrar, in its
individual or any other capacity, may become the owner or pledgee
of Securities with the same rights it would have if it were not
40
Trustee, Authenticating Agent, paying agent, transfer agent or
Security registrar.
SECTION 6.05. Moneys to be Held in Trust.
Subject to the provisions of Section 11.04, all moneys
received by the Trustee or any paying agent shall, until used or
applied as herein provided, be held in trust for the purpose for
which they were received, but need not be segregated from other
funds except to the extent required by law. The Trustee and any
paying agent shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed in
writing with the Company. So long as no Event of Default shall
have occurred and be continuing, all interest allowed on any such
moneys shall be paid from time to time upon the written order of
the Company, signed by the Chairman of the Board of Directors,
the President or a Vice President or the Treasurer or an
Assistant Treasurer of the Company.
SECTION 6.06. Compensation and Expenses of Trustee.
The Company, as borrower, covenants and agrees to pay
to the Trustee from time to time, and the Trustee shall be
entitled to, such compensation as shall be agreed to in writing
between the Company and the Trustee (which shall not be limited
by any provision of law in regard to the compensation of a
trustee of an express trust), and the Company will pay or
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the
Trustee in accordance with any of the provisions of this
Indenture (including the reasonable compensation and the expenses
and disbursements of its counsel and of all persons not regularly
in its employ) except any such expense, disbursement or advance
as may arise from its negligence or bad faith. The Company also
covenants to indemnify each of the Trustee or any predecessor
Trustee (and its officers, agents, directors and employees) for,
and to hold it harmless against, any and all loss, damage, claim,
liability or expense including taxes (other than taxes based on
the income of the Trustee) incurred without negligence or bad
faith on the part of the Trustee and arising out of or in
connection with the acceptance or administration of this trust,
including the costs and expenses of defending itself against any
claim of liability in the premises. The obligations of the
Company under this Section 6.06 to compensate and indemnify the
Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional
indebtedness hereunder. Such additional indebtedness shall be
secured by a lien prior to that of the Securities upon all
property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the holders of
particular Securities.
41
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.01(d)
or Section 5.01(e), the expenses (including the reasonable
charges and expenses of its counsel) and the compensation for the
services are intended to constitute expenses of administration
under any applicable Federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the
termination of this Indenture.
SECTION 6.07. Officers' Certificate as Evidence.
Except as otherwise provided in Sections 6.01 and 6.02,
whenever in the administration of the provisions of this
Indenture the Trustee shall deem it necessary or desirable that a
matter be proved or established prior to taking or omitting any
action hereunder, such matter (unless other evidence in respect
thereof is herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to
be conclusively proved and established by an Officers'
Certificate delivered to the Trustee, and such certificate, in
the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action
taken or omitted by it under the provisions of this Indenture
upon the faith thereof.
SECTION 6.08. Conflicting Interest of Trustee.
If the Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Trustee and the Company shall in all respects
comply with the provisions of Section 310(b) of the Trust
Indenture Act.
SECTION 6.09. Eligibility of Trustee.
The Trustee hereunder shall at all times be a
corporation organized and doing business under the laws of the
United States of America or any state or territory thereof or of
the District of Columbia or a corporation or other Person
permitted to act as trustee by the Commission authorized under
such laws to exercise corporate trust powers, having a combined
capital and surplus of at least 50 million U.S. dollars
($50,000,000) and subject to supervision or examination by
Federal, state, territorial, or District of Columbia authority.
If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this
Section 6.09 the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published.
42
The Company may not, nor may any Person directly or
indirectly controlling, controlled by, or under common control
with the Company, serve as Trustee.
In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 6.09,
the Trustee shall resign immediately in the manner and with the
effect specified in Section 6.10.
SECTION 6.10. Resignation or Removal of Trustee.
(a) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign by giving
written notice of such resignation to the Company
and by mailing notice thereof to the holders of
the Securities at their addresses as they shall
appear on the Security register. Upon receiving
such notice of resignation, the Company shall
promptly appoint a successor trustee or trustees
by written instrument, in duplicate, one copy of
which instrument shall be delivered to the
resigning Trustee and one copy to the successor
trustee. If no successor trustee shall have been
so appointed and have accepted appointment within
60 days after the mailing of such notice of
resignation to the affected Securityholders, the
resigning Trustee may petition any court of
competent jurisdiction for the appointment of a
successor trustee, or any Securityholder who has
been a bona fide holder of a Security for at least
six months may, subject to the provisions of
Section 5.09, on behalf of himself and all others
similarly situated, petition any such court for
the appointment of a successor trustee. Such
court may thereupon, after such notice, if any, as
it may deem proper and prescribe, appoint a
successor trustee.
(b) In case at any time any of the following shall
occur --
(1) the Trustee shall fail to comply with the
provisions of Section 6.08 after written
request therefor by the Company or by any
Securityholder who has been a bona fide
holder of a Security or Securities for at
least six months, or
(2) the Trustee shall cease to be eligible in
accordance with the provisions of Section
6.09 and shall fail to resign after written
request therefor by the Company or by any
such Securityholder, or
43
(3) the Trustee shall become incapable of acting,
or shall be adjudged a bankrupt or insolvent,
or a receiver of the Trustee or of its
property shall be appointed, or any public
officer shall take charge or control of the
Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or
liquidation,
then, in any such case, the Company may remove the
Trustee and appoint a successor trustee by written
instrument, in duplicate, one copy of which
instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or,
subject to the provisions of Section 5.09, any
Securityholder who has been a bona fide holder of
a Security for at least six months may, on behalf
of himself and all others similarly situated,
petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of
a successor trustee. Such court may thereupon,
after such notice, if any, as it may deem proper
and prescribe, remove the Trustee and appoint a
successor trustee.
(c) The holders of a majority in aggregate principal
amount of the Securities at the time outstanding
may at any time remove the Trustee and nominate a
successor trustee, which shall be deemed appointed
as successor trustee unless within 10 days after
such nomination the Company objects thereto or if
no successor trustee shall have been so appointed
and shall have accepted appointment within 30 days
after such removal, in which case the Trustee so
removed or any Securityholder, upon the terms and
conditions and otherwise as in subsection (a) of
this Section 6.10 provided, may petition any court
of competent jurisdiction for an appointment of a
successor trustee.
(d) Any resignation or removal of the Trustee and
appointment of a successor trustee pursuant to any
of the provisions of this Section 6.10 shall
become effective upon acceptance of appointment by
the successor trustee as provided in Section 6.11.
SECTION 6.11. Acceptance by Successor Trustee.
Any successor trustee appointed as provided in Section
6.10 shall execute, acknowledge and deliver to the Company and to
its predecessor trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the
44
retiring trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, duties and obligations
of its predecessor hereunder, with like effect as if originally
named as trustee herein; but, nevertheless, on the written
request of the Company or of the successor trustee, the trustee
ceasing to act shall, upon payment of any amounts then due it
pursuant to the provisions of Section 6.06, execute and deliver
an instrument transferring to such successor trustee all the
rights and powers of the trustee so ceasing to act and shall duly
assign, transfer and deliver to such successor trustee all
property and money held by such retiring trustee thereunder.
Upon request of any such successor trustee, the Company shall
execute any and all instruments in writing for more fully and
certainly vesting in and confirming to such successor trustee all
such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a lien upon all property or funds held or
collected by such trustee to secure any amounts then due it
pursuant to the provisions of Section 6.06.
No successor trustee shall accept appointment as
provided in this Section 6.11 unless at the time of such
acceptance such successor trustee shall be qualified under the
provisions of Section 6.08 and eligible under the provisions of
Section 6.09.
Upon acceptance of appointment by a successor trustee
as provided in this Section 6.11, the Company shall mail notice
of the succession of such trustee hereunder to the holders of
Securities at their addresses as they shall appear on the
Security register. If the Company fails to mail such notice
within 10 days after the acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice
to be mailed at the expense of the Company.
SECTION 6.12. Succession by Xxxxxx, etc.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor
of the Trustee hereunder without the execution or filing of any
paper or any further act on the part of any of the parties
hereto.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any Securities
shall have been authenticated but not delivered, any such
successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such
Securities so authenticated; and in case at that time any of the
Securities shall not
45
have been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name
of the successor trustee; and in all such cases such certificates shall
have the full force which the Securities or this Indenture elsewhere
provides that the certificate of the Trustee shall have; provided, however,
that the right to adopt the certificate of authentication of any
predecessor Trustee or authenticate Securities in the name of any
predecessor Trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
SECTION 6.13. Limitation on Rights of Trustee as a
Creditor.
The Trustee shall comply with Section 311(a) of the
Trust Indenture Act, excluding any creditor relationship
described in Section 311(b) of the Trust Indenture Act. A
Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent included
therein.
SECTION 6.14. Authenticating Agents.
There may be one or more Authenticating Agents
appointed by the Trustee upon the request of the Company with
power to act on its behalf and subject to its direction in the
authentication and delivery of Securities issued upon exchange or
transfer thereof as fully to all intents and purposes as though
any such Authenticating Agent had been expressly authorized to
authenticate and deliver Securities; provided, that the Trustee
shall have no liability to the Company for any acts or omissions
of the Authenticating Agent with respect to the authentication
and delivery of Securities. Any such Authenticating Agent shall
at all times be a corporation organized and doing business under
the laws of the United States or of any state or territory
thereof or of the District of Columbia authorized under such laws
to act as Authenticating Agent, having a combined capital and
surplus of at least $5,000,000 and being subject to supervision
or examination by Federal, state, territorial or District of
Columbia authority. If such corporation publishes reports of
condition at least annually pursuant to law or the requirements
of such authority, then for the purposes of this Section 6.14 the
combined capital and surplus of such corporation shall be deemed
to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately
in the manner and with the effect herein specified in this
Section.
Any corporation into which any Authenticating Agent may
be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, consolidation or
conversion to which any Authenticating Agent shall be a party, or
46
any corporation succeeding to all or substantially all of the
corporate trust business of any Authenticating Agent, shall be
the successor of such Authenticating Agent hereunder, if such
successor corporation is otherwise eligible under this Section
6.14 without the execution or filing of any paper or any further
act on the part of the parties hereto or such Authenticating
Agent.
Any Authenticating Agent may at any time resign by
giving written notice of resignation to the Trustee and to the
Company. The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to
such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in
case at any time any Authenticating Agent shall cease to be
eligible under this Section 6.14, the Trustee may, and upon the
request of the Company shall, promptly appoint a successor
Authenticating Agent eligible under this Section 6.14, shall give
written notice of such appointment to the Company and shall mail
notice of such appointment to all Securityholders as the names
and addresses of such holders appear on the Security Register.
Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all rights,
powers, duties and responsibilities of its predecessor hereunder,
with like effect as if originally named as Authenticating Agent
herein.
The Company, as borrower, agrees to pay to any
Authenticating Agent from time to time reasonable compensation
for its services. Any Authenticating Agent shall have no
responsibility or liability for any action taken by it as such in
accordance with the directions of the Trustee.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Action by Securityholders.
Whenever in this Indenture it is provided that the
holders of a specified percentage in aggregate principal amount
of the Securities may take any action (including the making of
any demand or request, the giving of any notice, consent or
waiver or the taking of any other action) the fact that at the
time of taking any such action the holders of such specified
percentage have joined therein may be evidenced (a) by any
instrument or any number of instruments of similar tenor executed
by such Securityholders in person or by agent or proxy appointed
in writing, or (b) by the record of such holders of Securities
voting in favor thereof at any meeting of such Securityholders
duly called and held in accordance with the provisions of Article
47
VIII, or (c) by a combination of such instrument or instruments
and any such record of such a meeting of such Securityholders.
If the Company shall solicit from the Securityholders
any request, demand, authorization, direction, notice, consent,
waiver or other action, the Company may, at its option, as
evidenced by an Officers' Certificate, fix in advance a record
date for the determination of Securityholders entitled to give
such request, demand, authorization, direction, notice, consent,
waiver or other action, but the Company shall have no obligation
to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action
may be given before or after the record date, but only the
Securityholders of record at the close of business on the record
date shall be deemed to be Securityholders for the purposes of
determining whether Securityholders of the requisite proportion
of Outstanding Securities have authorized or agreed or consented
to such request, demand, authorization, direction, notice,
consent, waiver or other action, and for that purpose the
Outstanding Securities shall be computed as of the record date;
provided, however, that no such authorization, agreement or
consent by such Securityholders on the record date shall be
deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the
record date.
SECTION 7.02. Proof of Execution by Securityholders.
Subject to the provisions of Section 6.01, 6.02 and
8.05, proof of the execution of any instrument by a
Securityholder or his agent or proxy shall be sufficient if made
in accordance with such reasonable rules and regulations as may
be prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee. The ownership of Securities shall
be proved by the Security Register or by a certificate of the
Security registrar. The Trustee may require such additional
proof of any matter referred to in this Section as it shall deem
necessary.
The record of any Securityholders' meeting shall be
proved in the manner provided in Section 8.06.
SECTION 7.03. Who Are Deemed Absolute Owners.
Prior to due presentment for registration of transfer
of any Security, the Company, the Trustee, any Authenticating
Agent, any paying agent, any transfer agent and any Security
registrar may deem the person in whose name such Security shall
be registered upon the Security Register to be, and may treat him
as, the absolute owner of such Security (whether or not such
Security shall be overdue) for the purpose of receiving payment
of or on account of the principal of and premium, if any, and
48
interest on such Security and for all other purposes; and neither
the Company nor the Trustee nor any Authenticating Agent nor any
paying agent nor any transfer agent nor any Security registrar
shall be affected by any notice to the contrary. All such
payments so made to any holder for the time being or upon his
order shall be valid, and, to the extent of the sum or sums so
paid, effectual to satisfy and discharge the liability for moneys
payable upon any such Security.
SECTION 7.04. Securities Owned by Company Deemed Not
Outstanding.
In determining whether the holders of the requisite
aggregate principal amount of Securities have concurred in any
direction, consent or waiver under this Indenture, Securities
which are owned by the Company or any other obligor on the
Securities or by any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the
Company or any other obligor on the Securities shall be
disregarded and deemed not to be outstanding for the purpose of
any such determination; provided that for the purposes of
determining whether the Trustee shall be protected in relying on
any such direction, consent or waiver, only Securities which a
Responsible Officer of the Trustee actually knows are so owned
shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as outstanding for the
purposes of this Section 7.04 if the pledgee shall establish to
the satisfaction of the Trustee the pledgee's right to vote such
Securities and that the pledgee is not the Company or any such
other obligor or person directly or indirectly controlling or
controlled by or under direct or indirect common control with the
Company or any such other obligor. In the case of a dispute as
to such right, any decision by the Trustee taken upon the advice
of counsel shall be full protection to the Trustee.
SECTION 7.05. Revocation of Consents; Future Holders
Bound.
At any time prior to (but not after) the evidencing to
the Trustee, as provided in Section 7.01, of the taking of any
action by the holders of the percentage in aggregate principal
amount of the Securities specified in this Indenture in
connection with such action, any holder of a Security (or any
Security issued in whole or in part in exchange or substitution
therefor) the serial number of which is shown by the evidence to
be included in the Securities the holders of which have consented
to such action may, by filing written notice with the Trustee at
its principal office and upon proof of holding as provided in
Section 7.02, revoke such action so far as concerns such Security
(or so far as concerns the principal amount represented by any
exchanged or substituted Security). Except as aforesaid any such
action taken by the holder of any Security shall be conclusive and
49
binding upon such holder and upon all future holders and
owners of such Security, and of any Security issued in exchange
or substitution therefor, irrespective of whether or not any
notation in regard thereto is made upon such Security or any
Security issued in exchange or substitution therefor.
ARTICLE VIII
SECURITYHOLDERS' MEETINGS
SECTION 8.01. Purposes of Meetings.
A meeting of Securityholders may be called at any time
and from time to time pursuant to the provisions of this Article
VIII for any of the following purposes:
(a) to give any notice to the Company or to the
Trustee, or to give any directions to the Trustee,
or to consent to the waiving of any default
hereunder and its consequences, or to take any
other action authorized to be taken by
Securityholders pursuant to any of the provisions
of Article V;
(b) to remove the Trustee and nominate a successor
trustee pursuant to the provisions of Article VI;
(c) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the
provisions of Section 9.02; or
(d) to take any other action authorized to be taken by
or on behalf of the holders of any specified
aggregate principal amount of such Securities
under any other provision of this Indenture or
under applicable law.
SECTION 8.02. Call of Meetings by Trustee.
The Trustee may at any time call a meeting of
Securityholders to take any action specified in Section 8.01, to
be held at such time and at such place in the Borough of
Manhattan, The City of New York, as the Trustee shall determine.
Notice of every meeting of the Securityholders, setting forth the
time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be mailed to
holders of Securities at their addresses as they shall appear on
the Securities Register. Such notice shall be mailed not less
than 20 nor more than 180 days prior to the date fixed for the
meeting.
50
SECTION 8.03. Call of Meetings by Company or
Securityholders.
In case at any time the Company pursuant to a
resolution of the Board of Directors, or the holders of at least
10% in aggregate principal amount of the Securities then
outstanding, shall have requested the Trustee to call a meeting
of Securityholders, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting,
and the Trustee shall not have mailed the notice of such meeting
within 20 days after receipt of such request, then the Company or
such Securityholders may determine the time and the place in said
Borough of Manhattan for such meeting and may call such meeting
to take any action authorized in Section 8.01, by mailing notice
thereof as provided in Section 8.02.
SECTION 8.04. Qualifications for Voting.
To be entitled to vote at any meeting of
Securityholders a person shall (a) be a holder of one or more
Securities or (b) a person appointed by an instrument in writing
as proxy by a holder of one or more Securities. The only persons
who shall be entitled to be present or to speak at any meeting of
Securityholders shall be the persons entitled to vote at such
meeting and their counsel and any representatives of the Trustee
and its counsel and any representatives of the Company and its
counsel.
SECTION 8.05. Regulations.
Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Securityholders, in regard to proof
of the holding of Securities and of the appointment of proxies,
and in regard to the appointment and duties of inspectors of
votes, the submission and examination of proxies, certificates
and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint
a temporary chairman of the meeting, unless the meeting shall
have been called by the Company or by Securityholders as provided
in Section 8.03, in which case the Company or the Securityholders
calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by majority
vote of the meeting.
Subject to the provisions of Section 8.04, at any
meeting each holder of Securities or proxy therefor shall be
entitled to one vote for each $1,000 principal amount of
Securities held or represented by him; provided, however, that no
vote
51
shall be cast or counted at any meeting in respect of any
Security challenged as not outstanding and ruled by the chairman
of the meeting to be not outstanding. The chairman of the
meeting shall have no right to vote other than by virtue of
Securities held by him or instruments in writing as aforesaid
duly designating him as the person to vote on behalf of other
Securityholders. Any meeting of Securityholders duly called
pursuant to the provisions of Section 8.02 or 8.03 may be
adjourned from time to time by a majority of those present,
whether or not constituting a quorum, and the meeting may be held
as so adjourned without further notice.
SECTION 8.06. Voting.
The vote upon any resolution submitted to any meeting
of holders of Securities shall be by written ballots on which
shall be subscribed the signatures of such holders or of their
representatives by proxy and the serial number or numbers of the
Securities held or represented by them. The permanent chairman
of the meeting shall appoint two inspectors of votes who shall
count all votes cast at the meeting for or against any resolution
and who shall make and file with the secretary of the meeting
their verified written reports in triplicate of all votes cast at
the meeting. A record in duplicate of the proceedings of each
meeting of Securityholders shall be prepared by the secretary of
the meeting and there shall be attached to said record the
original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the
meeting and showing that said notice was mailed as provided in
Section 8.02. The record shall show the serial numbers of the
Securities voting in favor of or against any resolution. The
record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the
Trustee to be preserved by the Trustee, the latter to have
attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
ARTICLE IX
AMENDMENTS
SECTION 9.01. Without Consent of Securityholders.
The Company and the Trustee may from time to time and
at any time amend the Indenture, without the consent of the
Securityholders, for one or more of the following purposes:
52
(a) to evidence the succession of another corporation
to the Company, or successive successions, and the
assumption by the successor corporation of the
covenants, agreements and obligations of the
Company pursuant to Article X hereof;
(b) to add to the covenants of the Company such
further covenants, restrictions or conditions for
the protection of the Securityholders as the Board
of Directors and the Trustee shall consider to be
for the protection of the Securityholders, and to
make the occurrence, or the occurrence and
continuance, of a default in any of such
additional covenants, restrictions or conditions a
default or an Event of Default permitting the
enforcement of all or any of the remedies provided
in this Indenture as herein set forth; provided,
however, that in respect of any such additional
covenant, restriction or condition such amendment
may provide for a particular period of grace after
default (which period may be shorter or longer
than that allowed in the case of other defaults)
or may provide for an immediate enforcement upon
such default or may limit the remedies available
to the Trustee upon such default;
(c) to provide for the issuance under this Indenture
of Securities in coupon form (including Securities
registrable as to principal only) and to provide
for exchangeability of such Securities with the
Securities issued hereunder in fully registered
form and to make all appropriate changes for such
purpose;
(d) to cure any ambiguity or to correct or supplement
any provision contained herein or in any
supplemental indenture which may be defective or
inconsistent with any other provision contained
herein or in any supplemental indenture, or to
make such other provisions in regard to matters or
questions arising under this Indenture; provided
that any such action shall not materially
adversely affect the interests of the holders of
the Securities;
(e) to evidence and provide for the acceptance of
appointment hereunder by a successor trustee with
respect to the Securities;
(f) to make provision for transfer procedures,
certification, book-entry provisions and all other
matters required pursuant to Section 2.07 or
otherwise necessary, desirable or appropriate in con-
53
nection with the issuance of Securities to
holders of Capital Securities in the event of a
distribution of Securities by the Trust following
a Dissolution Event;
(g) to qualify or maintain qualification of this
Indenture under the Trust Indenture Act; or
(h) to make any change that does not adversely affect
the rights of any Securityholder in any material
respect.
The Trustee is hereby authorized to join with the
Company in the execution of any supplemental indenture to effect
such amendment, to make any further appropriate agreements and
stipulations which may be therein contained and to accept the
conveyance, transfer and assignment of any property thereunder,
but the Trustee shall not be obligated to, but may in its
discretion, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Any amendment to the Indenture authorized by the
provisions of this Section 9.01 may be executed by the Company
and the Trustee without the consent of the holders of any of the
Securities at the time outstanding, notwithstanding any of the
provisions of Section 9.02.
SECTION 9.02. With Consent of Securityholders.
With the consent (evidenced as provided in Section
7.01) of the holders of a majority in aggregate principal amount
of the Securities at the time outstanding, the Company, when
authorized by a Board Resolution, and the Trustee may from time
to time and at any time amend the Indenture for the purpose of
adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any
manner the rights of the holders of the Securities; provided,
however, that no such amendment shall without the consent of the
holders of each Security then outstanding and affected thereby
(i) extend the Maturity Date of any Security, or reduce the rate
or extend the time of payment of interest thereon (except as
contemplated by Article XVI), or reduce the principal amount
thereof, or reduce any amount payable on redemption thereof, or
make the principal thereof or any interest or premium thereon
payable in any coin or currency other than that provided in the
Securities, or impair or affect the right of any Securityholder
to institute suit for payment thereof, or (ii) reduce the
aforesaid percentage of Securities the holders of which are
required to consent to any such amendment to the Indenture,
provided, however, that if the Securities are held by the Trust,
such amendment shall not be effective until the holders of a
majority
54
in liquidation amount of Trust Securities shall have
consented to such amendment; provided, further, that if the
consent of the holder of each outstanding Security is required,
such amendment shall not be effective until each holder of the
Trust Securities shall have consented to such amendment.
Upon the request of the Company accompanied by a copy
of a resolution of the Board of Directors certified by its Clerk
or Assistant Clerk authorizing the execution of any supplemental
indenture effecting such amendment, and upon the filing with the
Trustee of evidence of the consent of Securityholders as
aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental
indenture affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may
in its discretion, but shall not be obligated to, enter into such
supplemental indenture. The Trustee may receive an Opinion of
Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article is authorized or permitted by,
and conforms to, the terms of this Article and that it is proper
for the Trustee under the provisions of this Article to join in
the execution thereof.
Promptly after the execution by the Company and the
Trustee of any supplemental indenture pursuant to the provisions
of this Section, the Trustee shall transmit by mail, first class
postage prepaid, a notice, prepared by the Company, setting forth
in general terms the substance of such supplemental indenture, to
the Securityholders as their names and addresses appear upon the
Security Register. Any failure of the Trustee to mail such
notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
It shall not be necessary for the consent of the
Securityholders under this Section 9.02 to approve the particular
form of any proposed supplemental indenture, but it shall be
sufficient if such consent shall approve the substance thereof.
SECTION 9.03. Compliance with Trust Indenture Act;
Effect of Supplemental Indentures.
Any supplemental indenture executed pursuant to the
provisions of this Article IX shall comply with the Trust
Indenture Act. Upon the execution of any supplemental indenture
pursuant to the provisions of this Article IX, this Indenture
shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the
Trustee, the Company and the holders of Securities shall
thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments and
all the terms and conditions of any such supplemental indenture
shall be
55
and be deemed to be part of the terms and conditions of this Indenture
for any and all purposes.
SECTION 9.04. Notation on Securities.
Securities authenticated and delivered after the
execution of any supplemental indenture affecting such Securities
pursuant to the provisions of this Article IX may bear a notation
in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company or the Trustee shall
so determine, new Securities so modified as to conform, in the
opinion of the Trustee and the Board of Directors, to any
modification of this Indenture contained in any such supplemental
indenture may be prepared and executed by the Company,
authenticated by the Trustee or the Authenticating Agent and
delivered in exchange for the Securities then outstanding.
SECTION 9.05. Evidence of Compliance of Supplemental
Indenture to be Furnished Trustee.
The Trustee, subject to the provisions of Sections 6.01
and 6.02, may receive an Officers' Certificate and an Opinion of
Counsel as conclusive evidence that any supplemental indenture
executed pursuant hereto complies with the requirements of this
Article IX.
ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 10.01. Company May Consolidate, etc., on
Certain Terms.
Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of the
Company with or into any other Person (whether or not affiliated
with the Company, as the case may be), or successive
consolidations or mergers in which the Company, as the case may
be, or its successor or successors shall be a party or parties,
or shall prevent any sale, conveyance, transfer or lease of the
property of the Company, as the case may be, or its successor or
successors as an entirety, or substantially as an entirety, to
any other Person (whether or not affiliated with the Company, as
the case may be, or its successor or successors) authorized to
acquire and operate the same; provided, that (a) the Company is
the surviving Person, or the Person formed by or surviving any
such consolidation or merger (if other than the Company) or to
which such sale, conveyance, transfer or lease of property is
made is a Person organized and existing under the laws of the
United States or any State thereof or the District of Columbia,
and (b) upon any such consolidation, merger, sale, conveyance,
transfer or lease, the due and punctual payment of the principal
56
of (and premium, if any) and interest on the Securities according
to their tenor and the due and punctual performance and
observance of all the covenants and conditions of this Indenture
to be kept or performed by the Company shall be expressly
assumed, by supplemental indenture (which shall conform to the
provisions of the Trust Indenture Act, as then in effect)
satisfactory in form to the Trustee executed and delivered to the
Trustee by the Person formed by such consolidation, or into which
the Company, as the case may be, shall have been merged, or by
the Person which shall have acquired such property, and (c) after
giving effect to such consolidation, merger, sale, conveyance,
transfer or lease, no Default or Event of Default shall have
occurred and be continuing.
SECTION 10.02. Successor Corporation to be Substituted
for Company.
In case of any such consolidation, merger, conveyance
or transfer and upon the assumption by the successor corporation,
by supplemental indenture, executed and delivered to the Trustee
and satisfactory in form to the Trustee, of the due and punctual
payment of the principal of and premium, if any, and interest on
all of the Securities and the due and punctual performance and
observance of all of the covenants and conditions of this
Indenture to be performed or observed by the Company, such
successor Person shall succeed to and be substituted for the
Company, with the same effect as if it had been named herein as
the party of the first part, and the Company thereupon shall be
relieved of any further liability or obligation hereunder or upon
the Securities. Such successor Person thereupon may cause to be
signed, and may issue either in its own name or in the name of
BankBoston Corporation, any or all of the Securities issuable
hereunder which theretofore shall not have been signed by the
Company and delivered to the Trustee or the Authenticating Agent;
and, upon the order of such successor Person instead of the
Company and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee or the Authenticating
Agent shall authenticate and deliver any Securities which
previously shall have been signed and delivered by the officers
of the Company to the Trustee or the Authenticating Agent for
authentication, and any Securities which such successor Person
thereafter shall cause to be signed and delivered to the Trustee
or the Authenticating Agent for that purpose. All the Securities
so issued shall in all respects have the same legal rank and
benefit under this Indenture as the Securities theretofore or
thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of
the execution hereof.
SECTION 10.03. Opinion of Counsel to be Given Trustee.
57
The Trustee, subject to the provisions of Sections 6.01
and 6.02, may receive an Opinion of Counsel as conclusive
evidence that any consolidation, merger, sale, conveyance,
transfer or lease, and any assumption, permitted or required by
the terms of this Article X complies with the provisions of this
Article X.
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01. Discharge of Indenture.
When (a) the Company shall deliver to the Trustee for
cancellation all Securities theretofore authenticated (other than
any Securities which shall have been destroyed, lost or stolen
and which shall have been replaced or paid as provided in Section
2.08) and not theretofore cancelled, or (b) all the Securities
not theretofore cancelled or delivered to the Trustee for
cancellation shall have become due and payable, or are by their
terms to become due and payable within one year or are to be
called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption, and the Company shall deposit with the Trustee, in
trust, funds sufficient to pay on the Maturity Date or upon
redemption all of the Securities (other than any Securities which
shall have been destroyed, lost or stolen and which shall have
been replaced or paid as provided in Section 2.08) not
theretofore cancelled or delivered to the Trustee for
cancellation, including principal and premium, if any, and
interest due or to become due to the Maturity Date or redemption
date, as the case may be, but excluding, however, the amount of
any moneys for the payment of principal of or premium, if any, or
interest on the Securities (1) theretofore repaid to the Company
in accordance with the provisions of Section 11.04, or (2) paid
to any State or to the District of Columbia pursuant to its
unclaimed property or similar laws, and if in either case the
Company shall also pay or cause to be paid all other sums payable
hereunder by the Company, then this Indenture shall cease to be
of further effect except for the provisions of Sections 2.02,
2.07, 2.08, 3.01, 3.02, 3.04, 6.06, 6.10 and 11.04 hereof shall
survive until such Securities shall mature and be paid.
Thereafter, Sections 6.10 and 11.04 shall survive, and the
Trustee, on demand of the Company accompanied by any Officers'
Certificate and an Opinion of Counsel and at the cost and expense
of the Company, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture, the Company,
however, hereby agreeing to reimburse the Trustee for any costs
or expenses thereafter reasonably and properly incurred by the
Trustee in connection with this Indenture or the Securities.
SECTION 11.02. Deposited Moneys and U.S. Government
Obligations to be Held in Trust by
Trustee.
58
Subject to the provisions of Section 11.04, all moneys
and U.S. Government Obligations deposited with the Trustee
pursuant to Sections 11.01 or 11.05 shall be held in trust and
applied by it to the payment, either directly or through any
paying agent (including the Company if acting as its own paying
agent), to the holders of the particular Securities for the
payment of which such moneys or U.S. Government Obligations have
been deposited with the Trustee, of all sums due and to become
due thereon for principal, premium, if any, and interest.
The Company shall pay and indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against the
U.S. Government Obligations deposited pursuant to Section 11.05
or the principal and interest received in respect thereof other
than any such tax, fee or other charge which by law is for the
account of the holders of outstanding Securities.
SECTION 11.03. Paying Agent to Repay Moneys Held.
Upon the satisfaction and discharge of this Indenture
all moneys then held by any paying agent of the Securities (other
than the Trustee) shall, upon written demand of the Company, be
repaid to it or paid to the Trustee, and thereupon such paying
agent shall be released from all further liability with respect
to such moneys.
SECTION 11.04. Return of Unclaimed Moneys.
Any moneys deposited with or paid to the Trustee or any
paying agent for payment of the principal of or premium, if any,
or interest on Securities and not applied but remaining unclaimed
by the holders of Securities for two years after the date upon
which the principal of or premium, if any, or interest on such
Securities, as the case may be, shall have become due and
payable, shall be repaid to the Company by the Trustee or such
paying agent on written demand; and the holder of any of the
Securities shall thereafter look only to the Company for any
payment which such holder may be entitled to collect and all
liability of the Trustee or such paying agent with respect to
such moneys shall thereupon cease.
SECTION 11.05. Defeasance Upon Deposit of Moneys or
U.S. Government Obligations.
The Company shall be deemed to have been Discharged (as
defined below) from its respective obligations with respect to
the Securities on the 91st day after the applicable conditions
set forth below have been satisfied with respect to the
Securities at any time after the applicable conditions set forth
below have been satisfied:
59
(1) The Company shall have deposited or caused to be
deposited irrevocably with the Trustee or the
Defeasance Agent (as defined below) as trust funds
in trust, specifically pledged as security for,
and dedicated solely to, the benefit of the
holders of the Securities (i) money in an amount,
or (ii) U.S. Government Obligations which through
the payment of interest and principal in respect
thereof in accordance with their terms will
provide, not later than one day before the due
date of any payment, money in an amount, or (iii)
a combination of (i) and (ii), sufficient, in the
opinion (with respect to (ii) and (iii)) of a
nationally recognized firm of independent public
accountants expressed in a written certification
thereof delivered to the Trustee and the
Defeasance Agent, if any, to pay and discharge
each installment of principal of and interest and
premium, if any, on the outstanding Securities on
the dates such installments of principal, interest
or premium are due;
(2) if the Securities are then listed on any national
securities exchange or interdealer quotation
system, the Company shall have delivered to the
Trustee and the Defeasance Agent, if any, an
Opinion of Counsel to the effect that the exercise
of the option under this Section 11.05 would not
cause such Securities to be delisted from such
exchange or interdealer quotation system;
(3) no Default or Event of Default with respect to the
Securities shall have occurred and be continuing
on the date of such deposit; and
(4) the Company shall have delivered to the Trustee
and the Defeasance Agent, if any, an Opinion of
Counsel to the effect that holders of the
Securities will not recognize income, gain or loss
for United States Federal income tax purposes as a
result of the exercise of the option under this
Section 11.05 and will be subject to United States
Federal income tax on the same amount and in the
same manner and at the same times as would have
been the case if such option had not been
exercised, and such opinion shall be accompanied
by a private letter ruling to that effect received
from the United States Internal Revenue Service or
a revenue ruling pertaining to a comparable form
of transaction to that effect published by the
United States Internal Revenue Service.
60
"Discharged" means that the Company shall be deemed to
have paid and discharged the entire indebtedness represented by,
and obligations under, the Securities and to have satisfied all
the obligations under this Indenture relating to the Securities
(and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same), except (A) the rights
of holders of Securities to receive, from the trust fund
described in clause (1) above, payment of the principal of and
the interest and premium, if any, on the Securities when such
payments are due; (B) the Company's obligations with respect to
the Securities under Sections 2.07, 2.08, 5.02 and 11.04; and (C)
the rights, powers, trusts, duties and immunities of the Trustee
hereunder.
"Defeasance Agent" means another financial institution
which is eligible to act as Trustee hereunder and which assumes
all of the obligations of the Trustee necessary to enable the
Trustee to act hereunder. In the event such a Defeasance Agent
is appointed pursuant to this Section, the following conditions
shall apply:
(1) The Trustee shall have approval rights over the
document appointing such Defeasance Agent and the
document setting forth such Defeasance Agent's
rights and responsibilities;
(2) The Defeasance Agent shall provide verification to
the Trustee acknowledging receipt of sufficient
money and/or U.S. Government Obligations to meet
the applicable conditions set forth in this
Section 11.05.
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. Indenture and Securities Solely
Corporate Obligations.
No recourse for the payment of the principal of or
premium, if any, or interest on any Security, or for any claim
based thereon or otherwise in respect thereof, and no recourse
under or upon any obligation, covenant or agreement of the
Company in this Indenture, or in any Security, or because of the
creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, officer or director, as
such, past, present or future, of the Company or of any successor
Person to the Company, either directly or through the Company or
any successor Person to the Company, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly
61
understood that all such liability is hereby expressly waived and
released as a condition of, and as a consideration for, the
execution of this Indenture and the issue of the Securities.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. Successors.
All the covenants, stipulations, promises and
agreements in this Indenture contained by the Company shall bind
its successors and assigns whether so expressed or not.
SECTION 13.02. Official Acts by Successor Corporation.
Any act or proceeding by any provision of this
Indenture authorized or required to be done or performed by any
board, committee or officer of the Company shall and may be done
and performed with like force and effect by the like board,
committee or officer of any corporation that shall at the time be
the lawful sole successor of the Company.
SECTION 13.03. Surrender of Company Powers.
The Company by instrument in writing executed by
authority of 2/3 (two-thirds) of its Board of Directors and
delivered to the Trustee may surrender any of the powers reserved
to the Company, and thereupon such power so surrendered shall
terminate both as to the Company, as the case may be, and as to
any successor Person.
SECTION 13.04. Addresses for Notices, etc.
Any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the
Trustee or by the holders of Securities on the Company may be
given or served by being deposited postage prepaid by registered
or certified mail in a post office letter box addressed (until
another address is filed by the Company with the Trustee for the
purpose) to the Company, 000 Xxxxxxx Xxxxxx, XX XXX 00-00-00,
Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: General Counsel. Any
notice, direction, request or demand by any Securityholder to or
upon the Trustee shall be deemed to have been sufficiently given
or made, for all purposes, if given or made in writing at the
office of the Trustee, addressed to the Trustee, 000 Xxxxxxx
Xxxxxx, 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate
Trust Administration.
SECTION 13.05. Governing Law.
62
This Indenture and each Security shall be deemed to be
a contract made under the laws of the State of New York, and for
all purposes shall be governed by and construed in accordance
with the laws of said State, without regard to conflicts of laws
principles thereof.
SECTION 13.06. Evidence of Compliance with Conditions
Precedent.
Upon any application or demand by the Company to the
Trustee to take any action under any of the provisions of this
Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that in the opinion of the signers all
conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and an
Opinion of Counsel stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
Each certificate or opinion provided for in this
Indenture and delivered to the Trustee with respect to compliance
with a condition or covenant provided for in this Indenture shall
include (1) a statement that the person making such certificate
or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in
such certificate or opinion are based; (3) a statement that, in
the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition
has been complied with; and (4) a statement as to whether or not,
in the opinion of such person, such condition or covenant has
been complied with.
SECTION 13.07. Business Days.
Except as otherwise provided in Section 2.06(b), in any
case where the date of payment of principal of or premium, if
any, or interest on the Securities will not be a Business Day,
the payment of such principal of or premium, if any, or interest
on the Securities need not be made on such date but may be made
on the next succeeding Business Day, with the same force and
effect as if made on the date of payment and no interest shall
accrue for the period from and after such date.
SECTION 13.08. Trust Indenture Act to Control.
If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with another provision
included in this Indenture which is required to be included in
this Indenture by any of Sections 310 to 317, inclusive, of the
Trust Indenture Act of 1939, such required provision shall
control.
63
SECTION 13.09. Table of Contents, Headings, etc.
The table of contents and the titles and headings of
the articles and sections of this Indenture have been inserted
for convenience of reference only, are not to be considered a
part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.
SECTION 13.10. Execution in Counterparts.
This Indenture may be executed in any number of
counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same
instrument.
SECTION 13.11. Separability.
In case any one or more of the provisions contained in
this Indenture or in the Securities shall for any reason be held
to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any
other provisions of this Indenture or of the Securities, but this
Indenture and the Securities shall be construed as if such
invalid or illegal or unenforceable provision had never been
contained herein or therein.
SECTION 13.12. Assignment.
The Company will have the right at all times to assign
any of its respective rights or obligations under this Indenture
to a direct or indirect wholly owned Subsidiary of the Company,
provided that, in the event of any such assignment, the Company,
as the case may be, will remain liable for all such obligations.
Subject to the foregoing, the Indenture is binding upon and
inures to the benefit of the parties thereto and their respective
successors and assigns. This Indenture may not otherwise be
assigned by the parties thereto.
SECTION 13.13. Acknowledgement of Rights.
The Company acknowledges that, with respect to any
Securities held by the Trust or a trustee of such trust, if the
Property Trustee of such Trust fails to enforce its rights under
this Indenture as the holder of the Securities held as the assets
of the Trust any holder of Capital Securities may institute legal
proceedings directly against the Company to enforce such Property
Trustee's rights under this Indenture without first instituting
any legal proceedings against such Property Trustee or any other
person or entity. Notwithstanding the foregoing, if an Event of
Default has occurred and is continuing and such event is
attributable to the failure of the Company to pay principal of or
premium, if any, or interest on the Securities when due, the
Company acknowledges that a holder of Capital Securities may di-
64
rectly institute a proceeding for enforcement of payment to
such holder of the principal of or premium, if any, or interest
on the Securities having a principal amount equal to the
aggregate liquidation amount of the Capital Securities of such
holder on or after the respective due date specified in the
Securities.
ARTICLE XIV
REDEMPTION OF SECURITIES --
MANDATORY AND OPTIONAL SINKING FUND
SECTION 14.01. Special Event Redemption.
If a Special Event has occurred and is continuing then,
notwithstanding Section 14.02(a) but subject to Section 14.02(c),
the Company shall have the right, upon (i) not less than 45 days
written notice to the Trustee and (ii) not less than 30 days nor
more than 60 days written notice to the Securityholders, to
redeem the Securities, in whole (but not in part), within 90 days
following the occurrence of such Special Event at the Redemption
Price. The Redemption Price shall be paid prior to 12:00 noon,
New York time, on the date of such redemption or such earlier
time as the Company determines, provided that the Company shall
deposit with the Trustee an amount sufficient to pay the
Redemption Price by 10:00 a.m., New York time, on the date such
Redemption Price is to be paid.
SECTION 14.02. Optional Redemption by Company.
(a) Subject to the provisions of this Article XIV, the
Company shall have the right to redeem the Securities, in whole
or in part, from time to time, on or after _______, 2007, at the
Redemption Price.
If the Securities are only partially redeemed pursuant
to this Section 14.02, the Securities will be redeemed pro rata
or by lot or by any other method utilized by the Trustee;
provided, that if at the time of redemption the Securities are
registered as a Global Security, the Depositary shall determine,
in accordance with its procedures, the principal amount of such
Securities held by each holder of a Security to be redeemed. The
Redemption Price shall be paid prior to 12:00 noon, New York
time, on the date of such redemption or such earlier time as the
Company determines, provided that the Company shall deposit with
the Trustee an amount sufficient to pay the Redemption Price by
10:00 a.m., New York time, on the date such Redemption Price is
to be paid.
(b) Notwithstanding the first sentence of Section
14.02, upon the entry of an order for dissolution of the Trust by
a court of competent jurisdiction, the Securities thereafter will
be subject to option redemption, in whole only, but not in part,
65
on or after _______, 2007, at the Redemption Price and otherwise
in accordance with this Article XIV.
(c) Any redemption of Securities pursuant to Section
14.01 or Section 14.02 shall be subject to the Company obtaining
the prior approval of the Federal Reserve, if such approval is
then required under applicable capital guidelines or policies of
the Federal Reserve.
SECTION 14.03. No Sinking Fund.
The Securities are not entitled to the benefit of any
sinking fund.
SECTION 14.04. Notice of Redemption; Selection of
Securities.
In case the Company shall desire to exercise the right
to redeem all, or, as the case may be, any part of the Securities
in accordance with their terms, it shall fix a date for
redemption and shall mail a notice of such redemption at least 30
and not more than 60 days prior to the date fixed for redemption
to the holders of Securities so to be redeemed as a whole or in
part at their last addresses as the same appear on the Security
Register. Such mailing shall be by first class mail. The notice
if mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the holder
receives such notice. In any case, failure to give such notice
by mail or any defect in the notice to the holder of any Security
designated for redemption as a whole or in part shall not affect
the validity of the proceedings for the redemption of any other
Security.
Each such notice of redemption shall specify the CUSIP
number of the Securities to be redeemed, the date fixed for
redemption, the redemption price at which the Securities are to
be redeemed (or the method by which such redemption price is to
be calculated), the place or places of payment that payment will
be made upon presentation and surrender of the Securities, that
interest accrued to the date fixed for redemption will be paid as
specified in said notice, and that on and after said date
interest thereon or on the portions thereof to be redeemed will
cease to accrue. If less than all the Securities are to be
redeemed the notice of redemption shall specify the numbers of
the Securities to be redeemed. In case any Security is to be
redeemed in part only, the notice of redemption shall state the
portion of the principal amount thereof to be redeemed and shall
state that on and after the date fixed for redemption, upon
surrender of such Security, a new Security or Securities in
principal amount equal to the unredeemed portion thereof will be
issued.
66
On or prior to the redemption date specified in the
notice of redemption given as provided in this Section, the
Company will deposit with the Trustee or with one or more paying
agents an amount of money sufficient to redeem on the redemption
date all the Securities so called for redemption at the
appropriate Redemption Price, together with accrued interest to
the date fixed for redemption.
The Company will give the Trustee notice not less than
45 days prior to the redemption date as to the aggregate
principal amount of Securities to be redeemed and the Trustee
shall select, in such manner as in its sole discretion it shall
deem appropriate and fair, the Securities or portions thereof (in
integral multiples of $1,000, except as otherwise set forth in
the applicable form of Security) to be redeemed.
SECTION 14.05. Payment of Securities Called for
Redemption.
If notice of redemption has been given as provided in
Section 14.04, the Securities or portions of Securities with
respect to which such notice has been given shall become due and
payable on the date and at the place or places stated in such
notice at the applicable Redemption Price, together with interest
accrued to the date fixed for redemption (subject to the rights
of holders of Securities on the close of business on a regular
record date in respect of an Interest Payment Date occurring on
or prior to the redemption date), and on and after said date
(unless the Company shall default in the payment of such
Securities at the Redemption Price, together with interest
accrued to said date) interest on the Securities or portions of
Securities so called for redemption shall cease to accrue. On
presentation and surrender of such Securities at a place of
payment specified in said notice, the said Securities or the
specified portions thereof shall be paid and redeemed by the
Company at the applicable Redemption Price, together with
interest accrued thereon to the date fixed for redemption
(subject to the rights of holders of Securities on the close of
business on a regular record date in respect of an Interest
Payment Date occurring on or prior to the redemption date).
Upon presentation of any Security redeemed in part
only, the Company shall execute and the Trustee shall
authenticate and make available for delivery to the holder
thereof, at the expense of the Company, a new Security or
Securities of authorized denominations, in principal amount equal
to the unredeemed portion of the Security so presented.
67
ARTICLE XV
SUBORDINATION OF SECURITIES
SECTION 15.01. Agreement to Subordinate.
The Company covenants and agrees, and each holder of
Securities issued hereunder likewise covenants and agrees, that
the Securities shall be issued subject to the provisions of this
Article XV; and each holder of a Security, whether upon original
issue or upon transfer or assignment thereof, accepts and agrees
to be bound by such provisions.
The payment by the Company of the principal of and
premium, if any, and interest on all Securities issued hereunder
shall, to the extent and in the manner hereinafter set forth, be
subordinated and junior in right of payment to the prior payment
in full of all Allocable Amounts with respect to Senior
Indebtedness, whether outstanding at the date of this Indenture
or thereafter incurred.
No provision of this Article XV shall prevent the
occurrence of any Default or Event of Default hereunder.
SECTION 15.02. Default on Senior Indebtedness.
In the event and during the continuation of any default
by the Company in the payment of principal, premium, interest or
any other payment due on any Senior Indebtedness, or in the event
that the maturity of any Senior Indebtedness has been accelerated
because of a default, then, in either case, no payment shall be
made by the Company with respect to the principal (including
redemption payments) of or premium, if any, or interest on the
Securities.
In the event of the acceleration of the maturity of the
Securities, then no payment shall be made by the Company with
respect to the principal (including redemption payments) of or
premium, if any, or interest on the Securities until the holders
of all Senior Indebtedness outstanding at the time of such
acceleration shall receive payment in full of all Allocable
Amounts due in respect of such Senior Indebtedness (including any
amounts due upon acceleration).
In the event that, notwithstanding the foregoing, any
payment shall be received by the Trustee when such payment is
prohibited by the preceding paragraph of this Section 15.02, such
payment shall be held in trust for the benefit of, and shall be
paid over or delivered to, the holders of Senior Indebtedness or
their respective representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior
Indebtedness may have been issued, as their respective interests
may appear, but only to the extent of the Allocable Amounts in
68
respect of such Senior Indebtedness and only to the extent that
the holders of the Senior Indebtedness (or their representative
or representatives or a trustee) notify the Trustee in writing,
within 90 days of such payment, of the Allocable Amounts then due
and owing on such Senior Indebtedness and only the Allocable
Amounts specified in such notice to the Trustee shall be paid to
the holders of such Senior Indebtedness.
SECTION 15.03. Liquidation; Dissolution; Bankruptcy.
Upon any payment by the Company or distribution of
assets of the Company of any kind or character, whether in cash,
property or securities, to creditors upon any dissolution or
winding-up or liquidation or reorganization of the Company,
whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all Allocable Amounts due upon
all Senior Indebtedness of the Company shall first be paid in
full, or payment thereof provided for in money in accordance with
its terms, before any payment is made by the Company on account
of the principal (and premium, if any) or interest on the
Securities; and upon any such dissolution or winding-up or
liquidation or reorganization, any payment by the Company, or
distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to which the
Securityholders or the Trustee would be entitled to receive from
the Company, except for the provisions of this Article XV, shall
be paid by the Company or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or
distribution, or by the Securityholders or by the Trustee under
the Indenture if received by them or it, directly to the holders
of Senior Indebtedness of the Company (pro rata to such holders
on the basis of the respective Allocable Amounts of Senior
Indebtedness held by such holders, as calculated by the Company)
or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments
evidencing such Senior Indebtedness may have been issued, as
their respective interests may appear, to the extent necessary to
pay all Allocable Amounts in respect of such Senior Indebtedness
in full, in money or money's worth, after giving effect to any
concurrent payment or distribution to or for the holders of such
Senior Indebtedness, before any payment or distribution is made
to the Securityholders or to the Trustee.
In the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, prohibited by
the foregoing, shall be received by the Trustee before all
Allocable Amounts in respect of Senior Indebtedness is paid in
full, or provision is made for such payment in money in
accordance with its terms, such payment or distribution shall be
held in trust for the benefit of and shall be paid over or
delivered to the holders of such Senior Indebtedness or their
representa-
69
tive or representatives, or to the trustee or trustees
under any indenture pursuant to which any instruments evidencing
such Senior Indebtedness may have been issued, and their
respective interests may appear, as calculated by the Company,
for application to the payment of all Senior Indebtedness
remaining unpaid to the extent necessary to pay all Allocable
Amounts in respect of such Senior Indebtedness in full in money
in accordance with its terms, after giving effect to any
concurrent payment or distribution to or for the benefit of the
holders of such Senior Indebtedness.
For purposes of this Article XV, the words "cash,
property or securities" shall not be deemed to include shares of
stock of the Company as reorganized or readjusted, or securities
of the Company or any other corporation provided for by a plan of
reorganization or readjustment, the payment of which is
subordinated at least to the extent provided in this Article XV
with respect to the Securities to the payment of Senior
Indebtedness that may at the time be outstanding, provided that
(i) such Senior Indebtedness is assumed by the new corporation,
if any, resulting from any such reorganization or readjustment,
and (ii) the rights of the holders of such Senior Indebtedness
are not, without the consent of such holders, altered by such
reorganization or readjustment. The consolidation of the Company
with, or the merger of the Company into, another Person or the
liquidation or dissolution of the Company following the sale,
conveyance, transfer or lease of its property as an entirety, or
substantially as an entirety, to another Person upon the terms
and conditions provided for in Article X of this Indenture shall
not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section 15.03 if such
other Person shall, as a part of such consolidation, merger,
sale, conveyance, transfer or lease, comply with the conditions
stated in Article X of this Indenture. Nothing in Section 15.02
or in this Section 15.03 shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 6.05 of this
Indenture.
SECTION 15.04. Subrogation.
Subject to the payment in full of all Allocable Amounts
in respect of Senior Indebtedness, the rights of the
Securityholders shall be subrogated to the rights of the holders
of such Senior Indebtedness to receive payments or distributions
of cash, property or securities of the Company, as the case may
be, applicable to such Senior Indebtedness until the principal of
(and premium, if any) and interest on the Securities shall be
paid in full; and, for the purposes of such subrogation, no
payments or distributions to the holders of such Senior
Indebtedness of any cash, property or securities to which the
Securityholders or the Trustee would be entitled except for the
provisions of this Article XV, and no payment over pursuant to
the provisions of this Article XV to or for the benefit of the
70
holders of such Senior Indebtedness by Securityholders or the
Trustee, shall, as between the Company, its creditors other than
holders of Senior Indebtedness of the Company, and the holders of
the Securities, be deemed to be a payment by the Company to or on
account of such Senior Indebtedness. It is understood that the
provisions of this Article XV are and are intended solely for the
purposes of defining the relative rights of the holders of the
Securities, on the one hand, and the holders of such Senior
Indebtedness on the other hand.
Nothing contained in this Article XV or elsewhere in
this Indenture or in the Securities is intended to or shall
impair, as between the Company, its creditors other than the
holders of Senior Indebtedness of the Company, and the holders of
the Securities, the obligation of the Company, which is absolute
and unconditional, to pay to the holders of the Securities the
principal of (and premium, if any) and interest on the Securities
as and when the same shall become due and payable in accordance
with their terms, or is intended to or shall affect the relative
rights of the holders of the Securities and creditors of the
Company, as the case may be, other than the holders of Senior
Indebtedness of the Company, as the case may be, nor shall
anything herein or therein prevent the Trustee or the holder of
any Security from exercising all remedies otherwise permitted by
applicable law upon default under the Indenture, subject to the
rights, if any, under this Article XV of the holders of such
Senior Indebtedness in respect of cash, property or securities of
the Company, as the case may be, received upon the exercise of
any such remedy.
Upon any payment or distribution of assets of the
Company referred to in this Article XV, the Trustee, subject to
the provisions of Article VI of this Indenture, and the
Securityholders shall be entitled to conclusively rely upon any
order or decree made by any court of competent jurisdiction in
which such dissolution, winding-up, liquidation or reorganization
proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidation trustee, agent or other Person
making such payment or distribution, delivered to the Trustee or
to the Securityholders, for the purposes of ascertaining the
Persons entitled to participate in such distribution, the holders
of Senior Indebtedness and other indebtedness of the Company, as
the case may be, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article XV.
SECTION 15.05. Trustee to Effectuate Subordination.
Each Securityholder by such Securityholder's acceptance
thereof authorizes and directs the Trustee on such
Securityholder's behalf to take such action as may be necessary
or appropriate to effectuate the subordination provided in this
71
Article XV and appoints the Trustee such Securityholder's
attorney-in-fact for any and all such purposes.
SECTION 15.06. Notice by the Company.
The Company shall give prompt written notice to a
Responsible Officer of the Trustee of any fact known to the
Company that would prohibit the making of any payment of monies
to or by the Trustee in respect of the Securities pursuant to the
provisions of this Article XV. Notwithstanding the provisions of
this Article XV or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of
any facts that would prohibit the making of any payment of monies
to or by the Trustee in respect of the Securities pursuant to the
provisions of this Article XV, unless and until a Responsible
Officer of the Trustee shall have received written notice thereof
from the Company or a holder or holders of Senior Indebtedness or
from any trustee therefor; and before the receipt of any such
written notice, the Trustee, subject to the provisions of Article
VI of this Indenture, shall be entitled in all respects to assume
that no such facts exist; provided, however, that if the Trustee
shall not have received the notice provided for in this Section
15.06 at least two Business Days prior to the date upon which by
the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of
(or premium, if any) or interest on any Security), then, anything
herein contained to the contrary notwithstanding, the Trustee
shall have full power and authority to receive such money and to
apply the same to the purposes for which they were received, and
shall not be affected by any notice to the contrary that may be
received by it within two Business Days prior to such date.
The Trustee, subject to the provisions of Article VI of
this Indenture, shall be entitled to conclusively rely on the
delivery to it of a written notice by a Person representing
himself to be a holder of Senior Indebtedness of the Company, as
the case may be (or a trustee on behalf of such holder), to
establish that such notice has been given by a holder of such
Senior Indebtedness or a trustee on behalf of any such holder or
holders. In the event that the Trustee determines in good faith
that further evidence is required with respect to the right of
any Person as a holder of such Senior Indebtedness to participate
in any payment or distribution pursuant to this Article XV, the
Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of such
Senior Indebtedness held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution
and any other facts pertinent to the rights of such Person under
this Article XV, and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such
payment.
72
Upon any payment or distribution of assets of the
Company referred to in this Article XV, the Trustee and the
Securityholders shall be entitled to rely upon any order or
decree entered by any court of competent jurisdiction in which
such insolvency, bankruptcy, receivership, liquidation,
reorganization, dissolution, winding up or similar case or
proceeding is pending, or a certificate of the trustee in
bankruptcy, liquidating trustee, custodian, receiver, assignee
for the benefit of creditors, agent or other person making such
payment or distribution, delivered to the Trustee or to the
Securityholders, for the purpose of ascertaining the persons
entitled to participate in such payment or distribution, the
holders of Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article XV.
SECTION 15.07. Rights of the Trustee; Holders of Senior
Indebtedness.
The Trustee in its individual capacity shall be
entitled to all the rights set forth in this Article XV in
respect of any Senior Indebtedness at any time held by it, to the
same extent as any other holder of Senior Indebtedness, and
nothing in this Indenture shall deprive the Trustee of any of its
rights as such holder.
With respect to the holders of Senior Indebtedness of
the Company, the Trustee undertakes to perform or to observe only
such of its covenants and obligations as are specifically set
forth in this Article XV, and no implied covenants or obligations
with respect to the holders of such Senior Indebtedness shall be
read into this Indenture against the Trustee. The Trustee shall
not be deemed to owe any fiduciary duty to the holders of such
Senior Indebtedness and, subject to the provisions of Article VI
of this Indenture, the Trustee shall not be liable to any holder
of such Senior Indebtedness if it shall pay over or deliver to
Securityholders, the Company or any other Person money or assets
to which any holder of such Senior Indebtedness shall be entitled
by virtue of this Article XV or otherwise.
Nothing in this Article XV shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 6.06.
SECTION 15.08. Subordination May Not Be Impaired.
No right of any present or future holder of any Senior
Indebtedness of the Company to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired
by any act or failure to act on the part of the Company, as the
73
case may be, or by any act or failure to act, in good faith, by
any such holder, or by any noncompliance by the Company, as the
case may be, with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof that any such
holder may have or otherwise be charged with.
Without in any way limiting the generality of the
foregoing paragraph, the holders of Senior Indebtedness of the
Company may, at any time and from time to time, without the
consent of or notice to the Trustee or the Securityholders,
without incurring responsibility to the Securityholders and
without impairing or releasing the subordination provided in this
Article XV or the obligations hereunder of the holders of the
Securities to the holders of such Senior Indebtedness, do any one
or more of the following: (i) change the manner, place or terms
of payment or extend the time of payment of, or renew or alter,
such Senior Indebtedness, or otherwise amend or supplement in any
manner such Senior Indebtedness or any instrument evidencing the
same or any agreement under which such Senior Indebtedness is
outstanding; (ii) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing such Senior
Indebtedness; (iii) release any Person liable in any manner for
the collection of such Senior Indebtedness; and (iv) exercise or
refrain from exercising any rights against the Company, as the
case may be, and any other Person.
ARTICLE XVI
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 16.01. Extension of Interest Payment Period.
So long as no Event of Default has occurred and is
continuing, the Company shall have the right, at any time and
from time to time during the term of the Securities, to defer
payments of interest by extending the interest payment period of
such Securities for a period not exceeding 20 consecutive
quarterly periods, including the first such quarterly period
during such extension period (the "Extended Interest Payment
Period"), during which Extended Interest Payment Period no
interest shall be due and payable; provided that no Extended
Interest Payment Period may extend beyond the Maturity Date. To
the extent permitted by applicable law, interest, the payment of
which has been deferred because of the extension of the interest
payment period pursuant to this Section 16.01, will bear interest
thereon at the Interest Rate then in effect compounded quarterly
for each quarterly period of the Extended Interest Payment Period
("Compounded Interest"). At the end of the Extended Interest
Payment Period, the Company shall pay all interest accrued and
unpaid on the Securities, including any Additional Interest and
Compounded Interest (together, "Deferred Interest") that shall be
payable to the holders of the Securities in whose names the
Securities are registered in the Security Register on the first
record date after the end of the Extended Interest Payment
Period. Before
74
the termination of any Extended Interest Payment Period, the Company may
further defer payments of interest by further extending such period,
provided that such period, together with all such previous and further
extensions within such Extended Interest Payment Period, shall not exceed
20 consecutive quarterly periods, including the first such quarterly period
during such Extended Interest Payment Period, or extend beyond the Maturity
Date of the Securities. Upon the termination of any Extended Interest
Payment Period and the payment of all Deferred Interest then due, the
Company may commence a new Extended Interest Payment Period, subject to the
foregoing requirements. No interest shall be due and payable during an
Extended Interest Payment Period, except at the end thereof, but the
Company may prepay at any time all or any portion of the interest accrued
during an Extended Interest Payment Period. Compounded Interest shall be
treated as interest for all purposes under this Indenture.
SECTION 16.02. Notice of Extension.
(a) If the Property Trustee is the only registered
holder of the Securities at the time the Company selects an
Extended Interest Payment Period, the Company shall give written
notice to the Administrative Trustees, the Property Trustee and
the Trustee of its selection of such Extended Interest Payment
Period five Business Days before the earlier of (i) the next
succeeding date on which distributions on the Trust Securities
issued by the Trust are payable, or (ii) the date the Trust is
required to give notice of the record date, or the date such
distributions are payable, to any national securities exchange or
interdealer quotation system or to holders of the Capital
Securities issued by the Trust, but in any event at least five
Business Days before such record date.
(b) If the Property Trustee is not the only holder of
the Securities at the time the Company selects an Extended
Interest Payment Period, the Company shall give the holders of
the Securities and the Trustee written notice of its selection of
such Extended Interest Payment Period at least 10 Business Days
before the earlier of (i) the next succeeding Interest Payment
Date, or (ii) the date the Company is required to give notice of
the record or payment date of such interest payment to any
national securities exchange or interdealer quotation system.
(c) The quarterly period in which any notice is given
pursuant to paragraphs (a) or (b) of this Section 16.02 shall be
counted as one of the 20 quarterly periods permitted in the
maximum Extended Interest Payment Period permitted under Section
16.01.
75
The Bank of New York hereby accepts the trusts in this
Indenture declared and provided, upon the terms and conditions
hereinabove set forth.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed by their respective officers
thereunto duly authorized, as of the day and year first above
written.
BANKBOSTON CORPORATION
By ____________________________
Name:
Title:
THE BANK OF NEW YORK,
as Property Trustee
By ____________________________
Name:
Title:
(Indenture)
76
EXHIBIT A
(FORM OF FACE OF SECURITY)
[IF THE SECURITY IS A GLOBAL SECURITY, INSERT: - THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON
OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS
SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF
THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC") TO THE ISSUER OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL IN AS MUCH AS SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
No. CUSIP No. ______________
A-1
BANKBOSTON CORPORATION
FLOATING RATE JUNIOR SUBORDINATED
DEFERRABLE INTEREST DEBENTURE
DUE _______, 2027
BankBoston Corporation, a Massachusetts corporation
(the "Company", which term includes any successor Person under
the Indenture hereinafter referred to), for value received,
hereby promises to pay to The Bank of New York as Property
Trustee for BankBoston Capital Trust III or registered assigns,
the principal sum of _____________ Dollars on _______, 2027 (the
"Maturity Date"), unless previously redeemed, and to pay interest
on the outstanding principal amount hereof from _______, 1997, or
from the most recent interest payment date (each such date, an
"Interest Payment Date") to which interest has been paid or duly
provided for, quarterly (subject to deferral as set forth herein)
in arrears on _______, _______, _______, and _______ of each
year, commencing _______, 1997, at the Interest Rate (as defined
in the Indenture (as defined below)) until the principal hereof
shall have become due and payable, and on any overdue principal
and premium, if any, at the Interest Rate and (without
duplication and to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of
interest at the Interest Rate compounded quarterly from the
relevant Interest Payment Date. Interest payable on each
Interest Payment Date shall include interest accrued from and
including the immediately preceding Interest Payment Date (or, if
no interest has been paid or duly provided for, the date of
original issuance) to but excluding such Interest Payment Date
(each, an "Interest Period"). If an Interest Payment Date is not
a Business Day, then such Interest Payment Date and the first day
of the Interest Period commencing on such Interest Payment Date
shall be postponed to the next succeeding Business Day, except if
such Business Day is in the next succeeding calendar month, such
Interest Payment Date and the first day of such Interest Period
will be the immediately preceding Business Day. If the Maturity
Date falls on a day that is not a Business Day, payment of the
interest payable on such date will be made on the next succeeding
day that is a Business Day, and no interest or other payment will
accrue from and after the Maturity Date. The amount of interest
payable for any Interest Period shall be computed on the basis of
the actual number of days elapsed in such period and a year of
360 days.
The interest installment so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the person in whose name
this Security (or one or more Predecessor Securities, as defined
in said Indenture) is registered at the close of business on the
regular record date for such interest installment, which shall be
the __________, __________, __________ and ___________ prior to
A-2
the applicable Interest Payment Date. Any such interest
installment not punctually paid or duly provided for shall
forthwith cease to be payable to the holders on such regular
record date and may be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at
the close of business on a special record date to be fixed by the
Trustee for the payment of such defaulted interest, notice
whereof shall be given to the holders of Securities not less than
10 days prior to such special record date, or may be paid at any
time in any other lawful manner not inconsistent with the
requirements of any securities exchange or interdealer quotation
system on which the Securities may be listed, and upon such
notice as may be required by such exchange or interdealer
quotation system, all as more fully provided in the Indenture.
The principal of (and premium, if any) and interest on
this Security shall be payable at the office or agency of the
Trustee maintained for that purpose in any coin or currency of
the United States of America that at the time of payment is legal
tender for payment of public and private debts; provided,
however, that, payment of interest may be made at the option of
the Company by (i) check mailed to the holder at such address as
shall appear in the Security Register or (ii) by transfer to an
account maintained by the Person entitled thereto, provided that
proper written transfer instructions have been received by the
relevant record date. Notwithstanding the foregoing, so long as
the Holder of this Security is the Property Trustee, the payment
of the principal of (and premium, if any) and interest on this
Security will be made at such place and to such account as may be
designated by the Property Trustee.
The indebtedness evidenced by this Security is, to the
extent provided in the Indenture, subordinate and junior in right
of payment to the prior payment in full of all Allocable Amounts
in respect of Senior Indebtedness, and this Security is issued
subject to the provisions of the Indenture with respect thereto.
Each holder of this Security, by accepting the same, (a) agrees
to and shall be bound by such provisions, (b) authorizes and
directs the Trustee on his or her behalf to take such action as
may be necessary or appropriate to acknowledge or effectuate the
subordination so provided and (c) appoints the Trustee his or her
attorney-in-fact for any and all such purposes. Each holder
hereof, by his or her acceptance hereof, hereby waives all notice
of the acceptance of the subordination provisions contained
herein and in the Indenture by each holder of Senior
Indebtedness, whether now outstanding or hereafter incurred, and
waives reliance by each such holder upon said provisions.
A-3
This Security shall not be entitled to any benefit
under the Indenture hereinafter referred to, be valid or become
obligatory for any purpose until the Certificate of
Authentication hereon shall have been signed by or on behalf of
the Trustee.
THIS SECURITY IS NOT A SAVINGS OR DEPOSIT ACCOUNT OR
OTHER OBLIGATION OF A BANK AND IS NOT INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
The provisions of this Security are continued on the
reverse side hereof and such provisions shall for all purposes
have the same effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this
instrument to be executed.
BANKBOSTON CORPORATION
By: ____________________________
Name:
Title
Attest:
By: _______________________
Name:
Title:
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the
within-mentioned Indenture.
Dated ______________
The Bank of New York,
as Trustee
By____________________
Authorized Signatory
A-4
(FORM OF REVERSE OF SECURITY)
This Security is one of the Securities of the Company
(herein sometimes referred to as the "Securities"), specified in
the Indenture, all issued or to be issued under and pursuant to
an Indenture, dated as of _______, 1997 (the "Indenture"), duly
executed and delivered between the Company and The Bank of New
York, as Trustee (the "Trustee"), to which Indenture reference is
hereby made for a description of the rights, limitations of
rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the holders of the Securities.
Upon the occurrence and continuation of a Special
Event, the Company shall have the right to redeem this Security
in whole (but not in part) at the Redemption Price. "Redemption
Price" shall mean, with respect to any redemption of the
Securities, an amount in cash equal to 100% of the principal
amount of Securities to be redeemed plus any accrued and unpaid
interest thereon, including Compounded Interest and Additional
Interest, if any, to the date of such redemption.
In addition, the Company shall have the right to redeem
this Security, in whole or in part, at any time on or after
_______, 2007 (an "Optional Redemption"), at the Redemption
Price.
The Redemption Price shall be paid prior to 12:00 noon,
New York time, on the date of such redemption or at such earlier
time as the Company determines, provided, that the Company shall
deposit with the Trustee an amount sufficient to pay the
Redemption Price by 10:00 a.m., New York City time, on the date
such Redemption Price is to be paid. Any redemption pursuant to
this paragraph will be made upon not less than 30 days nor more
than 60 days notice. If the Securities are only partially
redeemed by the Company pursuant to an Optional Redemption, the
Securities will be redeemed pro rata or by lot or by any other
method utilized by the Trustee; provided that if, at the time of
redemption, the Securities are registered as a Global Security,
the Depositary shall determine the particular Securities to be
redeemed in accordance with its procedures.
In the event of redemption of this Security in part
only, a new Security or Securities for the unredeemed portion
hereof will be issued in the name of the holder hereof upon the
cancellation hereof.
Notwithstanding the foregoing, any redemption of
Securities by the Company shall be subject to the prior approval
of the Board of Governors of the Federal Reserve System (the
"Federal Reserve"), if such approval is then required under
capital guidelines or policies of the Federal Reserve.
A-5
In case an Event of Default, as defined in the
Indenture, shall have occurred and be continuing, the principal
of all of the Securities may be declared, and upon such
declaration shall become, due and payable, in the manner, with
the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions permitting the
Company and the Trustee, with the consent of the holders of a
majority in aggregate principal amount of the Securities at the
time outstanding, as defined in the Indenture, to execute
supplemental indentures for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions
of the Indenture or of modifying in any manner the rights of the
holders of the Securities; provided, however, that no such
supplemental indenture shall, without the consent of each holder
of Securities then outstanding and affected thereby, (i) extend
the Maturity Date of any Securities, or reduce the principal
amount thereof, or reduce any amount payable on redemption
thereof, or reduce the rate or extend the time of payment of
interest thereon (subject to Article XVI of the Indenture), or
make the principal of, or interest or premium on, the Securities
payable in any coin or currency other than U.S. dollars, or
impair or affect the right of any holder of Securities to
institute suit for the payment thereof, or (ii) reduce the
aforesaid percentage of Securities, the holders of which are
required to consent to any such supplemental indenture. The
Indenture also contains provisions permitting the holders of a
majority in aggregate principal amount of the Securities at the
time outstanding affected thereby, on behalf of all of the
holders of the Securities, to waive any past default in the
performance of any of the covenants contained in the Indenture,
or established pursuant to the Indenture, and its consequences,
except a default in the payment of the principal of or premium,
if any, or interest on any of the Securities or a default in
respect of any covenant or provision under which the Indenture
cannot be modified or amended without the consent of each holder
of Securities then outstanding. Any such consent or waiver by
the holder of this Security (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and
upon all future holders and owners of this Security and of any
Security issued in exchange heretofore or in place hereof
(whether by registration of transfer or otherwise), irrespective
of whether or not any notation of such consent or waiver is made
upon this Security.
No reference herein to the Indenture and no provision
of this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and premium, if any, and interest on this
Security at the time and place and at the rate and in the money
herein prescribed.
A-6
So long as no Event of Default has occurred and is
continuing, the Company shall have the right, at any time and
from time to time during the term of the Securities, to defer
payments of interest by extending the interest payment period of
such Securities for a period not exceeding 20 consecutive
quarterly periods, including the first such quarterly period
during such extension period (an "Extended Interest Payment
Period"), at the end of which period the Company shall pay all
interest then accrued and unpaid (together with interest thereon
at the Interest Rate to the extent that payment of such interest
is enforceable under applicable law); provided that no Extended
Interest Payment Period may extend beyond the Maturity Date.
Before the termination of any such Extended Interest Payment
Period, the Company may further defer payments of interest by
further extending such Extended Interest Payment Period, provided
that such Extended Interest Payment Period, together with all
such previous and further extensions within such Extended
Interest Payment Period, shall not exceed 20 consecutive
quarterly periods, including the first quarterly period during
such Extended Interest Payment Period, or extend beyond the
Maturity Date of the Securities. Upon the termination of any
such Extended Interest Payment Period and the payment of all
accrued and unpaid interest and any additional amounts then due,
the Company may commence a new Extended Interest Payment Period,
subject to the foregoing requirements.
The Company has agreed that it will not (i) declare or
pay any dividends or distributions on, or redeem, purchase,
acquire, or make a liquidation payment with respect to, any of
the Company's capital stock (which includes common and preferred
stock) or (ii) make any payment of principal, interest or
premium, if any, on or repay or repurchase or redeem any debt
securities of the Company that rank pari passu with or junior in
right of payment to the Securities or make any guarantee payments
with respect to any guarantee by the Company of the debt
securities or any Subsidiary of the Company if such guarantee
ranks pari passu or junior in right of payment to the Securities
(other than (a) dividends or distributions in shares of, or
options, warrants or rights to subscribe for or purchase shares
of, Common Stock of the Company, (b) any declaration of a
dividend in connection with the implementation of a stockholder's
rights plan, or the issuance of stock under any such plan in the
future, or the redemption or repurchase of any such rights
pursuant thereto, (c) payments under the Capital Securities
Guarantee (d) as a result of a reclassification of the Company's
capital stock or the exchange or the conversion of one class or
series of the Company's capital stock for another class or series
of the Company's capital stock (e) the purchase of fractional
interests in shares of the Company's capital stock pursuant to
the exchange or conversion of such capital stock or the security
being exchanged or converted and (f) purchases of Common Stock
related to the issuance of Common Stock or rights under any of
the Company's
A-7
benefit plans for its directors, officers or employees or any of the
Company's dividend reinvestment plans) if at such time (i) there shall have
occurred any event of which the Company has actual knowledge that (a) is,
or with the giving of notice or the lapse of time, or both, would be, an
Event of Default and (b) in respect of which the Company shall not have
taken reasonable steps to cure, (ii) if such Securities are held by the
Trust, the Company shall be in default with respect to its payment of any
obligations under the Capital Securities Guarantee or (iii) the Company
shall have given notice of its election of the exercise of its right to
extend the interest payment period and any such extension shall be
continuing.
Subject to the prior approval of the Federal Reserve if
such approval is then required under capital guidelines or
policies of the Federal Reserve, the Company will have the right
at any time to liquidate the Trust and cause the Securities to be
distributed to the holders of the Trust Securities in liquidation
of the Trust.
The Securities are issuable only in registered form
without coupons in denominations of $1,000.00 and any integral
multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, this Security is
transferable by the holder hereof on the Security Register of the
Company, upon surrender of this Security for registration of
transfer at the office or agency of the Trustee in the City and
State of New York accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company or
the Trustee duly executed by the holder hereof or his attorney
duly authorized in writing, and thereupon one or more new
Securities of authorized denominations and for the same aggregate
principal amount will be issued to the designated transferee or
transferees. No service charge will be made for any such
transfer, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in relation
thereto.
Prior to due presentment for registration of transfer
of this Security, the Company, the Trustee, any paying agent and
the registrar may deem and treat the holder hereof as the
absolute owner hereof (whether or not this Security shall be
overdue and notwithstanding any notice of ownership or writing
hereon made by anyone other than the Security registrar) for the
purpose of receiving payment of or on account of the principal
hereof and premium, if any, and interest due hereon and for all
other purposes, and neither the Company nor the Trustee nor any
paying agent nor any registrar shall be affected by any notice to
the contrary.
No recourse shall be had for the payment of the
principal of or premium, if any, or interest on this Security, or
for any claim based hereon, or otherwise in respect hereof, or
based
A-8
on or in respect of the Indenture, against any incorporator, stockholder,
officer or director, past, present or future, as such, of the Company or of
any predecessor or successor Person, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty
or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issuance hereof, expressly waived and
released.
All terms used in this Security that are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS THEREOF.
A-9
