SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) December 6, 1996
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FLEET FINANCIAL GROUP, INC.
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(Exact name of registrant as specified in its charter)
RHODE ISLAND
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(State or other jurisdiction of incorporation)
1-6366 05-0341324
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(Commission File Number) (IRS Employer Identification No.)
One Federal Street, Boston, MA 02110
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 617-292-2000
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(Former name or former address, if changed since last report)
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Item 5. Other Events.
Pursuant to a Purchase Agreement dated December 6, 1996 by and among Fleet
Financial Group, Inc. ("Fleet"), Fleet Capital Trust II ("Fleet Capital" or the
"Trust") and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, CS First Boston Corporation, Salomon Brothers Inc and UBS
Securities LLC (the "Underwriters"), a copy of which is attached hereto as
Exhibit 1, Fleet Capital agreed to issue and sell to the Underwriters 250,000
7.92% Capital Securities, which represent undivided preferred beneficial
interests in the assets of Fleet Capital, at a price to the public of $998.96
per Capital Security. The closing of the sale of the Capital Securities took
place on December 11, 1996.
Fleet will own all of the Common Securities (the "Common Securities," and
together with the Capital Securities, the "Trust Securities") representing
undivided beneficial interests in the assets of Fleet Capital. Upon an event of
default under Fleet Capital's Declaration of Trust (the "Declaration"), the
holders of Capital Securities will have a preference over the holders of the
Common Securities with respect to payments of distributions and payments upon
redemption, liquidation and otherwise. Fleet Capital exists for the sole purpose
of issuing the Trust Securities and investing the proceeds thereof in an
equivalent amount of 7.92% Junior Subordinated Debentures due 2026 (the "Junior
Subordinated Debentures") of Fleet. The Junior Subordinated Debentures will
mature on December 11, 2026 (the "Stated Maturity").
The Capital Securities and Junior Subordinated Debentures were registered
under a Registration Statement on Form S-3 (No. 333-15435) filed with the
Securities and Exchange Commission (the "Registration Statement").
Holders of the Capital Securities are entitled to receive cumulative cash
distributions at an annual rate of 7.92% of the liquidation amount of $1,000 per
Capital Security, accruing from the date of original issuance and payable
semi-annually in arrears on June 15 and December 15 of each year, commencing
June 15, 1997 ("distributions"). The payment of distributions out of moneys held
by Fleet Capital and payments on liquidation of Fleet Capital or the redemption
of Capital Securities are guaranteed by Fleet (the "Guarantee"). The Guarantee
covers payments of distributions and other payments on the Capital Securities if
and to the extent that Fleet Capital has funds available therefor, which will
not be the case unless Fleet has made a payment of interest or principal or
other payments on the Junior Subordinated Debentures held by Fleet Capital as
its sole asset. The Guarantee, when taken together with Fleet's obligations
under the Junior Subordinated Debentures and the related Indenture and its
obligations under the Declaration, including its liabilities to pay costs,
expenses, debts and obligations of Fleet Capital (other than with respect to the
Trust Securities), provide a full and unconditional guarantee of amounts due on
the Capital Securities.
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The obligations of Fleet under the Guarantee are subordinate and junior in
right of payment to all other liabilities of Fleet and rank pari passu with the
most senior preferred stock issued, from time to time, if any, by Fleet. The
obligations of Fleet under the Junior Subordinated Debentures are subordinate
and junior in right of payment to all present and future Senior Indebtedness and
Other Financial Obligations (each as defined in the Registration Statement) of
Fleet, which aggregated approximately $4.0 billion (holding company only) at
September 30, 1996, and rank pari passu with Fleet's other general unsecured
creditors. In addition, because Fleet is a holding company, the Junior
Subordinated Debentures are effectively subordinated to all existing and future
liabilities of Fleet's subsidiaries, including depositors.
So long as Fleet shall not be in default in the payment of interest on the
Junior Subordinated Debentures, Fleet has the right to defer payments of
interest on the Junior Subordinated Debentures by extending the interest payment
period on the Junior Subordinated Debentures at any time for up to 10
consecutive semi-annual periods (each, an "Extension Period"), provided that an
Extension Period may not extend beyond the Stated Maturity of the Junior
Subordinated Debentures. If interest payments are so deferred, distributions on
the Capital Securities will also be deferred. During such Extension Period,
distributions will continue to accrue with interest thereon (to the extent
permitted by applicable law) at an annual rate of 7.92% percent per annum
compounded semi-annually, and during any Extension Period, holders of Capital
Securities will be required to include such deferred interest in their gross
income for United States federal income tax purposes in advance of receipt of
the cash distributions with respect to such deferred interest. There could be
multiple Extension Periods of varying lengths throughout the term of the Junior
Subordinated Debentures.
The Trust Securities will be subject to mandatory redemption (i) in whole
but not in part, on the Stated Maturity upon repayment of the Junior
Subordinated Debentures, at a redemption price equal to the principal amount of,
plus accrued interest on, the Junior Subordinated Debentures, (ii) in whole but
not in part, at any time, contemporaneously with the optional prepayment of the
Junior Subordinated Debentures, upon the occurrence and continuation of a
Special Event (as defined in the Registration Statement) at a redemption price
equal to the Special Event Prepayment Price (as defined herein), and (iii) in
whole or in part, on or after December 15, 2006, contemporaneously with the
optional prepayment by Fleet of the Junior Subordinated Debentures, at a
redemption price equal to the Optional Prepayment Price (as defined herein).
The Junior Subordinated Debentures will be prepayable prior to the Stated
Maturity at the option of Fleet (i) at any time prior to December 15, 2006, in
whole but not in part, upon the occurrence and continuation of a Special Event,
at a prepayment price (the "Special Event Prepayment Price") equal to the
greater of (a) 100% of the principal amount thereof or (b) the sum, as
determined by a Quotation Agent (as defined in the Registration Statement), of
the present values of the principal amount and premium payable as part of the
Optional Prepayment Price with respect to an optional prepayment on December 15,
2006, together with scheduled payments of interest from the prepayment date to
December 15, 2006, in each case discounted to
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the prepayment date on a semi-annual basis (assuming a 360-day year consisting
of twelve 30-day months) at the Adjusted Treasury Rate (as defined in the
Registration Statement) or (ii) on or after December 15, 2006, in whole or in
part, at a prepayment price (the "Optional Prepayment Price") equal to 103.908%
of the principal amount thereof on December 15, 2006, declining ratably on each
December 15 thereafter to 100% on or after December 15, 2016, plus, in either
case, accrued interest thereon to the date of prepayment.
Fleet will have the right at any time to liquidate Fleet Capital and cause
the Junior Subordinated Debentures to be distributed to the holders of the Trust
Securities. Any such redemption or distribution of the Junior Subordinated
Debentures may require the prior approval of the Board of Governors of the
Federal Reserve System, if such approval is then required under applicable law,
rules, guidelines or policies. In the event of the involuntary or voluntary
dissolution, winding-up or termination of Fleet Capital, the holders of the
Capital Securities will be entitled to receive for each Capital Security a
liquidation amount of $1,000 plus accrued and unpaid distributions thereon
(including interest thereon) to the date of payment, unless, in connection with
such dissolution, the Junior Subordinated Debentures are distributed to the
holders of the Capital Securities.
<PAGE>
Item 7. Financial Statements and Exhibits.
The following exhibits are filed as part of this report:
Item 601
Exhibit Table
Reference Exhibit Title
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1 Purchase Agreement dated December 6, 1996 by and among Fleet,
the Trust and Merrill Lynch & Co., CS First Boston
Corporation, Salomon Brothers Inc and UBS Securities LLC
4(a) Amended and Restated Declaration of Trust of Fleet Capital
Trust II dated December 11, 1996 between Fleet and The First
National Bank of Chicago, as Trustee.
4(b) Indenture dated December 11, 1996 between Fleet and The First
National Bank of Chicago, as Trustee.
4(c) Supplemental Indenture dated December 11, 1996 between Fleet
and The First National Bank of Chicago, as Trustee.
4(d) Form of Preferred Security (included in Exhibit 4(a)).
4(e) Form of Junior Subordinated Debenture (included in Exhibit
4(c)).
4(f) Preferred Securities Guarantee dated December 11, 1996 between
Fleet and The First National Bank of Chicago, as Trustee.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the Registrant has duly caused this report to be signed in its behalf
by the undersigned hereunto duly authorized.
FLEET FINANCIAL GROUP, INC.
By: /s/ William C. Mutterperl
---------------------------------
William C. Mutterperl
Senior Vice President, Secretary
and General Counsel
Date: December 19, 1996
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FLEET FINANCIAL GROUP, INC.
(a Rhode Island corporation); and
FLEET CAPITAL TRUST II
(a Delaware statutory business trust)
$250,000,000
7.92% Capital Securities
PURCHASE AGREEMENT
Dated: December 6, 1996
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Table of Contents
PURCHASE AGREEMENT ......................................................... 1
SECTION 1. Representations and Warranties. ................................ 4
(a) Representations and Warranties by the Company and the Trust. ... 4
(i) Compliance with Registration Requirements .............. 4
(ii) Incorporated Documents ................................. 5
(iii) Independent Accountants ................................ 5
(iv) Financial Statements ................................... 5
(v) No Material Adverse Change in Business ................. 5
(vi) Good Standing of the Company ........................... 6
(vii) Existence of Trust. .................................... 6
(viii) Common Securities. ..................................... 6
(ix) Authorization of Declaration. .......................... 6
(x) Guarantee Agreements ................................... 6
(xi) Capital Securities ..................................... 7
(xii) Authorization of Indenture ............................. 7
(xiii) Authorization of Debentures ............................ 7
(xiv) Authorization of Agreement ............................. 8
(xv) Absence of Defaults and Conflicts. ..................... 8
(xvi) Absence of Proceedings ................................. 8
(xvii) Absence of Further Requirements ........................ 9
(xviii) Possession of Licenses and Permits ..................... 9
(xix) Compliance with Cuba Act ............................... 9
(xx) Investment Company Act ................................. 9
(b) Officer's Certificates ......................................... 9
SECTION 2. Sale and Delivery to Underwriters; Closing ..................... 9
(a) Capital Securities. ............................................ 9
(b) Payment ........................................................ 10
(c) Denominations; Registration .................................... 10
SECTION 3. Covenants of the Company and the Trust ......................... 10
(a) Compliance with Securities Regulations and Commission Requests . 10
(b) Filing of Amendments ........................................... 11
(c) Delivery of Registration Statements ............................ 11
(d) Delivery of Prospectuses ....................................... 12
(e) Continued Compliance with Securities Laws ...................... 12
(f) Blue Sky Qualifications ........................................ 12
(g) Rule 158 ....................................................... 13
(h) Restriction on Sale of Securities .............................. 13
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(i) Reporting Requirements ......................................... 13
SECTION 4. Payment of Expenses ............................................ 13
(a) Expenses ....................................................... 13
(b) Termination of Agreement ....................................... 14
SECTION 5. Conditions of Underwriters' Obligations ........................ 14
(a) Effectiveness of Registration Statement ........................ 14
(b) Opinion of Counsel for Company ................................. 14
(c) Opinion of Special Delaware Counsel for the Trust .............. 14
(d) Opinion of Counsel for Underwriters ............................ 15
(e) Officers' Certificates ......................................... 15
(f) Accountant's Comfort Letter .................................... 16
(g) Lock-up Agreements ............................................. 16
(h) Maintenance of Rating .......................................... 16
(i) Additional Documents ........................................... 16
(j) Termination of Agreement ....................................... 16
SECTION 6. Indemnification ................................................ 17
(a) Indemnification of Underwriters ................................ 17
(b) Indemnification of Trust by Company ............................ 17
(c) Indemnification of Trust, Company, Directors and Officers ...... 18
(d) Actions against Parties; Notification .......................... 18
(e) Settlement without Consent if Failure to Reimburse ............. 18
SECTION 7. Contribution ................................................... 19
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery ............................................... 20
SECTION 9. Termination of Agreement ....................................... 20
(a) Termination; General ........................................... 20
(b) Liabilities .................................................... 21
SECTION 10. Default by One or More of the Underwriters ..................... 21
SECTION 11. Notices ........................................................ 22
SECTION 12. Parties ........................................................ 22
SECTION 13. GOVERNING LAW AND TIME ......................................... 22
SECTION 14. Effect of Headings ............................................. 22
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SCHEDULES
Schedule A - List of Underwriters Sch A-1 Schedule B - List of
Subsidiaries Sch ..................................................... B-1
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel ..................... A-1
Exhibit B - Form of Opinion of Trust's Special Delaware Counsel ...... B-1
Exhibit C - Form of Lock-up Letter ................................... C-1
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FLEET FINANCIAL GROUP, INC.
(a Rhode Island corporation)
FLEET CAPITAL TRUST II
(a Delaware statutory business trust)
$250,000,000
7.92% Capital Securities
(Liquidation Amount $1000 Per Capital Security)
PURCHASE AGREEMENTAGREEMENT
December 6, 1996
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
CS FIRST BOSTON CORPORATION
SALOMON BROTHERS INC
UBS SECURITIES LLC
C/O MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Fleet Capital Trust II (the "Trust"), a statutory business trust organized
under the Business Trust Act (the "Delaware Act") of the State of Delaware
(Chapter 38, Title 12 of the Delaware Code, 12 Del. C. ss. ss. 3801 et seq.)
confirms its agreement with you, Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated ("Merrill Lynch"), CS First Boston Corporation
("CSFB"), Salomon Brothers Inc ("Salomon") and UBS Securities LLC ("UBS,"
together with Merrill Lynch, CSFB and Salomon, the "Underwriters," which term
shall also include any underwriter substituted as hereinafter provided in
Section 10 hereof), with respect to the issue and sale by the Trust and the
purchase by the Underwriters, acting severally and not jointly, of the
respective numbers of 7.92 % Capital Securities (liquidation amount $1000 per
capital security) ("Capital Securities") set forth in said Schedule A hereto.
The Capital Securities are more fully described in the Prospectus (as defined
below).
<PAGE>
The Capital Securities will be guaranteed by Fleet Financial Group, Inc.
(a Rhode Island corporation) (the "Company"), to the extent set forth in the
Prospectus (as defined below), with respect to distributions and amounts payable
upon liquidation or redemption (the "Capital Securities Guarantee"), pursuant to
the Capital Securities Guarantee Agreement (the "Capital Securities Guarantee
Agreement") to be dated as of Closing Time (as defined below), executed and
delivered by the Company and The First National Bank of Chicago (the "Guarantee
Trustee"), a national banking association not in its individual capacity but
solely as trustee, for the benefit of the holders from time to time of the
Capital Securities. The Company and the Trust each understand that the
Underwriters propose to make a public offering of the Capital Securities as soon
as they deem advisable after this Agreement has been executed and delivered, and
the Declaration (as defined herein), the Indenture (as defined herein), and the
Capital Securities Guarantee Agreement have been qualified under the Trust
Indenture Act of 1939, as amended (the "1939 Act"). The entire proceeds from the
sale of the Capital Securities will be combined with the entire proceeds from
the sale by the Trust to the Company of its common securities (the "Common
Securities") guaranteed by the Company, to the extent set forth in the
Prospectus, with respect to distributions and amounts payable upon liquidation
or redemption (the "Common Securities Guarantee" and, together with the Capital
Securities Guarantee, the "Guarantees") pursuant to the Common Securities
Guarantee Agreement (the "Common Securities Guarantee Agreement" and, together
with the Capital Securities Agreement, the "Guarantee Agreements"), to be dated
as of Closing Time, executed and delivered by the Company for the benefit of the
holders from time to time of the Common Securities, and will be used by the
Trust to purchase the 7.92% Junior Subordinated Deferrable Interest Debentures
due 2026 (the "Debentures") issued by the Company. The Capital Securities and
the Common Securities will be issued pursuant to the Amended and Restated
Declaration of Trust of the Trust, to be dated as of Closing Time (the
"Declaration"), among the Company, as Sponsor, The First National Bank of
Chicago, as institutional trustee (the "Institutional Trustee"), First Chicago
Delaware Inc., as Delaware trustee (the "Delaware Trustee"), and Eugene M.
McQuade, Douglas L. Jacobs and John R. Rodehorst, as regular trustees (the
"Regular Trustees" and together with the Institutional Trustee and the Delaware
Trustee, the "Trustees"), and the holders from time to time of undivided
beneficial interests in the assets of the Trust. The Debentures will be issued
pursuant to an Indenture, to be dated as of Closing Time (the "Indenture"),
between the Company and The First National Bank of Chicago as trustee (the
"Indenture Trustee"), as supplemented by a Supplemental Indenture to be dated as
of Closing Time (the "Supplemental Indenture"), between the Company and the
Indenture Trustee. The Capital Securities, the Capital Securities Guarantee and
the Debentures are collectively referred to herein as the "Securities."
Capitalized terms used herein without definition have the respective meanings
specified in the Prospectus.
The Company and the Trust have filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-15435) covering the registration of the Securities under the Securities Act
of 1933, as amended (the "1933 Act"), including the related preliminary
prospectus or prospectuses. Promptly after execution and delivery of this
Agreement, the Company will either (i) prepare and file a prospectus (including
a prospectus supplement relating to the Securities) in accordance with the
provisions of Rule 430A ("Rule
2
<PAGE>
430A") of the rules and regulations of the Commission under the 1933 Act (the
"1933 Act Regulations"), if applicable, and paragraph (b) of Rule 424 ("Rule
424(b)") of the 1933 Act Regulations or (ii) if the Company has elected to rely
upon Rule 434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term
sheet (a "Term Sheet") in accordance with the provisions of Rule 434 and Rule
424(b). The information included in such prospectus or in such Term Sheet, as
the case may be, that was omitted from such registration statement at the time
it became effective but that is deemed to be part of such registration statement
at the time it became effective (a) pursuant to paragraph (b) of Rule 430A is
referred to as "Rule 430A Information" or (b) pursuant to paragraph (d) of Rule
434 is referred to as "Rule 434 Information." Each prospectus used before such
registration statement became effective, and any prospectus that omitted, as
applicable, the Rule 430A Information or the Rule 434 Information, that was used
after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus." Such registration
statement, including the exhibits thereto, schedules thereto, if any, and the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, at the time it became effective and including the Rule 430A
Information and the Rule 434 Information, as applicable, is herein called the
"Registration Statement." Any registration statement filed pursuant to Rule
462(b) of the 1933 Act Regulations is herein referred to as the "Rule 462(b)
Registration Statement," and after such filing the term "Registration Statement"
shall include the Rule 462(b) Registration Statement. The final prospectus,
including the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the 1933 Act, in the form first furnished to the Underwriters for
use in connection with the offering of the Capital Securities is herein called
the "Prospectus." If Rule 434 is relied on, the term "Prospectus" shall refer to
the preliminary prospectus dated November 1, 1996 together with the Term Sheet
and all references in this Agreement to the date of the Prospectus shall mean
the date of the Term Sheet. For purposes of this Agreement, all references to
the Registration Statement, any preliminary prospectus, the Prospectus or any
Term Sheet or any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("EDGAR").
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (the "1934 Act") which is
incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectus, as the case may be.
1. Representations and Warranties.
3
<PAGE>
(a) Representations and Warranties by the Company and the Trust. The
Company and the Trust jointly and severally represent and warrant to each
Underwriter as of the date hereof and as of the Closing Time referred to in
Section 2(b) hereof, and agrees with each Underwriter, as follows:
(i) Compliance with Registration Requirements. The Company meets the
requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company and the Trust, are contemplated by the
Commission, and any request on the part of the Commission for additional
information has been complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective, at the date hereof, and at the Closing Time, the Registration
Statement, the Rule 462(b) Registration Statement, if any, and any
amendments and supplements thereto complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations and the 1939 Act and the rules and regulations of the
Commission under the 1939 Act (the "1939 Act Regulations") and did not and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading. Neither the Prospectus nor any
amendments or supplements thereto, at the time the Prospectus or any such
amendment or supplement was issued and at the Closing Time, included or
will include an untrue statement of a material fact or omitted or will
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. If Rule 434 is used, the Company and the Trust will comply
with the requirements of Rule 434. The representations and warranties in
this subsection shall not apply (A) to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Trust or the Company in
writing by any Underwriter through Merrill Lynch expressly for use in the
Registration Statement or Prospectus or (B) to that part of the
Registration Statement that constitutes the Statements of Eligibility and
Qualification on Form T-1 (the "Forms T-1) under the Trust Indenture Act
of the Indenture Trustee, the Institutional Trustee and the Guarantee
Trustee.
Each preliminary prospectus and the prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when
so filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectus delivered to the Underwriters
for use in connection with this offering was identical to the
4
<PAGE>
electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or deemed to
be incorporated by reference in the Registration Statement and the
Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations") and, when read together
with the other information in the Prospectus, at the time the Registration
Statement became effective, at the date hereof, at the time the Prospectus
was issued and at the Closing Time, did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading.
(iii) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included in the Registration
Statement are independent public accountants as required by the 1933 Act
and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements included in the
Registration Statement and the Prospectus, together with the related
schedules and notes, present fairly the financial position of the Company
and its consolidated subsidiaries at the dates indicated and the statement
of operations, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout
the periods involved. The supporting schedules, if any, included in the
Registration Statement present fairly in accordance with GAAP the
information required to be stated therein. The selected financial data and
the summary financial information included in the Prospectus present
fairly the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included in the
Registration Statement.
(v) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business (a "Material Adverse Effect"), (B) there
have been no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business, which
are material with respect to the Company and its subsidiaries considered
as one enterprise, and (C) there has been no dividend or distribution of
any kind declared, paid or made by the Company on any class of its capital
stock, except for dividends paid by the Company in the ordinary course of
business consistent with past practice.
5
<PAGE>
(vi) Good Standing of the Company. Each of the Company and the
subsidiaries of the Company listed on Schedule B hereto, (the "Significant
Subsidiaries") has been duly incorporated and is validly existing as a
corporation or national banking association in good standing under the
laws of the jurisdiction in which it is chartered or organized, with full
corporate power and authority to own its properties and conduct its
business as described in the Prospectus; the Company is duly qualified to
do business as a foreign corporation under the laws of the State of New
York and the laws of the Commonwealth of Massachusetts; and neither the
Company nor any Significant Subsidiary is required to be qualified to do
business as a foreign corporation under the laws of any other
jurisdiction, and the Company is duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended.
(vii) Existence of Trust. The Trust has been duly created and is
validly existing in good standing as a business trust under the Delaware
Act, is and will be treated as a "grantor trust" for federal income tax
purposes under existing law, has the business trust power and authority to
conduct its business as presently conducted and as described in the
Prospectus, and is not required to be authorized to do business in any
other jurisdiction.
(viii) Common Securities. The Common Securities have been duly
authorized by the Declaration and, when issued and delivered by the Trust
to the Company in accordance with the terms of the Declaration and against
payment therefor as described in the Prospectus, will be validly issued
and (subject to the terms of the Declaration) fully paid and nonassessable
undivided beneficial interests in the assets of the Trust; the issuance of
the Common Securities is not subject to preemptive or other similar
rights; no holder thereof will be subject to personal liability by reason
of being such a holder; and at the Closing Time, all of the issued and
outstanding Common Securities of the Trust will be directly owned by the
Company free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
(ix) Authorization of Declaration. The Declaration has been duly
authorized by the Company and duly qualified under the 1939 Act and, when
validly executed and delivered by the Company and the Regular Trustees,
and assuming the due authorization, execution and delivery of the
Declaration by the Delaware Trustee and the Institutional Trustee, the
Declaration will constitute a valid and binding obligation of the Company
and the Regular Trustees, enforceable against the Company and the Regular
Trustees in accordance with its terms, except as enforcement thereof may
be limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity
or at law).
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<PAGE>
(x) Guarantee Agreements. The Capital Securities Guarantee Agreement
has been duly authorized by the Company and duly qualified under the 1939
Act and, when validly executed and delivered by the Company, and assuming
due authorization, execution and delivery of the Capital Securities
Guarantee Agreement by the Guarantee Trustee, will constitute a valid and
binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at law).
(xi) Capital Securities. The Capital Securities have been duly
authorized by the Declaration and, when authenticated in the manner
provided for in the Declaration and issued and delivered pursuant to this
Agreement against payment of the consideration set forth herein, will be
validly issued and (subject to the terms of the Declaration) fully paid
and nonassessable undivided beneficial interests in the assets of the
Trust; the issuance of the Capital Securities is not subject to preemptive
or other similar rights; and holders of Capital Securities will be
entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit incorporated under the
General Corporation Law of the State of Delaware.
(xii) Authorization of Indenture. The Indenture has been duly
authorized by the Company and duly qualified under the 1939 Act and, when
duly executed and delivered by the Company and assuming the due
authorization, execution and delivery of the Indenture by the Indenture
Trustee, will constitute a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject
to generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(xiii) Authorization of Debentures. The Debentures have been duly
authorized by the Company, and when executed, authenticated, issued and
delivered in the manner provided for in the Indenture and sold and paid
for as provided in this Agreement, the Debentures will constitute valid
and binding obligations of the Company entitled to the benefits of the
Indenture and enforceable against the Company in accordance with their
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).
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(xiv) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company and the Trust.
(xv) Absence of Defaults and Conflicts. The execution and delivery
by the Company and the Trust of, and the performance by the Company and
the Trust of their obligations under, this Agreement, the execution and
delivery by the Company of, and the performance by the Company of its
obligations under, the Declaration, the Capital Securities Guarantee
Agreement and the Indenture, the issuance and delivery by the Trust of the
Common Securities and Capital Securities and the consummation of the sale
of the Capital Securities and the fulfillment of the terms herein
contemplated will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under (in each case
material to the Company and its subsidiaries (including the Trust)
considered as a whole or as to the Trust separately), any indenture,
mortgage, deed of trust, loan agreement, guarantee, lease, financing
agreement or other similar agreement or instrument to which the Company or
any of its subsidiaries (including the Trust) is a party or by which the
Company or any of its subsidiaries (including the Trust) is bound or to
which any of the property or assets of the Company or any of its
subsidiaries (including the Trust) is subject, nor will such actions
result in any violation of the provisions of the certificate of
incorporation or by-laws of the Company or the Declaration of the Trust,
nor will such actions result in any violation (in each case material to
the Company and its subsidiaries (including the Trust) considered as a
whole or as to the Trust separately) of any statute or any order, rule or
regulation of any court or regulatory authority or other governmental body
having jurisdiction over the Trust or the Company or any of its
subsidiaries or any of their properties; and no consent, approval,
authorization or order of, or qualification with, any governmental body or
agency is required for, and the absence of which would materially affect,
the performance by the Company and the Trust of their obligations under
this Agreement and the issuance and delivery of the Capital Securities,
except such approvals as will be obtained under the Securities Act, the
Exchange Act or the 1939 Act and as may be required by the securities or
Blue Sky laws of the various states or the securities laws of non-U.S.
jurisdictions in connection with the sale of the Capital Securities.
(xvi) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
the Company or the Trust, threatened, against or affecting the Company or
any subsidiary, which is required to be disclosed in the Registration
Statement (other than as disclosed therein), or which might reasonably be
expected to result in a Material Adverse Effect, or which might reasonably
be expected to materially and adversely affect the properties or assets of
the Company and its subsidiaries taken as a whole or the consummation of
the transactions contemplated in this Agreement or the performance by the
Company or the Trust of its obligations hereunder; the aggregate of all
pending legal or governmental proceedings to which the Company or any
subsidiary is a party or of which any of their respective property or
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<PAGE>
assets is the subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to the
business, could not reasonably be expected to result in a Material Adverse
Effect.
(xvii) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them, except for such
Governmental Licenses the absence of which would not cause a Material
Adverse Effect; the Company and its subsidiaries are in compliance with
the terms and conditions of all such Governmental Licenses, except where
the failure so to comply would not, singly or in the aggregate, have a
Material Adverse Effect; all of the Governmental Licenses are valid and in
full force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full force
and effect would not have a Material Adverse Effect; and neither the
Company nor any of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such Governmental
Licenses which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material
Adverse Effect.
(xviii) Compliance with Cuba Act. The Company and the Trust have
complied with, and is and will be in compliance with, the provisions of
that certain Florida act relating to disclosure of doing business with
Cuba, codified as Section 517.075 of the Florida statutes, and the rules
and regulations thereunder (collectively, the "Cuba Act") or is exempt
therefrom.
(xix) Investment Company Act. Neither the Company nor the Trust is,
and upon the issuance and sale of the Capital Securities as herein
contemplated and the application of the net proceeds therefrom as
described in the Prospectus neither will be, an "investment company" or an
entity "controlled" by an "investment company" as such terms are defined
in the Investment Company Act of 1940, as amended (the "1940 Act").
(b) Officer's Certificates. Any certificate signed by any officer of the
Company or the Trust delivered to Underwriters or to counsel for the
Underwriters shall be deemed a representation and warranty by the Company or the
Trust, respectively, to each Underwriter as to the matters covered thereby.
2. Sale and Delivery to Underwriters; Closing
(a) Capital Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Trust agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Company, at
the purchase price of $1000 per Capital Security, the number of Capital
Securities set forth in Schedule A opposite the name of such Underwriter, plus
any
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<PAGE>
additional number of Capital Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof, subject,
in each case, to such adjustments among the Underwriters as they in their sole
discretion shall make to eliminate any sales or purchases of fractional
securities. As compensation to the Underwriters for their commitments hereunder
and in view of the fact that the proceeds of the sale of the Capital Securities
will be used to purchase the Debentures, the Company hereby agrees to pay at the
Closing Time to the Underwriters a commission of $10.00 per Capital Security
purchased by the Underwriters.
(b) Payment. Payment of the purchase price for, and delivery of
certificates for, the Capital Securities shall be made at the offices of
Skadden, Arps, Slate, Meagher & Flom LLP, 919 Third Avenue, New York, New York
10022, or at such other place as shall be agreed upon by the Underwriters, the
Company and the Trust, at 9:00 A.M. (Eastern time) on the third (fourth, if the
pricing occurs after 4:30 p.m. (Eastern time) on any given day) business day
after the date hereof (unless postponed in accordance with the provisions of
Section 10), or such other time not later than ten business days after such date
as shall be agreed upon by the Underwriters, the Company and the Trust (such
time and date of payment and delivery being herein called "Closing Time").
Payment shall be made to the Trust by wire transfer of immediately
available funds to the order of the Trust, against delivery to the Underwriters
of certificates for the Capital Securities to be purchased by them. It is
understood that each Underwriter has authorized Merrill Lynch, for its account,
to accept delivery of, receipt for, and make payment of the purchase price for
the Capital Securities which it has agreed to purchase. Merrill Lynch,
individually and not as representative of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Capital Securities
to be purchased by any Underwriter whose funds have not been received by the
Closing Time, but such payment shall not relieve such Underwriter from its
obligations hereunder.
At Closing Time the Company will pay, or cause to be paid, the commission
payable at such time under this Section 2 to Merrill Lynch on behalf of the
Underwriters by wire transfer of immediately available funds.
(c) Denominations; Registration. Certificates for the Capital Securities
shall be in such denominations and registered in such names as the Underwriters
may request in writing at least two full business days before the Closing Time.
The certificates for the Capital Securities will be made available for
examination and packaging by the Underwriters in The City of New York not later
than 10:00 A.M. (Eastern time) on the business day prior to the Closing Time.
3. Covenants of the Company and the Trust. The Company and the Trust
jointly and severally covenant with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests.
The Company and the Trust, subject to Section 3(b), will comply with the
requirements of
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Rule 424, Rule 430A or Rule 434, as applicable, and will notify the
Underwriters immediately, and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement shall become
effective, or any supplement to the Prospectus or any amended Prospectus
shall have been filed, (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the
Prospectus or for additional information, and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of
any prospectus, or of the suspension of the qualification of the Capital
Securities for offering or sale in any jurisdiction, or of the initiation
or threatening of any proceedings for any of such purposes. The Company
and the Trust will promptly effect the filings necessary pursuant to Rule
424(b) and will take such steps as it deems necessary to ascertain
promptly whether the form of prospectus transmitted for filing under Rule
424(b) was received for filing by the Commission and, in the event that it
was not, it will promptly file such prospectus. The Company and the Trust
will make every reasonable effort to prevent the issuance of any stop
order and, if any stop order is issued, to obtain the lifting thereof at
the earliest possible moment.
(b) Filing of Amendments. The Company and the Trust will give the
Underwriters notice of their intention to file or prepare any amendment to
the Registration Statement (including any filing under Rule 462(b)), any
Term Sheet or any amendment, supplement or revision to either the
prospectus included in the Registration Statement at the time it became
effective or to the Prospectus, whether pursuant to the 1933 Act, the 1934
Act or otherwise, will furnish the Underwriters with copies of any such
documents to, and consult with, the Underwriters and their counsel within
a reasonable amount of time prior to such proposed filing or use, as the
case may be, and will not file or use any such document to which the
Underwriters or counsel for the Underwriters shall reasonably object in
writing; provided, however, that the foregoing shall not apply to any of
the Company's filings with the Commission required to be filed pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, copies of which
such filings the Company will cause to be delivered to the Underwriters
promptly after being transmitted for filing with the Commission.
(c) Delivery of Registration Statements. The Company has furnished
or will deliver to the Underwriters and counsel for the Underwriters,
without charge, signed copies of the Registration Statement as originally
filed and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and, upon request, documents
incorporated or deemed to be incorporated by reference therein), and will
also deliver to the Underwriters, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment thereto
(without exhibits) for each of the Underwriters. The copies of the
Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
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<PAGE>
(d) Delivery of Prospectuses. The Company will deliver to each
Underwriter, without charge, as many copies of the Prospectus as such
Underwriter reasonably requests, and the Company and the Trust hereby
consent to the use of such copies for purposes permitted by the 1933 Act.
The Company will furnish to each Underwriter, without charge, during the
period when the Prospectus is required to be delivered under the 1933 Act
or the 1934 Act, such number of copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request. The Prospectus
and any amendments or supplements thereto furnished to the Underwriters
will be identical to the electronically transmitted copies thereof filed
with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company and the
Trust will comply with the 1933 Act and the 1933 Act Regulations and the
1934 Act and the 1934 Act Regulations so as to permit the completion of
the distribution of the Securities as contemplated in this Agreement and
in the Prospectus. If at any time when a prospectus is required by the
1933 Act to be delivered in connection with sales of the Capital
Securities, any event shall occur or condition shall exist as a result of
which it is necessary, in the opinion of counsel for the Underwriters and
for the Company or Trust, to amend the Registration Statement or amend or
supplement the Prospectus in order that the Prospectus will not include
any untrue statements of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the
light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of such counsel, at
any such time to amend the Registration Statement or amend or supplement
the Prospectus in order to comply with the requirements of the 1933 Act or
the 1933 Act Regulations, the Company and the Trust will promptly prepare
and file with the Commission, subject to Section 3(b), such amendment or
supplement as may be necessary to correct such statement or omission or to
make the Registration Statement or the Prospectus comply with such
requirements, and the Company will furnish to the Underwriters such number
of copies of such amendment or supplement as the Underwriters may
reasonably request.
(f) Blue Sky Qualifications. The Company and the Trust will each use
its best efforts, in cooperation with the Underwriters, to qualify the
Capital Securities for offering and sale under the applicable securities
laws of such states and other jurisdictions (domestic or foreign) as the
Underwriters may designate and to maintain such qualifications in effect
for a period of not less than one year from the date hereof; provided,
however, that neither the Company nor the Trust shall be obligated to file
any general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In
each jurisdiction in which the Capital Securities have been so qualified,
the Company and the Trust will file such statements and reports as may be
required by the laws of such jurisdiction to continue such qualification
in effect for a period of not less
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<PAGE>
than one year from the date hereof. The Company and the Trust will also
supply the Underwriters with such information as is necessary for the
determination of the legality of the Capital Securities for investment
under the laws of such jurisdictions as the Underwriters may request.
(g) Rule 158. The Company will timely file such reports pursuant to
the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(h) Restriction on Sale of Securities. During a period of 7 days
from the date of the Prospectus, neither the Company nor the Trust will,
without the prior written consent of Merrill Lynch, (i) directly or
indirectly, offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase or otherwise transfer or dispose of
any Capital Securities or Debentures (or any equity or debt securities
substantially similar to the Capital Securities or Debentures,
respectively). The foregoing sentence shall not apply to the Capital
Securities or Debentures to be sold hereunder.
(i) Reporting Requirements. The Company and the Trust, during the
period when the Prospectus is required to be delivered under the 1933 Act
or the 1934 Act, will file all documents required to be filed with the
Commission pursuant to the 1934 Act within the time periods required by
the 1934 Act and the 1934 Act Regulations.
4. Payment of Expenses. (a) Expenses. The Company will pay all expenses
incident to the performance of its and the Trust's obligations under this
Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of this Agreement, any Agreement among
Underwriters and such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Capital Securities, (iii)
the preparation, issuance and delivery of the certificates for the Capital
Securities to the Underwriters, including any stock or other transfer taxes and
any stamp or other duties payable upon the sale, issuance or delivery of the
Capital Securities to the Underwriters, (iv) the fees and disbursements of the
Company's and the Trust's counsel, accountants and other advisors, (v) the
qualification of the Capital Securities under securities laws in accordance with
the provisions of Section 3(f) hereof, including filing fees and the reasonable
fees and disbursements of counsel for the Underwriters in connection therewith
and in connection with the preparation of the Blue Sky Survey and any supplement
thereto, if any, (vi) the printing and delivery to the Underwriters of copies of
each preliminary prospectus, any Term Sheets and of the Prospectus and any
amendments or supplements thereto, (vii) the printing and delivery to the
Underwriters of copies of the Blue Sky Survey and any supplement thereto, if
any, (viii) the fees and expenses of any transfer agent or registrar for the
Capital Securities, (ix) the fees and expenses of the Indenture Trustee,
including the fees and disbursements of counsel for the Indenture Trustee in
connection with the Indenture and the
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Debentures, (x) the fees and expenses of the Delaware Trustee, the Institutional
Trustee and the Guarantee Trustee, including the fees and disbursements of
counsel for the Delaware Trustee, the Institutional Trustee and the Guarantee
Trustee, (xi) any fees payable in connection with the rating of the Capital
Securities and the Debentures and (xii) the cost and charges associated with the
approval of the Capital Securities by the Depositary Trust Company for
"book-entry" transfer.
(a) Termination of Agreement. If this Agreement is terminated by the
Underwriters in accordance with the provisions of Section 5 or Section 9(a)(i)
hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
5. Conditions of Underwriters' Obligations. The obligations of the several
Underwriters hereunder are subject to the accuracy of the representations and
warranties of the Company and the Trust contained in Section 1 hereof or in
certificates of any officer of the Company or any Trustee delivered pursuant to
the provisions hereof, to the performance by the Company and the Trust of their
respective covenants and other obligations hereunder, and to the following
further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, and any
request on the part of the Commission for additional information shall
have been complied with to the reasonable satisfaction of counsel to the
Underwriters. A prospectus shall have been filed with the Commission in
accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective) or, if the
Company has elected to rely upon Rule 434, a Term Sheet shall have been
filed with the Commission in accordance with Rule 424(b).
(b) Opinion of Counsel for Company. At Closing Time, the
Underwriters shall have received the favorable opinion, dated as of
Closing Time, of Edwards & Angell, counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other
Underwriters substantially to the effect set forth in Exhibit A hereto and
to such further effect as counsel to the Underwriters may reasonably
request. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Company and its subsidiaries
and certificates of public officials.
(c) Opinion of Special Delaware Counsel for the Trust. At Closing
Time, the Underwriters shall have received the favorable opinion, dated as
of the Closing Time, of Skadden, Arps, Slate, Meagher & Flom (Delaware),
special Delaware counsel to the Trust, together with signed or reproduced
copies of such letter for each of the Under-
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writers to the effect set forth in Exhibit B hereto and to such further
effect as counsel to the Underwriters may reasonably request.
(d) Opinion of Counsel for Underwriters. At Closing Time, the
Underwriters shall have received the favorable opinion, dated as of
Closing Time, of Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the
Underwriters, together with signed or reproduced copies of such letter for
each of the other Underwriters with respect to the validity of the Capital
Securities, the Registration Statement, the Prospectus and other related
matters as the Underwriters may reasonably request. In giving such opinion
such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York, the federal law
of the United States, the Business Trust Act of the State of Delaware and
the General Corporation Law of the State of Delaware, upon the opinions of
counsel satisfactory to the Underwriters. Such counsel may also state
that, insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of officers of the
Company and its subsidiaries and certificates of public officials.
(e) Officers' Certificates. At Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectus, (A) any material adverse change in
the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business, and the Underwriters shall have received a certificate
of the President or a Vice President of the Company and of the chief
financial or chief accounting officer of the Company, dated as of Closing
Time, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 1(a) hereof are
true and correct with the same force and effect as though expressly made
at and as of Closing Time (except for representations or warranties which
by their terms speak as of a different date or dates), (iii) the Company
has complied in all material respects with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to
Closing Time, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted or are pending or are, to the best of the Company's
knowledge, threatened by the Commission; or (B) any material adverse
change in the condition, financial or otherwise, or in the earnings or
business affairs of the Trust, and the Underwriters shall have received a
certificate of a Regular Trustee of the Trust, dated as of Closing Time,
to the effect that (i) there has been no such material adverse change,
(ii) the representations and warranties in Section 1(a) hereof are true
and correct with the same force and effect as though expressly made at and
as of Closing Time (except for representations or warranties which by
their terms speak as of a different date or dates), (iii) the Trust has
complied in all material respects with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to Closing
Time, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been
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instituted or are pending or are, to the best of the Trust's knowledge,
threatened by the Commission.
(f) Accountant's Comfort Letter. At the Closing Time, the
Underwriters shall have received from KPMG Peat Marwick LLP ("KPMG") a
letter dated such date, in form and substance satisfactory to the
Underwriters, together with signed or reproduced copies of such letter for
each of the Underwriters containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information
contained in the Registration Statement and the Prospectus.
(g) Lock-up Agreements. At the date of this Agreement, the
Underwriters shall have received an agreement substantially in the form of
Exhibit C hereto signed by the Company and the Trust.
(h) Maintenance of Rating. At Closing Time, the Capital Securities
shall be rated at least a2 by Moody's Investors Service, Inc. and BBB by
Standard & Poor's Ratings Group, a division of McGraw-Hill, Inc., and the
Company shall have delivered to the Underwriters a letter dated the
Closing Time, from each such rating agency, or other evidence satisfactory
to the Underwriters, confirming that the Capital Securities have such
ratings; and since the date of this Agreement, there shall not have
occurred a downgrading in the rating assigned to the Capital Securities or
any of the Company's preferred securities by any "nationally recognized
statistical rating agency", as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the 1933 Act, and no such organization
shall have publicly announced that it has under surveillance or review its
rating of the Securities or any of the Company's preferred securities.
(i) Additional Documents. At Closing Time counsel for the
Underwriters shall have been furnished with such documents and opinions as
they may require for the purpose of enabling them to pass upon the
issuance and sale of the Capital Securities as herein contemplated, or in
order to evidence the accuracy of any of the representations or
warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company and Trust in connection with the
issuance and sale of the Capital Securities as herein contemplated shall
be satisfactory in form and substance to the Underwriters and counsel for
the Underwriters.
(j) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be
fulfilled, this Agreement may be terminated by the Underwriters by notice
to the Company at any time at or prior to Closing Time and such
termination shall be without liability of any party to any other party
except as provided in Section 4 and except that Sections 1, 6, 7 and 8
shall survive any such termination and remain in full force and effect.
6. Indemnification.
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(a) Indemnification of Underwriters. Each of the Company and the Trust
jointly and severally agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 430A Information
and the Rule 434 Information, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact
included in any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission provided that (subject to Section
6(e) below) any such settlement is effected with the written consent of
the Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Merrill Lynch), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through Merrill Lynch expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(b) Indemnification of Trust by Company. The Company agrees to indemnify
the Trust against all loss, liability, claim, damage and expense whatsoever as
due from the Trust under Section 6(a) hereunder.
17
<PAGE>
(c) Indemnification of Trust, Company, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Company and the
Trust, the Company's directors, each of the Company's officers and the Trustee
of the Trust who signed the Registration Statement, and each person, if any, who
controls the Company and the Trust within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act against any and all loss, liability, claim,
damage and expense described in the indemnity contained in subsection (a) of
this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through Merrill Lynch expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(d) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by Merrill Lynch, and, in
the case of parties indemnified pursuant to Section 6(c) above, counsel to the
indemnified parties shall be selected by the Company, in each case reasonably
acceptable to the indemnifying party. An indemnifying party may participate at
its own expense in the defense of any such action; provided, however, that
counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event shall
the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 or Section 7 hereof (whether
or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(e) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any
18
<PAGE>
settlement of the nature contemplated by Section 6(a) (ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
7. Contribution. If the indemnification provided for in Section 6 hereof
is for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein; then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Trust on the one hand and the Underwriters on the other hand from the offering
of the Capital Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company and the Trust on the one
hand and of the Underwriters on the other hand in connection with the statements
or omissions, which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Trust on the one
hand and the Underwriters on the other hand in connection with the offering of
the Capital Securities pursuant to this Agreement shall be deemed to be in the
same respective proportions as the total net proceeds from the offering of the
Capital Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus, or, if
Rule 434 is used, the corresponding location on the Term Sheet, bear to the
aggregate initial public offering price of the Securities as set forth on such
cover.
The relative fault of the Company and the Trust on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company, the Trust and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or
19
<PAGE>
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue or alleged untrue statement or omission or alleged
omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company and the Trustee of the
Trust who signed the Registration Statement, and each person, if any, who
controls the Company or the Trust within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as
the Company. The Underwriters' respective obligations to contribute pursuant to
this Section 7 are several in proportion to the number of Capital Securities set
forth opposite their respective names in Schedule A hereto and not joint.
8. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or the Trustees of the Trust or any of
its other subsidiaries submitted pursuant hereto, shall remain operative and in
full force and effect, regardless of any investigation made by or on behalf of
any Underwriter or controlling person, or by or on behalf of the Company, and
shall survive delivery of the Capital Securities to the Underwriters.
9. Termination of Agreement.
(a) Termination; General. The Underwriters may terminate this Agreement,
by notice to the Company and the Trust, at any time at or prior to Closing Time
(i) if there has been, since the time of execution of this Agreement or since
the respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of the Underwriters, impracticable to market
the Capital Securities or to enforce
20
<PAGE>
contracts for the sale of the Capital Securities, or (iii) if trading in any
securities of the Company has been suspended or materially limited by the
Commission or the New York Stock Exchange, or if trading generally on the
American Stock Exchange or the New York Stock Exchange or in the Nasdaq National
Market has been suspended or materially limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been required, by
any of said exchanges or by such system or by order of the Commission, the
National Association of Securities Dealers, Inc. or any other governmental
authority, or (iv) if a banking moratorium has been declared by either Federal
or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6,
7 and 8 shall survive such termination and remain in full force and effect.
10. Default by One or More of the Underwriters. If one or more of the
Underwriters shall fail at Closing Time to purchase the Capital Securities which
it or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Underwriters shall have the right, within 24 hours thereafter,
to make arrangements for one or more of the non-defaulting Underwriters, or any
other underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; if, however, the Underwriters shall not have completed such arrangements
within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of Capital Securities to be purchased on such date, each of the
non-defaulting Underwriters shall be obligated, severally and not jointly,
to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number
of Capital Securities to be purchased on such date, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement either the Underwriters or the Company shall have the right to
postpone Closing Time, for a period not exceeding seven days in order to effect
any required changes in the Registration Statement or Prospectus or in any other
documents or arrangements. As used herein, the term "Underwriter" includes any
person substituted for an Underwriter under this Section 10.
11. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of
21
<PAGE>
telecommunication. Notices to the Underwriters shall be directed to Merrill
Lynch at North Tower, World Financial Center, New York, New York 10281-1201,
attention of Syndicate Operations; notices to the Trust shall be directed to it
at The First National Bank of Chicago, One North State Street, 9th Floor,
Chicago, Illinois, attention of Corporate Trust Administrator and notices to the
Company shall be directed to it at Fleet Financial Group, Inc., One Federal
Street, Boston, Massachusetts, 02110, attention of General Counsel.
12. Parties. This Agreement shall inure to the benefit of and be binding
upon the Underwriters, the Company and the Trust and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters, the Company and the Trust and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriters, the Company and
the Trust and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES
OF DAY REFER TO NEW YORK CITY TIME.
14. Effect of Headings. The Article and Section headings herein and the
Table of Contents are for convenience only and shall not affect the construction
hereof.
22
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company and the Trust a counterpart
hereof, whereupon this instrument, along with all counterparts, will become a
binding agreement between the Underwriters, the Company and the Trust in
accordance with its terms.
Very truly yours,
FLEET FINANCIAL GROUP, INC.
By: /s/ Douglas L. Jacobs
-------------------------------------
Title: Treasurer
FLEET CAPITAL TRUST II
By: /s/ Douglas L. Jacobs
-------------------------------------
Title: Regular Trustee
By: /s/ John R. Rodehorst
-------------------------------------
Title: Regular Trustee
23
<PAGE>
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
CS FIRST BOSTON CORPORATION
SALOMON BROTHERS INC
UBS SECURITIES LLC
By: MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Lee Shavel
------------------------------------
Authorized Signatory
24
<PAGE>
SCHEDULE A
Number of
Name of Underwriter Capital Securities
- ------------------- ------------------
Merrill Lynch, Pierce, Fenner & Smith
Incorporated .................................................. 62,500
CS First Boston Corporation ..................................... 62,500
Salomon Brothers Inc ............................................ 62,500
UBS Securities LLC .............................................. 62,600
-------
Total ........................................................... 250,000
=======
Sch A-1
<PAGE>
SCHEDULE B
List of Significant Subsidiaries
Fleet National Bank
Fleet Bank
Fleet Bank, National Association
Sch B-1
<PAGE>
Exhibit A
Form of opinion, dated as of Closing Time, of Edwards & Angell, counsel
for the Company and the Trust, substantially to the effect that:
a) Each of the Company and the subsidiaries of the Company listed
on Schedule B hereto, (the "Significant Subsidiaries") has been duly
incorporated and is validly existing as a corporation or national banking
association in good standing under the laws of the jurisdiction in which
it is chartered or organized, with full corporate power and authority to
own its properties and conduct its business as described in the
Prospectus; the Company is duly qualified to do business as a foreign
corporation under the laws of the State of New York; and neither the
Company nor any Significant Subsidiary is required to be qualified to do
business as a foreign corporation under the laws of any other
jurisdiction, and the Company is duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended.
b) All the outstanding shares of the capital stock of the
Significant Subsidiaries have been duly and validly authorized and issued
and are fully paid and (except as provided in 12 U.S.C. ss. 55 in the case
of Fleet National Bank and Fleet Bank, National Association)
nonassessable, and, except as otherwise set forth in the Prospectus, all
outstanding shares of capital stock of the Significant Subsidiaries are
owned by the Company, free and clear of any perfected security interest
and, to the knowledge of such counsel, after due inquiry, any other
security interests claims, liens or encumbrances.
c) The Purchase Agreement has been duly authorized by the Company
and has been duly executed and delivered by each of the Company and the
Trust.
d) The Indenture has been duly authorized, executed and delivered by
the Company and constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject
to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).
e) The Debentures have been duly authorized, executed and delivered
by the Company and when the Debentures have been duly authenticated by the
Indenture Trustee in accordance with the provisions of the Indenture and
delivered to and paid for by the Trust, the Debentures will constitute
valid and binding obligations of the Company entitled to the benefits of
the Indenture and enforceable against the Company in accordance with their
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
A-1
<PAGE>
transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).
f) The Declaration has been duly authorized, executed and delivered
by the Company; and, assuming the due authorization, execution and
delivery of the Declaration by First Chicago Delaware Inc. and The First
National Bank of Chicago, the Declaration constitutes a valid and binding
obligation of the Company and is enforceable against the Company in
accordance with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at law).
g) The Capital Securities Guarantee Agreement has been duly
authorized, executed and delivered by the Company, and is a valid and
binding agreement of the Company enforceable against the Company in
accordance with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at law).
h) The Indenture, Capital Securities Guarantee Agreement and the
Declaration have each been duly qualified under the 1939 Act.
i) The holders of outstanding shares of capital stock of the Company
are not entitled to any preemptive rights under the Articles of
Incorporation or By-Laws of the Company or the laws of the State of Rhode
Island to subscribe for the Capital Securities or the Debentures.
j) The documents incorporated by reference in the Prospectus (other
than the financial statements and supporting schedules included therein or
omitted therefrom, as to which such counsel need express no opinion), when
they were filed with the Commission complied as to form in all material
respects with the requirements of the 1934 Act and the rules and
regulations of the Commission thereunder.
k) The statements made in the Prospectus under the captions
"Description of the Capital Securities", "Description of the Guarantee",
"Description of the Junior Subordinated Debentures" and "Effect of
Obligations Under the Junior Subordinated Debentures and the Guarantee",
insofar as such statements purport to summarize certain provisions of the
Capital Securities, the Common Securities, the Debentures, the Capital
A-2
<PAGE>
Securities Guarantee, the Indenture, the Declaration, the Capital
Securities Guarantee Agreement and the Articles of Incorporation of the
Company, to the extent that they constitute matters of law or legal
conclusions, have been reviewed by such counsel and fairly summarize the
information required to be disclosed therein.
l) Neither the issue and sale by the Trust of the Capital
Securities, nor the consummation of any other of the transactions
contemplated by the Purchase Agreement nor the fulfillment of the terms in
the Purchase Agreement will conflict with, result in a breach of, or
constitute a default under the charter or by-laws of the Company or the
organizational documents or Declaration of the Trust or the terms of any
indenture or other agreement or instrument known to such counsel and to
which the Company or any of its subsidiaries is a party or bound, or any
order or regulation known to such counsel to be applicable to the Company
or any of its subsidiaries of any governmental body or arbitrator having
jurisdiction over the Company or any of its subsidiaries.
m) Neither the Company nor the Trust is required to be registered
under the Investment Company Act of 1940, as amended.
n) There is no pending or, to the best knowledge of such counsel,
threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the Company or any
of its subsidiaries, of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in the
Prospectus, and there is no franchise, contract or other document of a
character required to be described in the Registration Statement or
Prospectus, or to be filed as an exhibit, which is not described or filed
as required.
o) Such counsel has been orally advised by the Commission that the
Registration Statement was declared effective under the 1933 Act on
December 5, 1996; any required filing of the Prospectus pursuant to Rule
424(b) under the 1933 Act has been made in the manner and within the time
period required by Rule 424(b) and, such counsel has been orally advised
by the Commission that no stop order suspending the effectiveness of the
Registration Statement has been issued by the Commission and, no
proceeding for that purpose is pending or, to such Counsel's knowledge,
threatened by the Commission.
p) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the
transactions contemplated by the Purchase Agreement, except such as have
been obtained under the Securities Act and such as may be required under
the blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Capital Securities by the Underwriters and such other
approvals (specified in such opinion) as have been obtained.
q) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
A-3
<PAGE>
r) The Registration Statement, as of its effective date, and the
Prospectus, as of its date, appeared on their face to be appropriately
responsive in all material respects to the requirements of the 1933 Act
and the 1933 Act Regulations, except that in each case such counsel need
not express an opinion as to the financial statements, schedules and other
financial and statistical data included therein or excluded therefrom or
the exhibits to the Registration Statement, and such counsel need not
assume any responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement and the Prospectus
except for those made under the captions "Description of Capital
Securities", "Description of the Guarantee", "Description of the Junior
Subordinated Debentures", "Effect of Obligations Under the Junior
Subordinated Debentures and the Guarantee", and "Description of Capital
Stock" in the Prospectus insofar as they relate to provisions of documents
therein described.
Additionally, in giving its opinion, such counsel shall state that such
counsel has participated in conferences with representatives of the
Underwriters, officers and other representatives of the Company and
representatives of the independent certified public accountants of the Company,
at which conferences the contents of the Registration Statement and the
Prospectus and related matters were discussed, and although such counsel does
not pass upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Prospectus (except and only to the extent as set forth in
paragraphs (xxviii) above), on the basis of the foregoing (relying as to
materiality to a large extent upon the discussions with and representations and
opinions of officers and other representatives of the Company), no facts have
come to the attention of such counsel which lead such counsel to believe that
the Registration Statement at the time it became effective or at the date hereof
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus, as of its date or the date of such
opinion, included an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided that such
counsel does not express any comment with respect to the financial statements
including the notes thereto and supporting schedules, or any other financial and
statistical data set forth or referred to in the Registration Statement or the
Prospectus.
A-4
<PAGE>
Exhibit B
Form of opinion, dated as of Closing Time, of Skadden, Arps, Slate,
Meagher & Flom (Delaware), special Delaware counsel for the Trust, substantially
to the effect that:
s) the Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Act; all filings required under
the laws of the State of Delaware with respect to the creation and valid
existence of the Trust as a business trust have been made; and the Trust has the
trust power and authority to conduct its business, all as described in the
Prospectus.
t) assuming due authorization, execution and delivery of the
Declaration by the Company and the Trustees, the Declaration is a valid and
binding agreement of the Company and the Trustees, enforceable against the
Company and the Trustees, in accordance with its terms, except to the extent
that enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of equity
(regardless of whether enforceability is considered in a proceeding at law or in
equity).
u) the Capital Securities have been duly authorized for issuance in
accordance with the Declaration and the Prospectus and, subject to the
qualifications set forth below, when certificates therefor in the form examined
by us are issued, executed and authenticated in accordance with the Declaration
and delivered and paid for in accordance with the Purchase Agreement, will be
validly issued, fully paid and non-assessable undivided beneficial interests in
the assets of the Trust and will entitle the holders thereof to the benefits of
the Declaration except to the extent that enforcement thereof may be limited by
(i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now
or hereafter in effect relating to creditors' rights generally and (ii) general
principles of equity (regardless of whether enforceability is considered in a
proceeding at law or in equity). The holders of the Capital Securities will be
entitled to the same limitation of personal liability extended to stockholders
of private corporations for profit organized under the General Corporation Law
of the State of Delaware. We bring to your attention, however, that the holders
of Capital Securities may be obligated, pursuant to the Declaration, to (i)
provide indemnity and/or security in connection with and pay taxes or
governmental charges arising from transfers of Capital Securities and the
issuance of replacement Capital Securities, and (ii) provide security and
indemnity in connection with requests of or directions to the Institutional
Trustee to exercise its rights and powers under the Declaration.
v) the issuance of the Capital Securities is not subject to
preemptive or other similar rights under the Delaware Act or the Declaration.
B-1
<PAGE>
w) under the Declaration and the Delaware Act, the Trust has the
requisite trust power and authority to execute and deliver the Purchase
Agreement, and to perform its obligations under the Purchase Agreement and the
transactions contemplated thereby. The Purchase Agreement has been duly
authorized, executed and delivered by the Trust.
x) the statements made in the Prospectus under the caption
"Description of the Capital Securities" insofar as such statements are
statements of Delaware law, such statements are fairly presented.
B-2
<PAGE>
[Form of lock-up pursuant to Section 5(g)]
Exhibit C
December 6, 1996
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED,
CS FIRST BOSTON CORPORATION
SALOMON BROTHERS INC
UBS SECURITIES LLC
c/o MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
North Tower
World Financial Center
New York, New York 10281-1209
Re: Proposed Public Offering by Fleet Financial Group, Inc.
Dear Sirs:
The undersigned, Fleet Financial Group, Inc., a Rhode Island corporation
(the "Company") and Fleet Capital Trust II, a Delaware Statutory business trust
(the "Trust") understand that Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner
& Smith Incorporated ("Merrill Lynch"), CS First Boston Corporation, Salomon
Brothers Inc and UBS Securities LLC propose to enter into a Purchase Agreement
(the "Purchase Agreement") with the Company and the Trust, providing for the
public offering of $250,000,000 of the Trust's 7.92% Capital Securities
("Capital Securities"). In connection with the foregoing, the Company will
deposit in the Trust its 7.92% Junior Subordinated Deferable Interest Debentures
due 2026 (the "Junior Subordinated Debentures"). In recognition of the benefit
that such an offering will confer upon the undersigned and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned agrees with each underwriter to be named in the
Purchase Agreement that, during a period of seven (7) days from the date of the
Purchase Agreement, the undersigned will not, without the prior written consent
of Merrill Lynch, directly or indirectly, (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant for the sale of, or otherwise
dispose of or transfer any Capital Securities, any security convertible into or
exchangeable into or exercisable for Capital Securities or Junior Subordinated
Debentures or any debt securities substantially similar to the Junior
Subordinated Debentures or equity securities substantially similar to the
Capital Securities, whether now owned or hereafter acquired by the undersigned
or with respect to which the undersigned has or hereafter acquires the power of
disposition, or file any registration statement under the Securities Act of
1933, as amended, with
C-1
<PAGE>
respect to any of the foregoing (except for the filing of any amendment to the
Form S-4 filed by the Company and Fleet Capital Trust I with the Securities and
Exchange Commission on November 13, 1996) or (ii) enter into any swap or any
other agreement or any transaction that transfers, in whole or in part, directly
or indirectly, the economic consequence of ownership of Capital Securities, any
security convertible into or exchangeable into or exercisable for Capital
Securities or Junior Subordinated Debentures or any debt securities
substantially similar to the Junior Subordinated Debentures or equity securities
substantially similar to the Capital Securities, whether any such swap or
transaction is to be settled by delivery of Capital Securities, Junior
Subordinated Debentures or other securities, in cash or otherwise.
C-2
<PAGE>
Very truly yours,
FLEET FINANCIAL GROUP, INC.
By: ________________________________
Title: _____________________________
FLEET CAPITAL TRUST II
By: ________________________________
Name:
Title: Regular Trustee
By: ________________________________
Name:
Title: Regular Trustee
C-3
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
FLEET CAPITAL TRUST II
Dated as of December 11, 1996
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions 1
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application 6
SECTION 2.2 Lists of Holders of Securities 7
SECTION 2.3 Reports by the Institutional Trustee 7
SECTION 2.4 Periodic Reports to Institutional Trustee 7
SECTION 2.5 Evidence of Compliance with Conditions Precedent 7
SECTION 2.6 Events of Default; Waiver 8
SECTION 2.7 Event of Default; Notice 9
ARTICLE III
ORGANIZATION
SECTION 3.1 Name 10
SECTION 3.2 Office 10
SECTION 3.3 Purpose 10
SECTION 3.4 Authority 10
SECTION 3.5 Title to Property of the Trust 10
SECTION 3.6 Powers and Duties of the Regular Trustees 10
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees 12
SECTION 3.8 Powers and Duties of the Institutional Trustee 13
SECTION 3.9 Certain Duties and Responsibilities of the
Institutional Trustee 15
SECTION 3.10 Certain Rights of the Institutional Trustee 16
SECTION 3.11 Delaware Trustee 17
SECTION 3.12 Execution of Documents 17
SECTION 3.13 Not Responsible for Recitals or Issuance
of Securities 18
SECTION 3.14 Duration of Trust 18
SECTION 3.15 Mergers 18
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities 19
SECTION 4.2 Responsibilities of the Sponsor 19
SECTION 4.3 Right to Proceed 20
SECTION 4.4 Expenses 20
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees 20
SECTION 5.2 Delaware Trustee 21
SECTION 5.3 Institutional Trustee; Eligibility 21
SECTION 5.4 Certain Qualifications of Regular Trustees
and Delaware Trustee Generally 22
<PAGE>
SECTION 5.5 Regular Trustees 22
SECTION 5.6 Appointment, Removal and Resignation of Trustees 22
SECTION 5.7 Vacancies among Trustees 23
SECTION 5.8 Effect of Vacancies 23
SECTION 5.9 Meetings 23
SECTION 5.10 Delegation of Power 24
SECTION 5.11 Merger, Conversion, Consolidation or
Succession to Business 24
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions 24
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities 24
SECTION 7.2 Paying Agent 25
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1 Termination of Trust 26
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities 26
SECTION 9.2 Transfer of Certificates 26
SECTION 9.3 Deemed Security Holders 27
SECTION 9.4 Book Entry Interests 27
SECTION 9.5 Notices to Depository Institution 28
SECTION 9.6 Appointment of Successor Depository Institution 29
SECTION 9.7 Definitive Capital Security Certificates 29
SECTION 9.8 Mutilated, Destroyed, Lost or Stolen Certificates 29
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability 30
SECTION 10.2 Exculpation 30
SECTION 10.3 Fiduciary Duty 30
SECTION 10.4 Indemnification 31
SECTION 10.5 Outside Businesses 33
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year 33
SECTION 11.2 Certain Accounting Matters 34
SECTION 11.3 Banking 34
SECTION 11.4 Withholding 34
<PAGE>
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments 34
SECTION 12.2 Meetings of the Holders of Securities;
Action by Written Consent 36
ARTICLE XIII
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of
Institutional Trustee 37
SECTION 13.2 Representations and Warranties of
Delaware Trustee 37
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices 38
SECTION 14.2 Governing Law 39
SECTION 14.3 Intention of the Parties 39
SECTION 14.4 Headings 39
SECTION 14.5 Successors and Assigns 39
SECTION 14.6 Partial Enforceability 39
SECTION 14.7 Counterparts 39
Signatures 40
ANNEX I TERMS OF SECURITIES A-1
EXHIBIT A-1 FORM OF CAPITAL SECURITY CERTIFICATE A1-1
EXHIBIT A-2 FORM OF COMMON SECURITY CERTIFICATE A2-1
EXHIBIT B SPECIMEN OF DEBENTURE B-1
EXHIBIT C PURCHASE AGREEMENT C-1
<PAGE>
CROSS-REFERENCE TABLE*
Section of
Trust Indenture Act Section of
of 1939, as amended Declaration
------------------- -----------
310(a) 5.3(a)
310(b) 5.3(c)
310(c) Inapplicable
311(a) and (b) 5.3(c)
311(c) Inapplicable
312(a) 2.2(a)
312(b) 2.2(b)
313 2.3
314(a) 2.4
314(b) Inapplicable
314(c) 2.5
314(d) Inapplicable
314(e) 310(a)
314(f) Inapplicable
315(a) 3.9(b)
315(b) 2.7(a)
315(c) 3.9(a)
315(d) 3.9(b)
316(a) and (b) 2.6 and Annex I (Sections 5 and 6)
316(c) 3.6(e)
317(a) 3.8(c)
317(b) 3.8(h)
* This Cross-Reference Table does not constitute part of the Declaration and
shall not affect the interpretation of any of its terms or provisions.
<PAGE>
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
FLEET CAPITAL TRUST II
December 11, 1996
THIS AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") is dated
and effective as of December 11, 1996, by the Trustees (as defined herein), the
Sponsor (as defined herein) and by the holders, from time to time, of undivided
beneficial interests in the Trust to be issued pursuant to this Declaration.
WHEREAS, the Trustees and the Sponsor established Fleet Capital Trust II
(the "Trust"), a statutory business trust under the Business Trust Act (as
defined herein), pursuant to a Declaration of Trust dated as of November 1, 1996
(the "Original Declaration"), and a Certificate of Trust filed with the
Secretary of State of the State of Delaware on November 1, 1996 (the
"Certificate of Trust") for the sole purpose of issuing and selling certain
securities representing undivided beneficial interests in the assets of the
Trust and investing the proceeds thereof in certain Debentures of the Debenture
Issuer (as defined herein); and
WHEREAS, as of the date hereof, no Securities have been issued; and
WHEREAS, all of the Trustees and the Sponsor, by this Declaration, hereby
amend and restate each and every term and provision of the Original Declaration.
NOW, THEREFORE, it being the intention of the parties hereto to continue
the Trust as a business trust under the Business Trust Act and that this
Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the benefit of the Holders, subject to the provisions of this Declaration.
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions.
Unless the context otherwise requires:
(a) capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this Section
1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to this
Declaration as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles, Sections, Annexes and
Exhibits are to Articles and Sections of, and Annexes and Exhibits to, this
Declaration;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Declaration unless otherwise defined in this Declaration or unless
the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Additional Interest" has the meaning set forth in Section 2(d) of Annex
I.
<PAGE>
"Adjusted Treasury Rate" has the meaning set forth in Section 4(d) of
Annex I.
"Affiliate" has the same meaning as given to that term in Rule 405 of the
Securities Act or any successor rule thereunder.
"Agent" means any Paying Agent.
"Authorized Officer" of a Person means any Person that is authorized to
bind such Person.
"Book Entry Interest" means a beneficial interest in a Global Certificate,
ownership and transfers of which shall be maintained and made through book
entries by a Depository Institution as described in Section 9.4.
"Business Day" means any day other than a day on which Federal or State
banking institutions in the Borough of Manhattan, New York, New York or Chicago,
Illinois are authorized or obligated by law, executive order or regulation to
close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12
Del. Code Section 3801 et seq., as it may be amended from time to time, or any
successor legislation.
"Capital Guarantee Trustee" means The First National Bank of Chicago, a
national banking association, as trustee under the Capital Securities Guarantee
until a successor is appointed thereunder, and thereafter means such successor
trustee.
"Capital Securities" has the meaning set forth in Section 7.1(a).
"Capital Securities Guarantee" means the guarantee agreement to be dated
as of December 11, 1996, of the Sponsor in respect of the Capital Securities.
"Capital Security Beneficial Owner" means, with respect to a Book Entry
Interest, a Person who is the beneficial owner of such Book Entry Interest, as
reflected on the books of the Depository Institution, or on the books of a
Person maintaining an account with such Depository Institution (directly as a
Depository Institution Participant or as an indirect participant, in each case
in accordance with the rules of such Depository Institution).
"Capital Security Certificate" means a certificate representing a Capital
Security substantially in the form of Exhibit A-1.
"Certificate" means a Common Security Certificate or a Capital Security
Certificate.
"Closing Date" means the "Closing Date" under the Purchase Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, or any successor legislation.
"Commission" means the Securities and Exchange Commission.
"Common Securities" has the meaning set forth in Section 7.1(a).
"Common Securities Guarantee" means the guarantee agreement to be dated as
of December 11, 1996 of the Sponsor in respect of the Common Securities.
"Common Security Certificate" means a definitive certificate in fully
registered form representing a Common Security substantially in the form of
Exhibit A-2.
2
<PAGE>
"Company Indemnified Person" means (a) any Regular Trustee; (b) any
Affiliate of any Regular Trustee; (c) any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Regular Trustee;
or (d) any officer, employee or agent of the Trust or its Affiliates.
"Comparable Treasury Issue" has the meaning set forth in Section 4(d) of
Annex I.
"Comparable Treasury Price" has the meaning set forth in Section 4(d) of
Annex I.
"Compound Interest" has the meaning set forth in Section 2(a) of Annex I.
"Corporate Trust Office" means the office of the Institutional Trustee at
which the corporate trust business of the Institutional Trustee shall, such at
any particular time, be principally administered, which office at the date of
execution of this Agreement is located at One First National Plaza, Suite 0126,
Chicago, Illinois 60670-0126.
"Covered Person" means: (a) any officer, director, shareholder, partner,
member, representative, employee or agent of (i) the Trust or (ii) the Trust's
Affiliates; and (b) any Holder of Securities.
"Coupon Rate" has the meaning set forth in Section 2(a) of Annex I.
"Creditor" has the meaning set forth in Section 4.4(c).
"Debenture Issuer" means Fleet Financial Group, Inc., a Rhode Island
corporation, in its capacity as issuer of the Debentures under the Indenture.
"Debt Trustee" means The First National Bank of Chicago, a national
banking association, as trustee under the Indenture until a successor is
appointed thereunder, and thereafter means such successor trustee.
"Delaware Trustee" has the meaning set forth in Section 5.2.
"Definitive Capital Security Certificates" has the meaning set forth in
Section 9.4.
"Depository Institution" shall mean DTC, another clearing agency, or any
successor registered as a clearing agency under the Exchange Act, or other
applicable statute or regulation, which, in each case, shall be designated by
the Debenture Issuer pursuant to either Section 2.03 or 2.11 of the Indenture.
"Depository Institution Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Depository
Institution effects book-entry transfers and pledges of securities deposited
with the Depository Institution.
"Direct Action" has the meaning set forth in Section 3.8(e).
"Distribution" means a distribution payable to Holders of Securities in
accordance with Section 6.1.
"Distribution Payment Date" has the meaning set forth in Section 2(b) of
Annex I.
"DTC" means The Depository Trust Company, the initial Depository
Institution.
"Event of Default" in respect of the Securities means an Event of Default
under the Indenture which has occurred and is continuing in respect of the
Debentures.
"Exchange Act" means the Securities and Exchange Act of 1934, as amended
from time to time, or any successor legislation.
"Extension Period" has the meaning set forth in Section 2(a) of Annex I.
3
<PAGE>
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System.
"Fiduciary Indemnified Person" has the meaning set forth in Section
10.4(b).
"Global Certificate" has the meaning set forth in Section 9.4.
"Holder" means a Person in whose name a Certificate representing a
Security is registered, such Person being a beneficial owner within the meaning
of the Business Trust Act.
"Indemnified Person" means a Company Indemnified Person or a Fiduciary
Indemnified Person.
"Indenture" means the Indenture dated as of December 11, 1996, among the
Debenture Issuer and the Debt Trustee, and any indenture supplemental thereto
pursuant to which the Debentures are to be issued.
"Institutional Trustee" means the Trustee meeting the eligibility
requirements set forth in Section 5.3.
"Institutional Trustee Account" has the meaning set forth in Section
3.8(c).
"Investment Company" means an investment company as defined in the
Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time, or any successor legislation.
"Legal Action" has the meaning set forth in Section 3.6(g).
"Liquidation" has the meaning set forth in Section 3 of Annex I.
"Liquidation Distribution" has the meaning set forth in Section 3 of Annex
I.
"List of Holders" has the meaning set forth in Section 2.2(c).
"Majority in liquidation amount of the Securities" means, except as
provided in the terms of the Capital Securities set forth in Annex I hereto or
by the Trust Indenture Act, Holder(s) of outstanding Securities voting together
as a single class or, as the context may require, Holders of outstanding Capital
Securities or Holders of outstanding Common Securities voting separately as a
class, who are the record owners of more than 50% of the aggregate liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the date upon
which the voting percentages are determined) of all outstanding Securities of
the relevant class.
"Maturity Redemption Price" shall have the meaning set forth in Section
4(a) of Annex I.
"NYSE" means the New York Stock Exchange, Inc.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by two Authorized Officers of such Person. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Declaration shall include:
(a) a statement that each officer signing the Certificate has read the
covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Certificate;
4
<PAGE>
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer, such
condition or covenant has been complied with.
"Optional Prepayment Price" has the meaning set forth in Section 4(b) of
Annex I.
"Paying Agent" has the meaning set forth in Section 7.2.
"Payment Amount" has the meaning set forth in Section 6.1.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Pro Rata" has the meaning set forth in Section 8 of Annex I.
"Quorum" means a majority of the Regular Trustees or, if there are only
two Regular Trustees, both of them.
"Quotation Agent" has the meaning set forth in Section 4(d) of Annex I.
"Redemption/Distribution Notice" has the meaning set forth in Section 4(f)
of Annex I.
"Redemption Price" means any of the Maturity Redemption Price, the
Optional Prepayment Price or the Special Event Prepayment Price.
"Reference Treasury Dealer Quotations" has the meaning set forth in
Section 4(d) of Annex I.
"Regular Trustee" has the meaning set forth in Section 5.1.
"Regulatory Capital Event" has the meaning set forth in Section 4(d) of
Annex I.
"Related Party" means, with respect to the Sponsor, any direct or indirect
wholly owned subsidiary of the Sponsor or any other Person that owns, directly
or indirectly, 100% of the outstanding voting securities of the Sponsor.
"Resignation Request" has the meaning set forth in Section 5.6(c).
"Responsible Officer" means, with respect to the Institutional Trustee,
any officer within the Corporate Trust Office of the Institutional Trustee,
including any vice-president, any assistant vice-president, any assistant
secretary, the treasurer, any assistant treasurer or other officer of the
Corporate Trust Office of the Institutional Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer's knowledge of
and familiarity with the particular subject.
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act.
"Securities" means the Common Securities and the Capital Securities.
"Securities Act" means the Securities Act of 1933, as amended from time to
time, or any successor legislation.
"Securities Guarantees" means the Common Securities Guarantee and the
Capital Securities Guarantee.
5
<PAGE>
"Special Event" has the meaning set forth in Section 4(d) of Annex I.
"Special Event Prepayment Price" has the meaning set forth in Section 4(c)
of Annex I.
"Sponsor" means Fleet Financial Group, Inc., a Rhode Island corporation,
or any successor entity in a merger, consolidation or amalgamation, in its
capacity as sponsor of the Trust.
"Stated Maturity" has the meaning set forth in Section 4(a) of Annex I.
"Successor Delaware Trustee" has the meaning set forth in Section
5.6(b)(ii).
"Successor Entity" has the meaning set forth in Section 3.15(b)(i).
"Successor Institutional Trustee" has the meaning set forth in Section
5.6(b)(i).
"Successor Securities" has the meaning set forth in Section 3.15(b)(i).
"Super Majority" has the meaning set forth in Section 2.6(a)(ii).
"Tax Event" has the meaning set forth in Section 4(d) of Annex I hereto.
"10% in liquidation amount of the Securities" means, except as provided in
the terms of the Capital Securities set forth in Annex I hereto or by the Trust
Indenture Act, Holder(s) of outstanding Securities voting together as a single
class or, as the context may require, Holders of outstanding Capital Securities
or Holders of outstanding Common Securities voting separately as a class, who
are the record owners of 10% or more of the aggregate liquidation amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Securities of the relevant
class.
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
from time to time, or any successor legislation.
"Trustee" or "Trustees" means each Person who has signed this Declaration
as a trustee, so long as such Person shall continue in office in accordance with
the terms hereof, and all other Persons who may from time to time be duly
appointed, qualified and serving as Trustees in accordance with the provisions
hereof, and references herein to a Trustee or the Trustees shall refer to such
Person or Persons solely in their capacity as trustees hereunder.
"Purchase Agreement" means the Purchase Agreement for the offering and
sale of Capital Securities in the form of Exhibit C.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the Trust Indenture
Act that are required to be part of this Declaration and shall, to the extent
applicable, be governed by such provisions.
6
<PAGE>
(b) The Institutional Trustee shall be the only Trustee which is a trustee
for the purposes of the Trust Indenture Act.
(c) If, and to the extent that, any provision of this Declaration limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, the duties imposed by the Trust Indenture
Act shall control.
(d) The application of the Trust Indenture Act to this Declaration shall
not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
SECTION 2.2 Lists of Holders of Securities.
(a) Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide the Institutional Trustee (i) within 14 days after each record
date for payment of Distributions, a list, in such form as the Institutional
Trustee may reasonably require, of the names and addresses of the Holders ("List
of Holders") as of such record date, provided that neither the Sponsor nor the
Regular Trustees on behalf of the Trust shall be obligated to provide such List
of Holders at any time the List of Holders does not differ from the most recent
List of Holders given to the Institutional Trustee by the Sponsor and the
Regular Trustees on behalf of the Trust, and (ii) at any other time, within 30
days of receipt by the Trust of a written request for a List of Holders as of a
date no more than 14 days before such List of Holders is given to the
Institutional Trustee. The Institutional Trustee shall preserve, in as current a
form as is reasonably practicable, all information contained in the Lists of
Holders given to it or which it receives in its capacity as Paying Agent (if
acting in such capacity) provided that the Institutional Trustee may destroy any
List of Holders previously given to it on receipt of a new List of Holders.
(b) The Institutional Trustee shall comply with its obligations under
Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Institutional Trustee.
Within 60 days after May 15 of each year, the Institutional Trustee shall
provide to the Holders of the Capital Securities reports as are required by
Section 313 of the Trust Indenture Act, if any, in the form and in the manner
provided by Section 313 of the Trust Indenture Act. The Institutional Trustee
shall also comply with the requirements of Section 313(d) of the Trust Indenture
Act.
SECTION 2.4 Periodic Reports to Institutional Trustee.
Each of the Sponsor and the Regular Trustees on behalf of the Trust shall
provide to the Institutional Trustee, the Holders and the Securities and
Exchange Commission such documents, reports and information as required by
Section 314 (if any) and the compliance certificate required by Section 314 of
the Trust Indenture Act in the form, in the manner and at the times required by
Section 314 of the Trust Indenture Act (provided that any certificate to be
provided pursuant to Section 314(a)(4) of the Trust Indenture Act shall be
provided within 120 days of the end of each fiscal year).
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Regular Trustees on behalf of the Trust shall
provide to the Institutional Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Declaration that relate to
any of the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) may be given in the form of an Officers' Certificate.
7
<PAGE>
SECTION 2.6 Events of Default; Waiver.
(a) Subject to Section 2.6(c), the Holders of a Majority in liquidation
amount of Capital Securities may, by vote, on behalf of the Holders of all of
the Capital Securities, waive any past Event of Default in respect of the
Capital Securities and its consequences, provided that, if the underlying Event
of Default under the Indenture:
(i) is not waivable under the Indenture, the Event of Default
under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority in
principal amount of the holders of the Debentures (a "Super
Majority") to be waived under the Indenture, then the Event of
Default under the Declaration may only be waived by the vote
of the Holders of at least the proportion in liquidation
amount of the Capital Securities that the relevant Super
Majority represents of the aggregate principal amount of the
Debentures outstanding; or
(iii) requires the consent or vote of each holder of Debentures to
be waived under the Indenture, then the Event of Default under
the Declaration may only be waived by each Holder of Capital
Securities.
The foregoing provisions of this Section 2.6(a) shall be in lieu of
Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of
the Trust Indenture Act is hereby expressly excluded from this Declaration and
the Securities, as permitted by the Trust Indenture Act. Upon such waiver, any
such default shall cease to exist, and any Event of Default with respect to the
Capital Securities arising therefrom shall be deemed to have been cured, for
every purpose of this Declaration, but no such waiver shall extend to any
subsequent or other default or an Event of Default with respect to the Capital
Securities or impair any right consequent thereon. Any waiver by the Holders of
the Capital Securities of an Event of Default with respect to the Capital
Securities shall also be deemed to constitute a waiver by the Holders of the
Common Securities of any such Event of Default with respect to the Common
Securities for all purposes of this Declaration without any further act, vote,
or consent of the Holders of the Common Securities.
(b) Subject to Section 2.6(c), the Holders of a Majority in liquidation
amount of the Common Securities may, by vote, on behalf of the Holders of all of
the Common Securities, waive any past Event of Default with respect to the
Common Securities and its consequences, provided that, if the underlying Event
of Default under the Indenture:
(i) is not waivable under the Indenture, except where the Holders
of the Common Securities are deemed to have waived such Event
of Default under the Declaration as provided below in this
Section 2.6(b), then the Event of Default under the
Declaration shall also not be waivable; or
(ii) requires the consent or vote of (A) a Super Majority to be
waived, then the Event of Default under the Declaration may
only be waived by the vote of the Holders of at least the
proportion in liquidation amount of the Common Securities that
the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding or (B) each
holder of Debentures to be waived, then the Event of Default
under the Declaration may only be waived by each Holder of
Capital Securities, except where the Holders of the Common
Securities are deemed to have waived such Event of Default
under the Declaration as provided below in this Section
2.6(b); provided further, each Holder of Common Securities
will be deemed to have waived any such Event of Default and
all Events of Default with respect to the Common Securities
and its consequences until all Events of Default with respect
to the Capital Securities have been cured, waived or otherwise
eliminated, and until such Events of Default have been so
cured, waived or otherwise eliminated, the Institutional
Trustee will be deemed to be acting solely on behalf of the
Holders of the Capital Securities and only the Holders of the
Capital Securities will have the right to direct the
Institutional Trustee in accordance with the terms of the
Securities set forth in Annex I hereto. If any Event of
Default with respect to the Capital Securities is waived by
the Holders of Capital Securities as provided in this
Declaration, the Holders of Common Securities agree that such
8
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waiver shall also constitute the waiver of such Event of
Default with respect to the Common Securities for all purposes
under this Declaration without any further act, vote or
consent of the Holders of the Common Securities. Subject to
the foregoing provisions of this Section 2.6(b), upon such
waiver, any such default shall cease to exist and any Event of
Default with respect to the Common Securities arising
therefrom shall be deemed to have been cured for every purpose
of this Declaration, but no such waiver shall extend to any
subsequent or other default or Event of Default with respect
to the Common Securities or impair any right consequent
thereon. The foregoing provisions of this Section 2.6(b) shall
be in lieu of Sections 316(a)(1)(A) and 316(a)(1)(B) of the
Trust Indenture Act and such Sections 316(a)(1)(A) and
316(a)(1)(B) of the Trust Indenture Act are hereby expressly
excluded from this Declaration and the Securities, as
permitted by the Trust Indenture Act. Subject to the foregoing
provisions of this Section 2.6(b), upon such waiver, any such
default shall cease to exist and any Event of Default with
respect to the Common Securities arising therefrom shall be
deemed to have been cured for every purpose of this
Declaration, but no such waiver shall extend to any subsequent
or other default or Event of Default with respect to the
Common Securities or impair any right consequent thereon.
(c) The right of any Holder to receive payment of Distributions in
accordance with this Declaration and the terms of the Securities set forth in
Annex I on or after the respective payment dates therefor, or to institute suit
for the enforcement of any such payment on or after such payment dates, shall
not be impaired without the consent of each such Holder.
(d) A waiver of an Event of Default under the Indenture by the
Institutional Trustee at the written direction of the Holders of the Capital
Securities constitutes a waiver of the corresponding Event of Default under this
Declaration. The foregoing provisions of this Section 2.6(d) shall be in lieu of
Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of
the Trust Indenture Act is hereby expressly excluded from this Declaration and
the Securities, as permitted by the Trust Indenture Act.
SECTION 2.7 Event of Default; Notice.
(a) The Institutional Trustee shall, within 90 days after the occurrence
of an Event of Default, transmit by mail, first class postage prepaid, to the
Holders, notice of all defaults with respect to the Securities actually known to
a Responsible Officer, unless such defaults have been cured before the giving of
such notice (the term "defaults" for the purposes of this Section 2.7(a) being
hereby defined to be an Event of Default as defined in the Indenture, not
including any periods of grace provided for therein and irrespective of the
giving of any notice provided therein); provided that, except for a default in
the payment of principal of, premium, if any, or interest on any of the
Debentures or in the payment of any sinking fund installment established for the
Debentures, the Institutional Trustee shall be protected in withholding such
notice if and so long as a Responsible Officer in good faith determines that the
withholding of such notice is in the interests of the Holders; and provided
further, that in the case of any default of the character specified in Section
5.01(c) of the Indenture, no such notice to Holders shall be given until at
least 60 days after the occurrence thereof but shall be given within 90 days
after such occurrence.
(b) The Institutional Trustee shall not be deemed to have knowledge of any
default except:
(i) a default under Sections 5.01(a), (b), (d), (e) and (f) of the
Indenture; or
(ii) any default as to which the Institutional Trustee shall have
received written notice or of which a Responsible Officer
charged with the administration of the Declaration shall have
actual knowledge.
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ARTICLE III
ORGANIZATION
SECTION 3.1 Name.
The Trust continued by this Declaration is named "Fleet Capital Trust II,"
as such name may be modified from time to time by the Regular Trustees following
written notice to the Holders. The Trust's activities may be conducted under the
name of the Trust or any other name deemed advisable by the Regular Trustees.
SECTION 3.2 Office.
The address of the principal office of the Trust is c/o Fleet Financial
Group, Inc., One Federal Street, Boston, Massachusetts 02110. Upon ten (10)
Business Days' written notice to the Holders of Securities, the Regular Trustees
may designate another principal office.
SECTION 3.3 Purpose.
The exclusive purposes and functions of the Trust are (i) to issue (a) its
Capital Securities pursuant to the Purchase Agreement in exchange for cash and
(b) its Common Securities to the Sponsor in exchange for cash, and to use the
aggregate proceeds of the sale of the Securities to purchase the Debentures,
(ii) to enter into such agreements and arrangements as may be necessary in
connection with the issuance and sale of the Securities and to take all actions,
and exercise such discretion, as may be necessary or desirable in connection
with the issuance and sale of the Securities and to file such registration
statements or make such other filings under the Securities Act, the Exchange Act
or state securities or "Blue Sky" laws as may be necessary or desirable in
connection with the Offer and the issuance and sale of the Securities, and (iii)
except as otherwise limited herein, to engage in only those other activities
necessary or incidental thereto. As more specifically provided in Section 3.7,
the Trust shall not borrow money, issue debt or reinvest proceeds derived from
investments, pledge any of its assets, or otherwise undertake (or permit to be
undertaken) any activity that would cause the Trust not to be classified for
United States federal income tax purposes as a grantor trust.
SECTION 3.4 Authority.
Subject to the limitations provided in this Declaration and to the
specific duties of the Institutional Trustee, the Regular Trustees shall have
exclusive and complete authority to carry out the purposes of the Trust. Any
action taken by the Regular Trustees in accordance with their powers shall
constitute the act of and serve to bind the Trust and any action taken by the
Institutional Trustee on behalf of the Trust in accordance with its powers shall
constitute the act of and serve to bind the Trust. In dealing with the Trustees
acting on behalf of the Trust, no person shall be required to inquire into the
authority of the Trustees to bind the Trust. Persons dealing with the Trust are
entitled to rely conclusively on the power and authority of the Trustees as set
forth in this Declaration.
SECTION 3.5 Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the Debentures and the
Institutional Trustee Account or as otherwise provided in this Declaration,
legal title to all assets of the Trust shall be vested in the Trust. The Holders
shall not have legal title to any part of the assets of the Trust, but shall
have an undivided beneficial interest in the assets of the Trust.
SECTION 3.6 Powers and Duties of the Regular Trustees.
The Regular Trustees shall have the exclusive power, duty and authority to
cause the Trust to engage in the following activities:
(a) to issue and sell the Securities in accordance with this Declaration;
provided, however, that the Trust may issue no more than one series of Capital
Securities and no more than one series of Common Securities; and,
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provided further, that there shall be no interests in the Trust other than the
Securities, and the issuance of Securities shall be limited to a one-time
simultaneous issuance of both Capital Securities and Common Securities on the
Closing Date;
(b) in connection with the issue of the Capital Securities, at the
direction of the Sponsor, to:
(i) execute and file with the Commission one or more registration
statements on Form S-3 prepared by the Sponsor, including any
and all amendments thereto, pertaining to the Capital
Securities;
(ii) execute and file any documents prepared by the Sponsor, or
take any acts as determined by the Sponsor to be necessary in
order to qualify or register all or part of the Capital
Securities in any State in which the Sponsor has determined to
qualify or register such Capital Securities for exchange;
(iii) execute and file an application, prepared by the Sponsor, to
the NYSE, Inc. or any other national stock exchange or the
NASDAQ Stock Market's National Market for listing or quotation
upon notice of issuance of any Capital Securities;
(iv) execute and file with the Commission a registration statement
on Form 8-A, including any amendments thereto, prepared by the
Sponsor, relating to the registration of the Capital
Securities under Section 12(b) of the Exchange Act;
(v) execute and enter into the Purchase Agreement providing for
the sale of the Capital Securities; and
(vi) execute and deliver letters, documents or instruments with
DTC.
(c) to acquire the Debentures with the proceeds of the sale of the Capital
Securities and the Common Securities; provided, however, that the Regular
Trustees shall cause legal title to the Debentures to be held of record in the
name of the Institutional Trustee for the benefit of the Holders;
(d) to give the Sponsor and the Institutional Trustee prompt written
notice of the occurrence of a Special Event;
(e) to establish a record date with respect to all actions to be taken
hereunder that require a record date be established, including and with respect
to, for the purposes of Section 316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue relevant
notices to the Holders of Securities as to such actions and applicable record
dates;
(f) to take all actions and perform such duties as may be required of the
Regular Trustees pursuant to the terms of the Securities set forth in Annex I
hereto;
(g) to bring or defend, pay, collect, compromise, arbitrate, resort to
legal action, or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 3.8(e), the Institutional Trustee
has the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors, and
consultants and pay reasonable compensation for such services;
(i) to cause the Trust to comply with the Trust's obligations under the
Trust Indenture Act;
(j) to give the certificate required by Section 314(a)(4) of the Trust
Indenture Act to the Institutional Trustee, which certificate may be executed by
any Regular Trustee;
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(k) to incur expenses that are necessary or incidental to carry out any of
the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar, transfer
agent and paying agent for the Securities;
(m) to give prompt written notice to the Holders of any notice received
from the Debenture Issuer of its election to defer payments of interest on the
Debentures by extending the interest payment period under the Indenture;
(n) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing;
() to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders or to enable the Trust
to effect the purposes for which the Trust was created;
(p) to take any action, not inconsistent with this Declaration or with
applicable law, that the Regular Trustees determine in their discretion to be
necessary or desirable in carrying out the activities of the Trust as set out in
this Section 3.6, including, but not limited to:
(i) causing the Trust not to be deemed to be an Investment Company
required to be registered under the Investment Company Act;
(ii) causing the Trust to be classified for United States federal
income tax purposes as a grantor trust; and
(iii) cooperating with the Debenture Issuer to ensure that the
Debentures will be treated as indebtedness of the Debenture
Issuer for United States federal income tax purposes,
provided that such actions do not adversely affect the interests of
Holders; and
(q) to take all action necessary to cause all applicable tax returns and
tax information reports that are required to be filed with respect to the Trust
to be duly prepared and filed by the Regular Trustees, on behalf of the Trust.
The Regular Trustees shall exercise the powers set forth in this Section
3.6 in a manner that is consistent with the purposes and functions of the Trust
set out in Section 3.3, and the Regular Trustees shall not take any action that
is inconsistent with the purposes and functions of the Trust set forth in
Section 3.3.
Subject to this Section 3.6, the Regular Trustees shall have none of the
powers or the authority of the Institutional Trustee set forth in Section 3.8.
Any expenses incurred by the Regular Trustees pursuant to this Section 3.6
shall be reimbursed by the Debenture Issuer.
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees.
(a) The Trust shall not, and the Trustees (including the Institutional
Trustee) shall cause the Trust not to, engage in any activity other than in
connection with the purpose of the Trust or other than as required or authorized
by this Declaration. In particular, the Trust shall not, and the Trustees
(including the Institutional Trustee) shall cause the Trust not to:
(i) invest any proceeds received by the Trust from holding the
Debentures, but shall distribute all such proceeds to Holders
pursuant to the terms of this Declaration and of the
Securities;
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(ii) acquire any assets other than as expressly provided herein;
(iii) possess Trust property for other than a Trust purpose;
(iv) make any investments, other than investments represented by
the Debentures;
(v) possess any power or otherwise act in such a way as to vary
the Trust assets or the terms of the Securities in any way
whatsoever;
(vi) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than
the Securities;
(vii) incur any indebtedness for borrowed money; or
(viii) other than as provided in this Declaration or Annex I hereto,
(A) direct the time, method and place of exercising any trust
or power conferred upon the Debt Trustee with respect to the
Debentures, (B) waive any past default that is waivable under
the Indenture, (C) exercise any right to rescind or annul any
declaration that the principal of all the Debentures held in
the Trust shall be due and payable, or (D) consent to any
amendment, modification or termination of the Indenture or the
Debentures if such action would cause the Trust to be
classified for United States federal income tax purposes as
other than a grantor trust or would cause the Trust to be
deemed an Investment Company required to be registered under
the Investment Company Act.
SECTION 3.8 Powers and Duties of the Institutional Trustee.
(a) The legal title to the Debentures shall be owned by and held of record
in the name of the Institutional Trustee in trust for the benefit of the
Holders. The right, title and interest of the Institutional Trustee to the
Debentures shall vest automatically in each Person who may hereafter be
appointed as Institutional Trustee in accordance with Section 5.6. Such vesting
and cessation of title shall be effective whether or not conveyancing documents
with regard to the Debentures have been executed and delivered.
(b) The Institutional Trustee shall not transfer its right, title and
interest in the Debentures to the Regular Trustees or to the Delaware Trustee
(if the Institutional Trustee does not also act as Delaware Trustee).
(c) The Institutional Trustee shall:
(i) establish and maintain a segregated non-interest bearing trust
account (the "Institutional Trustee Account") in the name of
and under the exclusive control of the Institutional Trustee
on behalf of the Holders and, upon the receipt of payments of
funds made in respect of the Debentures held by the
Institutional Trustee, deposit such funds into the
Institutional Trustee Account and make payments to the Holders
from the Institutional Trustee Account in accordance with
Section 6.1. Funds in the Institutional Trustee Account shall
be held uninvested until disbursed in accordance with this
Declaration;
(ii) engage in such ministerial activities as shall be necessary or
appropriate to effect the redemption of the Securities to the
extent the Debentures are redeemed or mature; and
(iii) upon written notice of distribution issued by the Regular
Trustees in accordance with the terms of the Securities,
engage in such ministerial activities as shall be necessary or
appropriate to effect the distribution of the Debentures to
Holders in accordance with the provisions of the Indenture.
(d) The Institutional Trustee shall take all actions and perform such
duties as may be specifically required of the Institutional Trustee pursuant to
the terms of the Securities.
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(e) The Institutional Trustee shall take any Legal Action which arises out
of or in connection with (i) an Event of Default of which a Responsible Officer
has actual knowledge or (ii) the Institutional Trustee's duties and obligations
under this Declaration or the Trust Indenture Act. If the Institutional Trustee
fails to enforce its rights under the Debentures after a Holder of Capital
Securities has made a written request, such Holder may institute a legal
proceeding against Fleet to enforce the Institutional Trustee's rights under the
Debentures without first instituting any legal proceeding against the
Institutional Trustee or any other person or entity. Notwithstanding the
foregoing, if an Event of Default has occurred and is continuing and such event
is attributable to the failure of the Debenture Issuer to pay interest or
principal on the Debentures on the date such interest or principal is otherwise
payable (or in the case of redemption, on the redemption date), then a Holder of
Capital Securities may directly institute a proceeding for enforcement of
payment to such Holder of the principal of, or interest on, the Debentures
having a principal amount equal to the aggregate liquidation amount of the
Capital Securities of such Holder (a "Direct Action") on or after the respective
due date specified in the Debentures. Notwithstanding any payments made to such
Holder of Capital Securities by the Debenture Issuer in connection with a Direct
Action, the Debenture Issuer shall remain obligated to pay the principal of or
interest on the Debentures held by the Trust or the Institutional Trustee of the
Trust, and the Debenture Issuer shall be subrogated to the rights of the Holder
of such Capital Securities with respect to payments on the Capital Securities.
Except as provided in the preceding sentences and in the Capital Securities
Guarantee, the Holders of Capital Securities will not be able to exercise
directly any other remedy available to the holders of the Debentures.
(f) The Institutional Trustee shall not resign as a Trustee unless either:
(i) the Trust has been completely liquidated and the proceeds of
the liquidation distributed to the Holders pursuant to the
terms of the Securities; or
(ii) a Successor Institutional Trustee has been appointed and has
accepted that appointment in accordance with Section 5.6.
(g) The Institutional Trustee shall have the legal power to exercise all
of the rights, powers and privileges of a holder of Debentures under the
Indenture and, if an Event of Default actually known to a Responsible Officer
occurs and is continuing, the Institutional Trustee shall, for the benefit of
Holders, enforce its rights as holder of the Debentures subject to the rights of
the Holders pursuant to the terms of such Securities.
(h) The Institutional Trustee may authorize one or more Persons (each, a
"Paying Agent") to pay Distributions, redemption payments or liquidation
payments on behalf of the Trust with respect to all securities and any such
Paying Agent shall comply with Section 317(b) of the Trust Indenture Act. Any
Paying Agent may be removed by the Institutional Trustee at any time and a
successor Paying Agent or additional Paying Agents may be appointed at any time
by the Institutional Trustee.
(i) The Institutional Trustee shall give prompt written notice to the
Holders of the Securities of any notice received by it from the Debenture Issuer
of the Debenture Issuer's election to defer payments of interest on the
Debentures by extending the interest payment period with respect thereto.
(j) The Institutional Trustee shall notify all Holders of the Capital
Securities of any notice of default received from the Debt Trustee with respect
to the Debentures. Such notice shall state that such event of default under the
Indenture also constitutes an Event of Default hereunder.
(k) Subject to this Section 3.8, the Institutional Trustee shall have none
of the duties, liabilities, powers or the authority of the Regular Trustees set
forth in Section 3.6.
The Institutional Trustee shall exercise the powers set forth in this
Section 3.8 and in Sections 3.9 and 3.10 in a manner that is consistent with the
purposes and functions of the Trust set out in Section 3.3, and the
Institutional Trustee shall not take any action that is inconsistent with the
purposes and functions of the Trust set out in Section 3.3.
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SECTION 3.9 Certain Duties and Responsibilities of the Institutional
Trustee.
(a) The Institutional Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Declaration and no implied covenants shall be read into this Declaration
against the Institutional Trustee. In case an Event of Default has occurred
(that has not been cured or waived pursuant to Section 2.6) of which a
Responsible Officer has actual knowledge, the Institutional Trustee shall
exercise such of the rights and powers vested in it by this Declaration, and use
the same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(b) No provision of this Declaration shall be construed to relieve the
Institutional Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and after the
curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Institutional Trustee
shall be determined solely by the express provisions of
this Declaration and the Institutional Trustee shall not
be liable except for the performance of such duties and
obligations as are specifically set forth in this
Declaration, and no implied covenants or obligations
shall be read into this Declaration against the
Institutional Trustee; and
(B) in the absence of bad faith on the part of the
Institutional Trustee, the Institutional Trustee may
conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon
any certificates or opinions furnished to the
Institutional Trustee and conforming to the requirements
of this Declaration; but in the case of any such
certificates or opinions that by any provision hereof
are specifically required to be furnished to the
Institutional Trustee, the Institutional Trustee shall
be under a duty to examine the same to determine whether
or not they conform to the requirements of this
Declaration;
(ii) the Institutional Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it shall be proved that the Institutional Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Institutional Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than
a Majority in liquidation amount of the Securities relating to
the time, method and place of conducting any proceeding for
any remedy available to the Institutional Trustee, or
exercising any trust or power conferred upon the Institutional
Trustee under this Declaration;
(iv) no provision of this Declaration shall require the
Institutional Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for
believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Declaration
or adequate indemnity against such risk is not reasonably
assured to it;
(v) the Institutional Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the
Debentures and the Institutional Trustee Account shall be to
deal with such property in a similar manner as the
Institutional Trustee deals with similar property for its own
account, subject to the protections and limitations on
liability afforded to the Institutional Trustee under this
Declaration and the Trust Indenture Act;
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(vi) the Institutional Trustee shall have no duty or liability for
or with respect to the value, genuineness, existence or
sufficiency of the Debentures or the payment of any taxes or
assessments levied thereon or in connection therewith;
(vii) the Institutional Trustee shall not be liable for any interest
on any money received by it except as it may otherwise agree
with the Sponsor. Money held by the Institutional Trustee need
not be segregated from other funds held by it except in
relation to the Institutional Trustee Account maintained by
the Institutional Trustee pursuant to Section 3.8(c)(i) and
except to the extent otherwise required by law; and
(viii) the Institutional Trustee shall not be responsible for
monitoring the compliance by the Regular Trustees or the
Sponsor with their respective duties under this Declaration,
nor shall the Institutional Trustee be liable for any default
or misconduct of the Regular Trustees or the Sponsor.
SECTION 3.10 Certain Rights of the Institutional Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Institutional Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, debenture or other paper or
document believed by it to be genuine and to have been signed,
sent or presented by the proper party or parties;
(ii) any direction or act of the Sponsor or the Regular Trustees
contemplated by this Declaration shall be sufficiently
evidenced by an Officers' Certificate;
(iii) whenever in the administration of this Declaration, the
Institutional Trustee shall deem it desirable that a matter be
proved or established before taking, suffering or omitting any
action hereunder, the Institutional Trustee (unless other
evidence is herein specifically prescribed) may, in the
absence of bad faith on its part, request and conclusively
rely upon an Officers' Certificate which, upon receipt of such
request, shall be promptly delivered by the Sponsor or the
Regular Trustees;
(iv) the Institutional Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including
any financing or continuation statement or any filing under
tax or securities laws) or any rerecording, refiling or
registration thereof;
(v) the Institutional Trustee may consult with counsel or other
experts and the advice or opinion of such counsel and experts
with respect to legal matters or advice within the scope of
such experts' area of expertise shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in
accordance with such advice or opinion, which counsel may be
counsel to the Sponsor or any of its Affiliates, and may
include any of its employees. The Institutional Trustee shall
have the right at any time to seek instructions concerning the
administration of this Declaration from any court of competent
jurisdiction;
(vi) the Institutional Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Declaration at the request, order or direction of any Holder,
unless such Holder shall have provided to the Institutional
Trustee reasonable security and indemnity against the costs,
expenses (including attorneys' fees and expenses and the
expenses of the Institutional Trustee's agents, nominees or
custodians) and liabilities that might be incurred by it in
complying with such request or direction, including such
reasonable advances as may be requested by the Institutional
Trustee provided, that, nothing contained in this Section
3.10(a)(vi) shall be taken to relieve the Institutional
Trustee, upon the occurrence of an Event of Default, of its
obligation to exercise the rights and powers vested in it by
this Declaration;
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(vii) the Institutional Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond,
debenture, coupon or other paper or document, but the
Institutional Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as
it may see fit;
(viii) the Institutional Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents, custodians, nominees or
attorneys and the Institutional Trustee shall not be
responsible for any misconduct or negligence on the part of
any agent or attorney appointed with due care by it hereunder;
(ix) any action taken by the Institutional Trustee or its agents
hereunder shall bind the Trust and the Holders; and the
signature of the Institutional Trustee or its agents alone
shall be sufficient and effective to perform any such action
and no third party shall be required to inquire as to the
authority of the Institutional Trustee to so act or as to its
compliance with any of the terms and provisions of this
Declaration, both of which shall be conclusively evidenced by
the Institutional Trustee's or its agent's taking such action;
(x) whenever in the administration of this Declaration the
Institutional Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or
taking any other action hereunder, the Institutional Trustee
(i) may request instructions from the Holders which
instructions may only be given by the Holders of the same
proportion in liquidation amount of the Securities as would be
entitled to direct the Institutional Trustee under the terms
of the Securities in respect of such remedy, right or action,
(ii) may refrain from enforcing such remedy or right or taking
such other action until such instructions are received, and
(iii) shall be protected in conclusively relying on or acting
in or accordance with such instructions; and
(xi) except as otherwise expressly provided by this Declaration,
the Institutional Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of
this Declaration.
(b) No provision of this Declaration shall be deemed to impose any duty or
obligation on the Institutional Trustee to perform any act or acts or exercise
any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Institutional Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Institutional
Trustee shall be construed to be a duty.
SECTION 3.11 Delaware Trustee.
Notwithstanding any other provision of this Declaration other than Section
5.2, the Delaware Trustee shall not be entitled to exercise any powers, nor
shall the Delaware Trustee have any of the duties and responsibilities of the
Regular Trustees or the Institutional Trustee described in this Declaration.
Except as set forth in Section 5.2, the Delaware Trustee shall be a Trustee for
the sole and limited purpose of fulfilling the requirements of Section 3807 of
the Business Trust Act. Notwithstanding anything herein to the contrary, the
Delaware Trustee shall not be liable for the acts or omissions to act of the
Trust or of the Regular Trustees except such acts as the Delaware Trustee is
expressly obligated or authorized to undertake under this Declaration or the
Business Trust Act and except for the gross negligence or willful misconduct of
the Delaware Trustee.
SECTION 3.12 Execution of Documents.
Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act or applicable law, any one of the
Regular Trustees is authorized to execute on behalf of the Trust any documents
which the Regular Trustees have the power and authority to execute pursuant to
Section 3.6.
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SECTION 3.13 Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this Declaration and the Securities shall be
taken as the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as to
the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this
Declaration or the Securities.
SECTION 3.14 Duration of Trust.
The Trust, unless terminated pursuant to the provisions of Article VIII
hereof, shall have existence until December 11, 2050.
SECTION 3.15 Mergers.
(a) The Trust may not consolidate, amalgamate, merge with or into, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body, except as
described in Section 3.15(b) and (c).
(b) The Trust may, with the consent of the Regular Trustees or, if there
are more than two, a majority of the Regular Trustees, and without the consent
of the Holders, the Institutional Trustee or the Delaware Trustee, consolidate,
amalgamate, merge with or into, or be replaced by a trust organized as such
under the laws of any State of the United States; provided that:
(i) if the Trust is not the survivor, such successor entity (the
"Successor Entity") either:
(A) expressly assumes all of the obligations of the Trust
under the Securities; or
(B) substitutes for the Capital Securities other securities
having substantially the same terms as the Capital
Securities (the "Successor Securities") so long as the
Successor Securities rank the same as the Capital
Securities rank with respect to Distributions and
payments upon liquidation, redemption and otherwise;
(ii) the Debenture Issuer expressly acknowledges a trustee of the
Successor Entity that possesses the same powers and duties as
the Institutional Trustee as the holder of the Debentures;
(iii) the Capital Securities or any Successor Securities are listed,
or any Successor Securities will be listed upon notification
of issuance, on any national securities exchange or with
another organization on which the Capital Securities are then
listed or quoted;
(iv) such merger, consolidation, amalgamation or replacement does
not cause the Capital Securities (including any Successor
Securities) to be downgraded by any nationally recognized
statistical rating organization;
(v) such merger, consolidation, amalgamation or replacement does
not adversely affect the rights, preferences and privileges of
the Holders (including any Successor Securities) in any
material respect (other than with respect to any dilution of
such Holders' interests in the Successor Entity);
(vi) such Successor Entity has a purpose identical to that of the
Trust;
(vii) prior to such merger, consolidation, amalgamation or
replacement, the Debenture Issuer has received an opinion of a
nationally recognized independent counsel to the Trust
experienced in such matters to the effect that:
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(A) such merger, consolidation, amalgamation or replacement
does not adversely affect the rights, preferences and
privileges of the Holders (including any Successor
Securities) in any material respect (other than with
respect to any dilution of the Holders' interest in the
Successor Entity); and
(B) following such merger, consolidation, amalgamation or
replacement, neither the Trust nor the Successor Entity
will be required to register as an Investment Company;
(C) following such merger, consolidation, amalgamation or
replacement, the Trust (or the Successor Entity) will be
treated as a grantor trust for United States federal
income tax purposes; and
(viii) the Sponsor guarantees the obligations of such Successor
Entity under the Successor Securities at least to the extent
provided by the Capital Securities Guarantee and the Common
Securities Guarantee.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except with the
consent of Holders of 100% in liquidation amount of the Securities, consolidate,
amalgamate, merge with or into, or be replaced by any other entity or permit any
other entity to consolidate, amalgamate, merge with or into, or replace it, if
such consolidation, amalgamation, merger or replacement would cause the Trust or
Successor Entity to be classified as other than a grantor trust for United
States federal income tax purposes.
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities.
On the Closing Date the Sponsor will purchase all of the Common Securities
issued by the Trust, in an amount at least equal to 3% of the total capital of
the Trust, at the same time as the Capital Securities are issued pursuant to the
Purchase Agreement.
SECTION 4.2 Responsibilities of the Sponsor.
In connection with the issue and sale of the Capital Securities, the
Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) to prepare for filing by the Trust with the Commission one or more
registration statements on Form S-3 in relation to the Capital Securities,
including any amendments thereto;
(b) to determine the states in which to take appropriate action to qualify
or register for sale all or part of the Capital Securities and to do any and all
such acts, other than actions which must be taken by the Trust, and advise the
Trust of actions it must take, and prepare for execution and filing any
documents to be executed and filed by the Trust, as the Sponsor deems necessary
or advisable in order to comply with the applicable laws of any such states;
(c) if so determined by the Sponsor, to prepare for filing by the Trust an
application to the NYSE, Inc. or any other national stock exchange or the NASDAQ
National Market for listing or quotation upon notice of issuance of the Capital
Securities;
(d) if so determined by the Sponsor, to prepare for filing by the Trust
with the Commission a registration statement on Form 8-A relating to the
registration of the Capital Securities under Section 12(b) of the Exchange Act,
including any amendments thereto; and
(e) to negotiate the terms of the Purchase Agreement providing for the
issuance of the Capital Securities.
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SECTION 4.3 Right to Proceed.
The Sponsor acknowledges the rights of the Holders to institute a Direct
Action as set forth in Section 3.8(e) hereto.
SECTION 4.4 Expenses.
In connection with the offering, sale and issuance of the Debentures to
the Institutional Trustee and in connection with the sale of the Securities by
the Trust, the Debenture Issuer, in its capacity as borrower with respect to the
Debentures, shall:
(a) pay all costs and expenses relating to the offering, sale and issuance
of the Debentures, including commissions to the underwriter payable pursuant to
the Purchase Agreement and compensation of the Trustee under the Indenture in
accordance with the provisions of Section 6.06 of the Indenture;
(b) be responsible for and shall pay all debts and obligations (other than
with respect to the Securities) and all costs and expenses of the Trust
(including, but not limited to, costs and expenses relating to the organization,
maintenance and dissolution of the Trust, the offering, sale and issuance of the
Securities (including commissions to the underwriters in connection therewith),
the fees and expenses (including reasonable counsel fees and expenses) of the
Institutional Trustee, the Delaware Trustee and the Regular Trustees (including
any amounts payable under Article X of this Declaration), the costs and expenses
relating to the operation of the Trust, including without limitation, costs and
expenses of accountants, attorneys, statistical or bookkeeping services,
expenses for printing and engraving and computing or accounting equipment,
paying agent(s), registrar(s), transfer agent(s), duplicating, travel and
telephone and other telecommunications expenses and costs and expenses incurred
in connection with the acquisition, financing, and disposition of Trust assets
and the enforcement by the Institutional Trustee of the rights of the Holders of
the Capital Securities);
(c) be primarily liable for any indemnification obligations arising with
respect to this Declaration; and
(d) pay any and all taxes (other than United States withholding taxes
attributable to the Trust or its assets) and all liabilities, costs and expenses
with respect to such taxes of the Trust.
The Debenture Issuer's obligations under this Section 4.4 shall be for the
benefit of, and shall be enforceable by, any person to whom such debts,
obligations, costs, expenses and taxes are owed (a "Creditor") whether or not
such Creditor has received notice hereof. Any such Creditor may enforce the
Debenture Issuer's obligations under this Section 4.4 directly against the
Debenture Issuer and the Debenture Issuer irrevocably waives any right of remedy
to require that any such Creditor take any action against the Trust or any other
Person before proceeding against the Debenture Issuer. The Debenture Issuer
agrees to execute such additional agreements as may be necessary or desirable in
order to give full effect to the provisions of this Section 4.4.
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees.
(a) The number of Trustees initially shall be five. At any time before the
issuance of any Securities, the Sponsor may, by written instrument, increase or
decrease the number of Trustees. After the issuance of any Securities, the
number of Trustees may be increased or decreased by vote of the Holders of a
majority in liquidation amount of the Common Securities voting as a class at a
meeting of the Holders of the Common Securities; provided, however, that, the
number of Trustees shall in no event be less than two; and provided further that
(i) one Trustee, in the case of a natural person, shall be a person who is a
resident of the State of Delaware or that, if not a natural person, is an entity
which has its principal place of business in the State of Delaware (the
"Delaware Trustee"); (ii) there shall be at least one Trustee who is an employee
or officer of, or is affiliated with the Sponsor (a "Regular Trustee"); and
(iii) one Trustee shall be the Institutional Trustee for so long as this
Declaration is required to qualify
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as an indenture under the Trust Indenture Act, and such Trustee may also serve
as Delaware Trustee if it meets the applicable requirements.
(b) Any action taken by Holders of Common Securities pursuant to this
Article V shall be taken at a meeting of Holders of Common Securities convened
for such purpose or by written consent of such Holders.
(c) Except as otherwise provided herein, no amendment may be made to this
Section 5.1 which would change any rights with respect to the number, existence
or appointment and removal of Trustees, except with the consent of each Holder
of Common Securities.
SECTION 5.2 Delaware Trustee.
If required by the Business Trust Act, one Trustee (the "Delaware
Trustee") shall be:
(a) a natural person who is a resident of the State of Delaware; or
(b) if not a natural person, an entity which has its principal place of
business in the State of Delaware, and otherwise meets the requirements of
applicable law, provided that, if the Institutional Trustee has its principal
place of business in the State of Delaware and otherwise meets the requirements
of applicable law, then the Institutional Trustee shall also be the Delaware
Trustee and Section 3.11 shall have no application.
The initial Delaware Trustee shall be First Chicago Delaware Inc., an
affiliate of the Institutional Trustee, until removed or replaced in accordance
with Section 5.6.
SECTION 5.3 Institutional Trustee; Eligibility.
(a) There shall at all times be one Trustee which shall act as
Institutional Trustee which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under the laws
of the United States of America or any State or Territory
thereof or of the District of Columbia, or a corporation or
Person permitted by the Commission to act as an institutional
trustee under the Trust Indenture Act, authorized under such
laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000 (US), and subject
to supervision or examination by Federal, State, Territorial
or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to
law or to the requirements of the supervising or examining
authority referred to above, then for the purposes of this
Section 5.3(a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Institutional Trustee shall cease to be eligible to
so act under Section 5.3(a), the Institutional Trustee shall immediately resign
in the manner and with the effect set forth in Section 5.6(c).
(c) If the Institutional Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act or
becomes a creditor of the Sponsor during the time periods specified in Section
311 of the Trust Indenture Act, the Institutional Trustee and the Holder of the
Common Securities (as if it were the obligor referred to in Section 310(b) of
the Trust Indenture Act) shall in all respects comply with the provisions of
Section 310(b) and 311 of the Trust Indenture Act, as applicable.
(d) The Capital Securities Guarantee shall be deemed to be specifically
described in this Declaration for purposes of clause (i) of the first provision
contained in Section 310(b) of the Trust Indenture Act.
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(e) The initial Institutional Trustee shall be The First National Bank of
Chicago until removed or replaced in accordance with Section 5.6.
SECTION 5.4 Certain Qualifications of the Regular Trustees and the
Delaware Trustee Generally.
Each Regular Trustee and the Delaware Trustee (unless the Institutional
Trustee also acts as Delaware Trustee) shall be either a natural person who is
at least 21 years of age or a legal entity that shall act through one or more
Authorized Officers.
SECTION 5.5 Regular Trustees.
The initial Regular Trustees shall be Eugene M. McQuade, Douglas L. Jacobs
and John R. Rodehorst.
(a) Except as expressly set forth in this Declaration and except if a
meeting of the Regular Trustees is called with respect to any matter over which
the Regular Trustees have power to act, any power of the Regular Trustees may be
exercised by, or with the consent of, any one such Regular Trustee.
(b) Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act or applicable law, any one of the
Regular Trustees is authorized to execute on behalf of the Trust any documents
which the Regular Trustees have the power and authority to execute pursuant to
Section 3.6; and
(c) a Regular Trustee may, by power of attorney consistent with applicable
law, delegate to any other natural person over the age of 21 his or her power
for the purposes of signing any documents which the Regular Trustees have power
and authority to cause the Trust to execute pursuant to Section 3.6.
SECTION 5.6 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 5.6(b), Trustees may be appointed or removed
without cause at any time:
(i) until the issuance of any Securities, by written instrument
executed by the Sponsor; and
(ii) after the issuance of any Securities, by vote of the Holders
of a Majority in liquidation amount of the Common Securities
voting as a class at a meeting of the Holders of the Common
Securities.
(b) (i) The Trustee that acts as Institutional Trustee shall not
be removed in accordance with Section 5.6(a) until a successor
institutional Trustee possessing the qualifications to act as
Institutional Trustee under Section 5.3(a) (a "Successor
Institutional Trustee") has been appointed and has accepted
such appointment by written instrument executed by such
Successor Institutional Trustee and delivered to the Regular
Trustees, the Sponsor and the Institutional Trustee being
removed; and
(ii) the Trustee that acts as Delaware Trustee shall not be removed
in accordance with this Section 5.6(a) until a successor
Trustee possessing the qualifications to act as Delaware
Trustee under Sections 5.2 and 5.4 (a "Successor Delaware
Trustee") has been appointed and has accepted such appointment
by written instrument executed by such Successor Delaware
Trustee and delivered to the Regular Trustees, the Sponsor and
the Delaware Trustee being removed.
(c) A Trustee appointed to office shall hold office until his successor
shall have been appointed or until his death, removal or resignation. Any
Trustee may resign from office (without need for prior or subsequent accounting)
by an instrument (a "Resignation Request") in writing signed by the Trustee and
delivered to the Sponsor and the Trust, which resignation shall take effect upon
such delivery or upon such later date as is specified therein; provided,
however, that:
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(i) no such resignation of the Trustee that acts as the
Institutional Trustee shall be effective:
(A) until a Successor Institutional Trustee has been
appointed and has accepted such appointment by
instrument executed by such Successor Institutional
Trustee and delivered to the Trust, the Sponsor and the
resigning Institutional Trustee; or
(B) until the assets of the Trust have been completely
liquidated and the proceeds thereof distributed to the
holders of the Securities; and
(ii) no such resignation of the Trustee that acts as the Delaware
Trustee shall be effective until a Successor Delaware Trustee
has been appointed and has accepted such appointment by
instrument executed by such Successor Delaware Trustee and
delivered to the Trust, the Sponsor and the resigning Delaware
Trustee.
(d) The Holders of the Common Securities shall use their best efforts to
promptly appoint a Successor Institutional Trustee or Successor Delaware Trustee
as the case may be if the Institutional Trustee or the Delaware Trustee delivers
a Resignation Request in accordance with this Section 5.6.
(e) If no Successor Institutional Trustee or Successor Delaware Trustee
shall have been appointed and accepted appointment as provided in this Section
5.6 within 60 days after delivery to the Sponsor and the Trust of a Resignation
Request, the resigning Institutional Trustee or Delaware Trustee, as applicable,
may petition any court of competent jurisdiction for appointment of a Successor
Institutional Trustee or Successor Delaware Trustee. Such court may thereupon,
after prescribing such notice, if any, as it may deem proper and prescribe,
appoint a Successor Institutional Trustee or Successor Delaware Trustee, as the
case may be.
(f) No Institutional Trustee or Delaware Trustee shall be liable for the
acts or omissions to act of any Successor Institutional Trustee or Successor
Delaware Trustee, as the case may be.
SECTION 5.7 Vacancies among Trustees.
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 5.1, or if the number of Trustees is
increased pursuant to Section 5.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by the Regular Trustees or, if there
are more than two, a majority of the Regular Trustees, shall be conclusive
evidence of the existence of such vacancy. The vacancy shall be filled with a
Trustee appointed in accordance with Section 5.6.
SECTION 5.8 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee shall
not operate to annul the Trust. Whenever a vacancy in the number of Regular
Trustees shall occur, until such vacancy is filled by the appointment of a
Regular Trustee in accordance with Section 5.6, the Regular Trustees in office,
regardless of their number, shall have all the powers granted to the Regular
Trustees and shall discharge all the duties imposed upon the Regular Trustees by
this Declaration.
SECTION 5.9 Meetings.
If there is more than one Regular Trustee, meetings of the Regular
Trustees shall be held from time to time upon the call of any Regular Trustee.
Regular meetings of the Regular Trustees may be held at a time and place fixed
by resolution of the Regular Trustees. Notice of any in-person meetings of the
Regular Trustees shall be hand delivered or otherwise delivered in writing
(including by facsimile, with a hard copy by overnight courier) not less than 48
hours before such meeting. Notice of any telephonic meetings of the Regular
Trustees or any committee thereof shall be hand delivered or otherwise delivered
in writing (including by facsimile, with a hard copy by overnight courier) not
less than 24 hours before a meeting. Notices shall contain a brief statement of
the time, place and anticipated purposes of the meeting. The presence (whether
in person or by telephone) of a Regular Trustee at a
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meeting shall constitute a waiver of notice of such meeting except where a
Regular Trustee attends a meeting for the express purpose of objecting to the
transaction of any activity on the ground that the meeting has not been lawfully
called or convened. Unless provided otherwise in this Declaration, any action of
the Regular Trustees may be taken at a meeting by vote of a majority of the
Regular Trustees present (whether in person or by telephone) and eligible to
vote with respect to such matter, provided that a Quorum is present, or without
a meeting by the unanimous written consent of the Regular Trustees. In the event
there is only one Regular Trustee, any and all action of such Regular Trustee
shall be evidenced by a written consent of such Regular Trustee.
SECTION 5.10 Delegation of Power.
The Regular Trustees shall have power to delegate from time to time to
such of their number or to officers of the Trust the doing of such things and
the execution of such instruments either in the name of the Trust or the names
of the Regular Trustees or otherwise as the Regular Trustees may deem expedient,
to the extent such delegation is not prohibited by applicable law or contrary to
the provisions of the Trust, as set forth herein.
Section 5.11 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Institutional Trustee or the Delaware
Trustee, as the case may be, may be merged or converted or with which either may
be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Institutional Trustee or the Delaware Trustee, as the
case may be, shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Institutional Trustee or
the Delaware Trustee, as the case may be, shall be the successor of the
Institutional Trustee or the Delaware Trustee, as the case may be, hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions.
Holders shall receive Distributions (as defined herein) in accordance with
the applicable terms of the relevant Holder's Securities as set forth in Annex
I. If and to the extent that the Debenture Issuer makes a payment of interest
(including Compound Interest and Additional Interest), premium and/or principal
on the Debentures held by the Institutional Trustee (the amount of any such
payment being a "Payment Amount"), the Institutional Trustee shall and is
directed, to the extent funds are available for that purpose, to make a
distribution (a "Distribution") of the Payment Amount to Holders.
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.
(a) The Regular Trustees shall on behalf of the Trust issue one class of
Capital securities (the "Capital Securities"), representing undivided beneficial
interests in the assets of the Trust having such terms as are set forth in Annex
I (which terms are incorporated by reference in, and made a part of, this
Declaration as if specifically set forth herein) and one class of common
securities (the "Common Securities"), representing undivided beneficial
interests in the assets of the Trust having such terms as are set forth in Annex
I (which terms are incorporated by reference in, and made a part of, this
Declaration as if specifically set forth herein). The Trust shall issue no
securities or other interests in the assets of the Trust other than the Capital
Securities and the Common Securities. Each Security shall be dated the date of
its authentication.
(b) The Certificates shall be signed on behalf of the Trust by a Regular
Trustee. Such signature shall be the manual signature of any present or any
future Regular Trustee. Typographical and other minor errors or defects in
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any such reproduction of any such signature shall not affect the validity of any
Security. In case any Regular Trustee of the Trust who shall have signed any of
the Securities shall cease to be such Regular Trustee before the Certificates so
signed shall be delivered by the Trust, such Certificates nevertheless may be
delivered as though the person who signed such Certificates had not ceased to be
such Regular Trustee; and any Certificate may be signed on behalf of the Trust
by such persons who, at the actual date of execution of such Security, shall be
the Regular Trustees of the Trust, although at the date of the execution and
delivery of the Declaration any such person was not such a Regular Trustee.
Certificates shall be printed, lithographed or engraved or may be produced in
any other manner as is reasonably acceptable to the Regular Trustees, as
evidenced by their execution thereof, and may have such letters, numbers or
other marks of identification or designation and such legends or endorsements as
the Regular Trustees may deem appropriate, or as may be required to comply with
any law or with any rule or regulation of any stock exchange on which Securities
may be listed, or to conform to usage. Pending the preparation of definitive
Certificates, the Regular Trustees on behalf of the Trust may execute and the
Institutional Trustee shall authenticate, temporary Certificates (printed,
lithographed or typewritten), substantially in the form of the definitive
Certificates in lieu of which they are issued, but with such omissions,
insertions and variations as may be appropriate for temporary Certificates all
as may be determined by the Regular Trustees on behalf of the Trust upon the
same conditions and in substantially the same manner, and with like effect, as
definitive Certificates. Without unnecessary delay, the Regular Trustees on
behalf of the Trust will execute and furnish and the Institutional Trustee shall
authenticate, definitive Certificates and thereupon any or all temporary
Certificates may be surrendered to the transfer agent and registrar in exchange
therefor (without charge to the Holders).
(c) A Security shall not be valid until authenticated by the manual
signature of an authorized signatory of the Institutional Trustee. The signature
shall be conclusive evidence that the Security has been authenticated under this
Declaration.
The Institutional Trustee may appoint an authenticating agent acceptable
to the Trust to authenticate Securities. An authenticating agent may
authenticate Securities whenever the Institutional Trustee may do so. Each
reference in this Declaration to authentication by the Institutional Trustee
includes authentication by such agent. An authenticating agent has the same
rights as the Institutional Trustee to deal with the Sponsor or an Affiliate.
(d) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(e) Upon issuance of the Securities as provided in this Declaration, the
Securities so issued shall be deemed to be validly issued, fully paid and
non-assessable.
(f) Every Person, by virtue of having become a Holder or a Capital
Security Beneficial Owner in accordance with the terms of this Declaration,
shall be deemed to have expressly assented and agreed to the terms of, and shall
be bound by, this Declaration.
SECTION 7.2 Paying Agent.
In the event that the Capital Securities are not in book-entry only form,
the Trust shall maintain in the Borough of Manhattan, City of New York, State of
New York, an office or agency where the Capital Securities may be presented for
payment ("Paying Agent"). The Trust may appoint the Paying Agent and may appoint
one or more additional paying agents in such other locations as it shall
determine. The term "Paying Agent" includes any additional paying agent. The
Trust may change any Paying Agent without prior notice to any Holder. The Trust
shall notify the Institutional Trustee of the name and address of any Agent not
a party to this Declaration. If the Trust fails to appoint or maintain another
entity as Paying Agent, the Institutional Trustee shall act as such. The Trust
or any of its Affiliates may act as Paying Agent. Fleet National Bank shall
initially act as Paying Agent for the Capital Securities and the Common
Securities.
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ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1 Termination of Trust.
(a) The Declaration and the Trust shall terminate and be of no further
force or effect:
(i) on December 11, 2050, the expiration of the term of the Trust;
(ii) upon the bankruptcy of the Sponsor or the Trust;
(iii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor, the filing of a
certificate of cancellation with respect to the Trust after
having obtained the consent of the Holders of at least a
Majority in liquidation amount of the Securities voting
together as a single class to file such certificate of
cancellation, or the revocation of the Sponsor's charter and
the expiration of 90 days after the date of revocation without
a reinstatement thereof;
(iv) upon the entry of a decree of judicial dissolution of the
Holder of the Common Securities, the Sponsor or the Trust;
(v) when all of the Securities shall have been called for
redemption and the amounts necessary for redemption thereof,
including any Additional Interest or Compound Interest, shall
have been paid to the Holders in accordance with the terms of
the Securities;
(vi) upon the distribution of all of the Debentures to the Holders
in exchange for all of the Securities in accordance with the
terms of the Securities; or
(vii) before the issuance of any Securities, with the consent of all
of the Regular Trustees and the Sponsor.
(b) As soon as is practicable after the occurrence of an event referred to
in Section 8.1(a), the Trustees shall file a certificate of cancellation with
the Secretary of State of the State of Delaware.
(c) The provisions of Section 3.9 and Article X shall survive the
termination of the Trust.
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities.
(a) Securities may only be transferred, in whole or in part, in accordance
with the terms and conditions set forth in this Declaration and in the terms of
the Securities. Any transfer or purported transfer of any Security not made in
accordance with this Declaration shall be null and void.
(b) Subject to this Article IX, Capital Securities shall be freely
transferable.
(c) The Sponsor may not transfer the Common Securities.
SECTION 9.2 Transfer of Certificates.
(a) General. The Regular Trustees shall provide for the registration of
Certificates and of transfers of Certificates, which will be effected without
charge but only upon payment (with such indemnity as the Regular Trustees may
require) in respect of any tax or other government charges that may be imposed
in relation to it. Upon surrender for registration of transfer of any
Certificate, the Regular Trustees shall cause one or more new
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Certificates to be issued and authenticated by the Institutional Trustee in the
name of the designated transferee or transferees. Every Certificate surrendered
for registration of transfer shall be accompanied by a written instrument of
transfer in form satisfactory to the Regular Trustees duly executed by the
Holder or such Holder's attorney duly authorized in writing. Each Certificate
surrendered for registration of transfer shall be canceled by the Regular
Trustees. A transferee of a Certificate shall be entitled to the rights and
subject to the obligations of a Holder hereunder upon the receipt by such
transferee of a Certificate. By acceptance of a Certificate, each transferee
shall be deemed to have agreed to be bound by this Declaration.
(b) Transfer of a Definitive Capital Security Certificate for a Beneficial
Interest in a Global Certificate. Upon receipt by the Institutional Trustee of a
Definitive Capital Security Certificate, duly endorsed or accompanied by
appropriate instruments of transfer, in form satisfactory to the Institutional
Trustee, requesting transfer of such Definitive Capital Security Certificate for
a beneficial interest in a Global Certificate, the Institutional Trustee shall
cancel such Definitive Capital Security Certificate and cause, or direct the
Depository Institution to cause, the aggregate number of Capital Securities
represented by the appropriate Global Certificate to be increased accordingly.
If no Global Certificates are then outstanding, the Trust shall issue and the
Institutional Trustee shall authenticate, upon written order of any Regular
Trustee, an appropriate number of Capital Securities in global form.
(c) Transfer of a Beneficial Interest in a Global Certificate for a
Definitive Capital Security Certificate. Upon receipt by the Institutional
Trustee from the Depository Institution or its nominee on behalf of any Person
having a beneficial interest in a Global Certificate of written instructions or
such other form of instructions as is customary for the Depository Institution
or the person designated by the Depository Institution, requesting transfer of a
beneficial interest in a Global Certificate for a Definitive Capital Security
Certificate, then the Institutional Trustee or the securities custodian, at the
direction of the Institutional Trustee, will cause, in accordance with the
standing instructions and procedures existing between the Depository Institution
and the securities custodian, the aggregate principal amount of the Global
Certificate to be reduced on its books and records and, following such
reduction, the Trust will execute and the Institutional Trustee will
authenticate and deliver to the transferee a Definitive Capital Security
Certificate.
Definitive Capital Security Certificates issued in exchange for a
beneficial interest in a Global Certificate shall be registered in such names
and in such authorized denominations as the Depository Institution, pursuant to
instructions from its Depository Institution Participants or indirect
participants or otherwise, shall instruct the Institutional Trustee. The
Institutional Trustee shall deliver such Capital Securities to the persons in
whose names such Capital Securities are so registered in accordance with the
instructions of the Depository Institution.
(d) Transfer and Exchange of Global Certificates. Notwithstanding any
other provisions of this Declaration, a Global Certificate may not be
transferred as a whole except by the Depository Institution to a nominee of the
Depository Institution or another nominee of the Depository Institution or by
the Depository Institution or any such nominee to a successor Depository
Institution or a nominee of such successor Depository Institution.
SECTION 9.3 Deemed Security Holders.
The Trustees may treat the Person in whose name any Certificate shall be
registered on the books and records of the Trust as the sole holder of such
Certificate and of the Securities represented by such Certificate for purposes
of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such Certificate or in the Securities represented by such
Certificate on the part of any Person, whether or not the Trust shall have
actual or other notice thereof.
SECTION 9.4 Book-Entry Interests.
Unless otherwise specified in the terms of the Capital Securities set
forth in Annex I, the Capital Securities Certificates, on original issuance,
will be executed and issued by the Trust and authenticated by the Institutional
Trustee in the form of one or more, fully-registered, global Capital Security
Certificates (each a "Global Certificate"), to be delivered to DTC, the initial
Depository Institution, by, or on behalf of, the Trust. Such Global Certificates
shall initially be registered on the books and records of the Trust in the name
of DTC or its nominee,
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and no Capital Security Beneficial Owner will receive a definitive Capital
Security Certificate representing such Capital Security Beneficial Owner's
interests in such Global Certificates, except as provided in Section 9.7. Unless
and until definitive, fully registered Capital Security Certificates (the
"Definitive Capital Security Certificates") have been issued to the Capital
Security Beneficial Owners pursuant to Section 9.7:
(a) the provisions of this Section 9.4 shall be in full force and
effect;
(b) the Trust and the Trustees shall be o entitled to deal with the
Depository Institution, with respect to such Capital Security Beneficial
Owners, for all purposes of this Declaration (including the payment of
Distributions on the Global Certificates and receiving approvals, votes or
consents hereunder) as the Holder of such Capital Securities and the sole
holder of the Global Certificates and shall have no obligation to such
Capital Security Beneficial Owners;
(c) to the extent that the provisions of this Section 9.4 conflict
with any other provisions of this Declaration, the provisions of this
Section 9.4 shall control; and
(d) the rights of such Capital Security Beneficial Owners shall be
exercised only through the Depository Institution and shall be limited to
those established by law and agreements between such Capital Security
Beneficial Owners and the Depository Institution and/or the Depository
Institution Participants. The Depository Institution will make book-entry
transfers among the Depository Institution Participants and receive and
transmit payments of Distributions on the Global Certificates to such
Depository Institution Participants.
Depository Institution Participants shall have no rights under this
Declaration with respect to any Global Certificate held on their behalf by the
Depository Institution or by the Institutional Trustee as the custodian of the
Depository Institution or under such Global Certificate, and the Depository
Institution may be treated by the Trust, the Institutional Trustee and any agent
of the Trust or the Institutional Trustee as the absolute owner of such Global
Certificate for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Trust, the Institutional Trustee or any agent of the
Trust or the Institutional Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depository
Institution or impair, as between the Depository Institution and its Depository
Institution Participants, the operation of customary practices of such
Depository Institution governing the exercise of the rights of a holder of a
beneficial interest in any Global Certificate.
At such time as all beneficial interests in a Global Certificate have
either been exchanged for Definitive Capital Security Certificates to the extent
permitted by this Declaration or redeemed, repurchased or canceled in accordance
with the terms of this Declaration, such Global Certificate shall be returned to
the Depository Institution for cancellation or retained and canceled by the
Institutional Trustee. At any time prior to such cancellation, if any beneficial
interest in a Global Certificate is exchanged for Definitive Capital Security
Certificates, or if Definitive Capital Security Certificates are exchanged for a
beneficial interest in a Global Certificate, Capital Securities represented by
such Global Certificate shall be reduced or increased and an adjustment shall be
made on the books and records of the Institutional Trustee (if it is then the
securities custodian for such Global Certificate) with respect to such Global
Certificate, by the Institutional Trustee or the securities custodian, to
reflect such reduction or increase.
SECTION 9.5 Notices to Depository Institution.
Whenever a notice or other communication to the Capital Security Holders
is required under this Declaration, unless and until Definitive Capital Security
Certificates shall have been issued to the Capital Security Beneficial Owners
pursuant to Section 9.7, the Regular Trustees shall give all such notices and
communications specified herein to be given to the Capital Security Holders to
the Depository Institution, and shall have no notice obligations to the Capital
Security Beneficial Owners.
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SECTION 9.6 Appointment of Successor Depository Institution.
If any Depository Institution elects to discontinue its services as
securities depositary with respect to the Capital Securities, the Regular
Trustees may, in their sole discretion, appoint a successor Depository
Institution with respect to such Capital Securities.
SECTION 9.7 Definitive Capital Security Certificates.
If:
(a) a Depository Institution elects to discontinue its services as
securities depositary with respect to the Capital Securities and a successor
Depository Institution is not appointed within 90 days after such discontinuance
pursuant to Section 9.6; or
(b) the Regular Trustees elect after consultation with the Sponsor to
terminate the book-entry system through the Depository Institution with respect
to the Capital Securities; or
(c) there shall have occurred a Declaration Event of Default
then:
(d) Definitive Capital Security Certificates shall be prepared by the
Regular Trustees on behalf of the Trust with respect to such Capital Securities;
and
(e) upon surrender of the Global Certificates by the Depository
Institution, accompanied by registration instructions, the Regular Trustees
shall cause Definitive Capital Security Certificates to be delivered to Capital
Security Beneficial Owners in accordance with the instructions of the Depository
Institution. Neither the Trustees nor the Trust shall be liable for any delay in
delivery of such instructions and each of them may conclusively rely on and
shall be protected in relying on, said instructions of the Depository
Institution. The Definitive Capital Security Certificates shall be printed,
lithographed or engraved or may be produced in any other manner as is reasonably
acceptable to the Regular Trustees, as evidenced by their execution thereof, and
may have such letters, numbers or other marks of identification or designation
and such legends or endorsements as the Regular Trustees may deem appropriate,
or as may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange on which
Capital Securities may be listed, or to conform to usage.
SECTION 9.8 Mutilated, Destroyed, Lost or Stolen Certificates.
If:
(a) any mutilated Certificates should be surrendered to the Regular
Trustees, or if the Regular Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Regular Trustees, the Institutional
Trustee or any authenticating agent such security or indemnity as may be
required by them to keep each of them harmless.
then, in the absence of notice that such Certificate shall have been acquired by
a bona fide purchaser, any Regular Trustee on behalf of the Trust shall execute
and deliver and the Institutional Trustee shall authenticate, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like denomination. In connection with the issuance of any new
Certificate under this Section 9.8, the Regular Trustees may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection therewith. Any duplicate Certificate issued pursuant to
this Section shall constitute conclusive evidence of an ownership interest in
the relevant Securities, as if originally issued, whether or not the lost,
stolen or destroyed Certificate shall be found at any time.
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ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability.
(a) Except as expressly set forth in this Declaration, the Securities
Guarantees and the terms of the Securities, the Sponsor shall not be:
(i) personally liable for the return of any portion of the capital
contributions (or any return thereon) of the Holders which
shall be made solely from assets of the Trust; and
(ii) be required to pay to the Trust or to any Holder any deficit
upon dissolution of the Trust or otherwise.
(b) The Debenture Issuer shall be liable for all of the debts and
obligations of the Trust (other than with respect to the Securities) to the
extent not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the Holders
shall be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.
SECTION 10.2 Exculpation.
(a) No Indemnified Person shall be liable, responsible or accountable in
damages or otherwise to the Trust or any Covered Person for any loss, damage or
claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's gross negligence or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Trust and upon such information, opinions, reports
or statements presented to the Trust by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Trust, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which Distributions to
Holders might properly be paid.
SECTION 10.3 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to any other Covered Person for
its good faith reliance on the provisions of this Declaration. The provisions of
this Declaration, to the extent that they restrict the duties and liabilities of
an Indemnified Person otherwise existing at law or in equity (other than the
duties imposed on the Institutional Trustee under the Trust Indenture Act), are
agreed by the parties hereto to replace such other duties and liabilities of
such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between an
Indemnified Person and any Covered Persons; or
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(ii) whenever this Declaration or any other agreement contemplated
herein or therein provides that an Indemnified Person shall
act in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any Holder,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is permitted or
required to make a decision:
(i) in its "discretion" or under a grant of similar authority, the
Indemnified Person shall be entitled to consider such
interests and factors as it desires, including its own
interests, and shall have no duty or obligation to give any
consideration to any interest of or factors affecting the
Trust or any other Person; or
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and
shall not be subject to any other or different standard
imposed by this Declaration or by applicable law.
SECTION 10.4 Indemnification.
(a) (i) The Debenture Issuer shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is
a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than
an action by or in the right of the Trust) by reason of the
fact that he is or was a Company Indemnified Person against
expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by
him in connection with such action, suit or proceeding if he
acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Trust, and,
with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the Company Indemnified Person did not act in
good faith and in a manner which he reasonably believed to be
in or not opposed to the best interests of the Trust, and,
with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(ii) The Debenture Issuer shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is
a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the
Trust to procure a judgment in its favor by reason of the fact
that he is or was a Company Indemnified Person against
expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement
of such action or suit if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the
best interests of the Trust and except that no such
indemnification shall be made in respect of any claim, issue
or matter as to which such Company Indemnified Person shall
have been adjudged to be liable to the Trust unless and only
to the extent that the Court of Chancery of Delaware or the
court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability
but in view of all the circumstances of the case, such person
is fairly and reasonably entitled to indemnity for such
expenses which such Court of Chancery or such other court
shall deem proper.
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(iii) To the extent that a Company Indemnified Person shall be
successful on the merits or otherwise (including dismissal of
an action without prejudice or the settlement of an action
without admission of liability) in defense of any action, suit
or proceeding referred to in paragraphs (i) and (ii) of this
Section 10.4(a), or in defense of any claim, issue or matter
therein, he shall be indemnified, to the full extent permitted
by law, against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii) of this
Section 10.4(a) (unless ordered by a court) shall be made by
the Debenture Issuer only as authorized in the specific case
upon a determination that indemnification of the Company
Indemnified Person is proper in the circumstances because he
has met the applicable standard of conduct set forth in
paragraphs (i) and (ii). Such determination shall be made (1)
by the Regular Trustees by a majority vote of a quorum
consisting of such Regular Trustees who were not parties to
such action, suit or proceeding, (2) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of
disinterested Regular Trustees so directs, by independent
legal counsel in a written opinion, or (3) by the Common
Security Holder of the Trust.
(v) Expenses (including attorneys' fees) incurred by a Company
Indemnified Person in defending a civil, criminal,
administrative or investigative action, suit or proceeding
referred to in paragraphs (i) and (ii) of this Section 10.4(a)
shall be paid by the Debenture Issuer in advance of the final
disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of such Company Indemnified
Person to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the
Debenture Issuer as authorized in this Section 10.4(a).
Notwithstanding the foregoing, no advance shall be made by the
Debenture Issuer if a determination is reasonably and promptly
made (i) by the Regular Trustees by a majority vote of a
quorum of disinterested Regular Trustees, (ii) if such a
quorum is not obtainable, or, even if obtainable, if a quorum
of disinterested Regular Trustees so directs, by independent
legal counsel in a written opinion or (iii) by the Debenture
Issuer, that, based upon the facts known to the Regular
Trustees, counsel or the Debenture Issuer, as the case may be,
at the time such determination is made, such Company
Indemnified Person acted in bad faith or in a manner that such
person did not believe to be in or not opposed to the best
interests of the Trust, or, with respect to any criminal
proceeding, that such Company Indemnified Person believed or
had reasonable cause to believe his conduct was unlawful. In
no event shall any advance be made in instances where the
Regular Trustees, independent legal counsel or Debenture
Issuer reasonably determine that such person deliberately
breached his duty to the Trust or its Holders.
(vi) The indemnification and advancement of expenses provided by,
or granted pursuant to, the other paragraphs of this Section
10.4(a) shall not be deemed exclusive of any other rights to
which those seeking indemnification and advancement of
expenses may be entitled under any agreement, vote of
stockholders or disinterested directors of the Debenture
Issuer or Capital Security Holders or otherwise, both as to
action in his official capacity and as to action in another
capacity while holding such office. All rights to
indemnification under this Section 10.4(a) shall be deemed to
be provided by a contract between the Debenture Issuer and
each Company Indemnified Person who serves in such capacity at
any time while this Section 10.4(a) is in effect. Any repeal
or modification of this Section 10.4(a) shall not affect any
rights or obligations then existing.
(vii) The Debenture Issuer or the Trust may purchase and maintain
insurance on behalf of any person who is or was a Company
Indemnified Person against any liability asserted against him
and incurred by him in any such capacity, or arising out of
his status as such, whether or not the Debenture Issuer would
have the power to indemnify him against such liability under
the provisions of this Section 10.4(a).
(viii) For purposes of this Section 10.4(a), references to "the
Trust" shall include, in addition to the resulting or
surviving entity, any constituent entity (including any
constituent of a constituent)
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absorbed in a consolidation or merger, so that any person who
is or was a director, trustee, officer or employee of such
constituent entity, or is or was serving at the request of
such constituent entity as a director, trustee, officer,
employee or agent of another entity, shall stand in the same
position under the provisions of this Section 10.4(a) with
respect to the resulting or surviving entity as he would have
with respect to such constituent entity if its separate
existence had continued.
(ix) The indemnification and advancement of expenses provided by,
or granted pursuant to, this Section 10.4(a) shall, unless
otherwise provided when authorized or ratified, continue as to
a person who has ceased to be a Company Indemnified Person and
shall inure to the benefit of the heirs, executors and
administrators of such a person.
(b) The Debenture Issuer agrees to indemnify the (i) Institutional
Trustee, (ii) the Delaware Trustee, (iii) any Affiliate of the Institutional
Trustee and the Delaware Trustee, and (iv) any officers, directors,
shareholders, members, partners, employees, representatives, custodians,
nominees or agents of the Institutional Trustee and the Delaware Trustee (each
of the Persons in (i) through (iv) being referred to as a "Fiduciary Indemnified
Person") for, and to hold each Fiduciary Indemnified Person harmless against,
any loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration of
the trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against or investigating
any claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder. The obligation to indemnify as set forth in this
Section 10.4(b) shall survive the satisfaction and discharge of this
Declaration.
SECTION 10.5 Outside Businesses.
Any Covered Person, the Sponsor, the Delaware Trustee and the
Institutional Trustee may engage in or possess an interest in other business
ventures of any nature or description, independently or with others, similar or
dissimilar to the business of the Trust, and the Trust and the Holders shall
have no rights by virtue of this Declaration in and to such independent ventures
or the income or profits derived therefrom, and the pursuit of any such venture,
even if competitive with the business of the Trust, shall not be deemed wrongful
or improper. No Covered Person, the Sponsor, the Delaware Trustee, or the
Institutional Trustee shall be obligated to present any particular investment or
other opportunity to the Trust even if such opportunity is of a character that,
if presented to the Trust, could be taken by the Trust, and any Covered Person,
the Sponsor, the Delaware Trustee and the Institutional Trustee shall have the
right to take for its own account (individually or as a partner or fiduciary) or
to recommend to others any such particular investment or other opportunity. Any
Covered Person, the Delaware Trustee and the Institutional Trustee may engage or
be interested in any financial or other transaction with the Sponsor or any
Affiliate of the Sponsor, or may act as depositary for, trustee or agent for, or
act on any committee or body of holders of, securities or other obligations of
the Sponsor or its Affiliates.
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the calendar year,
or such other year as is required by the Code.
SECTION 11.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the Regular Trustees
shall keep, or cause to be kept, full books of account, records and supporting
documents, which shall reflect in reasonable detail, each transaction of the
Trust. The books of account shall be maintained on the accrual method of
accounting, in accordance with generally accepted accounting principles,
consistently applied. The Trust shall use the accrual method of accounting for
United States federal income tax purposes. The books of account and the records
of the Trust shall be examined by
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and reported upon as of the end of each Fiscal Year of the Trust by a firm of
independent certified public accountants selected by the Regular Trustees. The
books and records of the Trust, together with a copy of the Declaration and a
certified copy of the Certificate of Trust, and any amendment thereto shall at
all times be maintained at the principal office of the Trust and shall be open
for inspection for any examination by any Holder or its duly authorized
representative for any purpose reasonably related to its interest in the Trust
during normal business hours.
(b) The Regular Trustees shall cause to be prepared and delivered to each
of the Holders, within 90 days after the end of each Fiscal Year of the Trust,
annual financial statements of the Trust, including a balance sheet of the Trust
as of the end of such Fiscal Year, and the related statements of income or loss;
(c) The Regular Trustees shall cause to be duly prepared and delivered to
each of the Holders, any annual United States federal income tax information
statement, required by the Code, containing such information with regard to the
Securities held by each Holder as is required by the Code and the Treasury
Regulations. Notwithstanding any right under the Code to deliver any such
statement at a later date, the Regular Trustees shall endeavor to deliver all
such statements within 30 days after the end of each Fiscal Year of the Trust.
(d) The Regular Trustees shall cause to be duly prepared and filed with
the appropriate taxing authority, an annual United States federal income tax
return, on a Form 1041 or such other form required by United States federal
income tax law, and any other annual income tax returns required to be filed by
the Regular Trustees on behalf of the Trust with any state or local taxing
authority.
SECTION 11.3 Banking.
The Trust shall maintain one or more bank accounts in the name and for the
sole benefit of the Trust; provided, however, that all payments of funds in
respect of the Debentures held by the Institutional Trustee shall be made
directly to the Institutional Trustee Account and no other funds of the Trust
shall be deposited in the Institutional Trustee Account. The sole signatories
for such accounts shall be designated by the Regular Trustees; provided,
however, that the Institutional Trustee shall designate the signatories for the
Institutional Trustee Account.
SECTION 11.4 Withholding.
The Trust and the Regular Trustees shall comply with all withholding
requirements under United States federal, state and local law. The Trust shall
request, and the Holders shall provide to the Trust, such forms or certificates
as are necessary to establish an exemption from withholding with respect to each
Holder, and any representations and forms as shall reasonably be requested by
the Trust to assist it in determining the extent of, and in fulfilling, its
withholding obligations. The Regular Trustees shall file required forms with
applicable jurisdictions and, unless an exemption from withholding is properly
established by a Holder, shall remit amounts withheld with respect to the Holder
to applicable jurisdictions. To the extent that the Trust is required to
withhold and pay over any amounts to any authority with respect to distributions
or allocations to any Holder, the amount withheld shall be deemed to be a
distribution in the amount of the withholding to the Holder. In the event of any
claimed over withholding, Holders shall be limited to an action against the
applicable jurisdiction. If the amount required to be withheld was not withheld
from actual Distributions made, the Trust may reduce subsequent Distributions by
the amount of such withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments.
(a) Except as otherwise provided in this Declaration or by any applicable
terms of the Securities, this Declaration may only be amended by a written
instrument approved and executed by:
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(i) the Regular Trustees (or, if there are more than two Regular
Trustees, a majority of the Regular Trustees);
(ii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Institutional Trustee, the
Institutional Trustee; and
(iii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, the
Delaware Trustee;
(b) No amendment shall be made, and any such purported amendment shall be
void and ineffective:
(i) unless, in the case of any proposed amendment, the
Institutional Trustee shall have first received an Officers'
Certificate from each of the Trust and the Sponsor that such
amendment is permitted by, and conforms to, the terms of this
Declaration (including the terms of the Securities);
(ii) unless, in the case of any proposed amendment which affects
the rights, powers, duties, obligations or immunities of the
Institutional Trustee, the Institutional Trustee shall have
first received:
(A) an Officers' Certificate from each of the Trust and the
Sponsor that such amendment is permitted by, and
conforms to, the terms of this Declaration (including
the terms of the Securities); and
(B) an opinion of counsel (who may be counsel to the Sponsor
or the Trust) that such amendment is permitted by, and
conforms to, the terms of this Declaration (including
the terms of the Securities); and
(iii) to the extent the result of such amendment would be to:
(A) cause the trust to fail to continue to be classified for
purposes of United States federal income taxation as a
grantor trust;
(B) reduce or otherwise adversely affect the powers of the
Institutional Trustee in contravention of the Trust
Indenture Act; or
(C) cause the Trust to be deemed to be an Investment Company
required to be registered under the Investment Company
Act;
(c) At such time after the Trust has issued any Securities that remain
outstanding, any amendment that would adversely affect the rights, privileges or
preferences of any Holder may be effected only with such additional requirements
as may be set forth in the terms of such Securities;
(d) Sections 4.4, 9.1(c) and this Section 12.1 shall not be amended
without the consent of all of the Holders of the Securities;
(e) Article IV shall not be amended without the consent of the Holders of
a Majority in liquidation amount of the Common Securities and;
(f) The rights of the holders of the Common Securities under Article V to
increase or decrease the number of, and appoint and remove Trustees shall not be
amended without the consent of the Holders of a Majority in liquidation amount
of the Common Securities; and
(g) Notwithstanding Section 12.1(c), this Declaration may be amended
without the consent of the Holders to:
(i) cure any ambiguity;
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(ii) correct or supplement any provision in this Declaration that
may be defective or inconsistent with any other provision of
this Declaration;
(iii) add to the covenants, restrictions or obligations of the
Sponsor;
(iv) conform to any change in Rule 3a-5 or written change in
interpretation or application of Rule 3a-5 by any legislative
body, court, government agency or regulatory authority which
amendment does not have a material adverse effect on the
right, preferences or privileges of the Holders; and
(v) preserve the status of the Trust as a grantor trust for
federal income tax purposes.
SECTION 12.2 Meetings of the Holders; Action by Written Consent.
(a) Meetings of the Holders of any class of Securities may be called at
any time by the Regular Trustees (or as provided in the terms of the Securities)
to consider and act on any matter on which Holders of such class of Securities
are entitled to act under the terms of this Declaration, the terms of the
Securities or the rules of any stock exchange on which the Capital Securities
are listed or admitted for trading. The Regular Trustees shall call a meeting of
the Holders of such class if directed to do so by the Holders of at least 10% in
liquidation amount of such class of Securities. Such direction shall be given by
delivering to the Regular Trustees one or more calls in a writing stating that
the signing Holders wish to call a meeting and indicating the general or
specific purpose for which the meeting is to be called. Any Holders calling a
meeting shall specify in writing the Certificates held by the Holders exercising
the right to call a meeting and only those Securities specified shall be counted
for purposes of determining whether the required percentage set forth in the
second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of Holders:
(i) notice of any such meeting shall be given to all the Holders
having a right to vote thereat at least 7 days and not more
than 60 days before the date of such meeting. Whenever a vote,
consent or approval of the Holders is permitted or required
under this Declaration or the rules of any stock exchange on
which the Capital Securities are listed or admitted for
trading, such vote, consent or approval may be given at a
meeting of the Holders. Any action that may be taken at a
meeting of the Holders may be taken without a meeting if a
consent in writing setting forth the action so taken is signed
by the Holders owning not less than the minimum amount of
Securities in liquidation amount that would be necessary to
authorize or take such action at a meeting at which all
Holders having a right to vote thereon were present and
voting. Prompt notice of the taking of action without a
meeting shall be given to the Holders entitled to vote who
have not consented in writing. The Regular Trustees may
specify that any written ballot submitted to the Holders for
the purpose of taking any action without a meeting shall be
returned to the Trust within the time specified by the Regular
Trustees;
(ii) each Holder may authorize any Person to act for it by proxy on
all matters in which a Holder is entitled to participate,
including waiving notice of any meeting, or voting or
participating at a meeting. No proxy shall be valid after the
expiration of 11 months from the date thereof unless otherwise
provided in the proxy. Every proxy shall be revocable at the
pleasure of the Holder executing it. Except as otherwise
provided herein, all matters relating to the giving, voting or
validity of proxies shall be governed by the General
Corporation Law of the State of Delaware relating to proxies,
and judicial interpretations thereunder, as if the Trust were
a Delaware corporation and the Holders were stockholders of a
Delaware corporation;
(iii) each meeting of the Holders shall be conducted by the Regular
Trustees or by such other Person that the Regular Trustees may
designate; and
36
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(iv) unless the Business Trust Act, this Declaration, the terms of
the Securities, the Trust Indenture Act or the listing rules
of any stock exchange on which the Capital Securities are then
listed or trading, otherwise provides, the Regular Trustees,
in their sole discretion, shall establish all other provisions
relating to meetings of Holders, including notice of the time,
place or purpose of any meeting at which any matter is to be
voted on by any Holders, waiver of any such notice, action by
consent without a meeting, the establishment of a record date,
quorum requirements, voting in person or by proxy or any other
matter with respect to the exercise of any such right to vote.
ARTICLE XIII
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Institutional Trustee.
The Trustee that acts as initial Institutional Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Institutional Trustee represents and warrants to the Trust and
the Sponsor at the time of the Successor Institutional Trustee's acceptance of
its appointment as Institutional Trustee that:
(a) the Institutional Trustee is a national banking association with trust
powers, duly organized, validly existing and in good standing under the laws of
the United States, with trust power and authority to execute and deliver, and to
carry out and perform its obligations under the terms of, this Declaration;
(b) the execution, delivery and performance by the Institutional Trustee
of this Declaration has been duly authorized by all necessary corporate action
on the part of the Institutional Trustee. This Declaration has been duly
executed and delivered by the Institutional Trustee, and constitutes the legal,
valid and binding obligation of the Institutional Trustee, enforceable against
it in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws affecting
creditors' rights generally and to general principles of equity and the
discretion of the court (regardless of whether the enforcement of such remedies
is considered in a proceeding in equity or at law);
(c) the execution, delivery and performance of this Declaration by the
Institutional Trustee does not conflict with or constitute a breach of the
Articles of Incorporation or By-laws of the Institutional Trustee; and
(d) no consent, approval or authorization of, or registration with or
notice to, any State or Federal banking authority is required for the execution,
delivery or performance by the Institutional Trustee, of this Declaration.
(e) on the Closing Date, the Institutional Trustee will be the record
holder of the Debentures and the Institutional Trustee has not knowingly created
any liens or encumbrances on such Debentures.
(f) the Institutional Trustee satisfies the qualifications set forth in
Section 5.3.
SECTION 13.2 Representations and Warranties of Delaware Trustee.
The Trustee that acts as initial Delaware Trustee represents and warrants
to the Trust and to the Sponsor at the date of this Declaration, and each
Successor Delaware Trustee represents and warrants to the Trust and the Sponsor
at the time of the Successor Delaware Trustee's acceptance of its appointment as
Delaware Trustee that:
(a) The Delaware Trustee is a Delaware banking corporation with trust
powers, duly organized, validly existing and in good standing under the laws of
the State of Delaware, with trust power and authority to execute and deliver,
and to carry out and perform its obligations under the terms of, this
Declaration.
(b) The Delaware Trustee has been authorized to perform its obligations
under the Certificate of Trust and this Declaration. The Declaration under
Delaware law constitutes a legal, valid and binding obligation of the Delaware
37
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Trustee, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, reorganization, moratorium, insolvency, and other similar
laws affecting creditors' rights generally and to general principles of equity
and the discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law).
(c) No consent, approval or authorization of, or registration with or
notice to, any State or Federal banking authority is required for the execution,
delivery or performance by the Delaware Trustee, of this Declaration.
(d) The Delaware Trustee is a natural person who is a resident of the
State of Delaware or, if not a natural person, an entity which has its principal
place of business in the State of Delaware.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices.
All notices provided for in this Declaration shall be in writing, duly
signed by the party giving such notice, and shall be delivered, telecopied or
mailed by registered or certified mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at the Trust's
mailing address set forth below (or such other address as the Trust may give
notice of to the Holders):
Fleet Capital Trust II
c/o Fleet Financial Group, Inc.
One Federal Street
Boston, Massachusetts 02110
Attention: General Counsel
(b) if given to the Delaware Trustee, at the mailing address set forth
below (or such other address as the Delaware Trustee may give notice of to the
Holders):
First Chicago Delaware Inc.
300 King Street
Wilmington, Delaware 19801
Attention: Michael Majchrzak
(c) if given to the Institutional Trustee, at the Institutional Trustee's
mailing address set forth below (or such other address as the Institutional
Trustee may give notice of to the Holders):
The First National Bank of Chicago
One First National Plaza
Suite 0126
Chicago, Illinois 60670-0126
Attention: Corporate Trust Administration
(d) if given to the Holder of the Common Securities, at the mailing
address of the Sponsor set forth below (or such other address as the Holder of
the Common Securities may give notice to the Trust):
Fleet Financial Group, Inc.
One Federal Street
Boston, Massachusetts 02110
Attention: General Counsel
(e) if given to any other Holder, at the address set forth on the books
and records of the Trust.
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All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 14.2 Governing Law.
THIS DECLARATION AND THE RIGHTS OF THE PARTIES HEREUNDER SHALL BE GOVERNED
BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE AND ALL
RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO PRINCIPLES
OF CONFLICT OF LAWS.
SECTION 14.3 Intention of the Parties.
It is the intention of the parties hereto that the Trust be classified for
United States federal income tax purposes as a grantor trust. The provisions of
this Declaration shall be interpreted to further this intention of the parties.
SECTION 14.4 Headings.
Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or any
provision hereof.
SECTION 14.5 Successors and Assigns
Whenever in this Declaration any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
SECTION 14.6 Partial Enforceability.
If any provision of this Declaration, or the application of such provision
to any Person or circumstance, shall be held invalid, the remainder of this
Declaration, or the application of such provision to persons or circumstances
other than those to which it is held invalid, shall not be affected thereby.
SECTION 14.7 Counterparts.
This Declaration may contain more than one counterpart of the signature
page and this Declaration may be executed by the affixing of the signature of
each of the Trustees to one of such counterpart signature pages. All of such
counterpart signature pages shall be read as though one, and they shall have the
same force and effect as though all of the signers had signed a single signature
page.
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IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
/s/ Eugene M. McQuade
-------------------------------------
Eugene M. McQuade, as Regular Trustee
/s/ Douglas L. Jacobs
-------------------------------------
Douglas L. Jacobs, as Regular Trustee
/s/ John R. Rodehorst
-------------------------------------
John R. Rodehorst, as Regular Trustee
FIRST CHICAGO DELAWARE INC.,
as Delaware Trustee
By: /s/ Mary R. Fonti
------------------------------
Name: Mary R. Fonti
------------------------------
Title: Assistant Vice President
------------------------------
THE FIRST NATIONAL BANK OF CHICAGO,
as Institutional Trustee
By: /s/ Mary R. Fonti
------------------------------
Name: Mary R. Fonti
------------------------------
Title: Assistant Vice President
------------------------------
FLEET FINANCIAL GROUP, INC.,
as Sponsor
By: /s/ Eugene M. McQuade
--------------------------------
Eugene M. McQuade
Executive Vice President and
Chief Financial Officer
<PAGE>
ANNEX I
TERMS OF
7.92% CAPITAL SECURITIES
7.92% COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration of Trust,
dated as of December 11, 1996 (as amended from time to time, the "Declaration"),
the designation, rights, privileges, restrictions, preferences and other terms
and provisions of the Securities are set out below (each capitalized term used
but not defined herein has the meaning set forth in the Declaration or, if not
defined in the Declaration, as defined in the Prospectus referred to below):
1. Designation and Number.
(a) Capital Securities. 2,500,000 Capital Securities of the Trust with an
aggregate stated liquidation amount with respect to the assets of the Trust of
Two Hundred Fifty Million Dollars ($250,000,000) and a stated liquidation amount
with respect to the assets of the Trust of $1,000 per capital security, are
hereby designated for the purposes of identification only as "7.92% Capital
Securities" (the "Capital Securities"). The Capital Security Certificates
evidencing the Capital Securities shall be substantially in the form of Exhibit
A-1 to the Declaration, with such changes and additions thereto or deletions
therefrom as may be required by ordinary usage, custom or practice or to conform
to the rules of any stock exchange on which the Capital Securities are listed.
(b) Common Securities. 7,732 Common Securities of the Trust with an
aggregate stated liquidation amount with respect to the assets of the Trust of
Seven Million Seven Hundred Thirty Two Thousand Dollars ($7,732,000) and a
stated liquidation amount with respect to the assets of the Trust of $1,000 per
common security, are hereby designated for the purposes of identification only
as "7.92% Common Securities" (the "Common Securities"). The Common Security
Certificates evidencing the Common Securities shall be substantially in the form
of Exhibit A-2 to the Declaration, with such changes and additions thereto or
deletions therefrom as may be required by ordinary usage, custom or practice.
(c) The Capital Securities and the Common Securities represent undivided
beneficial interests in the assets of the Trust.
(d) In connection with the purchase of the Securities, the Sponsor will
deposit in the Trust, and the Trust will purchase, respectively, as trust
assets, Debentures of the Sponsor having an aggregate principal amount equal to
$257,732,000, and bearing interest at an annual rate equal to the annual
Distribution rate on the Capital Securities and Common Securities and having
payment and redemption provisions which correspond to the payment and redemption
provisions of the Capital Securities and Common Securities.
2. Distributions.
(a) Distributions payable on each Security will be fixed at a rate per
annum of 7.92% (the "Coupon Rate") of the stated liquidation amount of $1,000
per Security, such rate being the rate of interest payable on the Debentures to
be held by
<PAGE>
the Institutional Trustee. Distributions in arrears for more than one
semi-annual period will bear interest thereon compounded semi-annually at the
Coupon Rate ("Compound Interest") (to the extent permitted by applicable law).
The term "Distributions" as used herein includes such cash distributions and any
such interest (including Additional Interest and Compound Interest) payable
unless otherwise stated. A Distribution will be made by the Institutional
Trustee only to the extent that payments are made in respect of the Debentures
held by the Institutional Trustee and to the extent the Trust has funds
available in the Institutional Trustee Account. The amount of Distributions
payable for any period will be computed for any full semi-annual Distribution
period on the basis of a 360-day year of twelve 30-day months, and for any
period shorter than a full quarterly Distribution period for which Distributions
are computed, Distributions will be computed on the basis of the actual number
of days elapsed.
(b) Distributions on the Securities will be cumulative, will accrue from
December 11, 1996 and, except as otherwise described below, will be payable
semi-annually in arrears, on June 15 and December 15 of each year, commencing on
June 15, 1997, when, as and if available for payment, except as otherwise
described below (a "Distribution Payment Date"). So long as Fleet shall not be
in default in the payment of interest on the Debentures, the Debenture Issuer
has the right under the Indenture to defer payments of interest on the
Debentures by extending the interest payment period from time to time on the
Debentures for a period not exceeding 10 consecutive semi-annual periods (each
an "Extension Period"), during which Extension Period no interest shall be due
and payable on the Debentures, provided that no Extension Period shall last
beyond the Stated Maturity of the Debentures. As a consequence of such deferral,
Distributions will also be deferred. Despite such deferral, semi-annual
Distributions will continue to accrue with interest thereon (to the extent
permitted by applicable law) at the Coupon Rate compounded semi-annually during
any such Extension Period. Prior to the termination of any such Extension
Period, the Debenture Issuer may further extend such Extension Period; provided
that such Extension Period, together with all such previous and further
extensions thereof, may not exceed 10 consecutive semi-annual periods or extend
beyond the Stated Maturity of the Debentures. Any interest accrued on the
Debentures during an Extension Period shall be paid Pro Rata to holders of
Debentures on the first payment date following the Extension Period and the
Payment Amount shall be paid Pro Rata to the Holders on the first Distribution
Payment Date following the Extension Period. Upon the termination of any
Extension Period and the payment of all amounts then due, the Debenture Issuer
may commence a new Extension Period, subject to the above requirements. In the
event that the Debenture Issuer exercises this right, then (i) the Debenture
Issuer shall not declare or pay any dividend on, make a distribution with
respect to, or redeem, purchase or acquire, or make a liquidation payment with
respect to, any of its capital stock (other than (a) purchases or acquisitions
of shares of its common stock in connection with the satisfaction by the
Debenture Issuer of its obligations under any employee benefit plans or any
other contractual obligation of the Debenture Issuer (other than a contractual
obligation ranking pari passu with or junior to the Debentures), (b) as a result
of a reclassification of the Debenture Issuer's capital stock or the exchange or
conversion of one class or series of the Debenture Issuer's capital stock for
another class or series of the Debenture Issuer's capital stock or (c) the
purchase of fractional interests in shares of the Debenture Issuer's capital
stock pursuant to the conversion or exchange provisions of such capital stock or
the security being converted or exchanged), (ii) the Debenture Issuer shall not
make any payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities issued by the Debenture Issuer that
rank pari passu with or junior to such Debentures and (iii) the Debenture Issuer
shall not make any guarantee payments with respect to the foregoing (other than
pursuant to the Capital Securities Guarantee).
(c) Distributions on the Securities will be payable promptly by the
Institutional Trustee upon receipt of immediately available funds to the Holders
thereof as they appear on the books and records of the Trust on the relevant
record dates, which will be the first day of the month in which the relevant
distribution date falls. The record dates and distribution dates shall be the
same as the record dates and payment dates on the Debentures. Distributions
payable on any Securities that are not punctually paid on any Distribution
Payment Date, as a result of the Debenture Issuer having failed to make the
corresponding interest payment on the Debentures, will forthwith cease to be
payable to the Person in whose name such Securities are registered on the
relevant record date, and such defaulted Distribution will instead be payable to
the Person in whose name such Securities are registered on the special record
date established by the Regular Trustees, which record date shall correspond to
the special record date or other specified date determined in accordance with
the Indenture; provided, however, that Distributions shall not be considered
payable on any Distribution Payment Date falling within an Extension Period
unless the Debenture Issuer has elected to make a full or partial payment of
interest accrued on the Debentures on such Distribution Payment Date.
Distributions on the Securities will be paid by the Trust. All Distributions
paid with respect to the Securities shall be paid on a Pro Rata basis to Holders
thereof entitled thereto. If any date on which Distributions are payable on the
Securities is not a Business Day, then payment of the Distribution payable on
such date will be made on the next
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<PAGE>
succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay) except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date.
(d) If at any time while the Institutional Trustee is the Holder of any
Securities, the Trust or the Institutional Trustee is required to pay any taxes,
duties, assessments or governmental charges of whatever nature (other than
withholding taxes) imposed by the United States, or any other taxing authority,
then, in any such case, the Debenture Issuer will pay as additional interest
("Additional Interest") on the Securities held by the Institutional Trustee,
such amounts as shall be required so that the net amounts received and retained
by the Trust and the Institutional Trustee after paying any such taxes, duties,
assessments or other governmental charges will be equal to the amounts the Trust
and the Institutional Trustee would have received had no such taxes, duties,
assessments or other governmental charges been imposed.
(e) In the event that there is any money or other property held by or for
the Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata among the Holders.
3. Liquidation Distribution Upon Dissolution.
In the event of any voluntary or involuntary liquidation, dissolution,
winding-up or termination of the Trust (each a "Liquidation"), the Holders on
the date of the Liquidation will be entitled to receive Pro Rata out of the
assets of the Trust available for distribution to Holders after satisfaction of
liabilities of creditors distributions in an amount equal to the aggregate of
the stated liquidation amount of $1,000 per Security plus accrued and unpaid
Distributions thereon to the date of payment (such amount being the "Liquidation
Distribution"), unless, in connection with such Liquidation, Debentures in an
aggregate stated principal amount equal to the aggregate stated liquidation
amount of such Securities, with an interest rate equal to the Coupon Rate of,
and bearing accrued and unpaid interest in an amount equal to the accrued and
unpaid Distributions on, such Securities, shall be distributed on a Pro Rata
basis to the Holders in exchange for such Securities.
4. Redemption and Distribution.
(a) Redemption of the Securities will occur simultaneously with any
repayment of the Debentures. The Debentures will mature on December 11, 2026
(the "Stated Maturity"), and are prepayable as set forth in this Section 4. Upon
the repayment of the Debentures in whole or in part, whether at maturity or upon
redemption, the proceeds from such repayment or payment shall be simultaneously
applied to redeem Securities having an aggregate liquidation amount equal to the
aggregate principal amount of the Debentures so repaid or redeemed at the
Redemption Price. Securities redeemed upon maturity of the Debentures will
redeemed at a redemption price of $1,000 per Security plus an amount equal to
accrued and unpaid Distributions thereon at the date of redemption, payable in
cash (the "Maturity Redemption Price"). If fewer than all the outstanding
Securities are to be so redeemed, the Securities will be redeemed Pro Rata and
the Capital Securities to be redeemed will be as described in Section 4(g)(ii)
below. Any prepayment of the Debentures and related redemption of Capital
Securities under subsections (b) and (c) below may require the prior approval of
the Federal Reserve Board if such approval is then required under applicable
law, rules, guidelines or policies.
(b) The Debentures are prepayable, in whole or in part, at the option of
the Company at any time on or after December 15, 2006 at a prepayment price (the
"Optional Prepayment Price") equal to the percentage of the principal amount of
the Debentures specified below, plus, in each case, accrued interest thereon
(including Additional Interest and Compound Interest, if any) to the date of
prepayment if prepaid during the 12-month period beginning December 15 of the
years indicated below:
A-3
<PAGE>
Year Percentage
---- ----------
2006 103.908%
2007...................................................103.517
2008...................................................103.126
2009...................................................102.736
2010...................................................102.345
2011...................................................101.954
2012...................................................101.563
2013...................................................101.172
2014...................................................100.782
2015...................................................100.391
2016 and thereafter....................................100.000
(c).If a Special Event shall occur and be continuing the Company may, at
its option, prepay the Debentures in whole (but not in part) at any time prior
to December 15, 2006 and within 90 days of the occurrence of such Special Event,
at a prepayment price (the "Special Event Prepayment Price") equal to the
greater of (i) 100% of the principal amount of such Debentures or (ii) the sum
as determined by a Quotation Agent, of the present values of the principal
amount and premium payable as part of the Redemption Price with respect to an
optional redemption of such Debentures on December 15, 2006, together with
scheduled payments of interest from the prepayment date to December 15, 2006
(the "Remaining Life"), in each case discounted to the prepayment date on a
semi-annual basis (assuming a 360-day year consisting of 30-day months) at the
Adjusted Treasury Rate, plus, in each case accrued interest thereon (including
Additional Interest and Compound Interest, if any) to the date of prepayment.
(d).The following terms used herein shall be defined as follows:
"Adjusted Treasury Rate" means, with respect to any prepayment date, the
rate per annum equal to (i) the yield, under the heading which represents the
average for the immediately prior week, appearing in the most recently published
statistical release designated "H.15 (519)" or any successor publication which
is published weekly by the Federal Reserve Board and which establishes yields on
actively traded United States Treasury securities adjusted to constant maturity
under the caption "Treasury Constant Maturities," for the maturity corresponding
to the Remaining Life (if no maturity is within three months before or after the
Remaining Life, yields for the two published maturities most closely
corresponding to the Remaining Life shall be determined and the Adjusted
Treasury Rate shall be interpolated or extrapolated from such yields on a
straight-line basis, rounding to the nearest month) or (ii) if such release (or
any successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per annum equal to
the semi-annual equivalent yield to maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
such prepayment date, in each case calculated on the third Business Day
preceding the prepayment date, plus, in each case (A) 1.08% if such prepayment
date occurs on or prior to December 31, 1997 and (B) 0.50% in all other cases.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to the Remaining
Life of the Debentures to be prepaid that would be utilized, at the time or
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity with the Remaining
Life of the Debentures. If no United States Treasury security has a maturity
which is within a period from three months before to three months after December
15, 2006, the two most closely corresponding United States Treasury securities
shall be used as the Comparable Treasury Issue, and the Adjusted Treasury Rate
shall be interpolated or extrapolated on a straight-line basis, rounding to the
nearest month using such securities.
"Comparable Treasury Price" means, with respect to any prepayment date,
(i) the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
Business Day preceding such prepayment date, as set forth in the daily
statisical release (or any successor
A-4
<PAGE>
release) published by the Federal Reserve Bank of New York and designated
"Composite 3:30 p.m. Quotations for U.S. Government Securities" or (ii) if such
release (or any successor release) is not published or does not contain such
prices on such Business Day, (A) the average of five Reference Treasury Dealer
Quotations for such prepayment date, after excluding the highest and lowest of
such Reference Treasury Dealer Quotations, or (B) if the Debt Trustee obtains
fewer than three such Reference Treasury Dealer Quotations, the average of all
such Quotations.
"Quotation Agent" means the Reference Treasury Dealer appointed by the
Debt Trustee after consultation with the Debenture Issuer.
"Reference Treasury Dealer" means: (i) Merrill Lynch Government
Securities, Inc. and their respective successors; provided, however, that if the
foregoing shall cease to be a primary U.S. Government securities dealer in New
York City (a "Primary Treasury Dealer"), the Debenture Issuer shall substitute
therefor another Primary Treasury Dealer and (ii) any other Primary Treasury
Dealer selected by the Debt Trustee after consultation with the Debenture
Issuer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any prepayment date, the average, as determined by
the Debt Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Debt Trustee by such Reference Treasury Dealer at 5:00 p.m., New
York City time, on the third Business Day preceding such prepayment date.
"Regulatory Capital Event" means that the Debenture Issuer shall have
received an opinion of independent bank regulatory counsel experienced in such
matters to the effect that, as a result of (a) any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any rules, guidelines or policies of the
Federal Reserve Board or (b) any official administrative pronouncement or
judicial decision interpreting or applying such laws or regulations, which
amendment or change is effective or such pronouncement or decision is announced
on or after the Issue Date, the Capital Securities do not constitute, or within
90 days of the date thereof, will not constitute, Tier 1 capital (or its
equivalent) for purposes of the Federal Reserve Board's capital guidelines for
bank holding companies; provided, however, that the distribution of the
Debentures in connection with the liquidation of the Trust by the Debenture
Issuer and the treatment thereafter of the Debentures as other than Tier 1
capital shall not in and or itself constitute a Regulatory Capital Event unless
such liquidation shall have occurred in connection with a Tax Event.
"Special Event" means a Tax Event or a Regulatory Capital Event, as the
case may be.
"Tax Event" means that the Regular Trustees shall have received an opinion
of a nationally recognized independent tax counsel experienced in such matters
to the effect that, as a result of (a) any amendment to, or change (including
any announced prospective change) in, the laws or any regulations thereunder of
the United States or any political subdivision or taxing authority thereof or
therein, or (b) any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or such pronouncement or decision is announced on or after the date of
the original issuance of the Securities, there is more than an insubstantial
risk that (i) the Trust is, or will be within 90 days of the date of such
opinion, subject to United States federal income tax with respect to income
received or accrued on the Debentures, (ii) interest payable on the Debentures
is not, or within 90 days of the date thereof will not be, deductible by the
Company, in whole or in part, for United States federal income tax purposes, or
(iii) the Trust is, or will be within 90 days of the date thereof, subject to
more than a de minimis amount of other taxes, duties or other governmental
charges.
(e).The Trust may not redeem fewer than all the outstanding Securities
unless all accrued and unpaid Distributions have been paid on all Securities for
all semi-annual Distribution periods terminating on or before the date of
redemption.
(f).The Debenture Issuer will have the right at any time to liquidate the
Trust and cause the Debentures to be distributed to the Holders, subject to the
prior approval of the Federal Reserve Board if such approval is then
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<PAGE>
required under applicable law, rules, guidelines or policies. If the Debentures
are distributed to the Holders and the Capital Securities are then listed on an
exchange, the Debenture Issuer will use its best efforts to cause the Debentures
to be listed on the NYSE or on such other exchange as the Capital Securities are
then listed.
On the date fixed for any distribution of Debentures upon dissolution of
the Trust, (i) the Capital Securities will no longer be deemed to be
outstanding, (ii) the Depository Institution or its nominee, as the record
holder of the Capital Securities, will receive a registered global certificate
or certificates representing the Debentures to be delivered upon such
distribution, and (iii) any certificates representing Capital Securities not
held by the Depository Institution or its nominee will be deemed to represent
Debentures having an aggregate principal amount equal to the aggregate stated
liquidation amount of, with an interest rate identical to the distribution rate
of, and accrued and unpaid interest equal to accrued and unpaid distributions
on, such Capital Securities until such certificates are presented to the
Debenture Issuer or its agent for transfer or reissuance.
(g).Redemption or Distribution Procedures.
(i) Notice of any redemption of the Debentures, or notice of
distribution of Debentures in exchange for the Securities (a
"Redemption/Distribution Notice") will be given by the Trust
by mail to each Holder of Securities to be redeemed or
exchanged not fewer than 30 nor more than 60 days before the
date fixed for redemption or exchange thereof which, in the
case of a redemption, will be the date fixed for redemption of
the Debentures. For purposes of the calculation of the date of
redemption or exchange and the dates on which notices are
given pursuant to this Section 4(f)(i), a
Redemption/Distribution Notice shall be deemed to be given on
the day such notice is first mailed by first-class mail,
postage prepaid, to Holders. Each Redemption/Distribution
Notice shall be addressed to the Holders at the address of
each such Holder appearing in the books and records of the
Trust. No defect in the Redemption/Distribution Notice or in
the mailing of either thereof with respect to any Holder shall
affect the validity of the redemption or exchange proceedings
with respect to any other Holder.
(ii) In the event that fewer than all the outstanding Securities
are to be redeemed, the Securities to be redeemed shall be
redeemed Pro Rata from each Holder, it being understood that,
in respect of Capital Securities registered in the name of and
held of record by the Depository Institution or its nominee,
the distribution of the proceeds of such redemption will be
made to each Depository Institution Participant (or Person on
whose behalf such nominee holds such securities) in accordance
with the procedures applied by such agency or nominee.
(iii) If Securities are to be redeemed and the Trust gives a
Redemption/Distribution Notice, which notice may only be
issued if the Debentures are redeemed as set out in this
Section 4 (which notice will be irrevocable), then by 12:00
noon, New York City time, on the redemption date, the
Debenture Issuer will deposit with one or more paying agents
an amount of money sufficient to redeem on the redemption date
all the Securities so called for redemption at the applicable
Redemption Price. If a Redemption/Distribution Notice shall
have been given and funds deposited as required, if
applicable, then immediately prior to the close of business on
the date of such deposit, or on the redemption date, as
applicable, distributions will cease to accrue on the
Securities so called for redemption and all rights of Holders
of such Securities so called for redemption will cease, except
the right of the Holders of such Securities to receive the
applicable Redemption Price, but without interest on such
Redemption Price. On presentation and surrender of such
Securities at a place of payment specified in said notice, the
said Securities or the specified portions thereof shall be
paid and redeemed by the Trust at the applicable Redemption
Price. Neither the Regular Trustees nor the Trust shall be
required to register or cause to be registered the transfer of
any Securities that have been so called for redemption. If any
date fixed for redemption of Securities is not a Business Day,
then payment of the Redemption Price payable on such date will
be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such
delay) except that, if such Business Day falls in the next
calendar year, such payment will be made on the immediately
preceding Business Day, in
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each case with the same force and effect as if made on such
date fixed for redemption. If payment of the Redemption Price
in respect of any Securities is improperly withheld or refused
and not paid either by the Institutional Trustee or by the
Sponsor as guarantor pursuant to the relevant Securities
Guarantee, Distributions on such Securities will continue to
accrue from the original redemption date to the actual date of
payment, in which case the actual payment date will be
considered the date fixed for redemption for purposes of
calculating the applicable Redemption Price.
(iv) The Trust shall not be required to (i) issue, or register the
transfer or exchange of, any Securities during a period
beginning at the opening of business 15 days before the
mailing of a notice of redemption of Securities and ending at
the close of business on the day of the mailing of the
relevant notice of redemption and (ii) register the transfer
or exchange of any Securities so selected for redemption, in
whole or in part, except the unredeemed portion of any
Securities being redeemed in part.
(v) Subject to the foregoing and applicable law (including,
without limitation, United States federal securities laws and
regulations of the Federal Reserve Board), the Sponsor or any
of its subsidiaries may at any time and from time to time
purchase outstanding Capital Securities by tender, in the open
market or by private agreement.
5. Voting Rights - Capital Securities.
(a) Except as provided under Sections 5(b) and 7 and as otherwise required
by law and the Declaration, the Holders of the Capital Securities will have no
voting rights.
(b) Subject to the requirements set forth in the immediately following
paragraph, the Holders of a majority in aggregate liquidation amount of the
Capital Securities, voting separately as a class, have the right to direct the
time, method, and place of conducting any proceeding for any remedy available to
the Institutional Trustee, or to direct the exercise of any trust or power
conferred upon the Institutional Trustee under the Declaration, including the
right to direct the Institutional Trustee, as holder of the Debentures, to (i)
exercise the remedies available to it under the Indenture as holder of the
Debentures, (ii) waive any past Event of Default and its consequences that is
waivable under Section 5.07 of the Indenture, (iii) exercise any right to
rescind or annul a declaration that the principal of all the Debentures shall be
due and payable, or (iv) consent to any amendment, modification or termination
of the Indenture or the Debentures where such consent shall be required;
provided, however, that, where a consent or action under the Indenture would
require the consent or act of a Super Majority, only the Holders of at least
such Super Majority in aggregate liquidation amount of the Capital Securities
may direct the Institutional Trustee to give such consent or take such action;
and provided further, that where a consent or action under the Indenture is only
effective against each holder of Debentures who has consented thereto, such
consent or action will only be effective against a holder of Capital Securities
who directs the Institutional Trustee to give such consent or take such action.
A waiver of an Indenture Event of Default will constitute a waiver of the
corresponding Declaration Event of Default. The Institutional Trustee shall not
revoke any action previously authorized or approved by a vote of the Holders of
the Capital Securities. If the Institutional Trustee fails to enforce its rights
under the Debentures after a holder of record of Capital Securities has made a
written request, such holder of record of Capital Securities may institute a
legal proceeding directly against the Debenture Issuer to enforce the
Institutional Trustee's rights under the Debentures without first instituting
any legal proceeding against the Institutional Trustee or any other person or
entity. Notwithstanding the foregoing, if an Event of Default has occurred and
is continuing and such event is attributable to the failure of the Debenture
Issuer to pay interest or principal on the Debentures on the date such interest
or principal is otherwise payable (or in the case of redemption, on the
redemption date), then a Holder of Capital Securities may institute a Direct
Action for enforcement of payment to such Holder of the principal of or interest
on the Debentures having a principal amount equal to the aggregate liquidation
amount of the Capital Securities of such holder on or after the respective due
date specified in the Debentures. Notwithstanding any payments made to such
Holder of Capital Securities by the Debenture Issuer in connection with a Direct
Action, the Debenture Issuer shall remain obligated to pay the principal of or
interest on the Debentures held by the Trust or the Institutional Trustee of
A-7
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the Trust, and the Debenture Issuer shall be subrogated to the rights of the
Holder of such Capital Securities with respect to payments on the Capital
Securities to the extent of any payments made by the Debenture Issuer to such
Holder in any Direct Action. Except as provided in the preceding sentences, the
Holders of Capital Securities will not be able to exercise directly any other
remedy available to the holders of the Debentures.
Except with respect to directing the time, method and place of conducting
a proceeding for a remedy, the Institutional Trustee shall not take any of the
actions described in clauses (i), (ii) or (iii) above unless the Institutional
Trustee has obtained an opinion of a nationally-recognized tax counsel
experienced in such matters to the effect that, as a result of such action, the
Trust will not fail to be classified as a grantor trust for United States
federal income tax purposes.
Any approval or direction of Holders of Capital Securities may be given at
a separate meeting of Holders of Capital Securities convened for such purpose,
at a meeting of all of the Holders of Securities in the Trust or pursuant to
written consent. The Regular Trustees will cause a notice of any meeting at
which Holders of Capital Securities are entitled to vote, or of any matter upon
which action by written consent of such Holders is to be taken, to be mailed to
each Holder of record of Capital Securities. Each such notice will include a
statement setting forth (i) the date of such meeting or the date by which such
action is to be taken, (ii) a description of any resolution proposed for
adoption at such meeting on which such Holders are entitled to vote or of such
matter upon which written consent is sought and (iii) instructions for the
delivery of proxies or consents.
No vote or consent of the Holders of the Capital Securities will be
required for the Trust to redeem and cancel Capital Securities or to distribute
the Debentures in accordance with the Declaration and the terms of the
Securities.
Notwithstanding that Holders of Capital Securities are entitled to vote or
consent under any of the circumstances described above, any of the Capital
Securities that are owned by the Sponsor or any Affiliate of the Sponsor shall
not be entitled to vote or consent and shall, for purposes of such vote or
consent, be treated as if they were not outstanding.
Holders of the Capital Securities will have no rights to appoint or remove
the Trustees, who may be appointed, removed or replaced solely by the Sponsor,
as Holder of all of the Common Securities.
6. Voting Rights - Common Securities.
(a)Except as provided under Sections 6(b), (c) and 7 and as otherwise
required by law and the Declaration, the Holders of the Common Securities will
have no voting rights.
(b)The Holders of the Common Securities are entitled, in accordance with
Article V of the Declaration, to vote to appoint, remove or replace any Trustee
or to increase or decrease the number of Trustees.
(c)Subject to Section 2.6 of the Declaration and only after the Event of
Default with respect to the Capital Securities has been cured, waived, or
otherwise eliminated and subject to the requirements of the second to last
sentence of this paragraph, the Holders of a Majority in liquidation amount of
the Common Securities, voting separately as a class, may direct the time,
method, and place of conducting any proceeding for any remedy available to the
Institutional Trustee, or exercising any trust or power conferred upon the
Institutional Trustee under the Declaration, including (i) directing the time,
method, place of conducting any proceeding for any remedy available to the Debt
Trustee, or exercising any trust or power conferred on the Debt Trustee with
respect to the Debentures, (ii) waive any past default and its consequences that
is waivable under Section 5.07 of the Indenture, or (iii) exercise any right to
rescind or annul a declaration that the principal of all the Debentures shall be
due and payable; provided that, where a consent or action under the Indenture
would require the consent or act of a Super Majority of holders of Debentures
affected thereby the Institutional Trustee may only give such consent or take
such action at the written direction of the Holders of at least the proportion
in liquidation amount of the Common Securities which the relevant Super Majority
represents of the aggregate principal amount of the Debentures outstanding; and
provided further,
A-8
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that where a consent or action under the Indenture would require the consent or
action of each holder of Debentures, each holder of Capital Securities must
direct the Institutional Trustee to give such consent or take such action.
Pursuant to this Section 6(c), the Institutional Trustee shall not revoke any
action previously authorized or approved by a vote of the Holders of the Capital
Securities. Except with respect to directing the time, method and place of
conducting a proceeding for a remedy, the Institutional Trustee shall not take
any action in accordance with the directions of the Holders of the Common
Securities under this paragraph unless the Institutional Trustee has obtained an
opinion of a nationally-recognized tax counsel experienced in such matters to
the effect that, as a result of such action, the Trust will not fail to be
classified as a grantor trust for United States federal income tax purposes. If
the Institutional Trustee fails to enforce its rights under the Declaration, any
Holder of Common Securities may institute a legal proceeding directly against
any Person to enforce the Institutional Trustee's rights under the Declaration,
without first instituting a legal proceeding against the Institutional Trustee
or any other Person.
Any approval or direction of Holders of Common Securities may be given at
a separate meeting of Holders of Common Securities convened for such purpose, at
a meeting of all of the Holders of Securities in the Trust or pursuant to
written consent. The Regular Trustees will cause a notice of any meeting at
which Holders of Common Securities are entitled to vote, or of any matter upon
which action by written consent of such Holders is to be taken, to be mailed to
each Holder of record of Common Securities. Each such notice will include a
statement setting forth (i) the date of such meeting or the date by which such
action is to be taken, (ii) a description of any resolution proposed for
adoption at such meeting on which such Holders are entitled to vote or of such
matter upon which written consent is sought and (iii) instructions for the
delivery of proxies or consents.
No vote or consent of the Holders of the Common Securities will be
required for the Trust to redeem and cancel Common Securities or to distribute
the Debentures in accordance with the Declaration and the terms of the
Securities.
7. Amendments to Declaration and Indenture.
(a) In addition to any requirements under Section 12.1 of the Declaration,
if any proposed amendment to the Declaration provides for, or the Regular
Trustees otherwise propose to effect, (i) any action that would adversely affect
the powers, preferences or special rights of the Securities, whether by way of
amendment to the Declaration or otherwise, or (ii) the dissolution, winding-up
or termination of the Trust, other than as described in Section 8.1 of the
Declaration, then the Holders of outstanding Securities voting together as a
single class will be entitled to vote on such amendment or proposal (but not on
any other amendment or proposal) and such amendment or proposal shall not be
effective except with the approval of the Holders of at least a Majority in
liquidation amount of the Securities affected thereby, provided, that, if any
amendment or proposal referred to in clause (i) above would adversely affect
only the Capital Securities or only the Common Securities, then only the
affected class will be entitled to vote on such amendment or proposal and such
amendment or proposal shall not be effective except with the approval of a
Majority in liquidation amount of such class of Securities.
(b) In the event the consent of the Institutional Trustee, as the holder
of the Debentures, is required under the Indenture with respect to any
amendment, modification or termination on the Indenture, the Institutional
Trustee shall request the written direction of the Holders of the Securities
with respect to such amendment, modification or termination and shall vote with
respect to such amendment, modification or termination as directed by a Majority
in liquidation amount of the Securities voting together as a single class;
provided, however, that where a consent under the Indenture would require the
consent of a Super Majority, the Institutional Trustee may only give such
consent at the direction of the Holders of at least the proportion in
liquidation amount of the Securities which the relevant Super Majority
represents of the aggregate principal amount of the Debentures outstanding; and
provided, further, that where a consent or action under the Indenture is only
effective against each holder of Debentures who has consented thereto, such
consent or action will only be effective against a holder of Capital Securities
who directs the Institutional Trustee to give such consent or take such action;
and provided, further, that the Institutional Trustee shall not take any action
in accordance with the directions of the Holders of the Securities under this
Section 7(b) unless the Institutional Trustee has obtained an opinion of a
nationally recognized tax counsel
A-9
<PAGE>
experienced in such matters to the effect that for the purposes of United States
federal income tax the Trust will not be classified as other than a grantor
trust on account of such action.
(c) Notwithstanding the foregoing, no amendment or modification may be
made to the Declaration if such amendment or modification would (i) cause the
Trust to be classified for purposes of United States federal income taxation as
other than a grantor trust, (ii) reduce or otherwise adversely affect the powers
of the Institutional Trustee or (iii) cause the Trust to be deemed an
"investment company" which is required to be registered under the Investment
Company Act.
8. Pro Rata.
A reference in these terms of the Securities to any payment, distribution
or treatment as being "Pro Rata" shall mean pro rata to each Holder according to
the aggregate stated liquidation amount of the Securities held by the relevant
Holder in relation to the aggregate stated liquidation amount of all Securities
outstanding unless, in relation to a payment, an Event of Default under the
Declaration has occurred and is continuing, in which case any funds available to
make such payment shall be paid first to each Holder of the Capital Securities
pro rata according to the aggregate stated liquidation amount of Capital
Securities held by the relevant Holder relative to the aggregate stated
liquidation amount of all Capital Securities outstanding, and only after
satisfaction of all amounts owed to the Holders of the Capital Securities, to
each Holder of Common Securities pro rata according to the aggregate stated
liquidation amount of Common Securities held by the relevant Holder relative to
the aggregate stated liquidation amount of all Common Securities outstanding.
9. Ranking.
The Capital Securities rank pari passu, and payment thereon shall be made
Pro Rata, with the Common Securities except that, where an Event of Default
occurs and is continuing, the rights of Holders of the Common Securities to
receive payment of periodic Distributions and payments upon liquidation,
redemption and otherwise will be subordinated to the rights of the Holders of
the Capital Securities.
10. Listing.
The Capital Securities shall not be listed on the NYSE or any other stock
exchange.
11. Acceptance of Securities Guarantee and Indenture.
Each Holder of Capital Securities and Common Securities, by the acceptance
thereof, agrees to the provisions of the Capital Securities Guarantee and the
Common Securities Guarantee, respectively, including the subordination
provisions therein, and to the provisions of the Indenture.
12. No Preemptive Rights.
The Holders shall have no preemptive rights to subscribe for any
additional securities.
13. Miscellaneous.
These terms constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration, the Capital Securities
Guarantee or the Common Securities Guarantee (as may be appropriate), and the
Indenture to a Holder without charge on written request to the Sponsor at its
principal place of business.
A-10
<PAGE>
EXHIBIT A-1
FORM OF CAPITAL SECURITY CERTIFICATE
Certificate Number [ ] Number of Capital Securities [ ]
CUSIP NO. [ ]
Certificate Evidencing Capital Securities
of
FLEET CAPITAL TRUST II
7.92% Capital Securities
(liquidation amount $1,000 per Capital Security)
FLEET CAPITAL TRUST II, a statutory business trust formed under the laws
of the State of Delaware (the "Trust"), hereby certifies that ______________
(the "Holder") is the registered owner of capital securities of the Trust
representing undivided beneficial interests in the assets of the Trust
designated the 7.92% Capital Securities (liquidation amount $1,000 per Capital
Security) (the "Capital Securities"). The Capital Securities are transferable on
the books and records of the Trust, in person or by a duly authorized attorney,
upon surrender of this certificate duly endorsed and in proper form for
transfer. The designation, rights, privileges, restrictions, preferences and
other terms and provisions of the Capital Securities represented hereby are
issued and shall in all respects be subject to the provisions of the Amended and
Restated Declaration of Trust of the Trust dated as of December 11, 1996, as the
same may be amended from time to time (the "Declaration"), including the
designation of the terms of the Capital Securities as set forth in Annex I to
the Declaration. Capitalized terms used herein but not defined shall have the
meaning given them in the Declaration. The Holder is entitled to the benefits of
the Capital Securities Guarantee to the extent provided therein. The Sponsor
will provide a copy of the Declaration, the Capital Securities Guarantee and the
Indenture to a Holder without charge upon written request to the Trust at its
principal place of business.
Upon receipt of this certificate, the Holder is bound by the Declaration
and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Debentures as indebtedness and the Capital Securities
as evidence of indirect beneficial ownership in the Debentures.
Unless the Institutional Trustee's Certificate of Authentication hereon
has been properly executed, these Capital Securities shall not be entitled to
any benefit under the Declaration or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Trust has executed this certificate this ___ day
of ____________, 1996.
FLEET CAPITAL TRUST II
By:_____________________________________
Name:
Title: Regular Trustee
A1-1
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Capital Securities referred to in the within-mentioned
Declaration.
Dated _____________, ________
The First National Bank of Chicago,
as Institutional Trustee
By:______________________________________
Authorized Signatory
A1-2
<PAGE>
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Capital Security will be fixed at a rate per
annum of 7.92% (the "Coupon Rate") of the stated liquidation amount of $1,000
per Capital Security, such rate being the rate of interest payable on the
Debentures to be held by the Institutional Trustee. Distributions in arrears for
more than one semi-annual period will bear interest thereon compounded
semi-annually at the Coupon Rate ("Compound Interest") (to the extent permitted
by applicable law). The term "Distributions" as used herein includes such cash
distributions and any such interest (including Additional Interest and Compound
Interest) payable unless otherwise stated. A Distribution will be made by the
Institutional Trustee only to the extent that payments are made in respect of
the Debentures held by the Institutional Trustee and to the extent the
Institutional Trustee has funds available in the Institutional Trustee Account.
The amount of Distributions payable for any period will be computed for any full
semi-annual Distribution period on the basis of a 360-day year of twelve 30-day
months, and for any period shorter than a full semi-annual Distribution period
for which Distributions are computed, Distributions will be computed on the
basis of the actual number of days elapsed.
Except as otherwise described below, Distributions on the Capital
Securities will be cumulative, will accrue from the date of original issuance
and will be payable quarterly in arrears on June 15 and December 15 of each
year, commencing on June 15, 1997, to Holders of record on the relevant record
dates, which will be the first day of the month in which the relevant
distribution date falls, which payment dates shall correspond to the interest
payment dates on the Debentures. The Debenture Issuer has the right under the
Indenture to defer payments of interest by extending the interest payment period
from time to time on the Debentures for a period not exceeding 10 consecutive
semi-annual periods (each an "Extension Period"), provided that no Extension
Period shall last beyond the date of the maturity of the Debentures and, as a
consequence of such deferral, semi-annual Distributions will also be deferred.
Despite such deferral, semi-annual Distributions will continue to accrue with
interest thereon (to the extent permitted by applicable law) at the Coupon Rate
compounded semi-annually during any such Extension Period. Prior to the
termination of any such Extension Period, the Debenture Issuer may further
extend such Extension Period; provided that such Extension Period together with
all such previous and further extensions thereof may not exceed 10 consecutive
semi-annual periods or extend beyond the maturity of the Debentures. Payments of
accrued Distributions will be payable to Holders as they appear on the books and
records of the Trust on the first record date after the end of the Extension
Period. Upon the termination of any Extension Period and the payment of all
amounts then due, the Debenture Issuer may commence a new Extension Period,
subject to the above requirements.
The Capital Securities shall be redeemable as provided in the Declaration.
A1-3
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Capital
Security Certificate to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints _________________________________________________
to transfer this Capital Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date:___________________________________
Signature:______________________________
(Sign exactly as your name appears on
the other side of this Capital Security
Certificate)
(Signature(s) must be guaranteed by an
"eligible guarantor institution" meeting
the requirements of the Trustee, which
requirements include membership or
participation in STAMP or such other
"signature guaranty program" as may be
determined by the Trustee in addition to
or in substitution for STAMP, all in
accordance with the Securities Exchange
Act of 1934, as amended.)
A1-4
<PAGE>
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
Certificate Number [ ] Number of Common Securities [ ]
Certificate Evidencing Common Securities
of
FLEET CAPITAL TRUST II
7.92% Common Securities
(liquidation amount $1,000 per Common Security)
FLEET CAPITAL TRUST II, a statutory business trust formed under the laws
of the State of Delaware (the "Trust"), hereby certifies that _________________
(the "Holder") is the registered owner of common securities of the Trust
representing undivided beneficial interests in the assets of the Trust
designated the 7.92% Common Securities (liquidation amount $1,000 per Common
Security) (the "Common Securities"). The Common Securities are transferable on
the books and records of the Trust, in person or by a duly authorized attorney,
upon surrender of this certificate duly endorsed and in proper form for
transfer. The designation, rights, privileges, restrictions, preferences and
other terms and provisions of the Common Securities represented hereby are
issued and shall in all respects be subject to the provisions of the Amended and
Restated Declaration of Trust of the Trust dated as of December 11, 1996, as the
same may be amended from time to time (the "Declaration"), including the
designation of the terms of the Common Securities as set forth in Annex I to the
Declaration. Capitalized terms used herein but not defined shall have the
meaning given them in the Declaration. The Holder is entitled to the benefits of
the Common Securities Guarantee to the extent provided therein. The Sponsor will
provide a copy of the Declaration, the Common Securities Guarantee and the
Indenture to a Holder without charge upon written request to the Sponsor at its
principal place of business.
Upon receipt of this certificate, the Sponsor is bound by the Declaration
and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Debentures as indebtedness and the Common Securities as
evidence of indirect beneficial ownership in the Debentures.
Unless the Institutional Trustee's Certificate of Authentication hereon
has been properly executed, these Common Securities shall not be entitled to any
benefit under the Declaration or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Trust has executed this certificate this ___ day
of ____________, 1996.
FLEET CAPITAL TRUST II
By:_____________________________________
Name:
Title: Regular Trustee
By:_____________________________________
Name:
Title: Regular Trustee
A2-1
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Common Securities referred to in the within-mentioned
Declaration.
Dated _____________, ________
The First National Bank of Chicago,
as Institutional Trustee
By:_____________________________________
Authorized Signatory
A2-2
<PAGE>
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Common Security will be fixed at a rate per
annum of 7.92% (the "Coupon Rate") of the stated liquidation amount of $1,000
per Common Security, such rate being the rate of interest payable on the
Debentures to be held by the Institutional Trustee. Distributions in arrears for
more than one semi-annual period will bear interest thereon compounded
semi-annually at the Coupon Rate ("Compound Interest") (to the extent permitted
by applicable law). The term "Distributions" as used herein includes such cash
distributions and any such interest (including Additional Interest and Compound
Interest) payable unless otherwise stated. A Distribution will be made by the
Institutional Trustee only to the extent that payments are made in respect of
the Debentures held by the Institutional Trustee and to the extent the
Institutional Trustee has funds available in the Institutional Trustee Account.
The amount of Distributions payable for any period will be computed for any full
semi-annual Distribution period on the basis of a 360-day year of twelve 30-day
months, and for any period shorter than a full semi-annual Distribution period
for which Distributions are computed, Distributions will be computed on the
basis of the actual number of days elapsed.
Except as otherwise described below, distributions on the Common
Securities will be cumulative, will accrue from the date of original issuance
and will be payable quarterly in arrears, on June 15 and December 15 of each
year, commencing on June 15, 1997, to Holders of record on the relevant record
dates, which will be the first day of the month in which the relevant
distribution date falls, which payment dates shall correspond to the interest
payment dates on the Debentures. The Debenture Issuer has the right under the
Indenture to defer payments of interest by extending the interest payment period
from time to time on the Debentures for a period not exceeding 10 consecutive
semi-annual periods (each an "Extension Period"), provided that no Extension
Period shall last beyond the date of the maturity of the Debentures and, as a
consequence of such deferral, Distributions will also be deferred. Despite such
deferral, semi-annual Distributions will continue to accrue with interest
thereon (to the extent permitted by applicable law) at the Coupon Rate
compounded semi-annually during any such Extension Period. Prior to the
termination of any such Extension Period, the Debenture Issuer may further
extend such Extension Period; provided that such Extension Period together with
all such previous and further extensions thereof may not exceed 10 consecutive
semi-annual periods or extend beyond the maturity date of the Debentures.
Payments of accrued Distributions will be payable to Holders as they appear on
the books and records of the Trust on the first record date after the end of the
Extension Period. Upon the termination of any Extension Period and the payment
of all amounts then due, the Debenture Issuer may commence a new Extension
Period, subject to the above requirements.
The Common Securities shall be redeemable as provided in the Declaration.
A2-3
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common
Security Certificate to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints ____________________________________ this Common
Security Certificate on the books of the Trust. The agent may substitute another
to act for him or her.
Date:___________________________________
Signature:______________________________
(Sign exactly as your name appears on
the other side of this Common Security
Certificate)
(Signature(s) must be guaranteed by an
"eligible guarantor institution" meeting
the requirements of the Trustee, which
requirements include membership or
participation in STAMP or such other
"signature guaranty program" as may be
determined by the Trustee in addition to
or in substitution for STAMP, all in
accordance with the Securities Exchange
Act of 1934, as amended.)
A2-4
<PAGE>
EXHIBIT B
SPECIMEN OF DEBENTURE
B-1
FLEET FINANCIAL GROUP, INC.
INDENTURE
DATED AS OF DECEMBER 11, 1996
THE FIRST NATIONAL BANK OF CHICAGO
AS TRUSTEE
JUNIOR SUBORDINATED DEBENTURES
<PAGE>
TIE-SHEET
of provisions of the Trust Indenture Act with Indenture
dated as of December 11, 1996 between
Fleet Financial Group, Inc. and
The First National Bank of Chicago, Trustee:
ACT SECTION INDENTURE SECTION
310(a)(1) 6.09
310(a)(2) 6.09
310(a)(3) N/A
310(a)(4) N/A
310(b) 6.08; 6.10(a), (b) and (d)
310(c) N/A
311(a) and (b) 6.13
311(c) N/A
312(a) 4.01; 4.02(a)
312(b) and (c) 4.02(b) and (c)
313(a) 4.04(a)
313(b)(1) N/A
313(b)(2) 4.04(b)
313(c) 4.04(c)
313(d) 4.04(d)
314(a) 4.03
314(b) N/A
314(c)(1) and (2) 13.06
314(c)(3) N/A
314(d) N/A
314(e) 13.06
314(f) N/A
315(a), (c) and (d) 6.01
315(b) 5.08
315(e) 5.09
316(a)(1) 5.01; 5.07
316(a)(2) Omitted
316(a) last sentence 7.04
316(b) 5.04
317(a) 5.02
317(b) 3.04(a)
318(a) 13.08
THIS TIE-SHEET IS NOT PART OF THE INDENTURE AS EXECUTED.
<PAGE>
TABLE OF CONTENTS*
Page
----
Parties 1
Recitals 1
Authorization of Indenture 1
Compliance with Legal Requirements 1
Purpose of and Consideration for Indenture 1
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions 1
Additional Provisions 1
Affiliate 1
Authenticating Agent 1
Bankruptcy Law 2
Board of Directors 2
Board Resolution 2
Business Day 2
Capital Securities 2
Capital Securities Guarantee 2
Certificate 2
Certificate of Authentication 2
Commission 2
Common Securities 2
Common Securities Guarantee 2
Company 2
Custodian 2
Declaration 2
Default 2
Defaulted Interest 3
Defeasance Agent 3
Depository Institution 3
Discharge 3
Event of Default 3
Fleet Capital Trust 3
Fleet Common Stock 3
Global Security 3
Indenture 3
Institutional Trustee 3
Interest 3
Interest Payment Date 3
Mortgage 3
Officers' Certificate 4
Opinion of Counsel 4
Other Financial Obligations 4
Outstanding 4
* THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE A PART
OF THE INDENTURE.
<PAGE>
Person 4
Predecessor Security 4
Principal office of the Trustee 4
Responsible Officer 4
Security 5
Securities 5
Securityholder 5
holder of Securities 5
Senior Indebtedness 5
Subsidiary 5
Trustee 5
Trust Indenture Act 5
Trust Securities 5
U.S. Government Obligations 5
ARTICLE II
SECURITIES
SECTION 2.01. Forms Generally 6
SECTION 2.02. Form of Trustee's Certificate of Authentication 6
SECTION 2.03. Amount Unlimited; Issuable in Series 6
SECTION 2.04. Authentication and Dating 8
SECTION 2.05. Date and Denomination of Securities 8
SECTION 2.06. Execution of Securities 10
SECTION 2.07. Exchange and Registration of Transfer of Securities 10
SECTION 2.08. Mutilated, Destroyed, Lost or Stolen Securities 11
SECTION 2.09. Temporary Securities 11
SECTION 2.10. Cancellation of Securities Paid, etc. 12
SECTION 2.11. Global Securities 12
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01. Payment of Principal, Premium and Interest 13
SECTION 3.02. Offices for Notices and Payments, etc. 13
SECTION 3.03. Appointments to Fill Vacancies in Trustee's Office 13
SECTION 3.04. Provision as to Paying Agent 13
SECTION 3.05. Certificate to Trustee 14
SECTION 3.06. Compliance with Consolidation Provisions 14
SECTION 3.07. Limitation on Dividends; Transactions with Affiliates 14
SECTION 3.08. Covenants as to Fleet Capital Trusts 14
SECTION 3.09. Notice of Default 15
ARTICLE IV
SECURITYHOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
SECTION 4.01. Securityholders' Lists 15
SECTION 4.02. Preservation and Disclosure of Lists 15
SECTION 4.03. Reports by Company 16
<PAGE>
SECTION 4.04. Reports by the Trustee 17
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.01. Events of Default 17
SECTION 5.02. Payment of Securities on Default; Suit Therefor 19
SECTION 5.03. Application of Moneys Collected by Trustee 20
SECTION 5.04. Proceedings by Securityholders 20
SECTION 5.05. Proceedings by Trustee 21
SECTION 5.06. Remedies Cumulative and Continuing 21
SECTION 5.07. Direction of Proceedings and Waiver of Defaults by
Majority of Securityholders 21
SECTION 5.08. Notice of Defaults 22
SECTION 5.09. Undertaking to Pay Costs 22
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of Trustee 23
SECTION 6.02. Reliance on Documents, Opinions, etc. 23
SECTION 6.03. No Responsibility for Recitals, etc. 24
SECTION 6.04. Trustee, Authenticating Agent, Paying Agents, Transfer
Agents or Registrar May Own Securities 24
SECTION 6.05. Moneys to be Held in Trust 25
SECTION 6.06. Compensation and Expenses of Trustee 25
SECTION 6.07. Officers' Certificate as Evidence 25
SECTION 6.08. Conflicting Interest of Trustee 25
SECTION 6.09. Eligibility of Trustee 25
SECTION 6.10. Resignation or Removal of Trustee 26
SECTION 6.11. Acceptance by Successor Trustee 27
SECTION 6.12. Succession by Merger, etc. 27
SECTION 6.13. Limitation on Rights of Trustee as a Creditor 28
SECTION 6.14. Authenticating Agents 28
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Action by Securityholders 29
SECTION 7.02. Proof of Execution by Securityholders 29
SECTION 7.03. Who Are Deemed Absolute Owners 29
SECTION 7.04. Securities Owned by Company Deemed Not Outstanding 30
SECTION 7.05. Revocation of Consents; Future Holders Bound 30
<PAGE>
ARTICLE VIII
SECURITYHOLDERS' MEETINGS
SECTION 8.01. Purposes of Meetings 30
SECTION 8.02. Call of Meetings by Trustee 30
SECTION 8.03. Call of Meetings by Company or Securityholders 31
SECTION 8.04. Qualifications for Voting 31
SECTION 8.05. Regulations 31
SECTION 8.06. Voting 31
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures without Consent of
Securityholders 32
SECTION 9.02. Supplemental Indentures with Consent of
Securityholders 33
SECTION 9.03. Compliance with Trust Indenture Act; Effect
of Supplemental Indentures 34
SECTION 9.04. Notation on Securities 34
SECTION 9.05. Evidence of Compliance of Supplemental
Indenture to be Furnished Trustee 34
ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 10.01. Company May Consolidate, etc., on Certain Terms 34
SECTION 10.02. Successor Corporation to be Substituted for Company 35
SECTION 10.03. Opinion of Counsel to be Given Trustee 35
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01. Discharge of Indenture 35
SECTION 11.02. Deposited Moneys and U.S. Government Obligations to be
Held in Trust by Trustee 36
SECTION 11.03. Paying Agent to Repay Moneys Held 36
SECTION 11.04. Return of Unclaimed Moneys 36
SECTION 11.05. Defeasance Upon Deposit of Moneys or U.S. Government
Obligations 36
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. Indenture and Securities Solely Corporate Obligations 37
<PAGE>
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. Successors 38
SECTION 13.02. Official Acts by Successor Corporation 38
SECTION 13.03. Surrender of Company Powers 38
SECTION 13.04. Addreses for Notices, etc. 38
SECTION 13.05. Governing Law 38
SECTION 13.06. Evidence of Compliance with Conditions Precedent 38
SECTION 13.07. Legal Holidays 39
SECTION 13.08. Trust Indenture Act to Control 39
SECTION 13.09. Table of Contents, Headings, etc. 39
SECTION 13.10. Execution in Counterparts 39
SECTION 13.11. Separability 39
SECTION 13.12. Assignment 39
SECTION 13.13. Acknowledgment of Rights 40
ARTICLE XIV
REDEMPTION OF SECURITIES-- MANDATORY AND OPTIONAL SINKING FUND
SECTION 14.01. Applicability of Article 40
SECTION 14.02. Notice of Redemption; Selection of Securities 40
SECTION 14.03. Payment of Securities Called for Redemption 41
SECTION 14.04. Mandatory and Optional Sinking Fund 41
ARTICLE XV
SUBORDINATION OF SECURITIES
SECTION 15.01. Agreement to Subordinate 42
SECTION 15.02. Default on Senior Indebtedness 43
SECTION 15.03. Liquidation; Dissolution; Bankruptcy 43
SECTION 15.04. Subrogation 44
SECTION 15.05. Trustee to Effectuate Subordination 45
SECTION 15.06. Notice by the Company 45
SECTION 15.07. Rights of the Trustee; Holders of Senior Indebtedness
and Other Financial Obligations 46
SECTION 15.08. Subordination May Not Be Impaired 46
Testimonium 47
Signatures 47
Acknowledgments 48
<PAGE>
THIS INDENTURE, dated as of December 11, 1996, between Fleet Financial
Group, Inc., a Rhode Island corporation (hereinafter sometimes called the
"Company"), and The First National Bank of Chicago, a national banking
association, as trustee (hereinafter sometimes called the "Trustee"),
W I T N E S S E T H :
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the issuance from time to time of its junior subordinated unsecured
debentures, notes or other evidence of indebtedness to be issued in one or more
series (the "Securities") up to such principal amount or amounts as may from
time to time be authorized in accordance with the terms of this Indenture and,
to provide the terms and conditions upon which the Securities are to be
authenticated, issued and delivered, the Company has duly authorized the
execution of this Indenture; and
WHEREAS, all acts and things necessary to make this Indenture a valid
agreement according to its terms, have been done and performed;
NOW, THEREFORE, This Indenture Witnesseth:
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 or of a series thereof, 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 and of any indenture supplemental hereto 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, as amended (the "Trust
Indenture Act"), or which are by reference therein defined in the Securities Act
of 1933, as amended (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. 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.
"Additional Provisions" shall have the meaning given to such term in
Section 15.01.
"Affiliate" means, with respect to a specified Person, (a) any Person
directly or indirectly owning, controlling or holding with power to vote, 10% or
more of the outstanding voting securities or other ownership interests of the
specified Person, (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.
"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.
<PAGE>
"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 the Board of Directors or the Executive
Committee or any other duly authorized committee thereof of the Company.
"Board Resolution" shall mean a copy of a resolution certified by the
Secretary or an Assistant Secretary 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.
"Business Day" shall mean, with respect to any series of Securities, any
day other than a day on which Federal or State banking institutions in the
Borough of Manhattan, The City of New York or Chicago, Illinois are authorized
or obligated by law, executive order or regulation to close.
"Capital Securities" shall mean undivided beneficial interests in the
assets of a Fleet Capital Trust which rank pari passu with Common Securities
issued by such Fleet Capital Trust; provided, however, that upon the occurrence
of an Event of Default, the rights of holders of Common Securities to payment in
respect of distributions and payments upon liquidation, redemption and otherwise
are subordinated to the rights of holders of Capital Securities.
"Capital Securities Guarantee" shall mean any guarantee that the Company
may enter into with The First National Bank of Chicago or other Persons that
operate directly or indirectly for the benefit of holders of Capital Securities
of such Fleet Capital Trust.
"Certificate" shall mean a certificate signed by the principal executive
officer, the principal financial officer or the principal accounting officer of
the Company.
"Certificate of Authentication" shall mean the certificate issued by the
Trustee or the Authenticating Agent as to the form of Security issued under the
Indenture.
"Commission" shall mean the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Securities" shall mean undivided beneficial interests in the
assets of a Fleet Capital Trust which rank pari passu with Capital Securities
issued by such Fleet Capital Trust; provided, however, that upon the occurrence
of an Event of Default, the rights of holders of Common Securities to payment in
respect of distributions and payments upon liquidation, redemption and otherwise
are subordinated to the rights of holders of Capital Securities.
"Common Securities Guarantee" shall mean any guarantee that the Company
may enter into with any Person or Persons that operate directly or indirectly
for the benefit of holders of Common Securities of such Fleet Capital Trust.
"Company" shall mean Fleet Financial Group, Inc., a Rhode Island
corporation, and, subject to the provisions of Article Ten, shall include its
successors and assigns.
"Custodian" shall mean any receiver, trustee, assignee, liquidator, or
similar official under any Bankruptcy Law.
"Declaration", with respect to a Fleet Capital Trust, shall mean the
Amended and Restated Declaration of Trust of such Fleet Capital Trust.
"Default" means any event, act or condition that with notice or lapse of
time, or both, would constitute an Event of Default.
2
<PAGE>
"Defaulted Interest" shall have the meaning given to such term in Section
2.05.
"Defeasance Agent" shall have the meaning given to such term in Section
11.05(c).
"Depository Institution" shall mean, with respect to Securities of any
series, for which the Company shall determine that such Securities will be
issued as a Global Security, The Depository Trust Company, New York, New York,
another clearing agency, or any successor registered as a clearing agency under
the Securities and Exchange Act of 1934, as amended (the "Exchange Act"), or
other applicable statute or regulation, which, in each case, shall be designated
by the Company pursuant to either Section 2.03 or 2.11.
"Discharged" shall have the meaning given to such term in Section
11.05(b).
"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.
"Fleet Capital Trust" shall mean each of Fleet Capital Trust I, Fleet
Capital Trust II, Fleet Capital Trust III, Fleet Capital Trust IV and Fleet
Capital Trust V, each a Delaware business trust, or any other similar trust
created for the purpose of issuing securities in connection with the issuance of
Securities under this Indenture.
"Fleet Common Stock" shall mean the Common Stock, par value $0.01 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.
Subject to the anti-dilution provisions of any convertible Security, however,
shares of Fleet Common Stock issuable on conversion of a Security shall include
only shares of the class designated as Common Stock of the Company at the date
of the supplemental indenture, Board Resolution or other instrument authorizing
such Security or shares of any class or classes resulting from any
reclassification or reclassifications thereof and which have no preference in
respect of the payment of dividends or the distribution of assets upon any
voluntary or involuntary liquidation, dissolution or winding-up of the Company
and which are not subject to redemption by the Company, provided that if at any
time there shall be more than one such resulting class, the shares of each such
class then so issuable shall be substantially in the proportion which the total
number of shares of such class resulting from all such reclassifications bears
to the total number of shares of such classes resulting from all such
reclassifications.
"Global Security" means, with respect to any series of Securities, a
Security executed by the Company and delivered by the Trustee to the Depository
Institution or pursuant to the Depository Institution's instruction, all in
accordance with the Indenture, which shall be registered in the name of the
Depository Institution or its nominee.
"Indenture" shall mean this instrument as originally executed or, if
amended or supplemented as herein provided, as so amended or supplemented, or
both, and shall include the form and terms of particular series of Securities
established as contemplated hereunder.
"Institutional Trustee" has the meaning set forth in the Declaration of
the applicable Fleet Capital Trust.
"Interest" shall mean, when used with respect to non-interest bearing
Securities, interest payable at maturity.
"Interest Payment Date", when used with respect to any installment of
interest on a Security of a particular series, shall mean the date specified in
such Security or in a Board Resolution or in an indenture supplemental hereto
with respect to such series as the fixed date on which an installment of
interest with respect to Securities of that series is due and payable.
"Mortgage" shall mean and include any mortgage, pledge, lien, security
interest, conditional sale or other title retention agreement or other similar
encumbrance.
3
<PAGE>
"Officers' Certificate" shall mean a certificate signed by the Chairman of
the Board, the President or any Vice President, and by the Treasurer, an
Assistant Treasurer, the Controller, an Assistant Controller, the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee. Each such
certificate shall include the statements provided for in Section 13.06 if and to
the extent provided by the provisions of such Section.
"Opinion of Counsel" shall mean an opinion in writing signed by legal
counsel experienced in the matters as to which such opinion is being delivered,
who may be an employee of or counsel to the Company, or may be other counsel
satisfactory to the Trustee. Each such opinion shall include the statements
provided for in Section 13.06 if and to the extent required by the provisions of
such Section.
"Other Financial Obligations" means all obligations of the Company to make
payment pursuant to the terms of financial instruments, such as (i) securities
contracts and foreign currency exchange contracts, (ii) derivative instruments,
such as swap agreements (including interest rate and foreign exchange rate swap
agreements), cap agreements, floor agreements, collar agreements, interest rate
agreements, foreign exchange rate agreements, options, commodity futures
contracts, commodity option contracts and (iii) in the case of both (i) and (ii)
above, similar financial instruments, other than (A) obligations on account of
Senior Indebtedness and (B) obligations on account of indebtedness for money
borrowed ranking pari passu with or subordinate to the Securities.
The term "outstanding" (except as otherwise provided in Section 7.01),
when used with reference to Securities, shall, subject to the provisions of
Section 7.04, mean, as of any particular time, all Securities authenticated and
delivered by the Trustee or the Authenticating Agent under this Indenture,
except
(a) Securities theretofore cancelled by the Trustee or the
Authenticating Agent or delivered to the Trustee for
cancellation;
(b) Securities, or portions thereof, for the payment or redemption
of which moneys in the necessary amount shall have been
deposited in trust with the Trustee or with any paying agent
(other than the Company) or shall have been set aside and
segregated in trust by the Company (if the Company shall act
as its own paying agent); provided that, if such Securities,
or portions thereof, are to be redeemed prior to maturity
thereof, notice of such redemption shall have been given as in
Article Fourteen 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, partnership, joint
venture, association, joint-stock 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.
"Responsible Officer" means, with respect to the Trustee, any officer
within the corporate trust office of the Trustee, including any vice-president,
any assistant vice-president, any assistant secretary, the treasurer, any
assistant treasurer or other officer of the corporate trust office of the
Trustee customarily performing functions similar to those performed by any of
the above designated officers and also means, with respect to a particular
4
<PAGE>
corporate trust matter, any other officer to whom such matter is referred
because of that officer's knowledge of and familiarity with the particular
subject.
"Security" or "Securities" shall have the meaning stated in the first
recital of this Indenture and more particularly means any security or
securities, as the case may be, authenticated and delivered under this
Indenture.
"Security Register" shall have the meaning given to such term in Section
2.07.
"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.
"Senior Indebtedness" means, with respect to the Company, (i) the
principal, premium, if any, and interest in respect of (A) indebtedness of the
Company for money borrowed and (B) indebtedness evidenced by securities,
debentures, bonds or other similar instruments issued by the Company, (ii) all
capital lease obligations of the Company, (iii) all obligations of the Company
issued or assumed as the deferred purchase price of property, all conditional
sale obligations of the Company and all obligations of the Company under any
title retention agreement (but excluding trade accounts payable arising in the
ordinary course of business), (iv) all obligations of the Company for the
reimbursement of any letter of credit, banker's acceptance, security purchase
facility or similar credit transaction, (v) all obligations of the type referred
to in clauses (i) through (iv) above of other persons for the payment of which
the Company is responsible or liable as obligor, guarantor or otherwise and (vi)
all obligations of the type referred to in clauses (i) through (v) above of
other persons secured by any lien on any property or asset of the Company
(whether or not such obligation is assumed by the Company), except that Senior
Indebtedness shall not include (i) any such indebtedness that is by its terms
subordinated to or ranks pari passu with the Securities and (ii) any
indebtedness between and among the Company or its affiliates, including all
other debt securities and guarantees in respect to those debt securities, issued
to any other 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
Capital securities or other securities that rank pari passu with, or junior to,
the Capital Securities.
"Subsidiary" shall mean with respect to any Person, (i) any corporation at
least a majority of whose outstanding voting stock of which is owned, directly
or indirectly, by such Person or by one or more of its Subsidiaries, or by such
Person and one or more of its Subsidiaries, (ii) any general partnership, joint
venture or similar entity, at least a majority of whose outstanding partnership
or similar interests shall at the time be owned by such Person, or by one or
more of its Subsidiaries, or by such Person and one or more of its Subsidiaries
and (iii) any limited partnership of which such Person or any of its
Subsidiaries is a general partner. For the purposes of this definition, "voting
stock" means shares, interests, participations or other equivalents in the
equity interest (however designated) in such Person having ordinary voting power
for the election of a majority of the directors (or the equivalent) of such
Person, other than shares, interests, participations or other equivalents having
such power only by reason of the occurrence of a contingency.
"Trustee" shall mean the Person identified as "Trustee" in the first
paragraph hereof, and, subject to the provisions of Article Six hereof, shall
also include its successors and assigns as Trustee hereunder. The term "Trustee"
as used with respect to a particular series of the Securities shall mean the
trustee with respect to that series.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as in
force at the date of execution of this Indenture, except as provided in Section
9.03.
"Trust Securities" shall mean Common Securities and Capital Securities of
a Fleet Capital Trust.
"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
5
<PAGE>
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 of each series shall be in substantially the form as shall
be established by or pursuant to a Board Resolution and as set forth in an
Officers' Certificate of the Company or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with any law or with
any rules made pursuant thereto or with any rules of any securities exchange or
all as may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
SECTION 2.02. Form of Trustee's Certificate of Authentication.
The Trustee's Certificate of Authentication on all Securities shall be in
substantially the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
The First National Bank of Chicago
as Trustee
By _______________________________________
Authorized Officer
SECTION 2.03. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited. The Securities may be issued in
one or more series up to the aggregate principal amount of securities of that
series from time to time authorized by or pursuant to a Board Resolution of the
Company or pursuant to one or more indentures supplemental hereto. Prior to the
initial issuance of Securities of any series, there shall be established in or
pursuant to a Board Resolution of the Company and set forth in an Officers'
Certificate of the Company or established in one or more indentures
supplemental:
(a) the title of the Securities of the series (which shall distinguish the
Securities of the series from all other Securities);
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(b) any limit upon the aggregate principal amount of the Securities of the
series which may be authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant to Sections
2.07, 2.08, 2.09, 9.04 or 14.03);
(c) the date or dates on which the principal of and premium, if any, on
the Securities of the series is payable;
(d) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method by which such interest may be determined, the
date or dates from which such interest shall accrue, the Interest Payment Dates
on which such interest shall be payable or the manner of determination of such
Interest Payment Dates and the record dates for the determination of holders to
whom interest is payable on any such Interest Payment Dates;
(e) the place or places where the principal of, and premium, if any, and
any interest on Securities of the series shall be payable;
(f) the right, if any, to extend the interest payment periods and the
duration of such extension;
(g) the price or prices at which, the period or periods within which and
the terms and conditions upon which Securities of the series may be redeemed, in
whole or in part, at the option of the Company, pursuant to any sinking fund or
otherwise;
(h) the obligation, if any, of the Company to redeem, purchase or repay
Securities of the series pursuant to any sinking fund or analogous provisions or
at the option of a Securityholder thereof and the price or prices at which, and
the period or periods within which, and the terms and conditions upon which,
Securities of the series shall be redeemed, purchased or repaid, in whole or in
part, pursuant to such obligation;
(i) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be issuable;
(j) any Events of Default with respect to the Securities of a particular
series, if not set forth herein;
(k) the form of the Securities of the series including the form of the
Certificate of Authentication of such series;
(l) any trustee, authenticating or paying agents, warrant agents, transfer
agents or registrars with respect to the Securities of such series;
(m) whether the Securities of the series shall be issued in whole or in
part in the form of one or more Global Securities and, in such case, the
Depository Institution for such Global Security or Securities, and whether
beneficial owners of interests in any such Global Securities may exchange such
interests for other Securities of such series in the manner provided in Section
2.07, and the manner and the circumstances under which and the place or places
where any such exchanges may occur if other than in the manner provided in
Section 2.07, and any other terms of the series relating to the global nature of
the Global Securities of such series and the exchange, registration or transfer
thereof and the payment of any principal thereof, or interest or premium, if
any, thereon; and
(n) any other terms of the series (which terms shall not be inconsistent
with the provisions of this Indenture).
All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided in or pursuant to
such resolution of the Board of Directors or in any such indenture supplemental
hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution of the Company, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate of the Company setting forth the terms of the series.
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SECTION 2.04. Authentication and Dating.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver said Securities to or upon the written order of the
Company, signed by its Chairman of the Board of Directors, President or one of
its Vice Presidents and by its Treasurer, any Assistant Treasurer, Secretary or
any Assistant Secretary, without any further action by the Company hereunder. In
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 6.01) shall be fully protected in
relying upon:
(a) a copy of any Board Resolution or Resolutions relating thereto and, if
applicable, an appropriate record of any action taken pursuant to such
resolution, in each case certified by the Secretary or an Assistant Secretary of
the Company;
(b) an executed supplemental indenture, if any;
(c) an Officers' Certificate setting forth the form and terms of the
Securities as required pursuant to Sections 2.01 and 2.03, respectively; and
(d) an Opinion of Counsel prepared in accordance with Section 13.06 which
shall also state:
(i) that the form of such Securities has been established by or
pursuant to a resolution of the Board of Directors or by a
supplemental indenture as permitted by Section 2.01 in
conformity with the provisions of this Indenture;
(ii) that the terms of such Securities have been established by or
pursuant to a resolution of the Board of Directors or by a
supplemental indenture as permitted by Section 2.03 in
conformity with the provisions of this Indenture;
(iii) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the
Company;
(iv) that all laws and requirements in respect of the execution and
delivery by the Company of the Securities have been complied
with and that authentication and delivery of the Securities by
the Trustee will not violate the terms of the Indenture; and
(v) such other matters as the Trustee may reasonably request.
The Trustee shall have the right to decline to authenticate and deliver
any Securities under this Section if the Trustee, being advised by counsel,
determines that such action 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 vice presidents shall determine that
such action would expose the Trustee to personal liability to existing holders.
SECTION 2.05. Date and Denomination of Securities.
The Securities shall be issuable as registered Securities without coupons
and in such denominations as shall be specified as contemplated by Section 2.03.
In the absence of any such specification with respect to the Securities of any
series, the Securities of such Series shall be issuable in the denominations of
$1,000 and any multiple thereof. The Securities shall be numbered, lettered, or
otherwise distinguished in such manner or in accordance with such plans as the
officers of the Company executing the same may determine with the approval of
the Trustee as evidenced by the execution and authentication thereof.
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Every Security shall be dated the date of its authentication, shall bear
interest, if any, from such date and shall be payable on such dates, in each
case, as contemplated by Section 2.03. The interest installment on any Security
that is payable, and is punctually paid or duly provided for, on any Interest
Payment Date for Securities of that series shall be paid to the Person in whose
name said Security (or one or more Predecessor Securities) is registered at the
close of business on the regular record date for such interest installment. In
the event that any Security of a particular series or portion thereof is called
for redemption and the redemption date is subsequent to a regular record date
with respect to any Interest Payment Date and prior to such Interest Payment
Date, interest on such Security will be paid upon presentation and surrender of
such Security as provided in Section 3.01.
Any interest on any Security that is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date for any Security of the same
series (herein called "Defaulted Interest") shall forthwith cease to be payable
to the registered 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 (1) or clause (2) below:
(a) The Company may make payment of any Defaulted Interest on Securities
to the Persons in whose names such Securities (or their respective
Predecessor Securities) are registered at the close of business on a
special record date for the payment of such Defaulted Interest,
which shall be fixed in the following manner: the Company shall
notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Security and the date of the
proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall
make arrangements satisfactory to the Trustee for such deposit prior
to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a special record date for the payment of such Defaulted
Interest which shall not be more than 15 nor less than 10 days prior
to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such special record
date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the
special record date therefor to be mailed, first class postage
prepaid, to each Securityholder at his or her address as it appears
in the Security Register (as hereinafter defined), 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 on which such Securities may
be listed, and upon such notice as may be required by such exchange,
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.
Unless otherwise set forth in a Board Resolution of the Company or one or
more indentures supplemental hereto establishing the terms of any series of
Securities pursuant to Section 2.01 hereof, the term "regular record date" as
used in this Section with respect to a series of Securities with respect to any
Interest Payment Date for such series shall mean either the fifteenth day of the
month in which an Interest Payment Date established for such series pursuant to
Section 2.01 hereof shall occur, if such Interest Payment Date is the last day
of a month, or the last day of the month immediately preceding the month in
which an Interest Payment Date established for such series pursuant to Section
2.01 hereof shall occur, if such Interest Payment Date is the fifteenth day of a
month, whether or not such date is a Business Day.
Subject to the foregoing provisions of this Section, each Security of a
series delivered under this Indenture upon transfer of or in exchange for or in
lieu of any other Security of such series shall carry the rights to interest
accrued and unpaid, and to accrue, that were carried by such other Security.
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SECTION 2.06. Execution of Securities.
The Securities shall be signed in the name and on behalf of the Company by
the facsimile signature of its Chairman of the Board of Directors, President or
one of its Vice Presidents and by the facsimile signature of its Treasurer, one
of its Assistant Treasurers, Secretary or one of its Assistant Secretaries,
under its corporate seal which may be affixed thereto or printed, engraved or
otherwise reproduced thereon, by facsimile or otherwise, and which need not be
attested. Only such Securities as shall bear thereon a Certificate of
Authentication substantially in the form hereinbefore recited, executed by the
Trustee or the Authenticating Agent, shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose. Such certificate by the
Trustee or the Authenticating Agent upon any Security executed by the Company
shall be conclusive evidence that the Security so authenticated has been duly
authenticated and delivered hereunder and that the holder is entitled to the
benefits of this Indenture.
In case any officer of the Company who shall have signed any of the
Securities shall cease to be such officer before the Securities so signed shall
have been authenticated and delivered by the Trustee or the Authenticating
Agent, or disposed of by the Company, such Securities nevertheless may be
authenticated and delivered or disposed of as though the person who signed such
Securities had not ceased to be such officer of the Company; and any Security
may be signed on behalf of the Company by such persons as, at the actual date of
the execution of such Security, shall be the proper officers of the Company,
although at the date of the execution of this Indenture any such person was not
such an officer.
SECTION 2.07. Exchange and Registration of Transfer of Securities.
Subject to Section 2.03(i), Securities of any series may be exchanged for
a like aggregate principal amount of Securities of the same series of other
authorized denominations. Securities to be exchanged may be surrendered at the
principal office of the Trustee or at any office or agency to be maintained by
the Company for such purpose as provided in Section 3.02, and the Company or the
Trustee shall execute and register and the Trustee or the Authenticating Agent
shall authenticate and deliver in exchange therefor the Security or Securities
which the Securityholder making the exchange shall be entitled to receive. Upon
due presentment for registration of transfer of any Security of any series at
the principal office of the Trustee or at any office or agency of the Company
maintained for such purpose as provided in Section 3.02, the Company or the
Trustee shall execute and register and the Trustee or the Authenticating Agent
shall authenticate and deliver in the name of the transferee or transferees a
new Security or Securities of the same series for a like aggregate principal
amount. Registration or registration of transfer of any Security by the Trustee
or by any agent of the Company appointed pursuant to Section 3.02, and delivery
of such Security, shall be deemed to complete the registration or registration
of transfer of such Security.
The Company or the Trustee shall keep, at the principal office of the
Trustee, a register for each series of Securities issued hereunder (the
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, the Company or the Trustee shall register all Securities and shall
register the transfer of all Securities as in this Article Two provided. Such
register shall be in written form or in any other form capable of being
converted into written form within a reasonable time.
All Securities presented for registration of transfer or for exchange or
payment shall (if so required by the Company or the Trustee or the
Authenticating Agent) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company and
the Trustee or the Authenticating Agent duly executed by, the holder or his
attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Securities, but the Company or the Trustee may require payment of a
sum sufficient to cover any tax, fee or other governmental charge that may be
imposed in connection therewith.
The Company or the Trustee shall not be required to exchange or register a
transfer of (a) any Security for a period of 15 days next preceding the date of
selection of Securities of such series for redemption, or (b) any
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Securities of any series selected, called or being called for redemption in
whole or in part, except in the case of any Securities of any series to be
redeemed in part, the portion thereof not so to be redeemed.
SECTION 2.08. Mutilated, Destroyed, Lost or Stolen Securities.
In case any temporary or definitive Security shall become mutilated or be
destroyed, lost or stolen, the Company shall execute, and upon its request the
Trustee shall authenticate and deliver, a new Security of the same series
bearing a number not contemporaneously outstanding, in exchange and substitution
for the mutilated Security, or in lieu of and in substitution for the Security
so destroyed, lost or stolen. In every case the applicant for a substituted
Security shall furnish to the Company and the Trustee such security or indemnity
as may be required by them to save each of them harmless, and, in every case of
destruction, loss or theft, the applicant shall also furnish to the Company and
the Trustee evidence to their satisfaction of the destruction, loss or theft of
such Security and of the ownership thereof.
The Trustee may authenticate any such substituted Security and deliver the
same upon the written request or authorization of any officer of the Company.
Upon the issuance of any substituted Security, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses connected therewith.
In case any Security which has matured or is about to mature or has been called
for redemption in full shall become mutilated or be destroyed, lost or stolen,
the Company may, instead of issuing a substitute Security, pay or authorize the
payment of the same (without surrender thereof except in the case of a mutilated
Security) if the applicant for such payment shall furnish to the Company and the
Trustee such security or indemnity as may be required by them to save each of
them harmless and, in case of destruction, loss or theft, evidence satisfactory
to the Company and to the Trustee of the destruction, loss or theft of such
Security and of the ownership thereof.
Every substituted Security of any series issued pursuant to the provisions
of this Section 2.08 by virtue of the fact that any such Security is destroyed,
lost or stolen shall constitute an additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security shall be found at
any time, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of the same series duly
issued hereunder. All Securities shall be held and owned upon the express
condition that, to the extent permitted by applicable law, the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities and shall preclude any and all
other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
SECTION 2.09. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute and the Trustee shall authenticate and deliver temporary
Securities (printed or lithographed). Temporary Securities shall be issuable in
any authorized denomination, and substantially in the form of the definitive
Securities but with such omissions, insertions and variations as may be
appropriate for temporary Securities, all as may be determined by the Company.
Every such temporary Security shall be executed by the Company and be
authenticated by the Trustee upon the same conditions and in substantially the
same manner, and with the same effect, as the definitive Securities. Without
unreasonable delay the Company will execute and deliver to the Trustee or the
Authenticating Agent definitive Securities and thereupon any or all temporary
Securities of such series may be surrendered in exchange therefor, at the
principal office of the Trustee or at any office or agency maintained by the
Company for such purpose as provided in Section 3.02, and the Trustee or the
Authenticating Agent shall authenticate and deliver in exchange for such
temporary Securities a like aggregate principal amount of such definitive
Securities. Such exchange shall be made by the Company at its own expense and
without any charge therefor except that in case of any such exchange involving a
registration of transfer the Company may require payment of a sum sufficient to
cover any tax, fee or other governmental charge that may be imposed in relation
thereto. Until so exchanged, the temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities of the same series authenticated and delivered hereunder.
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SECTION 2.10. Cancellation of Securities Paid, etc.
All Securities surrendered for the purpose of payment, redemption,
exchange or registration of transfer, shall, if surrendered to the Company or
any paying agent, be surrendered to the Trustee and promptly cancelled by it,
or, if surrendered to the Trustee or any Authenticating Agent, shall be promptly
cancelled by it, and no Securities shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. All Securities
cancelled by any Authenticating Agent shall be delivered to the Trustee. The
Trustee shall destroy cancelled Securities and shall deliver a certificate of
such destruction to the Company. If the Company shall acquire any of the
Securities, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and until
the same are surrendered to the Trustee for cancellation.
SECTION 2.11. Global Securities.
(a) If the Company shall establish pursuant to Section 2.03 that the
Securities of a particular series are to be issued as a Global Security, then
the Company shall execute and the Trustee shall, in accordance with Section
2.04, authenticate and deliver, a Global Security that (i) shall represent, and
shall be denominated in an amount equal to the aggregate principal amount of,
all of the outstanding Securities of such series, (ii) shall be registered in
the name of the Depository Institution or its nominee, (iii) shall be delivered
by the Trustee to the Depository Institution or pursuant to the Depository
Institution's instruction and (iv) shall bear a legend substantially to the
following effect: "Except as otherwise provided in Section 2.11 of the
Indenture, this Security may be transferred, in whole but not in part, only to
another nominee of the Depository Institution or to a successor Depository
Institution or to a nominee of such successor Depository Institution."
(b) Notwithstanding the provisions of Section 2.07, the Global Security of
a series may be transferred, in whole but not in part and in the manner provided
in Section 2.07, only to another nominee of the Depository Institution for such
series or to a successor Depository Institution for such series selected or
approved by the Company or to a nominee of such successor Depository
Institution.
(c) If at any time the Depository Institution for a series of the
Securities notifies the Company that it is unwilling or unable to continue as
Depository Institution for such series or if at any time the Depository
Institution for such series shall no longer be registered or in good standing
under the Exchange Act, or other applicable statute or regulation, and a
successor Depository Institution for such series is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such
condition, as the case may be, this Section 2.11 shall no longer be applicable
to the Securities of such series and the Company will execute, and subject to
Section 2.07, the Trustee will authenticate and deliver, the Securities of such
series in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Security of such series in exchange for such Global
Security. In addition, the Company may at any time determine that the Securities
of any series shall no longer be represented by a Global Security and that the
provisions of this Section 2.11 shall no longer apply to the Securities of such
series. In such event the Company will execute and, subject to Section 2.07, the
Trustee, upon receipt of an Officers' Certificate evidencing such determination
by the Company, will authenticate and deliver the Securities of such series in
definitive registered form without coupons, in authorized denominations, and in
an aggregate principal amount equal to the principal amount of the Global
Security of such series in exchange for such Global Security. Upon the exchange
of the Global Security for such Securities in definitive registered form without
coupons, in authorized denominations, the Global Security shall be cancelled by
the Trustee. Such Securities in definitive registered form issued in exchange
for the Global Security pursuant to this Section 2.11(c) shall be registered in
such names and in such authorized denominations as the Depository Institution,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee. The Trustee shall deliver such Securities to the
Depository Institution for delivery to the Persons in whose names such
Securities are so registered.
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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 each series of
Securities that it will duly and punctually pay or cause to be paid the
principal of, and premium, if any, and interest on, each of the Securities of
that series at the place, at the respective times and in the manner provided in
such Securities. Each installment of interest on the Securities of any series
may be paid by mailing checks for such interest payable to the order of the
holders of Securities entitled thereto as they appear on the Security Register
or by wire transfer to an account appropriately designated by the holders of
Securities entitled thereto.
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 of each series may be presented for payment, an office or
agency where the Securities of that Series 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 of
that Series 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, or specified as contemplated by Section
2.03, 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 office of the Trustee.
In addition to any such office or agency, the Company may from time to
time designate one or more offices or agencies outside the Borough of Manhattan,
The City of New York, where the Securities may be presented for registration of
transfer and for exchange in the manner provided in this Indenture, and the
Company may from time to time rescind such designation, as the Company may deem
desirable or expedient; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
any such office or agency in the Borough of Manhattan, The City of New York, for
the purposes above mentioned. The Company will give to the Trustee prompt
written notice of any such designation or rescission thereof.
SECTION 3.03. Appointments to Fill Vacancies in Trustee's Office.
The Company, whenever necessary to avoid or fill a vacancy in the office
of Trustee, will appoint, in the manner provided in Section 6.10, a Trustee, so
that there shall at all times be a Trustee hereunder.
SECTION 3.04. Provision as to Paying Agent.
(a) If the Company shall appoint a paying agent other than the Trustee
with respect to the Securities of any series, 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, if
any, on, the Securities of such series (whether such sums have been
paid to it by the Company or by any other obligor on the Securities
of such series) in trust for the benefit of the holders of the
Securities of such series; and
(2) that it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Securities of such series)
to make any payment of the principal of, and premium, if any, or
interest, if any, on, the Securities of such series when the same
shall be due and payable.
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(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, if
any, on the Securities of any series, set aside, segregate and hold in trust for
the benefit of the holders of the Securities of such series 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 of such series) to make any payment of
the principal of, and premium, if any, or interest, if any, on, the Securities
of such series 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 one or more or all series of Securities hereunder, or
for any other reason, pay or cause to be paid to the Trustee all sums held in
trust for any such series 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, within 120 days after the end of
each fiscal year, commencing with the first calendar year following the issuance
of Securities of any series under this Indenture, so long as Securities of any
series are outstanding hereunder, an Officers' Certificate 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 company unless the provisions of
Article Ten hereof are complied with.
SECTION 3.07. Limitation on Dividends; Transactions with Affiliates.
If Securities are issued to a Fleet Capital Trust or a trustee of such
trust in connection with the issuance of Trust Securities by such Fleet Capital
Trust and (i) there shall have occurred an Event of Default, or (ii) the Company
shall be in default with respect to its payment of any obligations under the
Capital Securities Guarantee or Common Securities Guarantee relating to such
Fleet Capital Trust, then (a) the Company shall not declare or pay any dividend
on, make any distribution with respect to, or redeem, purchase, acquire or make
a liquidation payment with respect to, any of its capital stock (other than (i)
purchases or acquisitions of shares of Fleet Common Stock in connection with the
satisfaction by the Company of its obligations under any employee benefit plans
or any other contractual obligation of the Company (other than a contractual
obligation ranking pari passu with or junior to the Securities), (ii) as a
result of a reclassification of the Company's capital stock or the exchange or
conversion of one class or series of the Company's capital stock for another
class or series of the Company's capital stock or (iii) the purchase of
fractional interests in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such Company capital stock or the security
being converted or exchanged), (b) the Company shall not make any payment of
interest, principal or premium, if any, on or repay, repurchase or redeem any
debt securities issued by the Company that rank pari passu with or junior to the
Securities; and (c) Fleet shall not make any guarantee payments with respect to
the foregoing (other than pursuant to the Capital Securities Guarantee).
SECTION 3.08. Covenants as to Fleet Capital Trusts.
In the event Securities are issued to a Fleet Capital Trust or a trustee
of such trust in connection with the issuance of Trust Securities by such Fleet
Capital Trust, for so long as such Trust Securities remain outstanding, the
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Company will (i) maintain 100% direct or indirect ownership of the Common
Securities of such Fleet Capital Trust; provided, however, that any permitted
successor of the Company under the Indenture may succeed to the Company's
ownership of the Common Securities, (ii) use its reasonable efforts to cause
such Fleet Capital Trust (a) to remain a statutory business trust, except in
connection with a distribution of Securities, the redemption of all of the Trust
Securities of such Fleet Capital Trust or certain mergers, consolidations or
amalgamations, each as permitted by the Declaration of such Fleet Capital Trust,
and (b) to otherwise continue not to be treated as an association taxable as a
corporation or partnership for United States federal income tax purposes and
(iii) use its reasonable efforts to cause each holder of Trust Securities to be
treated as owning an individual beneficial interest in the Securities.
SECTION 3.09. Notice of Default.
The Company shall file with the Trustee written notice of the occurrence
of any Event of Default within 30 business days of its becoming aware of any
such Event of Default.
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 each regular record date for each series of
Securities, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Securityholders of such series of Securities as of
such record date (and on dates to be determined pursuant to Section 2.03 for
non-interest bearing securities in each year); 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 for such
series.
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
each series of 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 of any series (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 of such
series for a period of at least 6 months preceding the date of such application,
and such application states that the applicants desire to communicate with other
holders of Securities of such series or with holders of all Securities with
respect to their rights under this Indenture or under such Securities and is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall within 5 Business Days
after the receipt of such application, at its election, either:
(1) afford such applicants access to the information preserved at
the time by the Trustee in accordance with the provisions of
subsection (a) of this Section 4.02; or
(2) inform such applicants as to the approximate number of holders of
such series or all Securities, as the case may be, whose names and
addresses appear in the information preserved at the time by the
Trustee
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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 of such series or all
Securities, as the case may be, 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 5 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 of such series or all Securities, as the
case may be, 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.
(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 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 the 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 the Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants provided
for in this Indenture as may be required from time to time by such rules and
regulations.
(c) The Company covenants and agrees to transmit by mail to all holders of
Securities, as the names and addresses of such holders appear upon the Security
Register, within 30 days after the filing thereof with the Trustee, such
summaries of any information, documents and reports required to be filed by the
Company pursuant to subsections (a) and (b) of this Section 4.03 as may be
required by rules and regulations prescribed from time to time by the
Commission.
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(d) The Company covenants and agrees to furnish to the Trustee within 120
days of the end of each fiscal year, the compliance certificate required by
Section 314(a)(4) of the Trust Indenture Act.
SECTION 4.04. Reports by the Trustee.
(a) The term "reporting date", as used in this Section, shall be May 15 of
each year, commencing with the first May 15 after the first issuance of
Securities of a series for which the Trustee is acting as Trustee pursuant to
this Indenture. Within 60 days after the reporting date in each year, the
Trustee shall transmit by mail to all holders of Securities as provided in
Section 313(c) of the Trust Indenture Act, as their names and addresses appear
in the Security Register, a brief report dated as of such reporting date, if
required by Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall transmit to the Securityholders for each series, as
hereinafter provided, a brief report with respect to the character and amount of
any advances (and if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as such), since the date of
the last report transmitted pursuant to the provisions of subsection (a) of this
Section 4.04 (or, if no such report has yet been so transmitted, since the date
of execution of this Indenture), for the reimbursement of which it claims or may
claim a lien or charge prior to that of the Securities of such series on
property or funds held or collected by it as Trustee, and which it has not
previously reported pursuant to this subsection, if such advances remaining
unpaid at any time aggregate more than 10% of the principal amount of Securities
for such series outstanding at such time, such report to be transmitted within
90 days after such time.
(c) Reports pursuant to this Section 4.04 shall be transmitted by mail,
first class postage prepaid to all holders of Securities as required by Section
313(c) of the Trust Indenture Act.
(d) A copy of each such report shall, at the time of such transmission to
Securityholders, be filed by the Trustee with each stock exchange upon which the
Securities of any applicable series are listed and also with the Commission. The
Company will notify the Trustee when and as the Securities of any series become
listed on any stock exchange.
(e) The Trustee shall comply with Sections 313(b) and 313(c) of the Trust
Indenture Act.
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT.
SECTION 5.01. Events of Default.
In case one or more of the following Events of Default with respect to
Securities of any series or such other events as may be established with respect
to the Securities of that series as contemplated by Section 2.03 hereof shall
have occurred and be continuing:
(a) default in the payment of any interest upon any Securities of that
series when it becomes due and payable, and continuance of such default for a
period of 30 days; provided, however, that a valid extension of an interest
payment period by the Company in accordance with the terms of any particular
series of Securities established as contemplated in this Indenture, 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 Securities of that series as and when the same shall
become due and payable either at maturity, upon redemption (including redemption
for a sinking fund, if any), by declaration or otherwise; provided, however,
that a valid extension of the maturity of such Securities in accordance with the
terms of any particular series of Securities established as contemplated in this
Indenture, shall not constitute a default in the payment of principal or
premium, if any, for this purpose; or
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(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 other than those set forth exclusively in terms of any particular
series of Securities established as contemplated in this Indenture), 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 principal amount
of the outstanding Securities a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(d) a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Company in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Company or for any substantial part of
its property, or ordering the winding-up or liquidation of its affairs and such
decree or order shall remain unstayed and in effect for a period of 90
consecutive days; or
(e) the Company shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, shall
consent to the entry of an order for relief in an involuntary case under any
such law, or shall consent to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian, sequestrator (or other
similar official) of the Company or of any substantial part of its property, or
shall make any general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due; or
(f) in the event Securities are issued to a Fleet Capital Trust or a
trustee of such trust in connection with the issuance of Trust Securities by
such Fleet Capital Trust, such Fleet Capital Trust shall have voluntarily or
involuntarily dissolved, wound-up its business or otherwise terminated its
existence except in connection with (i) the distribution of Securities to
holders of Trust Securities in liquidation of their interests in such Fleet
Capital Trust, (ii) the redemption of all of the outstanding Trust Securities of
such Fleet Capital Trust or (iii) certain mergers, consolidations or
amalgamations, each as permitted by the Declaration of such Fleet Capital Trust.
If an Event of Default occurs and is continuing, then, and in each and
every such case, unless the principal of all of the Securities of such series
shall have already become due and payable, either the Trustee or the holders of
not less than 25% in aggregate principal amount of the Securities of that series
then outstanding hereunder, by notice in writing to the Company (and to the
Trustee if given by Securityholders), may declare the entire principal of all
Securities of that series and the interest accrued thereon, if any, to be due
and payable immediately, 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 of any series (or of all the
Securities, as the case may be) 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, the Company shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest upon all the Securities of such series (or of all the Securities, as
the case may be) and the principal of and premium, if any, on any and all
Securities of such series (or of all the Securities, as the case may be) 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 of such series (or
at the respective rates of interest of all the Securities, as the case may be),
to the date of such payment or deposit) and 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 if any and all Events
of Default under the Indenture, other than the non-payment of the principal of
or premium, if any, on Securities which shall have become due by acceleration,
shall have been cured, waived or otherwise remedied as provided in this
Indenture, then and in every such case the holders of a majority in aggregate
principal amount of the Securities of such series (or of all the Securities, as
the case may be) then outstanding, by written notice to the Company and to the
Trustee, may waive all
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defaults with respect to that series (or with respect to all Securities, as the
case may be, in such case, treated as a single class) and rescind and annul such
declaration and its consequences, but no such waiver or rescission and annulment
shall extend to or shall affect any subsequent default or shall impair any right
consequent thereon.
In case the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the Company,
the Trustee and the holders of the Securities shall be restored respectively to
their several positions and rights hereunder, and all rights, remedies and
powers of the Company, the Trustee and the holders of the Securities shall
continue as though no such proceeding had been taken.
SECTION 5.02. Payment of Securities on Default; Suit Therefor.
The Company covenants that (a) in case an Event of Default under Section
5.01(a), (b), (c), (d) or (f) shall have occurred and be continuing, then, upon
demand of the Trustee, the Company will pay to the Trustee, for the benefit of
the holders of the Securities of that series, the whole amount that then shall
have become due and payable on all such Securities of that series 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 a Fleet Capital Trust or a trustee of such trust, without duplication of
any other amounts paid by Fleet Capital Trust or trustee in respect thereof)
upon the overdue installments of interest at the rate borne by the Securities of
that series; 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 such
Securities and collect in the manner provided by law out of the property of the
Company or any other obligor on such Securities wherever situated the moneys
adjudged or decreed to be payable.
In case an Event of Default under Section 5.01(d) or (e) shall have
occurred, the Trustee, irrespective of whether the principal of the Securities
of any series shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made
any demand pursuant to the provisions of this Section 5.02, shall be entitled
and empowered, by intervention in such proceedings or otherwise, to file and
prove a claim or claims for the whole amount of principal and interest owing and
unpaid in respect of the Securities of such series 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 of any series, 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 or any series 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.
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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 of any series or the rights of any holder thereof or to authorize the
Trustee to vote in respect of the claim of any Securityholder in any such
proceeding.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities, may be enforced by the Trustee without the
possession of any of the Securities, or the production thereof on any trial or
other proceeding relative thereto, and any such suit or proceeding instituted by
the Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall be for the ratable benefit of the holders of the
Securities.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the holders
of the Securities, and it shall not be necessary to make any holders of the
Securities parties to any such proceedings.
SECTION 5.03. Application of Moneys Collected by Trustee.
Any moneys collected by the Trustee shall be applied in the order
following, at the date or dates fixed by the Trustee for the distribution of
such moneys, upon presentation of the several 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
such series 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 and Other Financial
Obligations of the Company if and to the extent required by Article Fifteen;
Third: In case the principal of the outstanding Securities in respect of
which moneys have been collected shall not have become due and be unpaid, to the
payment of the amounts then due and unpaid upon Securities of such series for
principal (and premium, if any), and interest on the Securities of such series,
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.
SECTION 5.04. Proceedings by Securityholders.
No holder of any Security of any series 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 of such series 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 of that series then outstanding
shall have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee for 60 days
after its receipt of such notice, request and offer of indemnity shall have
failed to institute any such action, suit or proceeding, it being understood and
intended, and being expressly covenanted by the taker and holder of every
Security with every other taker and holder and the Trustee, that no one or more
holders of Securities of any series 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 of the
applicable series.
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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, if any, 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 of such series with every
other such taker and holder and the Trustee, that no one or more holders of
Securities of such series 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 such 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 of such
series. 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.
SECTION 5.05. Proceedings by Trustee.
In case of an Event of Default hereunder the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either by suit in equity or by action at
law or by proceeding in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this Indenture or in aid
of the exercise of any power granted in this Indenture, or to enforce any other
legal or equitable right vested in the Trustee by this Indenture or by law.
SECTION 5.06. Remedies Cumulative and Continuing.
Except as otherwise provided in the last paragraph of Section 2.08 with
respect to the replacement or payment of mutilated, lost or stolen Securities,
all powers and remedies given by this Article Five 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 such series, 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 Five or
by law to the Trustee or to the Securityholders may be exercised from time to
time, and as often as shall be deemed expedient, by the Trustee or by the
Securityholders.
SECTION 5.07. Direction of Proceedings and Waiver of Defaults by Majority
of Securityholders.
The holders of a majority in aggregate principal amount of the Securities
of any or all series affected (voting as one class) 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 any series of
the Securities, or of all the Securities, as the case may be, the holders of a
majority in aggregate principal amount of the Securities of that series at the
time outstanding may on behalf of the holders of all of the Securities of such
series waive any past default or Event of Default including any default
established pursuant to Section 2.03 and its consequences except a default (a)
in the payment of principal of, premium, if any, or interest on any of the
Securities, (b) in respect of covenants or provisions hereof which cannot be
modified or amended without the consent of the holder of each Security affected,
or (c) a default of the covenants
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contained in Section 3.06; provided, however, that if the Securities of such
series are held by a Fleet Capital Trust or a trustee of such trust, such waiver
or modification to such waiver shall not be effective until the holders of a
majority in liquidation preference of Trust Securities of the applicable Fleet
Capital Trust 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 of the applicable Fleet Capital Trust 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 of such series 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. Upon any such waiver the Company, the Trustee and the holders of the
Securities of that series (or of all Securities, as the case may be) shall be
restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other default or Event of 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 of that series (or
of all Securities, as the case may be) and this Indenture be deemed to have been
cured and to be not continuing.
The foregoing provisions shall be in lieu of Sections 316(a)(1)(A) and
316(a)(1)(B) of the Trust Indenture Act and such sections are hereby expressly
excluded from this Indenture and the Securities, as permitted by the Trust
Indenture Act.
SECTION 5.08. Notice of Defaults.
The Trustee shall, within 90 days after the occurrence of a default with
respect to the Securities of any series, mail to all Securityholders of that
series, as the names and addresses of such holders appear upon the Security
Register, notice of all defaults with respect to that series 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), (e) and (f) 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, premium, if any, or interest on any of the Securities of such
series, 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
of such series; and provided further, that in the case of any default of the
character specified in Section 5.01(c), no such notice to Securityholders of
such series shall be given until at least 60 days after the occurrence thereof
but shall be given within 90 days after such occurrence.
SECTION 5.09. Undertaking to Pay Costs.
All parties to this Indenture agree, and each holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
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 of any series, holding in the aggregate more than 10% in
principal amount of the Securities of that series 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.
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ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of Trustee.
With respect to the holders of any series of Securities issued hereunder,
the Trustee, prior to the occurrence of an Event of Default with respect to
securities of that series and after the curing or waiving of all Events of
Default which may have occurred, with respect to securities of that series,
undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture. In case an Event of Default with respect to the
Securities of a series 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 with respect to
Securities of a series and after the curing or waiving of all Events of Default
with respect to that series which may have occurred
(1) the duties and obligations of the Trustee with respect to
Securities of a series 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 with
respect to such series as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(2) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and conforming to
the requirements of this Indenture; but, in the case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer or Officers of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent facts; and;
(c) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith, in accordance with the direction of the
Securityholders pursuant to Section 5.07, relating to the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there is reasonable ground for believing that the
repayment of such funds or liability is not reasonably assured to it under the
terms of this Indenture or adequate indemnity against such risk is not
reasonably assured to it.
SECTION 6.02. Reliance on Documents, Opinions, etc.
Except as otherwise provided in Section 6.01:
(a) the Trustee may 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;
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(b) any request, direction, order or demand of the Company mentioned
herein shall 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
Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel and any advice or Opinion of
Counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
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 with respect to a series of the Securities (that has not been
cured or waived) to exercise with respect to Securities of that series 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 person would exercise or use
under the circumstances in the conduct of his or her 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 not less than a majority in principal amount of the outstanding
Securities of the series affected thereby; provided, however, that if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation is,
in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expense or liability as a condition to so
proceeding; and
(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), custodians, nominees 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.
SECTION 6.03. No Responsibility for Recitals, etc.
The recitals contained herein and in the Securities (except in the
certificate of authentication of the Trustee or the Authenticating Agent) shall
be taken as the statements of the Company and the Trustee and the Authenticating
Agent assume no responsibility for the correctness of the same. The Trustee and
the Authenticating Agent make no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee and the
Authenticating Agent shall not be accountable for the use or application by the
Company of any Securities or the proceeds of any Securities authenticated and
delivered by the Trustee or the Authenticating Agent in conformity with the
provisions of this Indenture.
SECTION 6.04. Trustee, Authenticating Agent, Paying Agents, Transfer
Agents or Registrar May Own Securities.
The Trustee or any Authenticating Agent or any paying agent or any
transfer agent or any Security registrar, in its individual or any other
capacity, may become the owner or pledgee of Securities with the same rights it
would have if it were not Trustee, Authenticating Agent, paying agent, transfer
agent or Security registrar.
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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 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, any
Vice President, the Treasurer or any 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, reasonable compensation
(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 and any amounts paid by the Trustee to any
Authenticating Agent pursuant to Section 6.14) except any such expense,
disbursement or advance as may arise from its negligence or bad faith. The
Company also covenants to indemnify the Trustee (and its officers, agents,
directors and employees) for, and to hold it harmless against, any loss,
liability or expense 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, and shall survive the resignation
or removal of the Trustee and the termination of this Indenture. 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.
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 be 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 $50,000,000 (US) and subject to supervision or examination by Federal,
State, Territorial, or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for
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the purposes of this Section 6.09 the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published.
The Company may not, nor may any Person directly or indirectly
controlling, controlled by, or under common control with the Company, serve as
Trustee.
In case at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section 6.09, the Trustee shall resign immediately
in the manner and with the effect specified in Section 6.10.
SECTION 6.10. Resignation or Removal of Trustee.
(a) The Trustee, or any trustee or trustees hereafter appointed, may at
any time resign with respect to one or more or all series of Securities by
giving written notice of such resignation to the Company and by mailing notice
thereof to the holders of the applicable series of 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
with respect to the applicable series by written instrument, in duplicate,
executed by order of its Board of Directors, 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 with respect to any series of
Securities and have accepted appointment within 30 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 or Securities of the applicable series 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 --
(i) 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
(ii) 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
(iii) 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, executed by order of the
Board of Directors, 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 or Securities of the applicable series 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 of any series at the time outstanding may at any time remove the
Trustee with respect to such series and nominate a successor trustee with
respect to the applicable series of Securities or all series, as the case may
be, which shall be deemed appointed as successor trustee with respect to the
applicable series unless within 10 days after such nomination the Company
objects thereto, in which case the Trustee so removed or any Securityholder of
the applicable series, upon the terms and conditions and otherwise as provided
in subsection (a) of this Section 6.10, may petition any court of competent
jurisdiction for an appointment of a successor trustee with respect to such
series.
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(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 6.10 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 6.11.
SECTION 6.11. Acceptance by Successor Trustee.
Any successor trustee appointed as provided in Section 6.10 shall execute,
acknowledge and deliver to the Company and to its predecessor trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the retiring trustee with respect to all or any applicable series
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 with respect to such series 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.
If a successor trustee is appointed with respect to the Securities of one
or more (but not all) series, the Company, the retiring trustee and each
successor trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the retiring trustee with respect to the
Securities of any series as to which the predecessor trustee is not retiring
shall continue to be vested in the predecessor trustee, and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trustee hereunder by more than one
trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such trustees co-trustees of the same trust and that
each such trustee shall be trustee of a trust or trusts hereunder separate and
apart from any trust or trusts hereunder administered by any other such trustee.
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 of any applicable series at their
addresses as they shall appear on the Security Register. If the Company fails to
mail such notice within 10 days after the acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be mailed at
the expense of the Company.
SECTION 6.12. Succession by Merger, etc.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder without
the execution or filing of any paper or any further act on the part of any of
the parties hereto.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series 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
of any series shall not have been authenticated, any successor to the Trustee
may
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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 it is anywhere in the Securities of such series
or in this Indenture provided 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 of any series 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 of any series
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 of such series; 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 of any series. Any such Authenticating Agent shall at all times be a
corporation organized and doing business under the laws of the United States or
of any State or Territory thereof or of the District of Columbia authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of at least $5,000,000 and being subject to supervision or examination
by Federal, State, Territorial or District of Columbia authority. If such
corporation publishes reports of condition at least annually pursuant to law or
the requirements of such authority, then for the purposes of this Section 6.14
the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect herein specified in this Section.
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to 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 with respect to one or
more or all series of Securities 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 with respect to one or more or all series of Securities
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 with respect to the applicable
series 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
holders of the applicable series of Securities as the names and addresses of
such holders appear on the Security Register. Any successor Authenticating Agent
with respect to all or any series upon acceptance of its appointment hereunder
shall become vested with all rights, powers, duties and responsibilities with
respect to such series of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent herein.
The Trustee agrees to pay to any Authenticating Agent from time to time
reasonable compensation for its services, and the Trustee shall be entitled to
be reimbursed for such payments, subject to Section 6.06. 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.
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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 of any or all series
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 Eight, 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 of any series 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 such series 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 of that series 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 of that series
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,
premium, if any, and interest on such Security and for all other purposes; and
neither the Company nor the Trustee nor any Authenticating Agent nor any paying
agent nor any transfer agent nor any Security registrar shall be affected by any
notice to the contrary. All such payments so made to any holder for the time
being or upon his order shall be valid, and, to the extent of the sum or sums so
paid, effectual to satisfy and discharge the liability for moneys payable upon
any such Security.
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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 the Trustee 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 Security specified in this
Indenture in connection with such action, any holder of a Security (or any
Security issued in whole or in part in exchange or substitution therefor) the
serial number of which is shown by the evidence to be included in the Securities
the holders of which have consented to such action may, by filing written notice
with the Trustee at its principal office and upon proof of holding as provided
in Section 7.02, revoke such action so far as concerns such Security (or so far
as concerns the principal amount represented by any exchanged or substituted
Security). Except as aforesaid any such action taken by the holder of any
Security shall be conclusive and binding upon such holder and upon all future
holders and owners of such Security, and of any Security issued in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon such Security or any Security issued in exchange or
substitution therefor.
ARTICLE VIII
SECURITYHOLDERS' MEETINGS
SECTION 8.01. Purposes of Meetings.
A meeting of Securityholders of any or all series may be called at any
time and from time to time pursuant to the provisions of this Article Eight 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 Five;
(b) to remove the Trustee and nominate a successor trustee pursuant to the
provisions of Article Six;
(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 of any or
all series 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
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Trustee shall determine. Notice of every meeting of the Securityholders of any
or all series, 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 of each series affected at their addresses as they
shall appear on the Securities register of such series. Such notice shall be
mailed not less than 20 nor more than 180 days prior to the date fixed for the
meeting.
SECTION 8.03. Call of Meetings by Company or Securityholders.
In case at any time the Company pursuant to a resolution of the Board of
Directors, or the holders of at least 10% in aggregate principal amount of the
Securities of any or all series, as the case may be, then outstanding, shall
have requested the Trustee to call a meeting of Securityholders of any or all
series, as the case may be, 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 with respect to which the meeting is
being held or (b) a person appointed by an instrument in writing as proxy by a
holder of one or more such 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 7.04, at any meeting each holder of
Securities with respect to which such meeting is being held or proxy therefor
shall be entitled to one vote for each $1,000 principal amount of Securities
held or represented by him; provided, however, that no vote shall be cast or
counted at any meeting in respect of any Security challenged as not outstanding
and ruled by the chairman of the meeting to be not outstanding. The chairman of
the meeting shall have no right to vote other than by virtue of Securities held
by him or instruments in writing as aforesaid duly designating him as the person
to vote on behalf of other Securityholders. Any meeting of Securityholders duly
called pursuant to the provisions of Section 8.02 or 8.03 may be adjourned from
time to time by a majority of those present, whether or not constituting a
quorum, and the meeting may be held as so adjourned without further notice.
SECTION 8.06. Voting.
The vote upon any resolution submitted to any meeting of holders of
Securities with respect to which such meeting is being held 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
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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
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures without Consent of Securityholders.
The Company and the Trustee may from time to time and at any time enter
into an indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act as then in effect), without the consent of
the Securityholders, for one or more of the following purposes:
(a) to evidence the succession of another corporation to the Company, or
successive successions, and the assumption by the successor corporation of the
covenants, agreements and obligations of the Company pursuant to Article Ten
hereof;
(b) to add to the covenants of the Company such further covenants,
restrictions or conditions for the protection of the holders of all or any
series of Securities (and if such covenants are to be for the benefit of less
than all series of Securities stating that such covenants are expressly being
included for the benefit of such series) as the Board of Directors and the
Trustee shall consider to be for the protection of the holders of such
Securities, 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
several remedies provided in this Indenture as herein set forth; provided,
however, that in respect of any such additional covenant, restriction or
condition such supplemental indenture 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 adversely
affect the interests of the holders of the Securities;
(e) to add to, delete from, or revise the terms of Securities of any
series as permitted by Section 2.01 and 2.03, including, without limitation, any
terms relating to the issuance, exchange, registration or transfer of Securities
issued in whole or in part in the form of one or more Global Securities and the
payment of any principal thereof, or interest or premium, if any, thereon;
(f) to evidence and provide for the acceptance of appointment hereunder by
a successor trustee with respect to the Securities of one or more series and to
add to or change any of the provisions of this Indenture as shall be
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necessary to provide for or facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to the requirements of Section
6.11;
(g) to make any change that does not adversely affect the rights of any
Securityholder in any material respect; or
(h) to provide for the issuance of and establish the form and terms and
conditions of the Securities of any series, to establish the form of any
certifications required to be furnished pursuant to the terms of this Indenture
or any series of Securities, or to add to the rights of the holders of any
series of Securities.
The Trustee is hereby authorized to join with the Company in the execution
of any such supplemental indenture, 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 supplemental 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. Supplemental Indentures with Consent of Securityholders.
With the consent (evidenced as provided in Section 7.01) of the holders of
not less than a majority in aggregate principal amount of the Securities at the
time outstanding of all series affected by such supplemental indenture (voting
as a class), and in the case of Securities issued to a Fleet Capital Trust, the
holders of a majority in aggregate liquidation amount of the related Capital
Securities, the Company, when authorized by a Board Resolution, and the Trustee
may from time to time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act then in effect) for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of any supplemental indenture or of modifying in any manner the rights of the
holders of the Securities of each series so affected; provided, however, that no
such supplemental indenture shall, without the consent of the holders of each
Security affected thereby (and each Capital Security, if applicable), (i) extend
the fixed maturity of any Security of any series, or reduce the rate or extend
the time of payment of interest thereon, or reduce the principal amount thereof
or any premium thereon, 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 the
right of repayment, if any, at the option of the holder, without the consent of
the holder of each Security so affected, (ii) reduce the aforesaid percentage of
Securities the holders of which are required to consent to any such supplemental
indenture or (iii) otherwise materially adversely affect the interest of the
holders of any series of the Securities or the Capital Securities; provided,
further, that if the Securities of such series are held by a Fleet Capital Trust
or a trustee of such trust, such supplemental indenture shall not be effective
until the holders of a majority in liquidation preference of Trust Securities of
the applicable Trust shall have consented to such supplemental indenture;
provided further, that if the consent of the holder of each outstanding Security
is required, such supplemental indenture shall not be effective until each
holder of the Trust Securities of the applicable Fleet Capital Trust shall have
consented to such supplemental indenture.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of Securityholders of such series with respect to such covenant or
provision, shall be deemed not to affect the rights under this Indenture or the
Securityholders of any other series.
Upon the request of the Company accompanied by a copy of a resolution of
the Board of Directors certified by its Secretary or Assistant Secretary
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Securityholders as
aforesaid, the Trustee shall join with the
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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, setting forth in
general terms the substance of such supplemental indenture, to the
Securityholders of all series affected thereby 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 Nine shall comply with the Trust Indenture Act, as then in effect. Upon
the execution of any supplemental indenture pursuant to the provisions of this
Article Nine, 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 of each series affected thereby shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
SECTION 9.04. Notation on Securities.
Securities of any series authenticated and delivered after the execution
of any supplemental indenture affecting such series pursuant to the provisions
of this Article Nine 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 of any series 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 of any series
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 Nine.
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
corporation or corporations organized under the laws of a domestic jurisdiction
(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,
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conveyance, transfer or other disposition 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 corporation organized under the laws of a domestic
jurisdiction (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, however, that the Company hereby covenants and agrees that, upon any
such consolidation, merger, sale, conveyance, transfer or other disposition, the
due and punctual payment, in the case of the Company, of the principal of
(premium, if any) and interest on all of the Securities of all series in
accordance with the terms of each series, according to their tenor and the due
and punctual performance and observance of all the covenants and conditions of
this Indenture with respect to each series or established with respect to such
series to be kept or performed by the Company as the case may be, 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 entity formed by
such consolidation, or into which the Company, as the case may be, shall have
been merged, or by the entity which shall have acquired such property; provided,
further, that after giving effect thereto, no Default shall have occurred and be
continuing hereunder.
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 corporation 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
corporation thereupon may cause to be signed, and may issue either in its own
name or in the name of Fleet Financial Group, Inc., 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 corporation 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 corporation 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 Indentures
had been issued at the date of the execution hereof.
SECTION 10.03. Opinion of Counsel to be Given Trustee.
The Trustee, subject to the provisions of Sections 6.01 and 6.02, may
receive an Opinion of Counsel as conclusive evidence that any consolidation,
merger, conveyance or transfer, and any assumption, permitted or required by the
terms of this Article Ten complies with the provisions of this Article Ten.
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
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sufficient to pay at maturity 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 such date of maturity or
redemption date, as the case may be, but excluding, however, the amount of any
moneys for the payment of principal of, and 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 that the provisions of Sections 2.05, 2.07, 2.08, 3.01, 3.02,
3.04, 6.06, 6.10 and 11.04 hereof shall survive until such Securities shall
mature and be paid. Thereafter, Sections 6.10 and 11.04 shall survive, and the
Trustee, on demand of the Company accompanied by any Officers' Certificate and
an Opinion of Counsel and at the cost and expense of the Company, shall execute
proper instruments acknowledging satisfaction of and discharging this Indenture,
the Company, however, hereby agreeing to reimburse the Trustee for any costs or
expenses thereafter reasonably and properly incurred by the Trustee in
connection with this Indenture or the Securities.
SECTION 11.02. Deposited Moneys and U.S. Government Obligations to be Held
in Trust by Trustee.
Subject to the provisions of Section 11.04, all moneys and U.S. Government
Obligations deposited with the Trustee pursuant to Sections 11.01 or 11.05 shall
be held in trust and applied by it to the payment, either directly or through
any paying agent (including the Company if acting as its own paying agent), to
the holders of the particular Securities for the payment of which such moneys or
U.S. Government Obligations have been deposited with the Trustee, of all sums
due and to become due thereon for principal, premium, if any, and interest.
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
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, and premium, if any, or interest on Securities and
not applied but remaining unclaimed by the holders of Securities for 3 years
after the date upon which the principal of, and 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.
(a) The Company shall be deemed to have been Discharged (as defined below)
from its respective obligations with respect to any series of Securities upon
satisfaction of the applicable conditions set forth below with respect to any
series of Securities:
(i) 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 of such series (A) money in an amount, or (B) 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 (C) a combination of (A) and (B), sufficient,
in the opinion (with respect to (B) and (C)) 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
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principal (including any mandatory sinking fund payments) of, and
interest and premium, if any, on, the outstanding Securities of such
series on the dates such installments of principal, interest or
premium are due;
(ii) if the Securities of such series are then listed on any
national securities exchange, 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;
(iii) no Event of Default or event which with notice or lapse of
time would become an Event of Default with respect to the Securities
of such series shall have occurred and be continuing on the date of
such deposit; and
(iv) 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 of such series 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, in the
case of the Securities of such series being Discharged, 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.
(b) "Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Securities of such series and to have satisfied all the obligations under this
Indenture relating to the Securities of such series (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), except (A) the rights of holders of Securities of such series to receive,
from the trust fund described in clause (1) above, payment of the principal of
and the interest and premium, if any, on such Securities when such payments are
due; (B) the Company's obligations with respect to such 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.
(c) "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:
(i) 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;
(ii) 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;
(iii) The Trustee shall determine whether the Company shall be
deemed to have been Discharged from its respective obligations with
respect to any series of Securities.
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
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of the Company in this Indenture or in any supplemental 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 corporation of
the Company, either directly or through the Company or any successor corporation
of the Company, whether by virtue of any constitution, statute or rule of law,
or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that all such liability is hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issue of the Securities.
ARTICLE XIII
MISCELLANEOUS PROVISIONS.
SECTION 13.01. Successors.
All the covenants, stipulations, promises and agreements in this Indenture
contained by the Company shall bind its successors and assigns whether so
expressed or not.
SECTION 13.02. Official Acts by Successor Corporation.
Any act or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer of the
Company shall and may be done and performed with like force and effect by the
like board, committee or officer of any corporation that shall at the time be
the lawful sole successor of the Company.
SECTION 13.03. Surrender of Company Powers.
The Company by instrument in writing executed by authority of 2/3
(two-thirds) of its Board of Directors and delivered to the Trustee may
surrender any of the powers reserved to the Company, and thereupon such power so
surrendered shall terminate both as to the Company, as the case may be, and as
to any successor corporation.
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, One Federal Street, Boston, Massachusetts 02110, Attention:
General Counsel. Any notice, direction, request or demand by any Securityholder
to or upon the Trustee shall be deemed to have been sufficiently given or made,
for all purposes, if given or made in writing at the office of the Trustee,
addressed to the Trustee, One First National Plaza, Suite 0126, 9th Floor,
Chicago, Illinois 60670-0126, Attention: Corporate Trust Administration.
SECTION 13.05. Governing Law.
This Indenture and each Security shall be deemed to be a contract made
under the laws of the State of New York, and for all purposes shall be governed
by and construed in accordance with the laws of said State.
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.
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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. Legal Holidays.
In any case where the date of payment of interest on or principal of the
Securities will be in The City of New York, New York or Chicago, Illinois a
legal holiday or a day on which banking institutions are authorized by law to
close, the payment of such interest on or principal of the Securities need not
be made on such date but may be made on the next succeeding day not in the City
a legal holiday or a day on which banking institutions are authorized by law to
close, 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.
(a) 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, such required provision shall control.
(b) Notwithstanding the foregoing, any provisions contained in this
Indenture as to directions and waivers by Securityholders or impairment of
Securityholders' rights to payment shall be in lieu of Sections 316(a)(1)(A) and
316(a)(1)(B) of the Trust Indenture Act and such sections are hereby expressly
excluded from this Indenture and the Securities, as permitted by the Trust
Indenture Act.
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 of any series 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
such Securities, but this Indenture and such 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,
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the Indenture is binding upon and inures to the benefit of the parties hereto
and their respective successors and assigns. This Indenture may not otherwise be
assigned by the parties hereto.
SECTION 13.13. Acknowledgment of Rights.
The Company acknowledges that, with respect to any Securities held by a
Fleet Capital Trust or a trustee of such trust, if the Institutional Trustee of
such Trust fails to enforce its rights under this Indenture as the holder of the
series of Securities held as the assets of such Fleet Capital Trust, any holder
of Capital Securities may institute legal proceedings directly against the
Company to enforce such Institutional Trustee's rights under this Indenture
without first instituting any legal proceedings against such Institutional
Trustee or any other person or entity. Notwithstanding the foregoing, if an
Event of Default has occurred and is continuing and such event is attributable
to the failure of the Company to pay interest or principal on the applicable
series of Securities on the date such interest or principal is otherwise payable
(or in the case of redemption, on the redemption date), the Company acknowledges
that a holder of Capital Securities may directly institute a proceeding for
enforcement of payment to such holder of the principal of or interest on the
applicable series of 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 applicable series of Securities.
ARTICLE XIV
REDEMPTION OF SECURITIES -- MANDATORY AND
OPTIONAL SINKING FUND
SECTION 14.01. Applicability of Article.
The provisions of this Article shall be applicable to the Securities of
any series which are redeemable before their maturity or to any sinking fund for
the retirement of Securities of a series except as otherwise specified as
contemplated by Section 2.03 for Securities of such series.
SECTION 14.02. 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 of any series 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 of such series 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 of
a series designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Security of such
series.
Each such notice of redemption shall specify the date fixed for
redemption, the redemption price at which Securities of such series are to be
redeemed, the place or places of payment, that payment will be made upon
presentation and surrender of such 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 of such series are to be
redeemed the notice of redemption shall specify the numbers of the Securities of
that series to be redeemed. In case any Security of a series 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 of
that series in principal amount equal to the unredeemed portion thereof will be
issued.
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
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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.
If less than all the Securities of a series are to be redeemed, the
Company will give the Trustee notice not less than 60 days prior to the
redemption date as to the aggregate principal amount of Securities of that
series to be redeemed and the Trustee shall select, in such manner as in its
sole discretion it shall deem appropriate and fair, the Securities of that
series or portions thereof (in integral multiples of $1,000, except as otherwise
set forth in the applicable form of Security) to be redeemed.
SECTION 14.03. Payment of Securities Called for Redemption.
If notice of redemption has been given as provided in Section 14.02 or
Section 14.04, the Securities or portions of Securities of the series 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, 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 of
any series 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.
Upon presentation of any Security of any series redeemed in part only, the
Company shall execute and the Trustee shall authenticate and deliver to the
holder thereof, at the expense of the Company, a new Security or Securities of
such series of authorized denominations, in principal amount equal to the
unredeemed portion of the Security so presented.
SECTION 14.04. Mandatory and Optional Sinking Fund.
The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment". The last date on which any such payment may be made is herein
referred to as a "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any Securities of a series in cash, the Company may at its
option (a) deliver to the Trustee Securities of that series theretofore
purchased by the Company and (b) may apply as a credit Securities of that series
which have been redeemed either at the election of the Company pursuant to the
terms of such Securities or through the application of optional sinking fund
payments pursuant to the next succeeding paragraph, in each case in satisfaction
of all or any part of any mandatory sinking fund payment, provided that such
Securities have not been previously so credited. Each such Security so delivered
or applied as a credit shall be credited at the sinking fund redemption price
for such Securities and the amount of any mandatory sinking fund shall be
reduced accordingly. If the Company intends so to deliver or credit such
Securities with respect to any mandatory sinking fund payment it shall deliver
to the Trustee at least 60 days prior to the next succeeding sinking fund
payment date for such series (a) a certificate signed by any Vice President, the
Treasurer or any Assistant Treasurer of the Company specifying the portion of
such sinking fund payment, if any, to be satisfied by payment of cash and the
portion of such sinking fund payment, if any, which is to be satisfied by
delivering and crediting such Securities and (b) any Securities to be so
delivered. All Securities so delivered to the Trustee shall be cancelled by the
Trustee and no Securities shall be authenticated in lieu thereof. If the Company
fails to deliver such certificate and Securities at or before the time provided
above, the Company shall not be permitted to satisfy any portion of such
mandatory sinking fund payment by delivery or credit of Securities.
At its option the Company may pay into the sinking fund for the retirement
of Securities of any particular series, on or before each sinking fund payment
date for such series, any additional sum in cash as specified by the terms of
such series of Securities. If the Company intends to exercise its right to make
any such optional sinking
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fund payment, it shall deliver to the Trustee at least 60 days prior to the next
succeeding sinking fund payment date for such Series a certificate signed by any
Vice President, the Treasurer or any Assistant Treasurer of the Company stating
that the Company intends to exercise such optional right and specifying the
amount which the Company intends to pay on such sinking fund payment date. If
the Company fails to deliver such certificate at or before the time provided
above, the Company shall not be permitted to make any optional sinking fund
payment with respect to such sinking fund payment date. To the extent that such
right is not exercised in any year it shall not be cumulative or carried forward
to any subsequent year.
If the sinking fund payment or payments (mandatory or optional) made in
cash plus any unused balance of any preceding sinking fund payments made in cash
shall exceed $50,000 (or a lesser sum if the Company shall so request) with
respect to the Securities of any particular series, it shall be applied by the
Trustee or one or more paying agents on the next succeeding sinking fund payment
date to the redemption of Securities of such series at the sinking fund
redemption price together with accrued interest to the date fixed for
redemption. The Trustee shall select, in the manner provided in Section 14.02,
for redemption on such sinking fund payment date a sufficient principal amount
of Securities of such series to absorb said cash, as nearly as may be, and the
Trustee shall, at the expense and in the name of the Company, thereupon cause
notice of redemption of Securities of such series to be given in substantially
the manner and with the effect provided in Sections 14.02 and 14.03 for the
redemption of Securities of that series in part at the option of the Company,
except that the notice of redemption shall also state that the Securities of
such series are being redeemed for the sinking fund. Any sinking fund moneys not
so applied or allocated by the Trustee or any paying agent to the redemption of
Securities of that series shall be added to the next cash sinking fund payment
received by the Trustee or such paying agent and, together with such payment,
shall be applied in accordance with the provisions of this Section 14.04. Any
and all sinking fund moneys held by the Trustee or any paying agent on the
maturity date of the Securities of any particular series, and not held for the
payment or redemption of particular Securities of such series, shall be applied
by the Trustee or such paying agent, together with other moneys, if necessary,
to be deposited sufficient for the purpose, to the payment of the principal of
the Securities of that series at maturity.
On or before each sinking fund payment date, the Company shall pay to the
Trustee or to one or more paying agents in cash a sum equal to all interest
accrued to the date fixed for redemption on Securities to be redeemed on the
next following sinking fund payment date pursuant to this Section.
Neither the Trustee nor any paying agent shall redeem any Securities of a
series with sinking fund moneys, and the Trustee shall not mail any notice of
redemption of Securities for such series by operation of the sinking fund,
during the continuance of a default in payment of interest on such Securities or
of any Event of Default (other than an Event of Default occurring as a
consequence of this paragraph), except that if the notice of redemption of any
Securities shall theretofore have been mailed in accordance with the provisions
hereof, the Trustee or any paying agent shall redeem such Securities if cash
sufficient for that purpose shall be deposited with the Trustee or such paying
agent for that purpose in accordance with the terms of this Article Fourteen.
Except as aforesaid, any moneys in the sinking fund for such series at the time
when any such default or Event of Default shall occur and any moneys thereafter
paid into the sinking fund shall, during the continuance of such default or
Event of Default, be held as security for the payment of all such Securities;
provided, however, that in case such Event of Default or default shall have been
cured or waived as provided herein, such moneys shall thereafter be applied on
the next succeeding sinking fund payment date on which such moneys may be
applied pursuant to the provisions of this Section 14.04.
ARTICLE XV
SUBORDINATION OF SECURITIES
SECTION 15.01. Agreement to Subordinate.
The Company covenants and agrees, and each holder of Securities issued
hereunder and under any supplemental indenture or by any resolutions by the
Board of Directors ("Additional Provisions") by such Securityholder's acceptance
thereof likewise covenants and agrees, that all Securities shall be issued
subject to the
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provisions of this Article Fifteen; 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, premium, if any, and
interest on all Securities issued hereunder and under any Additional Provisions
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 Senior
Indebtedness and Other Financial Obligations of the Company and rank pari passu
and equivalent to creditor obligations of those holding general unsecured claims
not entitled to statutory priority under the United States Bankruptcy Code or
otherwise, in each case whether outstanding at the date of this Indenture or
thereafter incurred.
No provision of this Article Fifteen shall prevent the occurrence of any
default or Event of Default hereunder.
SECTION 15.02. Default on Senior Indebtedness.
No payment may be made of the principal of, premium, if any, or interest
on the Securities, or in respect of any redemption, retirement, purchase or
other acquisition of any of the Securities, at any time when (i) there is a
default in the payment of the principal of, premium, if any, interest on or
otherwise in respect of any Senior Indebtedness, whether at maturity or at a
date fixed for prepayment or by declaration or otherwise, or (ii) any event of
default with respect to any Senior Indebtedness has occurred and is continuing,
or would occur as a result of such payment on the Securities or any redemption,
retirement, purchase or other acquisition of any of the Securities, permitting
the holders of such Senior Indebtedness (or a trustee on behalf of the holders
thereof) to accelerate the maturity thereof.
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 and Other Financial Obligations or their respective
representatives, or to the trustee or trustees under any indenture pursuant to
which any of such Senior Indebtedness and Other Financial Obligations may have
been issued, as their respective interests may appear, but only to the extent
that the holders of the Senior Indebtedness and Other Financial Obligations (or
their representative or representatives or a trustee) notify the Trustee in
writing within 90 days of such payment of the amounts then due and owing on the
Senior Indebtedness and Other Financial Obligations and only the amounts
specified in such notice to the Trustee shall be paid to the holders of Senior
Indebtedness and Other Financial Obligations.
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, winding-up, liquidation or reorganization of the Company,
whether voluntary or involuntary or in bankruptcy, insolvency, receivership or
other proceedings, all amounts due upon all Senior Indebtedness and Other
Financial Obligations of the Company shall first be paid in full, or payment
thereof provided for in money in accordance with their 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 under the provisions of this Article Fifteen,
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 and Other Financial
Obligations of the Company (pro rata to such holders on the basis of the
respective amounts of Senior Indebtedness and Other Financial Obligations 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 and Other Financial
Obligations may have been issued, as their respective interests may appear, to
the extent necessary to pay such Senior Indebtedness and Other Financial
Obligations 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 and Other Financial Obligations, before any payment or distribution
is made to the Securityholders or to the Trustee.
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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 Senior Indebtedness and Other Financial Obligations of the
Company are 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 and Other Financial Obligations or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing such Senior Indebtedness and Other Financial
Obligations may have been issued, and their respective interests may appear, as
calculated by the Company, for application to the payment of all Senior
Indebtedness and Other Financial Obligations of the Company, as the case may be,
remaining unpaid to the extent necessary to pay such Senior Indebtedness and
Other Financial Obligations 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 and Other Financial Obligations.
For purposes of this Article Fifteen, 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 Fifteen with
respect to the Securities to the payment of all Senior Indebtedness and Other
Financial Obligations of the Company, as the case may be, that may at the time
be outstanding, provided that (i) such Senior Indebtedness and Other Financial
Obligations 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 and Other Financial Obligations 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
corporation or the liquidation or dissolution of the Company following the
conveyance or transfer of its property as an entirety, or substantially as an
entirety, to another corporation upon the terms and conditions provided for in
Article Ten 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 corporation shall, as a part of such consolidation, merger, conveyance or
transfer, comply with the conditions stated in Article Ten 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 6.06 of this Indenture.
SECTION 15.04. Subrogation.
Subject to the payment in full of all Senior Indebtedness and Other
Financial Obligations of the Company, the rights of the Securityholders shall be
subrogated to the rights of the holders of such Senior Indebtedness and Other
Financial Obligations to receive payments or distributions of cash, property or
securities of the Company, as the case may be, applicable to such Senior
Indebtedness and Other Financial Obligations until all amounts owing 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 and Other
Financial Obligations of any cash, property or securities to which the
Securityholders or the Trustee would be entitled except under the provisions of
this Article Fifteen, and no payment over pursuant to the provisions of this
Article Fifteen to or for the benefit of the holders of such Senior Indebtedness
and Other Financial Obligations by Securityholders or the Trustee, shall, as
between the Company, its creditors other than holders of Senior Indebtedness and
Other Financial Obligations 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 and Other Financial Obligations. It is understood that the
provisions of this Article Fifteen 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 and Other Financial
Obligations, on the other hand.
Nothing contained in this Article Fifteen or elsewhere in this Indenture,
any Additional Provisions or in the Securities is intended to or shall impair,
as between the Company, its creditors other than the holders of Senior
Indebtedness and Other Financial Obligations 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,
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 and Other Financial Obligations of the
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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 Fifteen of the holders of such Senior
Indebtedness and Other Financial Obligations 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 Fifteen, the Trustee, subject to the provisions of Article Six 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, Other Financial Obligations 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 Fifteen.
SECTION 15.05. Trustee to Effectuate Subordination.
Each Securityholder by such Securityholder's acceptance thereof authorizes
and directs the Trustee on such Securityholder's behalf to take such action as
may be necessary or appropriate to effectuate the subordination provided in this
Article Fifteen 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
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 Fifteen. Notwithstanding the provisions of this
Article Fifteen or any other provision of this Indenture or any Additional
Provisions, 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
Fifteen, unless and until a Responsible Officer shall have received written
notice thereof from the Company or a holder or holders of Senior Indebtedness or
Other Financial Obligations or from any trustee therefor; and before the receipt
of any such written notice, the Trustee, subject to the provisions of Article
Six 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 Six 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 or Other
Financial Obligations 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 Other Financial Obligations 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 or Other Financial Obligations to
participate in any payment or distribution pursuant to this Article Fifteen, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of such Senior Indebtedness or
Other Financial Obligations 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 Fifteen, 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.
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SECTION 15.07. Rights of the Trustee; Holders of Senior Indebtedness and
Other Financial Obligations.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article Fifteen in respect of any Senior Indebtedness or Other
Financial Obligations at any time held by it, to the same extent as any other
holder of Senior Indebtedness or Other Financial Obligations, and nothing in
this Indenture or any Additional Provisions shall deprive the Trustee of any of
its rights as such holder.
With respect to the holders of Senior Indebtedness or Other Financial
Obligations 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 Fifteen, and no implied covenants or obligations with respect to the
holders of such Senior Indebtedness or Other Financial Obligations shall be read
into this Indenture or any Additional Provisions against the Trustee. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of such
Senior Indebtedness or Other Financial Obligations and, subject to the
provisions of Article Six of this Indenture, the Trustee shall not be liable to
any holder of such Senior Indebtedness or Other Financial Obligations 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 or Other
Financial Obligations shall be entitled by virtue of this Article Fifteen or
otherwise.
SECTION 15.08. Subordination May Not Be Impaired.
No right of any present or future holder of any Senior Indebtedness or
Other Financial Obligations of the Company to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Company, as the case may be, or by any act or
failure to act, in good faith, by any such holder, or by any noncompliance by
the Company, as the case may be, with the terms, provisions and covenants of
this Indenture, regardless of any knowledge thereof that any such holder may
have or otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Indebtedness or Other Financial Obligations 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 Fifteen or the obligations hereunder of the holders of the
Securities to the holders of such Senior Indebtedness or Other Financial
Obligations, 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 Other Financial Obligations, or otherwise amend or
supplement in any manner such Senior Indebtedness or Other Financial Obligations
or any instrument evidencing the same or any agreement under which such Senior
Indebtedness or Other Financial Obligations is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing such Senior Indebtedness or Other Financial Obligations; (iii) release
any Person liable in any manner for the collection of such Senior Indebtedness
or Other Financial Obligations; and (iv) exercise or refrain from exercising any
rights against the Company, as the case may be, and any other Person.
[The rest of this page is left blank intentionally]
46
<PAGE>
The First National Bank of Chicago 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 and their
respective corporate seals to be hereunto duly affixed and attested, all as of
the day and year first above written.
[Seal] FLEET FINANCIAL GROUP, INC.
Attest:
/s/ William C. Mutterperl By: /s/ Eugene M. McQuade
William C. Mutterperl -------------------------------
Secretary Eugene M. McQuade
Executive Vice President and
Chief Financial Officer
[Seal] THE FIRST NATIONAL BANK OF CHICAGO,
Attest: as Trustee
/s/ Jeff Kinney
Title: Assistant Vice President
By: /s/ Mary R. Fonti
--------------------------------
Title: Assistant Vice President
<PAGE>
STATE OF RHODE ISLAND )
COUNTY OF PROVIDENCE ) ss.:
On the ____ day of December, 1996 before me personally came Eugene M.
McQuade, to me known, who, being by me duly sworn, did depose and say that he
resides at 50 Downing Street, East Greenwich, Rhode Island; that he is Executive
Vice President and Chief Financial Officer of Fleet Financial Group, Inc., one
of the corporations described in and which executed the above instrument; that
he knows the corporate seal of said corporation; that the seal affixed to the
said instrument is such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation; and that he signed his name thereto
by like authority.
_____________________________________
NOTARY PUBLIC
[seal] Commission expires:
STATE OF )
COUNTY OF ) ss.:
On the _____ day of ________________, 1996, before me personally came
__________________________, to me known, who, being by me duly sworn, did depose
and say that he resides at ___________________; that he is ___________________
of The First National Bank of Chicago, one of the corporations described in and
which executed the above instrument; that he knows the corporate seal of said
corporation; that the seal affixed to the said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
_____________________________________
NOTARY PUBLIC
[seal] Commission expires:
FIRST SUPPLEMENTAL INDENTURE
between
FLEET FINANCIAL GROUP, INC.
and
THE FIRST NATIONAL BANK OF CHICAGO
Dated as of December 11, 1996
<PAGE>
TABLE OF CONTENTS*
Page
----
ARTICLE I
DEFINITIONS
SECTION 1.1 Definition of Terms 1
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1 Designation and Principal Amount 4
SECTION 2.2 Maturity 4
SECTION 2.3 Form and Payment 4
SECTION 2.4 Global Debenture 4
SECTION 2.5 Interest 5
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1 Optional Redemption 6
SECTION 3.2 Special Event Redemption 6
SECTION 3.3 Redemption Procedures 6
SECTION 3.4 No Sinking Fund 7
SECTION 3.5 Required Approval 7
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1 Extension of Interest Payment Period 7
SECTION 4.2 Notice of Extension 7
SECTION 4.3 Limitation of Transactions 8
ARTICLE V
EXPENSES
SECTION 5.1 Payment of Expenses 8
SECTION 5.2 Payment Upon Resignation or Removal 9
ARTICLE VI
COVENANT TO LIST ON EXCHANGE
SECTION 6.1 Listing on an Exchange 9
ARTICLE VII
FORM OF DEBENTURE
SECTION 7.1 Form of Debenture 9
*THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE A PART OF
THIS FIRST SUPPLEMENTAL INDENTURE.
<PAGE>
ARTICLE VIII
ORIGINAL ISSUE OF DEBENTURES
SECTION 8.1 Original Issue of Debentures 13
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Ratification of Indenture 13
SECTION 9.2 Trustee Not Responsible for Recitals 14
SECTION 9.3 Governing Law 14
SECTION 9.4 Separability 14
SECTION 9.5 Counterparts 14
ii
<PAGE>
FIRST SUPPLEMENTAL INDENTURE, dated as of December 11, 1996 (the "First
Supplemental Indenture"), between Fleet Financial Group, Inc., a Rhode Island
corporation (the "Company"), and The First National Bank of Chicago, as trustee
(the "Trustee") under the Indenture dated as of December 11, 1996 between the
Company and the Trustee (the "Indenture").
WHEREAS, the Company executed and delivered the Indenture to the Trustee to
provide for the future issuance of the Company's unsecured junior subordinated
debt securities to be issued from time to time in one or more series as might be
determined by the Company under the Indenture, in an unlimited aggregate
principal amount which may be authenticated and delivered as provided in the
Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company desires to
provide for the establishment of a new series of such securities to be known as
its 7.92% Junior Subordinated Deferrable Interest Debentures due 2026 (the
"Debentures"), the form and substance of such Debentures and the terms,
provisions and conditions thereof to be set forth as provided in the Indenture
and this First Supplemental Indenture;
WHEREAS, the Company and Fleet Capital Trust II, a Delaware statutory
business trust (the "Trust"), has offered to the public $250,000,000 aggregate
liquidation amount of its 7.92% Capital Securities (the "Capital Securities"),
representing preferred undivided beneficial interests in the assets of the
Trust, and proposes to invest the proceeds from such offering, together with the
proceeds of the issuance and sale by the Trust to the Company of $7,732,000
aggregate liquidation amount of its 7.92% Common Securities (the "Common
Securities"), in $257,732,000 aggregate principal amount of the Debentures; and
WHEREAS, the Company has requested that the Trustee execute and deliver
this First Supplemental Indenture and all requirements necessary to make this
First Supplemental Indenture a valid instrument in accordance with its terms,
and to make the Debentures, when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company, have been
performed, and the execution and delivery of this First Supplemental Indenture
has been duly authorized in all respects.
NOW THEREFORE, in consideration of the purchase and acceptance of the
Debentures by the Holders thereof, and for the purpose of setting forth, as
provided in the Indenture, the form and substance of the Debentures and the
terms, provisions and conditions thereof, the Company covenants and agrees with
the Trustee as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used in this
First Supplemental Indenture;
(b) a term defined anywhere in this First Supplemental Indenture has the
same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or Article of this
First Supplemental Indenture;
(e) headings are for convenience of reference only and do not affect
interpretation;
(f) the following terms have the meanings given to them in the Declaration:
(i) Underwriting Agreement; (ii) Delaware Trustee; (iii) Distributions; (iv)
Institutional Trustee; (v) Capital Securities Guarantee; (vi) Capital Security
Certificate; and (vii) Regular Trustee.
<PAGE>
(g) the following terms have the meanings given to them in this Section
1.1(g):
"Additional Interest" shall have the meaning set forth in Section 2.5(c).
"Adjusted Treasury Rate" means, with respect to any prepayment date, the
rate per annum equal to (i) the yield, under the heading which represents the
average for the immediately prior week, appearing in the most recently published
statistical release designated "H.15(519)" or any successor publication which is
published weekly by the Federal Reserve Board and which establishes yields on
actively traded United States Treasury securities adjusted to constant maturity
under the caption "Treasury Constant Maturities," for the maturity corresponding
to the Remaining Life (if no maturity is within three months before or after the
Remaining Life, yields for the two published maturities most closely
corresponding to the Remaining Life shall be determined and the Adjusted
Treasury Rate shall be interpolated or extrapolated from such yields on a
straight-line basis, rounding to the nearest month) or (ii) if such release (or
any successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per annum equal to
the semi-annual equivalent yield to maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
such prepayment date, in each case calculated on the third Business Day
preceding the prepayment date, plus, in each case (A) 1.08% if such prepayment
date occurs on or prior to December 15, 1997 and (B) 0.50% in all other cases.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to the Remaining
Life of the Debentures to be prepaid that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity with the Remaining
Life of the Debentures. If no United States Treasury security has a maturity
which is within a period from three months before to three months after December
15, 2006, the two most closely corresponding United States Treasury securities
shall be used as the Comparable Treasury Issue, and the Adjusted Treasury Rate
shall be interpolated or extrapolated on a straight-line basis, rounding to the
nearest month using such securities.
"Comparable Treasury Price" means with respect to any prepayment date, (i)
the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
Business Day preceding such prepayment date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such Business Day, (A) the average
of five Reference Treasury Dealer Quotations for such prepayment date, after
excluding the highest and lowest of such Reference Treasury Dealer Quotations,
or (b) if the Trustee obtains fewer than three such Reference Treasury Dealer
Quotations, the average of all such quotations.
"Compound Interest" shall have the meaning set forth in Section 4.1.
"Coupon Rate" shall have the meaning set forth in Section 2.5(a).
"Declaration" means the Amended and Restated Declaration of Trust of Fleet
Capital Trust II, a Delaware statutory business trust, dated as of December 11,
1996.
"Deferred Interest" shall have the meaning set forth in Section 4.1.
"Dissolution Event" means the dissolution of the Trust and distribution of
the Debentures held by the Institutional Trustee pro rata to the holders of the
Trust Securities in accordance with the Declaration, such event to occur at the
option of the Company at any time.
"Extended Interest Payment Period" shall have the meaning set forth in
Section 4.1.
"Federal Reserve Board" means the Board of Governors of the Federal Reserve
System.
"Global Debenture" shall have the meaning set forth in Section 2.4(a).
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"Holder" means any person in whose name at the time a Debenture is
registered on the Security Register.
"Interest Payment Date" shall have the meaning set forth in Section 2.5(a).
"Non Book-Entry Capital Securities" shall have the meaning set forth in
Section 2.4(a).
"Optional Prepayment Price" shall have the meaning set forth in Section
2.2(b).
"Prepayment Price" shall mean either of the Optional Prepayment Price or
the Special Event Prepayment Price.
"Quotation Agent" means the Reference Treasury Dealer appointed by the
Trustee after consultation with the Company,
"Reference Treasury Dealer" means (i) Merrill Lynch Government Securities,
Inc. and their respective successors; provided, however, that if the foregoing
shall cease to be a primary U.S. Government securities dealer in New York City
(a "Primary Treasury Dealer"), the Company shall substitute therefor another
Primary Treasury Dealer, and (ii) any other Primary Treasury Dealer selected by
the Trustee after consultation with the Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any prepayment date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third Business Day preceding such prepayment date.
"Regulatory Capital Event" means that the Company shall have received an
opinion of independent bank regulatory counsel experienced in such matters to
the effect that, as a result of (a) any amendment to, or change (including any
announced prospective change) in, the laws (or any regulations thereunder) of
the United States or any rules, guidelines or policies of the Federal Reserve
Board or (b) any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or such pronouncement or decision is announced on or after the date of
original issuance of the Capital Securities, the Capital Securities do not
constitute, or within 90 days of the date thereof, will not constitute, Tier 1
capital (or its equivalent) for purposes of the Federal Reserve Board's capital
guidelines for bank holding companies; provided, however, that the distribution
of the Debentures in connection with the liquidation of the Trust by the Company
and the treatment thereafter of the Debentures as other than Tier 1 capital
shall not in and or itself constitute a Regulatory Capital Event unless such
liquidation shall have occurred in connection with a Tax Event.
"Special Event" means a Tax Event or a Regulatory Capital Event, as the
case may be.
"Special Event Prepayment Price" shall have the meaning set forth in
Section 2.2(c).
"Stated Maturity" means the date on which the Debentures mature and on
which the principal shall be due and payable, together with all accrued and
unpaid interest thereon including Compound Interest and Additional Interest, if
any, which date shall be December 11, 2026.
"Tax Event" means that the Regular Trustees shall have received an opinion
of a nationally recognized independent tax counsel experienced in such matters
to the effect that, as a result of (a) any amendment to, or change (including
any announced prospective change) in, the laws or any regulations thereunder of
the United States or any political subdivision or taxing authority thereof or
therein, or (b) any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or such pronouncement or decision is announced on or after the date of
the original issuance of the Capital Securities, there is more than an
insubstantial risk that (i) the Trust is, or will be within 90 days of the date
of such opinion, subject to United States federal income tax with respect to
income received or accrued on the Debentures, (ii) interest payable by the
Company on the Debentures is not, or within 90 days of the date thereof will not
be, deductible by the Company, in whole or in part, for United States federal
income tax purposes, or (iii) the
3
<PAGE>
Trust is, or will be within 90 days of the date of such opinion, subject to more
than a de minimis amount of other taxes, duties or other governmental charges.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1. Designation and Principal Amount.
There is hereby authorized a series of Securities designated the "7.92%
Junior Subordinated Deferrable Interest Debentures due 2026", limited in
aggregate principal amount to $257,732,000 which amount shall be as set forth in
any written order of the Company for the authentication and delivery of
Debentures pursuant to Section 2.04 of the Indenture.
SECTION 2.2. Maturity.
(a) The Debentures shall mature on December 11, 2026 (the "Stated
Maturity").
SECTION 2.3. Form and Payment.
Except as provided in Section 2.4, the Debentures shall be issued in fully
registered certificated form without interest coupons. Principal and interest on
the Debentures issued in certificated form will be payable, the transfer of such
Debentures will be registrable and such Debentures will be exchangeable for
Debentures bearing identical terms and provisions at the office or agency of the
Trustee in New York, New York; provided, however, that payment of interest may
be made at the option of the Company by check mailed to the Holder entitled
thereto at such address as shall appear in the Security Register or by wire
transfer to an account appropriately designated by the Holder, entitled thereto.
Notwithstanding the foregoing, so long as the Holder of any Debentures is the
Institutional Trustee, the payment of the principal of and interest (including
Compound Interest and Additional Interest, if any) on such Debentures held by
the Institutional Trustee will be made at such place and to such account as may
be designated by the Institutional Trustee.
SECTION 2.4. Global Debenture.
(a) In connection with a Dissolution Event,
(i) the Debentures in certificated form may be presented to the
Trustee by the Institutional Trustee in exchange for a global Debenture in
an aggregate principal amount equal to the aggregate principal amount of
all outstanding Debentures (a "Global Debenture"), to be registered in the
name of the Depository Institution, or its nominee, and delivered by the
Trustee to the Depository Institution for crediting to the accounts of its
participants pursuant to the instructions of the Regular Trustees. The
Company upon any such presentation shall execute a Global Debenture in such
aggregate principal amount and deliver the same to the Trustee for
authentication and delivery in accordance with the Indenture and this First
Supplemental Indenture. Payments on the Debentures issued as a Global
Debenture will be made to the Depository Institution; and
(ii) if any Capital Securities are held in non book-entry certificated
form, the Debentures in certificated form may be presented to the Trustee
by the Institutional Trustee and any Capital Security Certificate which
represents Capital Securities other than Capital Securities held by the
Depository Institution or its nominee ("Non Book-Entry Capital Securities")
will be deemed to represent beneficial interests in Debentures presented to
the Trustee by the Institutional Trustee having an aggregate principal
amount equal to the aggregate liquidation amount of the Non Book-Entry
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 Debenture, 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
4
<PAGE>
Security Certificate cancelled, will be executed by the Company and
delivered to the Trustee for authentication and delivery in accordance with
the Indenture and this First Supplemental Indenture. On issue of such
Debentures, Debentures with an equivalent aggregate principal amount that
were presented by the Institutional Trustee to the Trustee will be deemed
to have been cancelled.
(b) A Global Debenture may be transferred, in whole but not in part, only
to another nominee of the Depository Institution, or to a successor Depository
Institution selected or approved by the Company or to a nominee of such
successor Depository Institution.
(c) If (i) at any time the Depository Institution notifies the Company that
it is unwilling or unable to continue as Depository Institution or if at any
time the Depository Institution for such series shall no longer be registered or
in good standing under the Securities Exchange Act of 1934, as amended, or other
applicable statute or regulation, and a successor Depository Institution for
such series is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such condition, as the case may be,
(ii) the Company at any time determines that the Debentures shall no longer be
solely represented by a Global Debenture or (iii) there shall have occurred an
Event of Default, then the Company will execute, and, subject to Article II of
the Indenture, the Trustee, upon written notice from the Company, will
authenticate and deliver the Debentures in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount equal
to the principal amount of the Global Debenture in exchange for such Global
Debenture. In such event the Company will execute, and, subject to Section 2.07
of the Indenture, the Trustee, upon receipt of an Officers' Certificate
evidencing such determination by the Company, will authenticate and deliver the
Debentures in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Debenture in exchange for such Global Debenture. Upon the
exchange of the Global Debenture for such Debentures in definitive registered
form without coupons, in authorized denominations, the Global Debenture shall be
cancelled by the Trustee. Such Debentures in definitive registered form issued
in exchange for the Global Debenture shall be registered in such names and in
such authorized denominations as the Depository Institution, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the
Depository Institution for delivery to the Persons in whose names such
Securities are so registered.
SECTION 2.5. Interest.
(a) Each Debenture will bear interest at the rate of 7.92% per annum (the
"Coupon Rate") from the original date of issuance until the principal thereof
becomes due and payable, and on any overdue principal and, to the extent that
payment of such interest is enforceable under applicable law, on any overdue
installment of interest at the Coupon Rate, compounded quarterly, payable
semi-annually in arrears on June 15 and December 15 of each year (each, an
"Interest Payment Date"), commencing on June 15, 1997, to the Person in whose
name such Debenture or any predecessor Debenture is registered, at the close of
business on the first day of the month in which the relevant Interest Payment
Date falls, except as otherwise provided herein. Payments of interest may be
deferred by the Company pursuant to the provisions of Article IV hereof.
(b) The amount of interest payable for any period will be computed on the
basis of a 360-day year of twelve 30-day months. Except as provided in the
following sentence, the amount of interest payable for any period shorter than a
full semi-annual period for which interest is computed, will be computed on the
basis of the actual number of days elapsed. In the event that any date on which
interest is payable on the Debentures is not a Business Day, then payment of
interest payable on such date will be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect of any such
delay), except that, if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such date.
(c) If, at any time while the Institutional Trustee is the holder of any
Junior Subordinated Debentures, the Trust or the Institutional Trustee is
required to pay any taxes, duties, assessments or governmental charges of
whatever nature (other than withholding taxes) imposed by the United States, or
any other taxing authority, then, in any such case, the Company will pay as
additional interest ("Additional Interest") on the Debentures held by the
Institutional Trustee, such additional amounts as shall be required so that the
net amounts received and retained by the Trust and
5
<PAGE>
by the Institutional Trustee after paying such taxes, duties, assessments or
other governmental charges will be equal to the amounts the Trust and the
Institutional Trustee would have received had no such taxes, duties, assessments
or other governmental charges been imposed.
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1 Optional Redemption
The Debentures are prepayable, in whole or in part, at the option of the
Company on or after December 15, 2006 at a prepayment price (the "Optional
Prepayment Price") equal to the percentage of the principal amount of the
Debentures specified below, plus, in each case, accrued interest thereon
(including Additional Interest and Compound Interest, if any) to the date of
prepayment if prepaid during the 12-month period beginning December 15 of the
years indicated below:
Year Percentage
---- ----------
2006 103.908%
2007................................................ 103.517
2008................................................ 103.126
2009................................................ 102.736
2010................................................ 102.345
2011................................................ 101.954
2012................................................ 101.563
2013................................................ 101.172
2014................................................ 100.782
2015................................................ 100.391
2016 and thereafter................................. 100.000
SECTION 3.2 Special Event Redemption
If a Special Event shall occur and be continuing, the Company may, at its
option and subject to receipt of prior approval of the Federal Reserve Board if
such approval is then required under applicable law, rules, guidelines or
policies, prepay the Debentures in whole (but not in part) at any time prior to
December 15, 2006 and within 90 days of the occurrence of such Special Event, at
a prepayment price (the "Special Event Prepayment Price") equal to the greater
of (i) 100% of the principal amount of such Debentures or (ii) the sum as
determined by a Quotation Agent, of the present values of the principal amount
and premium payable as part of the Redemption Price with respect to an optional
redemption of such Debentures on December 15, 2006, together with scheduled
payments of interest from the prepayment date to December 15, 2006 (the
"Remaining Life"), in each case discounted to the prepayment date on a
semi-annual basis (assuming a 360-day year consisting of 30-day months) at the
Adjusted Treasury Rate, plus, in each case accrued interest thereon (including
Additional Interest and Compound Interest, if any) to the date of prepayment.
SECTION 3.3 Redemption Procedures
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each holder of Debentures to be prepaid at
its registered address. Unless the Company defaults in payment of the prepayment
price, on and after the redemption date interest shall cease to accrue on such
Debentures called for redemption. If the Debentures are only partially redeemed
pursuant to Section 3.1, the Debentures will be redeemed pro rata or by lot or
by any other method utilized by the Trustee; provided, that if at the time of
redemption the Debentures are registered as a Global Debenture, the Depository
Institution shall determine, in accordance with its procedures, the principal
amount of such Debentures held by each Holder to be redeemed. The Prepayment
Price shall be paid prior to 12:00 noon, New York time, on the date of such
prepayment or at such earlier time as the
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<PAGE>
Company determines; provided that the Company shall deposit with the Trustee an
amount sufficient to pay the Prepayment Price by 10:00 a.m., New York time, on
the date such prepayment price is to be paid.
SECTION 3.4. No Sinking Fund.
The Debentures are not entitled to the benefit of any sinking fund.
SECTION 3.5. Required Approval.
Any redemption of the Debentures in accordance with the foregoing Sections
may require the prior approval of the Federal Reserve Board if such approval is
then required under applicable law, rules, guidelines or policies.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period.
So long as the Company shall not be in default in the payment of interest
on the Debentures, the Company shall have the right, at any time and from time
to time during the term of the Debentures, to defer payments of interest by
extending the interest payment period of such Debentures for a period not
exceeding 10 consecutive semi-annual periods (the "Extended Interest Payment
Period"), during which Extended Interest Payment Period no interest shall be due
and payable; provided that no Extended Interest Payment Period may extend beyond
the Stated Maturity. To the extent permitted by applicable law, interest, the
payment of which has been deferred because of the extension of the interest
payment period pursuant to this Section 4.1, will bear interest thereon at the
Coupon Rate compounded semi-annually for each semi-annual period of the Extended
Interest Payment Period ("Compound Interest"). At the end of the Extended
Interest Payment Period, the Company shall pay all interest accrued and unpaid
on the Debentures, including any Additional Interest and Compound Interest
(together, "Deferred Interest") that shall be payable to the Holders in whose
names the Debentures are registered in the Security Register on the first record
date after the end of the Extended Interest Payment Period. Before the
termination of any Extended Interest Payment Period, the Company may further
extend such period, provided that such period together with all such further
extensions thereof shall not exceed 10 consecutive semi-annual periods, or
extend beyond the Stated Maturity of the Debentures. Upon the termination of any
Extended Interest Payment Period and upon the payment of all Deferred Interest
then due, the Company may commence a new Extended Interest Payment Period,
subject to the foregoing requirements. No interest shall be due and payable
during an Extended Interest Payment Period, except at the end thereof, but the
Company may prepay at any time all or any portion of the interest accrued during
an Extended Interest Payment Period.
SECTION 4.2. Notice of Extension.
(a) If the Institutional Trustee is the only registered Holder at the time
the Company selects an Extended Interest Payment Period, the Company shall give
written notice to the Regular Trustees, the Institutional Trustee and the
Trustee of its selection of such Extended Interest Payment Period one Business
Day before the earlier of (i) the next succeeding date on which Distributions on
the Trust Securities issued by the Trust are payable, or (ii) the date the Trust
is required to give notice of the record date, or the date such Distributions
are payable, to the New York Stock Exchange or other applicable self-regulatory
organization or to holders of the Capital Securities issued by the Trust, but in
any event at least one Business Day before such record date.
(b) If the Institutional Trustee is not the only Holder at the time the
Company selects an Extended Interest Payment Period, the Company shall give the
Holders of the Debentures and the Trustee written notice of its selection of
such Extended Interest Payment Period at least ten Business Days before the
earlier of (i) the next succeeding Interest Payment Date, or (ii) the date the
Company is required to give notice of the record or payment date of such
interest payment to the New York Stock Exchange or other applicable
self-regulatory organization or to Holders of the Debentures.
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(c) The semi-annual period in which any notice is given pursuant to
paragraphs (a) or (b) of this Section 4.2 shall be counted as one of the 10
semi-annual periods permitted in the maximum Extended Interest Payment Period
permitted under Section 4.1.
SECTION 4.3. Limitation of Transactions.
If (i) the Company shall exercise its right to defer payment of interest as
provided in Section 4.1, or (ii) there shall have occurred any Event of Default,
as defined in the Indenture, or (iii) there shall have occurred any Event of
Default, as defined in the Capital Securities Guarantee, then (a) the Company
shall not declare or pay any dividend on, make any distribution with respect to,
or redeem, purchase, acquire or make a liquidation payment with respect to, any
of its capital stock (other than (1) purchases or acquisitions of shares of its
common stock in connection with the satisfaction by the Company of its
obligations under any employee benefit plans or any other contractual obligation
of the Company (other than a contractual obligation ranking pari passu with or
junior to the Debentures), (2) as a result of a reclassification of the
Company's capital stock or the exchange or conversion of one class or series of
the Company's capital stock for another class or series of the Company's capital
stock or (3) the purchase of fractional interests in shares of the Company's
capital stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged), (b) the Company shall not
make any payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities issued by the Company that rank pari
passu with or junior to the Debentures and (c) the Company shall not make any
guarantee payments with respect to the foregoing (other than pursuant to the
Capital Securities Guarantee).
ARTICLE V
EXPENSES
SECTION 5.1. Payment of Expenses.
In connection with the offering, sale and issuance of the Debentures to the
Institutional Trustee and in connection with the sale of the Trust Securities by
the Trust, the Company, in its capacity as borrower with respect to the
Debentures, shall:
(a) pay all costs and expenses relating to the offering, sale and issuance
of the Debentures, including commissions to the underwriter payable pursuant to
the Underwriting Agreement and the Pricing Agreement and compensation of the
Trustee under the Indenture in accordance with the provisions of Section 6.06 of
the Indenture;
(b) be responsible for and shall pay all debts and obligations (other than
with respect to the Trust Securities) and all costs and expenses of the Trust
(including, but not limited to, costs and expenses relating to the organization,
maintenance and dissolution of the Trust, the offering, sale and issuance of the
Trust Securities (including commissions to the underwriters in connection
therewith), the fees and expenses (including reasonable counsel fees and
expenses) of the Institutional Trustee, the Delaware Trustee and the Regular
Trustees (including any amounts payable under Article 10 of the Declaration),
the costs and expenses relating to the operation of the Trust, including without
limitation, costs and expenses of accountants, attorneys, statistical or
bookkeeping services, expenses for printing and engraving and computing or
accounting equipment, paying agent(s), registrar(s), transfer agent(s),
duplicating, travel and telephone and other telecommunications expenses and
costs and expenses incurred in connection with the acquisition, financing, and
disposition of Trust assets and the enforcement by the Institutional Trustee of
the rights of the holders of the Capital Securities);
(c) be primarily liable for any indemnification obligations arising with
respect to the Declaration; and
(d) pay any and all taxes (other than United States withholding taxes
attributable to the Trust or its assets) and all liabilities, costs and expenses
with respect to such taxes of the Trust.
The Company's obligations under this Section 5.1 shall be for the benefit
of, and shall be enforceable by, any person to whom such debts, obligations,
costs, expenses and taxes are owed (a "Creditor") whether or not such Creditor
has received notice hereof. Any such Creditor may enforce the Company's
obligations under this Section
8
<PAGE>
5.1 directly against the Company and the Company irrevocably waives any right of
remedy to require that any such Creditor take any action against the Trust or
any other Person before proceeding against the Company. The Company agrees to
execute such additional agreements as may be necessary or desirable in order to
give full effect to the provisions of this Section 5.1.
SECTION 5.2. Payment Upon Resignation or Removal.
Upon termination of this First Supplemental Indenture or the Indenture or
the removal or resignation of the Trustee, unless otherwise stated, the Company
shall pay to the Trustee all amounts accrued to the date of such termination,
removal or resignation. Upon termination of the Declaration or the removal or
resignation of the Delaware Trustee or the Institutional Trustee, as the case
may be, pursuant to Section 5.6 of the Declaration, the Company shall pay to the
Delaware Trustee or the Institutional Trustee, as the case may be, all amounts
accrued to the date of such termination, removal or resignation.
ARTICLE VI
COVENANT TO LIST ON EXCHANGE
SECTION 6.1. Listing on an Exchange.
If the Debentures are distributed to the holders of the Securities issued
by the Trust, and the Capital Securities are then so listed, the Company will
use its best efforts to list such Debentures on the New York Stock Exchange,
Inc. or on such other exchange as the Capital Securities are then listed.
ARTICLE VII
FORM OF DEBENTURE
SECTION 7.1. Form of Debenture.
The Debentures and the Trustee's Certificate of Authentication to be
endorsed thereon are to be substantially in the following forms:
(FORM OF FACE OF DEBENTURE)
IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT - This Debenture is a
Global Debenture within the meaning of the Indenture hereinafter referred to and
is registered in the name of a Depositary or a nominee of a Depositary. This
Debenture is exchangeable for Debentures registered in the name of a person
other than the Depositary or its nominee only in the limited circumstances
described in the Indenture, and no transfer of this Debenture (other than a
transfer of this Debenture as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary) may be registered except in limited circumstances.
Unless this Debenture is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York, New York) to the issuer or
its agent for registration of transfer, exchange or payment, and any Debenture
issued is registered in the name of Cede & Co. or such other name as requested
by an authorized representative of The Depository Trust Company and any payment
hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner hereof, Cede &
Co., has an interest herein.
9
<PAGE>
No. ______________________________
FLEET FINANCIAL GROUP, INC.
7.92% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE
DUE 2026
FLEET FINANCIAL GROUP, INC., a Rhode Island corporation (the "Company", which
term includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to The First National Bank of
Chicago, as Institutional Trustee of Fleet Capital Trust II under that certain
Amended and Restated Declaration of Trust dated as of December 11, 1996, or
registered assigns, the principal sum of Two Hundred Fifty Seven Million Seven
Hundred Thirty Two Thousand Dollars ($257,732,000) on December 11, 2026 (the
"Stated Maturity"), and to pay interest on said principal sum from December 11,
1996, 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,
semi-annually (subject to deferral as set forth herein) in arrears on June 15
and December 15 of each year commencing June 15, 1997, at the rate of 7.92% per
annum until the principal hereof shall have become due and payable, and on any
overdue principal and premium, if any, and (without duplication and to the
extent that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the same rate per annum compounded
semi-annually. The amount of interest payable on any Interest Payment Date shall
be computed on the basis of a 360-day year of twelve 30-day months. In the event
that any date on which interest is payable on this Debenture is not a Business
Day, then payment of interest payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay), except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date. The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the person in whose name this Debenture (or one or more Predecessor
Securities, as defined in said Indenture) is registered at the close of business
on the June 1 and December 1 prior to the applicable Interest Payment Date.
Payments of interest may be deferred by the Company pursuant to the provisions
of Article IV of the Supplemental Indenture. Any such interest installment not
punctually paid or duly provided for shall forthwith cease to be payable to the
registered Holders on such regular record date and may be paid to the Person in
whose name this Debenture (or one or more Predecessor Securities) is registered
at the close of business on a special record date to be fixed by the Trustee for
the payment of such defaulted interest, notice whereof shall be given to the
registered Holders of this series of Debentures not less than 10 days prior to
such special record date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Debentures may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture. The principal of (and
premium, if any) and the interest on this Debenture shall be payable at the
office or agency of the Trustee maintained for that purpose in any coin or
currency of the United States of America that at the time of payment is legal
tender for payment of public and private debts; provided, however, that payment
of interest may be made at the option of the Company by check mailed to the
registered Holder at such address as shall appear in the Security Register.
Notwithstanding the foregoing, so long as the Holder of this Debenture is the
Institutional Trustee, the payment of the principal of (and premium, if any) and
interest on this Debenture will be made at such place and to such account as may
be designated by the Institutional Trustee.
The indebtedness evidenced by this Debenture is, to the extent provided in
the Indenture, subordinate and junior in right of payment to the prior payment
in full of all Senior Indebtedness and Other Financial Obligations, and this
Debenture is issued subject to the provisions of the Indenture with respect
thereto. Each Holder of this Debenture, by accepting the same, (a) agrees to and
shall be bound by such provisions, (b) authorizes and directs the Trustee on his
or her behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination so provided and (c) appoints the
Trustee his or her attorney-in-fact for any and all such purposes. Each Holder
hereof, by his or her acceptance hereof, hereby waives all notice of the
acceptance of the subordination provisions contained herein and in the Indenture
by each holder of Senior Indebtedness and Other Financial Obligations, whether
now outstanding or hereafter incurred, and waives reliance by each such holder
upon said provisions.
10
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This Debenture shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until the
Certificate of Authentication hereon shall have been signed by or on behalf of
the Trustee.
The provisions of this Debenture are continued on the reverse side hereof
and such continued provisions shall for all purposes have the same effect as
though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be executed.
Dated: December 11, 1996
FLEET FINANCIAL GROUP, INC.
By:____________________________________
Name
Title
Attest:
By:______________________________________
Name:
Title:
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
The First National Bank of Chicago
as Trustee
By _______________________________________
Authorized Officer
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of Debentures of the
Company (herein sometimes referred to as the "Debentures"), specified in the
Indenture, all issued or to be issued in one or more series under and pursuant
to an Indenture dated as of December 11, 1996, duly executed and delivered
between the Company and The First National Bank of Chicago as Trustee (the
"Trustee"), as supplemented by the First Supplemental Indenture dated as of
December 11, 1996, between the Company and the Trustee (the Indenture as so
supplemented, the "Indenture"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the Holders of the Debentures. By the terms of the
Indenture, the Debentures are issuable in series that may vary as to amount,
date of maturity, rate of interest and in other respects as provided in the
Indenture. This series of Debentures is limited in aggregate principal amount as
specified in said First Supplemental Indenture.
The Debenture is redeemable by the Company (i) in whole but not in part (a
"Special Event Redemption") at any time upon the occurrence and continuation of
a Special Event ) (as defined in the Indenture) at a redemption price equal to
the Special Event Prepayment Price (as defined in the Indenture) and (ii) in
whole or in part (an "Optional Redemption") on or after December 15, 2006 at a
redemption price equal to the Optional Prepayment
11
<PAGE>
Price (as defined in the Indenture). Any redemption pursuant to this paragraph
will be made upon not less than 30 days nor more than 60 days notice, at a
redemption price equal to 100% of the principal amount plus any accrued but
unpaid interest, to the date of such redemption (the "Prepayment Price"). The
Prepayment Price shall be paid prior to 12:00 noon, New York time, on the date
of such redemption or at such earlier time as the Company determines. If the
Debentures are only partially redeemed by the Company pursuant to an Optional
Redemption, the Debentures will be redeemed pro rata or by lot or by any other
method utilized by the Trustee; provided that if, at the time of redemption, the
Debentures are registered as a Global Debenture, the Depositary shall determine
the principal amount of such Debentures held by each Debenture holder to be
redeemed in accordance with its procedures.
In the event of redemption of this Debenture in part only, a new Debenture
or Debentures of this series for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Debentures may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the Holders of not less than a majority in aggregate
principal amount of the Debentures of each series affected at the time
outstanding, as defined in the Indenture, to execute supplemental indentures for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of the Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Debentures; provided,
however, that no such supplemental indenture shall (i) extend the fixed maturity
of any Debentures of any series, or reduce the principal amount thereof or any
premium thereon, or reduce the rate or extend the time of payment of interest
thereon, or reduce any amount payable on redemption thereof or make the
principal thereon or any interest or premium thereon payable in any coin or
currency other than that provided in this Debenture, or impair or affect the
right of any Holder of a Debenture to institute suit for payment thereof or the
right of repayment, if any, at the option of the Holder, without the consent of
the Holder of each Debenture so affected, or (ii) reduce the aforesaid
percentage of Debentures, the Holders of which are required to consent to any
such supplemental indenture, without the consent of the Holders of each
Debenture then outstanding and affected thereby. The Indenture also contains
provisions permitting the Holders of a majority in aggregate principal amount of
the Debentures of any series at the time outstanding affected thereby, on behalf
of all of the Holders of the Debentures of such series, to waive any past
default in the performance of any of the covenants contained in the Indenture,
or established pursuant to the Indenture with respect to such series, and its
consequences, except a default in the payment of the principal of or premium, if
any, or interest on any of the Debentures of such series. Any such consent or
waiver by the registered Holder of this Debenture (unless revoked as provided in
the Indenture) shall be conclusive and binding upon such Holder and upon all
future Holders and owners of this Debenture and of any Debenture issued in
exchange hereof or in place hereof (whether by registration of transfer or
otherwise), irrespective of whether or not any notation of such consent or
waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this Debenture or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Debenture at the time and place and at the rate and in the
money herein prescribed.
The Company shall have the right at any time during the term of the
Debentures and from time to time to extend the interest payment period of such
Debentures for up to 10 consecutive semi-annual periods (an "Extended Interest
Payment Period"), at the end of which period the Company shall pay all interest
then accrued and unpaid (together with interest thereon at the rate specified
for the Debentures to the extent that payment of such interest is enforceable
under applicable law); provided that no Extended Interest Payment Period may
last beyond the Stated Maturity of the Debentures. Before the termination of any
such Extended Interest Payment Period, the Company may further extend such
Extended Interest Payment Period, provided that such Extended Interest Payment
Period together with all such further extensions thereof shall not exceed 10
consecutive semi-annual periods or last beyond the Stated Maturity date of the
Debentures. At the termination of any such Extended Interest Payment Period and
upon the payment of all accrued and unpaid interest and any additional amounts
then due, the Company may commence a new Extended Interest Payment Period.
12
<PAGE>
As provided in the Indenture and subject to certain limitations therein set
forth, this Debenture is transferable by the registered Holder hereof on the
Security Register of the Company, upon surrender of this Debenture for
registration of transfer at the office or agency of the Trustee in the City and
State of New York accompanied by a written instrument or instruments of transfer
in form satisfactory to the Company or the Trustee duly executed by the
registered Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Debentures of authorized denominations and for the
same aggregate principal amount and series will be issued to the designated
transferee or transferees. No service charge will be made for any such transfer,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Debenture,
the Company, the Trustee, any paying agent and the Security registrar may deem
and treat the registered holder hereof as the absolute owner hereof (whether or
not this Debenture shall be overdue and notwithstanding any notice of ownership
or writing hereon made by anyone other than the Security registrar) for the
purpose of receiving payment of or on account of the principal hereof and
premium, if any, and interest due hereon and for all other purposes, and neither
the Company nor the Trustee nor any paying agent nor any Security registrar
shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
The Debentures of this series are issuable only in registered form without
coupons in denominations of $25 and any integral multiple thereof. As provided
in the Indenture and subject to certain limitations herein and therein set
forth, Debentures of this series so issued are exchangeable for a like aggregate
principal amount of Debentures of this series of a different authorized
denomination, as requested by the Holder surrendering the same.
All terms used in this Debenture that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
ARTICLE VIII
ORIGINAL ISSUE OF DEBENTURES
SECTION 8.1. Original Issue of Debentures.
Debentures in the aggregate principal amount of $257,732,000, may, upon
execution of this First Supplemental Indenture or upon any written order of the
Company setting forth the amount therefor, be executed by the Company and
delivered to the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver said Debentures to or upon the written order of the
Company, signed by its Chairman, its President, or any Vice President and its
Treasurer, its Secretary, any Assistant Treasurer, or any Assistant Secretary,
without any further action by the Company.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Ratification of Indenture.
The Indenture, as supplemented by this First Supplemental Indenture, is in
all respects ratified and confirmed, and this First Supplemental Indenture shall
be deemed part of the Indenture in the manner and to the extent herein and
therein provided.
13
<PAGE>
SECTION 9.2. Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and not by the
Trustee, and the Trustee assumes no responsibility for the correctness thereof.
The Trustee makes no representation as to the validity or sufficiency of this
First Supplemental Indenture.
SECTION 9.3. Governing Law.
This First Supplemental Indenture and each Debenture shall be deemed to be
a contract made under the internal laws of the State of New York, and for all
purposes shall be construed in accordance with the laws of said State.
SECTION 9.4. Separability.
In case any one or more of the provisions contained in this First
Supplemental Indenture or in the Debentures shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this First
Supplemental Indenture or of the Debentures, but this First Supplemental
Indenture and the Debentures shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
SECTION 9.5. Counterparts.
This First Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
14
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed by their respective officers thereunto duly authorized and their
respective corporate seals to be hereunto duly affixed and attested, all as of
the day and year first above written.
[Seal] FLEET FINANCIAL GROUP, INC.
Attest:
/s/ William C. Mutterperl By /s/ Eugene M. McQuade
- --------------------------------- ----------------------------------
William C. Mutterperl Eugene M. McQuade
Secretary Executive Vice President and
Chief Financial Officer
[Seal] THE FIRST NATIONAL BANK OF CHICAGO,
Attest: as Trustee
/s/ Jeff Kinney
- ---------------------------------
Title: Assistant Vice President
By /s/ Mary R. Fonti
----------------------------------
Title: Assistant Vice President
<PAGE>
STATE OF RHODE ISLAND )
COUNTY OF PROVIDENCE ) ss.:
On the ____ day of December, 1996 before me personally came Eugene M.
McQuade, to me known, who, being by me duly sworn, did depose and say that he
resides at 50 Downing Street, East Greenwich, Rhode Island; that he is Executive
Vice President and Chief Financial Officer of Fleet Financial Group, Inc., one
of the corporations described in and which executed the above instrument; that
he knows the corporate seal of said corporation; that the seal affixed to the
said instrument is such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation; and that he signed his name thereto
by like authority.
_________________________________
NOTARY PUBLIC
[seal] Commission expires:
STATE OF )
COUNTY OF ) ss.:
On the _____ day of ________________, 1996, before me personally came
__________________________, to me known, who, being by me duly sworn, did depose
and say that he resides at ___________________; that he is ___________________
of The First National Bank of Chicago, one of the corporations described in and
which executed the above instrument; that he knows the corporate seal of said
corporation; that the seal affixed to the said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
_________________________________
NOTARY PUBLIC
[seal] Commission expires:
CAPITAL SECURITIES GUARANTEE AGREEMENT
Fleet Capital Trust II
Dated as of December 11, 1996
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND INTERPRETATIONS
SECTION 1.1 Definitions and Interpretation 1
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application 4
SECTION 2.2 Lists of Holders of Securities 4
SECTION 2.3 Reports by the Capital Guarantee Trustee 4
SECTION 2.4 Periodic Reports to Capital Guarantee Trustee 4
SECTION 2.5 Evidence of Compliance with Conditions Precedent 4
SECTION 2.6 Events of Default; Waiver 5
SECTION 2.7 Event of Default; Notice 5
SECTION 2.8 Conflicting Interests 5
ARTICLE III
POWERS, DUTIES AND RIGHTS OF CAPITAL GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Capital Guarantee Trustee 5
SECTION 3.2 Certain Rights of Capital Guarantee Trustee 7
SECTION 3.3 Not Responsible for Recitals or Issuance of Capital
Securities Guarantee 8
ARTICLE IV
CAPITAL GUARANTEE TRUSTEE
SECTION 4.1 Capital Guarantee Trustee; Eligibility 8
SECTION 4.2 Appointment, Removal and Resignation of
Capital Guarantee Trustee 9
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee 9
SECTION 5.2 Waiver of Notice and Demand 9
SECTION 5.3 Obligations Not Affected 10
SECTION 5.4 Enforcement of Guarantee; Rights of Holders 10
SECTION 5.5 Guarantee of Payment 11
SECTION 5.6 Subrogation 11
SECTION 5.7 Independent Obligations 11
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions 11
SECTION 6.2 Ranking 12
<PAGE>
ARTICLE VII
TERMINATION
SECTION 7.1 Termination 12
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation 12
SECTION 8.2 Indemnification 12
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns 13
SECTION 9.2 Amendments 13
SECTION 9.3 Notices 13
SECTION 9.4 Benefit 14
SECTION 9.5 Governing Law 14
SECTION 9.6 Genders 14
SECTION 9.7 Counterparts 14
2
<PAGE>
CAPITAL SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Capital Securities Guarantee"), dated as of
December 11, 1996, is executed and delivered by Fleet Financial Group, Inc., a
Rhode Island corporation (the "Guarantor"), and The First National Bank of
Chicago, a national banking association, as trustee (the "Capital Guarantee
Trustee"), for the benefit of the Holders (as defined herein) of Fleet Capital
Trust II, a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of December 11, 1996, among the trustees of the Issuer
named therein, the Guarantor, as sponsor, and the holders from time to time of
undivided beneficial interests in the assets of the Issuer, the Issuer is
issuing on the date hereof 250,000 capital securities, having an aggregate
liquidation amount of $2,500,000, designated the 7.92% Capital Securities (the
"Capital Securities"); and
WHEREAS, as incentive for the Holders to purchase the Capital Securities,
the Guarantor desires irrevocably and unconditionally to agree, to the extent
set forth in this Capital Securities Guarantee, to pay to the Holders the
Guarantee Payments (as defined herein) and to make certain other payments on the
terms and conditions set forth herein.
WHEREAS, the Guarantor is also executing and delivering a guarantee
agreement (the "Common Securities Guarantee") in substantially identical terms
to this Capital Securities Guarantee for the benefit of the holders of the
Common Securities (as defined herein), except that if an Event of Default (as
defined in the Indenture), has occurred and is continuing, the rights of holders
of the Common Securities to receive Guarantee Payments under the Common
Securities Guarantee are subordinated to the rights of Holders to receive
Guarantee Payments under this Capital Securities Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder, which
purchase the Guarantor hereby agrees shall benefit the Guarantor, the Guarantor
executes and delivers this Capital Securities Guarantee for the benefit of the
Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
In this Capital Securities Guarantee, unless the context otherwise
requires:
(a) capitalized terms used in this Capital Securities Guarantee but
not defined in the preamble above have the respective meanings assigned to them
in this Section 1.1;
(b) a term defined anywhere in this Capital Securities Guarantee has
the same meaning throughout;
(c) all references to "the Capital Securities Guarantee" or "this
Capital Securities Guarantee" are to this Capital Securities Guarantee as
modified, supplemented or amended from time to time;
(d) all references in this Capital Securities Guarantee to Articles
and Sections are to Articles and Sections of this Capital Securities Guarantee,
unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Capital Securities Guarantee, unless otherwise defined in this
Capital Securities Guarantee or unless the context otherwise requires; and
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(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of the
Securities Act of 1933, as amended, or any successor rule thereunder.
"Business Day" means any day other than a day on which Federal or State
banking institutions in the Borough of Manhattan, The City of New York, or
Chicago, Illinois are authorized or obligated by any law, executive order or
regulation to close.
"Capital Guarantee Trustee" means The First National Bank of Chicago, a
national banking association, until a Successor Capital Guarantee Trustee has
been appointed and has accepted such appointment pursuant to the terms of this
Capital Securities Guarantee and thereafter means each such Successor Capital
Guarantee Trustee.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer.
"Corporate Trust Office" means the office of the Capital Guarantee Trustee
at which the corporate trust business of the Capital Guarantee Trustee shall, at
any particular time, be principally administered, which office at the date of
execution of this Agreement is located at One First National Plaza, Suite 0126,
Chicago, Illinois 60670-0126.
"Debentures" means the 7.92% Junior Subordinated Deferrable Interest
Debentures due 2026 issued by the Guarantor to the Issuer.
"Covered Person" means any Holder or beneficial owner of Capital
Securities.
"Event of Default" means a default by the Guarantor on any of its payment
or other obligations under this Capital Securities Guarantee.
"Guarantee Payments" means the following payments or distributions, without
duplication, with respect to the Capital Securities, to the extent not paid or
made by the Issuer: (i) any accrued and unpaid Distributions (as defined in the
Declaration) that are required to be paid on such Capital Securities, to the
extent the Issuer shall have funds available therefor, (ii) the redemption
price, including all accrued and unpaid Distributions to the date of redemption
(the "Redemption Price"), to the extent the Issuer has funds available therefor,
with respect to any Capital Securities called for redemption by the Issuer, and
(iii) upon a voluntary or involuntary dissolution, winding-up or termination of
the Issuer (other than in connection with the distribution of Debentures to the
Holders or the redemption of all of the Capital Securities as provided in the
Declaration), the lesser of (a) the aggregate of the liquidation amount and all
accrued and unpaid Distributions on the Capital Securities to the date of
payment, to the extent the Issuer shall have funds available therefor, and (b)
the amount of assets of the Issuer remaining available for distribution to
Holders in liquidation of the Issuer (in either case, the "Liquidation
Distribution"). If an event of default under the Indenture has occurred and is
continuing, the rights of holders of the Common Securities to receive payments
under the Common Securities Guarantee Agreement are subordinated to the rights
of Holders to receive Guarantee Payments.
"Holder" means any holder, as registered on the books and records of the
Issuer, of any Capital Securities; provided, however, that, in determining
whether the holders of the requisite percentage of Capital Securities have given
any request, notice, consent or waiver hereunder, "Holder" shall not include the
Guarantor or any Affiliate of the Guarantor, but only to the extent that the
Issuer has actual knowledge of such ownership.
"Indemnified Person" means the Capital Guarantee Trustee, any Affiliate of
the Capital Guarantee Trustee, or any officers, directors, shareholders,
members, partners, employees, representatives, nominees, custodians or agents of
the Capital Guarantee Trustee.
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"Indenture" means the Indenture dated as of December 11, 1996, among the
Guarantor (the "Debenture Issuer") and The First National Bank of Chicago, as
trustee, and any indenture supplemental thereto pursuant to which certain
subordinated debt securities of the Debenture Issuer are to be issued to the
Institutional Trustee of the Issuer.
"Majority in liquidation amount of the Securities" means, except as
provided by the Trust Indenture Act, a vote by Holder(s), voting separately as a
class, of more than 50% of the liquidation amount (including the stated amount
that would be paid on redemption, liquidation or otherwise, plus accrued and
unpaid Distributions to the date upon which the voting percentages are
determined) of all outstanding Capital Securities.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by two Authorized Officers of such Person. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Capital Securities Guarantee shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definition relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers' Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Resignation Request" has the meaning set forth in Section 4.2(c).
"Responsible Officer" means, with respect to the Capital Guarantee Trustee,
any officer within the Corporate Trust Office of the Capital Guarantee Trustee,
including any vice president, any assistant vice president, any assistant
secretary, the treasurer, any assistant treasurer or other officer of the
Corporate Trust Office of the Capital Guarantee Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer's knowledge of
and familiarity with the particular subject.
"Successor Capital Guarantee Trustee" means a successor Capital Guarantee
Trustee possessing the qualifications to act as Capital Guarantee Trustee under
Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
"Trust Securities" means the Common Securities and the Capital Securities.
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ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application
(a) This Capital Securities Guarantee is subject to the provisions of
the Trust Indenture Act that are required to be part of this Capital Securities
Guarantee and shall, to the extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Capital Securities
Guarantee limits, qualifies or conflicts with the duties imposed by Section 310
to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
(c) The application of the Trust Indenture Act to this Capital
Securities Guarantee shall not affect the nature of the Capital Securities as
equity securities representing undivided beneficial interests in the assets of
the Issuer.
SECTION 2.2 Lists of Holders of Securities
(a) The Guarantor shall provide the Capital Guarantee Trustee with a
list, in such form as the Capital Guarantee Trustee may reasonably require, of
the names and addresses of the Holders ("List of Holders") as of such date, (i)
within one Business Day after January 1 and June 30 of each year, and (ii) at
any other time within 30 days of receipt by the Guarantor of a written request
for a List of Holders. Such list shall be as of a date no more than 14 days
before such List of Holders is given to the Capital Guarantee Trustee. The
Guarantor shall not be obligated to provide such List of Holders if at any time
the List of Holders does not differ from the most recent List of Holders given
to the Capital Guarantee Trustee by the Guarantor. The Capital Guarantee Trustee
may destroy any List of Holders previously given to it on receipt of a new List
of Holders.
(b) The Capital Guarantee Trustee shall comply with its obligations
under Sections 311(a), 311(b) and Section 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Capital Guarantee Trustee
Within 60 days after May 15 of each year, the Capital Guarantee Trustee
shall provide to the Holders such reports as are required by Section 313 of the
Trust Indenture Act, if any, in the form and in the manner provided by Section
313 of the Trust Indenture Act. The Capital Guarantee Trustee shall also comply
with the requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Capital Guarantee Trustee
The Guarantor shall provide to the Capital Guarantee Trustee such
documents, reports and information as required by Section 314 (if any) and the
compliance certificate required by Section 314 of the Trust Indenture Act in the
form, in the manner and at the times required by Section 314 of the Trust
Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent
The Guarantor shall provide to the Capital Guarantee Trustee such evidence
of compliance with any conditions precedent, if any, provided for in this
Capital Securities Guarantee that relate to any of the matters set forth in
Section 314(c) of the Trust Indenture Act. Any certificate or opinion required
to be given by an officer pursuant to Section 314(c)(1) may be given in the form
of an Officers' Certificate.
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SECTION 2.6 Events of Default; Waiver
(a) The Holders of a Majority in liquidation amount of Capital
Securities may, by vote, on behalf of all of the Holders waive any past Event of
Default and its consequences. Upon such waiver, any such Event of Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured, for every purpose of this Capital Securities Guarantee, but no
such waiver shall extend to any subsequent or other default or Event of Default
or impair any right consequent thereon.
(b) Notwithstanding the provisions of subsection (a) of this Section
2.6, the right of any Holder of Capital Securities to receive payment of the
Guarantee Payments in accordance with this Capital Securities Guarantee, or to
institute suit for the enforcement of any such payment, shall not be impaired
without the consent of each such Holder.
SECTION 2.7 Event of Default; Notice
(a) The Capital Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders, notices of all Events of Default actually known to a
Responsible Officer of the Capital Guarantee Trustee, unless such defaults have
been cured before the giving of such notice, provided, that, the Capital
Guarantee Trustee shall be protected in withholding such notice if and so long
as a Responsible Officer in good faith determines that the withholding of such
notice is in the interests of the Holders of the Capital Securities.
(b) The Capital Guarantee Trustee shall not be deemed to have actual
knowledge of any Event of Default unless the Capital Guarantee Trustee shall
have received written notice, or of which a Responsible Officer charged with the
administration of this Capital Securities Guarantee shall have obtained actual
knowledge.
SECTION 2.8 Conflicting Interests
The Declaration shall be deemed to be specifically described in this
Capital Securities Guarantee for the purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF CAPITAL
GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Capital Guarantee Trustee
(a) This Capital Securities Guarantee shall be held by the Capital
Guarantee Trustee in trust for the benefit of the Holders, and the Capital
Guarantee Trustee shall not transfer its right, title and interest in this
Capital Securities Guarantee to any Person except a Holder exercising his or her
rights pursuant to Section 5.4(d) or to a Successor Capital Guarantee Trustee on
acceptance by such Successor Capital Guarantee Trustee of its appointment to act
as Successor Capital Guarantee Trustee. The right, title and interest of the
Capital Guarantee Trustee shall automatically vest in any Successor Capital
Guarantee Trustee, and such vesting and cessation of title shall be effective
whether or not conveyancing documents have been executed and delivered pursuant
to the appointment of such Successor Capital Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible Officer has
occurred and is continuing, the Capital Guarantee Trustee shall enforce this
Capital Securities Guarantee for the benefit of the Holders.
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(c) This Capital Securities Guarantee and all moneys received by the
Capital Guarantee Trustee hereunder in respect of the Guarantee Payments will
not be subject to any right, charge, security interest, lien or claim of any
kind in favor of, or for the benefit of, the Capital Guarantee Trustee or its
agents or their creditors.
(d) The Capital Guarantee Trustee, before the occurrence of any Event
of Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Capital Securities Guarantee, and no implied covenants shall be read into
this Capital Securities Guarantee against the Capital Guarantee Trustee. In case
an Event of Default has occurred (that has not been cured or waived pursuant to
Section 2.6) and is actually known to a Responsible Officer, the Capital
Guarantee Trustee shall exercise such of the rights and powers vested in it by
this Capital Securities Guarantee, and use the same degree of care and skill in
its exercise thereof, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(e) No provision of this Capital Securities Guarantee shall be
construed to relieve the Capital Guarantee Trustee from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Capital Guarantee
Trustee shall be determined solely by the express provisions of this
Capital Securities Guarantee, and the Capital Guarantee Trustee shall
not be liable except for the performance of such duties and
obligations as are specifically set forth in this Capital Securities
Guarantee, and no implied covenants or obligations shall be read into
this Capital Securities Guarantee against the Capital Guarantee
Trustee; and
(B) in the absence of bad faith on the part of the Capital
Guarantee Trustee, the Capital Guarantee Trustee may conclusively
rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Capital Guarantee Trustee and conforming to the
requirements of this Capital Securities Guarantee; but in the case of
any such certificates or opinions that by any provision hereof are
specifically required to be furnished to the Capital Guarantee
Trustee, the Capital Guarantee Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Capital Securities Guarantee;
(ii) the Capital Guarantee Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer, unless it
shall be proved that the Capital Guarantee Trustee was negligent in
ascertaining the pertinent facts upon which such judgment was made;
(iii) the Capital Guarantee Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a Majority in
liquidation amount of the Capital Securities relating to the time, method
and place of conducting any proceeding for any remedy available to the
Capital Guarantee Trustee, or exercising any trust or power conferred upon
the Capital Guarantee Trustee under this Capital Securities Guarantee; and
(iv) no provision of this Capital Securities Guarantee shall
require the Capital Guarantee Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers, if the
Capital Guarantee Trustee shall have reasonable grounds for believing that
the repayment of such funds or liability is not reasonably assured to it
under the terms of this Capital Securities Guarantee or indemnity,
reasonably satisfactory to the Capital Guarantee Trustee, against such risk
or liability is not reasonably assured to it.
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SECTION 3.2 Certain Rights of Capital Guarantee Trustee
(a) Subject to the provisions of Section 3.1:
(i) The Capital Guarantee Trustee may conclusively rely, and
shall be fully protected in acting or refraining from acting upon, any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document believed by it in good faith to
be genuine and to have been signed, sent or presented by the proper party
or parties.
(ii) Any direction or act of the Guarantor contemplated by this
Capital Securities Guarantee shall be sufficiently evidenced by an
Officers' Certificate.
(iii) Whenever, in the administration of this Capital Securities
Guarantee, the Capital Guarantee Trustee shall deem it desirable that a
matter be proved or established before taking, suffering or omitting any
action hereunder, the Capital Guarantee Trustee (unless other evidence is
herein specifically prescribed) may, in the absence of bad faith on its
part, request and conclusively rely upon an Officers' Certificate which,
upon receipt of such request, shall be promptly delivered by the Guarantor.
(iv) The Capital Guarantee Trustee shall have no duty to see to
any recording, filing or registration of any instrument (or any
rerecording, refiling or registration thereof).
(v) The Capital Guarantee Trustee may consult with counsel, and
the written advice or opinion of such counsel with respect to legal matters
shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in
accordance with such advice or opinion. Such counsel may be counsel to the
Guarantor or any of its Affiliates and may include any of its employees.
The Capital Guarantee Trustee shall have the right at any time to seek
instructions concerning the administration of this Capital Securities
Guarantee from any court of competent jurisdiction.
(vi) The Capital Guarantee Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by this Capital
Securities Guarantee at the request or direction of any Holder, unless such
Holder shall have provided to the Capital Guarantee Trustee such security
and indemnity, reasonably satisfactory to the Capital Guarantee Trustee,
against the costs, expenses (including attorneys' fees and expenses and the
expenses of the Capital Guarantee Trustee's agents, nominees or custodians)
and liabilities that might be incurred by it in complying with such request
or direction, including such reasonable advances as may be requested by the
Capital Guarantee Trustee; provided that, nothing contained in this Section
3.2(a)(vi) shall relieve the Capital Guarantee Trustee, upon the occurrence
of an Event of Default which has not been cured or waived, of its
obligation to exercise the rights and powers vested in it by this Capital
Securities Guarantee and to use the same degree of care and skill in this
exercise, as a prudent person would exercise or use under the circumstances
in the conduct of his or her own affairs.
(vii) The Capital Guarantee Trustee shall not be bound to make
any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Capital Guarantee Trustee,
in its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit.
(viii) The Capital Guarantee Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either directly
or by or through agents, nominees, custodians or attorneys, and the Capital
Guarantee Trustee shall not be responsible for any misconduct or negligence
on the part of any agent or attorney appointed with due care by it
hereunder.
(ix) Any action taken by the Capital Guarantee Trustee or its
agents hereunder shall bind the Holders, and the signature of the Capital
Guarantee Trustee or its agents alone shall be sufficient and effective
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to perform any such action. No third party shall be required to inquire as
to the authority of the Capital Guarantee Trustee to so act or as to its
compliance with any of the terms and provisions of this Capital Securities
Guarantee, both of which shall be conclusively evidenced by the Capital
Guarantee Trustee's or its agent's taking such action.
(x) Whenever in the administration of this Capital Securities
Guarantee the Capital Guarantee Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or taking any
other action hereunder, the Capital Guarantee Trustee (i) may request
instructions from the Holders of a Majority in liquidation amount of the
Capital Securities, (ii) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received, and (iii)
shall be protected in conclusively relying on or acting in accordance with
such instructions.
(b) No provision of this Capital Securities Guarantee shall be deemed
to impose any duty or obligation on the Capital Guarantee Trustee to perform any
act or acts or exercise any right, power, duty or obligation conferred or
imposed on it in any jurisdiction in which it shall be illegal, or in which the
Capital Guarantee Trustee shall be unqualified or incompetent in accordance with
applicable law, to perform any such act or acts or to exercise any such right,
power, duty or obligation. No permissive power or authority available to the
Capital Guarantee Trustee shall be construed to be a duty.
SECTION 3.3. Not Responsible for Recitals or Issuance of Capital Securities
Guarantee
The recitals contained in this Capital Securities Guarantee shall be taken
as the statements of the Guarantor, and the Capital Guarantee Trustee does not
assume any responsibility for their correctness. The Capital Guarantee Trustee
makes no representation as to the validity or sufficiency of this Capital
Securities Guarantee.
ARTICLE IV
CAPITAL GUARANTEE TRUSTEE
SECTION 4.1 Capital Guarantee Trustee; Eligibility
(a) There shall at all times be a Capital Guarantee Trustee which
shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the laws
of the United States of America or any State or Territory thereof or of the
District of Columbia, or a corporation or Person permitted by the
Securities and Exchange Commission to act as an institutional trustee under
the Trust Indenture Act, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least 50 million
U.S. dollars ($50,000,000), and subject to supervision or examination by
Federal, State, Territorial or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of the supervising or examining authority
referred to above, then, for the purposes of this Section 4.1(a)(ii), the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published.
(b) If at any time the Capital Guarantee Trustee shall cease to be
eligible to so act under Section 4.1(a), the Capital Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.2(c).
(c) If the Capital Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Capital Guarantee Trustee and Guarantor shall in all respects
comply with the provisions of Section 310(b) of the Trust Indenture Act.
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SECTION 4.2 Appointment, Removal and Resignation of Capital Guarantee
Trustee
(a) Subject to Section 4.2(b), the Capital Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor.
(b) The Capital Guarantee Trustee shall not be removed in accordance
with Section 4.2(a) until a Successor Capital Guarantee Trustee has been
appointed and has accepted such appointment by written instrument executed by
such Successor Capital Guarantee Trustee and delivered to the Guarantor and to
the Capital Guarantee Trustee being removed.
(c) The Capital Guarantee Trustee appointed to office shall hold
office until a Successor Capital Guarantee Trustee shall have been appointed or
until its removal or resignation. The Capital Guarantee Trustee may resign from
office (without need for prior or subsequent accounting) by an instrument (a
"Resignation Request") in writing executed by the Capital Guarantee Trustee and
delivered to the Guarantor which resignation shall take effect upon such
delivery or upon such later date as is specified therein; provided, however,
that no such resignation of the Capital Guarantee Trustee shall be effective
until a Successor Capital Guarantee Trustee has been appointed and has accepted
such appointment by instrument in writing executed by such Successor Capital
Guarantee Trustee and delivered to the Guarantor and the resigning Capital
Guarantee Trustee.
(d) If no Successor Capital Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.2 within 60
days after delivery to the Guarantor of a Resignation Request, the resigning
Capital Guarantee Trustee may petition any court of competent jurisdiction for
appointment of a Successor Capital Guarantee Trustee. Such court may thereupon,
after prescribing such notice, if any, as it may deem proper, appoint a
Successor Capital Guarantee Trustee.
(e) No Capital Guarantee Trustee shall be liable for the acts or
omissions to act of any Successor Capital Guarantee Trustee.
(f) Upon termination of this Capital Securities Guarantee or removal
or resignation of the Capital Guarantee Trustee pursuant to this Section 4.2,
the Guarantor shall pay to the Capital Guarantee Trustee all amounts accrued to
the date of such termination, removal or resignation.
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in full to the
Holders the Guarantee Payments (without duplication of amounts theretofore paid
by the Issuer), as and when due, regardless of any defense, right of set-off or
counterclaim that the Issuer may have or assert. The Guarantor's obligation to
make a Guarantee Payment may be satisfied by direct payment of the required
amounts by the Guarantor to the Holders or by causing the Issuer to pay such
amounts to the Holders.
SECTION 5.2 Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this Capital Securities
Guarantee and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the Issuer
or any other Person before proceeding against the Guarantor, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.
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SECTION 5.3 Obligations Not Affected
The obligations, covenants, agreements and duties of the Guarantor under
this Capital Securities Guarantee shall in no way be affected or impaired by
reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Capital Securities to be performed
or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Capital Securities or the extension of
time for the performance of any other obligation under, arising out of, or in
connection with, the Capital Securities (other than an extension of time for
payment of Distributions, Redemption Price, Liquidation Distribution or other
sum payable that results from the extension of any interest payment period on
the Debentures or any extension of the maturity date of the Debentures permitted
by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Capital Securities, or any
action on the part of the Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer or any of the assets of the
Issuer;
(e) any invalidity of, or defect or deficiency in, the Capital
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute
a legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain
consent of, the Guarantor with respect to the happening of any of the foregoing.
SECTION 5.4 Enforcement of Guarantee; Rights of Holders
The Guarantor and the Capital Guarantee Trustee expressly acknowledge that:
(a) this Capital Securities Guarantee will be deposited with the
Capital Guarantee Trustee to be held for the benefit of the Holders;
(b) the Capital Guarantee Trustee has the right to enforce this
Capital Securities Guarantee on behalf of the Holders;
(c) the Holders of a Majority in liquidation amount of the Securities
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Capital Guarantee Trustee in respect of this
Capital Securities Guarantee or exercising any trust or power conferred upon the
Capital Guarantee Trustee under this Capital Securities Guarantee;
(d) any Holder may institute a legal proceeding directly against the
Guarantor to enforce the Capital Guarantee Trustee's rights and the obligations
of the Guarantor under this Capital Securities Guarantee, without first
instituting a legal proceeding against the Issuer, the Capital Guarantee Trustee
or any other person or entity, and the
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Guarantor waives any right or remedy to require that any action be brought first
against the Issuer or any other person or entity before proceeding directly
against the Guarantor; and
SECTION 5.5 Guarantee of Payment
This Capital Securities Guarantee creates a guarantee of payment and not of
collection. This Capital Securities Guarantee will not be discharged except by
payment of the Guarantee Payments in full (without duplication of amounts
therefor paid by the Issuer).
SECTION 5.6 Subrogation
The Guarantor shall be subrogated to all (if any) rights of the Holders
against the Issuer in respect of any amounts paid to such Holders by the
Guarantor under this Capital Securities Guarantee; provided, however, that the
Guarantor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any right that it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as
a result of payment under this Capital Securities Guarantee, if, at the time of
any such payment, any amounts are due and unpaid under this Capital Securities
Guarantee. If any amount shall be paid to the Guarantor in violation of the
preceding sentence, the Guarantor agrees to hold such amount in trust for the
Holders and to pay over such amount to the Holders.
SECTION 5.7 Independent Obligations
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Issuer with respect to the Capital Securities, and
that the Guarantor shall be liable as principal and as debtor hereunder to make
Guarantee Payments pursuant to the terms of this Capital Securities Guarantee
notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions
So long as any Capital Securities remain outstanding, if (a) there shall
have occurred an Event of Default, (b) there shall have occurred an Event of
Default under the Indenture or (c) the Guarantor has exercised its option to
defer interest payments on the Debentures by extending the interest payment
period and such period or extension thereof shall be continuing, then (i) the
Guarantor shall not declare or pay any dividend on, make any distribution with
respect to, or redeem, purchase, acquire, or make a liquidation payment with
respect to, any of its capital stock (other than (A) purchases or acquisitions
of shares of Guarantor's common stock in connection with the satisfaction by the
Guarantor of its obligations under any employee benefit plans or any other
contractual obligation of the Guarantor (other than a contractual obligation
ranking pari passu with or junior to the Debentures), (B) as a result of a
reclassification of the Guarantor's capital stock or the exchange or conversion
of one class or series of the Guarantor's capital stock for another class or
series of the Guarantor's capital stock or (C) the purchase of fractional
interests in shares of the Guarantor's capital stock pursuant to the conversion
or exchange provisions of such capital stock or the security being converted or
exchanged), (ii) the Guarantor shall not make any payment of interest, principal
or premium, if any, on or repay, repurchase or redeem any debt securities issued
by the Guarantor that rank pari passu with or junior to the Debentures and (iii)
the Guarantor shall not make any guarantee payments with respect to the
foregoing (other than pursuant to this Capital Securities Guarantee).
In addition, so long as any Capital Securities remain outstanding, the
Guarantor (i) will remain the sole direct or indirect owner of all of the
outstanding Common Securities to be transferred; provided that any permitted
successor of the Guarantor under the Indenture may succeed to the Guarantor's
ownership of the Common Securities and (ii)
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will not take any action which would cause the Issuer to cease to be treated as
a grantor trust for United States federal income tax purposes except in
connection with a distribution of Debentures as provided in the Declaration.
SECTION 6.2 Ranking
This Capital Securities Guarantee will constitute an unsecured obligation
of the Guarantor and will rank (i) subordinate and junior in right of payment to
all other liabilities of the Guarantor, except those made pari passu or
subordinate by their terms, (ii) pari passu with the most senior preferred or
preference stock now or hereafter issued by the Guarantor and with any guarantee
now or hereafter entered into by the Guarantor in respect of any preferred or
preference stock of any Affiliate of the Guarantor, and (iii) senior to the
Guarantor's common stock.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination
This Capital Securities Guarantee shall terminate and be of no further
force and effect upon (i) full payment of the Redemption Price of all Capital
Securities, (ii) upon the distribution of the Debentures to all of the Holders
or (iii) upon full payment of the amounts payable in accordance with the
Declaration upon liquidation of the Issuer. Notwithstanding the foregoing, this
Capital Securities Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder must restore payment
of any sums paid under the Capital Securities or under this Capital Securities
Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Guarantor or any Covered Person for any loss,
damage or claim incurred by reason of any act or omission performed or omitted
by such Indemnified Person in good faith in accordance with this Capital
Securities Guarantee and in a manner that such Indemnified Person reasonably
believed to be within the scope of the authority conferred on such Indemnified
Person by this Capital Securities Guarantee or by law, except that an
Indemnified Person shall be liable for any such loss, damage or claim incurred
by reason of such Indemnified Person's negligence or willful misconduct with
respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Guarantor and upon such information, opinions,
reports or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Guarantor, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders might properly be paid.
SECTION 8.2 Indemnification
To the fullest extent permitted by applicable law, the Guarantor agrees to
indemnify each Indemnified Person for, and to hold each Indemnified Person
harmless against, any loss, liability or expense incurred by such Indemnified
Person by reason of any act or omission performed or omitted by such Indemnified
Person without
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negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including the
costs and expenses (including reasonable legal fees and expenses) of defending
itself against, or investigating, any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The obligation
to indemnify as set forth in this Section 8.2 shall survive the termination of
this Capital Securities Guarantee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns
All guarantees and agreements contained in this Capital Securities
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Capital Securities then outstanding. Except in connection with any merger
or consolidation of the Guarantor with or into another entity or any sale,
transfer or lease of the Guarantor's assets to another entity, each as permitted
by the Indenture, the Guarantor may not assign its rights or delegate its
obligations under this Capital Securities Guarantee without the prior approval
of the Holders of at least a Majority in liquidation amount of the Capital
Securities then outstanding.
SECTION 9.2 Amendments
Except with respect to any changes that do not adversely affect the rights
of Holders (in which case no consent of Holders will be required), this Capital
Securities Guarantee may only be amended with the prior approval of the Holders
of at least a Majority in liquidation amount of all the outstanding Capital
Securities. The provisions of Section 12.2 of the Declaration with respect to
meetings of Holders apply to the giving of such approval.
SECTION 9.3 Notices
All notices provided for in this Capital Securities Guarantee shall be in
writing, duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by registered or certified mail, as follows:
(a) If given to the Capital Guarantee Trustee, at the Capital
Guarantee Trustee's mailing address set forth below (or such other address as
the Capital Guarantee Trustee may give notice of to the Holders):
The First National Bank of Chicago
One First National Plaza
Suite 0126
Chicago, Illinois 60670-0126
Attention: Corporate Trust Administration
(b) If given to the Guarantor, at the Guarantor's mailing address set
forth below (or such other address as the Guarantor may give notice of to the
Holders):
Fleet Financial Group, Inc.
One Federal Street
Boston, Massachusetts 02211
Attention: General Counsel
(c) If given to any Holder, at the address set forth on the books and
records of the Issuer.
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All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 9.4 Benefit
This Capital Securities Guarantee is solely for the benefit of the Holders
and, subject to Section 3.1(a), is not separately transferable from the Capital
Securities.
SECTION 9.5 Governing Law
THIS CAPITAL SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK AND ALL RIGHTS
AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAWS.
SECTION 9.6 Genders
The masculine, feminine and neuter genders used herein shall include the
masculine, feminine and neuter genders.
SECTION 9.7 Counterparts
This Capital Securities Guarantee may be executed in counterparts, each of
which shall be an original, but such counterparts shall together constitute one
and the same instrument.
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THIS CAPITAL SECURITIES GUARANTEE is executed as of the day and year first
above written.
FLEET FINANCIAL GROUP, INC., as Guarantor
By: /s/ Douglas L. Jacobs
-----------------------------------
Douglas L. Jacobs
Treasurer
THE FIRST NATIONAL BANK OF CHICAGO,
as Capital Guarantee Trustee
By: /s/ Mary R. Fonti
-----------------------------------
Name: Mary R. Fonti
Title: Assistant Vice President
