<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 23, 1998
REGISTRATION NO. 333-62905
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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<TABLE>
<S> <C> <C>
FLEET FINANCIAL GROUP, INC. RHODE ISLAND 05-0341324
FLEET CAPITAL TRUST V DELAWARE 04-3337382
FLEET CAPITAL TRUST VI DELAWARE 04-6861970
FLEET CAPITAL TRUST VII DELAWARE 04-6861971
FLEET CAPITAL TRUST VIII DELAWARE 04-6861972
FLEET CAPITAL TRUST IX DELAWARE 04-6874162
FLEET CAPITAL TRUST X DELAWARE 04-6874161
(EXACT NAME OF ISSUER AS (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
SPECIFIED IN ITS CHARTER) INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
</TABLE>
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ONE FEDERAL STREET
BOSTON, MASSACHUSETTS 02110
(617) 346-4000
(Address, including zip code, and telephone number, including area code,
of principal executive offices)
------------------------
WILLIAM C. MUTTERPERL, ESQ.
Executive Vice President and General Counsel
FLEET FINANCIAL GROUP, INC.
One Federal Street
Boston, Massachusetts 02110
(617) 346-4000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
------------------------
COPIES TO:
<TABLE>
<S> <C> <C>
LAURA N. WILKINSON, ESQ. VINCENT J. PISANO, ESQ. B. ROBBINGS KIESSLING, ESQ.
EDWARDS & ANGELL, LLP SKADDEN, ARPS, SLATE, CRAVATH, SWAINE & MOORE
One BankBoston Plaza MEAGHER & FLOM LLP Worldwide Plaza, 825 Eighth Avenue
Providence, Rhode Island 02903 919 Third Avenue New York, New York 10019
(401) 274-9200 New York, NY 10022 (212) 474-1000
(212) 735-3000
</TABLE>
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement as determined by
market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registrations statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. /X/
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CALCULATION OF REGISTRATION FEE
(See next page)
---------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE
REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING
OF SECURITIES TO BE REGISTERED REGISTERED PER UNIT(1) PRICE(2)
<S> <C> <C> <C>
Debt Securities(3)................................. (4) (4) (4)
Preferred Stock, par value $1.00 per share(5)(6)... (4) (4) (4)
Depositary Shares(6)............................... (4) (4) (4)
Common Stock, par value $0.01 per share(7)......... (4) (4) (4)
Warrants(8)........................................ (4) (4) (4)
Preferred securities of
Fleet Capital Trust V(10)........................ (4) (4) (4)
Preferred securities of
Fleet Capital Trust VI(10)....................... (4) (4) (4)
Preferred securities of
Fleet Capital Trust VII(10)...................... (4) (4) (4)
Preferred securities of
Fleet Capital Trust VIII(10)..................... (4) (4) (4)
Preferred securities of
Fleet Capital Trust IX(10) (4) (4) (4)
Preferred securities of
Fleet Capital Trust X(10) (4) (4) (4)
Guarantees by Fleet Financial Group, Inc. of the
above-reference preferred securities(11)......... (4) (4) (4)
Junior Subordinated Debentures of Fleet Financial
Group, Inc.(10).................................. (4) (4) (4)
Total........................................ $2,336,868,750(9) 100% $2,336,868,750(9)
<CAPTION>
AMOUNT OF
TITLE OF EACH CLASS REGISTRATION
OF SECURITIES TO BE REGISTERED FEE
<S> <C>
Debt Securities(3)................................. (4)
Preferred Stock, par value $1.00 per share(5)(6)... (4)
Depositary Shares(6)............................... (4)
Common Stock, par value $0.01 per share(7)......... (4)
Warrants(8)........................................ (4)
Preferred securities of
Fleet Capital Trust V(10)........................ (4)
Preferred securities of
Fleet Capital Trust VI(10)....................... (4)
Preferred securities of
Fleet Capital Trust VII(10)...................... (4)
Preferred securities of
Fleet Capital Trust VIII(10)..................... (4)
Preferred securities of
Fleet Capital Trust IX(10) (4)
Preferred securities of
Fleet Capital Trust X(10) (4)
Guarantees by Fleet Financial Group, Inc. of the
above-reference preferred securities(11)......... (4)
Junior Subordinated Debentures of Fleet Financial
Group, Inc.(10).................................. (4)
Total........................................ N/A(12)
</TABLE>
(1) The proposed maximum offering price per unit will be determined from time
to time by the Registrant in connection with the issuance by the Registrant
of the securities registered hereunder.
(2) The proposed maximum aggregate offering price has been estimated solely for
the purpose of calculating the registration fee pursuant to Rule 457(o)
under the Securities Act of 1933.
(3) Subject to note (9) below, there is being registered hereunder an
indeterminate principal amount of Debt Securities as may be sold, from time
to time, by the Registrant.
(4) Not applicable pursuant to General Instructions II.D. of Form S-3.
(5) Subject to note (9) below, there is being registered hereunder an
indeterminate number of shares of Preferred Stock as may be sold, from time
to time, by the Registrant.
(6) Subject to note (9) below, there is being registered hereunder an
indeterminate number of Depositary Shares to be evidenced by Depositary
Receipts issued pursuant to a Deposit Agreement. In the event the Registrant
elects to offer to the public fractional interests in shares of Preferred
Stock registered hereunder, Depositary Receipts will be distributed to those
persons purchasing such fractional interests and the shares of Preferred
Stock will be issued to the Depositary under the Deposit Agreement.
(7) Subject to note (9) below, there is being registered hereunder an
indeterminate number of shares of Common Stock as may be sold, from time to
time, by the Registrant. There are also being registered hereunder an
indeterminate number of shares of Common Stock as shall be issuable upon
conversion or redemption of Preferred Stock or Debt Securities registered
hereunder. Such Common Stock includes preferred share purchase rights.
(8) Subject to note (9) below, there is being registered hereunder an
indeterminate amount and number of Warrants, representing rights to purchase
Debt Securities, Preferred Stock or Common Stock registered hereunder.
(9) In no event will the aggregate initial offering price of all securities
issued from time to time pursuant to this Registration Statement exceed
$2,336,868,750 or the equivalent thereof in one or more foreign currencies,
foreign currency units, or composite currencies. If Debt Securities are
issued at original issue discount, Fleet may issue such higher principal
amount as may be sold for an initial public offering price of up to
$2,336,868,750 (less the dollar amount of any securities previously issued
hereunder), or the equivalent thereof in one or more foreign currencies,
foreign currency units, or composite currencies. The aggregate amount of
Common Stock registered hereunder is further limited to that which is
permissible under Rule 415(a)(4) under the Securities Act of 1933. The
securities registered hereunder may be sold separately or as units with
other securities registered hereunder.
(10) Subject to note (9) above, there is being registered hereunder an
indeterminate number of Preferred Securities of Fleet Capital Trust V, Fleet
Capital Trust VI, Fleet Capital Trust VII, Fleet Capital Trust VIII, Fleet
Capital Trust IX and Fleet Capital Trust X (collectively, the "Trusts") and
an indeterminate principal amount of Junior Subordinated Debentures of Fleet
Financial Group, Inc. ("Fleet"). A like amount of Junior Subordinated
Debentures may be issued and sold by Fleet to any of the Trusts, in which
event such Junior Subordinated Debentures may later be distributed for no
additional consideration to the holders of the Preferred Securities of such
Trust upon a dissolution of such Trust and the distribution of the assets
thereof.
(11) Includes the rights of holders of the Preferred Securities under the
Guarantee and certain back-up undertakings, comprised of the obligations of
Fleet under the Declaration of Trust of each Trust as borrower under the
Junior Subordinated Debentures to provide certain indemnities in respect of,
and pay and be responsible for certain costs, expenses, debts and
liabilities of, each Trust (other than with respect to the Preferred
Securities) and such obligations of Fleet as set forth in the Declaration of
Trust of each Trust and the Subordinated Indenture, in each case as amended
from time to time and as further described in the Registration Statement.
The Guarantee, when taken together with Fleet's obligations under the Junior
Subordinated Securities, the Indenture and the Declaration of Trust, will
provide a full and unconditional guarantee on a subordinated basis by Fleet
of payments due on the Preferred Securities. No separate consideration will
be received for any Guarantees or such back-up obligations.
(12) The registration fee of $442,500 was previously paid with the original
filing of Form S-3 relating to $1,500,000,000 of new securities registered.
The remaining amount of securities included in this amendment ($836,868,750)
relate to Registration Statement No. 333-37231 and Registration Statement
No. 333-48043 (see below).
Pursuant to Rule 429 of the rules and regulations of the Securities and
Exchange Commission under the Securities Act of 1933, as amended, the Prospectus
contained herein also relates to $636,868,750 of securities previously
registered under Registration Statement No. 333-37231 and $200,000,000 of
securities previously registered under Registration Statement No. 333-48043, and
this constitutes Post-Effective Amendment No. 1 to each such Registration
Statement.
---------------------
<PAGE>
EXPLANATORY NOTE
This Registration Statement contains three forms of Prospectus: (i) one to
be used in connection with the offering and sale of Debt Securities, and
Warrants to purchase Debt Securities, including any Preferred Stock, Depositary
Shares and Common Stock into which the Debt Securities may be convertible; (ii)
one to be used in connection with the offering and sale of Preferred Stock,
Depositary Shares and Common Stock, and Warrants to purchase such Securities,
including any such shares into which the Preferred Stock or Depositary Shares
may be convertible; and (iii) one to be used in connection with the offering and
sale of Preferred Securities issued by Delaware statutory business trusts, the
common securities of which are owned by Fleet.
<PAGE>
SUBJECT TO COMPLETION, DATED , 1998
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
PROSPECTUS
DEBT SECURITIES AND WARRANTS TO PURCHASE DEBT SECURITIES
FLEET FINANCIAL GROUP, INC.
Fleet Financial Group, Inc., a Rhode Island corporation ("Fleet"), may offer
from time to time debt securities (the "Debt Securities"), which may be either
senior (the "Senior Debt Securities") or subordinated (the "Subordinated Debt
Securities") in priority of payment, and warrants to purchase Debt Securities
(the "Warrants"), having a public offering price of up to an aggregate of
$2,336,868,750 (or the equivalent thereof if any of the Securities are
denominated in a foreign currency or a foreign currency unit). If Debt
Securities are issued at original issue discount, Fleet may issue such higher
principal amount as may be sold for an initial public offering price of up to
$2,336,868,750 (less the dollar amount of any securities previously issued
hereunder), or the equivalent thereof in one or more foreign currencies, foreign
currency units, or composite currencies. The Debt Securities and Warrants
(collectively, the "Securities") may be offered separately or as units with
other securities, in separate series, in amounts and at prices and terms to be
set forth in an accompanying Prospectus Supplement (a "Prospectus Supplement").
In addition, the Debt Securities may be convertible into shares of Fleet's
preferred stock (the "Preferred Stock"), depositary shares representing
Preferred Stock (the "Depositary Shares") or common stock (the "Common Stock")
on terms to be set forth in the accompanying Prospectus Supplement. Pursuant to
the terms of the Registration Statement of which this Prospectus constitutes a
part, (i) Fleet may also offer and sell shares of its Preferred Stock, which may
be represented by Depositary Shares, shares of its Common Stock or warrants to
purchase Preferred Stock or Common Stock (the "Equity Warrants") and (ii) one or
more Delaware statutory business trusts may offer and sell preferred securities
("Preferred Securities") guaranteed by Fleet to the extent described in the
Registration Statement of which this Prospectus forms a part (a "Guarantee")
concurrent with the sale by Fleet of junior subordinated debentures, notes or
other evidences of indebtedness (the "Junior Subordinated Debentures") to any of
the trusts, in which event such Junior Subordinated Debentures may later be
distributed for no additional consideration to the holders of the Preferred
Securities of such trust upon a dissolution of such trust and the distribution
of the assets thereof. Any such Preferred Stock, Depositary Shares, Common Stock
or Equity Warrants on the one hand, and the Preferred Securities, Guarantee and
Junior Subordinated Debentures, on the other hand, will be offered and issued
pursuant to the terms of a separate Prospectus contained in such Registration
Statement. The aggregate amount of Debt Securities and Warrants that may be
offered and sold pursuant hereto is subject to reduction as the result of the
sale of any Preferred Stock, Depositary Shares, Common Stock or Equity Warrants
on the one hand, and the sale of Preferred Securities, on the other hand,
pursuant to each such separate Prospectus.
The specific terms of the Securities in respect of which this Prospectus is
being delivered will be set forth in the accompanying Prospectus Supplement,
together with the terms of the offering of the Securities and the initial price
and net proceeds to Fleet from the sale thereof. The Prospectus Supplement will
include, with regard to the particular Securities, the following information:
(i) in the case of Debt Securities, the specific designation, priority,
aggregate principal amount, denominations, currency or currency unit for which
Debt Securities may be purchased, currency or currency unit in which the
principal and any interest on Debt Securities is payable, location of the
offering, maturity, rate (which may be fixed or variable) and time of payment of
interest, if any, terms for redemption, if any, at the option of Fleet or the
holder, terms for sinking or purchase fund payments, if any, whether any Debt
Securities which are Subordinated Debt Securities will be subordinated to other
indebtedness of Fleet, the initial public offering price, if any, of the Debt
Securities, terms relating to temporary or permanent global securities, special
provisions relating to Debt Securities in bearer form, provisions regarding
registration of transfer or exchange, provisions relating to the payment of any
additional amounts, any conversion or exchange provisions and provisions
regarding original issue discount securities; (ii) in the case of Warrants, the
duration, offering price, exercise price and detachability of any such warrants;
and (iii) in the case of all Securities, whether such Securities will be offered
separately or as a unit with other securities. The Prospectus Supplement will
also contain information, where applicable, about certain United States federal
income tax considerations relating to, and any listing on a securities exchange
of, the Securities covered by the Prospectus Supplement.
Fleet may sell Securities to or through underwriters or dealers, and also
may sell Securities directly to other purchasers or through agents. See "Plan of
Distribution". If any agents or underwriters are involved in the sale of any of
the Securities, their names, any applicable fee, commission, purchase price or
discount arrangements with them will be set forth, or will be calculable from
the information set forth, in the Prospectus Supplement. Fleet may sell
Securities in an offering within the United States ("United States Offering") or
outside the United States ("International Offering").
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALE OF SECURITIES
UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
THE SECURITIES ARE NOT SAVINGS ACCOUNTS, DEPOSITS OR OTHER OBLIGATIONS OF
ANY BANK OR NONBANK SUBSIDIARY OF FLEET AND ARE NOT INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION, BANK INSURANCE FUND OR ANY OTHER GOVERNMENT
AGENCY.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is , 1998.
<PAGE>
CERTAIN PERSONS PARTICIPATING IN THE OFFERING MADE HEREBY MAY ENGAGE IN
TRANSACTIONS THAT STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE
SECURITIES, INCLUDING OVER-ALLOTMENT, STABILIZING AND SHORT-COVERING
TRANSACTIONS IN THE SECURITIES, AND THE IMPOSITION OF A PENALTY BID, IN
CONNECTION WITH THE OFFERING.
FOR INVESTORS OUTSIDE THE UNITED STATES: NO ACTION HAS BEEN OR WILL BE TAKEN
IN ANY JURISDICTION BY FLEET OR BY ANY UNDERWRITER THAT WOULD PERMIT A PUBLIC
OFFERING OF THE SECURITIES OR POSSESSION OR DISTRIBUTION OF THIS PROSPECTUS IN
ANY JURISDICTION WHERE ACTION FOR THAT PURPOSE IS REQUIRED, OTHER THAN IN THE
UNITED STATES. PERSONS INTO WHOSE POSSESSION THIS PROSPECTUS COMES ARE REQUIRED
BY FLEET AND THE UNDERWRITERS TO INFORM THEMSELVES ABOUT AND TO OBSERVE ANY
RESTRICTIONS AS TO THE OFFERING OF THE SECURITIES AND THE DISTRIBUTION OF THIS
PROSPECTUS.
CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS
Certain statements contained in or incorporated by reference in this
Prospectus and accompanying Prospectus Supplement may be considered
"forward-looking statements" as defined in the Private Securities Litigation
Reform Act of 1995. Actual results may differ materially from those projected as
a result of certain risks and uncertainties, including but not limited to
changes in political and economic conditions, interest rate fluctuations,
competitive product and pricing pressures within Fleet's market, equity and bond
market fluctuations, personal and corporate customers' bankruptcies, inflation,
acquisitions and integrations of acquired businesses, risks relating to Year
2000 issues (particularly with respect to compliance by third parties on which
Fleet relies), as well as other risks and uncertainties detailed from time to
time in the filings of Fleet with the Securities and Exchange Commission (the
"Commission").
<PAGE>
AVAILABLE INFORMATION
Fleet is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements and other information with the
Commission. Proxy statements, reports and other information concerning Fleet can
be inspected and copied at the Commission's office at Room 1024, Judiciary
Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 and the Commission's
Regional Offices in New York (Suite 1300, Seven World Trade Center, New York,
New York 10048) and Chicago (Northwestern Atrium Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661), and copies of such material can be
obtained from the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates or by accessing the
Commission's World Wide Web site at http://www.sec.gov. The Common Stock is
listed on the New York Stock Exchange. Reports, proxy material and other
information concerning Fleet also may be inspected at the offices of the New
York Stock Exchange, 20 Broad Street, New York, New York 10005. This Prospectus
does not contain all the information set forth in the Registration Statement and
Exhibits thereto which Fleet has filed with the Commission under the Securities
Act of 1933, as amended (the "Act"), which may be obtained from the Public
Reference Section of the Commission at its principal office at 450 Fifth Street,
N.W., Washington, D.C. 20549, upon payment of the prescribed fees, and to which
reference is hereby made.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by Fleet are incorporated
in this Prospectus by reference:
1. Annual Report on Form 10-K for the year ended December 31, 1997.
2. Quarterly Reports on Form 10-Q for the quarters ended March 31, 1998
and June 30, 1998.
3. Current Reports on Form 8-K dated January 15, 1998, January 15, 1998,
January 26, 1998, February 2, 1998, March 4, 1998, March 6, 1998,
March 30, 1998, April 15, 1998, April 28, 1998, May 5, 1998, May 20,
1998, July 7, 1998 and July 15, 1998.
4. The description of the Common Stock contained in a Registration
Statement filed by Industrial National Corporation (predecessor to
Fleet) on Form 8-B dated May 29, 1970, and any amendment or report
filed for the purpose of updating such description.
5. The description of the Preferred Share Purchase Rights contained in
Fleet's Registration Statement on Form 8-A dated November 29, 1990,
and any amendment or report filed for the purpose of updating such
description.
Such incorporation by reference shall not be deemed to specifically
incorporate by reference the information referred to in Item 402(a)(8) of
Regulation S-K.
All documents filed with the Commission by Fleet pursuant to Sections 13, 14
or 15(d) of the Exchange Act subsequent to the date of this Prospectus and prior
to the termination of the offering of the Securities offered hereby are
incorporated herein by reference and such documents shall be deemed to be a part
hereof from the date of filing of such documents. Any statement contained in
this Prospectus or in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
ANY PERSON RECEIVING A COPY OF THIS PROSPECTUS MAY OBTAIN, WITHOUT CHARGE,
UPON WRITTEN OR ORAL REQUEST, A COPY OF ANY OF THE DOCUMENTS INCORPORATED BY
REFERENCE HEREIN (OTHER THAN THE EXHIBITS TO SUCH DOCUMENTS). WRITTEN REQUESTS
SHOULD BE MAILED TO INVESTOR RELATIONS DEPARTMENT, FLEET FINANCIAL GROUP, INC.,
ONE FEDERAL STREET, BOSTON, MASSACHUSETTS 02110. TELEPHONE REQUESTS MAY BE
DIRECTED TO (617) 346-4000.
2
<PAGE>
FLEET FINANCIAL GROUP, INC.
GENERAL
Fleet is a diversified financial services company organized under the laws
of the State of Rhode Island. At June 30, 1998, Fleet was the tenth largest bank
holding company in the United States, with total assets of $100.7 billion, total
deposits of $67.0 billion and stockholders' equity of $8.9 billion.
Fleet is engaged in a general consumer and commercial banking and investment
management business throughout the states of Connecticut, Massachusetts, New
Jersey, New York, Rhode Island, Maine, New Hampshire and Florida through its
banking subsidiaries, and also provides, through its other subsidiaries, a
variety of financial services, including mortgage banking, asset-based lending,
consumer finance, real estate financing, securities brokerage services, capital
markets services and investment banking, investment advice and management, data
processing and student loan servicing.
The principal office of Fleet is located at One Federal Street, Boston,
Massachusetts 02110, telephone number (617) 346-4000.
REGULATORY MATTERS
GENERAL. Fleet is a legal entity separate and distinct from its
subsidiaries. The ability of holders of debt and equity securities of Fleet,
including the holders of the Securities offered hereby, to benefit from the
distribution of assets of any subsidiary upon the liquidation or reorganization
of such subsidiary is subordinate to prior claims of creditors of the subsidiary
(including depositors in the case of banking subsidiaries) except to the extent
that a claim of Fleet as a creditor may be recognized.
There are various statutory and regulatory limitations on the extent to
which banking subsidiaries of Fleet can finance or otherwise transfer funds to
Fleet or its nonbanking subsidiaries, whether in the form of loans, extensions
of credit, investments or asset purchases. Such transfers by any subsidiary bank
to Fleet or any nonbanking subsidiary are limited in amount to 10% of the bank's
capital and surplus and, with respect to Fleet and all such nonbanking
subsidiaries, to an aggregate of 20% of each such bank's capital and surplus.
Furthermore, loans and extensions of credit are required to be secured in
specified amounts and are required to be on terms and conditions consistent with
safe and sound banking practices.
In addition, there are regulatory limitations on the payment of dividends
directly or indirectly to Fleet from its banking subsidiaries. Under applicable
banking statutes, at June 30, 1998, Fleet's banking subsidiaries could have
declared additional dividends of approximately $842.0 million. Federal and state
regulatory agencies also have the authority to limit further Fleet's banking
subsidiaries' payment of dividends based on other factors, such as the
maintenance of adequate capital for such subsidiary bank.
Under the policy of the Board of Governors of the Federal Reserve System
(the "Federal Reserve Board"), Fleet is expected to act as a source of financial
strength to each subsidiary bank and to commit resources to support such
subsidiary bank in circumstances where it might not do so absent such policy. In
addition, any subordinated loans by Fleet to any of the subsidiary banks would
also be subordinate in right of payment to deposits and obligations to general
creditors of such subsidiary bank. Further, the Crime Control Act of 1990
amended the federal bankruptcy laws to provide that in the event of the
bankruptcy of Fleet, any commitment by Fleet to its regulators to maintain the
capital of a banking subsidiary will be assumed by the bankruptcy trustee and
entitled to a priority of payment.
FIRREA.
As a result of the enactment of the Financial Institutions Reform, Recovery
and Enforcement Act ("FIRREA") on August 9, 1989, any or all of Fleet's
subsidiary banks can be held liable for any loss incurred by, or reasonably
expected to be incurred by, the FDIC after August 9, 1989, in connection with
3
<PAGE>
(a) the default of any other of Fleet's subsidiary banks or (b) any assistance
provided by the FDIC to any other of Fleet's subsidiary banks in danger of
default. "Default" is defined generally as the appointment of a conservator or
receiver and "in danger of default" is defined generally as the existence of
certain conditions indicating that a "default" is likely to occur without
regulatory assistance.
FDICIA.
The Federal Deposit Insurance Corporation Improvement Act of 1991 (the
"FDICIA") provides for, among other things, increased funding for the Bank
Insurance Fund (the "BIF") of the FDIC and expanded regulation of depository
institutions and their affiliates, including parent holding companies. A summary
of certain provisions of FDICIA and its implementing regulations is provided
below.
PROMPT CORRECTIVE ACTION. The FDICIA provides the federal banking agencies
with broad powers to take prompt corrective action to resolve problems of
insured depository institutions, depending upon a particular institution's level
of capital. The FDICIA establishes five tiers of capital measurement for
regulatory purposes ranging from "well-capitalized" to "critically
undercapitalized." A depository institution may be deemed to be in a
capitalization category that is lower than is indicated by its actual capital
position under certain circumstances. At June 30, 1998, each of Fleet's
subsidiary depository institutions was classified as "well-capitalized" under
the prompt corrective action regulations described above.
BROKERED DEPOSITS. Under the FDICIA, a depository institution that is
well-capitalized may accept brokered deposits. A depository institution that is
adequately capitalized may accept brokered deposits only if it obtains a waiver
from the FDIC, and may not offer interest rates on deposits "significantly
higher" than the prevailing rate in its market. An undercapitalized depository
institution may not accept brokered deposits. In Fleet's opinion, these
limitations do not have a material effect on Fleet.
SAFETY AND SOUNDNESS STANDARDS. The FDICIA, as amended, directs each
federal banking agency to prescribe safety and soundness standards for
depository institutions relating to internal controls, information systems,
internal audit systems, loan documentation, credit underwriting, interest rate
exposure, asset growth, compensation, asset-quality, earnings and stock
valuation. Final interagency regulations to implement these new safety and
soundness standards were adopted by the federal banking agencies. As of October
1, 1996, standards for asset quality and earnings have been incorporated into
the Interagency Guidelines Establishing Standards for Safety and Soundness. The
three standards for Safety and Soundness established by the guidelines are (1)
operational and managerial; (2) compensation; and (3) asset quality, earnings
and stock valuation. The ultimate cumulative effect of these standards cannot
currently be forecast.
The FDICIA also contains a variety of other provisions that may affect
Fleet's operations, including new reporting requirements, regulatory standards
for real estate lending, "truth in savings" provisions, and the requirement that
a depository institution give 90 days' prior notice to customers and regulatory
authorities before closing any branch.
CAPITAL GUIDELINES
Under the Federal Reserve Board's capital guidelines, the minimum ratio of
total capital to risk-adjusted assets (including certain off-balance sheet
items, such as standby letters of credit) is 8%. At least half of the total
capital is to be comprised of common equity, retained earnings, minority
interests in the equity accounts of consolidated subsidiaries and a limited
amount of cumulative and noncumulative perpetual preferred stock, less
deductible intangibles ("Tier 1 capital"). The remainder may consist of
perpetual debt, mandatory convertible debt securities, a limited amount of
subordinated debt, other preferred stock and a limited amount of loan loss
reserves ("Tier 2 capital"). In addition, the Federal Reserve Board requires a
leverage ratio (Tier 1 capital to average quarterly assets, net of goodwill) of
3% for bank holding companies that meet certain specified criteria, including
that they have the highest
4
<PAGE>
regulatory rating. The minimum leverage ratio for all other bank holding
companies is 4%. The rule indicates that the leverage ratio should be well above
the minimum levels for holding companies experiencing significant growth.
Fleet's banking subsidiaries are subject to similar capital requirements except
that preferred stock must be noncumulative to qualify as Tier 1 capital.
The federal banking agencies continue to consider capital requirements
applicable to banking organizations. Effective September 1, 1995, the federal
banking agencies adopted amendments to their risk-based capital regulations to
provide for the consideration of interest rate risk in the determination of a
bank's minimum capital requirements. The amendments require that banks
effectively measure and monitor their interest rate risk and that they maintain
capital adequate for that risk. Under the amendments, banks with excess interest
rate risk would be required to maintain additional capital beyond that generally
required. In addition, effective January 17, 1995, the federal banking agencies
adopted amendments to their risk-based capital standards to provide for the
concentration of credit risk and certain risks arising from nontraditional
activities, as well as a bank's ability to manage these risks, as important
factors in assessing a bank's overall capital adequacy. Effective January 1,
1997, national banks with significant exposure to market risk must maintain
adequate capital to support that exposure. The Office of the Comptroller of the
Currency ("OCC") may apply this provision to any national bank if the OCC deems
it appropriate for safe and sound practices.
As of June 30, 1998, Fleet's capital ratios on a historical basis exceeded
all minimum regulatory capital requirements.
Under federal banking laws, failure to meet the minimum regulatory capital
requirements could subject a banking institution to a variety of enforcement
remedies available to federal regulatory authorities, including the termination
of deposit insurance by the FDIC and seizure of the institution.
INTERSTATE BANKING AND BRANCHING LEGISLATION
On September 29, 1994, President Clinton signed the Riegle-Neal Interstate
Banking and Branching Efficiency Act of 1994 (the "Interstate Act") into law.
The Interstate Act facilitates the interstate expansion and consolidation of
banking organizations by permitting (i) beginning one year after enactment of
the legislation, bank holding companies that are adequately capitalized and
managed to acquire banks located in states outside their home states regardless
of whether such acquisitions are authorized under the law of the host state,
(ii) the interstate merger of banks after June 1, 1997, subject to the right of
individual states to "opt in" or "opt out" of this authority prior to such date,
(iii) banks to establish new branches on an interstate basis provided that such
action is specifically authorized by the law of the host state, (iv) foreign
banks to establish, with approval of the appropriate regulators in the United
States, branches outside their home states to the same extent that national or
state banks located in such state would be authorized to do so and (v) beginning
September 29, 1995, banks to receive deposits, renew time deposits, close loans,
service loans and receive payments on loans and other obligations as agent for
any bank or thrift affiliate, whether the affiliate is located in the same or
different state. In 1996, Fleet merged its banking subsidiaries in Connecticut,
Massachusetts and Rhode Island and, in 1997, merged the resulting bank with one
of its banking subsidiaries in New York in order to achieve cost savings and to
increase convenience to its customers in those states.
DEPOSIT INSURANCE ASSESSMENTS
The deposits of each of Fleet's subsidiary banks are insured up to
regulatory limits by the FDIC and, accordingly, are subject to deposit insurance
assessments to maintain the BIF administered by the FDIC. The FDIC has adopted
regulations establishing a permanent risk-related deposit insurance assessment
system. Under this system, the FDIC places each insured bank in one of nine risk
categories based on (a) the bank's capitalization and (b) supervisory
evaluations provided to the FDIC by the institution's primary federal regulator.
Each insured bank's insurance assessment rate is then determined by the risk
category in
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which it is classified by the FDIC. On November 14, 1995, the FDIC voted to
decrease premiums effective January 1, 1995. The decrease lowered the rate of
deposit insurance premiums by $.04 per $100 of deposits for banks in each risk
assessment category. As a result, banks in the highest capital and supervisory
evaluation categories have an assessment rate of $0.00, and pay only the minimum
assessment of $2,000 per year for deposit insurance. Banks in the lowest capital
and supervisory evaluation categories are subject to a rate of $0.27 per $100 of
deposits. The FDIC has indicated that it is maintaining the decreased rate
schedule for assessments paid to the BIF through the end of 1998. This will be
reviewed on a semi-annual basis. There is no guarantee that the rate of deposit
insurance premiums will not increase in the future.
These assessment rates also reflect the amount the FDIC has determined is
necessary to maintain the reserve ratio of BIF of 1.25% of total insured bank
deposits. The FDIC has announced that this reserve ratio was achieved during
1995. However, due primarily to the fact that the reserve ratio of the FDIC's
Savings Association Insurance Fund ("SAIF") is not projected to reach the
required level of 1.25% for several years, the FDIC has made a proposal to
Congress to (1) capitalize the SAIF through a special up-front cash assessment
on SAIF deposits; (2) spread the responsibility for payment to the Financing
Corporation created under Title III of the Competitive Equality Banking Act of
1987 proportionally over all FDIC-insured institutions; and (3) as soon as
practicable, merge the BIF and the SAIF. In May, 1997, the FDIC announced that
the BIF had a reserve ratio of 1.34% at the end of 1996. In July, 1998, the FDIC
indicated that the BIF had a reserve ratio of 1.38% at the end of 1997 and
projects that the ratio will be above the designated reserve ratio of 1.25% at
the end of 1998. On April 28, 1998, the FDIC voted to retain the existing
assessment rate schedule applicable to members of the SAIF for the second half
of 1998.
Fleet's subsidiary banks do not hold significant amounts of deposits insured
by the SAIF.
6
<PAGE>
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
Fleet's consolidated ratios of earnings to fixed charges were as follows for
the years and periods indicated:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
SIX MONTHS ENDED -----------------------------------------------------
JUNE 30, 1998 1997 1996 1995 1994 1993
------------------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges:
Excluding Interest on Deposits................... 3.27x 3.90x 3.38x 1.79x 2.30x 2.39x
Including Interest on Deposits................... 1.83 1.94 1.79 1.36 1.64 1.58
</TABLE>
- ------------------------
For purposes of computing the consolidated ratios, earnings consist of
income before income taxes plus fixed charges (excluding capitalized interest).
Fixed charges consist of interest on short-term debt and long-term debt
(including interest related to capitalized leases and capitalized interest) and
one-third of rent expense, which approximates the interest component of such
expense. In addition, where indicated, fixed charges include interest on
deposits.
USE OF PROCEEDS
Unless otherwise indicated in the applicable Prospectus Supplement, Fleet
intends to use the net proceeds from the sale of the Securities for general
corporate purposes, principally to extend credit to, or fund investments in, its
subsidiaries. The precise amounts and timing of extensions of credit to, and
investments in, such subsidiaries will depend upon the subsidiaries' funding
requirements and the availability of other funds. Pending such applications, the
net proceeds may be temporarily invested in marketable securities or applied to
the reduction of Fleet's short-term indebtedness. Based upon the historic and
anticipated future growth of Fleet and the financial needs of its subsidiaries,
Fleet may engage in additional financings of a character and amount to be
determined as the need arises.
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DESCRIPTION OF DEBT SECURITIES
The Debt Securities will constitute either Senior Debt Securities or
Subordinated Debt Securities of Fleet. The Senior Debt Securities will be issued
under an indenture dated as of October 1, 1992 (the "Senior Indenture"), between
Fleet and The First National Bank of Chicago as Senior Trustee (the "Senior
Trustee"). The Subordinated Debt Securities will be issued under an indenture
dated as of October 1, 1992 (as supplemented by a First Supplemental Indenture
dated November 30, 1992, the "Subordinated Indenture"), between Fleet and The
First National Bank of Chicago as Subordinated Trustee (the "Subordinated
Trustee"). The Senior Indenture and Subordinated Indenture are collectively
referred to herein as the "Indentures". A copy of each of the Indentures are
exhibits to the Registration Statement of which this Prospectus forms a part.
The following description of Debt Securities relates to Debt Securities to be
issued in connection with either a United States Offering or an International
Offering, except, in the case of an International Offering, as otherwise
specified in the Prospectus Supplement relating thereto.
The following is a summary of all material terms set forth in the
Indentures. Such summaries do not purport to be complete and are subject to, and
are qualified in their entirety by reference to, all the provisions of the
Indentures, including the definitions therein of certain terms. Wherever
particular Sections or defined terms of the Indentures are referred to, it is
intended that such Sections or definitions shall be incorporated herein by
reference. The following sets forth certain general terms and provisions of the
Debt Securities to which any Prospectus Supplement may relate. The particular
terms of the Debt Securities offered by any Prospectus Supplement and the
extent, if any, to which such general provisions may apply to the Debt
Securities so offered, will be described in the Prospectus Supplement relating
to such Offered Securities.
Because Fleet is a holding company, its rights and the rights of its
creditors, including the Holders of the Debt Securities offered hereby, to
participate in the assets of any subsidiary upon the latter's liquidation or
reorganization will be subject to the prior claims of the subsidiary's creditors
except to the extent that Fleet may itself be a creditor with recognized claims
against the subsidiary.
GENERAL
The Debt Securities to be offered by this Prospectus are limited to the
amounts described on the cover of this Prospectus. Fleet expects from time to
time to incur additional indebtedness constituting Senior Indebtedness and Other
Financial Obligations (each as defined in the Subordinated Indenture). The
Indentures, however, do not limit the aggregate principal amount of Debt
Securities which may be issued thereunder and provide that Debt Securities may
be issued from time to time in one or more series. The Debt Securities will be
unsecured obligations of Fleet. Neither the Indentures nor the Debt Securities
will limit or otherwise restrict the amount of other indebtedness (including
Other Financial Obligations) which may be incurred or other securities which may
be issued by Fleet or any of its subsidiaries. The Senior Debt Securities will
rank on a parity with all other unsecured unsubordinated indebtedness of Fleet
while the indebtedness represented by the Subordinated Debt Securities will be
subordinated as described below under "Subordinated Debt Securities".
As used herein, Debt Securities shall include securities denominated in U.S.
dollars or, at the option of Fleet if so specified in the applicable Prospectus
Supplement, in any other currency, including composite currencies. Debt
Securities of a series may be issuable in individual registered form without
coupons, in the form of one or more global securities, or, in bearer form with
or without coupons. Such bearer securities will be offered only to non-United
States persons and to offices located outside of the United States of certain
United States financial institutions.
Reference is made to the Prospectus Supplement relating to the particular
series of Debt Securities offered thereby for the following terms, where
applicable, of the Debt Securities in respect of which this Prospectus is being
delivered: (1) the title of the Debt Securities; (2) the limit, if any, on the
aggregate
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<PAGE>
principal amount or initial public offering price of the Debt Securities; (3)
the priority of payment of such Debt Securities; (4) the price or prices (which
may be expressed as a percentage of the aggregate principal amount thereof) at
which the Debt Securities will be issued; (5) the date or dates on which the
Debt Securities will mature; (6) the rate or rates (which may be fixed or
variable) per annum at which the Debt Securities will bear interest, if any, or
the method of determining the same; (7) the date from which such interest, if
any, on the Debt Securities will accrue, the date or dates on which such
interest, if any, will be payable, the date on which payment of such interest,
if any, will commence and the Regular Record Dates for such Interest Payment
Dates, if any; (8) the extent to which any of the Debt Securities will be
issuable in temporary or permanent global form and, if so, the identity of the
depositary for such global Debt Security, or the manner in which any interest
payable on a temporary or permanent global Debt Security will be paid; (9) the
dates, if any, on which, and the price or prices at which, the Debt Securities
will, pursuant to any mandatory sinking fund provisions, or may, pursuant to any
optional sinking fund or to any purchase fund provisions, be redeemed by Fleet,
and the other detailed terms and provisions of such sinking and/or purchase
funds; (10) the date, if any, after which, and the price or prices at which, the
Debt Securities may, pursuant to any optional redemption provisions, be redeemed
at the option of Fleet or of the Holder thereof and the other detailed terms and
provisions of such optional redemption; (11) the denomination or denominations
in which such Debt Securities are authorized to be issued; (12) the currency,
currencies or units in which the Debt Securities are denominated, which may be
in United States dollars, a foreign currency or units of two or more foreign
currencies; (13) the currency, currencies or units for which the Debt Securities
may be purchased and in which principal, premium, if any, and interest may be
payable; (14) whether any of the Debt Securities will be issued in bearer form
and, if so, any limitations on issuance of such bearer Debt Securities
(including exchange for registered Debt Securities of the same series); (15)
information with respect to book-entry procedures; (16) whether any of the Debt
Securities will be issued as Original Issue Discount Securities; (17) any index
used to determine the amount of payments of principal of, premium, if any, and
interest on such Debt Securities; (18) each office or agency where, subject to
the terms of the applicable Indenture, such Debt Securities may be presented for
registration of transfer or exchange; (19) whether any of the Debt Securities
will be subject to defeasance in advance of the Redemption Date or Stated
Maturity thereof; (20) whether the subordination provisions summarized below or
different subordination provisions, including a different definition of "Senior
Indebtedness", "Entitled Persons", "Existing Subordinated Indebtedness", or
"Other Financial Obligations", shall apply to the Debt Securities; (21) whether
any of the Debt Securities will be convertible or exchangeable into other
securities of Fleet and the terms of such conversion or exchange, including the
conversion price and applicable conversion or expiration dates and (22) any
other terms of the series (which will not be inconsistent with the provisions of
the applicable Indenture).
Special federal income tax and other considerations relating to Debt
Securities denominated in foreign currencies or units of two or more foreign
currencies will be described in the applicable Prospectus Supplement. In the
event Fleet offers Debt Securities denominated in foreign currencies or units of
two or more foreign currencies, an opinion with respect to tax matters and
consent of counsel will be filed in a Form 8-K or as an amendment to the
Registration Statement of which this Prospectus forms a part.
Debt Securities may be issued as Original Issue Discount Securities (bearing
no interest or interest at a rate which at the time of issuance is below market
rates) to be sold at a substantial discount below their principal amount. In the
event of an acceleration of the maturity of any Original Issue Discount
Security, the amount payable to the Holder of such Original Issue Discount
Security upon such acceleration will be determined in accordance with the
applicable Prospectus Supplement, the terms of such security and the relevant
Indenture, but will be an amount less than the amount payable at the maturity of
the principal of such Original Issue Discount Security. Special federal income
tax and other considerations relating thereto will be described in the
applicable Prospectus Supplement.
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<PAGE>
REGISTRATION AND TRANSFER
Unless otherwise indicated in the applicable Prospectus Supplement, each
series of Debt Securities will be issued in registered form only, without
coupons. The Indentures, however, provide that Fleet may also issue Debt
Securities in bearer form only, or in both registered and bearer form. Debt
Securities issued in bearer form shall have interest coupons attached, unless
issued as zero coupon securities. Debt Securities in bearer form shall not be
offered, sold, resold or delivered in connection with their original issuance in
the United States or to any United States person (as defined below) other than
offices located outside the United States of certain United States financial
institutions. As used above, "United States person" means any citizen or
resident of the United States, any corporation, partnership or other entity
created or organized in or under the laws of the United States, or any estate or
trust, the income of which is subject to United States federal income taxation
regardless of its source, and "United States" means the United States of America
(including the States and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction. Purchasers of Debt
Securities in bearer form will be subject to certification procedures and may be
affected by certain limitations under United States tax laws. Such procedures
and limitations will be described in the Prospectus Supplement relating to the
offering of the Debt Securities in bearer form.
Debt Securities in registered form may be presented for transfer or exchange
(with form of transfer duly endorsed thereon) for other Debt Securities of the
same series at the offices of the Trustee according to the terms of the
applicable Indenture. In no event, however, will Debt Securities in registered
form be exchangeable for Debt Securities in bearer form. Fleet may designate the
office of the Trustee, who will also be the transfer agent of the Debt
Securities, as an office where the transfer of the Debt Securities may be
registered.
Unless otherwise indicated in the applicable Prospectus Supplement, Debt
Securities issued in bearer form will be issued in denominations of $10,000 and
$50,000.
Unless otherwise indicated in the applicable Prospectus Supplement, the Debt
Securities issued in fully registered form will be issued without coupons and in
denominations of $1,000 or integral multiples thereof.
No service charge will be made for any transfer or exchange of the Debt
Securities but Fleet may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
PAYMENT AND PLACE OF PAYMENT
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of principal of, premium, if any, and interest, if any, on, Debt Securities in
registered form will be made at the office of the Trustee, except that at the
option of Fleet, interest may be paid by mailing a check to the address of the
person entitled thereto as it appears on the Security Register (Sections 301,
305 and 1002 in the Senior Indenture; Sections 3.01, 3.05 and 5.02 in the
Subordinated Indenture).
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of principal of, premium, if any, and interest, if any, on Debt Securities in
bearer form will be made, subject to any applicable laws and regulations, at
such office outside the United States as specified in the applicable Prospectus
Supplement and as Fleet may designate from time to time, at the option of the
Holder, by check or by transfer to an account maintained by the payee with a
bank located outside the United States. Unless otherwise indicated in the
applicable Prospectus Supplement, payment of interest on Debt Securities in
bearer form will be made only against surrender of the coupon relating to such
Interest Payment Date. No payment with respect to any Debt Security in bearer
form will be made at any office or agency of Fleet in the United States or by
check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States.
10
<PAGE>
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more global securities ("Global Securities") that will be
deposited with, or on behalf of, a depository (the "Depository") identified in
the Prospectus Supplement relating to such series. Global Securities may be
issued in either registered or bearer form and in either temporary or permanent
form. Unless and until it is exchanged in whole or in part for individual
certificates evidencing Debt Securities in definitive form represented thereby,
a Global Security may not be transferred except as a whole by the Depository for
such Global Security to a nominee of such Depository or by a nominee of such
Depository to such Depository or another nominee of such Depository or by such
Depository or any such nominee to a successor of such Depository or a nominee of
such successor.
The specific terms of the depositary arrangement with respect to any Debt
Securities of a series will be described in the Prospectus Supplement relating
to such series.
MODIFICATION AND WAIVER
Each Indenture provides that modifications and amendments thereof may be
made by Fleet and the Trustees with the consent of the Holders of 66 2/3% in
aggregate principal amount of the Outstanding Securities of each series under
such Indenture affected by such modification or amendment; provided, however,
that no such modification or amendment may, without the consent of the Holder of
each Outstanding Security affected thereby, (a) change the stated maturity date
of the principal of, or any installment of principal or interest on, any
Outstanding Security, (b) reduce the principal amount of, the rate of interest
thereon, or any premium payable upon the redemption thereof, (c) reduce the
amount of principal of an Original Issue Discount Security payable upon
acceleration of the maturity thereof, (d) change the place or currency of
payment of principal of, or any premium or interest on, any Outstanding
Security, (e) impair the right to institute suit for the enforcement of any
payment on or with respect to any Outstanding Security, or (f) reduce the
percentage in principal amount of Outstanding Securities of any series, the
consent of whose Holders is required for modification or amendment of the
Indenture or for waiver of compliance with certain provisions of the Indenture
or for waiver of certain defaults.
The Holders of 50% in aggregate principal amount of the Outstanding
Securities of each series may, on behalf of all Holders of Debt Securities of
that series, waive, insofar as that series is concerned, compliance by Fleet
with certain restrictive provisions of the applicable Indenture. The Holders of
a majority in aggregate principal amount of the Outstanding Securities of each
series may, on behalf of all Holders of Debt Securities of that series, waive
any past default under the applicable Indenture with respect to Debt Securities
of that series, except a default in the payment of principal or any premium or
any interest or in respect of a provision which under the applicable Indenture
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of that series affected.
Modification and amendment of the Indentures may be made by Fleet and the
Trustee without the consent of any Holder for any of the following purposes: (i)
to evidence the succession of another Person to Fleet; (ii) to add to the
covenants of Fleet for the benefit of the Holders of all or any series of
Securities; (iii) to add Events of Default; (iv) to add or change any provisions
of any of the Indentures to facilitate the issuance of bearer securities; (v) to
change or eliminate any of the provisions of the applicable Indenture, provided
that any such change or elimination shall become effective only when there is no
Outstanding Security of any series which is entitled to the benefit of such
provision; (vi) to establish the form or terms of Securities of any series;
(vii) to evidence and provide for the acceptance of appointment by a successor
Trustee; (viii) to cure any ambiguity, to correct or supplement any provision in
the applicable Indenture, or to make any other provisions with respect to
matters or questions arising under such Indenture, provided such action shall
not adversely affect the interests of Holders of Debt Securities of any series
in any material respect under such Indenture; (ix) to convey, transfer, assign,
mortgage or pledge any property to
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or with the Trustee or (x) to provide for conversion rights of the Holders of
the Securities of any series to enable such Holders to convert such Securities
into other securities of Fleet.
CONSOLIDATION, MERGER AND SALE OF ASSETS
Unless otherwise set forth in the applicable Prospectus Supplement, each
Indenture provides that Fleet may consolidate or merge with or into, or transfer
its assets substantially as an entirety to, any corporation organized under the
laws of any domestic jurisdiction, provided that the successor corporation
assumes Fleet's obligations on the Debt Securities under such Indenture, and
that after giving effect to the transaction no Event of Default, and no event
which, after notice or lapse of time, would become an Event of Default, shall
have occurred and be continuing, and that certain other conditions are met.
Neither Indenture provides for any right of acceleration in the event of a
consolidation, merger, sale of all or substantially all of the assets,
recapitalization or change in stock ownership of Fleet. In addition, the
Indentures do not contain any provision which would protect the Holders of Debt
Securities against a sudden and dramatic decline in credit quality resulting
from takeovers, recapitalizations or similar restructurings.
REGARDING THE TRUSTEE
Fleet maintains banking relations with the Trustee. In addition, Fleet's
banking subsidiaries maintain deposit accounts and correspondent banking
relations with the Trustee.
INTERNATIONAL OFFERING
If specified in the applicable Prospectus Supplement, Fleet may issue Debt
Securities in an International Offering. Such Debt Securities may be issued in
bearer form and will be described in the applicable Prospectus Supplement. If
such Debt Securities are Senior Debt Securities, such Debt Securities will be
issued pursuant to a supplement to the Senior Indenture. If Debt Securities are
issued in bearer form, the applicable Prospectus Supplement will contain the
relevant provisions.
In connection with any such International Offering, Fleet will designate
paying agents, registrars or other agents with respect to the Debt Securities,
as specified in the applicable Prospectus Supplement.
Debt Securities issued in an International Offering may be subject to
certain selling restrictions which will be described in the applicable
Prospectus Supplement. Such Debt Securities may be listed on one or more foreign
stock exchanges as described in the applicable Prospectus Supplement. Special
United States tax and other considerations, if any, applicable to an
International Offering will be described in the applicable Prospectus
Supplement.
SENIOR DEBT SECURITIES
The Senior Debt Securities will be direct, unsecured obligations of Fleet
and will rank pari passu with all outstanding senior indebtedness of Fleet.
EVENTS OF DEFAULT
The following are Events of Default under the Senior Indenture with respect
to Senior Debt Securities of any series: (a) failure to pay principal of or any
premium on any Senior Debt Security of that series when due; (b) failure to pay
any interest on any Senior Debt Security of that series when due, continued for
30 days; (c) failure to deposit any sinking fund payment, when due, in respect
of any Senior Debt Security of that series; (d) failure to perform any other
covenant of Fleet in the Senior Indenture (other than any covenant included in
the Indenture solely for the benefit of a Series of Debt Securities other than
that Series), continued for 60 days after written notice as provided in the
Senior Indenture; (e) certain events in bankruptcy, insolvency or
reorganization; and (f) any other Event of Default provided
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with respect to Senior Debt Securities of that series. (Section 501) If an Event
of Default with respect to Senior Debt Securities of any series at the time
outstanding occurs and is continuing, either the Senior Trustee or the Holders
of at least 25% in aggregate principal amount of the Outstanding Securities of
that series may declare the principal amount (or, if the Senior Debt Securities
of that series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of that series) of all the
Senior Debt Securities of that series to be due and payable immediately. At any
time after a declaration of acceleration with respect to Senior Debt Securities
of any series has been made, but before a judgment or decree based on
acceleration has been obtained, the Holders of a majority in aggregate principal
amount of Outstanding Securities of that series may, on behalf of all Holders of
that series, under certain circumstances, rescind and annul such acceleration.
(Section 502)
The Senior Indenture provides that, subject to the duty of the Senior
Trustee during default to act with the required standard of care, the Senior
Trustee will be under no obligation to exercise any of its rights or powers
under the Senior Indenture at the request or direction of any of the Holders,
unless such Holders shall have offered to the Senior Trustee reasonable
indemnity. (Section 603) Subject to such provisions for the indemnification of
the Senior Trustee, the Holders of a majority in aggregate principal amount of
the Outstanding Senior Debt Securities of any series will have the right to
direct the time, method and place of conducting any proceedings for any remedy
available to the Senior Trustee, or exercising any trust or power conferred on
the Senior Trustee, with respect to the Senior Debt Securities of that series.
(Section 512)
No Holder of any Senior Debt Security of any series will have any right to
institute any proceeding with respect to the Senior Indenture or for any remedy
thereunder, unless (a) such Holder shall have previously given to the Senior
Trustee written notice of a continuing Event of Default with respect to Senior
Debt Securities of that series, (b) the Holders of not less than 25% in
aggregate principal amount of the Outstanding Senior Debt Securities of that
series also shall have made written request and offered reasonable indemnity to
the Senior Trustee to institute such proceeding as trustee, (c) the Senior
Trustee shall not have received from the Holders of a majority in principal
amount of the Outstanding Senior Debt Securities of that series a direction
inconsistent with such request and (d) the Senior Trustee shall have failed to
institute such proceeding within 60 days. (Section 507) However, the Holder of
any Senior Debt Security will have an absolute right to receive payment of the
principal of (and premium, if any) and interest, if any, on such Senior Debt
Security on or after the due dates expressed in such Senior Debt Security and to
institute suit for the enforcement of any such payment. (Section 508)
Fleet is required to furnish to the Senior Trustee annually a statement as
to performance by Fleet of certain of its obligations under the Indenture and as
to any default in such performance. (Section 1009)
RESTRICTIVE COVENANTS
DISPOSITION OF VOTING STOCK OF CERTAIN SUBSIDIARIES. The Senior Indenture
contains a covenant that Fleet will not, and will not permit any Subsidiary (as
defined in the Senior Indenture) to sell, assign, pledge, transfer or otherwise
dispose of, or permit the issuance of any shares of Voting Stock (as defined in
the Senior Indenture) of, or any securities convertible into, or options,
warrants or rights to subscribe for or purchase shares of Voting Stock of, a
Principal Constituent Bank (as defined below) or any Subsidiary which owns
shares of, or securities convertible into, or options, warrants or rights to
subscribe for or purchase shares of Voting Stock of a Principal Constituent
Bank, provided that dispositions made by Fleet or any Subsidiary (i) acting in a
fiduciary capacity for any person other than Fleet or any Subsidiary or (ii) to
Fleet or any of its wholly-owned (except for directors' qualifying shares)
Subsidiaries, shall not be prohibited. Notwithstanding the limitations described
above, the Senior Indenture provides that Fleet may, and may permit its
Subsidiaries to, sell, assign, pledge, transfer or otherwise dispose of, or
issue such shares or securities (1) if required by law for the qualification of
Directors, (2) for purposes of compliance with an order of a court or regulatory
authority, (3) if in connection with a merger of, or consolidation of, a
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Principal Constituent Bank with or into a wholly-owned Subsidiary or a
Constituent Bank (as defined below), provided that Fleet holds, directly or
indirectly, in the entity surviving such merger or consolidation, not less than
the percentage of Voting Stock it held in the Principal Constituent Bank prior
to such action, (4) if such disposition or issuance is for fair market value
(determined by the Board of Directors of Fleet) and, if after giving effect to
such disposition or issuance (and any potential dilution), Fleet and its
wholly-owned Subsidiaries will own directly not less than 80% of the Voting
Stock of such Principal Constituent Bank or Subsidiary, (5) if a Principal
Constituent Bank sells additional shares of Voting Stock to its stockholders at
any price, if, after such sale, Fleet holds directly or indirectly not less than
the percentage of Voting Stock of such Principal Constituent Bank it owned prior
to such sale or (6) if Fleet or a Subsidiary pledges or creates a lien on the
Voting Stock of a Principal Constituent Bank to secure a loan or other extension
of credit by a Constituent Bank subject to Section 23A of the Federal Reserve
Act. A "Constituent Bank" is a Bank which is a Subsidiary. A "Principal
Constituent Bank" is Fleet National Bank and any other Constituent Bank
designated as a Principal Constituent Bank. Any designation of a Constituent
Bank as a Principal Constituent Bank with respect to Debt Securities of any
series shall remain effective until the Debt Securities of such series are no
longer outstanding. As of the date of this Prospectus, no Constituent Banks
(other than Fleet National Bank) have been designated as Principal Constituent
Banks with respect to any series of Debt Securities.
LIMITATION UPON LIENS ON CERTAIN CAPITAL STOCK. The Senior Indenture
contains a covenant that Fleet will not at any time, directly or indirectly,
create, assume, incur or suffer to be created, assumed or incurred or to exist
any mortgage, pledge, encumbrance or lien or charge of any kind upon (1) any
shares of capital stock of any Principal Constituent Bank (other than directors'
qualifying shares), or (2) any shares of capital stock of a Subsidiary which
owns capital stock of any Principal Constituent Bank; provided, however, that,
notwithstanding the foregoing, Fleet may incur or suffer to be incurred or to
exist upon such capital stock (a) liens for taxes, assessments or other
governmental charges or levies which are not yet due or are payable without
penalty or of which the amount, applicability or validity is being contested by
Fleet in good faith by appropriate proceedings and Fleet shall have set aside on
its books adequate reserves with respect thereto or (b) the lien of any
judgement, if such judgment shall not have remained undischarged, or unstayed on
appeal or otherwise, for more than 60 days.
DEFEASANCE
Fleet may terminate certain of its obligations under the Senior Indenture
with respect to the Senior Debt Securities of any series on the terms and
subject to the conditions contained in the Senior Indenture, by (a) depositing
irrevocably with the Senior Trustee as trust funds in trust (i) in the case of
Senior Debt Securities denominated in a foreign currency, money in such foreign
currency or Foreign Government Obligations (as defined below) of the foreign
government or governments issuing such foreign currency, or (ii) in the case of
Senior Debt Securities denominated in U.S. dollars, U.S. dollars or U.S.
Government Obligations (as defined below), in each case in an amount which
through the payment of interest, principal or premium, if any, in respect
thereof in accordance with their terms will provide (without any reinvestment of
such interest, principal or premium), not later than one business day before the
due date of any payment, money or (iii) a combination of money and U.S.
Government Obligations or Foreign Government Obligations, as applicable,
sufficient to pay the principal of or premium, if any, and interest on, the
Senior Debt Securities of such series as such are due and (b) satisfying certain
other conditions precedent specified in the Senior Indenture. Such deposit and
termination is conditioned among other things upon Fleet's delivery of (a) an
opinion of independent counsel that the Holders of the Senior Debt Securities of
such series will have no federal income tax consequences as a result of such
deposit and termination and (b) if the Senior Debt Securities of such series are
then listed on the New York Stock Exchange, an opinion of counsel that the
Senior Debt Securities of such series will not be delisted as a result of the
exercise of this option. Such termination will not relieve Fleet of its
obligation to pay when due the principal of, and interest on, certain of the
Senior Debt Securities as provided in the Indenture. (Section 403)
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"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, under
clauses (i) or (ii) are not callable or redeemable at the option of the issuer
thereof. "Foreign Government Obligations" means securities denominated in a
Foreign Currency that are (i) direct obligations of a foreign government 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
a foreign government the payment of which is unconditionally guaranteed as a
full faith and credit obligation by such foreign government, which, in either
case, under clauses (i) or (ii) are not callable or redeemable at the option of
the issuer thereof.
SUBORDINATED DEBT SECURITIES
The Subordinated Debt Securities will be direct, unsecured obligations of
Fleet and, unless otherwise specified in the applicable Prospectus Supplement,
will rank pari passu with all outstanding subordinated indebtedness of Fleet.
SUBORDINATION
The payment of the principal of and interest on the Subordinated Debt
Securities will, to the extent set forth in the Subordinated Indenture, be
subordinated in right of payment to the prior payment in full of all Senior
Indebtedness (as defined in the Subordinated Indenture). In certain events of
insolvency, the payment of the principal of and interest on the Subordinated
Debt Securities will, to the extent set forth in the Subordinated Indenture,
also be effectively subordinated in right of payment to the prior payment in
full of all Other Financial Obligations (as defined in the Subordinated
Indenture). Upon any payment or distribution of assets to creditors upon any
liquidation, dissolution, winding up, reorganization, assignment for the benefit
of creditors, marshalling of assets or any bankruptcy, insolvency or similar
proceedings of the Company, the holders of all Senior Indebtedness will first be
entitled to receive payment in full of all amounts due or to become due thereon
before the Holders of the Subordinated Debt Securities will be entitled to
receive any payment in respect of the principal of or interest on the
Subordinated Debt Securities. If upon any such payment or distribution of assets
to creditors, there remain, after giving effect to such subordination provisions
in favor of the holders of Senior Indebtedness, any amounts of cash, property or
securities available for payment or distribution in respect of Subordinated Debt
Securities (as defined in the Subordinated Indenture, "Excess Proceeds") and if,
at such time, any Entitled Persons (as defined in the Subordinated Indenture) in
respect of Other Financial Obligations have not received payment in full of all
amounts due or to become due on or in respect of such Other Financial
Obligations, then such Excess Proceeds shall first be applied to pay or provide
for the payment in full of such Other Financial Obligations before any payment
or distribution may be made in respect of the Subordinated Debt Securities. In
the event of the acceleration of the maturity of any Debt Securities, the
holders of all Senior Indebtedness will first be entitled to receive payment in
full of all amounts due thereon before the Holders of the Subordinated Debt
Securities will be entitled to receive any payment upon the principal of or
interest on the Subordinated Debt Securities.
In addition, no payment may be made of the principal of, premium, if any, or
interest on the Subordinated Debt Securities, or in respect of any redemption,
retirement, purchase or other acquisition of any of the Subordinated Debt
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
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<PAGE>
payment on the Subordinated Debt Securities or any redemption, retirement,
purchase or other acquisition of any of the Subordinated Debt Securities,
permitting the Holders of such Senior Indebtedness (or a trustee on behalf of
the Holders thereof) to accelerate the maturity thereof.
By reason of such subordination in favor of the holders of Senior
Indebtedness, in the event of insolvency, creditors of Fleet who are not holders
of Senior Indebtedness or of the Subordinated Debt Securities may recover less,
ratably, than Holders of Senior Indebtedness and may recover more, ratably, than
the Holders of the Subordinated Debt Securities. By reason of the obligation of
the Holders of Subordinated Debt Securities to pay over any Excess Proceeds to
Entitled Persons in respect of Other Financial Obligations, in the event of
insolvency, holders of Existing Subordinated Indebtedness (as defined in the
Subordinated Indenture) may recover more, ratably, than the Holders of
Subordinated Debt Securities.
Unless otherwise specified in the Prospectus Supplement relating to the
particular series of Subordinated Debt Securities offered thereby, Senior
Indebtedness is defined in the Subordinated Indenture as (a) the principal of,
premium, if any, and interest on all of Fleet's indebtedness for money borrowed,
whether outstanding on the date of execution of the Subordinated Indenture or
thereafter created, assumed or incurred, except (i) the Existing Subordinated
Indebtedness and other Subordinated Debt Securities issued under the
Subordinated Indenture, (ii) such indebtedness as is by its terms expressly
stated to be junior in right of payment to the Subordinated Debt Securities and
(iii) such indebtedness as is by its terms expressly stated to rank pari passu
with the Subordinated Debt Securities and (b) any deferrals, renewals or
extensions of any such Senior Indebtedness. (Section 1.01). The Term
"indebtedness for money borrowed" when used with respect to Fleet is defined to
include, without limitation, any obligation of, or any obligation guaranteed by,
Fleet for the repayment of borrowed money, whether or not evidenced by bonds,
debentures, notes or other written instruments, and any deferred obligation of,
or any such obligation guaranteed by, Fleet for the payment of the purchase
price of property or assets. (Section 1.01).
As of June 30, 1998, Fleet had an aggregate of $3,052 million in
Subordinated Debt outstanding, of which $832 million is subordinated to Fleet's
Senior Indebtedness and $2,220 million is subordinated to Fleet's Senior
Indebtedness and Other Financial Obligations.
Unless otherwise specified in the Prospectus Supplement relating to the
particular series of Subordinated Debt Securities offered thereby, Other
Financial Obligations means all obligations of Fleet 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 Subordinated Debt Securities.
Unless otherwise specified in the Prospectus Supplement relating to the
particular series of Subordinated Debt Securities offered thereby, Entitled
Persons means any person who is entitled to payment pursuant to the terms of
Other Financial Obligations.
Any Prospectus Supplement relating to a particular series of Subordinated
Debt Securities will set forth the aggregate amount of indebtedness of Fleet
senior to the Subordinated Debt Securities as of a recent practicable date.
Fleet's obligations under the Subordinated Debt Securities shall rank pari
passu in right of payment with each other and with the Existing Subordinated
Indebtedness, subject to the obligations of the Holders of Subordinated Debt
Securities to pay over any Excess Proceeds to Entitled Persons in respect of
Other Financial Obligations as provided in the Subordinated Indenture.
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The Subordinated Indenture does not limit or prohibit the incurrence of
additional Senior Indebtedness or Other Financial Obligations, which may include
indebtedness that is senior to the Subordinated Debt Securities, but subordinate
to other obligations of Fleet.
The Prospectus Supplement may further describe the provisions, if any,
applicable to the subordination of the Subordinated Debt Securities of a
particular series.
Except as described above or in the Subordinated Indenture, the obligation
of Fleet to make payment of the principal of, premium, if any, or interest on
the Subordinated Debt Securities will not be affected by reason of such
subordination. In the event of a distribution of assets upon any dissolution,
winding up, liquidation or reorganization, certain general creditors of Fleet
may recover more, ratably, than Holders of the Subordinated Debt Securities.
Subject to payment in full of all Senior Indebtedness, the rights of the Holders
of Subordinated Debt Securities will be subrogated to the rights of the Holders
of Senior Indebtedness to receive payments or distribution of cash, property or
securities of Fleet applicable to Senior Indebtedness. Subject to the payment in
full of all Other Financial Obligations, the rights of the Holders of
Subordinated Debt Securities will be subrogated to the rights of Entitled
Persons to receive payments or distributions of cash, property or securities of
Fleet applicable to Other Financial Obligations. (Sections 14.02 and 14.10)
LIMITED RIGHTS OF ACCELERATION
Unless otherwise specified in the Prospectus Supplement relating to any
series of Subordinated Debt Securities, payment of principal of the Subordinated
Debt Securities may be accelerated only in case of certain events involving the
bankruptcy, insolvency or reorganization of Fleet which constitutes an Event of
Default (as defined below). There is no right of acceleration in the case of a
default in the payment of principal of, premium, if any, or interest on the
Subordinated Debt Securities or the performance of any other covenant of Fleet
in the Subordinated Indenture.
RESTRICTIVE COVENANTS
The Prospectus Supplement relating to a series of Subordinated Debt
Securities may describe certain restrictive covenants, if any, to which Fleet
may be bound under the Subordinated Indenture.
EVENTS OF DEFAULT, DEFAULTS, WAIVERS
An "Event of Default" with respect to Subordinated Debt Securities of any
series is defined in the Subordinated Indenture as certain events involving the
bankruptcy or reorganization of Fleet and any other Event of Default provided
with respect to Subordinated Debt Securities of such series. (Section 7.01) A
"Default" with respect to Subordinated Debt Securities of any series is defined
in the Subordinated Indenture as (a) an Event of Default with respect to such
series; (b) failure to pay the principal of, or premium, if any, on any
Subordinated Security of such series at its Maturity; (c) failure to pay
interest upon any Subordinated Security of such series when due and payable and
the continuance of such Default for a period of 30 days; (d) failure to perform
any other covenant or agreement of Fleet in the Subordinated Indenture with
respect to Subordinated Debt Securities of such series and continuance of such
Default for 60 days after written notice of such failure, requiring Fleet to
remedy the same; and (e) any other Default provided with respect to Subordinated
Debt Securities of such series. (Section 7.07) If an Event of Default with
respect to any series of Subordinated Debt Securities for which there are
Subordinated Debt Securities outstanding under the Subordinated Indenture occurs
and is continuing, either the Subordinated Trustee or the Holders of not less
than 25% in aggregate principal amount of the Subordinated Debt Securities of
such series may declare the principal amount (or if such Subordinated Debt
Securities are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of that series) of all Subordinated Debt
Securities of that series to be immediately due and payable. The Holders of a
majority in aggregate principal amount of the Subordinated Debt Securities of
any series
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outstanding under the Subordinated Indenture may waive, on behalf of all Holders
of such series, an Event of Default resulting in acceleration of such
Subordinated Debt Securities, but only if all Defaults have been remedied and
all payments due (other than those due as a result of acceleration) have been
made. (Section 7.02) If a Default occurs and is continuing, the Subordinated
Trustee may in its discretion, and at the written request of Holders of not less
than a majority in aggregate principal amount of the Subordinated Debt
Securities of any series outstanding under the Subordinated Indenture and upon
reasonable indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request and subject to certain other conditions set
forth in the Subordinated Indenture shall, proceed to protect the rights of the
Holders of all the Subordinated Debt Securities of such series. (Section 7.03)
Prior to acceleration of maturity of the Subordinated Debt Securities of any
series outstanding under the Subordinated Indenture, the Holders of a majority
in aggregate principal amount of such Subordinated Debt Securities may waive any
past Default under the Subordinated Indenture except a Default in the payment of
principal of, premium, if any, or interest on the Subordinated Debt Securities
of such series or in respect of a covenant which cannot be modified or amended
without the consent of the Holder of each Outstanding Security of such series
affected. (Section 7.13)
The Subordinated Indenture provides that in the event of a Default specified
in clauses (b) or (c) of the immediately preceding paragraph in payment of
principal of, premium, if any, or interest on any Subordinated Debt Security of
any series, Fleet will, upon demand of the Subordinated Trustee, pay to it, for
the benefit of the holder of any such Subordinated Debt Security, the whole
amount then due and payable on such Subordinated Debt Security for principal,
premium, if any, and interest. The Subordinated Indenture further provides that
if Fleet fails to pay such amount forthwith upon such demand, the Subordinated
Trustee may, among other things, institute a judicial proceeding for the
collection thereof. (Section 7.03)
The Subordinated Indenture also provides that notwithstanding any other
provision of the Subordinated Indenture, the holder of any Subordinated Debt
Security of any series shall have the right to institute suit for the
enforcement of any payment of principal of, premium, if any, and interest on
such Subordinated Debt Security on the respective Stated Maturities (as defined
in the Subordinated Indenture) expressed in such Subordinated Debt Security and
that such right shall not be impaired without the consent of such holder.
(Section 7.08)
Fleet is required to furnish to the Subordinated Trustee annually a
statement as to performance by Fleet of certain of its obligations under the
Subordinated Indenture and as to any Default in such performance. (Section 5.10)
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DESCRIPTION OF WARRANTS
Fleet may issue Warrants for the purchase of Debt Securities. Warrants may
be issued independently or together with Debt Securities offered by any
Prospectus Supplement and may be attached to or separate from any such
Securities. Each series of Warrants will be issued under a separate warrant
agreement (a "Warrant Agreement") to be entered into between Fleet and a bank or
trust company, as warrant agent (the "Warrant Agent"). The Warrant Agent will
act solely as an agent of the Company in connection with the Warrants and will
not assume any obligation or relationship of agency or trust for or with any
holders or beneficial owners of Warrants. The following summary of certain
provisions of the Warrants does not purport to be complete and is subject to,
and qualified in its entirety by reference to, the provisions of the Warrant
Agreement that will be filed with the Commission in connection with the offering
of such Warrants.
The Prospectus Supplement relating to a particular issue of Warrants will
describe the terms of such Warrants, including the following: (a) the title of
such Warrants; (b) the offering price for such Warrants, if any; (c) the
aggregate number of such Warrants; (d) the designation and terms of the Debt
Securities purchasable upon exercise of such Warrants; (e) if applicable, the
designation and terms of the Debt Securities with which such Warrants are issued
and the number of such Warrants issued with each such Debt Security; (f) if
applicable, the date from and after which such Warrants and any Debt Securities
issued therewith will be separately transferable; (g) the principal amount of
Debt Securities purchasable upon exercise of a Warrant and the price at which
such principal amount of Debt Securities may be purchased upon exercise (which
price may be payable in cash, securities, or other property); (h) the date on
which the right to exercise such Warrants shall commence and the date on which
such right shall expire; (i) if applicable, the minimum or maximum amount of
such Warrants that may be exercised at any one time; (j) whether the Warrants
represented by the Warrant certificates or Debt Securities that may be issued
upon exercise of the Warrants will be issued in registered or bearer form; (k)
information with respect to book-entry procedures, if any; (l) the currency or
currency units in which the offering price, if any, and the exercise price are
payable; (m) if applicable, a discussion of material United States Federal
income tax considerations; (n) the antidilution provisions of such Warrants, if
any; (o) the redemption or call provisions, if any, applicable to such Warrants;
and (p) any additional terms of the Warrants, including terms, procedures, and
limitations relating to the exchange and exercise of such Warrants.
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PLAN OF DISTRIBUTION
Fleet may sell Securities to or through underwriters, and also may sell
Securities through agents (which are registered broker-dealers or banks) which
may be affiliates.
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices (which may be changed from time
to time), at market prices prevailing at the time of sale, at prices related to
such prevailing market prices or at negotiated prices. Each Prospectus
Supplement will describe the method of distribution of the Securities. Certain
restrictions relating to the distribution of Securities in connection with an
International Offering will be set forth in the applicable Prospectus
Supplement.
In connection with the sale of Securities, underwriters or agents acting on
Fleet's behalf may receive compensation from Fleet or from purchasers of
Securities for whom they may act as agents, in the form of discounts,
concessions or commissions. The underwriters, dealers and agents that
participate in the distribution of Securities may be deemed to be underwriters
under the Act and any discounts or commissions received by them and any profits
on the resale of Securities by them may be deemed to be underwriting discounts
and commissions under the Act. Any such underwriter will be identified and any
such compensation will be described in the applicable Prospectus Supplement.
Under agreements which may be entered into by Fleet, underwriters, dealers
and agents who participate in the distribution of Securities may be entitled to
indemnification by Fleet against certain liabilities, including liabilities
under the Act, and to certain rights of contribution from Fleet.
If so indicated in the applicable Prospectus Supplement, Fleet will
authorize underwriters or other persons acting as Fleet's agents to solicit
offers by certain institutions to purchase Debt Securities or Warrants from
Fleet pursuant to delayed delivery contracts providing for payment and delivery
on a future date or dates stated in the applicable Prospectus Supplement. Each
such contract will be for an amount not less than, and the aggregate amount of
such securities sold pursuant to such contracts shall not be less nor more than,
the respective amounts stated in the applicable Prospectus Supplement.
Institutions with which such contracts may be made include commercial and
savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and others, but in all cases such
institutions must be approved by Fleet. The obligations of any purchaser under
any such contract will not be subject to any condition except that (1) the
purchase of the Debt Securities or Warrants shall not at the time of delivery be
prohibited under the laws of the jurisdiction to which such purchaser is
subject, and (2) if the Debt Securities or Warrants are also being sold to
underwriters acting as principals for their own account, the underwriters shall
have purchased such Debt Securities or Warrants not sold for delayed delivery.
The underwriters and such other persons will not have any responsibility in
respect of the validity or performance of such contracts.
Certain of the underwriters and their associates and affiliates may be
customers of, have borrowing relationships with, engage in other transactions
with, and/or perform services, including investment banking services, for, Fleet
or one or more of its affiliates in the ordinary course of business.
EXPERTS
The consolidated financial statements of Fleet contained in Fleet's Current
Report on Form 8-K dated May 5, 1998, incorporated by reference herein (and
elsewhere in the Registration Statement) have been incorporated by reference
herein (and elsewhere in the Registration Statement) in reliance upon the report
of KPMG Peat Marwick LLP, independent certified public accountants, incorporated
by reference herein (and elsewhere in the Registration Statement) and upon the
authority of said firm as experts in accounting and auditing.
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LEGAL OPINIONS
The validity of the Securities offered hereby will be passed upon for Fleet
by Edwards & Angell, LLP, One BankBoston Plaza, Providence, Rhode Island 02903.
V. Duncan Johnson, a partner of Edwards & Angell, LLP, is a director of Fleet
National Bank, a wholly-owned subsidiary of Fleet, and beneficially owns 4,052
shares of Common Stock.
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NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS SUPPLEMENT OR THE PROSPECTUS IN CONNECTION WITH THE OFFER MADE BY
THIS PROSPECTUS SUPPLEMENT AND THE PROSPECTUS. IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY FLEET OR BY ANY UNDERWRITER. NEITHER THE DELIVERY OF THIS PROSPECTUS
SUPPLEMENT AND THE PROSPECTUS NOR ANY SALE MADE HEREUNDER AND THEREUNDER SHALL
UNDER ANY CIRCUMSTANCE CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN
THE AFFAIRS OF FLEET SINCE THE DATE HEREOF. THIS PROSPECTUS SUPPLEMENT AND THE
PROSPECTUS DOES NOT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY STATE
IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON
MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANYONE TO WHOM
IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
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<S> <C>
PROSPECTUS
Available Information.......................... 2
Incorporation of Certain Documents by
Reference.................................... 2
Fleet Financial Group, Inc. ................... 3
Consolidated Ratios of Earnings to Fixed
Charges...................................... 7
Use of Proceeds................................ 7
Description of Debt Securities................. 8
Senior Debt Securities......................... 12
Subordinated Debt Securities................... 15
Description of Warrants........................ 19
Plan of Distribution........................... 20
Experts........................................ 20
Legal Opinions................................. 21
</TABLE>
$2,336,868,750
[LOGO]
FLEET FINANCIAL
GROUP, INC.
----------
DEBT SECURITIES
PROSPECTUS
-------------------
, 1998
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<PAGE>
SUBJECT TO COMPLETION, DATED , 1998
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
PROSPECTUS
COMMON STOCK, COMMON STOCK WARRANTS, PREFERRED STOCK, DEPOSITARY SHARES, AND
PREFERRED STOCK WARRANTS
FLEET FINANCIAL GROUP, INC.
Fleet Financial Group, Inc., a Rhode Island corporation ("Fleet"), may offer
from time to time (a) shares of Common Stock, par value $0.01 per share,
including the associated Preferred Share Purchase Rights (the "Common Stock"),
(b) shares of preferred stock, par value $1.00 per share (the "Preferred
Stock"), including, at its option, depositary shares (the "Depositary Shares")
evidenced by depositary receipts (the "Depositary Receipts") each representing a
fractional interest in such Preferred Stock and (c) warrants to purchase Common
Stock (the "Common Stock Warrants") or Preferred Stock (the "Preferred Stock
Warrants", together with the Common Stock Warrants, the "Warrants"), having a
public offering price of up to an aggregate of $2,336,868,750 (or the equivalent
thereof if any of the Securities are denominated in a foreign currency or a
foreign currency unit). The Common Stock, Preferred Stock, Depositary Shares and
Warrants (collectively, the "Securities") may be offered separately or as units
with other securities, in separate series, in amounts and at prices and terms to
be set forth in an accompanying Prospectus Supplement (a "Prospectus
Supplement"). Pursuant to the terms of the Registration Statement of which this
Prospectus constitutes a part, (i) Fleet may also offer and sell its unsecured
debt securities, which may be either senior or subordinated, or warrants to
purchase debt securities (the "Debt Securities") and (ii) one or more Delaware
statutory business trusts may offer and sell preferred securities ("Preferred
Securities") guaranteed by Fleet to the extent described in the Registration
Statement of which this Prospectus forms a part (a "Guarantee") concurrent with
the sale by Fleet of junior subordinated debentures, notes or other evidences of
indebtedness (the "Junior Subordinated Debentures") to any of the trusts, in
which event such Junior Subordinated Debentures may later be distributed for no
additional consideration to the holders of the Preferred Securities of such
trust upon a dissolution of such trust and the distribution of the assets
thereof. Any such Debt Securities on the one hand, and the Preferred Securities,
Guarantee and Junior Subordinated Debentures, on the other hand, will be offered
and issued pursuant to the terms of a separate Prospectus contained in such
Registration Statement. The aggregate amount of Securities that may be offered
and sold pursuant hereto is subject to reduction as the result of the sale of
any Debt Securities on the one hand, and the sale of Preferred Securities, on
the other hand, pursuant to each such separate Prospectus.
The specific terms of the Securities in respect of which this Prospectus is
being delivered will be set forth in the accompanying Prospectus Supplement,
together with the terms of the offering of the Securities and the initial price
and net proceeds to Fleet from the sale thereof. The Prospectus Supplement will
include, with regard to the particular Securities, the following information:
(i) in the case of Preferred Stock, the specific number of shares, title, stated
value and liquidation preference of each share, issuance price, dividend rate
(or method of calculation), dividend payment dates, any redemption or sinking
fund provisions, any conversion or exchange provisions and whether fractional
interests in shares of Preferred Stock will be represented by Depositary Shares;
(ii) in the case of Common Stock, the specific number of shares and issuance
price for such shares; (iii) in the case of Warrants, the duration, offering
price, exercise price and detachability of any such warrants; and (iv) in the
case of all Securities, whether such Securities will be offered separately or as
a unit with other securities. The Prospectus Supplement will also contain
information, where applicable, about certain United States federal income tax
considerations relating to, and any listing on a securities exchange of, the
Securities covered by the Prospectus Supplement.
Fleet may sell Securities to or through underwriters or dealers, and also
may sell Securities directly to other purchasers or through agents. See "Plan of
Distribution". If any agents or underwriters are involved in the sale of any of
the Securities, their names, any applicable fee, commission, purchase price or
discount arrangements with them will be set forth, or will be calculable from
the information set forth, in the Prospectus Supplement. Fleet may sell
Securities in an offering within the United States ("United States Offering") or
outside the United States ("International Offering").
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALE OF SECURITIES
UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
THE SECURITIES ARE NOT SAVINGS ACCOUNTS, DEPOSITS OR OTHER OBLIGATIONS OF
ANY BANK OR NONBANK SUBSIDIARY OF FLEET AND ARE NOT INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION, BANK INSURANCE FUND OR ANY OTHER GOVERNMENT
AGENCY.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is , 1998.
<PAGE>
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS
THAT STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE SECURITIES,
INCLUDING STABILIZING AND SYNDICATE COVERING TRANSACTIONS AND THE IMPOSITION OF
A PENALTY BID.
FOR INVESTORS OUTSIDE THE UNITED STATES: NO ACTION HAS BEEN OR WILL BE TAKEN
IN ANY JURISDICTION BY FLEET OR BY ANY UNDERWRITER THAT WOULD PERMIT A PUBLIC
OFFERING OF THE SECURITIES OR POSSESSION OR DISTRIBUTION OF THIS PROSPECTUS IN
ANY JURISDICTION WHERE ACTION FOR THAT PURPOSE IS REQUIRED, OTHER THAN IN THE
UNITED STATES. PERSONS INTO WHOSE POSSESSION THIS PROSPECTUS COMES ARE REQUIRED
BY FLEET AND THE UNDERWRITERS TO INFORM THEMSELVES ABOUT AND TO OBSERVE ANY
RESTRICTIONS AS TO THE OFFERING OF THE SECURITIES AND THE DISTRIBUTION OF THIS
PROSPECTUS.
CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS
Certain statements contained in or incorporated by reference in this
Prospectus and accompanying Prospectus Supplement may be considered
"forward-looking statements" as defined in the Private Securities Litigation
Reform Act of 1995. Actual results may differ materially from those projected as
a result of certain risks and uncertainties, including but not limited to
changes in political and economic conditions, interest rate fluctuations,
competitive product and pricing pressures within Fleet's market, equity and bond
market fluctuations, personal and corporate customers' bankruptcies, inflation,
acquisitions and integrations of acquired businesses, risks relating to Year
2000 issues (particularly with respect to compliance by third parties on which
Fleet relies), as well as other risks and uncertainties detailed from time to
time in the filings of Fleet with the Securities and Exchange Commission (the
"Commission").
<PAGE>
AVAILABLE INFORMATION
Fleet is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements and other information with the
Commission. Proxy statements, reports and other information concerning Fleet can
be inspected and copied at the Commission's office at Room 1024, Judiciary
Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 and the Commission's
Regional Offices in New York (Suite 1300, Seven World Trade Center, New York,
New York 10048) and Chicago (Northwestern Atrium Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661), and copies of such material can be
obtained from the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates or by accessing the
Commission's World Wide Web site at http://www.sec.gov. The Common Stock is
listed on the New York Stock Exchange. Reports, proxy material and other
information concerning Fleet also may be inspected at the offices of the New
York Stock Exchange, 20 Broad Street, New York, New York 10005. This Prospectus
does not contain all the information set forth in the Registration Statement and
Exhibits thereto which Fleet has filed with the Commission under the Securities
Act of 1933, as amended (the "Act"), which may be obtained from the Public
Reference Section of the Commission at its principal office at 450 Fifth Street,
N.W., Washington, D.C. 20549, upon payment of the prescribed fees, and to which
reference is hereby made.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by Fleet are incorporated
in this Prospectus by reference:
1. Annual Report on Form 10-K for the year ended December 31, 1997.
2. Quarterly Reports on Form 10-Q for the quarters ended March 31, 1998
and June 30, 1998.
3. Current Reports on Form 8-K dated January 15, 1998, January 15, 1998,
January 26, 1998, February 2, 1998, March 4, 1998, March 6, 1998,
March 30, 1998, April 15, 1998, April 28, 1998, May 5, 1998, May 20,
1998, July 7, 1998 and July 15, 1998.
4. The description of the Common Stock contained in a Registration
Statement filed by Industrial National Corporation (predecessor to
Fleet) on Form 8-B dated May 29, 1970, and any amendment or report
filed for the purpose of updating such description.
5. The description of the Preferred Share Purchase Rights contained in
Fleet's Registration Statement on Form 8-A dated November 29, 1990,
and any amendment or report filed for the purpose of updating such
description.
Such incorporation by reference shall not be deemed to specifically
incorporate by reference the information referred to in Item 402(a)(8) of
Regulation S-K.
All documents filed with the Commission by Fleet pursuant to Sections 13, 14
or 15(d) of the Exchange Act subsequent to the date of this Prospectus and prior
to the termination of the offering of the Securities offered hereby are
incorporated herein by reference and such documents shall be deemed to be a part
hereof from the date of filing of such documents. Any statement contained in
this Prospectus or in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
ANY PERSON RECEIVING A COPY OF THIS PROSPECTUS MAY OBTAIN, WITHOUT CHARGE,
UPON WRITTEN OR ORAL REQUEST, A COPY OF ANY OF THE DOCUMENTS INCORPORATED BY
REFERENCE HEREIN (OTHER THAN THE EXHIBITS TO SUCH DOCUMENTS). WRITTEN REQUESTS
SHOULD BE MAILED TO INVESTOR RELATIONS DEPARTMENT, FLEET FINANCIAL GROUP, INC.,
ONE FEDERAL STREET, BOSTON, MASSACHUSETTS 02110. TELEPHONE REQUESTS MAY BE
DIRECTED TO (617) 346-4000.
2
<PAGE>
FLEET FINANCIAL GROUP, INC.
GENERAL
Fleet is a diversified financial services company organized under the laws
of the State of Rhode Island. At June 30, 1998, Fleet was the tenth largest bank
holding company in the United States, with total assets of $100.7 billion, total
deposits of $67.0 billion and stockholders' equity of $8.9 billion.
Fleet is engaged in a general consumer and commercial banking and investment
management business throughout the states of Connecticut, Massachusetts, New
Jersey, New York, Rhode Island, Maine, New Hampshire and Florida through its
banking subsidiaries, and also provides, through its other subsidiaries, a
variety of financial services, including mortgage banking, asset-based lending,
consumer finance, real estate financing, securities brokerage services, capital
markets services and investment banking, investment advice and management, data
processing and student loan servicing.
The principal office of Fleet is located at One Federal Street, Boston,
Massachusetts 02110, telephone number (617) 346-4000.
REGULATORY MATTERS
GENERAL. Fleet is a legal entity separate and distinct from its
subsidiaries. The ability of holders of debt and equity securities of Fleet,
including the holders of the Securities offered hereby, to benefit from the
distribution of assets of any subsidiary upon the liquidation or reorganization
of such subsidiary is subordinate to prior claims of creditors of the subsidiary
(including depositors in the case of banking subsidiaries) except to the extent
that a claim of Fleet as a creditor may be recognized.
There are various statutory and regulatory limitations on the extent to
which banking subsidiaries of Fleet can finance or otherwise transfer funds to
Fleet or its nonbanking subsidiaries, whether in the form of loans, extensions
of credit, investments or asset purchases. Such transfers by any subsidiary bank
to Fleet or any nonbanking subsidiary are limited in amount to 10% of the bank's
capital and surplus and, with respect to Fleet and all such nonbanking
subsidiaries, to an aggregate of 20% of each such bank's capital and surplus.
Furthermore, loans and extensions of credit are required to be secured in
specified amounts and are required to be on terms and conditions consistent with
safe and sound banking practices.
In addition, there are regulatory limitations on the payment of dividends
directly or indirectly to Fleet from its banking subsidiaries. Under applicable
banking statutes, at June 30, 1998, Fleet's banking subsidiaries could have
declared additional dividends of approximately $842 million. Federal and state
regulatory agencies also have the authority to limit further Fleet's banking
subsidiaries' payment of dividends based on other factors, such as the
maintenance of adequate capital for such subsidiary bank.
Under the policy of the Board of Governors of the Federal Reserve System
(the "Federal Reserve Board"), Fleet is expected to act as a source of financial
strength to each subsidiary bank and to commit resources to support such
subsidiary bank in circumstances where it might not do so absent such policy. In
addition, any subordinated loans by Fleet to any of the subsidiary banks would
also be subordinate in right of payment to deposits and obligations to general
creditors of such subsidiary bank. Further, the Crime Control Act of 1990
amended the federal bankruptcy laws to provide that in the event of the
bankruptcy of Fleet, any commitment by Fleet to its regulators to maintain the
capital of a banking subsidiary will be assumed by the bankruptcy trustee and
entitled to a priority of payment.
FIRREA.
As a result of the enactment of the Financial Institutions Reform, Recovery
and Enforcement Act ("FIRREA") on August 9, 1989, any or all of Fleet's
subsidiary banks can be held liable for any loss incurred by, or reasonably
expected to be incurred by, the FDIC after August 9, 1989, in connection with
(a) the default of any other of Fleet's subsidiary banks or (b) any assistance
provided by the FDIC to any
3
<PAGE>
other of Fleet's subsidiary banks in danger of default. "Default" is defined
generally as the appointment of a conservator or receiver and "in danger of
default" is defined generally as the existence of certain conditions indicating
that a "default" is likely to occur without regulatory assistance.
FDICIA.
The Federal Deposit Insurance Corporation Improvement Act of 1991 (the
"FDICIA") provides for, among other things, increased funding for the Bank
Insurance Fund (the "BIF") of the FDIC and expanded regulation of depository
institutions and their affiliates, including parent holding companies. A summary
of certain provisions of FDICIA and its implementing regulations is provided
below.
PROMPT CORRECTIVE ACTION. The FDICIA provides the federal banking agencies
with broad powers to take prompt corrective action to resolve problems of
insured depository institutions, depending upon a particular institution's level
of capital. The FDICIA establishes five tiers of capital measurement for
regulatory purposes ranging from "well-capitalized" to "critically
undercapitalized." A depository institution may be deemed to be in a
capitalization category that is lower than is indicated by its actual capital
position under certain circumstances. At June 30, 1998, each of Fleet's
subsidiary depository institutions was classified as "well-capitalized" under
the prompt corrective action regulations described above.
BROKERED DEPOSITS. Under the FDICIA, a depository institution that is
well-capitalized may accept brokered deposits. A depository institution that is
adequately capitalized may accept brokered deposits only if it obtains a waiver
from the FDIC, and may not offer interest rates on deposits "significantly
higher" than the prevailing rate in its market. An undercapitalized depository
institution may not accept brokered deposits. In Fleet's opinion, these
limitations do not have a material effect on Fleet.
SAFETY AND SOUNDNESS STANDARDS. The FDICIA, as amended, directs each
federal banking agency to prescribe safety and soundness standards for
depository institutions relating to internal controls, information systems,
internal audit systems, loan documentation, credit underwriting, interest rate
exposure, asset growth, compensation, asset-quality, earnings and stock
valuation. Final interagency regulations to implement these new safety and
soundness standards were adopted by the federal banking agencies. As of October
1, 1996, standards for asset quality and earnings have been incorporated into
the Interagency Guidelines Establishing Standards for Safety and Soundness. The
three standards for Safety and Soundness established by the guidelines are (1)
operational and managerial; (2) compensation; and (3) asset quality, earnings
and stock valuation. The ultimate cumulative effect of these standards cannot
currently be forecast.
The FDICIA also contains a variety of other provisions that may affect
Fleet's operations, including new reporting requirements, regulatory standards
for real estate lending, "truth in savings" provisions, and the requirement that
a depository institution give 90 days' prior notice to customers and regulatory
authorities before closing any branch.
CAPITAL GUIDELINES
Under the Federal Reserve Board's capital guidelines, the minimum ratio of
total capital to risk-adjusted assets (including certain off-balance sheet
items, such as standby letters of credit) is 8%. At least half of the total
capital is to be comprised of common equity, retained earnings, minority
interests in the equity accounts of consolidated subsidiaries and a limited
amount of cumulative and noncumulative perpetual preferred stock, less
deductible intangibles ("Tier 1 capital"). The remainder may consist of
perpetual debt, mandatory convertible debt securities, a limited amount of
subordinated debt, other preferred stock and a limited amount of loan loss
reserves ("Tier 2 capital"). In addition, the Federal Reserve Board requires a
leverage ratio (Tier 1 capital to average quarterly assets, net of goodwill) of
3% for bank holding companies that meet certain specified criteria, including
that they have the highest regulatory rating. The minimum leverage ratio for all
other bank holding companies is 4%. The rule
4
<PAGE>
indicates that the leverage ratio should be well above the minimum levels for
holding companies experiencing significant growth. Fleet's banking subsidiaries
are subject to similar capital requirements except that preferred stock must be
noncumulative to qualify as Tier 1 capital.
The federal banking agencies continue to consider capital requirements
applicable to banking organizations. Effective September 1, 1995, the federal
banking agencies adopted amendments to their risk-based capital regulations to
provide for the consideration of interest rate risk in the determination of a
bank's minimum capital requirements. The amendments require that banks
effectively measure and monitor their interest rate risk and that they maintain
capital adequate for that risk. Under the amendments, banks with excess interest
rate risk would be required to maintain additional capital beyond that generally
required. In addition, effective January 17, 1995, the federal banking agencies
adopted amendments to their risk-based capital standards to provide for the
concentration of credit risk and certain risks arising from nontraditional
activities, as well as a bank's ability to manage these risks, as important
factors in assessing a bank's overall capital adequacy. Effective January 1,
1997, national banks with significant exposure to market risk must maintain
adequate capital to support that exposure. The Office of the Comptroller of the
Currency ("OCC") may apply this provision to any national bank if the OCC deems
it appropriate for safe and sound practices.
As of June 30, 1998, Fleet's capital ratios on a historical basis exceeded
all minimum regulatory capital requirements.
Under federal banking laws, failure to meet the minimum regulatory capital
requirements could subject a banking institution to a variety of enforcement
remedies available to federal regulatory authorities, including the termination
of deposit insurance by the FDIC and seizure of the institution.
INTERSTATE BANKING AND BRANCHING LEGISLATION
On September 29, 1994, President Clinton signed the Riegle-Neal Interstate
Banking and Branching Efficiency Act of 1994 (the "Interstate Act") into law.
The Interstate Act facilitates the interstate expansion and consolidation of
banking organizations by permitting (i) beginning one year after enactment of
the legislation, bank holding companies that are adequately capitalized and
managed to acquire banks located in states outside their home states regardless
of whether such acquisitions are authorized under the law of the host state,
(ii) the interstate merger of banks after June 1, 1997, subject to the right of
individual states to "opt in" or "opt out" of this authority prior to such date,
(iii) banks to establish new branches on an interstate basis provided that such
action is specifically authorized by the law of the host state, (iv) foreign
banks to establish, with approval of the appropriate regulators in the United
States, branches outside their home states to the same extent that national or
state banks located in such state would be authorized to do so and (v) beginning
September 29, 1995, banks to receive deposits, renew time deposits, close loans,
service loans and receive payments on loans and other obligations as agent for
any bank or thrift affiliate, whether the affiliate is located in the same or
different state. In 1996, Fleet merged its banking subsidiaries in Connecticut,
Massachusetts and Rhode Island and, in 1997, merged the resulting bank with one
of its banking subsidiaries in New York in order to achieve cost savings and to
increase convenience to its customers in those states.
DEPOSIT INSURANCE ASSESSMENTS
The deposits of each of Fleet's subsidiary banks are insured up to
regulatory limits by the FDIC and, accordingly, are subject to deposit insurance
assessments to maintain the BIF administered by the FDIC. The FDIC has adopted
regulations establishing a permanent risk-related deposit insurance assessment
system. Under this system, the FDIC places each insured bank in one of nine risk
categories based on (a) the bank's capitalization and (b) supervisory
evaluations provided to the FDIC by the institution's primary federal regulator.
Each insured bank's insurance assessment rate is then determined by the risk
category in which it is classified by the FDIC. On November 14, 1995, the FDIC
voted to decrease premiums effective
5
<PAGE>
January 1, 1995. The decrease lowered the rate of deposit insurance premiums by
$.04 per $100 of deposits for banks in each risk assessment category. As a
result, banks in the highest capital and supervisory evaluation categories have
an assessment rate of $0.00, and pay only the minimum assessment of $2,000 per
year for deposit insurance. Banks in the lowest capital and supervisory
evaluation categories are subject to a rate of $0.27 per $100 of deposits. The
FDIC has indicated that it is maintaining the decreased rate schedule for
assessments paid to the BIF through the end of 1998. This will be reviewed on a
semi-annual basis. There is no guarantee that the rate of deposit insurance
premiums will not increase in the future.
These assessment rates also reflect the amount the FDIC has determined is
necessary to maintain the reserve ratio of BIF of 1.25% of total insured bank
deposits. The FDIC has announced that this reserve ratio was achieved during
1995. However, due primarily to the fact that the reserve ratio of the FDIC's
Savings Association Insurance Fund ("SAIF") is not projected to reach the
required level of 1.25% for several years, the FDIC has made a proposal to
Congress to (1) capitalize the SAIF through a special up-front cash assessment
on SAIF deposits; (2) spread the responsibility for payment to the Financing
Corporation created under Title III of the Competitive Equality Banking Act of
1987 proportionally over all FDIC-insured institutions; and (3) as soon as
practicable, merge the BIF and the SAIF. In May, 1997, the FDIC announced that
the BIF had a reserve ratio of 1.34% at the end of 1996. In July, 1998, the FDIC
indicated that the BIF had a reserve ratio of 1.38% at the end of 1997 and
projects that the ratio will be above the designated reserve ratio of 1.25% at
the end of 1998. On April 28, 1998, the FDIC voted to retain the existing
assessment rate schedule applicable to members of the SAIF for the second half
of 1998.
Fleet's subsidiary banks do not hold significant amounts of deposits insured
by the SAIF.
6
<PAGE>
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES AND DIVIDENDS
ON PREFERRED STOCK
Fleet's consolidated ratios of earnings to fixed charges and dividends on
preferred stock were as follows for the years and periods indicated:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
SIX MONTHS ENDED ------------------------------------------
JUNE 30, 1998 1997 1996 1995 1994
------------------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges and Dividends on
Preferred Stock:
Excluding interest on deposits........................ 3.27x 3.90x 3.38x 1.79x 2.30x
Including interest on deposits........................ 1.83 1.94 1.79 1.36 1.64
<CAPTION>
1993
---------
<S> <C>
Ratio of Earnings to Fixed Charges and Dividends on
Preferred Stock:
Excluding interest on deposits........................ 2.39x
Including interest on deposits........................ 1.58
</TABLE>
For purposes of computing the consolidated ratios, earnings consist of
income before income taxes plus fixed charges (excluding capitalized interest)
and, where indicated, the pretax equivalents of dividends on preferred stock.
Fixed charges consist of interest on short-term debt and long-term debt
(including interest related to capitalized leases and capitalized interest) and
one-third of rent expense, which approximates the interest component of such
expense. In addition, where indicated, fixed charges include interest on
deposits.
USE OF PROCEEDS
Unless otherwise indicated in the applicable Prospectus Supplement, Fleet
intends to use the net proceeds from the sale of the Securities for general
corporate purposes, principally to extend credit to, or fund investments in, its
subsidiaries. The precise amounts and timing of extensions of credit to, and
investments in, such subsidiaries will depend upon the subsidiaries' funding
requirements and the availability of other funds. Pending such applications, the
net proceeds may be temporarily invested in marketable securities or applied to
the reduction of Fleet's short-term indebtedness. Based upon the historic and
anticipated future growth of Fleet and the financial needs of its subsidiaries,
Fleet may engage in additional financings of a character and amount to be
determined as the need arises.
7
<PAGE>
DESCRIPTION OF PREFERRED STOCK
The following description of the terms of the Preferred Stock sets forth
certain general terms and provisions of the Preferred Stock to which any
Prospectus Supplement may relate. Certain other terms of any series of the
Preferred Stock offered by any Prospectus Supplement will be described in the
Prospectus Supplement relating to such series of the Preferred Stock. If so
indicated in the applicable Prospectus Supplement, the terms of any such series
may differ from the terms set forth below. The description of the provisions of
the Preferred Stock set forth below and in any Prospectus Supplement does not
purport to be complete and is subject to and qualified in its entirety by
reference to the Certificate of Designation relating to the applicable series of
the Preferred Stock.
GENERAL
Under Fleet's Restated Articles of Incorporation (the "Articles"), the Board
of Directors of Fleet is authorized, without further shareholder action, to
provide for the issuance of up to 16,000,000 shares of preferred stock, $1 par
value ("Fleet $1 Par Preferred Stock"), in one or more series, with such voting
powers, dividends, designations, preferences, rights, qualifications,
limitations and restrictions as shall be set forth in the resolutions providing
for the issuance thereof adopted by the Board of Directors. As of June 30, 1998,
Fleet had outstanding five series of Fleet $1 Par Preferred Stock as follows:
(i) 500,000 shares of 9.35% Cumulative Preferred Stock (the "9.35% Preferred"),
having a liquidation value of $250 per share, plus accrued and unpaid dividends,
were designated and 500,000 were issued and outstanding, (ii) 1,265,000 shares
of Series V 7.25% Perpetual Preferred Stock (the "Series V Preferred"), having a
liquidation value of $250 per share, plus accrued and unpaid dividends, were
designated and 765,000 were issued and outstanding, (iii) 690,000 shares of
Series VI 6.75% Perpetual Preferred Stock (the "Series VI Preferred"), having a
liquidation value of $250 per share, plus accrued and unpaid dividends, were
designated and 600,000 were issued and outstanding, (iv) 805,000 shares of
Series VII Fixed/Adjustable Rate Cumulative Preferred Stock (the "Series VII
Preferred"), having a liquidation value of $250 per share, plus accrued and
unpaid dividends, were designated and 700,000 were issued and outstanding, and
(v) 200,000 shares of Series VIII Fixed/Adjustable Rate Noncumulative Preferred
Stock (the "Series VIII Preferred"), having a liquidation value of $250 per
share, plus accrued and unpaid dividends, were designated and 200,000 were
issued and outstanding. In addition, the Board of Directors of Fleet has
established a series of 6,000,000 shares of Cumulative Participating Junior
Preferred Stock (the "Junior Preferred Stock") issuable upon exercise of the
preferred share purchase rights described below, of which no shares were issued
and outstanding as of June 30, 1998. Each such outstanding series is described
below under "Description of Existing Preferred Stock".
Under regulations adopted by the Federal Reserve Board, if the holders of
any series of the Preferred Stock are or become entitled to vote for the
election of directors because dividends on such series are in arrears, such
series may then be deemed a "class of voting securities" and a holder of 25% or
more of such series (or a holder of 5% or more if it otherwise exercises a
"controlling influence" over Fleet) may then be subject to regulation as a bank
holding company in accordance with the Bank Holding Company Act of 1956, as
amended. In addition, at such time as such series is deemed a class of voting
securities, (i) any other bank holding company may be required to obtain the
approval of the Federal Reserve Board to acquire or retain 5% or more of such
series and (ii) any person other than a bank holding company may be required to
obtain the approval of the Federal Reserve Board to acquire or retain 10% or
more of such series.
The Preferred Stock shall have the dividend, liquidation, redemption, voting
and conversion rights set forth below unless otherwise provided in the
Prospectus Supplement relating to a particular series of the Preferred Stock.
Reference is made to the Prospectus Supplement relating to the particular series
of the Preferred Stock offered thereby for specific terms, including: (i) the
title, stated value and liquidation preference of such Preferred Stock and the
number of shares offered; (ii) the initial public offering price at which such
Preferred Stock will be issued; (iii) the dividend rate or rates (or method of
calculation), the
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dividend periods, the dates on which dividends shall be payable and whether such
dividends shall be cumulative or noncumulative and, if cumulative, the dates
from which dividends shall commence to accumulate; (iv) any redemption or
sinking fund provisions; (v) any conversion provisions; (vi) whether Fleet has
elected to offer Depositary Shares as described under "Description of Depositary
Shares"; and (vii) any other rights, preferences, privileges, limitations and
restrictions on such Preferred Stock.
The Preferred Stock will, when issued, be fully paid and nonassessable.
Unless otherwise specified in the Prospectus Supplement relating to a particular
series of the Preferred Stock, each series of the Preferred Stock will rank on a
parity in all respects with the outstanding preferred stock of Fleet and each
other series of the Preferred Stock (except for the Junior Preferred Stock) and
will rank senior in all respects to any outstanding shares of Junior Preferred
Stock and the Common Stock. See "Description of Existing Preferred Stock". The
Preferred Stock will have no preemptive rights to subscribe for any additional
securities which may be issued by Fleet.
Unless otherwise specified in the applicable Prospectus Supplement, the
depositary, transfer agent, registrar, dividend disbursing agent and redemption
agent for shares of the Preferred Stock will be First Chicago Trust Company
("First Chicago").
As described under "Description of Depositary Shares", Fleet may, at its
option, with respect to any series of the Preferred Stock, elect to offer
fractional interests in shares of Preferred Stock, and provide for the issuance
by a Depositary (as defined below) of depositary receipts ("Depositary
Receipts") representing depositary shares ("Depositary Shares"), each of which
will represent a fractional interest (to be specified in the applicable
Prospectus Supplement relating to a particular series of the Preferred Stock) in
a share of such series of the Preferred Stock.
DIVIDENDS
Holders of the Preferred Stock of each series will be entitled to receive,
when, as and if declared by the Board of Directors of Fleet, out of any funds
legally available therefor, cash dividends at such rates and on such dates as
are set forth in the Prospectus Supplement relating to such series of the
Preferred Stock. Such rates may be fixed or adjustable or both. If adjustable,
the formula or other method used for determining the applicable dividend rate
for each dividend period will be set forth in the applicable Prospectus
Supplement. Dividends will be calculated on the basis of a 360-day year
consisting of twelve 30-day months.
Dividends on any series of the Preferred Stock may be cumulative or
noncumulative, as provided in the applicable Prospectus Supplement. If the Board
of Directors of Fleet fails to declare a dividend payable on a dividend payment
date on any series of the Preferred Stock for which dividends are noncumulative
("Noncumulative Preferred Stock"), then the holders of such series of the
Preferred Stock will have no right to receive a dividend in respect of the
dividend period ending on such dividend payment date, and Fleet will have no
obligation to pay the dividend accrued for such period, whether or not dividends
on such series are declared payable on any future dividend payment dates.
When dividends are not paid in full upon any series of the Preferred Stock
and any other series of Fleet's preferred stock ranking on a parity as to
dividends with such series of Preferred Stock, all dividends declared upon
shares of such series of Preferred Stock and any other series of Fleet's
preferred stock ranking on a parity as to dividends shall be declared pro rata
so that the amount of dividends declared per share on such series of Preferred
Stock and such other preferred stock shall in all cases bear to each other the
same ratio that accrued dividends per share on the shares of such series of
Preferred Stock (which shall not, if such Preferred Stock is Noncumulative
Preferred Stock, include any accumulation in respect of unpaid dividends for
prior dividend periods) and such other preferred stock bear to each other.
Except as provided in the preceding sentence, unless (i) with respect to any
series of Preferred Stock for which dividends are cumulative ("Cumulative
Preferred Stock"), full cumulative dividends have been or contemporaneously are
declared and paid or declared and a sum sufficient for the payment thereof set
apart for
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such payment on such Preferred Stock for all dividend periods terminating on or
prior to the date of payment of any such dividends on such other series of
preferred shares of Fleet or (ii) with respect to any series of Noncumulative
Preferred Stock, full dividends for the then-current dividend period on such
Preferred Stock have been or contemporaneously are declared and paid or declared
and a sum sufficient for the payment thereof set apart for such payment, no
dividends (other than in Common Stock or another stock ranking junior to such
series of Preferred Stock as to dividends and upon liquidation) shall be
declared or paid or set aside for payment, nor shall any other distribution be
made on the Common Stock or on any other stock of Fleet ranking junior to or on
a parity with such series of Preferred Stock as to dividends or upon
liquidation. Unless full dividends on the Cumulative Preferred Stock of any
series have been paid for the then-current and all past dividend periods and
full dividends for the then-current dividend period on the Noncumulative
Preferred Stock of any series have been declared and paid or declared and a sum
sufficient for the payment thereof set apart for such payment, no Common Stock
or any other stock of Fleet ranking junior to or on a parity with such series of
Preferred Stock as to dividends or upon liquidation may be redeemed, purchased
or otherwise acquired for any consideration (or any moneys paid to or made
available for a sinking fund for the redemption of any shares of any such stock)
by Fleet (except by conversion into or exchange for stock of Fleet ranking
junior to such series of Preferred Stock as to dividends and upon liquidation).
See "Fleet Financial Group, Inc." with respect to certain limitations on the
ability of Fleet and its banking subsidiaries to pay dividends.
LIQUIDATION RIGHTS
In the event of any voluntary or involuntary dissolution, liquidation or
winding up of Fleet, the holders of each series of the Preferred Stock will be
entitled to receive and to be paid out of assets of Fleet available for
distribution to its stockholders, before any payment or distribution is made to
holders of Common Stock or any other class of stock ranking junior to such
series of the Preferred Stock upon liquidation, liquidating distributions in an
amount per share as set forth in the Prospectus Supplement relating to such
series of the Preferred Stock, plus accrued and unpaid dividends (whether or not
earned or declared) for the then-current dividend period and, if such series of
the Preferred Stock is Cumulative Preferred Stock, for all dividend periods
prior thereto. If, upon any voluntary or involuntary dissolution, liquidation or
winding up of Fleet, the amounts payable with respect to the Preferred Stock of
any series and any other shares of stock of Fleet ranking as to any such
distribution on a parity with the Preferred Stock of such series are not paid in
full, the holders of the Preferred Stock of such series and of such other shares
will share ratably in any such distribution of assets of Fleet in proportion to
the full respective distributable amounts to which they are entitled. After
payment of the full amount of the liquidating distributions to which they are
entitled, the holders of shares of such series of the Preferred Stock will not
be entitled to any further participation in any distribution of assets by Fleet.
Neither the sale of all or substantially all the property or business of Fleet,
nor the merger or consolidation of Fleet into or with any other corporation
shall be deemed to be a dissolution, liquidation or winding up, voluntary or
involuntary, of Fleet.
REDEMPTION
Any series of the Preferred Stock may be redeemable, in whole or in part, at
the option of Fleet, and may be subject to mandatory redemption pursuant to a
sinking fund or otherwise, in each case upon the terms, at the times and at the
redemption prices set forth in the Prospectus Supplement relating to such series
and subject to the rights of holders of other securities of Fleet. Preferred
Stock redeemed by Fleet will be restored to the status of authorized but
unissued preferred shares.
The Prospectus Supplement relating to a series of the Preferred Stock which
is subject to mandatory redemption will specify the number of shares of such
series of the Preferred Stock which shall be redeemed by Fleet in each year
commencing after a date to be specified, at a redemption price per share and on
one
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or more dates to be specified, together with an amount equal to all accrued and
unpaid dividends thereon (which shall not, if such Preferred Stock is
Noncumulative Preferred Stock, include any accumulation in respect of unpaid
dividends for prior dividend periods) to the date of redemption. The redemption
price may be payable in cash or other property, as specified in the Prospectus
Supplement relating to such series of Preferred Stock.
If fewer than all of the outstanding shares of any series of the Preferred
Stock are to be redeemed, the number of shares to be redeemed will be determined
by the Board of Directors of Fleet and such shares shall be redeemed pro rata
from the holders of record of such shares in proportion to the number of such
shares held by such holders (with adjustments to avoid redemption of fractional
shares) or by lot in a manner determined by the Board of Directors of Fleet.
Notwithstanding the foregoing, if any dividends, including any accumulation
on shares of Cumulative Preferred Stock, of any series are in arrears, no shares
of Preferred Stock of such series shall be redeemed unless all outstanding
shares of Preferred Stock of such series are simultaneously redeemed, and Fleet
shall not purchase or otherwise acquire any shares of Preferred Stock of such
series; provided, however, that the foregoing shall not prevent the purchase or
acquisition of shares of Preferred Stock of such series pursuant to a purchase
or exchange offer made on the same terms to all holders of such series of the
Preferred Stock.
Notice of redemption shall be given by mailing the same to each record
holder of the shares to be redeemed, not less than 30 nor more than 60 days
prior to the date fixed for redemption thereof, to the respective addresses of
such holders as the same shall appear on the stock books of Fleet. Each such
notice shall state: (i) the redemption date; (ii) the number of shares and
series of the Preferred Stock to be redeemed; (iii) the redemption price; (iv)
the place or places where certificates for such shares of Preferred Stock are to
be surrendered for payment of the redemption price; (v) that dividends on the
shares to be redeemed will cease to accrue or accumulate on such redemption
date; and (vi) the date upon which the holders' conversion rights, if any, as to
such shares, shall terminate. If fewer than all shares of any series of the
Preferred Stock held by any holder are to be redeemed, the notice mailed to such
holder shall also specify the number of shares to be redeemed from such holder.
If notice of redemption has been given, dividends on the shares of Preferred
Stock so called for redemption shall cease to accrue or accumulate from and
after the redemption date for the shares of the series of the Preferred Stock
called for redemption (unless default shall be made by Fleet in providing money
for the payment of the redemption price of the shares so called for redemption),
and such shares shall no longer be deemed to be outstanding, and all rights of
the holders thereof as stockholders of Fleet (except the right to receive the
redemption price) shall cease. Upon surrender in accordance with such notice of
the certificates representing any shares of the Preferred Stock so redeemed
(properly endorsed or assigned for transfer, if the Board of Directors of Fleet
shall so require and the notice shall so state), the redemption price set forth
above shall be paid out of funds provided by Fleet. If fewer than all of the
shares of the Preferred Stock represented by any such certificate are redeemed,
a new certificate shall be issued representing the unredeemed shares without
cost to the holder thereof.
VOTING RIGHTS
Except as indicated below or in the Prospectus Supplement relating to a
particular series of the Preferred Stock, or except as expressly required by
applicable law, the holders of the Preferred Stock will not be entitled to vote.
In the event Fleet issues shares of a series of the Preferred Stock, each share
will be entitled to one vote on matters on which holders of such series of the
Preferred Stock are entitled to vote. However, as more fully described below
under "Description of Depositary Shares", if Fleet elects to provide for the
issuance of Depositary Shares representing interests in a fraction of a share of
a series of the Preferred Stock, the holders of each such Depositary Share will,
in effect, be entitled through the Depositary to such fraction of a vote, rather
than a full vote. Since each full share of any series of the
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Preferred Stock shall be entitled to one vote, the voting power of such series,
on matters on which holders of such series and holders of any other series of
the Preferred Stock or another series of preferred stock of Fleet are entitled
to vote as a single class, will depend on the number of shares in such series,
not the aggregate stated value, liquidation preference or initial offering price
of the shares of such series of the Preferred Stock.
If the equivalent of six quarterly dividends payable on any series of the
Preferred Stock or any other class or series of preferred stock are in default,
the number of directors of Fleet will be increased by two (without duplication
of any increase made pursuant to the terms of any other series of preferred
stock of Fleet), and the holders of all outstanding series of preferred stock,
including holders of any series of the Preferred Stock, voting as a single class
without regard to series, will be entitled at Fleet's next annual meeting of
stockholders (and at each subsequent annual meeting of stockholders) to elect
such additional two directors until full cumulative dividends for all
then-current and past dividend periods on all preferred shares of Fleet so
entitled to vote, including any shares of the Preferred Stock, have been paid or
declared and set apart for payment. Any such elected directors shall serve until
Fleet's next annual meeting of stockholders or until their respective successors
shall be elected and qualified. If a vacancy in the office of such director
shall occur during the continuance of a default in dividends on preferred shares
of Fleet so entitled to vote prior to the end of the term of such director, such
vacancy shall be filled for the unexpired term of such director by the remaining
director elected by the preferred shares so entitled to vote.
The affirmative vote or consent of the holders of at least 66 2/3% of the
outstanding shares of the Preferred Stock of any series at the time outstanding,
voting as a class, will be required for any amendment of the Articles (or any
certificate supplemental thereto) which will adversely affect the powers,
preferences, privileges or rights of such series of Preferred Stock. The
affirmative vote or consent of the holders of at least 66 2/3% of the
outstanding shares of any series of Preferred Stock and any other series of
preferred stock of Fleet ranking on a parity with any series of Preferred Stock
as to dividends or upon liquidation, voting as a single class without regard to
series, will be required to issue, authorize or increase the authorized amount
of, or issue or authorize any obligation or security convertible into or
evidencing a right to purchase, any additional class or series of stock ranking
prior to any series of Preferred Stock as to dividends or upon liquidation, but
such vote will not be required to take any such actions with respect to any
stock ranking on a parity with or junior to the Preferred Stock of such series.
Subject to such affirmative vote or consent of the holders of the
outstanding shares of the Preferred Stock of any series, Fleet may, by
resolution of its Board of Directors or as otherwise permitted by law, from time
to time alter or change the preferences, rights or powers of the Preferred Stock
of such series. The holders of the Preferred Stock of such series shall not be
entitled to participate in any such vote if, at or prior to the time when any
such alteration or change is to take effect, provision is made for the
redemption of all the Preferred Stock of such series at the time outstanding.
Nothing in this section shall be taken to require a class vote or consent in
connection with the authorization, designation, increase or issuance of any
shares of any class or series (including additional Preferred Stock of any
series) ranking junior to or on a parity with the Preferred Stock of such series
as to dividends and liquidation rights or in connection with the authorization,
designation, increase or issuance of any bonds, mortgages, debentures or other
obligations of Fleet.
CONVERSION RIGHTS
The Prospectus Supplement relating to any series of the Preferred Stock that
is convertible will state the terms on which shares of such series are
convertible into Common Stock of Fleet or another series of Preferred Stock.
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DESCRIPTION OF DEPOSITARY SHARES
The description set forth below and in any Prospectus Supplement of certain
provisions of the Deposit Agreement (as defined below) and of the Depositary
Shares and Depositary Receipts does not purport to be complete and is subject to
and qualified in its entirety by reference to the Deposit Agreement and
Depositary Receipts relating to the applicable series of the Preferred Stock,
forms of which will be filed as an exhibit to the Registration Statement of
which this Prospectus forms a part.
GENERAL
Fleet may, at its option, elect to offer fractional interests in shares of
Preferred Stock, rather than full shares of Preferred Stock. In the event such
option is exercised, Fleet will provide for the issuance by a Depositary of
Depositary Receipts evidencing Depositary Shares, each of which will represent a
fractional interest (to be set forth in the Prospectus Supplement relating to a
particular series of the Preferred Stock) in a share of a particular series of
the Preferred Stock as described below.
The shares of any series of the Preferred Stock underlying the Depositary
Shares will be deposited under a separate Deposit Agreement (the "Deposit
Agreement") between Fleet and a bank or trust company selected by Fleet (which
may be affiliated with Fleet) having its principal office in the United States
and having a combined capital and surplus of at least $50,000,000 (the
"Depositary"). The Prospectus Supplement relating to a series of Depositary
Shares will set forth the name and address of the Depositary. Unless otherwise
specified in the applicable Prospectus Supplement, the Depositary for shares of
the Preferred Stock will be First Chicago. Subject to the terms of the Deposit
Agreement, each owner of a Depositary Share will be entitled, in proportion to
the applicable fractional interest in a share of Preferred Stock underlying such
Depositary Share, to all the rights and preferences of the Preferred Stock
underlying such Depositary Share (including dividend, voting, redemption,
conversion and liquidation rights).
The Depositary Shares will be evidenced by Depositary Receipts issued
pursuant to the Deposit Agreement. Pending the preparation of definitive
engraved Depositary Receipts, the Depositary may, upon the written order of
Fleet, issue temporary Depositary Receipts substantially identical to, and
entitling the holders thereof to all the rights pertaining to, the definitive
Depositary Receipts but not in definitive form. Definitive Depositary Receipts
will be prepared thereafter without unreasonable delay, and temporary Depositary
Receipts will be exchangeable for definitive Depositary Receipts at Fleet's
expense.
Upon surrender of Depositary Receipts at the principal office of the
Depositary (unless the related Depositary Shares have previously been called for
redemption) and upon payment of the charges provided in the Deposit Agreement
and subject to the terms thereof, a holder of Depositary Shares is entitled to
have the Depositary deliver to, or upon the order of, such holder the whole
shares of Preferred Stock underlying, and any money or other property
represented by, the Depositary Shares evidenced by the surrendered Depositary
Receipts.
Partial shares of Preferred Stock will not be issued. If the Depositary
Receipts delivered by the holder evidence a number of Depositary Shares in
excess of the number of Depositary Shares representing the number of whole
shares of Preferred Stock to be withdrawn, the Depositary will deliver to such
holder at the same time a new Depositary Receipt evidencing such excess number
of Depositary Shares. Holders of shares of Preferred Stock thus withdrawn will
not thereafter be entitled to deposit such shares under the Deposit Agreement or
to receive Depositary Shares therefor. Fleet does not expect that there will be
any public trading market for the Preferred Stock except as represented by the
Depositary Shares.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the Preferred Stock to the record holders
of Depositary Shares relating to such Preferred Stock in proportion to the
numbers of such Depositary Shares owned by such holders on the relevant record
date. The
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Depositary shall distribute only such amount, however, as can be distributed
without attributing to any holder of Depositary Shares a fraction of one cent,
and any balance not so distributed shall be added to and treated as part of the
next sum received by the Depositary for distribution to record holders of
Depositary Shares.
In the event of a distribution other than in cash (including, without
limitation, distributions resulting from stock dividends, splits or plans of
reorganization), the Depositary will distribute property received by it to the
record holders of Depositary Shares entitled thereto, unless the Depositary
determines that it is not feasible to make such distribution, in which case the
Depositary may, with the approval of Fleet, sell such property and distribute
the net proceeds from such sale to such holders.
The Deposit Agreement will also contain provisions relating to the manner in
which any subscription or similar rights offered by Fleet to holders of the
Preferred Stock shall be made available to holders of Depositary Shares.
REDEMPTION OF DEPOSITARY SHARES
If any Preferred Stock deposited under a Deposit Agreement is subject to
redemption, the related Depositary Shares will be redeemed from the proceeds
received by the Depositary resulting from the redemption, in whole or in part,
of such series of the Preferred Stock held by the Depositary. The Depositary
shall mail notice of redemption not less than 30 and not more than 60 days prior
to the date fixed for redemption to the record holders of the Depositary Shares
to be so redeemed at their respective addresses appearing in the Depositary's
books. The redemption price per Depositary Share will be equal to the applicable
fraction of the redemption price per share payable with respect to such series
of the Preferred Stock. Whenever Fleet redeems shares of Preferred Stock held by
the Depositary, the Depositary will redeem as of the same redemption date the
number of Depositary Shares relating to shares of Preferred Stock so redeemed.
If less than all the Depositary Shares are to be redeemed, the Depositary Shares
to be redeemed will be selected pro rata or by lot as may be determined by the
Depositary.
After the date fixed for redemption, the Depositary Shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of the Depositary Shares will cease, except the right to receive the
moneys payable upon such redemption and any money or other property to which the
holders of such Depositary Shares were entitled upon such redemption upon
surrender to the Depositary of the Depositary Receipts evidencing such
Depositary Shares.
VOTING THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the Preferred
Stock are entitled to vote, the Depositary will mail the information contained
in such notice of meeting to the record holders of the Depositary Shares
relating to such Preferred Stock. Each record holder of such Depositary Shares
on the record date (which will be the same date as the record date for the
Preferred Stock) will be entitled to instruct the Depositary as to the exercise
of the voting rights pertaining to the number of shares of Preferred Stock
underlying such holder's Depositary Shares. The Depositary will endeavor,
insofar as practicable, to vote the number of shares of Preferred Stock
underlying such Depositary Shares in accordance with such instructions, and
Fleet will agree to take all action which may be deemed necessary by the
Depositary in order to enable the Depositary to do so. The Depositary will
abstain from voting shares of Preferred Stock to the extent it does not receive
specific instructions from the holders of Depositary Shares relating to such
Preferred Stock.
TAXATION
Owners of Depositary Shares will be treated for Federal income tax purposes
as if they were owners of the Preferred Stock represented by such Depositary
Shares and, accordingly, will be required to take into account for Federal
income tax purposes income received with respect to their Depositary Shares in
the same manner as if they were holders of such underlying Preferred Stock. In
addition, (i) no gain or loss will
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be recognized for Federal income tax purposes upon the withdrawal of Preferred
Stock in exchange for Depositary Shares as provided in the Deposit Agreement,
(ii) the aggregate tax basis of the Preferred Stock received by an exchanging
owner of Depositary Shares will, upon such exchange, be the same as the
aggregate tax basis of the Depositary Shares exchanged therefor and (iii) the
holding period for shares of the Preferred Stock in the hands of an exchanging
owner of Depositary Shares who held such Depositary Shares as a capital asset at
the time of the exchange will include the period during which such person owned
such Depositary Shares.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between Fleet and the Depositary. However, any amendment which materially and
adversely alters the rights of the existing holders of Depositary Shares will
not be effective unless such amendment has been approved by the record holders
of at least a majority of the Depositary Shares then outstanding. A Deposit
Agreement may be terminated by Fleet or the Depositary only if (i) all
outstanding Depositary Shares relating thereto have been redeemed or (ii) there
has been a final distribution in respect of the Preferred Stock of the relevant
series in connection with any liquidation, dissolution or winding up of Fleet
and such distribution has been distributed to the holders of the related
Depositary Shares.
CHARGES OF DEPOSITARY
Fleet will pay all transfer and other taxes and governmental charges arising
solely from the existence of the depositary arrangements. Fleet will pay charges
of the Depositary in connection with the initial deposit of the Preferred Stock
and any redemption of the Preferred Stock. Holders of Depositary Shares will pay
other transfer and other taxes and governmental charges and such other charges
as are expressly provided in the Deposit Agreement to be for their accounts.
MISCELLANEOUS
The Depositary will forward to the holders of Depositary Shares all notices,
reports and other communications (including proxy solicitation materials) from
Fleet which are delivered to the Depositary and which Fleet is required to
furnish to the holders of the Preferred Stock.
Neither the Depositary nor Fleet will be liable if it is prevented or
delayed by law or any circumstance beyond its control in performing its
obligations under the Deposit Agreement. The obligations of Fleet and the
Depositary under the Deposit Agreement will be limited to performance in good
faith of their duties thereunder and they will not be obligated to prosecute or
defend any legal proceeding in respect of any Depositary Shares or Preferred
Stock unless satisfactory indemnity is furnished. They may rely upon written
advice of counsel or accountants, on information provided by persons presenting
Preferred Stock for deposit, holders of Depositary Shares or other persons
believed to be competent and on documents believed to be genuine.
Any record holder of Depositary Shares who has been a holder for at least
six months or who holds at least five percent of the outstanding shares of
capital stock of Fleet will be entitled to inspect the transfer books relating
to the Depositary Shares and the list of record holders of Depositary Shares
upon certification to the Depositary that such holder is acting in good faith
and that such inspection is for a proper purpose.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary may resign at any time by delivering to Fleet notice of the
Depositary's election to do so, and Fleet may at any time remove the Depositary,
any such resignation or removal to take effect upon the appointment of a
successor Depositary and its acceptance of such appointment. Such successor
Depositary must be appointed within 60 days after delivery of the notice of
resignation or removal and must be a bank or trust company having its principal
office in the United States and having a combined capital and surplus of at
least $50,000,000.
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DESCRIPTION OF EXISTING PREFERRED STOCK
GENERAL
The following summary does not purport to be complete and is subject in all
respects to the applicable provisions of the Rhode Island Business Corporation
Act (the "RIBCA") and the Articles and By-laws of Fleet.
FLEET $1 PAR PREFERRED STOCK
Fleet $1 Par Preferred Stock (which includes the Preferred Stock), is
issuable in series, with such relative rights, preferences and limitations of
each series (including dividend rights, dividend rate, liquidation preference,
voting rights, conversion rights and terms of redemption (including sinking fund
provisions), redemption price or prices and the number of shares constituting
any series) as may be fixed by the Board of Directors.
9.35% PREFERRED. Dividends on the outstanding 9.35% Preferred are
cumulative and are payable quarterly at the rate of 9.35% per annum. So long as
any shares of the 9.35% Preferred are outstanding, Fleet may not redeem,
repurchase or otherwise acquire any shares of the Common Stock or any other
class of Fleet stock ranking junior to or on a parity with the Fleet 9.35%
Preferred either as to dividends or upon liquidation unless full cumulative
dividends on all outstanding shares of 9.35% Preferred are paid for all past
dividend payment periods. Further, if any dividends on the 9.35% Preferred are
in arrears, Fleet may not redeem, purchase or otherwise acquire any shares of
the 9.35% Preferred unless all outstanding shares of such class are
simultaneously redeemed, purchased or otherwise acquired, except pursuant to a
purchase or exchange offer made on the same terms to holders of all outstanding
shares of the 9.35% Preferred.
Except as indicated below or except as expressly required by applicable law,
the holders of the 9.35% Preferred are not entitled to vote. If the equivalent
of six quarterly dividends payable on any of the 9.35% Preferred are in default,
the number of directors of Fleet will be increased by two and the holders of all
outstanding classes and series of Fleet preferred stock, voting as a single
class without regard to series, will be entitled to elect two additional
directors until all accrued dividends have been paid. In addition, the vote of
the holders of two-thirds of the 9.35% Preferred, voting as a separate class, is
required in order to amend or alter the Articles in a manner which would
adversely affect the preferences, rights, powers or privileges of the 9.35%
Preferred; and the vote of two-thirds of the 9.35% Preferred, and all of the
classes and series of Fleet preferred stock ranking on a parity, either as to
dividends or upon liquidation, with the 9.35% Preferred, voting together as a
single class, is required in order to reclassify stock of Fleet into stock
ranking prior, either as to dividends or upon liquidation, to the 9.35%
Preferred, or to authorize the creation or issuance of stock, or of a security
convertible into or evidencing a right to purchase stock, ranking prior, either
as to dividends or upon liquidation, to the 9.35% Preferred.
In the event of any liquidation, dissolution or winding up of Fleet, the
holders of the 9.35% Preferred are entitled to receive $250.00 per share plus
accrued and unpaid dividends.
The 9.35% Preferred is redeemable on at least 30 but not more than 60 days
notice, at the option of Fleet, as a whole or in part, at any time on and after
January 15, 2000 at a redemption price equal to $250 per share plus accrued and
unpaid dividends.
SERIES V PREFERRED. In the event of the dissolution, liquidation or winding
up of Fleet, holders of shares of the outstanding Series V Preferred are
entitled to receive a distribution of $250 per share, plus accrued and unpaid
dividends, if any.
The holders of Series V Preferred are entitled to receive dividends at the
rate of 7.25% per annum computed on the basis of the issue price thereof of $250
per share, payable quarterly, before any dividend shall be declared or paid upon
the Common Stock or the Junior Preferred Stock. The dividends on Series
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V Preferred are cumulative. The Series V Preferred is redeemable, in whole or in
part, at Fleet's option, on and after April 15, 2001, at $250 per share, plus
accrued and unpaid dividends, if any. So long as any shares of the Series V
Preferred are outstanding, Fleet may not redeem, repurchase or otherwise acquire
any shares of the Common Stock or any other class of Fleet preferred stock
ranking junior to or on a parity with the Series V Preferred either as to
dividends or upon liquidation unless full cumulative dividends on all
outstanding shares of Series V Preferred are paid for all past dividend payment
periods. Further, if any dividends on the Series V Preferred are in arrears,
Fleet may not redeem, purchase or otherwise acquire any shares of the Series V
Preferred unless all outstanding shares of such class are simultaneously
redeemed, purchased or otherwise acquired, except pursuant to a purchase or
exchange offer made on the same terms to holders of all outstanding shares of
the Series V Preferred.
Except as indicated below or except as expressly required by applicable law,
the holders of the Series V Preferred are not entitled to vote. If the
equivalent of six quarterly dividends payable on the Series V Preferred or any
other class or series of preferred stock (other than any other class of
preferred stock expressly entitled to elect additional directors by a separate
and distinct vote) are in default, the number of directors of Fleet will be
increased by two (without duplication of any increase made pursuant to the terms
of any other series of preferred stock of Fleet), and the holders of the Series
V Preferred, voting as a single class with the holders of shares of any one or
more other series of Preferred Stock (other than any other class of preferred
stock expressly entitled to elect additional directors by a separate and
distinct vote) and any other class of Fleet preferred stock ranking on a parity
with the Series V Preferred either as to dividends or distribution of assets and
upon which like voting rights have been conferred and are exercisable, will be
entitled to elect two directors to fill each of the two newly-created
directorships. Such right shall continue until full cumulative dividends for all
past dividend periods on all preferred shares of Fleet (other than any other
class of preferred stock expressly entitled to elect additional directors by a
separate and distinct vote), including any shares of the Series V Preferred,
have been paid or declared and set apart for payment. Any such elected directors
shall serve until Fleet's next annual meeting of stockholders (notwithstanding
that prior to the end of such term the dividend default shall cease to exist) or
until their respective successors shall be elected and qualify.
The affirmative vote or consent of the holders of at least 66 2/3% of the
outstanding shares of the Series V Preferred is required for any amendment of
the Articles (or any certificate supplemental thereto) which will adversely
affect the powers, preferences, privileges or rights of the Series V Preferred.
The affirmative vote or consent of the holders of at least 66 2/3% of the
outstanding shares of the Series V Preferred and any other series of preferred
stock ranking on a parity with the Series V Preferred either as to dividends or
upon liquidation, voting as a single class without regard to series, is required
to issue, authorize or increase the authorized amount of, or issue or authorize
any obligation or security convertible into or evidencing a right to purchase,
any additional class or series of stock ranking prior to the Series V Preferred
as to dividends or upon liquidation, or to reclassify any authorized stock of
Fleet into such prior shares.
SERIES VI PREFERRED. In the event of the dissolution, liquidation or
winding up of Fleet, holders of shares of the outstanding Series VI Preferred
are entitled to receive a distribution of $250 per share, plus accrued and
unpaid dividends, if any.
The holders of Series VI Preferred are entitled to receive dividends at the
rate of 6.75% per annum computed on the basis of the issue price thereof of $250
per share, payable quarterly, before any dividend shall be declared or paid upon
the Common Stock or the Junior Preferred Stock. The dividends on Series VI
Preferred are cumulative. The amount of dividends payable in respect of the
Series VI Preferred will be adjusted in the event of certain amendments to the
Internal Revenue Code of 1986, as amended (the "Code"), in respect of the
dividends received deduction. The Series VI Preferred is redeemable, in whole or
in part, at Fleet's option, on and after April 15, 2006, at $250 per share, plus
accrued and unpaid dividends, if any. The Series VI Preferred may also be
redeemed prior to April 15, 2006, in whole, at the option of Fleet, in the event
of certain amendments to the Code in respect of the dividends received
deduction. So long as any shares of the Series VI Preferred are outstanding,
Fleet may not redeem,
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repurchase or otherwise acquire any shares of the Common Stock or any other
class of Fleet preferred stock ranking junior to or on a parity with the Series
VI Preferred either as to dividends or upon liquidation unless full cumulative
dividends on all outstanding shares of Series VI Preferred are paid for all past
dividend payment periods. Further, if any dividends on the Series VI Preferred
are in arrears, Fleet may not redeem, purchase or otherwise acquire any shares
of the Series VI Preferred unless all outstanding shares of such class are
simultaneously redeemed, purchased or otherwise acquired, except pursuant to a
purchase or exchange offer made on the same terms to holders of all outstanding
shares of the Series VI Preferred.
Except as indicated below or except as expressly required by applicable law,
the holders of the Series VI Preferred are not entitled to vote. If the
equivalent of six quarterly dividends payable on the Series VI Preferred or any
other class or series of preferred stock (other than any other class of
preferred stock expressly entitled to elect additional directors by a separate
and distinct vote) are in default, the number of directors of Fleet will be
increased by two (without duplication of any increase made pursuant to the terms
of any other series of preferred stock of Fleet), and the holders of the Series
VI Preferred, voting as a single class with the holders of shares of any one or
more other series of Preferred Stock (other than any other class of preferred
stock expressly entitled to elect additional directors by a separate and
distinct vote) and any other class of Fleet preferred stock ranking on a parity
with the Series VI Preferred either as to dividends or distribution of assets
and upon which like voting rights have been conferred and are exercisable, will
be entitled to elect two directors to fill each of the two newly-created
directorships. Such right shall continue until full cumulative dividends for all
past dividend periods on all preferred shares of Fleet (other than any other
class of preferred stock expressly entitled to elect additional directors by a
separate and distinct vote), including any shares of the Series VI Preferred,
have been paid or declared and set apart for payment. Any such elected directors
shall serve until Fleet's next annual meeting of stockholders (notwithstanding
that prior to the end of such term the dividend default shall cease to exist) or
until their respective successors shall be elected and qualify.
The affirmative vote or consent of the holders of at least 66 2/3% of the
outstanding shares of the Series VI Preferred is required for any amendment of
the Articles (or any certificate supplemental thereto) which will adversely
affect the powers, preferences, privileges or rights of the Series VI Preferred.
The affirmative vote or consent of the holders of at least 66 2/3% of the
outstanding shares of the Series VI Preferred and any other series of preferred
stock ranking on a parity with the Series VI Preferred either as to dividends or
upon liquidation, voting as a single class without regard to series, is required
to issue, authorize or increase the authorized amount of, or issue or authorize
any obligation or security convertible into or evidencing a right to purchase,
any additional class or series of stock ranking prior to the Series VI Preferred
as to dividends or upon liquidation, or to reclassify any authorized stock of
Fleet into such prior shares.
SERIES VII PREFERRED. In the event of the dissolution, liquidation or
winding up of Fleet, holders of shares of the outstanding Series VII Preferred
are entitled to receive a distribution of $250 per share, plus accrued and
unpaid dividends, if any.
Through April 1, 2006, the holders of Series VII Preferred are entitled to
receive dividends at the rate of 6.60% per annum computed on the basis of the
issue price thereof of $250 per share, payable quarterly, before any dividend
shall be declared or paid upon the Common Stock or the Junior Preferred Stock.
Thereafter the dividend rate on the Series VII Preferred will be a rate per
annum equal to .50% plus the highest of the Treasury Bill Rate, the Ten Year
Constant Maturity Rate and the Thirty Year Constant Maturity Rate, each as
defined in the Certificate of Designation establishing the Series VII Preferred.
The Applicable Rate per annum for any dividend period beginning on or after
April 1, 2006 will not be less than 7.0% nor greater than 13.0%. The dividends
on Series VII Preferred are cumulative. The amount of dividends payable in
respect of the Series VII Preferred will be adjusted on the event of certain
amendments to the Code, in respect of the dividends received deduction. The
Series VII Preferred is redeemable, in whole or in part, at Fleet's option, on
and after April 1, 2006, at $250 per share, plus
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<PAGE>
accrued and unpaid dividends, if any. The Series VII Preferred may also be
redeemed prior to April 1, 2006, in whole, at the option of Fleet, in the event
of certain amendments to the Code in respect of the dividends received
deduction. So long as any shares of the Series VII Preferred are outstanding,
Fleet may not redeem, repurchase or otherwise acquire any shares of the Common
Stock or any other class of Fleet preferred stock ranking junior to or on a
parity with the Series VII Preferred either as to dividends or upon liquidation
unless full cumulative dividends on all outstanding shares of Series VII
Preferred are paid for all past dividend payment periods. Further, if any
dividends on the Series VII Preferred are in arrears, Fleet may not redeem,
purchase or otherwise acquire any shares of the Series VII Preferred unless all
outstanding shares of such class are simultaneously redeemed, purchased or
otherwise acquired, except pursuant to a purchase or exchange offer made on the
same terms to holders of all outstanding shares of the Series VII Preferred.
Except as indicated below or except as expressly required by applicable law,
the holders of the Series VII Preferred are not entitled to vote. If the
equivalent of six quarterly dividends payable on the Series VII Preferred or any
other class or series of preferred stock (other than any other class of
preferred stock expresssly entitled to elect additional directors by a separate
and distinct vote) are in default, the number of directors of Fleet will be
increased by two (without duplication of any increase made pursuant to the terms
of any other series of preferred stock of Fleet), and the holders of the Series
VII Preferred, voting as a single class with the holders of shares of any one or
more other series of Preferred Stock (other than any other class of preferred
stock expressly entitled to elect additional directors by a separate and
distinct vote) and any other class of Fleet preferred stock ranking on a parity
with the Series VII Preferred either as to dividends or distribution of assets
and upon which like voting rights have been conferred and are exercisable, will
be entitled to elect two directors to fill each of the two newly-created
directorships. Such right shall continue until full cumulative dividends for all
past dividend periods on all preferred shares of Fleet (other than any other
class of preferred stock expressly entitled to elect additional directors by a
separate and distinct vote), including any shares of the Series VII Preferred,
have been paid or declared and set apart for payment. Any such elected directors
shall serve until Fleet's next annual meeting of stockholders (notwithstanding
that prior to the end of such term the dividend default shall cease to exist) or
until their respective successors shall be elected and qualify.
The affirmative vote or consent of the holders of at least 66 2/3% of the
outstanding shares of the Series VII Preferred is required for any amendment of
the Articles (or any certificate supplemental thereto) which will adversely
affect the powers, preferences, privileges or rights of the Series VII
Preferred. The affirmative vote or consent of the holders of at least 66 2/3% of
the outstanding shares of the Series VII Preferred and any other series of
preferred stock ranking on a parity with the Series VII Preferred either as to
dividends or upon liquidation, voting as a single class without regard to
series, is required to issue, authorize or increase the authorized amount of, or
issue or authorize any obligation or security convertible into or evidencing a
right to purchase, any additional class or series of stock ranking prior to the
Series VII Preferred as to dividends or upon liquidation, or to reclassify any
authorized stock of Fleet into such prior shares.
SERIES VIII PREFERRED. In the event of the dissolution, liquidation or
winding up of Fleet, holders of shares of the outstanding Series VIII Preferred
are entitled to receive a distribution of $250 per share, plus accrued and
unpaid dividends (whether or not earned or declared) for the then-current
dividend period (without accumulation of accrued and unpaid dividends for prior
dividend periods), if any.
Through October 1, 2001, the holders of Series VIII Preferred are entitled
to receive dividends at the rate of 6.59% per annum computed on the basis of the
issue price thereof of $250 per share, payable quarterly, before any dividend
shall be declared or paid upon the Common Stock or the Junior Preferred Stock.
Thereafter the dividend rate on the Series VIII Preferred will be a rate per
annum equal to .45% plus the highest of the Treasury Bill Rate, the Ten Year
Constant Maturity Rate and the Thirty Year Constant Maturity Rate, each as
defined in the Certificate of Designations establishing the Series VIII
Preferred. The Applicable Rate per annum for any dividend period beginning on or
after October 1, 2001
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will not be less than 7.0% nor greater than 13.0%. The dividends on Series VIII
Preferred are noncumulative. The amount of dividends payable in respect of the
Series VIII Preferred will be adjusted in the event of certain amendments to the
Code in respect of the dividends received deduction. The Series VIII Preferred
is redeemable, in whole or in part, at Fleet's option on and after October 1,
2001, at $250 per share, plus accrued and unpaid dividends for the then-current
dividend period (without accumulation of accrued and unpaid dividends for prior
dividend periods), if any. The Series VIII Preferred may also be redeemed prior
to October 1, 2001, in whole, at the option of Fleet, in the event of certain
amendments to the Code in respect of the dividends received deduction. So long
as any shares of the Series VIII Preferred are outstanding, Fleet may not
redeem, repurchase or otherwise acquire any shares of the Common Stock or any
other class of Fleet preferred stock ranking junior to or on a parity with the
Series VIII Preferred either as to dividends or upon liquidation unless full
dividends on all outstanding shares of Series VIII Preferred are paid for the
then-current dividend period. Further, if dividends on the Series VIII Preferred
have not been paid for the then-current dividend period, Fleet may not redeem,
purchase or otherwise acquire any shares of the Series VIII Preferred unless all
outstanding shares of such class are simultaneously redeemed, purchased or
otherwise acquired, except pursuant to a purchase or exchange offer made on the
same terms to holders of all outstanding shares of the Series VIII Preferred.
Except as indicated below or except as expressly required by applicable law,
the holders of the Series VIII Preferred are not entitled to vote. If the
equivalent of six quarterly dividends payable on the Series VIII Preferred or
any other class or series of preferred stock (other than any other class of
preferred stock expressly entitled to elect additional directors by a separate
and distinct vote) are in default, the number of directors of Fleet will be
increased by two (without duplication of any increase made pursuant to the terms
of any other series of preferred stock of Fleet), and the holders of the Series
VIII Preferred, voting as a single class with the holders of shares of any one
or more other series of Preferred Stock (other than any other class of preferred
stock expressly entitled to elect additional directors by a separate and
distinct vote) and any other class of Fleet preferred stock ranking on a parity
with the Series VIII Preferred either as to dividends or distribution of assets
and upon which like voting rights have been conferred and are exercisable, will
be entitled to elect two directors to fill each of the two newly-created
directorships. Such right of the holders of Series VIII Preferred shall continue
until dividends on the Series VIII Preferred have been paid or declared and set
apart for payment regularly for at least one year. Any such elected directors
shall serve until Fleet's next annual meeting of stockholders (notwithstanding
that prior to the end of such term the dividend default shall cease to exist) or
until their successors shall be elected and qualify.
The affirmative vote or consent of the holders of at least 66 2/3% of the
outstanding shares of the Series VIII Preferred is required for any amendment of
the Articles (or any certificate supplemental thereto) which will adversely
affect the powers, preferences, privileges or rights of the Series VIII
Preferred. The affirmative vote or consent of the holders of at least 66 2/3% of
the outstanding shares of the Series VIII Preferred and any other series of
preferred stock ranking on a parity with the Series VIII Preferred either as to
dividends or upon liquidation, voting as a single class without regard to
series, is required to issue, authorize or increase the authorized amount of, or
issue or authorize any obligation or security convertible into or evidencing a
right to purchase, any additional class or series of stock ranking prior to the
Series VIII Preferred as to dividends or upon liquidation, or to reclassify any
authorized stock of Fleet into such prior shares.
JUNIOR PREFERRED STOCK. The Junior Preferred Stock will be issued upon the
exercise of a Right (as hereinafter defined) issued to holders of the Common
Stock. As of the date of this Prospectus, there were 6,000,000 shares of Fleet
$1 Par Preferred Stock reserved for issuance upon the exercise of the Rights.
See "--Description of Common Stock--Preferred Share Purchase Rights". Shares of
Junior Preferred Stock purchasable upon exercise of the Rights will rank junior
to the Preferred Stock and will not be redeemable. Each share of Junior
Preferred Stock will, subject to the rights of such senior securities of Fleet,
be entitled to a preferential cumulative quarterly dividend payment equal to the
greater of $1.00 per share or, subject
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<PAGE>
to certain adjustments, 100 times the dividend declared per share of Common
Stock. Upon the liquidation, dissolution or winding up of Fleet, the holders of
the Junior Preferred Stock will, subject to the rights of such senior
securities, be entitled to a preferential liquidation payment equal to the
greater of $1.00 per share plus all accrued and unpaid dividends or 100 times
the payment made per share of Common Stock. Finally, in the event of any merger,
consolidation or other transaction in which shares of Common Stock are
exchanged, each share of Junior Preferred Stock will, subject to the rights of
such senior securities, be entitled to receive 100 times the amount received per
share of Common Stock. Each share of Junior Preferred Stock will have 100 votes,
voting together with the Common Stock. The rights of the Junior Preferred Stock
are protected by customary antidilution provisions.
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DESCRIPTION OF COMMON STOCK
GENERAL
Holders of the Common Stock are entitled to receive dividends when, as and
if declared by the Board of Directors out of any funds legally available
therefor, and are entitled upon liquidation, after claims of creditors and
preferences of the Preferred Stock, and any other class or series of preferred
stock at the time outstanding, to receive pro rata the net assets of Fleet.
Dividends are paid on the Common Stock only if all dividends on the outstanding
series of Preferred Stock, and any other class or series of preferred stock at
the time outstanding, for the then-current period and, in the case of Cumulative
Preferred Stock, all prior periods have been paid or provided for.
Fleet $1 Par Preferred Stock and any other class of preferred stock have, or
upon issuance will have, preference over the Common Stock with respect to the
payment of dividends and the distribution of assets in the event of liquidation
or dissolution of Fleet and such other preferences as may be fixed by the Board
of Directors.
The holders of the Common Stock are entitled to one vote for each share held
and are vested with all of the voting power except as the Board of Directors has
provided with respect to outstanding preferred stock or may provide, in the
future, with respect to Preferred Stock or any other class or series of
preferred stock which it may hereafter authorize. See "Description of Existing
Preferred Stock". Shares of Common Stock are not redeemable and have no
subscription, conversion or preemptive rights.
The affirmative vote of not less than 80% of Fleet's outstanding voting
stock, voting separately as a class, is required for certain Business
Combinations between Fleet and/or its subsidiaries and persons owning 10% or
more of its voting stock. See "Selected Provisions in the Articles of Fleet;
Business Combinations with Related Persons".
The Common Stock is listed on the New York Stock Exchange. The outstanding
shares of Common Stock are, and the shares to be issued in connection with any
offering hereunder will be, validly issued, fully paid and non-assessable and
the holders thereof are not, and will not be, subject to any liability as
stockholders.
TRANSFER AGENT AND REGISTRAR.
The Transfer Agent and Registrar for the Common Stock is First Chicago.
RESTRICTIONS ON OWNERSHIP.
The Bank Holding Company Act (the "BHCA") requires any "bank holding
company", as such term is defined therein, to obtain the approval of the Federal
Reserve Board prior to the acquisition of 5% or more of the Common Stock. Any
person other than a bank holding company is required to obtain prior approval of
the Federal Reserve Board to acquire 10% or more of the Common Stock under the
Change in Bank Control Act (the "CBCA"). Any holder of 25% or more of the Common
Stock (or a holder of 5% or more if such holder otherwise exercises a
"controlling influence" over Fleet) is subject to regulation as a bank holding
company under the BHCA.
PREFERRED SHARE PURCHASE RIGHTS
On November 21, 1990, the Board of Directors of Fleet declared a dividend of
one Preferred Share Purchase Right (a "Right") for each outstanding share of
Common Stock of Fleet. The dividend was paid on December 4, 1990 to the
shareholders of record on that date. Each Right, when exercisable, will entitle
the registered holder to purchase from Fleet one one-hundredth of a share of
Junior Preferred Stock at an exercise price of $50 per one one-hundredth of a
share of Junior Preferred Stock (the "Purchase Price"), subject to certain
adjustments. Until the Distribution Date (as hereinafter defined), Fleet will
issue one Right with each share of Common Stock. The following summary does not
purport to be complete and is
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subject to, and is qualified in its entirety by reference to, all of the
provisions of the Rights Agreement dated as of November 21, 1990 between Fleet
and the Rights Agent, a copy of which was filed as an exhibit to the
Registration Statement on Form 8-A filed with the Commission on December 4,
1990, as amended by a First Amendment to Rights Agreement dated March 28, 1991
and a Second Amendment to Rights Agreement dated July 12, 1991, copies of which
were filed as exhibits to Fleet's Amendment to Application or Report on Form 8-K
dated September 6, 1991 and a Third Amendment to Rights Agreement dated February
20, 1995, a copy of which was filed as an exhibit to Fleet's Form 8-A/A dated
March 17, 1995 (as amended, the "Rights Agreement").
The Rights are not represented by separate certificates and are not
exercisable or transferable apart from the Common Stock until the earlier to
occur of (i) the tenth day after a public announcement by Fleet (x) that a
person or group of affiliated or associated persons has acquired, or obtained
the right to acquire, beneficial ownership (as defined in the Rights Agreement)
of 10% or more (or, in the case of an institutional investor, acting in the
ordinary course of business and not with the purpose of changing or influencing
control of Fleet (a "Qualifying Investor"), 15% or more) of the outstanding
shares of Common Stock, (y) that any person or group of affiliated or associated
persons, which beneficially owned 10% or more (or, in the case of a Qualifying
Investor, 15% or more) of the outstanding shares on the Declaration Date, or
which acquired beneficial ownership of 10% or more (or, in the case of a
Qualifying Investor, 15% or more) of the outstanding shares as a result of any
repurchase of shares by Fleet, thereafter acquired beneficial ownership of
additional shares constituting 1% or more of the outstanding shares, or (z) that
any person who was a Qualifying Investor owning 10% or more of the outstanding
shares of Common Stock ceased to qualify as a Qualifying Investor and thereafter
acquired beneficial ownership of additional shares constituting 1% or more of
the outstanding shares (any person described in clause (x), (y) or (z) being an
"Acquiring Person"); and (ii) the tenth day (or such later day as may be
determined by action of the Board of Directors of Fleet prior to such time as
any person becomes an Acquiring Person) after the date of the commencement of a
tender or exchange offer by any person (other than Fleet) to acquire (when added
to any shares as to which such person is the beneficial owner immediately prior
to such commencement) beneficial ownership of 10% or more of the issued and
outstanding shares of Common Stock (the earlier of such dates being called the
"Distribution Date"). On March 28, 1991 and July 12, 1991, the Rights Agreement
was amended to change the definition of an "Acquiring Person" (i) to permit the
sale of Fleet's Dual Convertible Preferred Stock and issuance of rights to
purchase Common Stock to the partnerships which purchased such stock and (ii) to
permit the Board of Directors of Fleet to determine that a person who would
otherwise be an "Acquiring Person" had become such inadvertently and therefore
allow divestiture of a sufficient number of shares to avoid such designation.
The Rights Agreement was further amended on February 20, 1995 to amend the
definition of "Acquiring Person" to permit the execution and delivery by Fleet
of the merger agreement with Shawmut National Corporation ("Shawmut") and the
option agreement in connection therewith without Shawmut becoming an Acquiring
Person under the Rights Agreement.
The Rights will first become exercisable on the Distribution Date and could
then begin trading separately from the Common Stock. The Rights will expire on
November 21, 2000 (the "Final Expiration Date"), unless the Final Expiration
Date is extended or unless the Rights are earlier redeemed by Fleet.
In the event any person becomes an Acquiring Person, the Rights would give
holders (other than such Acquiring Person and its transferees) the right to buy,
for the Purchase Price, Common Stock (or, under certain circumstances, cash,
property or other debt or equity securities ("Common Stock equivalents")) with a
market value of twice the Purchase Price. In addition, at any time after any
person becomes an Acquiring Person, the Board may, at its option and in lieu of
any transaction described in the preceding sentence, exchange the outstanding
and exercisable Rights (other than Rights held by such Acquiring Person and its
transferees) for shares of Common Stock or Common Stock equivalents at an
exchange ratio of one share of Common Stock per Right, subject to certain
adjustments.
In any merger or consolidation involving Fleet after the Rights become
exercisable, each Right will be converted into the right to purchase, for the
Purchase Price, common stock of the surviving corporation
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<PAGE>
(which may be Fleet) with a market value of twice the Purchase Price. The Board
of Directors of Fleet may amend the Rights Agreement or redeem the Rights for
$.01 each at any time until there is an Acquiring Person. Thereafter, the Board
of Directors can amend the Rights Agreement only to eliminate ambiguities or to
provide additional benefits to the holders of the Rights (other than the
Acquiring Person).
Until a Right is exercised, the holder thereof, as such, will have no rights
as a shareholder of Fleet, including, without limitation, the right to vote or
to receive dividends.
The Purchase Price payable, and the number of shares of Junior Preferred
Stock or other securities or property issuable, upon exercise of the Rights, and
the number of outstanding Rights, are subject to customary antidilution
adjustments.
The Rights have certain "anti-takeover" effects. The Rights may cause
substantial dilution to a person or group that attempts to acquire Fleet on
terms not approved by the Board of Directors of Fleet, except pursuant to an
offer conditioned on a substantial number of Rights being acquired. The Rights
should not interfere with any merger or other business combination approved by
the Board of Directors prior to the time that there is an Acquiring Person (at
which time holders of the Rights become entitled to exercise their Rights for
shares of Common Stock at one-half the market price), since until such time the
Rights generally may be redeemed by the Board of Directors of Fleet at $.01 per
Right.
SELECTED PROVISIONS IN THE ARTICLES OF FLEET
BUSINESS COMBINATIONS WITH RELATED PERSONS
The Articles require that neither Fleet nor any of its subsidiaries may
engage in a Business Combination with a Related Person unless such Business
Combination (a) was approved by an 80% vote of the Board of Directors prior to
the time the Related Person became such; (b) is approved by a vote of 80% of the
Continuing Directors and a majority of the entire Board and certain conditions
as to price and procedure are complied with; or (c) is approved by a vote of 80%
of Fleet's outstanding shares of Fleet capital stock entitled to vote generally
in the election of directors, voting as a single class. Under the Articles, a
"Business Combination" includes any merger or consolidation of Fleet or any of
its subsidiaries into or with a Related Person or any of its affiliates or
associates; any sale, exchange, lease, transfer or other disposition to or with
a Related Person of all, substantially all or any Substantial Part (defined as
assets having a value of more than 5% of the total consolidated assets of Fleet)
of the assets of Fleet or any of its subsidiaries; any purchase, exchange, lease
or other acquisition by Fleet or any of its subsidiaries of all or any
Substantial Part of the assets or business of a Related Person or any of its
affiliates or associates; any reclassification of securities, recapitalization
or other transaction which has the effect, directly or indirectly, of increasing
the proportionate amount of voting shares of Fleet or any subsidiary which are
beneficially owned by a Related Person; and the acquisition by a Related Person
of beneficial ownership of voting securities, securities convertible into voting
securities or any rights, warrants or options to acquire voting securities of a
subsidiary of Fleet; a "Related Person" includes any person who is the
beneficial owner of 10% or more of Fleet's voting shares prior to the
consummation of a Business Combination or any person who is an affiliate of
Fleet and was the beneficial owner of 10% or more of Fleet's voting shares at
any time within the five years preceding the date on which a binding agreement
providing for a Business Combination is authorized by the Board of Directors;
and the "Continuing Directors" are those individuals who were members of the
Fleet Board of Directors prior to the time a Related Person became the
beneficial owner of 10% or more of Fleet's voting stock or those individuals
designated as Continuing Directors (prior to their initial election as
directors) by a majority of the then Continuing Directors. To amend these
provisions, a super majority vote (80%) of the Board of Directors, a majority
vote of the Continuing Directors and a super majority vote (80%) of the
stockholders is required unless the amendment is recommended to the stockholders
by a majority of the Board of Directors and not less than 80% of the Continuing
Directors, in which event only the vote provided under Rhode Island law is
required.
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DIRECTORS
The Articles contain a number of additional provisions which are intended to
delay an insurgent's ability to take control of Fleet's Board of Directors, even
after an insurgent has obtained majority ownership of the Common Stock. The
Articles provide for a classified Board of Directors, consisting of three
classes of directors serving staggered three-year terms. Directors of Fleet may
only be removed for cause and only (a) by a vote of the holders of 80% of the
outstanding shares of Fleet stock entitled to vote thereon voting separately as
a class at a meeting called for that purpose or (b) by a vote of a majority of
the Continuing Directors and a majority of the Board of Directors as constituted
at that time. Vacancies on the Board of Directors, whether due to resignation,
death, incapacity or an increase in the number of directors, may only be filled
by the Board, acting by a vote of 80% of the directors then in office. The
Articles provide that the number of directors of Fleet (exclusive of directors
to be elected by the holders of any one or more series of the Preferred Stock
voting separately as a class or classes) that shall constitute the Board of
Directors shall be 13, unless otherwise determined by resolution adopted by a
super majority vote (80%) of the Board of Directors and a majority of the
Continuing Directors. Pursuant to such an adopted resolution, the number of
directors that may serve is currently fixed at 20, except in the event that
quarterly dividends are not paid on non-voting Preferred Stock as described
above, and may only be increased by the affirmative vote of 80% of the Board of
Directors and a majority of the Continuing Directors. A super majority vote
(80%) of the Board of Directors, a majority vote of the Continuing Directors and
a super majority vote (80%) of the outstanding shares of Fleet stock entitled to
vote thereon voting separately as a class are required to amend any of these
provisions.
DESCRIPTION OF WARRANTS
Fleet may issue Warrants for the purchase of Preferred Stock or Common
Stock. Warrants may be issued independently or together with Preferred Stock or
Common Stock offered by any Prospectus Supplement and may be attached to or
separate from any such Securities. Each series of Warrants will be issued under
a separate warrant agreement (a "Warrant Agreement") to be entered into between
Fleet and a bank or trust company, as warrant agent (the "Warrant Agent"). The
Warrant Agent will act solely as an agent of the Company in connection with the
Warrants and will not assume any obligation or relationship of agency or trust
for or with any holders or beneficial owners of Warrants. The following summary
of certain provisions of the Warrants does not purport to be complete and is
subject to, and qualified in its entirety by reference to, the provisions of the
Warrant Agreement that will be filed with the Commission in connection with the
offering of such Warrants.
The Prospectus Supplement relating to any particular issue of Preferred
Stock Warrants or Common Stock Warrants will describe the terms of such
Warrants, including the following: (a) the title of such Warrants; (b) the
offering price for such Warrants, if any; (c) the aggregate number of such
Warrants; (d) the designation and terms of the Common Stock or Preferred Stock
purchasable upon exercise of such Warrants; (e) if applicable, the designation
and terms of the Securities with which such Warrants are issued and the number
of such Warrants issued with each such Security; (f) if applicable, the date
from and after which such Warrants and any Securities issued therewith will be
separately transferable; (g) the number of shares of Common Stock or Preferred
Stock purchasable upon exercise of a Warrant and the price at which such shares
may be purchased upon exercise; (h) the date on which the right to exercise such
Warrants shall commence and the date on which such right shall expire; (i) if
applicable, the minimum or maximum amount of such Warrants that may be exercised
at any one time; (j) information with respect to book-entry procedures, if any;
(k) the currency or currency units in which the offering price, if any, and the
exercise price are payable; (l) if applicable, a discussion of material United
States federal income tax considerations; (m) the antidilution provisions of
such Warrants, if any; (n) the redemption or call provisions, if any, applicable
to such Warrants; and (o) any additional terms of the Warrants, including terms,
procedures, and limitations relating to the exchange and exercise of such
Warrants.
25
<PAGE>
PLAN OF DISTRIBUTION
Fleet may sell Securities to or through underwriters, and also may sell
Securities through agents (which are registered broker-dealers or banks) which
may be affiliates.
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices (which may be changed from time
to time), at market prices prevailing at the time of sale, at prices related to
such prevailing market prices or at negotiated prices. Each Prospectus
Supplement will describe the method of distribution of the Securities. Certain
restrictions relating to the distribution of Securities in connection with an
International Offering will be set forth in the applicable Prospectus
Supplement.
In connection with the sale of Securities, underwriters or agents acting on
Fleet's behalf may receive compensation from Fleet or from purchasers of
Securities for whom they may act as agents, in the form of discounts,
concessions or commissions. The underwriters, dealers and agents that
participate in the distribution of Securities may be deemed to be underwriters
under the Act and any discounts or commissions received by them and any profits
on the resale of Securities by them may be deemed to be underwriting discounts
and commissions under the Act. Any such underwriter will be identified and any
such compensation will be described in the applicable Prospectus Supplement.
Under agreements which may be entered into by Fleet, underwriters, dealers
and agents who participate in the distribution of Securities may be entitled to
indemnification by Fleet against certain liabilities, including liabilities
under the Act, and to certain rights of contribution from Fleet.
If so indicated in the applicable Prospectus Supplement, Fleet will
authorize underwriters or other persons acting as Fleet's agents to solicit
offers by certain institutions to purchase Preferred Stock, Depositary Shares or
Warrants from Fleet pursuant to delayed delivery contracts providing for payment
and delivery on a future date or dates stated in the applicable Prospectus
Supplement. Each such contract will be for an amount not less than, and the
aggregate amount of such securities sold pursuant to such contracts shall not be
less nor more than, the respective amounts stated in the applicable Prospectus
Supplement. Institutions with which such contracts may be made include
commercial and savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions and others, but in all cases
such institutions must be approved by Fleet. The obligations of any purchaser
under any such contract will not be subject to any condition except that (1) the
purchase of the Preferred Stock, Depositary Shares or Warrants shall not at the
time of delivery be prohibited under the laws of the jurisdiction to which such
purchaser is subject, and (2) if the Preferred Stock, Depositary Shares or
Warrants are also being sold to underwriters acting as principals for their own
account, the underwriters shall have purchased such Preferred Stock, Depositary
Shares or Warrants not sold for delayed delivery. The underwriters and such
other persons will not have any responsibility in respect of the validity or
performance of such contracts.
Certain of the underwriters and their associates and affiliates may be
customers of, have borrowing relationships with, engage in other transactions
with, and/or perform services, including investment banking services, for, Fleet
or one or more of its affiliates in the ordinary course of business.
EXPERTS
The consolidated financial statements of Fleet contained in Fleet's Current
Report on Form 8-K dated May 5, 1998, incorporated by reference herein (and
elsewhere in the Registration Statement) have been incorporated by reference
herein (and elsewhere in the Registration Statement) in reliance upon the report
of KPMG Peat Marwick LLP, independent certified public accountants, incorporated
by reference herein (and elsewhere in the Registration Statement) and upon the
authority of said firm as experts in accounting and auditing.
26
<PAGE>
LEGAL OPINIONS
The validity of the Securities offered hereby will be passed upon for Fleet
by Edwards & Angell, LLP, One BankBoston Plaza, Providence, Rhode Island 02903.
V. Duncan Johnson, a partner of Edwards & Angell, LLP, is a director of Fleet
National Bank, a wholly-owned subsidiary of Fleet, and beneficially owns 4,052
shares of Common Stock.
27
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS SUPPLEMENT OR THE PROSPECTUS IN CONNECTION WITH THE OFFER MADE BY
THIS PROSPECTUS SUPPLEMENT AND THE PROSPECTUS. IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY FLEET OR BY ANY UNDERWRITER. NEITHER THE DELIVERY OF THIS PROSPECTUS
SUPPLEMENT AND THE PROSPECTUS NOR ANY SALE MADE HEREUNDER AND THEREUNDER SHALL
UNDER ANY CIRCUMSTANCE CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN
THE AFFAIRS OF FLEET SINCE THE DATE HEREOF. THIS PROSPECTUS SUPPLEMENT AND THE
PROSPECTUS DOES NOT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY STATE
IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON
MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANYONE TO WHOM
IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
-------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
---------
<S> <C>
PROSPECTUS
Available Information.......................... 2
Incorporation of Certain Documents by
Reference.................................... 2
Fleet Financial Group, Inc. ................... 3
Consolidated Ratios of Earnings to Fixed
Charges and Dividends on Preferred Stock..... 7
Use of Proceeds................................ 7
Description of Preferred Stock................. 8
Description of Depositary Shares............... 13
Description of Existing Preferred Stock........ 16
Description of Common Stock.................... 22
Selected Provisions in the Articles of Fleet... 24
Description of Warrants........................ 25
Plan of Distribution........................... 26
Experts........................................ 26
Legal Opinions................................. 27
</TABLE>
$2,336,868,750
[LOGO]
FLEET FINANCIAL
GROUP, INC.
----------
PREFERRED STOCK
COMMON STOCK
PROSPECTUS
-----------------
, 1998
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
INFORMATION CONTAINED IN THIS PRELIMINARY PROSPECTUS SUPPLEMENT IS SUBJECT TO
COMPLETION OR AMENDMENT. THIS PRELIMINARY PROSPECTUS SUPPLEMENT AND THE
ACCOMPANYING PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS SUPPLEMENT DATED
PROSPECTUS SUPPLEMENT
(TO PROSPECTUS DATED , 1998)
[LOGO]
PREFERRED SECURITIES
FLEET CAPITAL TRUST V
% PREFERRED SECURITIES
(LIQUIDATION AMOUNT $ PER PREFERRED SECURITY)
FULLY AND UNCONDITIONALLY GUARANTEED BY
FLEET FINANCIAL GROUP, INC.
---------------
The % Preferred Securities (the "Preferred Securities") offered hereby
constitute a series of preferred securities of, and represent undivided
preferred beneficial interests in the assets of, Fleet Capital Trust V, a
statutory business trust formed under the laws of the State of Delaware ("Fleet
Capital" or the "Trust"). Fleet Financial Group, Inc., a Rhode Island
corporation ("Fleet"), will own all of the common securities (the "Common
Securities", and together with the Preferred Securities, the "Trust
Securities"), representing undivided beneficial interests in the assets of Fleet
Capital. Fleet Capital exists for the sole purpose of issuing the Trust
Securities and investing the proceeds thereof in an equivalent amount of %
Junior Subordinated Deferrable Interest Debentures due 2028 (the "Junior
Subordinated Debentures") of Fleet. The Junior Subordinated Debentures will
mature on , 2028 (the "Stated Maturity").
--------------------------
(CONTINUED ON NEXT PAGE)
SEE "RISK FACTORS" BEGINNING ON PAGE S-4 OF THIS PROSPECTUS SUPPLEMENT FOR
CERTAIN INFORMATION RELEVANT TO AN INVESTMENT IN THE PREFERRED SECURITIES,
INCLUDING THE PERIOD AND CIRCUMSTANCES DURING AND UNDER WHICH PAYMENTS OF
DISTRIBUTIONS ON THE PREFERRED SECURITIES MAY BE DEFERRED AND THE RELATED UNITED
STATES FEDERAL INCOME TAX CONSEQUENCES OF SUCH DEFERRAL.
Application will be made to list the Preferred Securities on the New York
Stock Exchange (the "NYSE"). If approved for listing, trading of the Preferred
Securities on the NYSE is expected to commence within a 30-day period after the
initial delivery of the Preferred Securities. See "Underwriting."
--------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS SUPPLEMENT OR THE PROSPECTUS TO WHICH IT
RELATES. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
<TABLE>
<CAPTION>
UNDERWRITING PROCEEDS TO THE
PRICE TO PUBLIC(1) COMMISSION(2) TRUST(3)(4)
<S> <C> <C> <C>
Per Preferred Security................................ $ (3) $
Total................................................. $ (3) $
</TABLE>
(1) Plus accrued distributions, if any, from , 1998.
(2) Fleet Capital and Fleet have agreed to indemnify the several Underwriters
against certain liabilities, including liabilities under the Securities Act
of 1933, as amended. See "Underwriting."
(3) In view of the fact that the proceeds of the sale of the Preferred
Securities will be invested in the Junior Subordinated Debentures, Fleet has
agreed to pay to the Underwriters as compensation (the "Underwriters'
Compensation") for their arranging the investment therein of such proceeds
$ per Preferred Security (or $ in the aggregate). See
"Underwriting."
(4) Before deducting expenses of the offering which are payable by Fleet
estimated at $ .
--------------------------
The Preferred Securities offered hereby are offered severally by the
Underwriters, as specified herein, subject to receipt and acceptance by them and
subject to their right to reject any order in whole or in part. It is expected
that delivery of the Preferred Securities will be made only in book-entry form
through the facilities of The Depository Trust Company, on or about ,
1998.
--------------------------
--------------------------
The date of this Prospectus Supplement is , 1998.
<PAGE>
(CONTINUED FROM PREVIOUS PAGE)
The Junior Subordinated Debentures when issued will be unsecured obligations
of Fleet and will be subordinate and junior in right of payment to certain other
indebtedness of Fleet, as described herein. Upon an event of default under the
Declaration (as defined herein), the holders of Preferred Securities will have a
preference over the holders of the Common Securities with respect to payments of
distributions and payments upon redemption, liquidation and otherwise.
The Preferred Securities will be represented by global Preferred Securities
registered in the name of the nominee of The Depository Trust Company (the
"DTC"). Interests in the global Preferred Securities will be shown on, and
transfers thereof will be effected only through, records maintained by DTC and
its participants. Except as provided herein, Preferred Securities in definitive
form will not be issued. Settlement for the Preferred Securities will be made in
immediately available funds. The Preferred Securities will trade in DTC's
Same-Day Funds Settlement System, and secondary market trading activity for the
Preferred Securities will therefore settle in immediately available funds. See
"Description of the Preferred Securities--Book-Entry Only Issuance--The
Depository Trust Company."
Holders of the Preferred Securities are entitled to receive cumulative cash
distributions at an annual rate of % of the liquidation amount of $ per
Preferred Security, accruing from the date of original issuance and payable
quarterly in arrears on March 31, June 30, September 30 and December 31 of each
year, commencing , 1998 ("distributions"). The payment of
distributions out of moneys held by Fleet Capital and payments on liquidation of
Fleet Capital or the redemption of Preferred Securities, as set forth below, are
guaranteed by Fleet (the "Guarantee") to the extent described herein and under
"Description of the Preferred Securities Guarantees" in the accompanying
Prospectus. The Guarantee covers payments of distributions and other payments on
the Preferred 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 Indenture
(as defined herein) 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 Preferred Securities. See "Risk
Factors-- Rights Under the Guarantee" herein. 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 herein) of Fleet, which aggregated approximately $4.6 billion
(holding company only) at June 30, 1998, 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. The Junior
Subordinated Debentures purchased by Fleet Capital may be subsequently
distributed pro rata to holders of the Preferred Securities and Common
Securities in connection with the dissolution of Fleet Capital.
The distribution rate and the distribution payment date and other payment
dates for the Preferred Securities will correspond to the interest rate and
interest payment date and other payment dates on the Junior Subordinated
Debentures, which will be the sole assets of Fleet Capital. As a result, if
principal or interest is not paid on the Junior Subordinated Debentures, no
amounts will be paid on the Preferred Securities. If Fleet does not make
principal or interest payments on the Junior Subordinated Debentures, Fleet
Capital will not have sufficient funds to make distributions on the Preferred
Securities. In such event, the Guarantee will not apply to such distributions
until Fleet Capital has sufficient funds available therefor.
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
S-2
<PAGE>
extending the interest payment period on the Junior Subordinated Debentures at
any time for up to 20 consecutive quarters (each, an "Extension Period"),
provided that an Extension Period may not extend beyond the Stated Maturity of
the Junior Subordinated Debentures. If interest payments are so deferred,
distributions on the Preferred Securities will also be deferred. During such
Extension Period, distributions will continue to accrue with interest thereon
(to the extent permitted by applicable law) at an annual rate of % percent
per annum compounded quarterly, and during any Extension Period, holders of
Preferred Securities will be required to include such deferred interest in their
gross income for United States federal income tax purposes in advance of the
receipt of 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. See "Description of the Junior Subordinated
Debentures--Option to Extend Interest Payment Period;" "Risk Factors--Option to
Extend Interest Payment Period" and "United States Federal Income
Taxation--Interest Income and Original Issue Discount."
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, (ii) in whole or in part, on or after ,
2003, contemporaneously with the optional prepayment by Fleet of the Junior
Subordinated Debentures and (iii) in whole but not in part, at any time prior to
, 2003, contemporaneously with the optional prepayment of the
Junior Subordinated Debentures, upon the occurrence and continuation of a
Special Event (as defined herein), in each case at a redemption price of $ per
Trust Security, plus accrued and unpaid distributions thereon. The Junior
Subordinated Debentures will be prepayable prior to the Stated Maturity at the
option of Fleet (i) in whole or in part, from time to time, on or after
, 2003 or (ii) at any time prior to , 2003, in
whole but not in part, upon the occurrence and continuation of a Special Event
(as defined herein), in either case at a prepayment price (the "Prepayment
Price") equal to 100% of the principal amount thereof, plus accrued and unpaid
interest thereon to the date of prepayment. See "Description of the Junior
Subordinated Debentures--Optional Prepayment" and "--Special Event 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. Fleet has no present intention to take such action, principally
because the Junior Subordinated Debentures, unlike the Preferred Securities,
would not be considered "Tier 1 capital" for purposes of the Federal Reserve
Board's capital guidelines for bank holding companies. If the Junior
Subordinated Debentures are distributed to the holders of the Preferred
Securities, Fleet will use its best efforts to have the Junior Subordinated
Debentures listed on the NYSE or on such other exchange as the Preferred
Securities are then listed. See "Description of the Preferred
Securities--Distribution of the Junior Subordinated Debentures" and "Description
of the Junior Subordinated Debentures."
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 (the "Federal Reserve Board"), if such approval is then required under
applicable law, rules, guidelines or policies.
In the event of the involuntary or voluntary dissolution, winding-up or
termination of Fleet Capital, the holders of the Preferred Securities will be
entitled to receive for each Preferred Security a liquidation amount of $ plus
accrued and unpaid distributions thereon (including interest thereon) to the
date of payment, unless, in connection with such dissolution, the Junior
Subordinated Debentures are distributed to the holders of the Preferred
Securities. See "Description of the Preferred Securities--Liquidation
Distribution Upon Dissolution."
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS
THAT STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE PREFERRED
SECURITIES. SUCH TRANSACTIONS MAY INCLUDE STABILIZING TRANSACTIONS, THE PURCHASE
OF PREFERRED SECURITIES TO COVER SYNDICATE SHORT POSITIONS AND THE IMPOSITION OF
PENALTY BIDS. FOR A DESCRIPTION OF THESE ACTIVITIES, SEE "UNDERWRITING".
S-3
<PAGE>
RISK FACTORS
Prospective purchasers of Preferred Securities should carefully review the
information contained elsewhere in this Prospectus Supplement and in the
accompanying Prospectus and should particularly consider the following matters.
RANKING OF SUBORDINATE OBLIGATIONS UNDER THE GUARANTEE AND JUNIOR SUBORDINATED
DEBENTURES
Fleet's obligations under the Guarantee are unsecured and rank subordinate
and junior in right of payment to all liabilities of Fleet and rank pari passu
with the most senior preferred stock issued, if any, from time to time 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 of Fleet and rank pari passu with
obligations to or rights of Fleet's other general unsecured creditors. No
payment may be made of the principal of, premium, if any, or interest on the
Junior Subordinated Debentures, or in respect of any redemption, retirement,
purchase or other acquisition of any of the Junior Subordinated Debentures, 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 Junior Subordinated Debentures or any redemption, retirement, purchase or
other acquisition of any of the Junior Subordinated Debentures, permitting the
holders of such Senior Indebtedness (or a trustee on behalf of the holders
thereof) to accelerate the maturity thereof. As of June 30, 1998, Senior
Indebtedness and Other Financial Obligations of Fleet aggregated approximately
$4.6 billion (holding company only). 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.
There are no terms in the Preferred Securities, the Junior Subordinated
Debentures or the Guarantee that limit Fleet's ability to incur additional
indebtedness, including indebtedness which ranks senior to the Junior
Subordinated Debentures and the Guarantee. See "Description of the Preferred
Securities Guarantees--Status of the Preferred Securities Guarantees" and
"Description of the Junior Subordinated Debentures" in the accompanying
Prospectus, and "Description of the Junior Subordinated
Debentures--Subordination" herein.
RIGHTS UNDER THE GUARANTEE
The Guarantee will be qualified as an indenture under the Trust Indenture
Act. The First National Bank of Chicago will act as indenture trustee under the
Guarantee for the purposes of compliance with the provisions of the Trust
Indenture Act (the "Guarantee Trustee"). The Guarantee Trustee will hold the
Guarantee for the benefit of the holders of the Preferred Securities.
The Guarantee guarantees to the holders of the Preferred Securities the
payment of (i) any accrued and unpaid distributions that are required to be paid
on the Preferred Securities, to the extent Fleet Capital has funds available
therefor, (ii) the Redemption Price, including all accrued and unpaid
distributions with respect to Preferred Securities called for redemption by
Fleet Capital, to the extent Fleet Capital has funds available therefor, and
(iii) upon a voluntary or involuntary dissolution, winding-up or termination of
Fleet Capital (other than in connection with the distribution of Junior
Subordinated Debentures to the holders of Preferred Securities or a redemption
of all the Preferred Securities), the lesser of (a) the aggregate of the
liquidation amount and all accrued and unpaid distributions on the Preferred
Securities to the date of the payment, to the extent Fleet Capital has funds
available therefor, and (b) the amount of assets of Fleet Capital remaining
available for distribution to holders of the Preferred Securities in liquidation
of Fleet Capital. The holders of a majority in liquidation amount of the
Preferred Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Guarantee Trustee or
to direct the exercise of any trust or power conferred upon the Guarantee
Trustee under the Guarantee. Notwithstanding the foregoing, any holder of
Preferred Securities may institute a legal proceeding directly against Fleet to
enforce such holders' rights under the Guarantee
S-4
<PAGE>
without first instituting a legal proceeding against Fleet Capital, the
Guarantee Trustee or any other person or entity. If Fleet were to default on its
obligation to pay amounts payable on the Junior Subordinated Debentures or
otherwise, Fleet Capital would lack available funds for the payment of
distributions or amounts payable on redemption of the Preferred Securities or
otherwise, and, in such event, holders of the Preferred Securities would not be
able to rely upon the Guarantee for payment of such amounts. Instead, holders of
the Preferred Securities would rely on the enforcement (1) by the Institutional
Trustee (as defined in "Fleet Capital" herein) of its rights as registered
holder of the Junior Subordinated Debentures against Fleet pursuant to the terms
of the Junior Subordinated Debentures or (2) by such holder of its right against
Fleet to enforce payments on the Junior Subordinated Debentures. See
"Description of the Preferred Securities Guarantees" and "Description of the
Junior Subordinated Debentures" in the accompanying Prospectus. The Declaration
provides that each holder of Preferred Securities, by acceptance thereof, agrees
to the provisions of the Guarantee, including the subordination provisions
thereof, and the Indenture.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF PREFERRED SECURITIES
If a Declaration Event of Default (as defined herein) occurs and is
continuing, then the holders of Preferred Securities would rely on the
enforcement by the Institutional Trustee of its rights as a holder of the Junior
Subordinated Debentures against Fleet. In addition, the holders of a majority in
liquidation amount of the Preferred Securities will 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 to exercise the remedies available to
it as a holder of the Junior Subordinated Debentures. If the Institutional
Trustee fails to enforce its rights under the Junior Subordinated Debentures, a
holder of Preferred Securities may institute a legal proceeding directly against
Fleet to enforce the Institutional Trustee's rights under the Junior
Subordinated Debentures without first instituting any legal proceeding against
the Institutional Trustee or any other person or entity. Notwithstanding the
foregoing, if a Declaration Event of Default has occurred and is continuing, and
such event is attributable to the failure of Fleet to pay interest or principal
on the Junior Subordinated Debentures on the date such interest or principal is
otherwise payable (or in the case of redemption, on the redemption date), then a
holder of Preferred Securities may directly institute a proceeding for
enforcement of payment to such holder of the principal of or interest on the
Junior Subordinated Debentures having a principal amount equal to the aggregate
liquidation amount of the Preferred Securities of such holder (a "Direct
Action") on or after the respective due date specified in the Junior
Subordinated Debentures. In connection with such Direct Action, the rights of
Fleet, as holder of the Common Securities, will be subrogated to the rights of
such holder of Preferred Securities under the Declaration to the extent of any
payment made by Fleet to such holder of Preferred Securities in such Direct
Action. The holders of Preferred Securities will not be able to exercise
directly any other remedy available to the holders of the Junior Subordinated
Debentures. See "Description of the Preferred Securities--Declaration Events of
Default."
OPTION TO EXTEND INTEREST PAYMENT PERIOD
So long as Fleet shall not be in default in the payment of interest on the
Junior Subordinated Debentures, Fleet has the right under the Indenture to defer
payments of interest on the Junior Subordinated Debentures by extending the
interest payment period at any time, and from time to time, on the Junior
Subordinated Debentures. As a consequence of such an extension, quarterly
distributions on the Preferred Securities would be deferred (but would continue
to accrue, despite such deferral, with interest thereon at an annual rate of %
per annum compounded quarterly) by Fleet Capital during any such Extension
Period. Such right to extend the interest payment period for the Junior
Subordinated Debentures is limited to a period not exceeding 20 consecutive
quarters, but no such Extension Period may extend beyond the Stated Maturity of
the Junior Subordinated Debentures. During any Extension Period, (i) Fleet shall
not declare or pay any dividend on, make any distribution with respect to, or
redeem, purchase or acquire, or make a liquidation payment with respect to, any
of its capital stock (other than
S-5
<PAGE>
(a) purchases or acquisitions of shares of the common stock, par value $0.01 per
share, of Fleet (the "Fleet Common Stock") in connection with the satisfaction
by Fleet of its obligations under any employee benefit plans or any other
contractual obligation of Fleet (other than a contractual obligation ranking
pari passu with or junior to the Junior Subordinated Debentures), (b) as a
result of a reclassification of Fleet's capital stock or the exchange or
conversion of one class or series of Fleet's capital stock for another class or
series of Fleet capital stock or (c) the purchase of fractional interests in
shares of Fleet's capital stock pursuant to the conversion or exchange
provisions of such Fleet capital stock or the security being converted or
exchanged), (ii) Fleet shall not make any payment of interest, principal or
premium, if any, on or repay, repurchase or redeem any debt securities issued by
Fleet that rank pari passu with or junior to the Junior Subordinated Debentures
and (iii) Fleet shall not make any guarantee payments with respect to the
foregoing (other than pursuant to the Guarantee). Prior to the termination of
any such Extension Period, Fleet may further extend the interest payment period;
provided, that such Extension Period, together with all such previous and
further extensions thereof, may not exceed 20 consecutive quarters or extend
beyond the Stated Maturity of the Junior Subordinated Debentures. Upon the
termination of any Extension Period and the payment of all amounts then due,
Fleet may commence a new Extension Period, subject to the above requirements.
See "Description of the Preferred Securities--Distributions" and "Description of
the Junior Subordinated Debentures--Option to Extend Interest Payment Period."
Should Fleet exercise its right to defer payments of interest by extending
the interest payment period, each holder of Preferred Securities will be
required to accrue income (as original issue discount ("OID")) in respect of the
deferred stated interest allocable to its Preferred Securities for United States
federal income tax purposes, which will be allocated but not distributed to
holders of record of Preferred Securities. As a result, each such holder of
Preferred Securities will recognize income for United States federal income tax
purposes in advance of the receipt of cash and will not receive the cash from
Fleet Capital related to such income if such holder disposes of its Preferred
Securities prior to the record date for the date on which distributions of such
amounts are made. Fleet has no current intention of exercising its right to
defer payments of interest by extending the interest payment period on the
Junior Subordinated Debentures. However, should Fleet determine to exercise such
right in the future, the market price of the Preferred Securities is likely to
be affected. A holder that disposes of its Preferred Securities during an
Extension Period, therefore, might not receive the same return on its investment
as a holder that continues to hold its Preferred Securities. In addition, as a
result of the existence of Fleet's right to defer interest payments, the market
price of the Preferred Securities (which represent an undivided beneficial
interest in the Junior Subordinated Debentures) may be more volatile than other
securities on which OID accrues that do not have such rights. See "United States
Federal Income Taxation--Sales of Preferred Securities."
REDEMPTION OR DISTRIBUTION OF THE JUNIOR SUBORDINATED DEBENTURES
Fleet will have the right at any time to terminate Fleet Capital and, after
satisfaction of claims of creditors as provided by applicable law, to cause the
Junior Subordinated Debentures to be distributed to the holders of the Trust
Securities. In certain circumstances, Fleet shall have the right to redeem the
Junior Subordinated Debentures, in whole or in part, in which event Fleet
Capital will redeem the Trust Securities on a pro rata basis to the same extent
as the Junior Subordinated Debentures are redeemed by Fleet. Any such
distribution or redemption may require prior approval of the Federal Reserve
Board if then required under applicable law, rules, guidelines or policies. See
"Description of the Preferred Securities-- Redemption."
Under current United States federal income tax law, a distribution of Junior
Subordinated Debentures upon the dissolution of Fleet Capital would not be a
taxable event to holders of the Preferred Securities. If, however, Fleet Capital
is characterized for United States federal income tax purposes as an association
taxable as a corporation at the time of dissolution of Fleet Capital, the
distribution of the Junior Subordinated Debentures may constitute a taxable
event to holders of Preferred Securities. Moreover, upon occurrence of a Special
Event, a dissolution of Fleet Capital in which holders of the Preferred
Securities receive cash would be a taxable event to such holders. See "United
States Federal
S-6
<PAGE>
Income Taxation--Receipt of Junior Subordinated Debentures or Cash Upon
Liquidation of Fleet Capital."
There can be no assurance as to the market prices for the Preferred
Securities or the Junior Subordinated Debentures that may be distributed in
exchange for Preferred Securities if a dissolution or liquidation of Fleet
Capital were to occur. Accordingly, the Preferred Securities or the Junior
Subordinated Debentures may trade at a discount to the price that the investor
paid to purchase the Preferred Securities offered hereby. Because holders of
Preferred Securities may receive Junior Subordinated Debentures, prospective
purchasers of Preferred Securities are also making an investment decision with
regard to the Junior Subordinated Debentures and should carefully review all the
information regarding the Junior Subordinated Debentures contained herein and in
the accompanying Prospectus. See "Description of the Preferred
Securities--Redemption," "--Distribution of the Junior Subordinated Debentures"
and "Description of the Junior Subordinated Debentures."
LIMITED VOTING RIGHTS
Holders of Preferred Securities will have limited voting rights and will not
be entitled to vote to appoint, remove or replace, or to increase or decrease
the number of, Fleet Capital Trustees (as defined herein), which voting rights
are vested exclusively in the holder of the Common Securities. See "Description
of the Preferred Securities--Voting Rights."
TRADING PRICE
The Preferred Securities may trade at a price that does not fully reflect
the value of accrued but unpaid interest with respect to the underlying Junior
Subordinated Debentures. A holder who uses the accrual method of accounting for
tax purposes (and a cash method holder, if the Junior Subordinated Debentures
are treated as issued with OID) and who disposes of his Preferred Securities
between record dates for payments of distributions thereon will be required to
include accrued but unpaid interest on the Junior Subordinated Debentures
through the date of disposition in income as ordinary income (i.e., interest or,
possibly, OID), and to add such amount to his adjusted tax basis in his pro rata
share of the underlying Junior Subordinated Debentures deemed disposed of. To
the extent the selling price is less than the holder's adjusted tax basis (which
will include all accrued but unpaid interest), a holder will recognize a capital
loss. Subject to certain limited exceptions, capital losses cannot be applied to
offset ordinary income for United States federal income tax purposes. See
"United States Federal Income Taxation--Interest Income and Original Issue
Discount" and "--Sales of Preferred Securities."
LACK OF ESTABLISHED TRADING MARKET FOR PREFERRED SECURITIES
The Preferred Securities constitute a new issue of securities of Fleet
Capital with no established trading market. Application will be made to list the
Preferred Securities on the NYSE. If approved for listing, trading of the
Preferred Securities on the NYSE is expected to commence within a 30-day period
after the initial delivery of the Preferred Securities. There can be no
assurance that an active market for the Preferred Securities will develop or be
sustained in the future on such exchange. Although the Underwriters have
indicated to Fleet and Fleet Capital that they intend to make a market in the
Preferred Securities, as permitted by applicable laws and regulations prior to
the commencement of trading on the NYSE, they are not obligated to do so and may
discontinue any such market-making at any time without notice. Accordingly, no
assurance can be given as to the liquidity of, or trading markets for, the
Preferred Securities.
CONSEQUENCES OF HIGHLY LEVERAGED TRANSACTION
The Indenture does not contain provisions that afford holders of the Junior
Subordinated Debentures protection in the event of a highly leveraged
transaction, including a change of control, or other similar transactions
involving Fleet that may adversely affect such holders. See "Description of the
Junior Subordinated Debentures--General."
S-7
<PAGE>
FLEET FINANCIAL GROUP, INC.
THIS SECTION REPLACES THE SECTION ENTITLED "FLEET FINANCIAL GROUP, INC." IN
THE ACCOMPANYING PROSPECTUS.
GENERAL
Fleet is a diversified financial services company organized under the laws
of the State of Rhode Island. At June 30, 1998, Fleet was the tenth largest bank
holding company in the United States, with total assets of $100.7 billion, total
deposits of $67.0 billion and stockholders' equity of $8.9 billion.
Fleet is engaged in a general consumer and commercial banking and investment
management business throughout the states of Connecticut, Massachusetts, New
Jersey, New York, Rhode Island, Maine, New Hampshire and Florida through its
banking subsidiaries, and also provides, through its other subsidiaries, a
variety of financial services, including mortgage banking, asset-based lending,
consumer finance, real estate financing, securities brokerage services, capital
markets services and investment banking, investment advice and management, data
processing and student loan servicing.
The principal office of Fleet is located at One Federal Street, Boston,
Massachusetts 02110, telephone number (617) 346-4000.
HOLDING COMPANY
Fleet is a legal entity separate and distinct from its subsidiaries. The
ability of holders of debt and equity securities of Fleet, including the holders
of the securities offered hereby, to benefit from the distribution of assets of
any subsidiary upon the liquidation or reorganization of such subsidiary is
subordinate to prior claims of creditors of the subsidiary (including depositors
in the case of banking subsidiaries) except to the extent that a claim of Fleet
as a creditor may be recognized.
There are various statutory and regulatory limitations on the extent to
which banking subsidiaries of Fleet can finance or otherwise transfer funds to
Fleet or its nonbanking subsidiaries, whether in the form of loans, extensions
of credit, investments or asset purchases. Such transfers by any subsidiary bank
to Fleet or any nonbanking subsidiary are limited in amount to 10% of the bank's
capital and surplus and, with respect to Fleet and all such nonbanking
subsidiaries, to an aggregate of 20% of each such bank's capital and surplus.
Furthermore, loans and extensions of credit are required to be secured in
specified amounts and are required to be on terms and conditions with safe and
sound banking practices.
In addition, there are regulatory limitations on the payment of dividends
directly or indirectly to Fleet from its banking subsidiaries. Under applicable
banking statutes, at June 30, 1998, Fleet's banking subsidiaries could have
declared additional dividends of approximately $842 million. Federal and state
regulatory agencies also have the authority to limit further Fleet's banking
subsidiaries' payment of dividends based on other factors, such as the
maintenance of adequate capital for such subsidiary bank.
Under the policy of the Board of Govenors of the Federal Reserve Systems
(the "Federal Reserve Board"), Fleet is expected to act as a source of financial
strength to each subsidiary bank and to commit resources to support such
subsidiary bank in circumstances where it might not do so absent such policy. In
addition, any subordinated loans by Fleet to any of the subsidiary banks would
also be subordinate in right of payment to deposits and obligations to general
creditors of such subsidiary bank. Further, the Crime Control Act of 1990
amended the federal bankruptcy laws to provide that in the event of the
bankruptcy of Fleet, any commitment by Fleet to its regulators to maintain the
capital of a banking subsidiary would be assumed by the bankruptcy trustee and
entitled to a priority of payment.
SECOND QUARTER RESULTS
Fleet reported net income of $393 million, or $1.29 per diluted share, for
the second quarter of 1998, a 13% increase compared with $347 million, or $1.17
per diluted share, earned in the second quarter of
S-8
<PAGE>
1997. Return on assets and return on common equity for the second quarter of
1998 were 1.59% and 19.0%, respectively. Net income before merger related
charges for the first six months of 1998 were $760 million, or $2.50 per diluted
share, a 12% increase compared with $681 million, or $2.26 per diluted share for
the first six months of 1997. Year to date return on assets and return on common
equity were 1.60% and 18.6%, respectively. Net income for the first half of 1998
was $716 million including merger-related charges for the acquisitions of Quick
& Reilly and the credit card operations of Advanta.
Net interest income totaled $981 million during the second quarter of 1998,
up $48 million from the second quarter of 1997. The increase is principally
attributable to the acquisition of Advanta in the first quarter and growth in
Fleet's earning assets. Fleet reported a net interest margin of 4.60%. Net
interest income for the first half of 1998 was $1.9 billion, an increase of $68
million over the same period in 1997.
Noninterest income in the second quarter totaled $809 million, an increase
of $209 million, or 35%, from the same period in 1997. Investment services
revenue increased 34% to $220 million in the second quarter, driven by the
acquisitions of Quick & Reilly and Columbia, as well as strong sales of mutual
fund products and appreciation in the equity markets. Capital markets revenue
climbed 65% to $107 million compared to the second quarter of 1997 as venture
capital revenue increased $29 million, coupled with increased volume in
brokerage market-making revenue and sales of foreign exchange and interest rate
products. Credit card revenue increased $83 million over the prior year's second
quarter, which is attributable to the Advanta acquisition. Noninterest income
for the first six months of 1998 totaled $1.5 billion, an increase of 24% over
the $1.2 billion earned in the comparable period in 1997. This increase was
driven by the acquisition of Advanta, which has added $141 million of revenue,
as well as strong growth in revenues from investment services and capital
markets revenues.
Noninterest expense in the second quarter of 1998 increased $147 million
from the second quarter of 1997 to $1.0 billion, primarily the result of the
acquisitions of Advanta and Columbia Management Company. Fleet reported an
efficiency ratio of 56.8%. Noninterest expense for the first half of 1998
amounted to $1.9 billion compared to $1.8 billion for the same period in 1997,
as Advanta has incrementally added $130 million of expenses.
Total assets at June 30, 1998 were $100.7 billion, including total loans of
$66.8 billion, compared with $87.6 billion of total assets and $59.2 billion of
loans at June 30, 1997. Stockholders' equity amounted to $8.9 billion at June
30, 1998.
FLEET CAPITAL
THIS SECTION SUPPLEMENTS, AND TO THE EXTENT INCONSISTENT THEREWITH, REPLACES
THE SECTION ENTITLED "THE TRUSTS" IN THE ACCOMPANYING PROSPECTUS.
Fleet Capital is a statutory business trust formed under Delaware law
pursuant to (i) a declaration of trust, dated as of November 1, 1996, executed
by Fleet, as sponsor (the "Sponsor"), and the trustees of Fleet Capital (the
"Fleet Capital Trustees") and (ii) the filing of a certificate of trust with the
Secretary of State of the State of Delaware on November 1, 1996. Such
declaration will be amended and restated in its entirety (as so amended and
restated, the "Declaration") substantially in the form filed as an exhibit to
the Registration Statement of which this Prospectus Supplement and the
accompanying Prospectus form a part. The Declaration will be qualified as an
indenture under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"). Upon issuance of the Preferred Securities, the purchasers
thereof will own all of the Preferred Securities. See "Description of the
Preferred Securities--Book-Entry Only Issuance--The Depository Trust Company."
Fleet will directly or indirectly acquire Common Securities in an aggregate
liquidation amount equal to at least 3 percent of the total capital of Fleet
Capital. Fleet Capital exists for the exclusive purposes of (i) issuing the
Trust Securities representing undivided beneficial interests in the assets of
Fleet Capital, (ii) investing the gross proceeds of the Trust Securities in the
Junior Subordinated Debentures and (iii) engaging in only those other activities
necessary or incidental thereto.
S-9
<PAGE>
Pursuant to the Declaration, the number of Fleet Capital Trustees will
initially be five. Three of the Fleet Capital Trustees (the "Regular Trustees")
will be persons who are employees or officers of, or who are affiliated with,
Fleet. The fourth trustee will be a financial institution that is unaffiliated
with Fleet, which trustee will serve as institutional trustee under the
Declaration and as indenture trustee for the purposes of compliance with the
provisions of the Trust Indenture Act (the "Institutional Trustee"). Initially,
The First National Bank of Chicago will be the Institutional Trustee until
removed or replaced by the holder of the Common Securities. For purposes of
compliance with the provisions of the Trust Indenture Act, The First National
Bank of Chicago will act as trustee (the "Guarantee Trustee") under the
Guarantee and as Debt Trustee (as defined herein) under the Indenture (as
defined herein). The fifth trustee will be an entity that maintains its
principal place of business in the state of Delaware (the "Delaware Trustee").
Initially, First Chicago Delaware Inc., an affiliate of the Institutional
Trustee, will act as Delaware Trustee. See "Description of the Preferred
Securities Guarantees" in the accompanying Prospectus and "Description of the
Preferred Securities--Voting Rights" herein.
The Institutional Trustee will hold title to the Junior Subordinated
Debentures for the benefit of the holders of the Trust Securities and will have
the power to exercise all rights, powers and privileges under the Indenture as
the holder of the Junior Subordinated Debentures. In addition, the Institutional
Trustee will maintain exclusive control of a segregated non-interest bearing
bank account (the "Institutional Account") to hold all payments made in respect
of the Junior Subordinated Debentures for the benefit of the holders of the
Trust Securities. The Institutional Trustee will make payments of distributions
and payments on liquidation, redemption and otherwise to the holders of the
Trust Securities out of funds from the Institutional Account. The Guarantee
Trustee will hold the Guarantee for the benefit of the holders of the Preferred
Securities. Fleet, as the direct or indirect holder of all the Common
Securities, will have the right to appoint, remove or replace any Fleet Capital
Trustee and to increase or decrease the number of Fleet Capital Trustees. Fleet
will pay all fees and expenses related to Fleet Capital and the offering of the
Trust Securities. See "Description of the Junior Subordinated
Debentures--Miscellaneous."
The rights of the holders of the Preferred Securities, including economic
rights, rights to information and voting rights, are set forth in the
Declaration, the Delaware Business Trust Act (the "Business Trust Act") and the
Trust Indenture Act. See "Description of the Preferred Securities."
S-10
<PAGE>
SELECTED CONSOLIDATED FINANCIAL DATA
FLEET FINANCIAL GROUP, INC.
The following unaudited consolidated summary sets forth selected financial data
for Fleet and its subsidiaries for the six months ended June 30, 1998 and 1997
and for each of the years in the five-year period ending December 31, 1997. The
following summary should be read in conjunction with the financial information
incorporated herein by reference to other documents. See "Incorporation of
Certain Documents by Reference." The summary for the six months ended June 30,
1998 and 1997 is based on unaudited financial statements which include all
adjustments that, in the opinion of management of Fleet, are necessary for a
fair presentation of the results of the respective interim periods. The results
of operations for the six months ended June 30, 1998 are not necessarily
indicative of the results expected for 1998 or any other interim period. All
data has been restated to reflect the Quick & Reilly acquisition, accounted for
as a pooling of interests. Certain amounts in prior periods have been
reclassified to conform to current-year presentation.
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JUNE 30, YEAR ENDED DECEMBER 31,
--------------------------------- -----------------------------------------------------
1998 1997 1997 1996 1995
-------------- -------------- -------------- -------------- ---------------
(DOLLARS IN MILLIONS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C>
CONSOLIDATED SUMMARY
OF OPERATIONS:
Interest income
(fully taxable
equivalent)...... $ 3,328 $ 3,015 $ 6,130 $ 6,064 $ 6,257
Interest expense... 1,409 1,164 2,391 2,566 3,139
Net interest income
(fully taxable
equivalent)...... 1,919 1,851 3,739 3,498 3,118
Provision for
credit losses.... 210 148 322 213 101
Net interest income
after provision
for credit
losses........... 1,709 1,703 3,417 3,285 3,017
Noninterest
income........... 1,504 1,388 2,631 2,333 1,939
Noninterest
expense.......... 2,014 1,929 3,715 3,512 3,755
Net income......... 716(d) 681 1,367 1,221 679(a)
EARNINGS PER COMMON
SHARE:
Basic.............. $ 2.43(d) $ 2.33 $ 4.73 $ 4.04 $ 1.83(a)
Diluted............ 2.35(d) 2.26 4.59 3.96 1.70(a)
Weighted average
basic shares
outstanding...... 283,993,709 278,204,190 275,978,241 284,448,131 265,459,028
Weighted average
diluted shares
outstanding...... 293,999,643 286,067,372 284,302,405 290,012,987 285,995,539
Book value per
common share..... $ 28.78 $ 24.11 $ 27.36 $ 24.08 $ 22.03
Cash dividends
declared per
common share..... 0.98 0.90 1.84 1.74 1.63
Common dividend
payout ratios.... 39.80% 35.34% 36.32% 40.64% 79.22%
RATIO OF EARNINGS TO
FIXED CHARGES:
Excluding interest
on deposits...... 3.27x 4.12x 3.90x 3.38x 1.79x
Including interest
on deposits...... 1.83 1.96 1.94 1.79 1.36
RATIO OF EARNINGS TO
FIXED CHARGES AND
DIVIDENDS ON
PREFERRED STOCK:
Excluding interest
on deposits...... 3.09 3.71 3.57 3.10 1.76
Including interest
on deposits...... 1.80 1.92 1.90 1.76 1.36
CONSOLIDATED BALANCE
SHEET--
AVERAGE BALANCES:
Total assets....... $ 95,511 $ 86,494 $ 86,660 $ 86,738 $ 86,241
Securities held to
maturity(c)...... 1,232 1,129 1,167 1,045 7,736
Securities
available for
sale(c).......... 9,346 7,324 7,507 10,287 12,779
Loans, net of
unearned
income........... 64,476 59,853 60,076 57,046 52,164
Due from
brokers/dealers... 4,118 2,623 2,884 2,179 1,927
Interest-bearing
deposits......... 49,967 48,052 47,514 47,334 43,120
Short-term
borrowings....... 7,966 4,572 5,266 6,351 14,807
Due to
brokers/dealers... 4,867 3,053 3,463 2,645 2,341
Long-term
debt/subordinated
notes
and debentures... 5,214 4,806 4,608 5,486 6,581
Stockholders'
equity........... 8,649 7,522 7,589 7,369 6,863
<CAPTION>
1994 1993
-------------- --------------
<S> <C> <C>
CONSOLIDATED SUMMARY
OF OPERATIONS:
Interest income
(fully taxable
equivalent)...... $ 5,389 $ 5,154
Interest expense... 2,245 1,956
Net interest income
(fully taxable
equivalent)...... 3,144 3,198
Provision for
credit losses.... 65 327
Net interest income
after provision
for credit
losses........... 3,079 2,871
Noninterest
income........... 1,654 1,833
Noninterest
expense.......... 3,221 3,479
Net income......... 890 859(b)
EARNINGS PER COMMON
SHARE:
Basic.............. $ 3.25 $ 3.18(b)
Diluted............ 3.00 2.95(b)
Weighted average
basic shares
outstanding...... 264,692,874 258,040,862
Weighted average
diluted shares
outstanding...... 285,973,026 278,419,490
Book value per
common share..... $ 19.87 $ 20.74
Cash dividends
declared per
common share..... 1.40 1.03
Common dividend
payout ratios.... 35.86% 23.97%
RATIO OF EARNINGS TO
FIXED CHARGES:
Excluding interest
on deposits...... 2.30x 2.39x
Including interest
on deposits...... 1.64 1.58
RATIO OF EARNINGS TO
FIXED CHARGES AND
DIVIDENDS ON
PREFERRED STOCK:
Excluding interest
on deposits...... 2.24 2.31
Including interest
on deposits...... 1.62 1.57
CONSOLIDATED BALANCE
SHEET--
AVERAGE BALANCES:
Total assets....... $ 82,143 $ 77,763
Securities held to
maturity(c)...... 8,787 7,735
Securities
available for
sale(c).......... 16,923 14,140
Loans, net of
unearned
income........... 44,754 43,917
Due from
brokers/dealers... 1,606 1,611
Interest-bearing
deposits......... 40,113 39,766
Short-term
borrowings....... 15,807 13,268
Due to
brokers/dealers... 1,821 1,759
Long-term
debt/subordinated
notes
and debentures... 5,383 5,039
Stockholders'
equity........... 6,019 5,516
</TABLE>
S-11
<PAGE>
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JUNE 30, YEAR ENDED DECEMBER 31,
--------------------------------- -----------------------------------------------------
1998 1997 1997 1996 1995
-------------- -------------- -------------- -------------- ---------------
(DOLLARS IN MILLIONS, EXCEPT PER SHARE DATA)
CONSOLIDATED RATIOS:
<S> <C> <C> <C> <C> <C>
Net interest margin
(fully taxable
equivalent)...... 4.67% 5.03% 5.01% 4.68% 4.03%
Return on average
assets........... 1.51(d) 1.59 1.58 1.40 0.79(a)
Return on average
common
stockholders'
equity........... 17.51(d) 19.65 19.30 17.68 9.93(a)
Average
stockholders'
equity to average
assets........... 9.06 8.70 8.76 8.50 7.96
Tier 1 risk-based
capital ratio.... 6.80 7.28 7.26 7.70 7.60
Total risk-based
capital ratio.... 10.85 10.76 10.71 11.27 11.16
Period-end reserve
for credit losses
to period-end
loans net of
unearned
income........... 2.32 2.44 2.29 2.49 2.51
Net charge-offs to
average loans,
net of unearned
income........... 0.66 0.65 0.63 0.65 0.58
Period-end
nonperforming
assets to
period-end loans,
net of unearned
income, and other
real estate
owned............ 0.50(e) 0.90(e) 0.66(e) 1.21(e) 0.95(e)
<CAPTION>
1994 1993
-------------- --------------
CONSOLIDATED RATIOS:
<S> <C> <C>
Net interest margin
(fully taxable
equivalent)...... 4.23% 4.52%
Return on average
assets........... 1.08 1.11(b)
Return on average
common
stockholders'
equity........... 15.74 17.26(b)
Average
stockholders'
equity to average
assets........... 7.33 7.09
Tier 1 risk-based
capital ratio.... 9.15 10.35
Total risk-based
capital ratio.... 12.82 14.65
Period-end reserve
for credit losses
to period-end
loans net of
unearned
income........... 3.20 3.76
Net charge-offs to
average loans,
net of unearned
income........... 0.53 1.33
Period-end
nonperforming
assets to
period-end loans,
net of unearned
income, and other
real estate
owned............ 1.63 2.33
</TABLE>
- ------------------------
(a) Includes impact of the loss on assets held for sale or accelerated
disposition ($175 million pre-tax) and merger-related charges ($490 million
pre-tax) recorded in 1995. Excluding these special charges, return on
average common stockholders' equity and return on average assets would have
been 16.55% and 1.29%, respectively, while net income and earnings per share
would have been $1,108 million and $3.90, respectively.
(b) Includes impact of cumulative effect of change in accounting method of $53
million in 1993.
(c) Effective January 1, 1994, Fleet adopted FASB Statement No. 115, "Accounting
for Certain Investments in Debt and Equity Securities." The standard
requires that securities available for sale be reported at fair value, with
unrealized gains or losses reflected as a separate component of
stockholders' equity. In connection with the adoption of FASB Statement No.
115, Fleet transferred securities netting to $345 million from the held to
maturity portfolio to the available for sale portfolio. During the fourth
quarter of 1995, Fleet reclassified substantially all of its securities held
to maturity to securities available for sale as the FASB permitted a one-
time opportunity for institutions to reassess the appropriateness of the
designations of all securities.
(d) Includes impact of merger-related charges ($73 million pre-tax, $44 million
post-tax) recorded in the first quarter of 1998. Excluding these
merger-related charges, return on average common stockholders' equity and
return on average assets would have been 18.62% and 1.60%, respectively,
while net income, basic earnings per share and diluted earnings per share
would have been $760 million, $2.59 and $2.50, respectively.
(e) Excludes $147 million, $249 million, $214 million, $265 million and $317
million of nonperforming assets reclassified to held for sale or accelerated
disposition at June 30, 1998 and 1997 and December 31, 1997, 1996 and 1995,
respectively. Including such amounts, the ratios would have been .72%,
1.32%, 1.01%, 1.65% and 1.55% at June 30, 1998 and 1997 and December 31,
1997, 1996 and 1995, respectively.
S-12
<PAGE>
CAPITALIZATION
The following table sets forth the actual consolidated capitalization of
Fleet and its subsidiaries at June 30, 1998, and Fleet's capitalization as of
such date as adjusted to reflect (i) the sale of the Preferred Securities
offered hereby and (ii) the issuance by Fleet on July 10, 1998 of $250 million
principal amount of 6.70% Subordinated Debentures Due 2028. The table should be
read in conjunction with Fleet's consolidated financial statements and notes
thereto included in the documents incorporated by reference herein. See
"Incorporation of Certain Documents by Reference".
<TABLE>
<CAPTION>
ACTUAL AS ADJUSTED
---------- -----------
<S> <C> <C>
AT JUNE 30, 1998
-----------------------
<CAPTION>
(DOLLARS IN MILLIONS)
<S> <C> <C>
Senior and subordinated debt............................................................. $ 5,050 $ 5,300
Company-obligated mandatorily redeemable preferred securities
of Fleet Capital Trust I(1)............................................................. 84 84
Company-obligated mandatorily redeemable capital securities
of Fleet Capital Trust II(2)............................................................ 250 250
Company-obligated mandatorily redeemable preferred securities
of Fleet Capital Trust III(3)........................................................... 120 120
Company-obligated mandatorily redeemable preferred securities
of Fleet Capital Trust IV(4)............................................................ 150 150
Company-obligated mandatory redeemable preferred securities
of Fleet Capital Trust V(5)............................................................. --
---------- -----------
Total long-term debt..................................................................... 5,654
STOCKHOLDERS' EQUITY
Preferred stock, $1.00 par value......................................................... 691 691
Common stock, $.01 par value............................................................. 3 3
Common surplus........................................................................... 3,299 3,299
Retained earnings........................................................................ 4,851 4,851
Accumulated other comprehensive income................................................... 105 105
Treasury stock........................................................................... (88) (88)
---------- -----------
Total stockholders' equity............................................................... 8,861 8,861
---------- -----------
Total long-term debt and stockholders' equity............................................ 14,515
---------- -----------
---------- -----------
</TABLE>
- ------------------------
(1) Issued on February 4, 1997. The sole assets of Fleet Capital Trust I are
8.00% Junior Subordinated Deferrable Interest Debentures due 2027 with a
principal amount of approximately $86.3 million. Such debentures mature on
February 15, 2027, which may be (i) shortened to a date not earlier than
April 15, 2001 or (ii) extended to a date not later than February 15, 2046.
Fleet owns all of the common securities of such trust. Upon redemption of
such debentures, the preferred securities are mandatorily redeemable.
(2) Issued on December 11, 1996. The sole assets of Fleet Capital Trust II are
7.92% Junior Subordinated Deferrable Interest Debentures due 2026 with a
principal amount of approximately $257.7 million. Such debentures mature on
December 11, 2026. Fleet owns all of the common securities of such trust.
Upon redemption of such debentures, the capital securities are mandatorily
redeemable.
(3) Issued on January 29, 1998. The sole assets of Fleet Capital Trust III are
7.05% Junior Subordinated Deferrable Interest Debentures due 2028 with a
principal amount of approximately $123.7 million. Such debentures mature on
March 31, 2028. Fleet owns all of the common securities of such trust. Upon
redemption of such debentures, the preferred securities are mandatorily
redeemable.
S-13
<PAGE>
(4) Issued on April 28, 1998. The sole assets of Fleet Capital IV are 7.17%
Junior Subordinated Deferrable Interest Debentures with a principal amount
of approximately $154.6 million. Such debentures will bear interest at the
rate of 7.17% per annum and will mature on March 31, 2028. Fleet owns all of
the Common Securities of such trust. Upon redemption of such debentures, the
preferred securities are mandatorily redeemable.
(5) As described herein, the sole assets of Fleet Capital will be the Junior
Subordinated Debentures with a principal amount of approximately
$ million. The Junior Subordinated Debentures will bear interest at the
rate of % per annum and will mature on , 2028. Fleet owns all of
the Common Securities of Fleet Capital. Upon redemption of the Junior
Subordinated Debentures, the Preferred Securities will be mandatorily
redeemable.
S-14
<PAGE>
ACCOUNTING TREATMENT
The financial statements of Fleet Capital will be consolidated into Fleet's
consolidated financial statements, with the Preferred Securities classified as a
component of long-term debt of Fleet. The financial statement footnotes of Fleet
will reflect that the sole asset of Fleet Capital will be $ million
principal amount of the Junior Subordinated Debentures, bearing interest at %
and maturing on , 2028. All future reports filed by Fleet under the
Exchange Act will present information regarding Fleet Capital and other similar
Fleet trusts in the manner described above. In addition, a footnote to Fleet's
audited financial statements will be added to reflect that (i) Fleet Capital and
such other trusts are wholly-owned by Fleet; (ii) the sole assets of Fleet
Capital are the Junior Subordinated Debentures and the sole assets of such other
trusts will be junior subordinated debentures, in each case specifying as to
each trust the principal amount, interest rate and maturity date of the junior
subordinated debentures held; and (iii) the Guarantee, when taken together with
Fleet's obligations under the Junior Subordinated Debenture and the Indenture
and its obligations under the Declaration, including its obligations to pay
costs, expenses, debts and liabilities of Fleet Capital (other than with respect
to the Trust Securities), and the corresponding obligations of Fleet with
respect to such other trusts, provide a full and unconditional guarantee of
amounts on the Preferred Securities and the preferred securities issued by such
other trusts. See "Capitalization."
USE OF PROCEEDS
THIS SECTION SUPPLEMENTS, AND TO THE EXTENT INCONSISTENT THEREWITH, REPLACES
THE SECTION ENTITLED "USE OF PROCEEDS" IN THE ACCOMPANYING PROSPECTUS.
Fleet Capital will use all proceeds received from the sale of the Preferred
Securities to purchase Junior Subordinated Debentures from Fleet. Fleet intends
to use the net proceeds from the sale of the Junior Subordinated Debentures for
general corporate purposes, principally to extend credit to, or fund investments
in, its subsidiaries. The precise amounts and timing of extensions of credit to,
and investments in, such subsidiaries will depend upon the subsidiaries' funding
requirements and the availability of other funds. Pending such applications, the
net proceeds may be temporarily invested in marketable securities or applied to
the reduction of Fleet's short-term indebtedness. Based upon the historic and
anticipated future growth of Fleet and the financial needs of its subsidiaries,
Fleet may engage in additional financings of a character and amount to be
determined as the need arises.
S-15
<PAGE>
DESCRIPTION OF THE PREFERRED SECURITIES
The Preferred Securities will be issued pursuant to the terms of the
Declaration. The Declaration will be qualified as an indenture under the Trust
Indenture Act. The Institutional Trustee, The First National Bank of Chicago,
will act as indenture trustee for the Preferred Securities under the Declaration
for purposes of compliance with the provisions of the Trust Indenture Act. The
terms of the Preferred Securities will include those stated in the Declaration
and those made part of the Declaration by the Trust Indenture Act. The following
summary of the material terms and provisions of the Preferred Securities, which
supplements, and to the extent inconsistent, replaces, the description set forth
under the caption "Description of the Capital Securities" in the accompanying
Prospectus. Such summary, which describes the material provisions thereof, does
not purport to be complete and is subject to, and qualified in its entirety by
reference to, the Declaration, a copy of which is filed as an exhibit to the
Registration Statement of which this Prospectus Supplement is a part, the
Business Trust Act and the Trust Indenture Act.
GENERAL
The Declaration authorizes the Regular Trustees to issue on behalf of Fleet
Capital the Trust Securities, which represent undivided beneficial interests in
the assets of Fleet Capital. All of the Common Securities will be owned,
directly or indirectly, by Fleet. The Common Securities rank pari passu, and
payments will be made thereon on a pro rata basis, with the Preferred
Securities, except that upon the occurrence and during the continuance of a
Declaration Event of Default, the rights of the holders of the Common Securities
to receive payment of periodic distributions and payments upon liquidation,
redemption and otherwise will be subordinated to the rights of the holders of
the Preferred Securities. The Declaration does not permit the issuance by Fleet
Capital of any securities other than the Trust Securities or the incurrence of
any indebtedness by Fleet Capital. Pursuant to the Declaration, the
Institutional Trustee will own the Junior Subordinated Debentures purchased by
Fleet Capital for the benefit of the holders of the Trust Securities. The
payment of distributions out of money held by Fleet Capital, and payments upon
redemption of the Preferred Securities or liquidation of Fleet Capital, are
guaranteed by Fleet to the extent described under "Description of the Preferred
Securities Guarantees" in the accompanying Prospectus. The Guarantee will be
held by The First National Bank of Chicago, as Guarantee Trustee, for the
benefit of the holders of the Preferred Securities. The Guarantee does not cover
payment of distributions when Fleet Capital does not have sufficient available
funds to pay such distributions. In such event, the remedy of a holder of
Preferred Securities is to vote to direct the Institutional Trustee to enforce
the Institutional Trustee's rights under the Junior Subordinated Debentures
except in the circumstances in which there is a default in the payment of
distributions, including when Fleet Capital does not have sufficient available
funds to pay such distribution, in which case the holder may take Direct Action.
See "Voting Rights" and "Declaration Events of Default" below.
DISTRIBUTIONS
Distributions on the Preferred Securities will be fixed at a rate per annum
of % of the stated liquidation amount of $ per Preferred Security
(equivalent to $ per annum). Distributions in arrears for more than one
quarter will bear interest thereon at such rate, compounded quarterly. The term
"distribution" as used herein includes any such interest payable unless
otherwise stated. The amount of distributions payable for any period will be
computed on the basis of a 360-day year of twelve 30-day months.
Distributions on the Preferred Securities will be cumulative, will accrue
from , 1998, and, except as otherwise described below, will be payable
quarterly in arrears on March 31, June 30, September 30 and December 31 of each
year, commencing , 1998, when, as and if available for payment. The
initial distribution will be $ per Preferred Security and will be payable on
, 1998.
So long as Fleet shall not be in default in the payment of interest on the
Junior Subordinated Debentures, Fleet has the right under the Indenture to defer
payments of interest on the Junior Subordinated Debentures by extending the
interest payment period from time to time on the Junior
S-16
<PAGE>
Subordinated Debentures, which, if exercised, would defer quarterly
distributions on the Preferred Securities (though such distributions would
continue to accrue with interest thereon at an annual rate of % percent per
annum compounded quarterly, since interest would continue to accrue on the
Junior Subordinated Debentures) during any such Extension Period. Such right to
extend the interest payment period for the Junior Subordinated Debentures is
limited to a period not exceeding 20 consecutive quarters, and such period may
not extend beyond the Stated Maturity of the Junior Subordinated Debentures. In
the event that Fleet exercises this right, then (i) Fleet shall not declare or
pay any dividend on, make any 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 Fleet Common Stock
in connection with the satisfaction by Fleet of its obligations under any
employee benefit plans or any other contractual obligation of Fleet (other than
a contractual obligation ranking pari passu with or junior to the Junior
Subordinated Debentures), (b) as a result of a reclassification of Fleet capital
stock or the exchange or conversion of one class or series of Fleet's capital
stock for another class or series of Fleet capital stock or (c) the purchase of
fractional interests in shares of Fleet's capital stock pursuant to the
conversion or exchange provisions of such Fleet capital stock or the security
being converted or exchanged), (ii) Fleet shall not make any payment of
interest, principal or premium, if any, on or repay, repurchase or redeem any
debt securities issued by Fleet that rank pari passu with or junior to such
Junior Subordinated Debentures and (iii) Fleet shall not make any guarantee
payments with respect to the foregoing (other than pursuant to the Guarantee).
Prior to the termination of any such Extension Period, Fleet may further extend
the interest payment period; provided, that such Extension Period, together with
all such previous and further extensions thereof, may not exceed 20 consecutive
quarters or extend beyond the Stated Maturity of the Junior Subordinated
Debentures. Upon the termination of any Extension Period and the payment of all
amounts then due, Fleet may select a new Extension Period, subject to the above
requirements. See "Description of the Junior Subordinated Debentures--Interest"
and "--Option to Extend Interest Payment Period." If distributions are deferred,
the deferred distributions and accrued but unpaid interest thereon shall be paid
to holders of record of the Preferred Securities as they appear on the books and
records of the Trust on the record date next following the termination of such
Extension Period.
Distributions on the Preferred Securities must be paid on the dates payable
to the extent that Fleet Capital has funds available for the payment of such
distributions in the Property Account. Fleet Capital's funds available for
distribution to the holders of the Preferred Securities will be limited to
payments received from Fleet on the Junior Subordinated Debentures. See
"Description of the Junior Subordinated Debentures." The payment of
distributions out of moneys held by Fleet Capital is guaranteed by Fleet to the
extent set forth under "Description of the Preferred Securities Guarantees" in
the accompanying Prospectus.
Distributions on the Preferred Securities will be payable to the holders
thereof as they appear on the books and records of Fleet Capital on the relevant
record dates, which will be, as long as the Preferred Securities remain in
book-entry form, one Business Day prior to the relevant payment date and, in the
event the Preferred Securities are not in book-entry form, the 15th day of the
month in which the relevant payment date occurs. The Declaration provides that
the payment dates or record dates for the Preferred Securities shall be the same
as the payment dates and record dates for the Junior Subordinated Debentures.
Distributions payable on any Preferred Securities that are not punctually paid
on any distribution date as a result of Fleet having failed to make the
corresponding interest payment on the Junior Subordinated Debentures will
forthwith cease to be payable to the person in whose name such Preferred
Security is registered on the relevant record date, and such defaulted
distribution will instead be payable to the person in whose name such Preferred
Security is 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 Fleet has elected to make a full
or partial payment of interest accrued on the Junior Subordinated Debentures on
such distribution payment date. Distributions on the Preferred Securities will
be paid through the
S-17
<PAGE>
Institutional Trustee, who will hold amounts received in respect of the Junior
Subordinated Debentures in the Institutional Account for the benefit of the
holders of the Trust Securities. Subject to any applicable laws and regulations
and the provisions of the Declaration, each such payment will be made as
described under "Book-Entry Only Issuance--The Depository Trust Company" below.
In the event that any date on which distributions are to be made on the
Preferred Securities is not a Business Day, then payment of the distributions
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 record date. A "Business Day"
shall mean any day other than Saturday, Sunday or any other day on which banking
institutions in New York City (in the State of New York) or Chicago, Illinois
are permitted or required by any applicable law to close.
REDEMPTION
The Stated Maturity of the Junior Subordinated Debentures is , 2028.
Upon the repayment of the Junior Subordinated Debentures at maturity, the
proceeds from such repayment shall simultaneously be applied to redeem Trust
Securities having an aggregate liquidation amount equal to the aggregate
principal amount of the Junior Subordinated Debentures so repaid at a redemption
price of $ per Trust Security, plus accrued and unpaid distributions thereon.
Moreover, the Junior Subordinated Debentures will be prepayable prior to the
Stated Maturity at the option of Fleet (i) in whole or in part, from time to
time, on or after , 2003 or (ii) at any time prior to , 2003, in
whole but not in part, upon the occurrence and continuation of a Special Event,
in either case at the Prepayment Price equal to 100% of the principal amount
thereof, plus accrued interest thereon to the date of prepayment. See
"Description of the Junior Subordinated Debentures--Optional Prepayment." Upon
the repayment of the Junior Subordinated Debentures, whether at maturity or upon
redemption, the proceeds from such repayment or payment shall simultaneously be
applied to redeem Trust Securities having an aggregate liquidation amount equal
to the aggregate principal amount of the Junior Subordinated Debentures so
repaid or redeemed at the Redemption Price; provided, that holders of Trust
Securities shall be given not less than 30 nor more than 60 days' notice of such
redemption. See "Description of the Junior Subordinated Debentures--Optional
Prepayment." In the event that fewer than all of the outstanding Preferred
Securities are to be redeemed, the Preferred Securities will be redeemed pro
rata as described under "Book-Entry Only Issuance--The Depository Trust Company"
below. Any such redemption may require prior approval of the Federal Reserve
Board if such approval is then required under applicable law, rules, guidelines
or policies.
REDEMPTION PROCEDURES
Fleet Capital may not redeem fewer than all of the outstanding Preferred
Securities unless all accrued and unpaid distributions have been paid on all
Preferred Securities for all quarterly distribution periods terminating on or
prior to the date of redemption.
If Fleet Capital gives a notice of redemption in respect of Preferred
Securities (which notice will be irrevocable), then immediately prior to the
close of business on the redemption date, provided that Fleet has paid to Fleet
Capital a sufficient amount of cash in connection with the related redemption or
maturity of the Junior Subordinated Debentures, distributions will cease to
accrue on the Preferred Securities called for redemption, such Preferred
Securities shall no longer be deemed to be outstanding and all rights of holders
of such Preferred Securities so called for redemption will cease, except the
right of the holders of such Preferred Securities to receive the Redemption
Price, but without interest on such Redemption Price. If any date fixed for
redemption of Preferred Securities is not a Business Day, then payment of the
Redemption Price payable on such date will be made on the next succeeding day
that is a Business Day (and without any interest or other payment in respect of
any such delay) except that, if such Business Day falls in the next calendar
year, such payment will be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such date fixed for
redemption. If Fleet fails to
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<PAGE>
repay Junior Subordinated Debentures on maturity or on the date fixed for a
redemption or if payment of the Redemption Price in respect of Preferred
Securities is improperly withheld or refused and not paid by Fleet Capital or by
Fleet pursuant to the Guarantee described under "Description of the Preferred
Securities Guarantees" in the accompanying Prospectus, distributions on such
Preferred Securities will continue to accrue to the date of payment, in which
case the actual payment date will be considered the date fixed for redemption
for purposes of calculating the Redemption Price.
Fleet Capital shall not be required to (i) issue, or register the transfer
or exchange of, any Trust Securities during a period beginning at the opening of
business 15 days before the mailing of a notice of redemption of Trust
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
Trust Securities so selected for redemption, in whole or in part, except the
unredeemed portion of any Trust Securities being redeemed in part.
In the event that fewer than all of the outstanding Preferred Securities are
to be redeemed, the Preferred Securities will be redeemed pro rata as described
below under "Book-Entry Only Issuance--The Depository Trust Company."
Subject to the foregoing and applicable law (including, without limitation,
United States federal securities laws and the regulations of the Federal Reserve
Board), Fleet or its subsidiaries may at any time, and from time to time,
purchase outstanding Preferred Securities by tender, in the open market or by
private agreement.
DISTRIBUTION OF THE JUNIOR SUBORDINATED DEBENTURES
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, subject to the prior approval of the Federal Reserve Board if such
approval is then required under applicable law, rules, guidelines or policies.
If the Junior Subordinated Debentures are distributed to the holders of the
Preferred Securities, Fleet will use its best efforts to cause the Junior
Subordinated Debentures to be listed on the NYSE or on such other exchanges as
the Preferred Securities are then listed.
On the date for any distribution of Junior Subordinated Debentures upon
dissolution of Fleet Capital, (i) the Trust Securities will no longer be deemed
to be outstanding, (ii) the Depositary (as defined herein) or its nominee, as
the record holder of the Trust Securities, will receive a registered global
certificate or certificates representing the Junior Subordinated Debentures to
be delivered upon such distribution, and (iii) any certificates representing
Trust Securities not held by the Depositary or its nominee will be deemed to
represent Junior Subordinated 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 Trust Securities until such
certificates are presented to Fleet or its agent for transfer or reissuance.
There can be no assurance as to the market prices for either the Preferred
Securities or the Junior Subordinated Debentures that may be distributed in
exchange for the Preferred Securities if a dissolution and liquidation of Fleet
Capital were to occur. Accordingly, the Preferred Securities or the Junior
Subordinated Debentures may trade at a discount to the price that the investor
paid to purchase the Preferred Securities offered hereby.
LIQUIDATION DISTRIBUTION UPON DISSOLUTION
In the event of any other voluntary or involuntary liquidation, dissolution,
winding-up or termination of Fleet Capital (each a "Liquidation"), the then
holders of the Preferred Securities will be entitled to receive out of the
assets of Fleet Capital, after satisfaction of liabilities to creditors,
distributions in an amount equal to the aggregate of the stated liquidation
amount of $ per Preferred Security plus accrued and unpaid distributions
thereon to the date of payment (the "Liquidation Distribution"), unless, in
connection with such Liquidation, Junior Subordinated Debentures in an aggregate
stated principal amount equal to the aggregate stated liquidation amount of,
with an interest rate identical to the
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<PAGE>
distribution rate of, and accrued and unpaid interest equal to accrued and
unpaid distributions on, the Preferred Securities have been distributed on a pro
rata basis to the holders of the Preferred Securities.
If, upon any such Liquidation, the Liquidation Distribution can be paid only
in part because Fleet Capital has insufficient assets available to pay in full
the aggregate Liquidation Distribution, then the amounts payable directly by
Fleet Capital on the Preferred Securities shall be paid on a pro rata basis. The
holders of the Common Securities will be entitled to receive distributions upon
any such dissolution pro rata with the holders of the Preferred Securities,
except that if a Declaration Event of Default has occurred and is continuing,
the Preferred Securities shall have a preference over the Common Securities with
regard to such distributions.
Pursuant to the Declaration, Fleet Capital shall terminate (i) on ,
2052, the expiration of the term of Fleet Capital, (ii) upon the bankruptcy of
Fleet or Fleet Capital, (iii) upon the filing of a certificate of dissolution or
its equivalent with respect to Fleet, the filing of a certificate of
cancellation with respect to Fleet Capital after obtaining the consent of the
holders of at least a majority in liquidation amount of the Trust Securities,
voting together as a single class to file such certificate of cancellation, or
the revocation of the charter of Fleet and the expiration of 90 days after the
date of revocation without a reinstatement thereof, (iv) upon the distribution
of Junior Subordinated Debentures to the holders of the Trust Securities, (v)
upon the entry of a decree of a judicial dissolution of Fleet or Fleet Capital,
or (vi) upon the redemption of all the Trust Securities.
DECLARATION EVENTS OF DEFAULT
An event of default under the Indenture (an "Indenture Event of Default")
constitutes an event of default under the Declaration with respect to the Trust
Securities (a "Declaration Event of Default"); provided, that pursuant to the
Declaration, the holder of the Common Securities will be deemed to have waived
any Declaration Event of Default with respect to the Common Securities until all
Declaration Events of Default with respect to the Preferred Securities have been
cured, waived or otherwise eliminated. Until such Declaration Events of Default
with respect to the Preferred Securities have been so cured, waived or otherwise
eliminated, the Institutional Trustee will be deemed to be acting solely on
behalf of the holders of the Preferred Securities and only the holders of the
Preferred Securities will have the right to direct the Institutional Trustee
with respect to certain matters under the Declaration, and therefore the
Indenture. If a Declaration Event of Default with respect to the Preferred
Securities is waived by holders of Preferred Securities, such waiver will also
constitute the waiver of such Declaration Event of Default with respect to the
Common Securities for all purposes under the Declaration, without any further
act, vote or consent of the holders of the Common Securities. If the
Institutional Trustee fails to enforce its rights under the Junior Subordinated
Debentures after a holder of Preferred Securities has made a written request,
such holder of record of Preferred Securities may institute a legal proceeding
against Fleet to enforce the Institutional Trustee's rights under the Junior
Subordinated Debentures without first instituting any legal proceeding against
the Institutional Trustee or any other person or entity. Notwithstanding the
foregoing, if a Declaration Event of Default has occurred and is continuing and
such event is attributable to the failure of Fleet to pay interest or principal
on the Junior Subordinated Debentures on the date such interest or principal is
otherwise payable (or in the case of redemption, the redemption date), then a
holder of Preferred Securities may institute a Direct Action for enforcement of
payment to such holder of the principal of, or interest on, Junior Subordinated
Debentures having a principal amount equal to the aggregate liquidation amount
of the Preferred Securities of such holder on or after the respective due date
specified in the Junior Subordinated Debentures. In connection with such Direct
Action, the rights of Fleet, as holder of the Common Securities, will be
subrogated to the rights of such holder of Preferred Securities under the
Declaration to the extent of any payment made by Fleet to such holder of
Preferred Securities in such Direct Action. The holders of Preferred Securities
will not be able to exercise directly any other remedy available to the holders
of the Junior Subordinated Debentures.
Upon the occurrence of a Declaration Event of Default, the Institutional
Trustee as the sole holder of the Junior Subordinated Debentures will have the
right under the Indenture to declare the principal of and interest on the Junior
Subordinated Debentures to be immediately due and payable. Fleet and Fleet
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<PAGE>
Capital are each required to file annually with the Institutional Trustee an
officer's certificate as to its compliance with all conditions and covenants
under the Declaration.
VOTING RIGHTS
Except as described herein, under the Business Trust Act, the Trust
Indenture Act and under "Description of the Preferred Securities
Guarantees--Modification of the Preferred Securities Guarantees; Assignment" in
the accompanying Prospectus, and as otherwise required by law and the
Declaration, the holders of the Preferred Securities will have no voting rights.
Subject to the requirement of the Institutional Trustee obtaining a tax
opinion in certain circumstances set forth in the last sentence of this
paragraph, the holders of a majority in aggregate liquidation amount of the
Preferred Securities, voting separately as a class, have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Institutional Trustee, or to direct the exercise of any trust or power
conferred upon the Institutional Trustee under the Declaration, including the
right to direct the Institutional Trustee, as holder of the Junior Subordinated
Debentures, to (i) exercise the remedies available to it under the Indenture as
a holder of the Junior Subordinated Debentures, (ii) waive any past Indenture
Event of Default that is waivable under the Indenture, (iii) exercise any right
to rescind or annul a declaration that the principal of all the Junior
Subordinated Debentures shall be due and payable or (iv) consent to any
amendment, modification or termination of the Indenture or the Junior
Subordinated 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 holders of more than a majority in principal amount of the Junior
Subordinated Debentures (a "Super-Majority") affected thereby, only the holders
of at least such Super-Majority in aggregate liquidation amount of the Preferred
Securities may direct the Institutional Trustee to give such consent or take
such action; and provided, further, that where a consent or action under the
Indenture is only effective against each holder of Junior Subordinated
Debentures who has consented thereto, such consent or action will only be
effective against a holder of Preferred Securities who directs the Institutional
Trustee to give such consent or take such action. If the Institutional Trustee
fails to enforce its rights under the Junior Subordinated Debentures after a
holder of record of Preferred Securities has made a written request, such holder
of record of Preferred Securities may institute a legal proceeding directly
against Fleet to enforce the Institutional Trustee's rights under the Junior
Subordinated Debentures without first instituting any legal proceeding against
the Institutional Trustee or any other person or entity. Notwithstanding the
foregoing, if a Declaration Event of Default has occurred and is continuing and
such event is attributable to the failure of Fleet to pay interest or principal
on the Junior Subordinated Debentures on the date such interest or principal is
otherwise payable (or in the case of redemption, on the redemption date), then a
holder of Preferred Securities may institute a Direct Action for enforcement of
payment to such holder of the principal of, or interest on, the Junior
Subordinated Debentures having a principal amount equal to the aggregate
liquidation amount of the Preferred Securities of such holder on or after the
respective due date specified in the Junior Subordinated Debentures. The
Institutional Trustee shall notify all holders of the Preferred Securities of
any notice of default received from the Debt Trustee with respect to the Junior
Subordinated Debentures. Such notice shall state that such Indenture Event of
Default also constitutes a Declaration Event of Default. 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, Fleet Capital will not fail to be
classified as a grantor trust for United States federal income tax purposes.
In the event the consent of the Institutional Trustee, as the holder of the
Junior Subordinated Debentures, is required under the Indenture with respect to
any amendment, modification or termination of the Indenture, the Institutional
Trustee shall request the direction of the holders of the Trust 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 Trust Securities voting together as a single class;
provided, however, that where a consent under the Indenture
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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 Trust Securities which the relevant
Super-Majority represents of the aggregate principal amount of the Junior
Subordinated Debentures outstanding; and provided, further, that where a consent
or action under the Indenture is only effective against each holder of Junior
Subordinated Debentures who has consented thereto, such consent or action will
only be effective against a holder of Preferred Securities who directs the
Institutional Trustee to give such consent or take such action. The
Institutional Trustee shall not take any such action in accordance with the
directions of the holders of the Trust Securities unless the Institutional
Trustee has obtained an opinion of a nationally recognized tax counsel
experienced in such matters to the effect that for the purposes of United States
federal income tax Fleet Capital will not be classified as other than a grantor
trust.
A waiver of an Indenture Event of Default will constitute a waiver of the
corresponding Declaration Event of Default.
Any required approval or direction of holders of Preferred Securities may be
given at a separate meeting of holders of Preferred Securities convened for such
purpose, at a meeting of all of the holders of Trust Securities or pursuant to
written consent. The Regular Trustees will cause a notice of any meeting at
which holders of Preferred Securities are entitled to vote, or of any matter
upon which action by written consent of such holders is to be taken, to be
mailed to each holder of record of Preferred Securities. Each such notice will
include a statement setting forth the following information: (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 Preferred Securities will be required for Fleet Capital to
redeem and cancel Preferred Securities or distribute Junior Subordinated
Debentures in accordance with the Declaration.
Notwithstanding that holders of Preferred Securities are entitled to vote or
consent under any of the circumstances described above, any of the Preferred
Securities that are owned at such time by Fleet or any entity directly or
indirectly controlling or controlled by, or under direct or indirect common
control with, Fleet, shall not be entitled to vote or consent and shall, for
purposes of such vote or consent, be treated as if such Preferred Securities
were not outstanding.
The procedures by which holders of Preferred Securities may exercise their
voting rights are described below. See "Book-Entry Only Issuance--The Depository
Trust Company" below.
Holders of the Preferred Securities will have no rights to appoint or remove
the Regular Trustees, who may be appointed, removed or replaced solely by Fleet
as the holder of all of the Common Securities.
MODIFICATION OF THE DECLARATION
The Declaration may be modified and amended if approved by the Regular
Trustees (and in certain circumstances the Institutional Trustee), provided
that, if any proposed amendment 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 Trust Securities, whether by way of
amendment to the Declaration or otherwise or (ii) the dissolution, winding-up or
termination of Fleet Capital other than pursuant to the terms of the
Declaration, then the holders of the Trust Securities voting together as a
single 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 at
least a majority in liquidation amount of the Trust Securities affected thereby;
provided, that, if any amendment or proposal referred to in clause (i) above
would adversely affect only the Preferred Securities or 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 Trust Securities.
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Notwithstanding the foregoing, no amendment or modification may be made to
the Declaration if such amendment or modification would (i) cause Fleet Capital
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 Fleet Capital to be deemed an
"investment company" which is required to be registered under the Investment
Company Act of 1940, as amended (the "1940 Act").
MERGERS, CONSOLIDATIONS OR AMALGAMATIONS
Fleet Capital 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 below. Fleet Capital may, with the consent of the Regular Trustees and
without the consent of the holders of the Trust Securities, 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 Fleet Capital is not the survivor, such
successor entity either (a) expressly assumes all of the obligations of Fleet
Capital under the Trust Securities or (b) substitutes for the Trust Securities
other securities having substantially the same terms as the Trust Securities
(the "Successor Securities"), so long as the Successor Securities rank the same
as the Trust Securities rank with respect to distributions and payments upon
liquidation, redemption and otherwise, (ii) Fleet expressly acknowledges a
trustee of such successor entity possessing the same powers and duties as the
Institutional Trustee as the holder of the Junior Subordinated Debentures, (iii)
the Preferred Securities or any Successor Securities are listed, or any
Successor Securities will be listed upon notification of issuance, on any
national securities exchange or with another organization on which the Preferred
Securities are then listed or quoted, (iv) such merger, consolidation,
amalgamation or replacement does not cause the Preferred Securities (including
any Successor Securities) to be downgraded by any nationally recognized
statistical rating organization, (v) such merger, consolidation, amalgamation or
replacement does not adversely affect the rights, preferences and privileges of
the holders of the Trust Securities (including any Successor Securities) in any
material respect (other than with respect to any dilution of the holders'
interest in the new entity), (vi) such successor entity has a purpose identical
to that of Fleet Capital, (vii) prior to such merger, consolidation,
amalgamation or replacement, Fleet has received an opinion of a nationally
recognized independent counsel to Fleet Capital experienced in such matters to
the effect that, (a) such merger, consolidation, amalgamation or replacement
does not adversely affect the rights, preferences and privileges of the holders
of the Trust Securities (including any Successor Securities) in any material
respect (other than with respect to any dilution of the holders' interest in the
new entity), and (b) following such merger, consolidation, amalgamation or
replacement, neither Fleet Capital nor such successor entity will be required to
register as an investment company under the 1940 Act and (viii) Fleet guarantees
the obligations of such successor entity under the Successor Securities at least
to the extent provided by the Guarantee and the Common Securities Guarantee (as
described in the accompanying Prospectus). Notwithstanding the foregoing, Fleet
Capital shall not, except with the consent of holders of 100 percent in
liquidation amount of the Trust 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 Fleet Capital or
the Successor Entity to be classified as other than a grantor trust for United
States federal income tax purposes.
BOOK-ENTRY ONLY ISSUANCE--THE DEPOSITORY TRUST COMPANY
The Depository Trust Company ("DTC") will act as securities depositary (the
"Depositary") for the Preferred Securities. The Preferred Securities will be
issued only as fully-registered securities registered in the name of Cede & Co.
(DTC's nominee). One or more fully-registered global Preferred Securities
certificates (each a "Global Certificate"), representing the total aggregate
number of Preferred Securities, will be issued and will be deposited with DTC.
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DTC is a limited-purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"). DTC holds securities that its
participants ("Participants") deposit with DTC. DTC also facilitates the
settlement among Participants of securities transactions, such as transfers and
pledges, in deposited securities through electronic computerized book-entry
changes in Participants' accounts, thereby eliminating the need for physical
movement of securities certificates. Participants in DTC include securities
brokers and dealers, banks, trust companies, clearing corporations and certain
other organizations. DTC is owned by a number of its Participants and by the
NYSE, the American Stock Exchange, Inc., and the National Association of
Securities Dealers, Inc. Access to the DTC system is also available to others,
such as securities brokers and dealers, banks and trust companies that clear
transactions through, or maintain a direct or indirect custodial relationship
with, a Direct Participant either directly or indirectly ("Indirect
Participants"). The rules applicable to DTC and its Participants are on file
with the Commission.
Purchases of Preferred Securities within the DTC system must be made by or
through Participants, which will receive a credit for the Preferred Securities
on DTC's records. The ownership interest of each actual purchaser of each
Preferred Security ("Beneficial Owner") is in turn to be recorded on the
Participants' and Indirect Participants' records. Beneficial Owners will not
receive written confirmation from DTC of their purchases, but Beneficial Owners
are expected to receive written confirmations providing details of the
transactions, as well as periodic statements of their holdings, from the Direct
or Indirect Participants through which the Beneficial Owners purchased Preferred
Securities. Transfers of ownership interests in the Preferred Securities are to
be accomplished by entries made on the books of Participants acting on behalf of
Beneficial Owners. Beneficial Owners will not receive certificates representing
their ownership interests in the Preferred Securities, except in the event that
use of the book-entry system for the Preferred Securities is discontinued.
DTC has no knowledge of the actual Beneficial Owners of the Preferred
Securities. DTC's records reflect only the identity of the Direct Participants
to whose accounts such Preferred Securities are credited, which may or may not
be the Beneficial Owners. The Participants and Indirect Participants will remain
responsible for keeping account of their holdings on behalf of their customers.
So long as DTC, or its nominee, is the registered owner or holder of a
Global Certificate, DTC or such nominee, as the case may be, will be considered
the sole owner or holder of the Preferred Securities represented thereby for all
purposes under the Declaration and the Preferred Securities. No beneficial owner
of an interest in a Global Certificate will be able to transfer that interest
except in accordance with DTC's applicable procedures, in addition to those
provided for under the Declaration.
DTC has advised Fleet that it will take any action permitted to be taken by
a holder of Preferred Securities (including the presentation of Preferred
Securities for exchange as described below) only at the direction of one or more
Participants to whose account the DTC interests in the Global Certificates are
credited and only in respect of such portion of the aggregate liquidation amount
of Preferred Securities as to which such Participant or Participants has or have
given such direction. However, if there is a Declaration Event of Default under
the Preferred Securities, DTC will exchange the Global Certificates for
Certificated Securities, which it will distribute to its Participants and which
will be legended to give notice of such Declaration Event of Default.
Conveyance of notices and other communications by DTC to Participants, by
Participants to Indirect Participants, and by Participants and Indirect
Participants to Beneficial Owners will be governed by arrangements among them,
subject to any statutory or regulatory requirements as may be in effect from
time to time.
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Redemption notices in respect of the Preferred Securities held in book-entry
form will be sent to Cede & Co. If less than all of the Preferred Securities are
being redeemed, DTC will determine the amount of the interest of each
Participant to be redeemed in accordance with its procedures.
Although voting with respect to the Preferred Securities is limited, in
those cases where a vote is required, neither DTC nor Cede & Co. will itself
consent or vote with respect to Preferred Securities. Under its usual
procedures, DTC would mail an Omnibus Proxy to the Trust as soon as possible
after the record date. The Omnibus Proxy assigns Cede & Co.'s consenting or
voting rights to those Participants to whose accounts the Preferred Securities
are credited on the record date (identified in a listing attached to the Omnibus
Proxy).
Distributions on the Preferred Securities held in book-entry form will be
made to DTC in immediately available funds. DTC's practice is to credit
Participants' accounts on the relevant payment date in accordance with their
respective holdings shown on DTC's records unless DTC has reason to believe that
it will not receive payments on such payment date. Payments by Participants and
Indirect Participants to Beneficial Owners will be governed by standing
instructions and customary practices and will be the responsibility of such
Participants and Indirect Participants and not of DTC, Fleet Capital or Fleet,
subject to any statutory or regulatory requirements as may be in effect from
time to time. Payment of distributions to DTC is the responsibility of Fleet
Capital, disbursement of such payments to Participants is the responsibility of
DTC, and disbursement of such payments to the Beneficial Owners is the
responsibility of Participants and Indirect Participants.
Except as provided herein, a Beneficial Owner of an interest in a Global
Certificate will not be entitled to receive physical delivery of Preferred
Securities. Accordingly, each Beneficial Owner must rely on the procedures of
DTC to exercise any rights under the Preferred Securities.
Although DTC has agreed to the foregoing procedures in order to facilitate
transfers of interests in the Global Certificates among Participants of DTC, DTC
is under no obligation to perform or continue to perform such procedures, and
such procedures may be discontinued at any time. Neither Fleet, Fleet Capital
nor the Trustees will have any responsibility for the performance by DTC or its
Participants or Indirect Participants under the rules and procedures governing
DTC. DTC may discontinue providing its services as securities depositary with
respect to the Preferred Securities at any time by giving notice to Fleet
Capital. Under such circumstances, in the event that a successor securities
depositary is not obtained, Preferred Security certificates are required to be
printed and delivered. Additionally, Fleet Capital (with the consent of Fleet)
may decide to discontinue use of the system of book-entry transfers through DTC
(or a successor depositary). In that event, certificates for the Preferred
Securities will be printed and delivered. In each of the above circumstances,
Fleet will appoint a paying agent with respect to the Preferred Securities.
The laws of some jurisdictions require that certain purchasers of securities
take physical delivery of securities in definitive form. Such laws may impair
the ability to transfer beneficial interests in the global Preferred Securities
as represented by a Global Certificate.
PAYMENT
Payments in respect of the Preferred Securities represented by the Global
Certificates shall be made to DTC, which shall credit the relevant accounts at
DTC on the applicable distribution dates or, in the case of certificated
securities, such payments shall be made by check mailed to the address of the
holder entitled thereto as such address shall appear on the records of Fleet's
registrar and transfer agent.
REGISTRAR, TRANSFER AGENT AND PAYING AGENT
First Chicago Trust Company of New York will act as registrar, transfer
agent and paying agent (the "Paying Agent") for the Preferred Securities. The
Paying Agent shall be permitted to resign as Paying
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Agent upon 30 days' written notice to the Regular Trustees. In the event that
First Chicago Trust Company of New York shall no longer be the Paying Agent, the
Regular Trustees shall appoint a successor bank or trust company to act as
Paying Agent.
Registration of transfers of Preferred Securities will be effected without
charge by or on behalf of Fleet Capital, but upon payment (with the giving of
such indemnity as Fleet Capital or Fleet may require) in respect of any tax or
other government charges which may be imposed in relation to it.
Fleet Capital will not be required to register or cause to be registered the
transfer of Preferred Securities after such Preferred Securities have been
called for redemption.
INFORMATION CONCERNING THE INSTITUTIONAL TRUSTEE
The Institutional Trustee, prior to the occurrence of a default with respect
to the Trust Securities and after the curing of any defaults that may have
occurred, undertakes to perform only such duties as are specifically set forth
in the Declaration and, after default, shall exercise the same degree of care as
a prudent individual would exercise in the conduct of his or her own affairs.
Subject to such provisions, the Institutional Trustee is under no obligation to
exercise any of the powers vested in it by the Declaration at the request of any
holder of Preferred Securities, unless offered reasonable indemnity by such
holder against the costs, expenses and liabilities which might be incurred
thereby. The holders of Preferred Securities will not be required to offer such
indemnity in the event such holders, by exercising their voting rights, direct
the Institutional Trustee to take any action it is empowered to take under the
Declaration following a Declaration Event of Default. The Institutional Trustee
also serves as trustee under the Guarantee and the Indenture. Fleet and certain
of its subsidiaries conduct certain banking transactions with the Institutional
Trustee in the ordinary course of their business.
GOVERNING LAW
The Declaration and the Preferred Securities will be governed by, and
construed in accordance with, the internal laws of the State of Delaware.
MISCELLANEOUS
The Regular Trustees are authorized and directed to operate Fleet Capital in
such a way so that Fleet Capital will not be required to register as an
"investment company" under the 1940 Act or characterized as other than a grantor
trust for United States federal income tax purposes. Fleet is authorized and
directed to conduct its affairs so that the Junior Subordinated Debentures will
be treated as indebtedness of Fleet for United States federal income tax
purposes. In this connection, Fleet and the Regular Trustees are authorized to
take any action, not inconsistent with applicable law, the certificate of trust
of Fleet Capital or the articles of incorporation of Fleet, that each of Fleet
and the Regular Trustees determine in their discretion to be necessary or
desirable to achieve such end, as long as such action does not adversely affect
the interests of the holders of the Preferred Securities or vary the terms
thereof.
Holders of the Preferred Securities have no preemptive rights.
DESCRIPTION OF THE GUARANTEE
Pursuant to the Guarantee, Fleet will agree, to the extent set forth
therein, to pay in full to the holders of the Preferred Securities issued by
Fleet Capital, the Guarantee Payments (as defined in the accompanying
Prospectus) (except to the extent paid by Fleet Capital), as and when due,
regardless of any defense, right of setoff or counterclaim which Fleet Capital
may have or assert. Fleet's obligation to make a Guarantee Payment may be
satisfied by direct payment of the required amounts by Fleet to the holders of
Preferred Securities or by causing Fleet Capital to pay such amounts to such
holders. The Guarantee, when taken together with Fleet's obligations under the
Junior Subordinated Debentures and the Indenture
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and its obligations under the Declaration, including its obligations to pay
costs, expenses, debts and liabilities of Fleet Capital (other than with respect
to the Trust Securities) provides a full and unconditional guarantee on a
subordinated basis by Fleet of payments due on the Preferred Securities. The
Guarantee will be qualified as an indenture under the Trust Indenture Act. The
First National Bank of Chicago will act as Guarantee Trustee. The terms of the
Guarantee will be those set forth in such Guarantee and those made part of such
Guarantee by the Trust Indenture Act. The Guarantee will be held by the
Guarantee Trustee for the benefit of the holders of the Preferred Securities. A
summary description of the Guarantee appears in the accompanying Prospectus
under the caption "Description of the Preferred Securities Guarantees."
DESCRIPTION OF THE JUNIOR SUBORDINATED DEBENTURES
Set forth below is a description of the specific terms of the Junior
Subordinated Debentures in which Fleet Capital will invest the proceeds from the
issuance and sale of the Trust Securities. This description supplements the
description of the general terms and provisions of the Junior Subordinated
Debentures set forth in the accompanying Prospectus under the caption
"Description of the Junior Subordinated Debentures." While the following
description does not purport to be complete and is subject to, and is qualified
in its entirety by reference to, the description in the accompanying Prospectus
and the Indenture, dated as of , 1998 (the "Base Indenture"), between
Fleet and The First National Bank of Chicago as Trustee (the "Debt Trustee"), as
supplemented by a First Supplemental Indenture, dated as of , 1998 (the
Base Indenture, as so supplemented, is hereinafter referred to as the
"Indenture"), the forms of which are filed as Exhibits to the Registration
Statement of which this Prospectus Supplement and the accompanying Prospectus
form a part, all material terms of the Junior Subordinated Debentures are set
forth herein and in the accompanying Prospectus. Certain capitalized terms used
herein are defined in the Indenture.
GENERAL
The Junior Subordinated Debentures will be issued as unsecured indebtedness
of Fleet under the Indenture. The Junior Subordinated Debentures will be limited
in aggregate principal amount to $ , such amount being the sum of the
aggregate stated liquidation value of the Trust Securities.
The Junior Subordinated Debentures are not subject to any sinking fund
provision. The entire principal amount of the Junior Subordinated Debentures
will mature and become due and payable, together with any accrued and unpaid
interest thereon including Compound Interest (as defined herein) and Additional
Interest (as defined herein), if any, , 2028.
If Junior Subordinated Debentures are distributed to holders of Preferred
Securities in liquidation of such holders' interests in Fleet Capital, such
Junior Subordinated Debentures will initially be issued as a Global Security (as
defined herein). As described herein, Junior Subordinated Debentures may be
issued in certificated form in exchange for a Global Security. See "Book-Entry
and Settlement" below. In the event that Junior Subordinated Debentures are
issued in certificated form, such Junior Subordinated Debentures will be in
denominations of $ and integral multiples thereof and may be transferred or
exchanged at the offices described below. Payments on Junior Subordinated
Debentures issued as a Global Security will be made to DTC, a successor
depositary or, in the event that no depositary is used, to a Paying Agent for
the Junior Subordinated Debentures. In the event Junior Subordinated Debentures
are issued in certificated form, principal and interest will be payable, the
transfer of the Junior Subordinated Debentures will be registrable and Junior
Subordinated Debentures will be exchangeable for Junior Subordinated Debentures
of other denominations of a like aggregate principal amount, at the corporate
trust office of the Institutional Trustee in New York, New York; provided, that
payment of interest may be made at the option of Fleet by check mailed to the
address of the holder entitled thereto or by wire transfer to an account
appropriately designated by the holder entitled thereto. Notwithstanding the
foregoing, so long as the holder of any Junior Subordinated Debentures is the
Institutional Trustee, the payment of principal
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and interest on the Junior Subordinated Debentures held by the Institutional
Trustee will be made at such place and to such account as may be designated by
the Institutional Trustee.
The Indenture does not contain provisions that afford holders of the Junior
Subordinated Debentures protection in the event of a highly leveraged
transaction or other similar transaction involving Fleet that may adversely
affect such holders.
SUBORDINATION
The Indenture provides that the Junior Subordinated Debentures are
subordinated and junior in right of payment to all present and future Senior
Indebtedness and Other Financial Obligations of Fleet (each as defined herein)
and rank pari passu with and are equivalent to creditor obligations of those
holding general unsecured claims not entitled to statutory priority under the
United States Bankruptcy Code or otherwise. In addition, no payment may be made
of the principal of, premium, if any, or interest on the Junior Subordinated
Debentures, or in respect of any redemption, retirement, purchase or other
acquisition of any of the Junior Subordinated Debentures, 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 Junior Subordinated Debentures
or any redemption, retirement, purchase or other acquisition of any of the
Junior Subordinated Debentures, permitting the holders of such Senior
Indebtedness (or a trustee on behalf of the holders thereof) to accelerate the
maturity thereof. Upon any distribution of assets of Fleet to creditors upon any
dissolution, winding-up, liquidation or reorganization, whether voluntary or
involuntary, or in bankruptcy, insolvency, receivership or other proceedings,
the payment of the principal of, and interest on, the Junior Subordinated
Debentures will, to the extent set forth in the Indenture, be subordinated in
right of payment to the prior payment in full of all Senior Indebtedness and
Other Financial Obligations of Fleet. Upon any payment or distribution of assets
of Fleet to creditors upon any liquidation, dissolution, winding-up,
reorganization, assignment for the benefit of creditors, marshalling of assets
or any bankruptcy, insolvency or similar proceedings of Fleet, the holders of
all Senior Indebtedness and the holders of Other Financial Obligations will
first be entitled to receive payment in full of all amounts due or to become due
thereon before the holders of the Junior Subordinated Debentures will be
entitled to receive and retain any payment in respect of the principal of, or
interest on, the Junior Subordinated Debentures.
The term "Senior Indebtedness" means, with respect to Fleet, (i) the
principal, premium, if any, and interest in respect of (a) indebtedness of Fleet
for money borrowed and (b) indebtedness evidenced by securities, debentures,
bonds or other similar instruments issued by Fleet, (ii) all capital lease
obligations of Fleet, (iii) all obligations of Fleet issued or assumed as the
deferred purchased price of property, all conditional sale obligations of Fleet
and all obligations of Fleet under any title retention agreement (but excluding
trade accounts payable arising in the ordinary course of business), (iv) all
obligations of Fleet 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 Fleet 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 Fleet (whether or not such obligation is assumed by Fleet),
except that Senior Indebtedness shall not include (i) any such indebtedness that
is by its terms subordinated to or ranks pari passu with the Junior Subordinated
Debentures and (ii) any indebtedness between and among Fleet or its affiliates,
including all other debt securities and guarantees in respect to those debt
securities, issued to (a) any other Fleet Capital Trust (as defined in the
accompanying Prospectus) or a trustee of such Fleet Capital Trust and (b) any
other trust, or a trustee of such trust, partnership or other entity affiliated
with Fleet that is a financing vehicle of Fleet (a "financing entity") in
connection with the issuance by such
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financing entity of preferred securities or other securities that rank pari
passu with, or junior to, the Preferred Securities.
The term "Other Financial Obligations" means all obligations of Fleet 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
Junior Subordinated Debentures.
Upon satisfaction of all claims of all Senior Indebtedness and Other
Financial Obligations then outstanding, the rights of the holders of the Junior
Subordinated Debentures will be subrogated to the rights of the holders of
Senior Indebtedness and Other Financial Obligations of Fleet to receive payments
or distributions applicable to Senior Indebtedness and Other Financial
Obligations until all amounts owing on the Junior Subordinated Debentures are
paid in full. Such Senior Indebtedness and Other Financial Obligations shall
continue to be Senior Indebtedness and Other Financial Obligations and be
entitled to the benefits of the subordination provisions irrespective of any
amendment, modification or waiver of any term of such Senior Indebtedness or
Other Financial Obligations.
The Indenture does not limit the aggregate amount of Senior Indebtedness or
Other Financial Obligations that may be issued or entered into by Fleet. As of
June 30, 1998, Senior Indebtedness and Other Financial Obligations of Fleet
aggregated approximately $4.6 billion (holding company only). 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.
OPTIONAL PREPAYMENT
The Junior Subordinated Debentures will be prepayable prior to the Stated
Maturity at the option of Fleet (i) in whole or in part, from time to time, on
or after , 2003 or (ii) at any time prior to , 2003, in whole
but not in part, upon the occurrence and continuation of a Special Event (as
defined herein), in either case, upon not less than 30 nor more than 60 days'
notice, at a prepayment price (the "Prepayment Price") equal to 100% of the
principal amount thereof, plus accrued interest thereon to the date of
prepayment. Such prepayment may require prior approval of the Federal Reserve
Board if such approval is then required under applicable law, rules, guidelines
or policies.
Following such prepayment, Trust Securities having an aggregate liquidation
amount equal to the aggregate principal amount of the Junior Subordinated
Debentures so repaid shall be redeemed by Fleet Capital at a redemption price
equal to the Prepayment Price (the "Redemption Price") plus accrued and unpaid
distributions through the redemption date.
A "Special Event" means a Tax Event or a Regulatory Capital Event (each as
defined herein), as the case may be.
A "Tax Event" means that the Regular Trustees shall have received an opinion
of 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
original issuance of the Junior Subordinated Debentures, there is more than an
insubstantial risk that (i) Fleet Capital 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 Junior Subordinated Debentures, (ii)
interest payable by Fleet on the Junior Subordinated Debentures is not, or
within 90 days of the date of such opinion will not be, deductible by Fleet, in
whole or in part, for United States federal income tax purposes, or (iii) Fleet
Capital 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.
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A "Regulatory Capital Event" means that Fleet 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 amendment or change is effective or such pronouncement or decision
is announced on or after the date of original issuance of the Preferred
Securities, the Preferred Securities do not constitute, or within 90 days of the
date thereof, will not constitute, Tier 1 capital (or its then equivalent);
provided, however, that the distribution of the Junior Subordinated Debentures
in connection with the liquidation of Fleet Capital by Fleet and the treatment
thereafter of the Junior Subordinated Debentures as other than Tier 1 capital
shall not in and of itself constitute a Regulatory Capital Event unless such
liquidation shall have occurred in connection with a Tax Event.
INTEREST
The Junior Subordinated Debentures shall bear interest at the rate of %
per annum from the original date of issuance, payable quarterly in arrears on
March 31, June 30, September 30 and December 31 of each year (each an "Interest
Payment Date"), commencing , 1998, to the person in whose name such
Junior Subordinated Debentures is registered on the relevant record date. The
record dates for the Junior Subordinated Debentures will be, for so long as the
Junior Subordinated Debentures remain in book-entry form, one Business Day prior
to the relevant Interest Payment Date and, in the event the Junior Subordinated
Debentures are not in book-entry form, the 15th day of the month in which the
relevant Interest Payment Date occurs.
The amount of interest payable for any period will be computed on the basis
of a 360-day year of twelve 30-day months. The amount of interest payable for
any period shorter than a full quarterly period for which interest is computed
will be computed on the basis of the actual number of days elapsed per 30-day
month. In the event that any date on which interest is payable on the Junior
Subordinated Debentures is not a Business Day, then payment of the 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, then
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.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
So long as Fleet shall not be in default in the payment of interest on the
Junior Subordinated Debentures, Fleet shall have the right at any time, and from
time to time, during the term of the Junior Subordinated Debentures to defer
payments of interest by extending the interest payment period for a period not
exceeding 20 consecutive quarters or extending beyond the Stated Maturity, at
the end of which Extension Period, Fleet shall pay all interest then accrued and
unpaid (including any Additional Interest, as defined herein) together with
interest thereon compounded quarterly at the rate specified for the Junior
Subordinated Debentures to the extent permitted by applicable law ("Compound
Interest"); provided, that during any such Extension Period, (i) Fleet 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 Fleet
Common Stock in connection with the satisfaction by Fleet of its obligations
under any employee benefit plans or any other contractual obligation of Fleet
(other than a contractual obligation ranking pari passu with or junior to the
Junior Subordinated Debentures), (b) as a result of a reclassification of Fleet
capital stock or the exchange or conversion of one class or series of Fleet's
capital stock for another class or series of Fleet capital stock or (c) the
purchase of fractional interests in shares of Fleet's capital stock pursuant to
the conversion or exchange provisions of such Fleet capital stock or the
security being converted or exchanged), (ii) Fleet shall not make any payment of
interest, principal or premium, if any, on or repay, repurchase or redeem
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any debt securities issued by Fleet that rank pari passu with or junior to the
Junior Subordinated Debentures, and (iii) Fleet shall not make any guarantee
payments with respect to the foregoing (other than pursuant to the Guarantee).
Prior to the termination of any such Extension Period, Fleet may further defer
payments of interest by extending the interest payment period; provided,
however, that, such Extension Period, including all such previous and further
extensions, may not exceed 20 consecutive quarters or extend beyond the Stated
Maturity of the Junior Subordinated Debentures. Upon the termination of any
Extension Period and the payment of all amounts then due, Fleet may commence a
new Extension Period, subject to the terms set forth in this section. No
interest during an Extension Period, except at the end thereof, shall be due and
payable. Fleet has no present intention of exercising its right to defer
payments of interest by extending the interest payment period on the Junior
Subordinated Debentures. If the Institutional Trustee shall be the sole holder
of the Junior Subordinated Debentures, Fleet shall give the Regular Trustees,
the Institutional Trustee and the Debt Trustee notice of its selection of such
Extension Period one Business Day prior to the earlier of (i) the date
distributions on the Preferred Securities are payable or (ii) if the Junior
Subordinated Debentures are then listed, the date the Regular Trustees are
required to give notice to the NYSE (or other applicable self-regulatory
organization) or to holders of the Preferred Securities of the record date or
the date such distribution is payable. The Institutional Trustee shall give
notice of Fleet's selection of such Extension Period to the holders of the
Preferred Securities. If the Institutional Trustee shall not be the sole holder
of the Junior Subordinated Debentures, Fleet shall give the holders of the
Junior Subordinated Debentures notice of its selection of such Extension Period
at least ten Business Days prior to the earlier of (i) the Interest Payment Date
or (ii) if the Junior Subordinated Debentures are then listed, the date upon
which Fleet is required to give notice to the NYSE (or other applicable
self-regulatory organization) or to holders of the Junior Subordinated
Debentures of the record or payment date of such related interest payment.
ADDITIONAL INTEREST
If, at any time while the Institutional Trustee is the holder of any Junior
Subordinated Debentures, Fleet Capital or the Institutional Trustee shall be
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, Fleet will pay as additional
interest ("Additional Interest") on the Junior Subordinated Debentures held by
the Institutional Trustee, such additional amounts as shall be required so that
the net amounts received and retained by Fleet Capital and by the Institutional
Trustee after paying any such taxes, duties, assessments or other governmental
charges will be equal to the amounts Fleet Capital and the Institutional Trustee
would have received had no such taxes, duties, assessments or other governmental
charges been imposed.
INDENTURE EVENTS OF DEFAULT
If any Indenture Event of Default shall occur and be continuing, the
Institutional Trustee, as the holder of the Junior Subordinated Debentures, will
have the right to declare the principal of and the interest on the Junior
Subordinated Debentures (including any Compound Interest and Additional
Interest, if any) and any other amounts payable under the Indenture to be
forthwith due and payable and to enforce its other rights as a creditor with
respect to the Junior Subordinated Debentures. See "Description of the Junior
Subordinated Debentures--Events of Default, Waiver and Notice" in the
accompanying Prospectus for a description of Indenture Events of Default. An
Indenture Event of Default also constitutes a Declaration Event of Default. The
holders of Preferred Securities in certain circumstances have the right to
direct the Institutional Trustee to exercise its rights as the holder of the
Junior Subordinated Debentures. See "Description of the Preferred Securities--
Declaration Events of Default" and "--Voting Rights." If the Institutional
Trustee fails to enforce its rights under the Junior Subordinated Debentures
after a holder of record of Preferred Securities has made a written request,
such holder of record of Preferred Securities may institute a legal proceeding
directly against Fleet to enforce the Institutional Trustee's rights under the
Junior Subordinated Debentures without first instituting any legal
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proceeding against the Institutional Trustee or any other person or entity.
Notwithstanding the foregoing, if a Declaration Event of Default has occurred
and is continuing and such event is attributable to the failure of Fleet to pay
interest or principal on the Junior Subordinated Debentures on the date such
interest or principal is otherwise payable (or in the case of redemption, on the
redemption date), then a holder of Preferred Securities may institute a Direct
Action for enforcement of payment to such holder of the principal of, or
interest on, the Junior Subordinated Debentures having a principal amount equal
to the aggregate liquidation amount of the Preferred Securities of such holder
on or after the respective due date specified in the Junior Subordinated
Debentures. Notwithstanding any payments made to such holder of Preferred
Securities by Fleet in connection with a Direct Action, Fleet shall remain
obligated to pay the principal of or interest on the Junior Subordinated
Debentures held by Fleet Capital or the Institutional Trustee, and Fleet shall
be subrogated to the rights of the holder of such Preferred Securities with
respect to payments on the Preferred Securities to the extent of any payments
made by Fleet to such holder in any Direct Action. Except as provided in the
preceding sentence and in the Guarantee, the holders of Preferred Securities
will not be able to exercise directly any other remedy available to the holders
of the Junior Subordinated Debentures.
BOOK-ENTRY AND SETTLEMENT
If distributed to holders of Preferred Securities in connection with the
involuntary or voluntary dissolution, winding-up or liquidation of Fleet
Capital, the Junior Subordinated Debentures will be issued in the form of one or
more global certificates (each a "Global Security") registered in the name of
the depositary or its nominee (the "Depositary"). Except under the limited
circumstances described below, Junior Subordinated Debentures represented by the
Global Security will not be exchangeable for, and will not otherwise be issuable
as, Junior Subordinated Debentures in definitive form. The Global Securities
described above may not be transferred except 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 or to a successor Depositary or its nominee.
The laws of some jurisdictions require that certain purchasers of securities
take physical delivery of such securities in definitive form. Such laws may
impair the ability to transfer beneficial interests in such a Global Security.
Except as provided below, owners of beneficial interests in such a Global
Security will not be entitled to receive physical delivery of Junior
Subordinated Debentures in definitive form and will not be considered the
holders (as defined in the Indenture) thereof for any purpose under the
Indenture, and no Global Security representing Junior Subordinated Debentures
shall be exchangeable, except for another Global Security of like denomination
and tenor to be registered in the name of the Depositary or its nominee or to a
successor Depositary or its nominee. Accordingly, each Beneficial Owner must
rely on the procedures of the Depositary or if such person is not a Participant,
on the procedures of the Participant through which such person owns its interest
to exercise any rights of a holder under the Indenture.
THE DEPOSITARY
If Junior Subordinated Debentures are distributed to holders of Preferred
Securities in liquidation of such holders' interests in Fleet Capital, DTC will
act as the Depositary for the Junior Subordinated Debentures. For a description
of DTC and the specific terms of the depositary arrangements, see "Description
of the Preferred Securities--Book-Entry Only Issuance--The Depository Trust
Company." As of the date of this Prospectus Supplement, the description therein
of DTC's book-entry system and DTC's practices as they relate to purchases,
transfers, notices and payments with respect to the Preferred Securities apply
in all material respects to any debt obligations represented by one or more
Global Securities held by Fleet. Fleet may appoint a successor to DTC or any
successor Depositary in the event DTC or such successor Depositary is unable or
unwilling to continue as a depositary for the Global Securities.
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None of Fleet, Fleet Capital, the Institutional Trustee, any paying agent
and any other agent of Fleet, or the Debt Trustee will have any responsibility
or liability for any aspect of the records relating to or payments made on
account of beneficial ownership interests in a Global Security for such Junior
Subordinated Debentures or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
DISCONTINUANCE OF THE DEPOSITARY'S SERVICES
A Global Security shall be exchangeable for Junior Subordinated Debentures
registered in the names of persons other than the Depositary or its nominee only
if (i) the Depositary notifies Fleet that it is unwilling or unable to continue
as a depositary for such Global Security and no successor depositary shall have
been appointed, (ii) the Depositary, at any time, ceases to be a clearing agency
registered under the Exchange Act at which time the Depositary is required to be
so registered to act as such depositary and no successor depositary shall have
been appointed, (iii) Fleet, in its sole discretion, determines that such Global
Security shall be so exchangeable or (iv) there shall have occurred an Indenture
Event of Default with respect to such Junior Subordinated Debentures. Any Global
Security that is exchangeable pursuant to the preceding sentence shall be
exchangeable for Junior Subordinated Debentures registered in such names as the
Depositary shall direct. It is expected that such instructions will be based
upon directions received by the Depositary from its Participants with respect to
ownership of beneficial interests in such Global Security.
GOVERNING LAW
The Indenture and the Junior Subordinated Debentures will be governed by,
and construed in accordance with, the internal laws of the State of New York.
MISCELLANEOUS
The Indenture will provide that Fleet will pay all fees and expenses related
to (i) the offering of the Trust Securities and the Junior Subordinated
Debentures, (ii) the organization, maintenance and dissolution of Fleet Capital,
(iii) the retention of the Regular Trustees and (iv) the enforcement by the
Institutional Trustee of the rights of the holders of the Preferred Securities.
Fleet will have the right at all times to assign any of its respective
rights or obligations under the Indenture to a direct or indirect wholly-owned
subsidiary of Fleet; provided that, in the event of any such assignment, Fleet
will remain liable for all of their respective obligations. Subject to the
foregoing, the Indenture will be binding upon and inure to the benefit of the
parties thereto and their respective successors and assigns. The Indenture
provides that it may not otherwise be assigned by the parties thereto.
EFFECT OF OBLIGATIONS UNDER THE
JUNIOR SUBORDINATED DEBENTURES AND THE GUARANTEE
As set forth in the Declaration, the sole purpose of Fleet Capital is to
issue the Trust Securities evidencing undivided beneficial interests in the
assets of Fleet Capital, and to invest the proceeds from such issuance and sale
in the Junior Subordinated Debentures.
As long as payments of interest and other payments are made when due on the
Junior Subordinated Debentures, such payments will be sufficient to cover
distributions and payments due on the Trust Securities because of the following
factors: (i) the aggregate principal amount of Junior Subordinated Debentures
will be equal to the sum of the aggregate stated liquidation amount of the Trust
Securities; (ii) the interest rate and the interest and other payment dates on
the Junior Subordinated Debentures will match the distribution rate and
distribution and other payment dates for the Preferred Securities; (iii) Fleet
shall pay all, and Fleet Capital shall not be obligated to pay, directly or
indirectly, all costs, expenses, debt, and obligations of Fleet Capital (other
than with respect to the Trust Securities); and
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(iv) the Declaration further provides that the Regular Trustees shall not take
or cause or permit Fleet Capital to, among other things, engage in any activity
that is not consistent with the purposes of Fleet Capital.
Payments of distributions (to the extent funds therefor are available) and
other payments due on the Preferred Securities (to the extent funds therefor are
available) are guaranteed by Fleet as and to the extent set forth under
"Description of the Preferred Securities Guarantees" in the accompanying
Prospectus. If Fleet does not make interest payments on the Junior Subordinated
Debentures purchased by Fleet Capital, Fleet Capital will not have sufficient
funds to pay distributions on the Preferred Securities. The Guarantee does not
apply to any payment of distributions unless and until the Trust has sufficient
funds for the payment of such distributions. The Guarantee covers the payment of
distributions and other payments on the Preferred Securities if and to the
extent that Fleet has made a payment of interest or principal 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 Indenture and its obligations under the Declaration,
including its obligations to pay costs, expenses, debts and liabilities of Fleet
Capital (other than with respect to the Trust Securities), provide a full and
unconditional guarantee of amounts on the Preferred Securities.
If Fleet fails to make interest or other payments on the Junior Subordinated
Debentures when due (taking account of any Extension Period), the Declaration
provides a mechanism whereby the holders of the Preferred Securities, using the
procedures described in "Description of the Preferred Securities-- Book-Entry
Only Issuance--The Depository Trust Company" and "--Voting Rights," may direct
the Institutional Trustee to enforce its rights under the Junior Subordinated
Debentures. If the Institutional Trustee fails to enforce its rights under the
Junior Subordinated Debentures, a holder of Preferred Securities may institute a
legal proceeding against Fleet to enforce the Institutional Trustee's rights
under the Junior Subordinated Debentures without first instituting any legal
proceeding against the Institutional Trustee or any other person or entity.
Notwithstanding the foregoing, if a Declaration Event of Default has occurred
and is continuing and such event is attributable to the failure of Fleet to pay
interest or principal on the Junior Subordinated Debentures on the date such
interest or principal is otherwise payable (or in the case of redemption, on the
redemption date), then a holder of Preferred Securities may institute a Direct
Action for payment on or after the respective due date specified in the Junior
Subordinated Debentures. In connection with such Direct Action, Fleet will be
subrogated to the rights of such holder of Preferred Securities under the
Declaration to the extent of any payment made by Fleet to such holder of
Preferred Securities in such Direct Action. Fleet, under the Guarantee,
acknowledges that the Guarantee Trustee shall enforce the Guarantee on behalf of
the holders of the Preferred Securities. If Fleet fails to make payments under
the Guarantee, any holder of Preferred Securities may institute a Direct Action
against Fleet to enforce the Guarantee Trustee's rights under the Guarantee
without first instituting a legal proceeding against Fleet Capital, the
Guarantee Trustee, or any other person or entity.
UNITED STATES FEDERAL INCOME TAXATION
GENERAL
In the opinion of Edwards & Angell, counsel to Fleet and Fleet Capital ("Tax
Counsel"), the following is a summary of certain of the material United States
federal income tax consequences of the purchase, ownership and disposition of
Preferred Securities held as capital assets by a holder who purchases such
Preferred Securities upon initial issuance. It does not deal with special
classes of holders such as banks, thrifts, real estate investment trusts,
regulated investment companies, insurance companies, dealers in securities or
currencies, tax-exempt investors, United States Alien Holders to the extent that
the ownership of such Preferred Securities are held in connection with the
conduct of a trade or business in the United States or persons that will hold
the Preferred Securities as a position in a "straddle," as part of a "synthetic
security" or "hedge," as part of a "conversion transaction" or other integrated
investment, or as other than a capital asset. This summary also does not address
the tax consequences to persons that have a functional
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currency other than the U.S. Dollar or the tax consequences to shareholders,
partners or beneficiaries of a holder of Preferred Securities. Further, it does
not include any description of any alternative minimum tax consequences or the
tax laws of any state or local government or of any foreign government that may
be applicable to the Preferred Securities. This summary is based on the Internal
Revenue Code of 1986, as amended (the "Code"), Treasury regulations thereunder
and administrative and judicial interpretations thereof, as of the date hereof,
all of which are subject to change, possibly on a retroactive basis.
CLASSIFICATION OF THE JUNIOR SUBORDINATED DEBENTURES
In connection with the issuance of the Junior Subordinated Debentures, Tax
Counsel will render its opinion generally to the effect that under then current
law and assuming full compliance with the terms of the Indenture (and certain
other documents), and based on certain facts and assumptions contained in such
opinion, the Junior Subordinated Debentures will be classified for United States
federal income tax purposes as indebtedness of Fleet.
CLASSIFICATION OF THE TRUST
In connection with the issuance of the Preferred Securities, Tax Counsel
will render its opinion generally to the effect that, under then current law and
assuming full compliance with the terms of the Declaration and the Indenture
(and certain other documents), and based on certain facts and assumptions
contained in such opinion, Fleet Capital will be classified for United States
federal income tax purposes as a grantor trust and not as an association taxable
as a corporation. Accordingly, for United States federal income tax purposes,
each holder of Preferred Securities generally will be considered the owner of an
undivided interest in the Junior Subordinated Debentures, and each holder will
be required to include in its gross income any interest (or OID) accrued with
respect to its allocable share of those Junior Subordinated Debentures.
INTEREST INCOME AND ORIGINAL ISSUE DISCOUNT
Under Treasury regulations (the "Regulations") promulgated under the OID
provisions of the Code, a "remote" contingency that stated interest will not be
timely paid will be ignored in determining whether a debt instrument is issued
with OID. Fleet believes that the likelihood of its exercising its option to
defer payments of interest is "remote" since exercising that option would
prevent Fleet from declaring dividends on any class of its equity securities.
Accordingly, Fleet intends to take the position, based on the advice of Tax
Counsel, that the Junior Subordinated Debentures will not be considered to be
issued with OID and, accordingly, stated interest on the Junior Subordinated
Debentures generally will be taxable to a holder as ordinary income at the time
it is paid or accrued in accordance with such holder's method of accounting.
Under the Regulations, if Fleet were to exercise its option to defer
payments of interest, the Junior Subordinated Debentures would at that time be
treated as issued with OID, and all stated interest on the Junior Subordinated
Debentures would thereafter be treated as OID as long as the Junior Subordinated
Debentures remain outstanding. In such event, all of a holder's taxable interest
income with respect to the Junior Subordinated Debentures would thereafter be
accounted for on an economic accrual basis regardless of such holder's method of
tax accounting, and actual distributions of stated interest would not be
reported as taxable income. Consequently, a holder of Preferred Securities would
be required to include in gross income OID even if Fleet does not make actual
cash payments during an Extension Period.
The Regulations have not yet been addressed in any rulings or other
interpretations by the Internal Revenue Service (the "IRS"), and it is possible
that the IRS could take a position contrary to Tax Counsel's interpretation
herein.
Because income on the Preferred Securities will constitute interest or OID,
corporate holders of the Preferred Securities will not be entitled to a
dividends-received deduction with respect to any income recognized with respect
to the Preferred Securities.
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RECEIPT OF JUNIOR SUBORDINATED DEBENTURES OR CASH UPON LIQUIDATION OF FLEET
CAPITAL
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. Under current law, such a distribution, for United States federal
income tax purposes, would be treated as a nontaxable event to each holder, and
each holder would receive an aggregate tax basis in the Junior Subordinated
Debentures equal to such holder's aggregate tax basis in its Preferred
Securities. A holder's holding period in the Junior Subordinated Debentures so
received in liquidation of Fleet Capital would include the period during which
the Preferred Securities were held by such holder. If, however, Fleet Capital is
characterized for United States federal income tax purposes as an association
taxable as a corporation at the time of its dissolution, the distribution of the
Junior Subordinated Debentures may constitute a taxable event to holders of
Preferred Securities.
Under certain circumstances described herein (see "Description of the
Preferred Securities"), the Junior Subordinated Debentures may be redeemed for
cash and the proceeds of such redemption distributed to holders in redemption of
their Preferred Securities. Under current law, such a redemption would, for
United States federal income tax purposes, constitute a taxable disposition of
the redeemed Preferred Securities, and a holder could recognize gain or loss as
if it sold such redeemed Preferred Securities for cash. See "Sales of Preferred
Securities" below.
SALES OF PREFERRED SECURITIES
A holder that sells Preferred Securities (including a redemption of
Preferred Securities) will recognize gain or loss equal to the difference
between its adjusted tax basis in the Preferred Securities and the amount
realized on the sale of such Preferred Securities (other than with respect to
accrued and unpaid interest which has not yet been included in income, which
will be treated as ordinary income). A holder's adjusted tax basis in the
Preferred Securities generally will be its initial purchase price increased by
OID (if any) previously includable in such holder's gross income to the date of
disposition and decreased by payments received on the Preferred Securities in
respect of OID (if any). Such gain or loss generally will be a capital gain or
loss and generally will be a long-term capital gain or loss if the Preferred
Securities have been held for more than one year.
The Preferred Securities may trade at a price that does not accurately
reflect the value of accrued but unpaid interest with respect to the underlying
Junior Subordinated Debentures. A holder who uses the accrual method of
accounting for tax purposes (and a cash method holder, if the Junior
Subordinated Debentures are deemed to have been issued with OID) and who
disposes of his Preferred Securities between record dates for payments of
distributions thereon will be required to include accrued but unpaid interest on
the Junior Subordinated Debentures through the date of disposition in income as
ordinary income (i.e., interest or, possibly, OID), and to add such amount to
his adjusted tax basis in his pro rata share of the underlying Junior
Subordinated Debentures deemed disposed of. To the extent the selling price is
less than the holder's adjusted tax basis (which will include all accrued but
unpaid interest) a holder will recognize a capital loss. Subject to certain
limited exceptions, capital losses cannot be applied to offset ordinary income
for United States federal income tax purposes.
UNITED STATES ALIEN HOLDERS
For purposes of this discussion, a "United States Alien Holder" is any
corporation, individual, partnership, estate or trust that is not a U.S. Holder
for United States federal income tax purposes.
A "U.S. Holder" is a beneficial owner of Preferred Securities who or which
is (i) a citizen or individual resident (or is treated as a citizen or
individual resident) of the United States for federal income tax purposes, (ii)
a corporation or partnership created or organized in or under the laws of the
United States or any political subdivision thereof, (iii) an estate the income
of which is includible in its gross income for federal income tax purposes
without regard to its source or (iv) a trust if, and only if, (x) a court within
the
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United States is able to exercise primary supervision over the administration of
the trust and (y) one or more United States trustees have the authority to
control all substantial decisions of the trust.
Under present United States federal income tax law: (i) payments by Fleet
Capital or any of its paying agents to any holder of a Preferred Security who or
which is a United States Alien Holder will not be subject to United States
federal withholding tax; provided that, (a) the beneficial owner of the
Preferred Security does not actually or constructively own 10 percent or more of
the total combined voting power of all classes of stock of Fleet entitled to
vote, (b) the beneficial owner of the Preferred Security is not a controlled
foreign corporation that is related to Fleet through stock ownership, and (c)
either (A) the beneficial owner of the Preferred Security certifies to Fleet
Capital or its agent, under penalties of perjury, that it is not a United States
holder and provides its name and address or (B) a securities clearing
organization, bank or other financial institution that holds customers'
securities in the ordinary course of its trade or business (a "Financial
Institution"), and holds the Preferred Security in such capacity, certifies to
Fleet Capital or its agent, under penalties of perjury, that such statement has
been received from the beneficial owner by it or by a Financial Institution
between it and the beneficial owner and furnishes Fleet Capital or its agent
with a copy thereof; and (ii) a United States Alien Holder of a Preferred
Security will not be subject to United States federal withholding tax on any
gain realized upon the sale or other disposition of a Preferred Security.
INFORMATION REPORTING TO HOLDERS
Generally, income on the Preferred Securities will be reported to holders on
Forms 1099, which forms should be mailed to holders of Preferred Securities by
January 31 following each calendar year.
BACKUP WITHHOLDING
Payments made on, and proceeds from the sale of, the Preferred Securities
may be subject to a "backup" withholding tax of 31 percent unless the holder
complies with certain identification requirements. Any withheld amounts will be
allowed as a credit against the holder's United States federal income tax,
provided the required information is provided to the IRS.
RECENT CHANGES TO INFORMATION REPORTING AND BACKUP WITHHOLDING RULES
Recently published final Treasury Regulations (the "Final Withholding
Regulations") make a number of important changes to the procedures for income
tax withholding and certification of eligibility for the portfolio interest
exemption or for a reduced rate of income tax withholding based on an applicable
income tax treaty. In general, the Final Withholding Regulations do not
significantly alter substantive withholding requirements, but unify
certification procedures and clarify reliance standards. The Final Withholding
Regulations are scheduled to be effective for payments made on or after January
1, 2000, subject to certain transition rules. The Final Withholding Regulations
are quite complex. United States Alien Holders are strongly urged to consult
their own tax advisors regarding potential application of the Final Withholding
Regulations to payments on the Preferred Securities in light of their particular
circumstances.
THE UNITED STATES FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE IS INCLUDED
FOR GENERAL INFORMATION ONLY AND MAY NOT BE APPLICABLE DEPENDING UPON A HOLDER'S
PARTICULAR SITUATION. HOLDERS SHOULD CONSULT THEIR TAX ADVISORS WITH RESPECT TO
THE TAX CONSEQUENCES TO THEM OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF THE
PREFERRED SECURITIES, INCLUDING THE TAX CONSEQUENCES UNDER STATE, LOCAL, FOREIGN
AND OTHER TAX LAWS AND THE POSSIBLE EFFECTS OF CHANGES IN UNITED STATES FEDERAL
OR OTHER TAX LAWS.
S-37
<PAGE>
ERISA CONSIDERATIONS
Each fiduciary of a pension, profit-sharing or other employee benefit plan
subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA") (a "Plan"), should consider the fiduciary standards of ERISA in the
context of the Plan's particular circumstances before authorizing an investment
in the Preferred Securities. Accordingly, among other factors, the fiduciary
should consider whether the investment would satisfy the prudence and
diversification requirements of ERISA and would be consistent with the documents
and instruments governing the Plan, and whether such investment would involve a
prohibited transaction under Section 406 of ERISA or Section 4975 of the Code.
Fleet, the obligor with respect to the Junior Subordinated Debentures held by
the Trust, and its affiliates and the Institutional Trustee may be considered a
"party in interest" (within the meaning of ERISA) or a "disqualified person"
(within the meaning of Section 4975 of the Code) with respect to many Plans that
are subject to ERISA. The purchase and/or holding of Preferred Securities by a
Plan that is subject to the fiduciary responsibility provisions of ERISA or the
prohibited transaction provisions of Section 4975 of the Code (including
individual retirement arrangements and other plans described in Section
4975(e)(1) of the Code) and with respect to which Fleet, the Institutional
Trustee or any affiliate is a service provider (or otherwise is a party in
interest or a disqualified person) may constitute or result in a prohibited
transaction under ERISA or Section 4975 of the Code, unless such Preferred
Securities are acquired pursuant to and in accordance with an applicable
exemption, such as Prohibited Transaction Class Exemption ("PTCE") 84-14 (an
exemption for certain transactions determined by an independent qualified
professional asset manager), PTCE 91-38 (an exemption for certain transactions
involving bank collective investment funds), PTCE 90-1 (an exemption for certain
transactions involving insurance company pooled separate accounts), PTCE 95-60
(an exemption for transactions involving certain insurance company general
accounts) or PTCE 96-23 (an exemption for plan asset transactions managed by
in-house asset managers).
Any purchaser proposing to acquire Preferred Securities with assets of any
Plan should consult with its ERISA counsel.
S-38
<PAGE>
UNDERWRITING
Subject to the terms and conditions set forth in an underwriting agreement
(the "Underwriting Agreement"), Fleet Capital has agreed to sell to each of the
Underwriters named below, and each of the Underwriters, for whom
are acting as Representatives (the "Representatives"),
has severally agreed to purchase the number of Preferred Securities set forth
opposite its name below. In the Underwriting Agreement, the several Underwriters
have agreed, subject to the terms and conditions set forth therein, to purchase
all the Preferred Securities offered hereby if any of the Preferred Securities
are purchased. In the event of default by an Underwriter, the Underwriting
Agreement provides that, in certain circumstances, the purchase commitments of
the non-defaulting Underwriters may be increased or the Underwriting Agreement
may be terminated.
<TABLE>
<CAPTION>
NUMBER OF
PREFERRED
UNDERWRITERS SECURITIES
----------
<S> <C>
----------
Total..................................................................
----------
----------
</TABLE>
The Underwriters propose to offer the Preferred Securities, in part,
directly to the public at the initial public offering price set forth on the
cover page of this Prospectus Supplement, and, in part, to certain securities
dealers at such price less a concession of $ per Preferred Security. The
Underwriters may allow, and such dealers may reallow, a concession not in excess
of $ per Preferred Security to certain brokers and dealers. After the
Preferred Securities are released for sale to the public, the offering price and
other selling terms may be changed.
In view of the fact that the proceeds of the sale of the Preferred
Securities will ultimately be used to purchase the Junior Subordinated
Debentures of Fleet, the Underwriting Agreement provides that Fleet will pay as
compensation ("Underwriters' Compensation") to the Underwriters arranging the
investment therein of such proceeds, an amount in immediately available funds of
$ per Preferred Security (or $ in the aggregate) for the accounts of
the several Underwriters.
During a period of 7 days from the date of the Prospectus Supplement,
neither Fleet Capital nor Fleet will, without the prior written consent of the
Underwriters, directly or indirectly, sell, offer to sell, grant any option for
sale of, or otherwise dispose of, any Preferred Securities, any security
convertible into or exchangeable into or exercisable for Preferred Securities or
Junior Subordinated Debentures or any debt securities substantially similar to
the Junior Subordinated Debentures or equity securities substantially similar to
the Preferred Securities (except for the Junior Subordinated Debentures and the
Preferred Securities offered hereby).
The Preferred Securities constitute a new issue of securities of Fleet
Capital with no established trading market. Application will be made to list the
Preferred Securities on the NYSE. If approved for listing, trading of the
Preferred Securities on the NYSE is expected to commence within a 30-day period
after the initial delivery of the Preferred Securities. There can be no
assurance that an active market for the Preferred Securities will develop or be
sustained in the future on such exchange. Although the
S-39
<PAGE>
Representatives have indicated to Fleet and Fleet Capital that they intend to
make a market in the Preferred Securities, as permitted by applicable laws and
regulations prior to the commencement of trading on the NYSE, they are not
obligated to do so and may discontinue any such market-making at any time
without notice. Accordingly, no assurance can be given as to the liquidity of,
or trading markets for, the Preferred Securities.
Fleet Capital and Fleet have agreed to indemnify the Underwriters against,
or contribute to payments that the Underwriters may be required to make in
respect of, certain liabilities, including liabilities under the Securities Act
of 1933, as amended.
Until the distribution of the Preferred Securities is completed, rules of
the Commission may limit the ability of the Underwriters and any selling group
members to bid for and purchase the Preferred Securities. As an exception to
these rules, the Representatives are permitted to engage in certain transactions
that stabilize the price of the Preferred Securities. Such transactions consist
of bids or purchases for the purposes of pegging, fixing or maintaining the
price of the Preferred Securities.
If the Underwriters create a short position in the Preferred Securities in
connection with the offering, I.E., if they sell more Preferred Securities than
are set forth on the cover page of this Prospectus Supplement, the
Representatives may reduce the short position by purchasing Preferred Securities
in the open market.
The Representatives may also impose a penalty bid on certain Underwriters
and selling group members. This means that if the Representatives purchase
Preferred Securities in the open market to reduce the Underwriters' short
position or to stabilize the price of the Preferred Securities, they may reclaim
the amount of the selling concession from the Underwriters and selling group
members who sold those Preferred Securities as part of the offering.
In general, purchases of a security for the purpose of stabilization or to
reduce a short position could cause the price of the security to be higher than
it might be in the absence of such purchases. The imposition of a penalty bid
might also have an effect on the price of a security to the extent that it were
to discourage resales of the security.
None of Fleet, Fleet Capital nor any of the Underwriters makes any
representation or prediction as to the direction or magnitude of any effect that
the transactions described above may have on the price of the Preferred
Securities. In addition, none of Fleet, Fleet Capital nor any of the
Underwriters makes any representation that the Representatives will engage in
such transactions or that such transactions, once commenced, will not be
discontinued without notice.
Certain of the Underwriters engage in transactions with, and, from time to
time, have performed services for, Fleet and its subsidiaries in the ordinary
course of business.
S-40
<PAGE>
SUBJECT TO COMPLETION, DATED , 1998
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
PROSPECTUS
FLEET FINANCIAL GROUP, INC.
JUNIOR SUBORDINATED DEBENTURES
FLEET CAPITAL TRUST V
FLEET CAPITAL TRUST VI
FLEET CAPITAL TRUST VII
FLEET CAPITAL TRUST VIII
FLEET CAPITAL TRUST IX
FLEET CAPITAL TRUST X
PREFERRED SECURITIES
FULLY AND UNCONDITIONALLY GUARANTEED BY
FLEET FINANCIAL GROUP, INC.
Fleet Financial Group, Inc. ("Fleet" or the "Company"), a Rhode Island
corporation, may from time to time offer its subordinated debentures, notes or
other evidence of indebtedness (the "Junior Subordinated Debentures") in one or
more series and in amounts, at prices and on terms to be determined at the time
of the offering. The Junior Subordinated Debentures when issued will be
unsecured obligations of the Company. The Company's obligations under the Junior
Subordinated Debentures will be subordinate and junior in right of payment to
certain other indebtedness of Fleet, as may be described in an accompanying
Prospectus Supplement (the "Prospectus Supplement").
Fleet Capital Trust V, Fleet Capital Trust VI, Fleet Capital Trust VII,
Fleet Capital Trust VIII, Fleet Capital Trust IX and Fleet Capital Trust X
(each, a "Fleet Capital Trust"), each a statutory business trust formed under
the laws of the State of Delaware, may offer, from time to time, preferred
securities representing undivided beneficial interests in the assets of the
respective Fleet Capital Trust ("Preferred Securities"). The payment of periodic
cash distributions ("distributions") with respect to Preferred Securities of
each of the Fleet Capital Trusts out of moneys held by each of the Fleet Capital
Trusts, and payment on liquidation, redemption or otherwise with respect to such
Preferred Securities, will be guaranteed by Fleet to the extent described herein
(each a "Preferred Securities Guarantee"). See "Description of the Preferred
Securities Guarantees" below. Fleet's obligations under the Preferred Securities
Guarantees will be subordinate and junior in right of payment to all other
liabilities of Fleet and will rank pari passu with the most senior preferred
stock, if any, issued from time to time by Fleet. Junior Subordinated Debentures
may be issued and sold from time to time in one or more series to a Fleet
Capital Trust, or a trustee of such Fleet Capital Trust, in connection with the
investment of the proceeds from the offering of Preferred Securities and Common
Securities (as defined herein, together the "Trust Securities") of such Fleet
Capital Trust. The Junior Subordinated Debentures purchased by a Fleet Capital
Trust may be subsequently distributed pro rata to holders of Preferred
Securities and Common Securities in connection with the dissolution of such
Fleet Capital Trust upon the occurrence of certain events as may be described in
an accompanying Prospectus Supplement. The Junior Subordinated Debentures and
the Preferred Securities and the related Preferred Securities Guarantees are
sometimes collectively referred to hereafter as the "Offered Securities."
Pursuant to the terms of the Registration Statement of which this Prospectus
constitutes a part, Fleet may also offer and sell (i) its unsecured debt
securities, which may be either senior or subordinated, or warrants to purchase
debt securities (the "Debt Securities") and (ii) its preferred stock (the
"Preferred Stock"), which may be represented by depositary shares (the
"Depositary Shares"), shares of its common stock (the "Common Stock") or
warrants to purchase Preferred Stock or Common Stock (the "Equity Warrants").
Any such Debt Securities, on the one hand, and Preferred Stock, Depositary
Shares, Common Stock or Equity Warrants, on the other hand, will be offered and
issued pursuant to the terms of a separate Prospectus contained in such
Registration Statement. The aggregate amount of Preferred Securities that may be
offered and sold pursuant hereto is subject to reduction as the result of the
sale of any Debt Securities, on the one hand, and any Preferred Stock,
Depositary Shares, Common Stock or Equity Warrants, on the other hand, pursuant
to each such separate Prospectus.
Specific terms of the Junior Subordinated Debentures of any series or the
Preferred Securities of any Fleet Capital Trust, the terms of which will mirror
the terms of the Junior Subordinated Debentures held by the Fleet Capital Trust,
in respect of which this prospectus (the "Prospectus") is being delivered, will
be set forth in a Prospectus Supplement with respect to such securities, which
will describe, without limitation and where applicable, the following: (i) in
the case of Junior Subordinated Debentures, the specific designation, aggregate
principal amount, denomination, currency or currency unit for which Junior
Subordinated Debentures may be purchased, currency or currency unit in which the
principal and any interest on Junior Subordinated Debentures is payable,
maturity, the right of Fleet, if any, to extend or shorten the maturity after
issuance, premium, if any, any exchange, conversion or redemption provisions, if
any, interest rate (which may be fixed or variable), if any, the time and method
of calculating interest payments, if any, dates on which premium, if any, and
interest, if any, will be payable, the right of Fleet, if any, to defer payment
of interest on the Junior Subordinated Debentures and the maximum length of such
deferral period, the initial public offering price, subordination terms, and any
listing on a securities exchange and other specific terms of the offering; and
(ii) in the case of Preferred Securities, the designation, number of securities,
liquidation preference per security, initial public offering price, any listing
on a securities exchange, distribution rate (or method of calculation thereof),
dates on which distributions shall be payable and dates from which distributions
shall accrue, any voting rights, terms for any conversion or exchange into other
securities, any redemption, exchange or sinking fund provisions, any other
rights, preferences, privileges, limitations or restrictions relating to the
Preferred Securities and the terms upon which the proceeds of the sale of the
Preferred Securities shall be used to purchase a specific series of Junior
Subordinated Debentures of Fleet.
The Offered Securities may be offered in amounts, at prices and on terms to
be determined at the time of offering. The Prospectus Supplement relating to any
series of Offered Securities will contain information concerning the United
States federal income tax considerations applicable to purchasers of the Offered
Securities.
Fleet and/or each of the Fleet Capital Trusts may sell the Offered
Securities directly, through agents designated from time to time, or through
underwriters or dealers. See "Plan of Distribution" below. If any agents of
Fleet and/or any Fleet Capital Trust or any underwriters or dealers are involved
in the sale of the Offered Securities, the names of such agents, underwriters or
dealers and any applicable commissions and discounts will be set forth in any
related Prospectus Supplement.
This Prospectus and related Prospectus Supplements may be used by direct or
indirect subsidiaries of Fleet in connection with offers and sales related to
secondary market transactions in the Offered Securities. Such subsidiaries may
act as principal or agent in such transactions. Such sales will be made at
prices related to prevailing market prices at the time of sale.
This Prospectus may not be used to consummate sales of securities unless
accompanied by a Prospectus Supplement.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
--------------------------
THE SECURITIES OFFERED HEREBY ARE NOT SAVINGS ACCOUNTS, DEPOSITS OR OTHER
OBLIGATIONS OF ANY BANK OR NONBANK SUBSIDIARY OF FLEET (OTHER THAN THE
FLEET CAPITAL TRUSTS) AND ARE NOT INSURED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION, BANK INSURANCE FUND OR ANY OTHER
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
The date of this Prospectus is , 1998
<PAGE>
FOR NORTH CAROLINA RESIDENTS: THE COMMISSIONER OF INSURANCE OF THE STATE OF
NORTH CAROLINA HAS NOT APPROVED OR DISAPPROVED THIS OFFERING NOR HAS THE
COMMISSIONER PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS
THAT STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE PREFERRED
SECURITIES. SUCH TRANSACTIONS MAY INCLUDE STABILIZING TRANSACTIONS, THE PURCHASE
OF PREFERRED SECURITIES TO COVER SYNDICATE SHORT POSITIONS AND THE IMPOSITION OF
PENALTY BIDS.
FOR INVESTORS OUTSIDE THE UNITED STATES: NO ACTION HAS BEEN OR WILL BE TAKEN
IN ANY JURISDICTION BY FLEET OR BY ANY UNDERWRITER THAT WOULD PERMIT A PUBLIC
OFFERING OF THE SECURITIES OR POSSESSION OR DISTRIBUTION OF THIS PROSPECTUS IN
ANY JURISDICTION WHERE ACTION FOR THAT PURPOSE IS REQUIRED, OTHER THAN IN THE
UNITED STATES. PERSONS INTO WHOSE POSSESSION THIS PROSPECTUS COMES ARE REQUIRED
BY FLEET AND THE UNDERWRITERS TO INFORM THEMSELVES ABOUT AND TO OBSERVE ANY
RESTRICTIONS AS TO THE OFFERING OF THE SECURITIES AND THE DISTRIBUTION OF THIS
PROSPECTUS.
CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS
Certain statements contained in or incorporated by reference in this
Prospectus and accompanying Prospectus Supplement may be considered
"forward-looking statements" as defined in the Private Securities Litigation
Reform Act of 1995. Actual results may differ materially from those projected as
a result of certain risks and uncertainties, including but not limited to
changes in political and economic conditions, interest rate fluctuations,
competitive product and pricing pressures within Fleet's market, equity and bond
market fluctuations, personal and corporate customers' bankruptcies, inflation,
acquisitions and integrations of acquired businesses, risks relating to Year
2000 issues (particularly with respect to compliance by third parties on which
Fleet relies), as well as other risks and uncertainties detailed from time to
time in the filings of Fleet with the Securities and Exchange Commission (the
"Commission").
2
<PAGE>
AVAILABLE INFORMATION
This Prospectus constitutes a part of a combined Registration Statement on
Form S-3 (together with all amendments and exhibits thereto, the "Registration
Statement") filed by Fleet and the Fleet Capital Trusts with the Commission
under the Securities Act of 1933, as amended (the "Securities Act"), with
respect to the Offered Securities. This Prospectus does not contain all of the
information set forth in such Registration Statement, certain parts of which are
omitted in accordance with the rules and regulations of the Commission, although
it does include a summary of the material terms of the Indenture and the
Declarations of Trust (each as defined herein). Reference is made to such
Registration Statement and to the exhibits relating thereto for further
information with respect to the Company, the Fleet Capital Trusts and the
Offered Securities. Any statements contained herein concerning the provisions of
any document filed as an exhibit to the Registration Statement or otherwise
filed with the Commission or incorporated by reference herein are not
necessarily complete, and, in each instance, reference is made to the copy of
such document so filed for a more complete description of the matter involved.
Each such statement is qualified in its entirety by such reference.
Fleet is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith files reports, proxy statements and other information with the
Commission. Proxy statements, reports and other information concerning Fleet can
be inspected and copied at the Commission's office at Room 1024, Judiciary
Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 and the Commission's
Regional Offices in New York (Suite 1300, Seven World Trade Center, New York,
New York 10048) and Chicago (Northwestern Atrium Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661), and copies of such material can be
obtained from the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates or by accessing the
Commission's World Wide Web site at http://www.sec.gov. The common stock, $.01
par value, of Fleet (the "Common Stock") is listed on the New York Stock
Exchange ("NYSE"). Reports, proxy material and other information concerning
Fleet also may be inspected at the offices of the NYSE, 20 Broad Street, New
York, New York 10005. This Prospectus and the accompanying Prospectus Supplement
do not contain all the information set forth in the Registration Statement and
Exhibits thereto which Fleet has filed with the Commission under the Securities
Act, which may be obtained from the Public Reference Section of the Commission
at its principal office at 450 Fifth Street, N.W., Washington, D.C. 20549, upon
payment of the prescribed fees, and to which reference is hereby made.
No separate financial statements of any of the Fleet Capital Trusts have
been included herein. Fleet does not consider that such financial statements
would be material to holders of the Preferred Securities because (i) all of the
voting securities of each of the Fleet Capital Trusts will be owned, directly or
indirectly, by Fleet, a reporting company under the Exchange Act, (ii) each of
the Fleet Capital Trusts has no independent operations but exists for the sole
purpose of issuing securities representing undivided beneficial interests in the
assets of such Fleet Capital Trust and investing the proceeds thereof in Junior
Subordinated Debentures issued by Fleet, and (iii) Fleet's obligations described
herein and in any accompanying Prospectus Supplement to provide certain
indemnities in respect of, and be responsible for, certain costs, expenses,
debts and liabilities of each of the Fleet Capital Trusts under the Indenture
and any supplemental indenture thereto and pursuant to the Declarations of each
Trust, the Preferred Securities Guarantee issued with respect to Preferred
Securities issued by that Trust, the Junior Subordinated Debentures purchased by
that Trust and the related Indenture, taken together, constitute a full and
unconditional guarantee of payments due on the Preferred Securities. See
"Description of the Junior Subordinated Debentures" and "Description of the
Preferred Securities Guarantees."
The Fleet Capital Trusts are not currently subject to the information
reporting requirements of the Exchange Act. The Fleet Capital Trusts will become
subject to such requirements upon the effectiveness of the Registration
Statement, although they intend to seek and expect to receive exemptions
therefrom.
3
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by Fleet are incorporated
by reference in this Prospectus:
(a) Annual Report on Form 10-K for the fiscal year ended December 31, 1997;
(b) Quarterly Reports on Form 10-Q for the quarter ended March 31, 1998 and
June 30, 1998.
(c) Current Reports on Form 8-K dated January 15, 1998, January 15, 1998,
January 26, 1998, February 2, 1998, March 4, 1998, March 6, 1998, March 30,
1998, April 15, 1998, April 28, 1998, May 5, 1998, May 20, 1998, July 7, 1998
and July 15, 1998.
Such incorporation by reference shall not be deemed to specifically
incorporate by reference the information referred to in Item 402(a)(8) of
Regulation S-K.
All documents filed with the Commission by Fleet pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus
and prior to the termination of the offering of the Offered Securities shall be
deemed to be incorporated by reference in this Prospectus and to be a part
hereof from the date of filing of such documents. Any statement contained in
this Prospectus or in a document incorporated or deemed to be incorporated by
reference herein or in any Prospectus Supplement shall be deemed to be modified
or superseded for purposes of this Prospectus or any Prospectus Supplement to
the extent that a statement contained herein or therein (or in any subsequently
filed document that also is or is deemed to be incorporated by reference herein
or therein) modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus or any Prospectus Supplement.
FLEET WILL PROVIDE WITHOUT CHARGE TO EACH PERSON TO WHOM A COPY OF THIS
PROSPECTUS HAS BEEN DELIVERED, UPON THE WRITTEN OR ORAL REQUEST OF SUCH PERSON,
A COPY OF ANY OR ALL OF THE DOCUMENTS REFERRED TO ABOVE WHICH HAVE BEEN OR MAY
BE INCORPORATED BY REFERENCE HEREIN (OTHER THAN EXHIBITS TO SUCH DOCUMENTS
UNLESS SUCH EXHIBITS ARE SPECIFICALLY INCORPORATED BY REFERENCE IN SUCH
DOCUMENTS). WRITTEN REQUESTS SHOULD BE MAILED TO INVESTOR RELATIONS DEPARTMENT,
FLEET FINANCIAL GROUP, INC., ONE FEDERAL STREET, BOSTON, MASSACHUSETTS 02110.
TELEPHONE REQUESTS MAY BE DIRECTED TO (617) 346-4000.
4
<PAGE>
FLEET FINANCIAL GROUP, INC.
GENERAL
Fleet is a diversified financial services company organized under the laws
of the State of Rhode Island. At June 30, 1998, Fleet was the tenth largest bank
holding company in the United States, with total assets of $100.7 billion, total
deposits of $67.0 billion and stockholders' equity of $8.9 billion.
Fleet is engaged in a general consumer and commercial banking and investment
management business throughout the states of Connecticut, Massachusetts, New
Jersey, New York, Rhode Island, Maine, New Hampshire and Florida through its
banking subsidiaries, and also provides, through its other subsidiaries, a
variety of financial services, including mortgage banking, asset-based lending,
consumer finance, real estate financing, securities brokerage services, capital
markets services and investment banking, investment advice and management, data
processing and student loan servicing.
The principal office of Fleet is located at One Federal Street, Boston,
Massachusetts 02110, telephone number (617) 346-4000.
HOLDING COMPANY
Fleet is a legal entity separate and distinct from its subsidiaries. The
ability of holders of debt and equity securities of Fleet, including the holders
of the securities offered hereby, to benefit from the distribution of assets of
any subsidiary upon the liquidation or reorganization of such subsidiary is
subordinate to prior claims of creditors of the subsidiary (including depositors
in the case of banking subsidiaries) except to the extent that a claim of Fleet
as a creditor may be recognized.
There are various statutory and regulatory limitations on the extent to
which banking subsidiaries of Fleet can finance or otherwise transfer funds to
Fleet or its nonbanking subsidiaries, whether in the form of loans, extensions
of credit, investments or asset purchases. Such transfers by any subsidiary bank
to Fleet or any nonbanking subsidiary are limited in amount to 10% of the bank's
capital and surplus and, with respect to Fleet and all such nonbanking
subsidiaries, to an aggregate of 20% of each such bank's capital and surplus.
Furthermore, loans and extensions of credit are required to be secured in
specified amounts and are required to be on terms and conditions with safe and
sound banking practices.
In addition, there are regulatory limitations on the payment of dividends
directly or indirectly to Fleet from its banking subsidiaries. Under applicable
banking statutes, at June 30, 1998, Fleet's banking subsidiaries could have
declared additional dividends of approximately $842.0 million. Federal and state
regulatory agencies also have the authority to limit further Fleet's banking
subsidiaries' payment of dividends based on other factors, such as the
maintenance of adequate capital for such subsidiary bank.
Under the policy of the Board of Govenors of the Federal Reserve Systems
(the "Federal Reserve Board"), Fleet is expected to act as a source of financial
strength to each subsidiary bank and to commit resources to support such
subsidiary bank in circumstances where it might not do so absent such policy. In
addition, any subordinated loans by Fleet to any of the subsidiary banks would
also be subordinate in right of payment to deposits and obligations to general
creditors of such subsidiary bank. Further, the Crime Control Act of 1990
amended the federal bankruptcy laws to provide that in the event of the
bankruptcy of Fleet, any commitment by Fleet to its regulators to maintain the
capital of a banking subsidiary would be assumed by the bankruptcy trustee and
entitled to a priority of payment.
5
<PAGE>
THE TRUSTS
Each of the Trusts is a statutory business trust formed under Delaware law
pursuant to (i) a separate declaration of trust (each a "Declaration") executed
by Fleet, as sponsor for such trust (the "Sponsor") and the Fleet Capital
Trustees (as defined herein) for such trust and (ii) the filing of a certificate
of trust with the Delaware Secretary of State. Each Fleet Capital Trust exists
for the exclusive purposes of (i) issuing the Preferred Securities and common
securities representing undivided beneficial interests in the assets of such
Trust (the "Common Securities" and, together with the Preferred Securities, the
"Trust Securities"), (ii) investing the gross proceeds of the Trust Securities
in Junior Subordinated Debentures, and (iii) engaging in only those other
activities necessary or incidental thereto. All of the Common Securities will be
directly or indirectly owned by Fleet. The Common Securities of each Trust will
rank pari passu, and payments will be made thereon pro rata, with the Preferred
Securities of such Trust except that upon an event of default under the
Declaration with respect thereto, the rights of the holders of the Common
Securities to payment in respect of distributions and payments upon liquidation,
redemption and otherwise will be subordinated to the rights of the holders of
the Preferred Securities. Fleet will, directly or indirectly, acquire Common
Securities of each Trust in an aggregate liquidation amount equal to at least 3
percent of the total capital of each Fleet Capital Trust.
Each Declaration may be modified and amended if approved by the Regular
Trustees (and in certain circumstances the Institutional Trustee), provided
that, if any proposed amendment 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 Trust Securities, whether by way of
amendment to such Declaration or otherwise or (ii) the dissolution, winding-up
or termination of the related Fleet Capital Trust other than pursuant to the
terms of such Declaration, then the holders of the Trust Securities voting
together as a single 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 at least a majority in liquidation amount of the Trust Securities
affected thereby; provided, that, if any amendment or proposal referred to in
clause (i) above would adversely affect only the Preferred Securities or 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.
Each Fleet Capital Trust has a term of approximately 55 years, but may
terminate earlier as provided in the applicable Declaration. Each Fleet Capital
Trust's business and affairs will be conducted by the trustees (the "Fleet
Capital Trustees") appointed by Fleet, as the direct or indirect holder of all
the Common Securities. The holder of the Common Securities will be entitled to
appoint, remove or replace any of, or increase or reduce the number of, the
Fleet Capital Trustees of a Fleet Capital Trust. The duties and obligations of
the Fleet Capital Trustees shall be governed by the Declaration of such Fleet
Capital Trust. One or more of the Fleet Capital Trustees for each Trust will be
persons who are employees or officers of or affiliated with Fleet (the "Regular
Trustees"). One Fleet Capital Trustee of each Fleet Capital Trust will be a
financial institution which will be unaffiliated with Fleet and which shall act
as institutional trustee under the Declaration and as indenture trustee for
purposes of the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), pursuant to the terms set forth in a Prospectus Supplement (the
"Institutional Trustee"). In addition, unless the Institutional Trustee
maintains a principal place of business in the State of Delaware, and otherwise
meets the requirements of applicable law, one Fleet Capital Trustee of each
Fleet Capital Trust will have its principal place of business or reside in the
State of Delaware (the "Delaware Trustee"). Fleet will pay all fees and expenses
related to the Fleet Capital Trusts and the offering of Trust Securities. The
office of the Delaware Trustee for each Fleet Capital Trust in the State of
Delaware, and its principal place of business is, First Chicago Delaware Inc.,
300 King Street, Wilmington, Delaware 19801. The principal place of business of
each Fleet Capital Trust shall be c/o Fleet Financial Group, Inc., One Federal
Street, Boston, Massachusetts 02110, telephone number (617) 346-4000.
6
<PAGE>
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
Fleet's consolidated ratios of earnings to fixed charges were as follows for
the years indicated:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
SIX MONTHS ENDED ------------------------------------------
JUNE 30, 1998 1997 1996 1995 1994
----------------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges:
Excluding Interest on Deposits............................. 3.27x 3.90x 3.38x 1.79x 2.30x
Including Interest on Deposits............................. 1.83 1.94 1.79 1.36 1.64
<CAPTION>
1993
---------
<S> <C>
Ratio of Earnings to Fixed Charges:
Excluding Interest on Deposits............................. 2.39x
Including Interest on Deposits............................. 1.58
</TABLE>
- ------------------------
For purposes of computing the consolidated ratios, earnings consist of
income before income taxes plus fixed charges (excluding capitalized interest).
Fixed charges consist of interest on short-term debt and long-term debt
(including interest related to capitalized leases and capitalized interest) and
one-third of rent expense, which approximates the interest component of such
expense. In addition, where indicated, fixed charges include interest on
deposits.
REASON FOR TRANSACTION
On October 21, 1996, the Federal Reserve Board issued a press release (the
"Federal Reserve Press Release") announcing that it had approved the use of
certain cumulative preferred stock instruments, such as the Preferred
Securities, as "Tier 1 capital" for purposes of the Federal Reserve Board's
capital guidelines for bank holding companies. Because Fleet intends to treat
the Preferred Securities as Tier 1 capital and, under current United States
federal tax law, will receive a tax deduction for interest in respect of the
Junior Subordinated Debentures, the issuance of the Preferred Securities is a
cost effective method of raising capital on an after-tax basis.
USE OF PROCEEDS
Each Trust will use the proceeds of the sale of the Trust Securities to
acquire Junior Subordinated Debentures from Fleet. Unless otherwise indicated in
the applicable Prospectus Supplement, Fleet intends to use the net proceeds from
the sale of the Junior Subordinated Debentures for general corporate purpose,
principally to extend credit to, or fund investments in, its subsidiaries. The
precise amounts and timing of extensions of credit to, and investments in, such
subsidiaries will depend upon the subsidiaries' funding requirements and the
availability of other funds. Pending such applications, the net proceeds may be
temporarily invested in marketable securities or applied to the reduction of
Fleet's short-term indebtedness. Based upon the historic and anticipated future
growth of Fleet and the financial needs of its subsidiaries, Fleet may engage in
additional financings of a character and amount to be determined as the need
arises.
7
<PAGE>
DESCRIPTION OF THE JUNIOR SUBORDINATED DEBENTURES
Junior Subordinated Debentures may be issued from time to time in one or
more series under an Indenture (the "Base Indenture"), between the Company and
The First National Bank of Chicago, as Trustee (the "Debt Trustee"), as
supplemented by a Supplemental Indenture or a resolution of the Company's Board
of Directors or a special committee appointed thereby (the "Supplemental
Indenture"; the Base Indenture, as so supplemented, is hereinafter referred to
as the "Indenture"). The terms of the Junior Subordinated Debentures will
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act. While the following summary of the
material terms does not purport to be complete and is subject in all respects to
the provisions of, and is qualified in its entirety by reference to, the
Indenture, which is filed as an exhibit to the Registration Statement of which
this Prospectus forms a part, and the Trust Indenture Act, all material terms of
the Junior Subordinated Debentures are set forth herein and in any Prospectus
Supplement relating to the particular Junior Subordinated Debentures being
offered thereby. Whenever particular provisions or defined terms in the
Indenture are referred to herein, such provisions or defined terms are
incorporated by reference herein. Section and Article references used herein are
references to provisions of the Indenture unless otherwise noted.
GENERAL
The Junior Subordinated Debentures will be unsecured, fully subordinated
obligations of the Company. The Indenture does not limit the aggregate principal
amount of Junior Subordinated Debentures which may be issued thereunder and
provides that the Junior Subordinated Debentures may be issued from time to time
in one or more series. (Section 2.03)
In the event Junior Subordinated Debentures 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 Junior Subordinated Debentures
subsequently may be distributed pro rata to the holders of such Trust Securities
in connection with the dissolution of such Fleet Capital Trust upon the
occurrence of certain events described in the Prospectus Supplement relating to
such Trust Securities. Only one series of Junior Subordinated Debentures will be
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.
Reference is made to the Prospectus Supplement relating to the particular
Junior Subordinated Debentures being offered thereby for the following terms:
(1) the designation of such Junior Subordinated Debentures; (2) the aggregate
principal amount of such Junior Subordinated Debentures; (3) the percentage of
their principal amount at which such Junior Subordinated Debentures will be
issued; (4) the date or dates on which such Junior Subordinated Debentures will
mature and the right, if any, to shorten or extend such date or dates; (5) the
rate or rates, if any, per annum, at which such Junior Subordinated Debentures
will bear interest, or the method of determination of such rate or rates; (6)
the date or dates from which such interest shall accrue, the interest payment
dates on which such interest will 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; (7) the
right, if any, to extend the interest payment periods and the duration of such
extension; (8) provisions, if any, for a sinking purchase or other analogous
fund; (9) the period or periods, if any, within which, the price or prices of
which, and the terms and conditions upon which such Junior Subordinated
Debentures may be redeemed, in whole or in part, at the option of Fleet or the
holder; (10) the form of such Junior Subordinated Debentures; and (11) any other
specific terms of the Junior Subordinated Debentures. Principal, premium, if
any, and interest, if any, will be payable, and the Junior Subordinated
Debentures offered hereby will be transferable, at the corporate trust office of
the Debt Trustee in New York, New York, provided that payment of interest, if
any, may be made at the option of Fleet by check mailed to the address of the
person entitled thereto as it appears in the Security Register or by wire
transfer to an account appropriately designated by the person entitled thereto.
(Sections 3.01 and 3.02).
8
<PAGE>
ADDITIONAL INTEREST
If, at any time while the Institutional Trustee is the holder of any Junior
Subordinated Debentures issued by a Trust, such Trust or the Institutional
Trustee shall be 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, Fleet will pay as
additional interest ("Additional Interest") on the Junior Subordinated
Debentures held by the Institutional Trustee, such additional amounts as shall
be required so that the net amounts received and retained by such Trust and by
the Institutional Trustee after paying any such taxes, duties, assessments or
other governmental charges will be equal to the amounts such Trust and the
Institutional Trustee would have received had no such taxes, duties, assessments
or other governmental charges been imposed.
If a Prospectus Supplement specifies that a series of Junior Subordinated
Debentures is denominated in a currency or currency unit other than United
States dollars, such Prospectus Supplement shall also specify the denomination
in which such Junior Subordinated Debentures will be issued and the coin or
currency in which the principal, premium, if any, and interest, if any, on such
Junior Subordinated Debentures will be payable, which may be United States
dollars based upon the exchange rate for such other currency or currency unit
existing on or about the time a payment is due.
The covenants contained in the Indenture would not necessarily afford
protection to holders of the Junior Subordinated Debentures in the event of a
decline in credit quality resulting from takeovers, recapitalizations or similar
restructurings.
FORM, EXCHANGE, REGISTRATION, TRANSFER AND PAYMENT
Unless otherwise specified in the applicable Prospectus Supplement, the
Junior Subordinated Debentures will be issued in fully registered form without
coupons and in denominations of $1,000 and multiples of $1,000. No service
charge will be made for any transfer or exchange of the Junior Subordinated
Debentures, but the Company or the Debt Trustee may require payment of a sum
sufficient to cover any tax or other government charge payable in connection
therewith. (Section 2.07)
Unless otherwise provided in the applicable Prospectus Supplement, principal
and premium, if any, or interest, if any, will be payable and the Junior
Subordinated Debentures may be surrendered for payment or transferred at the
offices of the Debt Trustee as paying and authenticating agent, provided that
payment of interest on registered securities that are not issued to a Fleet
Capital Trust may be made at the option of Fleet by check mailed to the address
of the person entitled thereto as it appears in the Security Register or by wire
transfer to an account appropriately designated by the person entitled thereto.
(Section 3.01)
BOOK-ENTRY JUNIOR SUBORDINATED DEBENTURES
The Junior Subordinated Debentures of a series may be issued in whole or in
part in the form of one or more Global Securities that will be deposited with,
or on behalf of, a depositary (the "Global Depositary"), or its nominee,
identified in the Prospectus Supplement relating to such series. In such a case,
one or more Global Securities will be issued in a denomination or aggregate
denomination equal to the portion of the aggregate principal amount of
outstanding Junior Subordinated Debentures of the series to be represented by
such Global Security or Securities. Unless and until it is exchanged in whole or
in part for Junior Subordinated Debentures in definitive registered form, a
Global Security may not be registered for transfer or exchange except as a whole
by the Global Depositary for such Global Security to a nominee for such Global
Depositary and except in the circumstances described in the applicable
Prospectus Supplement. (Section 2.11)
The specific terms of the depositary arrangement with respect to any portion
of a series of Junior Subordinated Debentures to be represented by a Global
Security and a description of the Global Depositary will be provided in the
applicable Prospectus Supplement.
9
<PAGE>
SUBORDINATION
The Junior Subordinated Debentures will be subordinated and junior in right
of payment to certain other indebtedness of Fleet to the extent set forth in the
applicable Prospectus Supplement.
CERTAIN COVENANTS OF FLEET
If Junior Subordinated Debentures 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 any event that would
constitute an Indenture Event of Default (as defined herein) or (ii) Fleet shall
be in default with respect to its payment of any obligations under the related
Preferred Securities Guarantee or Common Securities Guarantee, or (iii) Fleet
shall have given notice of its election to defer payments of interest on such
Junior Subordinated Debentures by extending the interest payment period as
provided in the Supplemental Indenture and such period, or any extension
thereof, shall be continuing, then (a) Fleet shall not declare or pay any
dividend on, make any distributions with respect to, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of its capital stock
(other than (x) purchases or acquisitions of shares of common stock, par value
$0.01 per share, of Fleet (the "Fleet Common Stock") in connection with the
satisfaction by Fleet of its obligations under any employee benefit plans or any
other contractual obligation of Fleet (other than a contractual obligation
ranking pari passu with or junior to the Junior Subordinated Debentures), (y) as
a result of a reclassification of Fleet capital stock or the exchange or
conversion of one class or series of Fleet capital stock for another class or
series of Fleet capital stock or (z) the purchase of fractional interests in
shares of Fleet capital stock pursuant to the conversion or exchange provisions
of such Fleet capital stock or the security being converted or exchanged), (b)
Fleet shall not make any payment of interest, principal or premium, if any, on
or repay, repurchase or redeem any debt securities issued by Fleet which rank
pari passu with or junior to such Junior Subordinated Debentures and (c) Fleet
shall not make any guarantee payments with respect to the foregoing (other than
pursuant to the Preferred Securities Guarantee).
In the event Junior Subordinated Debentures are issued to a Fleet Capital
Trust or a trustee of such trust in connection with the issuance of Trust
Securities of such Fleet Capital Trust, for so long as such Trust Securities
remain outstanding, Fleet will covenant (i) to directly or indirectly maintain
100 percent ownership of the Common Securities of such Fleet Capital Trust;
provided, however, that any permitted successor of Fleet under the Indenture may
succeed to Fleet's ownership of such Common Securities, (ii) to use its
reasonable efforts to cause such Fleet Capital Trust (a) to remain a statutory
business trust, except in connection with the distribution of Junior
Subordinated Debentures to the holders of Trust Securities in liquidation of
such Fleet Capital Trust, 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 a partnership for United States federal income tax purposes and (iii) to use
its reasonable efforts to cause each holder of Trust Securities to be treated as
owning an undivided beneficial interest in the Junior Subordinated Debentures.
(Section 3.08)
LIMITATION ON MERGERS AND SALES OF ASSETS
Fleet shall not consolidate with, or merge into, any corporation or convey
or transfer its properties and assets substantially as an entirety to any Person
unless (a) the successor entity shall be a corporation organized under the laws
of any domestic jurisdiction and shall expressly assume the obligations of Fleet
under the Indenture and (b) after giving effect thereto, no Default shall have
occurred and be continuing under the Indenture. (Section 10.01)
10
<PAGE>
EVENTS OF DEFAULT, WAIVER AND NOTICE
The Indenture provides that any one or more of the following described
events which has occurred and is continuing constitutes an "Indenture Event of
Default" with respect to each series of Junior Subordinated Debentures:
(a) default for 30 days in payment of any interest on the Junior
Subordinated Debentures of that series, including any Additional
Interest in respect thereof, when due; provided, however, that a
valid extension of the interest payment period by the Company
shall not constitute a default in the payment of interest for this
purpose; or
(b) default in payment of principal of, or premium, if any, on,
the Junior Subordinated Debentures of that series when due either
at maturity, upon redemption, by declaration or otherwise;
provided, however, that a valid extension of the maturity of such
Junior Subordinated Debentures shall not constitute a default for
this purpose; or
(c) default by the Company in the performance of any other of the
covenants or agreements in the Indenture which shall not have been
remedied for a period of 90 days after notice; or
(d) certain events of bankruptcy, insolvency or reorganization of
Fleet; or
(e) in the event Junior Subordinated Debentures 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, the
voluntary or involuntary dissolution, winding-up or termination of
such Fleet Capital Trust, except in connection with the
distribution of Junior Subordinated Debentures to the holders of
Trust Securities in liquidation of such Fleet Capital Trust, 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.
The Indenture provides that, if an Indenture Event of Default on any series
of Junior Subordinated Debentures shall have occurred and be continuing, either
the Debt Trustee or the holders of not less than 25 percent in aggregate
principal amount of the Junior Subordinated Debentures of such series then
outstanding may declare the principal of all such Junior Subordinated Debentures
of such series to be due and payable immediately. The holders of a majority in
aggregate outstanding principal amount of such series of Junior Subordinated
Debentures may annul such declaration and waive the default if the default
(other than the non-payment of the principal of such series of Junior
Subordinated Debentures which has become due solely by such acceleration) has
been cured and a sum sufficient to pay all matured installments of interest and
principal due otherwise than by accleration has been deposited with the Debt
Trustee. (Section 5.01).
The holders of a majority in principal amount of the Junior Subordinated
Debentures of any or all series affected and then outstanding shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Debt Trustee under the Indenture, provided that the
holders of the Junior Subordinated Debentures shall have offered to the Debt
Trustee reasonable indemnity against expenses and liabilities. Notwithstanding
the foregoing, subject to the subordination provisions set forth in a Prospectus
Supplement, the right of any holder of Junior Subordinated Debentures to receive
payment of the principal of and interest on such Junior Subordinated Debentures
on or after the due dates therefor, as the same may be extended in accordance
with the terms of such Junior Subordinated Debentures, or to institute suit for
the enforcement of any such payment provisions, shall not be impaired or
affected without the consent of such holder. (Sections 5.04 and 5.07)
The Indenture requires the annual filing by Fleet with the Debt Trustee of a
certificate as to the absence of certain defaults under the Indenture. (Section
3.05)
11
<PAGE>
The Indenture provides that the Debt Trustee may withhold notice of an
Indenture Event of Default from the holders of a series of Junior Subordinated
Debentures (except an Indenture Event of Default in payment of principal of, or
of interest or premium on, the Junior Subordinated Debentures) if the Trustee
considers it in the interest of such holders to do so. (Section 5.08)
MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting the Company and the Debt
Trustee, with the consent of the holders of not less than a majority in
principal amount of the Junior Subordinated Debentures of all series affected by
such modification at the time outstanding, and, in the case of Junior
Subordinated Debentures issued to a Trust, the holders of a majority in
aggregate liquidation amount of the related Preferred Securities, to modify the
Indenture or any supplemental indenture or the rights of the holders of the
Junior Subordinated Debentures; provided that no such modification shall,
without the consent of the holders of each Junior Subordinated Debenture (and
each Preferred Security, if applicable) affected thereby, (i) extend the fixed
maturity of any Junior Subordinated Debenture, or reduce the principal amount
thereof (including in the case of a discounted Junior Subordinated Debenture the
amount payable thereon in the event of acceleration or the amount provable in
bankruptcy) or any premium thereon, or reduce any amount payable on redemption
thereof, or reduce the rate or extend the time of payment of interest thereon,
or make the principal of, or interest or premium on, the Junior Subordinated
Debentures payable in any coin or currency other than that provided in the
Junior Subordinated Debentures, or impair or affect the right of any holder of
Junior Subordinated Debentures to institute suit for the payment thereof or the
right of prepayment, if any, at the option of the holder, (ii) reduce the
aforesaid percentage of Junior Subordinated Debentures the consent of the
holders of which is required for any such modification or (iii) otherwise
materially adversely affect the interest of the holders of any series of Junior
Subordinated Debentures. (Section 9.02)
DEFEASANCE AND DISCHARGE
The Indenture provides that Fleet, at Fleet's option: (a) will be discharged
from any and all obligations in respect of the Junior Subordinated Debentures of
a series (except for certain obligations to register the transfer or exchange of
Junior Subordinated Debentures, replace stolen, lost or mutilated Junior
Subordinated Debentures, maintain paying agencies and hold moneys for payment in
trust) or (b) need not comply with certain restrictive covenants of the
Indenture (including those described herein under "Certain Covenants of Fleet"),
in each case if Fleet deposits, in trust with the Debt Trustee or the Defeasance
Agent, money or U.S. Government Obligations which through the payment of
interest thereon and principal thereof in accordance with their terms will
provide money, in an amount sufficient to pay all the principal (including any
mandatory sinking fund payments) of, and interest and premium, if any, on, the
Junior Subordinated Debentures of such series on the dates such payments are due
in accordance with the terms of such Junior Subordinated Debentures. To exercise
any such option, Fleet is required to deliver to the Debt Trustee and the
Defeasance Agent, if any, an opinion of counsel to the effect that (i) the
deposit and related defeasance would not cause the holders of the Junior
Subordinated Debentures of such series to recognize income, gain or loss for
U.S. federal income tax purposes and, in the case of a Discharge pursuant to
clause (a), such opinion shall be accompanied by a private letter ruling to that
effect received by Fleet 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, and (ii) if listed on
any national securities exchange, such Junior Subordinated Debentures would not
be delisted from such exchange as a result of the exercise of such option.
(Section 11.05)
GOVERNING LAW
The Indenture and the Junior Subordinated Debentures will be governed by,
and construed in accordance with, the internal laws of the State of New York.
(Section 13.05)
12
<PAGE>
THE DEBT TRUSTEE
Fleet or its affiliates maintain certain accounts and other banking
relationships with the Debt Trustee and its affiliates in the ordinary course of
business.
DESCRIPTION OF THE PREFERRED SECURITIES
Each Fleet Capital Trust may issue, from time to time, only one series of
Preferred Securities having terms described in the Prospectus Supplement
relating thereto. The Declaration of each Fleet Capital Trust authorizes the
Regular Trustees of such Fleet Capital Trust to issue on behalf of such Fleet
Capital Trust one series of Preferred Securities. Each Declaration will be
qualified as an indenture under the Trust Indenture Act. The First National Bank
of Chicago will act as Indenture Trustee for purposes of the Trust Indenture
Act. The Preferred Securities will have such terms, including distributions,
redemption, voting, liquidation rights and such other preferred, deferred or
other special rights or such restrictions as shall be set forth in the
Declaration or made part of the Declaration by the Trust Indenture Act and which
will mirror the terms of the Junior Subordinated Debentures held by the Fleet
Capital Trust and described in the Prospectus Supplement relating thereto.
Reference is made to the Prospectus Supplement relating to the Preferred
Securities of the Fleet Capital Trust for specific terms, including (i) the
distinctive designation of such Preferred Securities; (ii) the number of
Preferred Securities issuable by such Fleet Capital Trust; (iii) the annual
distribution rate (or method of determining such rate) for Preferred Securities
issued by such Fleet Capital Trust and the date or dates upon which such
distributions shall be payable; (iv) whether distributions on Preferred
Securities issued by such Fleet Capital Trust shall be cumulative, and, in the
case of Preferred Securities having such cumulative distribution rights, the
date or dates or method of determining the date or dates from which
distributions on Preferred Securities issued by such Fleet Capital Trust shall
be cumulative; (v) the amount or amounts which shall be paid out of the assets
of such Fleet Capital Trust to the holders of Preferred Securities of such Fleet
Capital Trust upon voluntary or involuntary dissolution, winding-up or
termination of such Fleet Capital Trust; (vi) the obligation, if any, of such
Fleet Capital Trust to purchase or redeem Preferred Securities issued by such
Fleet Capital Trust and the price or prices at which, the period or periods
within which, and the terms and conditions upon which, Preferred Securities
issued by such Fleet Capital Trust shall be purchased or redeemed, in whole or
in part, pursuant to such obligation; (vii) the voting rights, if any, of
holders of Preferred Securities issued by such Fleet Capital Trust in addition
to those required by law, including the number of votes per Preferred Security
and any requirement for the approval by the holders of Preferred Securities, or
of Preferred Securities issued by one or more Fleet Capital Trusts, or of both,
as a condition to specified action or amendments to the Declaration of such
Fleet Capital Trust; (viii) the terms and conditions, if any, upon which the
Junior Subordinated Debentures owned by such Fleet Capital Trust may be
distributed to holders of Preferred Securities of such Trust; (ix) if
applicable, any securities exchange upon which the Preferred Securities shall be
listed; and (x) any other relevant rights, preferences, privileges, limitations
or restrictions of Preferred Securities issued by such Fleet Capital Trust not
inconsistent with the Declaration of such Fleet Capital Trust or with applicable
law. All Preferred Securities offered hereby will be guaranteed by Fleet to the
extent set forth below under "Description of the Preferred Securities
Guarantees." Certain United States federal income tax considerations applicable
to any offering of Preferred Securities will be described in the Prospectus
Supplement relating thereto.
Except as described herein, under the Business Trust Act, the Trust
Indenture Act, under "Description of the Preferred Securities
Guarantees--Modification of the Preferred Securities Guarantees; Assignment"
herein, and under any Prospectus Supplement relating to the issuance of a series
of Preferred Securities, and as otherwise required by law and the Declarations,
the holders of the Preferred Securities will have no voting rights.
Subject to the requirement of the Institutional Trustee obtaining a tax
opinion in certain circumstances set forth in the last sentence of this
paragraph, the holders of a majority in aggregate liquidation amount of the
Preferred Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Institutional Trustee,
or to direct the exercise of any trust or power conferred upon the Institutional
Trustee under the Declarations, including the right to direct the
13
<PAGE>
Institutional Trustee, as holder of the Junior Subordinated Debentures, to (i)
exercise the remedies available to it under the Indentures as a holder of the
related Junior Subordinated Debentures, (ii) waive any past Indenture Event of
Default that is waivable under the Indentures, (iii) exercise any right to
rescind or annul a declaration that the principal of all the Junior Subordinated
Debentures shall be due and payable or (iv) consent to any amendment,
modification or termination of the Indentures or the Junior Subordinated
Debentures where such consent shall be required; provided, however, that, where
a consent or action under the Indentures would require the consent or act of
holders of more than a majority in principal amount of the Junior Subordinated
Debentures (a "Super-Majority") affected thereby, only the holders of at least
such Super-Majority in aggregate liquidation amount of the Preferred Securities
may direct the Institutional Trustee to give such consent or take such action;
and provided, further, that where a consent or action under the Indenture is
only effective against each holder of Junior Subordinated Debentures who has
consented thereto, such consent or action will only be effective against a
holder of Preferred Securities who directs the Institutional Trustee to give
such consent or take such action. If the Institutional Trustee fails to enforce
its rights under the Junior Subordinated Debentures after a holder of record of
Preferred Securities has made a written request, such holder of record of
Preferred Securities may institute a legal proceeding directly against Fleet to
enforce the Institutional Trustee's rights under the Junior Subordinated
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 under the related Declaration has occurred and
is continuing and such event is attributable to the failure of Fleet to pay
interest or principal on the Junior Subordinated Debentures on the date such
interest or principal is otherwise payable (or in the case of redemption, on the
redemption date), then a holder of Preferred Securities may institute a legal
proceeding directly against Fleet for enforcement of payment to such holder of
the principal of, or interest on, the Junior Subordinated Debentures having a
principal amount equal to the aggregate liquidation amount of the Preferred
Securities of such holder on or after the respective due date specified in the
Junior Subordinated Debentures. The Institutional Trustee shall notify all
holders of the Preferred Securities of any notice of default received from the
Debt Trustee with respect to the Junior Subordinated Debentures. Such notice
shall state that such Indenture Event of Default also constitutes an event of
default under the related Declaration. 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 related Fleet Capital Trust
will not fail to be classified as a grantor trust for United States federal
income tax purposes.
In the event the consent of the Institutional Trustee, as the holder of the
Junior Subordinated Debentures, is required under the Indentures with respect to
any amendment, modification or termination of such Indenture, the Institutional
Trustee shall request the direction of the holders of the Trust 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 Trust Securities voting together as a single class;
provided, however, that where a consent under such 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 Trust Securities which the relevant Super-Majority
represents of the aggregate principal amount of the Junior Subordinated
Debentures outstanding; and provided, further, that where a consent or action
under the Indenture is only effective against each holder of Junior Subordinated
Debentures who has consented thereto, such consent or action will only be
effective against a holder of Preferred Securities who directs the Institutional
Trustee to give such consent or take such action. The Institutional Trustee
shall not take any such action in accordance with the directions of the holders
of the Trust Securities unless the Institutional Trustee has obtained an opinion
of a nationally recognized tax counsel experienced in such matters to the effect
that for the purposes of United States federal income tax the related Fleet
Capital Trust will not be classified as other than a grantor trust.
A waiver of an Indenture Event of Default will constitute a waiver of the
corresponding event of default under the Declaration.
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Any required approval or direction of holders of Preferred Securities may be
given at a separate meeting of holders of Preferred Securities convened for such
purpose, at a meeting of all of the holders of Trust Securities or pursuant to
written consent. The Regular Trustees will cause a notice of any meeting at
which holders of Preferred Securities are entitled to vote, or of any matter
upon which action by written consent of such holders is to be taken, to be
mailed to each holder of record of Preferred Securities. Each such notice will
include a statement setting forth the following information: (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 Preferred Securities will be required for the Fleet Capital
Trusts to redeem and cancel Preferred Securities or distribute Junior
Subordinated Debentures in accordance with the Declarations.
Notwithstanding that holders of Preferred Securities are entitled to vote or
consent under any of the circumstances described above, any of the Preferred
Securities that are owned at such time by Fleet or any entity directly or
indirectly controlling or controlled by, or under direct or indirect common
control with, Fleet, shall not be entitled to vote or consent and shall, for
purposes of such vote or consent, be treated as if such Preferred Securities
were not outstanding.
Holders of the Preferred Securities will have no rights to appoint or remove
the Regular Trustees, who may be appointed, removed or replaced solely by Fleet
as the holder of all of the Common Securities.
In connection with the issuance of Preferred Securities, each Fleet Capital
Trust will issue one series of Common Securities. The Declaration of each Fleet
Capital Trust authorizes the Regular Trustees of such trust to issue on behalf
of such Fleet Capital Trust one series of Common Securities having such terms
including distributions, redemption, voting, liquidation rights or such
restrictions as shall be set forth therein. Except for voting rights, the terms
of the Common Securities issued by a Fleet Capital Trust will be substantially
identical to the terms of the Preferred Securities issued by such Trust and the
Common Securities will rank pari passu, and payments will be made thereon pro
rata, with the Preferred Securities except that, upon an event of default under
the Declaration, the rights of the holders of the Common Securities to payment
in respect of distributions and payments upon liquidation, redemption and
otherwise will be subordinated to the rights of the holders of the Preferred
Securities. Except in certain limited circumstances, the Common Securities of a
Fleet Capital Trust will also carry the right to vote to appoint, remove or
replace any of the Fleet Capital Trustees of such Trust. All of the Common
Securities of each Fleet Capital Trust will be directly or indirectly owned by
Fleet.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF TRUST PREFERRED SECURITIES
If an Event of Default under the Declaration of a Fleet Capital Trust occurs
and is continuing, then the holders of Preferred Securities of such Fleet
Capital Trust would rely on the enforcement by the Institutional Trustee of its
rights as a holder of the applicable series of Junior Subordinated Debentures
against Fleet. In addition, the holders of a majority in liquidation amount of
the Preferred Securities of such Fleet Capital Trust will 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 applicable Declaration,
including the right to direct the Institutional Trustee to exercise the remedies
available to it under the applicable Indenture as a holder of the Junior
Subordinated Debentures. If the Institutional Trustee fails to enforce its
rights under the applicable series of Junior Subordinated Debentures after a
holder of record of Preferred Securities of such Fleet Capital Trust has made a
written request, such holder of record of Preferred Securities may institute a
legal proceeding directly against Fleet to enforce the Institutional Trustee's
rights under the applicable series of Junior Subordinated 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
under the applicable Declaration has occurred and is continuing and such event
is attributable to the failure of Fleet to pay interest or principal on the
applicable series of Junior Subordinated Debentures on the date such interest or
principal is otherwise payable (or in the case of redemption, on the redemption
date), then a holder of Preferred Securities of such Fleet Capital Trust may
directly institute a proceeding
15
<PAGE>
for enforcement of payment to such holder of the principal of or interest on the
applicable series of Junior Subordinated Debentures having a principal amount
equal to the aggregate liquidation amount of the Preferred Securities of such
holder (a "Direct Action") on or after the respective due date specified in the
applicable series of Junior Subordinated Debentures. In connection with such
Direct Action, Fleet will be subrogated to the rights of such holder of
Preferred Securities under the applicable Declaration to the extent of any
payment made by Fleet to such holder of Preferred Securities in such Direct
Action.
DESCRIPTION OF THE PREFERRED SECURITIES GUARANTEES
Set forth below is a summary of information concerning the Preferred
Securities Guarantees which will be executed and delivered by Fleet for the
benefit of the holders from time to time of Preferred Securities. Each Preferred
Securities Guarantee will be qualified as an indenture under the Trust Indenture
Act. The First National Bank of Chicago will act as indenture trustee under each
Preferred Securities Guarantee for purposes of the Trust Indenture Act (the
"Preferred Guarantee Trustee"). The terms of each Preferred Securities Guarantee
will be those set forth in such Preferred Securities Guarantee and those made
part of such Preferred Securities Guarantee by the Trust Indenture Act. While
the summary of the material terms of the Preferred Securities Guarantees does
not purport to be complete and is subject in all respects to the provisions of,
and is qualified in its entirety by reference to, the form of Preferred
Securities Guarantee, which is filed as an exhibit to the Registration Statement
of which this Prospectus forms a part, and the Trust Indenture Act, all material
terms of the Preferred Securities Guarantee are set forth herein and in any
Prospectus Supplement relating to the particular Preferred Securities being
offered thereby. Each Preferred Securities Guarantee will be held by the
Preferred Guarantee Trustee for the benefit of the holders of the Preferred
Securities of the applicable Fleet Capital Trust.
GENERAL
Pursuant to each Preferred Securities Guarantee, Fleet will agree, to the
extent set forth therein, to pay in full, to the holders of the Preferred
Securities issued by a Fleet Capital Trust, the Guarantee Payments (as defined
herein) (except to the extent paid by such Fleet Capital Trust), as and when
due, regardless of any defense, right of set-off or counterclaim which such
Fleet Capital Trust may have or assert. The following payments with respect to
Preferred Securities issued by a Fleet Capital Trust, to the extent not paid by
such Fleet Capital Trust (the "Guarantee Payments"), will be subject to the
Preferred Securities Guarantee thereon (without duplication): (i) any accrued
and unpaid distributions which are required to be paid on such Preferred
Securities, to the extent such Fleet Capital Trust shall have funds available
therefor; (ii) the redemption price, including all accrued and unpaid
distributions to the date of payment (the "Redemption Price"), to the extent
such Fleet Capital Trust has funds available therefor with respect to any
Preferred Securities called for redemption by such Fleet Capital Trust; and
(iii) upon a voluntary or involuntary dissolution, winding-up or termination of
such Fleet Capital Trust (other than in connection with the distribution of
Junior Subordinated Debentures to the holders of Preferred Securities or the
redemption of all of the Preferred Securities), the lesser of (a) the aggregate
of the liquidation amount and all accrued and unpaid distributions on such
Preferred Securities to the date of payment, to the extent such Fleet Capital
Trust has funds available therefor and (b) the amount of assets of such Fleet
Capital Trust remaining available for distribution to holders of such Preferred
Securities in liquidation of such Fleet Capital Trust. The redemption price and
liquidation amount will be fixed at the time the Preferred Securities are
issued. Fleet's obligation to make a Guarantee Payment may be satisfied by
direct payment of the required amounts by Fleet to the holders of Preferred
Securities or by causing the applicable Fleet Capital Trust to pay such amounts
to such holders.
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The Preferred Securities Guarantees will not apply to any payment of
distributions except to the extent a Fleet Capital Trust shall have funds
available therefor. If Fleet does not make interest payments on the Junior
Subordinated Debentures purchased by a Fleet Capital Trust, such Fleet Capital
Trust will not pay distributions on the Preferred Securities issued by such
Fleet Capital Trust and will not have funds available therefor.
The Preferred Securities Guarantees, when taken together with Fleet's
obligations under the Junior Subordinated Debentures, the Indentures, and the
Declarations, including its obligations to pay costs, expenses, debts and
liabilities of the Fleet Capital Trusts (other than with respect to the Trust
Securities), will provide a full and unconditional guarantee on a subordinated
basis by Fleet of payments due on the Preferred Securities.
Fleet has also agreed separately to irrevocably and unconditionally
guarantee the obligations of the Fleet Capital Trusts with respect to the Common
Securities (the "Common Securities Guarantees") to the same extent as the
Preferred Securities Guarantees, except that upon an event of default under the
Indenture, holders of Preferred Securities shall have priority over holders of
Common Securities with respect to distributions and payments on liquidation,
redemption or otherwise.
CERTAIN COVENANTS OF FLEET
In each Preferred Securities Guarantee, Fleet will covenant that, so long as
any Preferred Securities issued by the applicable Fleet Capital Trust remain
outstanding, if there shall have occurred any event that would constitute an
event of default under such Preferred Securities Guarantee or the Indenture of
such Fleet Capital Trust, or if Fleet has exercised its option to defer interest
payments on the Junior Subordinated Debentures by extending the interest payment
period and such period or extension thereof shall be continuing, then (a) Fleet
shall not declare or pay any dividend on, make any distributions 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 Fleet of its
obligations under any employee benefit plans or any other contractual obligation
of Fleet (other than a contractual obligation ranking pari passu with or junior
to the Junior Subordinated Debentures), (ii) as a result of a reclassification
of Fleet capital stock or the exchange or conversion of one class or series of
Fleet capital stock for another class or series of Fleet capital stock or, (iii)
the purchase of fractional interests in shares of Fleet capital stock pursuant
to the conversion or exchange provisions of such Fleet capital stock or the
security being converted or exchanged), (b) Fleet shall not make any payment of
interest, principal or premium, if any, on or repay, repurchase or redeem any
debt securities issued by Fleet which rank pari passu with or junior to such
Junior Subordinated Debentures and (c) Fleet shall not make any guarantee
payments with respect to the foregoing (other than pursuant to such Preferred
Securities Guarantee).
MODIFICATION OF THE PREFERRED SECURITIES GUARANTEES; ASSIGNMENT
Except with respect to any changes which do not adversely affect the rights
of holders of Preferred Securities (in which case no vote will be required),
each Preferred Securities Guarantee may be amended only with the prior approval
of the holders of at least a majority in liquidation amount of the outstanding
Preferred Securities issued by the applicable Fleet Capital Trust. The manner of
obtaining any such approval of holders of such Preferred Securities will be as
set forth in an accompanying Prospectus Supplement. All guarantees and
agreements contained in a Preferred Securities Guarantee shall bind the
successors, assigns, receivers, trustees and representatives of Fleet and shall
inure to the benefit of the holders of the Preferred Securities of the
applicable Fleet Capital Trust then outstanding. Except in connection with any
merger or consolidation of Fleet with or into another entity or any sale,
transfer or lease of Fleet's assets to another entity, each as permitted by the
Indenture, Fleet may not assign its rights or delegate its obligations under
such Preferred Securities Guarantee without the prior approval of the holders of
at least a majority in liquidation amount of the outstanding Preferred
Securities issued by the applicable Fleet Capital Trust.
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TERMINATION
Each Preferred Securities Guarantee will terminate as to the Preferred
Securities issued by the applicable Fleet Capital Trust (a) upon full payment of
the Redemption Price of all Preferred Securities of such Fleet Capital Trust,
(b) upon distribution of the Junior Subordinated Debentures held by such Fleet
Capital Trust to the holders of the Trust Securities of such Fleet Capital Trust
or (c) upon full payment of the amounts payable in accordance with the
Declaration of such Fleet Capital Trust upon liquidation of such Fleet Capital
Trust. Notwithstanding the foregoing, each Preferred Securities Guarantee will
continue to be effective or will be reinstated, as the case may be, if at any
time any holder of Preferred Securities issued by the applicable Fleet Capital
Trust must restore payment of any sums paid under such Preferred Securities or
such Preferred Securities Guarantee.
EVENTS OF DEFAULT
An event of default under a Preferred Securities Guarantee will occur upon
the failure of the Company to perform any of its payment obligations thereunder.
The holders of a majority in liquidation amount of the Preferred Securities
relating to such Preferred Securities Guarantee have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Preferred Guarantee Trustee in respect of the Preferred Securities Guarantee
or to direct the exercise of any trust or power conferred upon the Preferred
Guarantee Trustee under such Preferred Securities Guarantee. Any holder of
Preferred Securities relating to such Preferred Securities Guarantee may
institute a legal proceeding directly against Fleet to enforce the Preferred
Guarantee Trustee's rights and the obligations of Fleet under such Preferred
Securities Guarantee, without first instituting a legal proceeding against the
relevant Fleet Capital Trust, the Preferred Guarantee Trustee or any other
person or entity.
STATUS OF THE PREFERRED SECURITIES GUARANTEES
The Preferred Securities Guarantees will constitute unsecured obligations of
Fleet and will rank (i) subordinate and junior in right of payment to all other
liabilities of Fleet, 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 Fleet and with any guarantee now or hereafter entered into
by Fleet in respect of any preferred or preference stock of any affiliate of
Fleet, and (iii) senior to Fleet Common Stock. The terms of the Preferred
Securities provide that each holder of Preferred Securities issued by the
applicable Fleet Capital Trust by acceptance thereof agrees to the subordination
provisions and other terms of the Preferred Securities Guarantee relating
thereto.
The Preferred Securities Guarantees will constitute a guarantee of payment
and not of collection (that is, the guaranteed party may institute a legal
proceeding directly against the guarantor to enforce its rights under the
Preferred Securities Guarantee without instituting a legal proceeding against
any other person or entity).
INFORMATION CONCERNING THE PREFERRED GUARANTEE TRUSTEE
The Preferred Guarantee Trustee, prior to the occurrence of a default with
respect to a Preferred Securities Guarantee, undertakes to perform only such
duties as are specifically set forth in such Preferred Securities Guarantee and,
after default, shall exercise the same degree of care as a prudent individual
would exercise in the conduct of his or her own affairs. Subject to such
provisions, the Preferred Guarantee Trustee is under no obligation to exercise
any of the powers vested in it by a Preferred Securities Guarantee at the
request of any holder of Preferred Securities, unless offered reasonable
indemnity against the costs, expenses and liabilities which might be incurred
thereby.
Fleet or its affiliates maintain certain accounts and other banking
relationships with the Preferred Guarantee Trustee and its affiliates in the
ordinary course of business.
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<PAGE>
GOVERNING LAW
The Preferred Securities Guarantees will be governed by and construed in
accordance with the internal laws of the State of New York.
EFFECT OF OBLIGATIONS UNDER THE
JUNIOR SUBORDINATED DEBENTURES AND THE PREFERRED SECURITIES GUARANTEES
As set forth in the Declaration, the sole purpose of each of the Fleet
Capital Trusts is to issue the Trust Securities evidencing undivided beneficial
interests in the assets of each of the Fleet Capital Trusts, and to invest the
proceeds from such issuance and sale in Junior Subordinated Debentures.
As long as payments of interest and other payments are made when due on the
Junior Subordinated Debentures held by a Fleet Capital Trust, such payments will
be sufficient to cover distributions and payments due on the Trust Securities of
such Trust because of the following factors: (i) the aggregate principal amount
of such Junior Subordinated Debentures will be equal to the sum of the aggregate
stated liquidation amount of the Trust Securities; (ii) the interest rate and
the interest and other payment dates on such Junior Subordinated Debentures will
match the distribution rate and distribution and other payment dates for the
Preferred Securities; (iii) Fleet shall pay all, and the Fleet Capital Trust
shall not be obligated to pay, directly or indirectly, any costs, expenses, debt
and obligations of such Fleet Capital Trust (other than with respect to the
Trust Securities); and (iv) the Declaration further provides that the Fleet
Capital Trustees shall not take or cause or permit the Fleet Capital Trust to,
among other things, engage in any activity that is not consistent with the
purposes of such Fleet Capital Trust. Payments of distributions (to the extent
funds therefor are available) and other payments due on the Preferred Securities
(to the extent funds therefor are available) are guaranteed by Fleet as and to
the extent set forth under "Description of the Preferred Securities Guarantees."
If Fleet does not make interest payments on the Junior Subordinated Debentures
purchased by the applicable Fleet Capital Trust, the applicable Fleet Capital
Trust will not have sufficient funds to pay distributions on the Preferred
Securities. The Preferred Securities Guarantee does not apply to any payment of
distributions unless and until the applicable Fleet Capital Trust has sufficient
funds for the payment of such distributions. The Preferred Securities Guarantee
covers the payment of distributions and other payments on the Preferred
Securities only if and to the extent that Fleet has made a payment of interest
or principal on the Junior Subordinated Debentures held by the applicable Fleet
Capital Trust as its sole asset. The Preferred Securities Guarantee, when taken
together with Fleet's obligations under the Junior Subordinated Debentures and
the Indenture and its obligations under the Declaration, including its
obligations to pay costs, expenses, debts and liabilities of the applicable
Fleet Capital Trust (other than with respect to the Trust Securities), provide a
full and unconditional guarantee of amounts on the Preferred Securities.
If Fleet fails to make interest or other payments on a series of Junior
Subordinated Debentures when due (taking account of any Extension Period), the
Declarations provide a mechanism whereby the holders of the Preferred Securities
affected thereby, using the procedures described in any accompanying Prospectus
Supplement, may direct the Institutional Trustee to enforce its rights under the
Junior Subordinated Debentures. If the Institutional Trustee fails to enforce
its rights under the Junior Subordinated Debentures, a holder of Preferred
Securities of a Trust may institute a legal proceeding against Fleet to enforce
the Institutional Trustee's rights under the Junior Subordinated Debentures
owned by such Trust without first instituting any legal proceeding against the
Institutional Trustee or any other person or entity. Notwithstanding the
foregoing, if a Declaration Event of Default has occurred and is continuing and
such event is attributable to the failure of Fleet to pay interest or principal
on Junior Subordinated Debentures on the date such interest of principal is
otherwise payable (or in the case of redemption, on the redemption date), then a
holder of Preferred Securities of a Trust may institute a Direct Action for
payment on or after the respective due date specified in the Junior Subordinated
Debentures owned by such Trust. In connection with such Direct Action, Fleet
will be subrogated to the rights of such holder of Preferred Securities under
the Declaration to the extent of any payment made by Fleet to such holder of
Preferred
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Securities in such Direct Action. Fleet, under the Preferred Securities
Guarantee, acknowledges that the Guarantee Trustee shall enforce the Preferred
Securities Guarantee on behalf of the holders of the Preferred Securities. If
Fleet fails to make payments under the Preferred Securities Guarantee, the
Preferred Securities Guarantee provides a mechanism whereby the holders of the
Preferred Securities may direct the Guarantee Trustee to enforce its rights
thereunder. Any holder of Preferred Securities may institute a legal proceeding
directly against Fleet to enforce the Guarantee Trustee's rights and the
obligations of Fleet under the Preferred Securities Guarantee without first
instituting a legal proceeding against the applicable Fleet Capital Trust, the
Guarantee Trustee, or any other person or entity.
Fleet and each of the Fleet Capital Trusts believe that the above mechanisms
and obligations, taken together, provide a full and unconditional guarantee by
Fleet of payments due on the Preferred Securities. See "Description of the
Preferred Securities Guarantees--General."
PLAN OF DISTRIBUTION
Fleet may sell the Junior Subordinated Debentures and any Fleet Capital
Trust may sell Preferred Securities in any of, or any combination of, the
following ways: (i) directly to purchasers, (ii) through agents and (iii)
through underwriters or dealers. Such underwriters, dealers or agents may be
affiliates of Fleet, and offers or sales of such securities may include
secondary market transactions by affiliates of Fleet.
Offers to purchase Offered Securities may be solicited directly by Fleet
and/or any Fleet Capital Trust, as the case may be, or by agents designated by
Fleet and/or any Fleet Capital Trust, as the case may be, from time to time. Any
such agent, who may be deemed to be an underwriter as that term is defined in
the Securities Act, involved in the offer or sale of the Offered Securities in
respect of which this Prospectus is delivered will be named, and any commissions
payable by Fleet to such agent will be set forth, in the Prospectus Supplement.
Unless otherwise indicated in the Prospectus Supplement, any such agency will be
acting on a best efforts basis for the period of its appointment (ordinarily
five business days or less). Agents, dealers and underwriters may be customers
of, engage in transactions with, or perform services for Fleet in the ordinary
course of business.
If an underwriter or underwriters are utilized in the sale, Fleet will
execute an underwriting agreement with such underwriters at the time of sale to
them and the names of the underwriters and the terms of the transaction will be
set forth in the Prospectus Supplement, which will be used by the underwriters
to make releases of the Offered Securities in respect of which this Prospectus
is delivered to the public.
If a dealer is utilized in the sale of the Offered Securities in respect of
which this Prospectus is delivered, Fleet and/or any Fleet Capital Trust, as the
case may be, will sell such Offered Securities to the dealer, as principal. The
dealer may then resell such Offered Securities to the public at varying prices
to be determined by such dealer at the time of resale. The name of the dealer
and the terms of the transaction will be set forth in the Prospectus Supplement.
Agents, underwriters, and dealers may be entitled under the relevant agreements
to indemnification by Fleet and/or any Fleet Capital Trust, as the case may be,
against certain liabilities, including liabilities under the Securities Act.
This Prospectus and related Prospectus Supplement may be used by direct or
indirect subsidiaries of Fleet in connection with offers and sales related to
secondary market transactions. Such subsidiaries may act as principal or agent
in such transactions. Such sales may be made at prices related to prevailing
market prices at the time of sale.
The participation of an affiliate or subsidiary of Fleet in the offer and
sale of the Offered Securities will comply with the requirements of Rule 2720 of
the By-laws of the National Association of Securities Dealers, Inc. (the "NASD")
regarding underwriting securities of the affiliate. No NASD member participating
in offers and sales will execute a transaction in the Securities in a
discretionary account without the prior written specific approval of the
member's customer.
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Underwriters, agents or their controlling persons may engage in transactions
with and perform services for Fleet in the ordinary course of business.
LEGAL MATTERS
Certain matters of Delaware law relating to the validity of the Preferred
Securities will be passed upon on behalf of each of the Fleet Capital Trusts by
Skadden, Arps, Slate, Meagher & Flom LLP, special Delaware counsel to the Fleet
Capital Trusts. The validity of the Junior Subordinated Debentures and the
Preferred Securities Guarantee and certain matters relating thereto will be
passed upon for Fleet and certain United States federal income taxation matters
will be passed upon for Fleet and the Fleet Capital Trusts by Edwards & Angell,
LLP, One BankBoston Plaza, Providence, Rhode Island 02903. V. Duncan Johnson, a
partner of Edwards & Angell, LLP, is a director of Fleet National Bank and
beneficially owns 4,052 shares of Fleet Common Stock. Certain legal matters will
be passed upon for the Underwriters by Skadden, Arps, Slate, Meagher & Flom LLP,
New York, New York.
EXPERTS
The consolidated financial statements of Fleet contained in Fleet's Current
Report on Form 8-K dated May 5, 1998, incorporated by reference herein (and
elsewhere in the Registration Statement) have been incorporated by reference
herein (and elsewhere in the Registration Statement) in reliance upon the report
of KPMG Peat Marwick LLP, independent certified public accountants, incorporated
by reference herein (and elsewhere in the Registration Statement) and upon the
authority of said firm as experts in accounting and auditing.
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NO DEALER, SALESPERSON OR ANY OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE
ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS IN
CONNECTION WITH THE OFFER MADE BY THIS PROSPECTUS SUPPLEMENT AND THE PROSPECTUS
AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED
UPON AS HAVING BEEN AUTHORIZED BY FLEET FINANCIAL GROUP, INC., THE TRUSTS OR THE
UNDERWRITERS. NEITHER THE DELIVERY OF THIS PROSPECTUS SUPPLEMENT AND THE
PROSPECTUS NOR ANY SALE MADE HEREUNDER AND THEREUNDER SHALL UNDER ANY
CIRCUMSTANCES CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS
OF FLEET FINANCIAL GROUP, INC. OR THE TRUSTS SINCE THE DATE HEREOF. THIS
PROSPECTUS SUPPLEMENT AND THE PROSPECTUS DO NOT CONSTITUTE AN OFFER OR
SOLICITATION BY ANYONE IN ANY STATE IN WHICH SUCH OFFER OR SOLICITATION IS NOT
AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT
QUALIFIED TO DO SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION.
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
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<S> <C>
PROSPECTUS
Available Information..................................................... 3
Incorporation of Certain Documents by Reference........................... 4
Fleet Financial Group, Inc................................................ 5
The Trusts................................................................ 6
Consolidated Ratios of Earnings to Fixed Charges.......................... 7
Reason for Transaction.................................................... 7
Use of Proceeds........................................................... 7
Description of the Junior Subordinated Debentures......................... 8
Description of the Preferred Securities................................... 13
Description of the Preferred Securities Guarantees........................ 16
Effect of Obligations Under the Junior Subordinated Debentures and the
Preferred Securities Guarantees......................................... 19
Plan of Distribution...................................................... 20
Legal Matters............................................................. 21
Experts................................................................... 21
</TABLE>
[LOGO]
FLEET CAPITAL TRUST
PREFERRED SECURITIES
FULLY AND UNCONDITIONALLY
GUARANTEED BY
FLEET FINANCIAL GROUP, INC.
---------------------
PROSPECTUS
---------------------
, 1998
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBITS
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<C> <S>
1(a) --Proposed form of Underwriting Agreement for Debt Securities (incorporated by reference to
Exhibit 1(a) of Registration Statement No. 33-63631).
1(b) --Proposed form of Underwriting Agreement for Preferred Stock and Common Stock (incorporated by
reference to Exhibit 1(b) of Registration Statement No. 33-63631).
1(c) --Proposed form of Selling Agency Agreement for Debt Securities (incorporated by reference to
Exhibit 1(b) of Registration Statement No. 33-45137).
1(d) --Form of Underwriting Agreement for offering of Preferred Securities (incorporated by reference
to Exhibit 1 of Registration Statement No. 333-15435).
4(a) --Senior Indenture dated October 1, 1992 between the Registrant and The First National Bank of
Chicago, as Trustee (incorporated by reference to Exhibit 4(a) of Registration Statement No.
33-50216).
4(b) --Form of Warrant Agreement for Warrants attached to Debt Securities (incorporated by reference
to Exhibit 4(b)(1) of Registration Statement No. 33-3573).
4(c) --Form of Warrant Agreement for Warrants not attached to Debt Securities (incorporated by
reference to Exhibit 4(b)(2) of Registration Statement No. 33-3573).
4(d) --Form of Note for Senior Debt Securities (included in Exhibit 4(a) on pages 18 through 27).
4(e) --Subordinated Indenture dated October 1, 1992 between the Registrant and The First National Bank
of Chicago, as Trustee (incorporated by reference to Exhibit 4(d) of Registration Statement No.
33-50216), as supplemented by a First Supplemental Indenture dated November 30, 1992
(incorporated by reference to Exhibit 4 to the Registrant's Current Report on Form 8-K dated
November 30, 1992).
4(f) --Form of Note for Subordinated Debt Securities (incorporated by reference to Exhibit 4(c) of
Registration Statement No. 33-40965).
4(g) --Form of Medium-Term Note (incorporated by reference to Exhibit 4(f) of Registration Statement
No. 33-50216).
4(h) --Restated Articles of Incorporation of the Registrant (incorporated by reference to Exhibit 1 of
Fleet's Registration Statement on Form 8-A dated February 27, 1996).
4(i) --Bylaws of the Registrant (incorporated by reference to Exhibit 2 of Fleet's Registration
Statement on Form 8-A dated February 27, 1996).
4(j) --Form of Certificate of Designations (incorporated by reference to Exhibit 4(a) of Registration
Statement No. 33-40967).
4(k) --Form of Deposit Agreement (incorporated by reference to Exhibit 4(b) of Registration Statement
No. 33-40967).
4(l) --Form of Warrant Agreement for Warrants attached to Common Stock or Preferred Stock
(incorporated by reference to Exhibit 4(j) of Registration Statement No. 33-55555).
4(m) --Form of Warrant Agreement for Warrants not attached to Common Stock or Preferred Stock
(incorporated by reference to Exhibit 4(k) of Registration Statement No. 33-55555).
</TABLE>
II-1
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS
- ---------------
<C> <S>
4(n) --Rights Agreement dated as of November 21, 1990 between the Registrant and Fleet National Bank,
as amended by a First Amendment thereto dated as of March 28, 1991 and a Second Amendment
thereto dated as of July 12, 1991 and a Third Amendment thereto dated as of February 20, 1995
(incorporated by reference to Exhibit 1 to the Registrant's Current Report on Form 8-K dated
November 21, 1990, Exhibits 4(a) and 4(b) to the Registrant's Current Report on Form 8-K dated
March 28, 1991 and Exhibit 99.3 to the Registrant's Current Report on Form 8-K dated February
20, 1995).
4(o) --Instruments defining the rights of security holders, including indentures (Registrant has no
instruments defining the rights of holders of equity or debt securities where the amount of
securities authorized thereunder exceeds 10% of the total assets of Registrant and its
subsidiaries on a consolidated basis. Registrant hereby agrees to furnish a copy of any such
instrument to the Commission upon request).
4(p) --Form of Rights Certificate for stock purchase rights issued to Whitehall Associates, L.P., and
KKR Partners II, L.P. (incorporated by reference to Exhibit 4(c) of Fleet's Current Report on
Form 8-K dated July 12, 1991).
4(q)(v) --Certificate of Trust of Fleet Capital Trust V (incorporated by reference to Exhibit 4(a)(v) of
Registration Statement No. 333-15435).
4(q)(vi) --Certificate of Trust of Fleet Capital Trust VI (incorporated by reference to Exhibit 4(a)(vi)
of Registration Statement No. 333-48043).
4(q)(vii) --Certificate of Trust of Fleet Capital Trust VII (incorporated by reference to Exhibit 4(a)(vii)
of Registration Statement No. 333-48043).
4(q)(viii) --Certificate of Trust of Fleet Capital Trust VIII (incorporated by reference to Exhibit
4(a)(viii) of Registration Statement No. 333-48043).
*4(q)(ix) --Certificate of Trust of Fleet Capital Trust IX.
*4(q)(x) --Certificate of Trust of Fleet Capital Trust X.
4(r)(v) --Declaration of Trust of Fleet Capital Trust V (incorporated by reference to Exhibit 4(b)(v) of
Registration Statement No. 333-15435).
4(r)(vi) --Declaration of Trust of Fleet Capital Trust VI (incorporated by reference to Exhibit 4(b)(vi)
of Registration Statement No. 333-48043).
4(r)(vii) --Declaration of Trust of Fleet Capital Trust VII (incorporated by reference to Exhibit 4(b)(vii)
of Registration Statement No. 333-48043).
4(r)(viii) --Declaration of Trust of Fleet Capital Trust VIII (incorporated by reference to Exhibit
4(b)(viii) of Registration Statement No. 333-48043).
*4(r)(ix) --Declaration of Trust of Fleet Capital Trust IX.
*4(r)(x) --Declaration of Trust of Fleet Capital Trust X.
4(s) --Form of Amended and Restated Declaration of Trust to be used in connection with the issuance of
the Preferred Securities (incorporated by reference to Exhibit 4(c) of Registration Statement
No. 333-15435).
*4(t) --Form of Indenture between Fleet and The First National Bank of Chicago, as Trustee.
4(u) --Form of Supplemental Indenture to be used in connection with the issuance of the Junior
Subordinated Debentures and Preferred Securities (incorporated by reference to Exhibit 4(e) of
Registration Statement No. 333-15435).
4(v) --Form of Preferred Security (included in Exhibit 4(s)).
4(w) --Form of Junior Subordinated Debenture (included in Exhibit 4(u)).
4(x) --Form of Preferred Securities Guarantee (incorporated by reference to Exhibit 4(h) of
Registration Statement No. 333-15435).
*5(a) --Opinion of Edwards & Angell, LLP as to legality of Debt Securities, Preferred Stock and Common
Stock.
*5(b) --Opinion of Edwards & Angell, LLP to be used in connection with the issuance of the Junior
Subordinated Debentures and Preferred Securities.
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS
- ---------------
<C> <S>
*5(c) --Opinion of Skadden, Arps, Slate, Meagher & Flom, LLP to be used in connection with the issuance
of the Junior Subordinated Debentures and Preferred Securities.
*8 --Tax Opinion of Edwards & Angell, LLP to be used in connection with the issuance of the Junior
Subordinated Debentures and Preferred Securities.
*12(a) --Computation of Ratio of Earnings to Fixed Charges.
*12(b) --Computation of Ratio of Earnings to Fixed Charges and Dividends on Preferred Stock.
*23(a) --Consent of KPMG Peat Marwick LLP.
23(b) --Consent of Edwards & Angell, LLP (included in Exhibit 5(a)).
23(c) --Consent of Skadden, Arps, Slate, Meagher & Flom (included in Exhibit 5(b)).
24(a) --Power of Attorney of certain officers and directors for Fleet (included on signature pages).
24(b) --Powers of Attorney for Fleet Capital Trusts (included in Exhibit 4(r))
25(a) --Form T-1 Statement of Eligibility and Qualification of The First National Bank of Chicago, as
Senior Trustee and Subordinated Trustee (incorporated by reference to Exhibit 25 of
Registration Statement No. 333-37231).
25(b) --Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The First
National Bank of Chicago, as Trustee under the Indenture and under the Preferred Securities
Guarantee of Fleet Capital Trust V (incorporated by reference to Exhibit 25(a) of Registration
Statement No. 333-15435).
25(c) --Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The First
National Bank of Chicago, as Trustee under the Amended and Restated Declaration of Trust of
Fleet Capital Trust V (incorporated by reference to Exhibit 25(f) of Registration Statement No.
333-15435).
25(d) --Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The First
National Bank of Chicago, as Trustee under the Indenture with respect to Fleet Capital Trust
VI, Fleet Capital Trust VII and Fleet Capital Trust VIII (incorporated by reference to Exhibit
25(g) of Registration Statement No. 333-48043).
*25(e) --Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The First
National Bank of Chicago, as Trustee under the Indenture with respect to Fleet Capital Trust IX
and Fleet Capital Trust X.
25(f) --Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The First
National Bank of Chicago, as Trustee under the Preferred Securities Guarantee of Fleet Capital
Trust VI (incorporated by reference to Exhibit 25(h) of Registration Statement No. 333-48043).
25(g) --Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The First
National Bank of Chicago, as Trustee under the Preferred Securities Guarantee of Fleet Capital
Trust VII (incorporated by reference to Exhibit 25(i) of Registration Statement No. 333-48043).
25(h) --Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The First
National Bank of Chicago, as Trustee under the Preferred Securities Guarantee of Fleet Capital
Trust VIII (incorporated by reference to Exhibit 25(j) of Registration Statement No.
333-48043).
*25(i) --Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The First
National Bank of Chicago, as Trustee under the Preferred Securities Guarantee of Fleet Capital
Trust IX.
*25(j) --Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The First
National Bank of Chicago, as Trustee under the Preferred Securities Guarantee of Fleet Capital
Trust X.
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS
- ---------------
<C> <S>
25(k) --Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The First
National Bank of Chicago, as Trustee under the Amended and Restated Declaration of Trust of
Fleet Capital Trust VI (incorporated by reference to Exhibit 25(k) of Registration Statement
No. 333-48043).
25(l) --Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The First
National Bank of Chicago, as Trustee under the Amended and Restated Declaration of Trust of
Fleet Capital Trust VII (incorporated by reference to Exhibit 25(l) of Registration Statement
No. 333-48043).
25(m) --Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The First
National Bank of Chicago, as Trustee under the Amended and Restated Declaration of Trust of
Fleet Capital Trust VIII (incorporated by reference to Exhibit 25(m) of Registration Statement
No. 333-48043).
*25(n) --Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The First
National Bank of Chicago, as Trustee under the Amended and Restated Declaration of Trust of
Fleet Capital Trust IX.
*25(o) --Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The First
National Bank of Chicago, as Trustee under the Amended and Restated Declaration of Trust of
Fleet Capital Trust X.
</TABLE>
- ------------------------
* Filed herewith.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
Form S-3 Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized in the City of Boston, and Commonwealth of
Massachusetts, on September 23, 1998.
FLEET FINANCIAL GROUP, INC.
By: /s/ WILLIAM C. MUTTERPERL
----------------------------------------
WILLIAM C. MUTTERPERL
EXECUTIVE VICE PRESIDENT, SECRETARY AND
GENERAL COUNSEL
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to Form S-3 Registration Statement has been signed by the following
persons in the capacities indicated on September 23, 1998.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ----------------------------------------------------- --------------------------------------------------------
<S> <C>
*
------------------------------------------ Chairman, Chief Executive
TERRENCE MURRAY Officer and Director
*
------------------------------------------ Vice Chairman and
EUGENE M. MCQUADE Chief Financial Officer
*
------------------------------------------ Chief Accounting Officer and Controller
ROBERT C. LAMB, JR.
------------------------------------------ Director
JOEL B. ALVORD
*
------------------------------------------ Director
WILLIAM BARNET, III
*
------------------------------------------ Director
BRADFORD R. BOSS
*
------------------------------------------ Director
STILLMAN B. BROWN
*
------------------------------------------ Director
PAUL J. CHOQUETTE, JR.
*
------------------------------------------ Director
KIM B. CLARK
*
------------------------------------------ Director
JOHN T. COLLINS
*
------------------------------------------ Director
JAMES F. HARDYMON
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ----------------------------------------------------- --------------------------------------------------------
<S> <C>
*
------------------------------------------ Director
MARIAN L. HEARD
*
------------------------------------------ Director
ROBERT M. KAVNER
*
------------------------------------------ Director
RAYMOND C. KENNEDY
*
------------------------------------------ Director
ROBERT J. MATURA
*
------------------------------------------ Director
ARTHUR C. MILOT
*
------------------------------------------ Director
THOMAS D. O'CONNOR, SR.
*
------------------------------------------ Director
MICHAEL B. PICOTTE
*
------------------------------------------ Director
THOMAS C. QUICK
*
------------------------------------------ Director
LOIS D. RICE
*
------------------------------------------ Director
JOHN R. RIEDMAN
*
------------------------------------------ Director
THOMAS M. RYAN
*
------------------------------------------ Director
SAMUEL O. THIER, M.D.
*
------------------------------------------ Director
PAUL R. TREGURTHA
</TABLE>
<TABLE>
<S> <C> <C> <C>
*By: /s/ WILLIAM C.
MUTTERPERL
-------------------------
WILLIAM C. MUTTERPERL
ATTORNEY-IN-FACT
</TABLE>
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each Trust has
duly caused this Amendment No. 1 to Form S-3 Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Boston, The Commonwealth of Massachusetts, on September 23, 1998.
FLEET CAPITAL TRUST V
FLEET CAPITAL TRUST VI
FLEET CAPITAL TRUST VII
FLEET CAPITAL TRUST VIII
FLEET CAPITAL TRUST IX
FLEET CAPITAL TRUST X
By: /s/ JOHN R. RODEHORST
----------------------------------------
JOHN R. RODEHORST
TRUSTEE
II-7
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBITS
- ---------------
<C> <S>
1(a) --Proposed form of Underwriting Agreement for Debt Securities (incorporated by reference to
Exhibit 1(a) of Registration Statement No. 33-63631).
1(b) --Proposed form of Underwriting Agreement for Preferred Stock and Common Stock (incorporated by
reference to Exhibit 1(b) of Registration Statement No. 33-63631).
1(c) --Proposed form of Selling Agency Agreement for Debt Securities (incorporated by reference to
Exhibit 1(b) of Registration Statement No. 33-45137).
1(d) --Form of Underwriting Agreement for offering of Preferred Securities (incorporated by reference
to Exhibit 1 of Registration Statement No. 333-15435).
4(a) --Senior Indenture dated October 1, 1992 between the Registrant and The First National Bank of
Chicago, as Trustee (incorporated by reference to Exhibit 4(a) of Registration Statement No.
33-50216).
4(b) --Form of Warrant Agreement for Warrants attached to Debt Securities (incorporated by reference
to Exhibit 4(b)(1) of Registration Statement No. 33-3573).
4(c) --Form of Warrant Agreement for Warrants not attached to Debt Securities (incorporated by
reference to Exhibit 4(b)(2) of Registration Statement No. 33-3573).
4(d) --Form of Note for Senior Debt Securities (included in Exhibit 4(a) on pages 18 through 27).
4(e) --Subordinated Indenture dated October 1, 1992 between the Registrant and The First National Bank
of Chicago, as Trustee (incorporated by reference to Exhibit 4(d) of Registration Statement No.
33-50216), as supplemented by a First Supplemental Indenture dated November 30, 1992
(incorporated by reference to Exhibit 4 to the Registrant's Current Report on Form 8-K dated
November 30, 1992).
4(f) --Form of Note for Subordinated Debt Securities (incorporated by reference to Exhibit 4(c) of
Registration Statement No. 33-40965).
4(g) --Form of Medium-Term Note (incorporated by reference to Exhibit 4(f) of Registration Statement
No. 33-50216).
4(h) --Restated Articles of Incorporation of the Registrant (incorporated by reference to Exhibit 1 of
Fleet's Registration Statement on Form 8-A dated February 27, 1996).
4(i) --Bylaws of the Registrant (incorporated by reference to Exhibit 2 of Fleet's Registration
Statement on Form 8-A dated February 27, 1996).
4(j) --Form of Certificate of Designations (incorporated by reference to Exhibit 4(a) of Registration
Statement No. 33-40967).
4(k) --Form of Deposit Agreement (incorporated by reference to Exhibit 4(b) of Registration Statement
No. 33-40967).
4(l) --Form of Warrant Agreement for Warrants attached to Common Stock or Preferred Stock
(incorporated by reference to Exhibit 4(j) of Registration Statement No. 33-55555).
4(m) --Form of Warrant Agreement for Warrants not attached to Common Stock or Preferred Stock
(incorporated by reference to Exhibit 4(k) of Registration Statement No. 33-55555).
4(n) --Rights Agreement dated as of November 21, 1990 between the Registrant and Fleet National Bank,
as amended by a First Amendment thereto dated as of March 28, 1991 and a Second Amendment
thereto dated as of July 12, 1991 and a Third Amendment thereto dated as of February 20, 1995
(incorporated by reference to Exhibit 1 to the Registrant's Current Report on Form 8-K dated
November 21, 1990, Exhibits 4(a) and 4(b) to the Registrant's Current Report on Form 8-K dated
March 28, 1991 and Exhibit 99.3 to the Registrant's Current Report on Form 8-K dated February
20, 1995).
4(o) --Instruments defining the rights of security holders, including indentures (Registrant has no
instruments defining the rights of holders of equity or debt securities where the amount of
securities authorized thereunder exceeds 10% of the total assets of Registrant and its
subsidiaries on a consolidated basis. Registrant hereby agrees to furnish a copy of any such
instrument to the Commission upon request).
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS
- ---------------
<C> <S>
4(p) --Form of Rights Certificate for stock purchase rights issued to Whitehall Associates, L.P., and
KKR Partners II, L.P. (incorporated by reference to Exhibit 4(c) of Fleet's Current Report on
Form 8-K dated July 12, 1991).
4(q)(v) --Certificate of Trust of Fleet Capital Trust V (incorporated by reference to Exhibit 4(a)(v) of
Registration Statement No. 333-15435).
4(q)(vi) --Certificate of Trust of Fleet Capital Trust VI (incorporated by reference to Exhibit 4(a)(vi)
of Registration Statement No. 333-48043).
4(q)(vii) --Certificate of Trust of Fleet Capital Trust VII (incorporated by reference to Exhibit 4(a)(vii)
of Registration Statement No. 333-48043).
4(q)(viii) --Certificate of Trust of Fleet Capital Trust VIII (incorporated by reference to Exhibit
4(a)(viii) of Registration Statement No. 333-48043).
*4(q)(ix) --Certificate of Trust of Fleet Capital Trust IX.
*4(q)(x) --Certificate of Trust of Fleet Capital Trust X.
4(r)(v) --Declaration of Trust of Fleet Capital Trust V (incorporated by reference to Exhibit 4(b)(v) of
Registration Statement No. 333-15435).
4(r)(vi) --Declaration of Trust of Fleet Capital Trust VI (incorporated by reference to Exhibit 4(b)(vi)
of Registration Statement No. 333-48043).
4(r)(vii) --Declaration of Trust of Fleet Capital Trust VII (incorporated by reference to Exhibit 4(b)(vii)
of Registration Statement No. 333-48043).
4(r)(viii) --Declaration of Trust of Fleet Capital Trust VIII (incorporated by reference to Exhibit
4(b)(viii) of Registration Statement No. 333-48043).
*4(r)(ix) --Declaration of Trust of Fleet Capital Trust IX.
*4(r)(x) --Declaration of Trust of Fleet Capital Trust X.
4(s) --Form of Amended and Restated Declaration of Trust to be used in connection with the issuance of
the Preferred Securities (incorporated by reference to Exhibit 4(c) of Registration Statement
No. 333-15435).
*4(t) --Form of Indenture between Fleet and The First National Bank of Chicago, as Trustee.
4(u) --Form of Supplemental Indenture to be used in connection with the issuance of the Junior
Subordinated Debentures and Preferred Securities (incorporated by reference to Exhibit 4(e) of
Registration Statement No. 333-15435).
4(v) --Form of Preferred Security (included in Exhibit 4(s)).
4(w) --Form of Junior Subordinated Debenture (included in Exhibit 4(u)).
4(x) --Form of Preferred Securities Guarantee (incorporated by reference to Exhibit 4(h) of
Registration Statement No. 333-15435).
*5(a) --Opinion of Edwards & Angell, LLP as to legality of Debt Securities, Preferred Stock and Common
Stock.
*5(b) --Opinion of Edwards & Angell, LLP to be used in connection with the issuance of the Junior
Subordinated Debentures and Preferred Securities.
*5(c) --Opinion of Skadden, Arps, Slate, Meagher & Flom, LLP to be used in connection with the issuance
of the Junior Subordinated Debentures and Preferred Securities.
*8 --Tax Opinion of Edwards & Angell, LLP to be used in connection with the issuance of the Junior
Subordinated Debentures and Preferred Securities.
*12(a) --Computation of Ratio of Earnings to Fixed Charges.
*12(b) --Computation of Ratio of Earnings to Fixed Charges and Dividends on Preferred Stock.
*23(a) --Consent of KPMG Peat Marwick LLP.
23(b) --Consent of Edwards & Angell, LLP (included in Exhibit 5(a)).
23(c) --Consent of Skadden, Arps, Slate, Meagher & Flom (included in Exhibit 5(b)).
24(a) --Power of Attorney of certain officers and directors for Fleet (included on signature pages).
24(b) --Powers of Attorney for Fleet Capital Trusts (included in Exhibit 4(r))
25(a) --Form T-1 Statement of Eligibility and Qualification of The First National Bank of Chicago, as
Senior Trustee and Subordinated Trustee (incorporated by reference to Exhibit 25 of
Registration Statement No. 333-37231).
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS
- ---------------
<C> <S>
25(b) --Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The First
National Bank of Chicago, as Trustee under the Indenture and under the Preferred Securities
Guarantee of Fleet Capital Trust V (incorporated by reference to Exhibit 25(a) of Registration
Statement No. 333-15435).
25(c) --Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The First
National Bank of Chicago, as Trustee under the Amended and Restated Declaration of Trust of
Fleet Capital Trust V (incorporated by reference to Exhibit 25(f) of Registration Statement No.
333-15435).
25(d) --Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The First
National Bank of Chicago, as Trustee under the Indenture with respect to Fleet Capital Trust
VI, Fleet Capital Trust VII and Fleet Capital Trust VIII (incorporated by reference to Exhibit
25(g) of Registration Statement No. 333-48043).
*25(e) --Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The First
National Bank of Chicago, as Trustee under the Indenture with respect to Fleet Capital Trust IX
and Fleet Capital Trust X.
25(f) --Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The First
National Bank of Chicago, as Trustee under the Preferred Securities Guarantee of Fleet Capital
Trust VI (incorporated by reference to Exhibit 25(h) of Registration Statement No. 333-48043).
25(g) --Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The First
National Bank of Chicago, as Trustee under the Preferred Securities Guarantee of Fleet Capital
Trust VII (incorporated by reference to Exhibit 25(i) of Registration Statement No. 333-48043).
25(h) --Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The First
National Bank of Chicago, as Trustee under the Preferred Securities Guarantee of Fleet Capital
Trust VIII (incorporated by reference to Exhibit 25(j) of Registration Statement No.
333-48043).
*25(i) --Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The First
National Bank of Chicago, as Trustee under the Preferred Securities Guarantee of Fleet Capital
Trust IX.
*25(j) --Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The First
National Bank of Chicago, as Trustee under the Preferred Securities Guarantee of Fleet Capital
Trust X.
25(k) --Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The First
National Bank of Chicago, as Trustee under the Amended and Restated Declaration of Trust of
Fleet Capital Trust VI (incorporated by reference to Exhibit 25(k) of Registration Statement
No. 333-48043).
25(l) --Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The First
National Bank of Chicago, as Trustee under the Amended and Restated Declaration of Trust of
Fleet Capital Trust VII (incorporated by reference to Exhibit 25(l) of Registration Statement
No. 333-48043).
25(m) --Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The First
National Bank of Chicago, as Trustee under the Amended and Restated Declaration of Trust of
Fleet Capital Trust VIII (incorporated by reference to Exhibit 25(m) of Registration Statement
No. 333-48043).
*25(n) --Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The First
National Bank of Chicago, as Trustee under the Amended and Restated Declaration of Trust of
Fleet Capital Trust IX.
*25(o) --Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The First
National Bank of Chicago, as Trustee under the Amended and Restated Declaration of Trust of
Fleet Capital Trust X.
</TABLE>
- ------------------------
* Filed herewith.
<PAGE>
Exhibit 4(q)(ix)
CERTIFICATE OF TRUST
OF
FLEET CAPITAL TRUST IX
This Certificate of Trust of Fleet Capital Trust IX dated September 3,
1998, is hereby duly executed and filed by the undersigned, as trustees of Fleet
Capital Trust IX, for the purpose of forming a business trust under the Delaware
Business Trust Act, 12 Del. C. Section 3801 et. seq. The undersigned hereby
certify as follows:
1. Name. The name of the business trust formed hereby (the "Trust") is
"Fleet Capital Trust IX."
2. Delaware Trustee. The name and business address of the trustee of
the Trust which has its principal place of business in the State of Delaware, as
required by 12 Del. C. Sec. 3807 (a), is First Chicago Delaware Inc., a Delaware
corporation, 300 King Street, Wilmington, Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective as of
the date of its filing.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust at
the time of filing of this Certificate of Trust, have executed this Certificate
of Trust as of the date first above written.
/s/ William C. Mutterperl
---------------------------------------
Name: William C. Mutterperl
Title: Trustee
/s/ Douglas L. Jacobs
---------------------------------------
Name: Douglas L. Jacobs
Title: Trustee
/s/ John R. Rodehorst
---------------------------------------
Name: John R. Rodehorst
Title: Trustee
[SIGNATURES CONTINUED ON NEXT PAGE]
<PAGE>
FIRST CHICAGO DELAWARE INC.,
as Trustee
By: /s/ John R. Prendiville
------------------------------------
Name: John R. Prendiville
Title: Vice President
<PAGE>
Exhibit 4(q)(x)
CERTIFICATE OF TRUST
OF
FLEET CAPITAL TRUST X
This Certificate of Trust of Fleet Capital Trust X dated September 3,
1998, is hereby duly executed and filed by the undersigned, as trustees of Fleet
Capital Trust X, for the purpose of forming a business trust under the Delaware
Business Trust Act, 12 Del. C. Section 3801 et. seq. The undersigned hereby
certify as follows:
1. Name. The name of the business trust formed hereby (the "Trust") is
"Fleet Capital Trust X."
2. Delaware Trustee. The name and business address of the trustee of
the Trust which has its principal place of business in the State of Delaware, as
required by 12 Del. C. Sec. 3807 (a), is First Chicago Delaware Inc., a Delaware
corporation, 300 King Street, Wilmington, Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective as of
the date of its filing.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust at
the time of filing of this Certificate of Trust, have executed this Certificate
of Trust as of the date first above written.
/s/ William C. Mutterperl
---------------------------------------
Name: William C. Mutterperl
Title: Trustee
/s/ Douglas L. Jacobs
---------------------------------------
Name: Douglas L. Jacobs
Title: Trustee
/s/ John R. Rodehorst
---------------------------------------
Name: John R. Rodehorst
Title: Trustee
[SIGNATURES CONTINUED ON NEXT PAGE]
<PAGE>
FIRST CHICAGO DELAWARE INC.,
as Trustee
By: /s/ John R. Prendiville
------------------------------------
Name: John R. Prendiville
Title: Vice President
<PAGE>
Exhibit 4(r)(ix)
DECLARATION OF TRUST
OF
FLEET CAPITAL TRUST IX
Dated as of September 3, 1998
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
----
<S> <C> <C>
ARTICLE I DEFINITIONS
SECTION 1.1 Definitions 1
ARTICLE II ORGANIZATION
SECTION 2.1 Name 4
SECTION 2.2 Office 4
SECTION 2.3 Purpose 4
SECTION 2.4 Authority 4
SECTION 2.5 Title to Property of the Trust 4
SECTION 2.6 Powers of the Trustees 5
SECTION 2.7 Filing of Certificate of Trust 6
SECTION 2.8 Duration of Trust. 6
SECTION 2.9 Responsibilities of the Sponsor 6
SECTION 2.10 Declaration Binding on Securities Holders 7
ARTICLE III TRUSTEES
SECTION 3.1 Trustees 7
SECTION 3.2 Regular Trustees 7
SECTION 3.3 Delaware Trustee 8
SECTION 3.4 Institutional Trustee. 9
SECTION 3.5 Not Responsible for Recitals or Sufficiency of
Declaration. 9
ARTICLE IV LIMITATION OF LIABILITY OF HOLDERS OF
SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1 Exculpation 9
SECTION 4.2 Fiduciary Duty 9
SECTION 4.3 Indemnification 11
SECTION 4.4 Outside Businesses 15
ARTICLE V AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 Amendments 15
SECTION 5.2 Termination of Trust 15
SECTION 5.3 Governing Law 16
SECTION 5.4 Headings 16
SECTION 5.5 Successors and Assigns 16
SECTION 5.6 Partial Enforceability 16
SECTION 5.7 Counterparts 16
</TABLE>
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DECLARATION OF TRUST
OF
FLEET CAPITAL TRUST IX
September 3, 1998
DECLARATION OF TRUST ("Declaration") dated and effective as of
September 3, 1998 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 desire to establish a trust (the
"Trust") pursuant to the Delaware Business Trust Act for the purpose of either
(i) issuing and selling the Preferred Securities (as defined herein) and
investing the proceeds thereof in certain Debentures of the Debenture Issuer (as
both terms are defined herein) or (ii) issuing and offering the Preferred
Securities in an Exchange (as defined herein) and investing the Parent Shares
received in certain Debentures; and
NOW, THEREFORE, it being the intention of the parties hereto that the
Trust constitute 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 exclusive benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE I
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 of Trust as
modified, supplemented or amended from time to time;
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(d) all references in this Declaration to Articles and
Sections are to Articles and Sections of this
Declaration unless otherwise specified; and
(e) 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 or any successor rule thereunder.
"Business Day" means any day other than a day on which banking
institutions in New York, New York are authorized or required by law 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.
"Commission" means the Securities and Exchange Commission.
"Common Security" means a security representing an undivided beneficial
interest in the assets of the Trust with such terms as may be set out in any
amendment to this Declaration.
"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 employee or agent of the Trust or its Affiliates.
"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.
"Debenture Issuer" means the Parent in its capacity as the issuer of
the Debentures under the Indenture.
"Debentures" means the series of Debentures to be issued by the
Debenture Issuer and acquired by the Trust.
"Debenture Trustee" means The First National Bank of Chicago, 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 3.1.
"Exchange" means the exchange of Parent Shares for Preferred
Securities, which exchange may include a cash or cash tender offer component.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time or any successor legislation.
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"Fiduciary Indemnified Person" has the meaning set forth in Section
4.3(b).
"Indemnified Person" means a Company Indemnified Person or a Fiduciary
Indemnified Person.
"Indenture" means the indenture to be entered into between the Parent
and the Debenture Trustee and any indenture supplemental thereto pursuant to
which the Debentures are to be issued.
"Institutional Trustee" has the meaning set forth in Section 3.4.
"Parent" means Fleet Financial Group, Inc., a Rhode Island corporation,
or any successor entity in a merger.
"Parent Shares" means depositary shares representing a fraction of an
interest in a series of preferred stock, $1.00 par value, of the Parent which
are exchanged for Preferred Securities in an Exchange.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Preferred Security" means a security representing an undivided
beneficial interest in the assets of the Trust with such terms as may be set out
in any amendment to this Declaration.
"Regular Trustee" means any Trustee other than the Delaware Trustee and
the Institutional Trustee.
"Securities" means the Common Securities and the Preferred Securities.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, or any successor legislation.
"Sponsor" means the Parent in its capacity as sponsor of the Trust.
"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.
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ARTICLE II
ORGANIZATION
SECTION 2.1 Name.
The Trust created by this Declaration is named "Fleet Capital Trust
IX." The activities of the Trust may be conducted under the name of the Trust or
any other name deemed advisable by the Regular Trustees.
SECTION 2.2 Office.
The address of the principal office of the Trust is c/o Fleet Financial
Group, Inc., One Federal Street, Boston, Massachusetts 02110. At any time, the
Regular Trustees may designate another principal office.
SECTION 2.3 Purpose.
The exclusive purposes and functions of the Trust are either (a) to
issue and sell the Securities and use the proceeds from such sale to acquire the
Debentures or (b) (i) to issue the Preferred Securities in exchange for validly
tendered Parent Shares and deliver such Parent Shares to the Debenture Issuer in
consideration for its deposit in the Trust of Debentures and (ii) to issue the
Common Securities to the Parent in exchange for cash and to invest the proceeds
thereof and in each case to engage in only those other activities necessary or
incidental thereto. 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 2.4 Authority.
Subject to the limitations provided in this Declaration, the Regular
Trustees shall have exclusive and complete authority to carry out the purposes
of the Trust. An action taken by the Regular Trustees in accordance with their
powers shall constitute the act of and serve to bind the Trust. In dealing with
the Regular Trustees acting on behalf of the Trust, no person shall be required
to inquire into the authority of the Regular Trustees to bind the Trust. Persons
dealing with the Trust are entitled to rely conclusively on the power and
authority of the Regular Trustees as set forth in this Declaration.
SECTION 2.5 Title to Property of the Trust.
Legal title to all assets of the Trust shall be vested in the Trust.
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SECTION 2.6 Powers of the Trustees.
The Regular Trustees shall have the exclusive power and authority to
cause the Trust to engage in the following activities:
(a) to issue the Preferred Securities and the Common
Securities in accordance with this Declaration, in
connection with either the sale or the exchange of the
Preferred Securities; provided, however, that the Trust
may issue no more than one series of Preferred Securities
and no more than one series of Common Securities, and,
provided further, that there shall be no interests in the
Trust other than the Securities and the issuance of the
Securities shall be limited to the simultaneous issuance
of both Preferred Securities and Common Securities;
(b) in connection with the issue and either sale or
exchange of the Preferred Securities, at the
direction of the Sponsor, to:
(i) execute and file with the Commission one or
more registration statements on Form S-3 or
Form S-4 prepared by the Sponsor, including
any and all amendments thereto in relation
to the Preferred Securities;
(ii) execute and file any documents prepared by
the Sponsor, or take any acts as determined
by the Sponsor to be necessary in order to
qualify or register all or part of the
Preferred Securities in any State in which
the Sponsor has determined to qualify or
register such Preferred Securities for sale
or exchange;
(iii) execute and file an application, prepared by
the Sponsor, to the New York Stock Exchange
or any other national stock exchange or the
Nasdaq Stock Market's National Market for
listing or quotation upon notice of issuance
of any Preferred Securities;
(iv) execute and file with the Commission a
registration statement on Form 8-A,
including any amendments thereto, prepared
by the Sponsor relating to the registration
of the Preferred Securities under Section
12(b) of the Exchange Act;
(v) prepare, execute and file with the
Commission an Issuer Tender Offer Statement
on Schedule 13E-3 or Schedule 13E-4, as
necessary, or any other appropriate document
or schedule, and any amendments thereto;
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(vi) execute and enter into an underwriting
agreement and pricing agreement providing
for the sale of the Preferred Securities;
and
(vii) execute and enter into one or more dealer
manager agreements, depositary agreements,
exchange agent agreements, information agent
agreements or other agreements as may be
required in connection with an Exchange or
the tender offer component of such Exchange.
(c) to employ or otherwise engage employees and agents
(who may be designated as officers with titles) and
managers, contractors, advisors, and consultants and
provide for reasonable compensation for such
services;
(d) to incur expenses which are necessary or incidental
to carry out any of the purposes of this Declaration;
and
(e) 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.
SECTION 2.7 Filing of Certificate of Trust.
On or after the date of execution of this Declaration, the Trustees
shall cause the filing of the Certificate of Trust for the Trust in the form
attached hereto as Exhibit A with the Secretary of State of the State of
Delaware.
SECTION 2.8 Duration of Trust.
The Trust, absent termination pursuant to the provisions of Section
5.2, shall have existence for fifty-five (55) years from the date hereof.
SECTION 2.9 Responsibilities of the Sponsor.
In connection with the issue and sale of the Preferred Securities, the
Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) to prepare for filing by the Trust with the
Commission one or more registration statements on
Form S-3 or Form S-4 in relation to the Preferred
Securities, including any amendments thereto;
(b) to determine the States in which to take appropriate
action to qualify or register for sale or exchange of
all or part of the Preferred Securities and to do any
and all such acts, other than
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actions which must be taken by the Trust, and advise
the Trust of actions it must take, and prepare for
execution and filing any documents to be executed and
filed by the Trust, as the Sponsor deems necessary or
advisable in order to comply with the applicable laws
of any such States;
(c) to prepare for filing by the Trust an application to
the New York Stock Exchange or any other national
stock exchange or the Nasdaq National Market for
listing or quotation upon notice of issuance of any
Preferred Securities;
(d) to prepare for filing by the Trust with the
Commission a registration statement on Form 8-A
relating to the registration of the class of
Preferred Securities under Section 12(b) of the
Exchange Act, including any amendments thereto;
(e) to prepare for filing by the Trust with the
Commission an Issuer Tender Offer Statement on
Schedule 13E-3 or Schedule 13E-4, as necessary, or
any other appropriate document or schedule and any
amendments thereto;
(f) to negotiate the terms of an underwriting agreement
and pricing agreement providing for the sale of the
Preferred Securities; and
(g) to negotiate the terms of one or more dealer manager
agreements, depositary agreements, exchange agent
agreements, information agent agreements or other
agreements as may be required in connection with an
Exchange or the tender offer component of such
Exchange.
SECTION 2.10 Declaration Binding on Securities Holders.
Every Person by virtue of having become a holder of a Security or any
interest therein in accordance with the terms of this Declaration, shall be
deemed to have expressly assented and agreed to the terms of, and shall be bound
by, this Declaration.
ARTICLE III
TRUSTEES
SECTION 3.1 Trustees.
The number of Trustees initially shall be four (4), and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Sponsor. The Sponsor is entitled to appoint or
remove without cause any Trustee at any time; provided, however, that the number
of Trustees shall in no event be less than two (2); provided further that one
Trustee, in the case of a natural person, shall be a person who is a resident of
the
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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"); provided further that there shall be at least one trustee who is an
employee or officer of, or is affiliated with the Parent (a "Regular Trustee").
SECTION 3.2 Regular Trustees.
The initial Regular Trustees shall be William C. Mutterperl, Douglas L.
Jacobs and John R. Rodehorst.
(a) except as expressly set forth in this Declaration,
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, any Regular Trustee is authorized to
execute on behalf of the Trust any documents which
the Regular Trustees have the power and authority to
cause the Trust to execute pursuant to Section 2.6;
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 2.6.
SECTION 3.3 Delaware Trustee.
The initial Delaware Trustee shall be First Chicago Delaware Inc.
Notwithstanding any other provision of this Declaration, the Delaware
Trustee shall not be entitled to exercise any of the powers, nor shall the
Delaware Trustee have any of the duties and responsibilities of the Regular
Trustees described in this Declaration. 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.
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SECTION 3.4 Institutional Trustee.
Prior to the issuance of the Preferred Securities and Common
Securities, the Sponsor shall appoint another trustee (the "Institutional
Trustee") meeting the requirements of an eligible trustee of the Trust Indenture
Act of 1939, as amended, by the execution of an amendment to this Declaration
executed by the Regular Trustees, the Sponsor, the Institutional Trustee and the
Delaware Trustee.
SECTION 3.5 Not Responsible for Recitals or Sufficiency of Declaration.
The recitals contained in this Declaration 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.
ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1 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 negligence or willful
misconduct with respect to such acts or omissions;
and
(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 of Securities might properly
be paid.
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SECTION 4.2 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, 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 Covered Persons; or
(ii) whenever this Declaration or any other
agreement contemplated herein or therein
provides that an Indemnified Person shall
act in a manner that is, or provides terms
that are, fair and reasonable to the Trust
or any holder of Securities, 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; and
(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
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(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 4.3 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
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Company Indemnified Person shall have been
adjudged to be liable to the Trust unless
and only to the extent that the Court of
Chancery of Delaware or the court in which
such action or suit was brought shall
determine upon application that, despite the
adjudication of liability but in view of all
the circumstances of the case, such person
is fairly and reasonably entitled to
indemnity for such expenses which such Court
of Chancery or such other court shall deem
proper.
(iii) To the extent that a Company Indemnified
Person shall be successful on the merits or
otherwise (including dismissal of an action
without prejudice or the settlement of an
action without admission of liability) in
defense of any action, suit or proceeding
referred to in paragraphs (i) and (ii) of
this Section 4.3(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 4.3(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 4.3(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
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entitled to be indemnified by the Debenture
Issuer as authorized in this Section 4.3(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) the Common Security
Holder of the Trust, that, based upon the
facts known to the Regular Trustees, counsel
or the Common Security Holder 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
Common Security Holder reasonably determine
that such person deliberately breached his
duty to the Trust or its Common or Preferred
Security Holders.
(vi) The indemnification and advancement of
expenses provided by, or granted pursuant
to, the other paragraphs of this Section
4.3(a) shall not be deemed exclusive of any
other rights to which those seeking
indemnification and advancement of expenses
may be entitled under any agreement, vote of
stockholders or disinterested directors of
the Debenture Issuer or Preferred Security
Holders of the Trust or otherwise, both as
to action in his official capacity and as to
action in another capacity while holding
such office. All rights to indemnification
under this Section 4.3(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
4.3(a) is in effect. Any repeal or
modification of this Section 4.3(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
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not the Debenture Issuer would have the
power to indemnify him against such
liability under the provisions of this
Section 4.3(a).
(viii) For purposes of this Section 4.3(a),
references to "the Trust" shall include, in
addition to the resulting or surviving
entity, any constituent entity (including
any constituent of a constituent) absorbed
in a consolidation or merger, so that any
person who is or was a director, trustee,
officer or employee of such constituent
entity, or is or was serving at the request
of such constituent entity as a director,
trustee, officer, employee or agent of
another entity, shall stand in the same
position under the provisions of this
Section 4.3(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 4.3(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 (i) the
Delaware Trustee, (ii) any Affiliate of the Delaware
Trustee, and (iii) any officers, directors,
shareholders, members, partners, employees,
representatives, nominees, custodians or agents of
the Delaware Trustee (each of the Persons in (i)
through (iii) 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 4.3(b) shall survive the
termination of this Declaration.
SECTION 4.4 Outside Businesses.
Any Covered Person, the Sponsor and the Delaware Trustee may engage in
or possess an interest in other business ventures of any nature or description,
independently or with others,
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similar or dissimilar to the business of the Trust, and the Trust and the
holders of Securities 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 or the
Delaware 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 and the Delaware 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 and the
Delaware 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 may act on any committee or body of
holders of, securities or other obligations of the Sponsor or its Affiliates.
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 Amendments.
At any time before the issue of any Securities, this Declaration may be
amended by, and only by, a written instrument executed by all of the Regular
Trustees and the Sponsor.
SECTION 5.2 Termination of Trust.
(a) The Trust shall terminate and be of no further force
or effect:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of
dissolution or its equivalent with respect
to the Sponsor or the revocation of the
Sponsor's charter or of the Trust's
certificate of trust;
(iii) upon the entry of a decree of judicial
dissolution of the Sponsor, or the Trust;
and
(iv) before the issue of any Securities, with the
consent of all of the Regular Trustees and
the Sponsor; and
(b) As soon as is practicable after the occurrence of an
event referred to in Section 5.2(a), the Trustees
shall file a certificate of cancellation with the
Secretary of State of the State of Delaware.
15
<PAGE>
SECTION 5.3 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 5.4 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 5.5 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 5.6 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 5.7 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.
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
/s/ William C. Mutterperl
--------------------------------------------
Name: William C. Mutterperl
Title: Trustee
/s/ Douglas L. Jacobs
--------------------------------------------
Name: Douglas L. Jacobs
Title: Trustee
/s/ John R. Rodehorst
--------------------------------------------
Name: John R. Rodehorst
Title: Trustee
FIRST CHICAGO DELAWARE INC.,
as Trustee
By: /s/ John R. Prendiville
--------------------------------------------
Name: John R. Prendiville
Title: Vice President
FLEET FINANCIAL GROUP, INC.,
as Sponsor
By: /s/ William C. Mutterperl
--------------------------------------------
Name: William C. Mutterperl
Title: Executive Vice President,
Secretary and General Counsel
16
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST
OF
FLEET CAPITAL TRUST IX
This Certificate of Trust of Fleet Capital Trust IX dated September 3,
1998, is hereby duly executed and filed by the undersigned, as trustees of Fleet
Capital Trust IX, for the purpose of forming a business trust under the Delaware
Business Trust Act, 12 Del. C. Section 3801 et. seq. The undersigned hereby
certify as follows:
1. Name. The name of the business trust formed hereby (the "Trust") is
"Fleet Capital Trust IX."
2. Delaware Trustee. The name and business address of the trustee of
the Trust which has its principal place of business in the State of Delaware, as
required by 12 Del. C. Sec. 3807 (a), is First Chicago Delaware Inc., a Delaware
corporation, 300 King Street, Wilmington, Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective as of
the date of its filing.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust at
the time of filing of this Certificate of Trust, have executed this Certificate
of Trust as of the date first above written.
---------------------------------------
Name: William C. Mutterperl
Title: Trustee
---------------------------------------
Name: Douglas L. Jacobs
Title: Trustee
---------------------------------------
Name: John R. Rodehorst
Title: Trustee
[SIGNATURES CONTINUED ON NEXT PAGE]
<PAGE>
FIRST CHICAGO DELAWARE INC.,
as Trustee
By:
------------------------------------
Name: John R. Prendiville
Title: Vice President
<PAGE>
Exhibit 4(r)(x)
DECLARATION OF TRUST
OF
FLEET CAPITAL TRUST X
Dated as of September 3, 1998
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C> <C>
ARTICLE I DEFINITIONS Page
SECTION 1.1 Definitions 1
ARTICLE II ORGANIZATION
SECTION 2.1 Name 4
SECTION 2.2 Office 4
SECTION 2.3 Purpose 4
SECTION 2.4 Authority 4
SECTION 2.5 Title to Property of the Trust 4
SECTION 2.6 Powers of the Trustees 5
SECTION 2.7 Filing of Certificate of Trust 6
SECTION 2.8 Duration of Trust. 6
SECTION 2.9 Responsibilities of the Sponsor 6
SECTION 2.10 Declaration Binding on Securities Holders 7
ARTICLE III TRUSTEES
SECTION 3.1 Trustees 7
SECTION 3.2 Regular Trustees 7
SECTION 3.3 Delaware Trustee 8
SECTION 3.4 Institutional Trustee. 9
SECTION 3.5 Not Responsible for Recitals or Sufficiency of Declaration. 9
ARTICLE IV LIMITATION OF LIABILITY OF HOLDERS OF
SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1 Exculpation 9
SECTION 4.2 Fiduciary Duty 9
SECTION 4.3 Indemnification 11
SECTION 4.4 Outside Businesses 15
ARTICLE V AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 Amendments 15
SECTION 5.2 Termination of Trust 15
SECTION 5.3 Governing Law 16
SECTION 5.4 Headings 16
SECTION 5.5 Successors and Assigns 16
SECTION 5.6 Partial Enforceability 16
SECTION 5.7 Counterparts 16
</TABLE>
<PAGE>
DECLARATION OF TRUST
OF
FLEET CAPITAL TRUST X
September 3, 1998
DECLARATION OF TRUST ("Declaration") dated and effective as of
September 3, 1998 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 desire to establish a trust (the
"Trust") pursuant to the Delaware Business Trust Act for the purpose of either
(i) issuing and selling the Preferred Securities (as defined herein) and
investing the proceeds thereof in certain Debentures of the Debenture Issuer (as
both terms are defined herein) or (ii) issuing and offering the Preferred
Securities in an Exchange (as defined herein) and investing the Parent Shares
received in certain Debentures; and
NOW, THEREFORE, it being the intention of the parties hereto that the
Trust constitute 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 exclusive benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE I
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 of Trust as
modified, supplemented or amended from time to time;
<PAGE>
(d) all references in this Declaration to Articles and
Sections are to Articles and Sections of this
Declaration unless otherwise specified; and
(e) 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 or any successor rule thereunder.
"Business Day" means any day other than a day on which banking
institutions in New York, New York are authorized or required by law 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.
"Commission" means the Securities and Exchange Commission.
"Common Security" means a security representing an undivided beneficial
interest in the assets of the Trust with such terms as may be set out in any
amendment to this Declaration.
"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 employee or agent of the Trust or its Affiliates.
"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.
"Debenture Issuer" means the Parent in its capacity as the issuer of
the Debentures under the Indenture.
"Debentures" means the series of Debentures to be issued by the
Debenture Issuer and acquired by the Trust.
"Debenture Trustee" means The First National Bank of Chicago, 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 3.1.
"Exchange" means the exchange of Parent Shares for Preferred
Securities, which exchange may include a cash or cash tender offer component.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time or any successor legislation.
2
<PAGE>
"Fiduciary Indemnified Person" has the meaning set forth in Section
4.3(b).
"Indemnified Person" means a Company Indemnified Person or a Fiduciary
Indemnified Person.
"Indenture" means the indenture to be entered into between the Parent
and the Debenture Trustee and any indenture supplemental thereto pursuant to
which the Debentures are to be issued.
"Institutional Trustee" has the meaning set forth in Section 3.4.
"Parent" means Fleet Financial Group, Inc., a Rhode Island corporation,
or any successor entity in a merger.
"Parent Shares" means depositary shares representing a fraction of an
interest in a series of preferred stock, $1.00 par value, of the Parent which
are exchanged for Preferred Securities in an Exchange.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Preferred Security" means a security representing an undivided
beneficial interest in the assets of the Trust with such terms as may be set out
in any amendment to this Declaration.
"Regular Trustee" means any Trustee other than the Delaware Trustee and
the Institutional Trustee.
"Securities" means the Common Securities and the Preferred Securities.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, or any successor legislation.
"Sponsor" means the Parent in its capacity as sponsor of the Trust.
"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.
3
<PAGE>
ARTICLE II
ORGANIZATION
SECTION 2.1 Name.
The Trust created by this Declaration is named "Fleet Capital Trust X."
The activities of the Trust may be conducted under the name of the Trust or any
other name deemed advisable by the Regular Trustees.
SECTION 2.2 Office.
The address of the principal office of the Trust is c/o Fleet Financial
Group, Inc., One Federal Street, Boston, Massachusetts 02110. At any time, the
Regular Trustees may designate another principal office.
SECTION 2.3 Purpose.
The exclusive purposes and functions of the Trust are either (a) to
issue and sell the Securities and use the proceeds from such sale to acquire the
Debentures or (b) (i) to issue the Preferred Securities in exchange for validly
tendered Parent Shares and deliver such Parent Shares to the Debenture Issuer in
consideration for its deposit in the Trust of Debentures and (ii) to issue the
Common Securities to the Parent in exchange for cash and to invest the proceeds
thereof and in each case to engage in only those other activities necessary or
incidental thereto. 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 2.4 Authority.
Subject to the limitations provided in this Declaration, the Regular
Trustees shall have exclusive and complete authority to carry out the purposes
of the Trust. An action taken by the Regular Trustees in accordance with their
powers shall constitute the act of and serve to bind the Trust. In dealing with
the Regular Trustees acting on behalf of the Trust, no person shall be required
to inquire into the authority of the Regular Trustees to bind the Trust. Persons
dealing with the Trust are entitled to rely conclusively on the power and
authority of the Regular Trustees as set forth in this Declaration.
SECTION 2.5 Title to Property of the Trust.
Legal title to all assets of the Trust shall be vested in the Trust.
4
<PAGE>
SECTION 2.6 Powers of the Trustees.
The Regular Trustees shall have the exclusive power and authority to
cause the Trust to engage in the following activities:
(a) to issue the Preferred Securities and the Common
Securities in accordance with this Declaration, in
connection with either the sale or the exchange of
the Preferred Securities; provided, however, that the
Trust may issue no more than one series of Preferred
Securities and no more than one series of Common
Securities, and, provided further, that there shall
be no interests in the Trust other than the
Securities and the issuance of the Securities shall
be limited to the simultaneous issuance of both
Preferred Securities and Common Securities;
(b) in connection with the issue and either sale or
exchange of the Preferred Securities, at the
direction of the Sponsor, to:
(i) execute and file with the Commission one or
more registration statements on Form S-3 or
Form S-4 prepared by the Sponsor, including
any and all amendments thereto in relation
to the Preferred Securities;
(ii) execute and file any documents prepared by
the Sponsor, or take any acts as determined
by the Sponsor to be necessary in order to
qualify or register all or part of the
Preferred Securities in any State in which
the Sponsor has determined to qualify or
register such Preferred Securities for sale
or exchange;
(iii) execute and file an application, prepared by
the Sponsor, to the New York Stock Exchange
or any other national stock exchange or the
Nasdaq Stock Market's National Market for
listing or quotation upon notice of issuance
of any Preferred Securities;
(iv) execute and file with the Commission a
registration statement on Form 8-A,
including any amendments thereto, prepared
by the Sponsor relating to the registration
of the Preferred Securities under Section
12(b) of the Exchange Act;
(v) prepare, execute and file with the
Commission an Issuer Tender Offer Statement
on Schedule 13E-3 or Schedule 13E-4, as
necessary, or any other appropriate document
or schedule, and any amendments thereto;
5
<PAGE>
(vi) execute and enter into an underwriting
agreement and pricing agreement providing
for the sale of the Preferred Securities;
and
(vii) execute and enter into one or more dealer
manager agreements, depositary agreements,
exchange agent agreements, information agent
agreements or other agreements as may be
required in connection with an Exchange or
the tender offer component of such Exchange.
(c) to employ or otherwise engage employees and agents
(who may be designated as officers with titles) and
managers, contractors, advisors, and consultants and
provide for reasonable compensation for such
services;
(d) to incur expenses which are necessary or incidental
to carry out any of the purposes of this Declaration;
and
(e) 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.
SECTION 2.7 Filing of Certificate of Trust.
On or after the date of execution of this Declaration, the Trustees
shall cause the filing of the Certificate of Trust for the Trust in the form
attached hereto as Exhibit A with the Secretary of State of the State of
Delaware.
SECTION 2.8 Duration of Trust.
The Trust, absent termination pursuant to the provisions of Section
5.2, shall have existence for fifty-five (55) years from the date hereof.
SECTION 2.9 Responsibilities of the Sponsor.
In connection with the issue and sale of the Preferred Securities, the
Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) to prepare for filing by the Trust with the
Commission one or more registration statements on
Form S-3 or Form S-4 in relation to the Preferred
Securities, including any amendments thereto;
(b) to determine the States in which to take appropriate
action to qualify or register for sale or exchange of
all or part of the Preferred Securities and to do any
and all such acts, other than
6
<PAGE>
actions which must be taken by the Trust, and advise
the Trust of actions it must take, and prepare for
execution and filing any documents to be executed and
filed by the Trust, as the Sponsor deems necessary or
advisable in order to comply with the applicable laws
of any such States;
(c) to prepare for filing by the Trust an application to
the New York Stock Exchange or any other national
stock exchange or the Nasdaq National Market for
listing or quotation upon notice of issuance of any
Preferred Securities;
(d) to prepare for filing by the Trust with the
Commission a registration statement on Form 8-A
relating to the registration of the class of
Preferred Securities under Section 12(b) of the
Exchange Act, including any amendments thereto;
(e) to prepare for filing by the Trust with the
Commission an Issuer Tender Offer Statement on
Schedule 13E-3 or Schedule 13E-4, as necessary, or
any other appropriate document or schedule and any
amendments thereto;
(f) to negotiate the terms of an underwriting agreement
and pricing agreement providing for the sale of the
Preferred Securities; and
(g) to negotiate the terms of one or more dealer manager
agreements, depositary agreements, exchange agent
agreements, information agent agreements or other
agreements as may be required in connection with an
Exchange or the tender offer component of such
Exchange.
SECTION 2.10 Declaration Binding on Securities Holders.
Every Person by virtue of having become a holder of a Security or any
interest therein in accordance with the terms of this Declaration, shall be
deemed to have expressly assented and agreed to the terms of, and shall be bound
by, this Declaration.
ARTICLE III
TRUSTEES
SECTION 3.1 Trustees.
The number of Trustees initially shall be four (4), and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Sponsor. The Sponsor is entitled to appoint or
remove without cause any Trustee at any time; provided, however, that the number
of Trustees shall in no event be less than two (2); provided further that one
Trustee, in the case of a natural person, shall be a person who is a resident of
the
7
<PAGE>
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"); provided further that there shall be at least one trustee who is an
employee or officer of, or is affiliated with the Parent (a "Regular Trustee").
SECTION 3.2 Regular Trustees.
The initial Regular Trustees shall be William C. Mutterperl, Douglas L.
Jacobs and John R. Rodehorst.
(a) except as expressly set forth in this Declaration,
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, any Regular Trustee is authorized to
execute on behalf of the Trust any documents which
the Regular Trustees have the power and authority to
cause the Trust to execute pursuant to Section 2.6;
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 2.6.
SECTION 3.3 Delaware Trustee.
The initial Delaware Trustee shall be First Chicago Delaware Inc.
Notwithstanding any other provision of this Declaration, the Delaware
Trustee shall not be entitled to exercise any of the powers, nor shall the
Delaware Trustee have any of the duties and responsibilities of the Regular
Trustees described in this Declaration. 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.
8
<PAGE>
SECTION 3.4 Institutional Trustee.
Prior to the issuance of the Preferred Securities and Common
Securities, the Sponsor shall appoint another trustee (the "Institutional
Trustee") meeting the requirements of an eligible trustee of the Trust Indenture
Act of 1939, as amended, by the execution of an amendment to this Declaration
executed by the Regular Trustees, the Sponsor, the Institutional Trustee and the
Delaware Trustee.
SECTION 3.5 Not Responsible for Recitals or Sufficiency of Declaration.
The recitals contained in this Declaration 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.
ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1 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 negligence or willful
misconduct with respect to such acts or omissions;
and
(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 of Securities might
properly be paid.
9
<PAGE>
SECTION 4.2 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, 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 Covered Persons; or
(ii) whenever this Declaration or any other
agreement contemplated herein or therein
provides that an Indemnified Person shall
act in a manner that is, or provides terms
that are, fair and reasonable to the Trust
or any holder of Securities, 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; and
(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
10
<PAGE>
(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 4.3 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
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<PAGE>
Company Indemnified Person shall have been
adjudged to be liable to the Trust unless
and only to the extent that the Court of
Chancery of Delaware or the court in which
such action or suit was brought shall
determine upon application that, despite
the adjudication of liability but in view
of all the circumstances of the case, such
person is fairly and reasonably entitled to
indemnity for such expenses which such
Court of Chancery or such other court shall
deem proper.
(iii) To the extent that a Company Indemnified
Person shall be successful on the merits or
otherwise (including dismissal of an action
without prejudice or the settlement of an
action without admission of liability) in
defense of any action, suit or proceeding
referred to in paragraphs (i) and (ii) of
this Section 4.3(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 4.3(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 4.3(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
12
<PAGE>
entitled to be indemnified by the Debenture
Issuer as authorized in this Section
4.3(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)
the Common Security Holder of the Trust,
that, based upon the facts known to the
Regular Trustees, counsel or the Common
Security Holder 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
Common Security Holder reasonably determine
that such person deliberately breached his
duty to the Trust or its Common or
Preferred Security Holders.
(vi) The indemnification and advancement of
expenses provided by, or granted pursuant
to, the other paragraphs of this Section
4.3(a) shall not be deemed exclusive of any
other rights to which those seeking
indemnification and advancement of expenses
may be entitled under any agreement, vote
of stockholders or disinterested directors
of the Debenture Issuer or Preferred
Security Holders of the Trust or otherwise,
both as to action in his official capacity
and as to action in another capacity while
holding such office. All rights to
indemnification under this Section 4.3(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 4.3(a) is in effect. Any repeal or
modification of this Section 4.3(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
13
<PAGE>
not the Debenture Issuer would have the
power to indemnify him against such
liability under the provisions of this
Section 4.3(a).
(viii) For purposes of this Section 4.3(a),
references to "the Trust" shall include, in
addition to the resulting or surviving
entity, any constituent entity (including
any constituent of a constituent) absorbed
in a consolidation or merger, so that any
person who is or was a director, trustee,
officer or employee of such constituent
entity, or is or was serving at the request
of such constituent entity as a director,
trustee, officer, employee or agent of
another entity, shall stand in the same
position under the provisions of this
Section 4.3(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 4.3(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 (i) the Delaware
Trustee, (ii) any Affiliate of the Delaware Trustee, and
(iii) any officers, directors, shareholders, members,
partners, employees, representatives, nominees, custodians
or agents of the Delaware Trustee (each of the Persons in
(i) through (iii) 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 4.3(b)
shall survive the termination of this Declaration.
SECTION 4.4 Outside Businesses.
Any Covered Person, the Sponsor and the Delaware Trustee may engage in
or possess an interest in other business ventures of any nature or description,
independently or with others,
14
<PAGE>
similar or dissimilar to the business of the Trust, and the Trust and the
holders of Securities 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 or the
Delaware 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 and the Delaware 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 and the
Delaware 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 may act on any committee or body of
holders of, securities or other obligations of the Sponsor or its Affiliates.
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 Amendments.
At any time before the issue of any Securities, this Declaration may be
amended by, and only by, a written instrument executed by all of the Regular
Trustees and the Sponsor.
SECTION 5.2 Termination of Trust.
(a) The Trust shall terminate and be of no further force
or effect:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of
dissolution or its equivalent with respect
to the Sponsor or the revocation of the
Sponsor's charter or of the Trust's
certificate of trust;
(iii) upon the entry of a decree of judicial
dissolution of the Sponsor, or the Trust;
and
(iv) before the issue of any Securities, with the
consent of all of the Regular Trustees and
the Sponsor; and
(b) As soon as is practicable after the occurrence of an
event referred to in Section 5.2(a), the Trustees
shall file a certificate of cancellation with the
Secretary of State of the State of Delaware.
15
<PAGE>
SECTION 5.3 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 5.4 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 5.5 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 5.6 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 5.7 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.
16
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
/s/ William C. Mutterperl
-------------------------------
Name: William C. Mutterperl
Title: Trustee
/s/ Douglas L. Jacobs
-------------------------------
Name: Douglas L. Jacobs
Title: Trustee
/s/ John R. Rodehorst
-------------------------------
Name: John R. Rodehorst
Title: Trustee
FIRST CHICAGO DELAWARE INC.,
as Trustee
By: /s/ John R. Prendiville
----------------------------
Name: John R. Prendiville
Title: Vice President
FLEET FINANCIAL GROUP, INC.,
as Sponsor
By: /s/ William C. Mutterperl
----------------------------
Name: William C. Mutterperl
Title: Executive Vice
President, Secretary
and General Counsel
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST
OF
FLEET CAPITAL TRUST X
This Certificate of Trust of Fleet Capital Trust X dated September 3,
1998, is hereby duly executed and filed by the undersigned, as trustees of Fleet
Capital Trust X, for the purpose of forming a business trust under the Delaware
Business Trust Act, 12 Del. C. Section 3801 et. seq. The undersigned hereby
certify as follows:
1. Name. The name of the business trust formed hereby (the "Trust") is
"Fleet Capital Trust X."
2. Delaware Trustee. The name and business address of the trustee of
the Trust which has its principal place of business in the State of Delaware, as
required by 12 Del. C. Sec. 3807 (a), is First Chicago Delaware Inc., a Delaware
corporation, 300 King Street, Wilmington, Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective as of
the date of its filing.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust at
the time of filing of this Certificate of Trust, have executed this Certificate
of Trust as of the date first above written.
------------------------------------
Name: William C. Mutterperl
Title: Trustee
------------------------------------
Name: Douglas L. Jacobs
Title: Trustee
------------------------------------
Name: John R. Rodehorst
Title: Trustee
[SIGNATURES CONTINUED ON NEXT PAGE]
<PAGE>
FIRST CHICAGO DELAWARE INC.,
as Trustee
By:
---------------------------------
Name: John R. Prendiville
Title: Vice President
<PAGE>
Exhibit 4(t)
FLEET FINANCIAL GROUP, INC.
INDENTURE
DATED AS OF []
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 [] between
Fleet Financial Group, Inc. and The First National Bank of Chicago, Trustee:
<TABLE>
<CAPTION>
ACT SECTION INDENTURE SECTION
<S> <C>
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
</TABLE>
THIS TIE-SHEET IS NOT PART OF THE INDENTURE AS EXECUTED.
2
<PAGE>
TABLE OF CONTENTS*
<TABLE>
<CAPTION>
Page
----
<S> <C>
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
</TABLE>
* THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE A PART OF
THE INDENTURE.
<PAGE>
<TABLE>
<S> <C>
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
</TABLE>
<PAGE>
<TABLE>
<S> <C>
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
ARTICLE VIII
SECURITYHOLDERS' MEETINGS
SECTION 8.01. Purposes of Meetings 30
</TABLE>
<PAGE>
<TABLE>
<S> <C>
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
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
</TABLE>
<PAGE>
<TABLE>
<S> <C>
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
</TABLE>
<PAGE>
THIS INDENTURE, dated as of [], 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.
9
<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 V, Fleet
Capital Trust VI, Fleet Capital Trust VII, Fleet Capital Trust VII, Fleet
Capital Trust IX and Fleet Capital Trust X, 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.
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"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
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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
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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);
(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,
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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.
SECTION 2.04. Authentication and Dating.
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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.
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
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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.
SECTION 2.06. Execution of Securities.
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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 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.
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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.
SECTION 2.10. Cancellation of Securities Paid, etc.
All Securities surrendered for the purpose of payment, redemption, exchange
or registration of transfer, shall, if
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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.
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
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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.
(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.
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(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
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
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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 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
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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.
(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
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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
(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"
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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 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
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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.
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
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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.
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
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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 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
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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.
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
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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;
(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
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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.
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
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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 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
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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.
(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
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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 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.
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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.
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
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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.
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.
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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 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.
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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 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
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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 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
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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 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.
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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,
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.
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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
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.
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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 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
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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 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.
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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.
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.
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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, 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.
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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 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
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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 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
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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 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
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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.
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
50
<PAGE>
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 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
51
<PAGE>
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.
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
52
<PAGE>
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]
53
<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:
By: ___________________________ By: _______________________________
Title: Title:
[Seal] THE FIRST NATIONAL BANK OF CHICAGO,
Attest: as Trustee
By: ___________________________
Title:
By: ________________________________
Title:
<PAGE>
STATE OF RHODE ISLAND )
COUNTY OF PROVIDENCE ) ss.:
On the ____ day of ______________, 1998 before me personally came
_________________, to me known, who, being by me duly sworn, did depose and say
that he resides at ___________________________ that he or she is
_______________________ of Fleet Financial Group, Inc., one of the corporations
described in and which executed the above instrument; that he knows the
corporate seal of said corporation; that the seal affixed to the said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
NOTARY PUBLIC
[seal] Commission expires:
STATE OF )
COUNTY OF ) ss.:
On the _____ day of ________________, 1998, before me personally came
__________________________, to me known, who, being by me duly sworn, did depose
and say that he resides at ___________________; that he or she 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:
<PAGE>
[LETTERHEAD]
Exhibit 5(a)
September 23, 1998
Fleet Financial Group, Inc.
One Federal Street
Boston, Massachusetts 02110
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-3 (the
"Registration Statement") to be filed by Fleet Financial Group, Inc. (the
"Company") with the Securities and Exchange Commission on the date hereof in
connection with the registration under the Securities Act of 1933, as amended,
of (i) shares of common stock, $0.01 par value, including the associated
preferred share purchase rights (the "Common Stock"); (ii) shares of preferred
stock, $1.00 par value (the "Preferred Stock"), including, at the Company's
option, depositary shares (the "Depositary Shares") evidenced by depositary
receipts (the "Depositary Receipts") each representing a fractional interest in
such Preferred Stock; (iii) warrants to purchase Common Stock (the "Common Stock
Warrants") or Preferred Stock (the "Preferred Stock Warrants"); (iv) debt
securities (the "Debt Securities"), which may be either senior (the "Senior Debt
Securities"), or subordinated (the "Subordinated Debt Securities") in priority
of payment; and (v) warrants to purchase Debt Securities (the "Debt Warrants",
together with Common Stock Warrants and Preferred Stock Warrants, the "Warrants"
and together with the Common Stock, Preferred Stock, Depositary Shares and Debt
Securities, collectively, the "Securities") having a public offering price of up
to an aggregate of $2,336,868,750 (or the equivalent thereof if any of the
securities are denominated in a foreign currency or a foreign currency unit)
pursuant to an offering to be made on a continuous or delayed basis pursuant to
the provisions of Rule 415. The Securities may be offered separately or as units
with other Securities, in separate series, in amounts and at prices and terms to
be set forth in an accompanying prospectus supplement.
We have served as counsel for the Company and, as such, assisted in the
organization thereof under the laws of the State of Rhode Island and are
familiar with all corporate proceedings since its organization. We have examined
the following documents and records:
(1) The Restated Articles of Incorporation of the Company, as amended
to date;
<PAGE>
Fleet Financail Group, Inc.
September 23, 1998
(2) The By-Laws of the Company, as amended to date;
(3) The Senior Indenture dated as of October 1, 1992 between the
Company and the First National Bank of Chicago, as Senior Trustee, under which
Senior Debt Securities will be issued;
(4) The Subordinated Indenture dated as of October 1, 1992 (as
supplemented by a First Supplemental Indenture dated November 30, 1992) between
the Company and The First National Bank of Chicago, as Subordinated Trustee,
under which Subordinated Debt Securities will be issued;
(5) Specimen certificate of the Common Stock and proposed forms of the
Preferred Stock certificates, the Depositary Receipts and the notes to be issued
evidencing the Debt Securities;
(6) The proposed forms of the Warrant Agreements to be entered into by
the Company, pursuant to which the Warrants will be issued;
(7) The proposed forms of the Warrants to be issued by the Company;
(8) The proposed form of the Deposit Agreement to be entered into by
the Company, pursuant to which the Depositary Shares will be issued; and
(9) All corporate minutes and proceedings of the Company relating to
the issuance of the Securities being registered under the Registration
Statement.
We have also examined such further documents, records and proceedings
as we have deemed pertinent in connection with the issuance of said Securities.
In our examination, we have assumed the genuineness of all signatures, the legal
capacity of natural persons, the completeness and authenticity of all documents
submitted to us as originals, and the conformity to the originals of all
documents submitted to us as certified, photostatic or conformed copies, and the
validity of all laws and regulations. We also are familiar with the additional
proceedings proposed to be taken by the Company in connection with the
authorization, registration, issuance and sale of the Securities, and have
assumed that the Warrant Agreements, the Warrants, the Preferred Stock
Certificates, the Deposit Agreement, the Depositary Receipts, and the Notes are
duly executed and delivered in substantially the forms reviewed by us.
We are qualified to practice law in the State of Rhode Island and we do
not purport to express any opinion herein concerning any law other than the laws
of the State of Rhode Island and the federal law of the United States.
2
<PAGE>
Fleet Financail Group, Inc.
September 23, 1998
Based upon such examination, subject to the proposed additional
proceedings being duly taken and completed as now contemplated by the Company
prior to the issuance of the Securities, it is our opinion that:
1. The Common Stock, Preferred Stock and Depositary Shares being
registered by the Registration Statement, when issued and paid
for, will be legally issued, fully paid and non-assessable.
2. The Warrants, when issued and paid for, will be legally issued and
binding obligations of the Company except as enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or similiar laws, or
equitable principles relating to or limiting creditors' rights generally. We
express no opinion as to the availability of equitable remedies.
3. The Debt Securities, when issued and paid for, will be legally
issued and binding obligations of the Company except as enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws,
or equitable principles relating to or limiting creditors' rights generally. We
express no opinion as to the availability of equitable remedies.
V. Duncan Johnson, a partner of Edwards & Angell, LLP is a director of
Fleet National Bank, a subsidiary of the Company, and beneficially owns 4,052
shares of Common Stock of the Company.
We consent to the use of this opinion as an exhibit to the Registration
Statement and to the reference to our firm in the Prospectus which is part of
the Registration Statement.
Very truly yours,
/s/ EDWARDS & ANGELL, LLP
-------------------------
Edwards & Angell, LLP
<PAGE>
[LETTERHEAD]
Exhibit 5(b)
September 23, 1998
Fleet Financial Group, Inc.
One Federal Street
Boston, MA 02110
Fleet Capital Trust V,
Fleet Capital Trust VI,
Fleet Capital Trust VII,
Fleet Capital Trust VIII,
Fleet Capital Trust IX, and
Fleet Capital Trust X
c/o Fleet Financial Group, Inc.
One Federal Street
Boston, Massachusetts 02110
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-3 filed by Fleet
Financial Group, Inc., a Rhode Island corporation ("Fleet"), Fleet Capital Trust
V, Fleet Capital Trust VI, Fleet Capital Trust VII, Fleet Capital Trust VIII,
Fleet Capital Trust IX and Fleet Capital Trust X, Delaware business trusts (the
"Trusts"), with the Securities and Exchange Commission (the "Commission") on the
date hereof (the "Registration Statement"), in connection with the registration
under the Securities Act of 1933, as amended (the "Securities Act"), of (i)
preferred securities of the Trusts (the "Preferred Securities") and (ii)
subordinated debt securities of Fleet (the "Subordinated Debt Securities").
The Subordinated Debt Securities will be issued in accordance with the
provisions of an indenture (the "Indenture") to be entered into between Fleet
and the First National Bank of Chicago, as trustee (the "Trustee"), the form of
which is filed as an Exhibit to the Registration Statement. The Preferred
Securities will be guaranteed by Fleet in the manner and to the extent set forth
in a Guarantee Agreement (the "Preferred Securities Guarantees"), the form of
which is incorporated by reference into the Registration Statement.
We have served as counsel for Fleet and the Trusts and in so acting, we
have examined the following documents and records:
<PAGE>
Fleet Financial Group, Inc.
September 23, 1998
(1) The Registration Statement, including the prospectus (the
"Prospectus") and prospectus supplement (the "Prospectus Supplement") contained
therein and all Exhibits filed thereto;
(2) The form of Indenture;
(3) The form of Amended and Restated Declaration of Trusts to be used
in connection with the issuance of the Preferred Securities;
(4) The form of Subordinated Debt Security;
(5) The form of Preferred Securities Guarantee; and
(6) All corporate minutes and proceedings of Fleet relating to the
issuance of the Preferred Securities and the Subordinated Debt Securities.
We have also examined such further documents, records and proceedings
as we have deemed pertinent in connection with the issuance of the Subordinated
Debt Securities and the execution of the Preferred Securities Guarantee. In our
examination, we have assumed the genuineness of all signatures, the legal
capacity of natural persons, the completeness and authenticity of all documents
submitted to us as originals, and the conformity to the originals of all
documents submitted to us as certified, photostatic or conformed copies, and the
validity of all laws and regulations. We also are familiar with the additional
proceedings proposed to be taken by Fleet in connection with the authorization,
registration, issuance and sale of the Subordinated Debt Securities and the
execution of the Preferred Securities Guarantee, and have assumed that all
documents relating thereto are duly executed and delivered in substantially the
forms reviewed by us. As to all questions of fact material to this opinion that
have not been independently established, we have replied upon certificates or
comparable documents of officers and representatives of Fleet and the Trusts.
We express no opinion with respect to matters involving the Delaware
Business Trust Act, as amended, and the rules and regulations thereunder.
Based on the foregoing, and subject to the qualifications stated
herein, it is our opinion that:
1. The Subordinated Debt Securities have been duly and validly authorized
by Fleet and, when executed, authenticated, issued and delivered in the manner
contemplated in the Indenture, will constitute legal, valid and binding
obligations of Fleet, entitled to the benefits of the Indenture and enforceable
against it in accordance with their terms except as enforcement may be limited
by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
2
<PAGE>
Fleet Financial Group, Inc.
September 23, 1998
similar laws or equitable principles relating to or limiting creditors' rights
and remedies generally and except to the extent that rights to indemnification
thereunder may be limited by federal or state securities laws or public policy
relating thereto. We express no opinion as to the availability of equitable
remedies.
2. The Preferred Securities Guarantees have been duly and validly
authorized by Fleet and, when executed and delivered by Fleet, will constitute
the legal, valid and binding obligations of Fleet except as enforcement may be
limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws or equitable principles relating to or limiting
creditors' rights and remedies generally. We express no opinion as to the
availability of equitable remedies.
We are qualified to practice law in the State of Rhode Island and we do
not purport to express any opinion herein concerning any law other than the laws
of the State of Rhode Island and the federal law of the United States.
The opinions expressed herein are rendered solely for your benefit in
connection with the transactions described herein. These opinions may not be
used or relied upon by any other person, nor may this letter or any copies
thereof be furnished to a third party, filed with a governmental agency, quoted,
cited or otherwise referred to without our prior written consent.
V. Duncan Johnson, a partner of Edwards & Angell, LLP, is a director of
Fleet National Bank, a subsidiary of Fleet, and beneficially owns 4,052
shares of the common stock, $0.01 par value per share of Fleet, together with
the associated preferred share purchase rights.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this firm in the Prospectus which
is part of the Registration Statement.
Very truly yours,
/s/ Edwards & Angell, LLP
Edwards & Angell, LLP
3
<PAGE>
Exhibit 5(c)
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
919 THIIRD AVENUE
NEW YORK 10022-3897
-
TEL: (212) 735 3000
FAX: (212) 735 2000
September 23, 1998
Fleet Financial Group, Inc.
Fleet Capital Trust V
Fleet Capital Trust VI
Fleet Capital Trust VII
Fleet Capital Trust VIII
Fleet Capital Trust IX
Fleet Capital Trust X
c/o Fleet Financial Group, Inc.
One Federal Street
Boston, Massachusetts 02110
Re: Fleet Financial Group, Inc.;
Fleet Capital Trust V, VI, VII, VIII,
IX and X; Registration Statement on
Form S-3 (Registration No. 333-62905)
--------------------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel to (1) Fleet Capital
Trust V, Fleet Capital Trust VI, Fleet Capital Trust VII, Fleet Capital Trust
VIII, Fleet Capital Trust IX and Fleet Capital Trust X (each, a "Fleet
Capital Trust" and, together, the "Fleet Capital Trusts"), each a statutory
business trust formed under the laws of the State of Delaware, and (2) Fleet
Financial Group, Inc., a corporation organized under the laws of the State of
Rhode Island (the "Company"), in connection with the preparation of a
Registration Statement on Form S-3 (Registration No. 333-62905), filed by the
Company and the Fleet Capital Trusts with the Securities and Exchange
Commission (the "Commission") on September 4, 1998 under the Securities Act
of 1933, as amended (the "Act"), and Amendment No. 1 thereto, filed with the
Commission on September 23, 1998 (such Registration Statement, as so amended,
being hereinafter referred to as the "Registration Statement"), in connection
with the public offering of preferred securities (the "Trust Preferred
Securities") of each of the Fleet Capital Trusts, and certain other
securities.
<PAGE>
Fleet Capital Trust V, VI, VII, VIII, IX and X
Fleet Financial Group, Inc.
September 23, 1998
Page 2
The Trust Preferred Securities of each Fleet Capital Trust are to
be issued pursuant to the Amended and Restated Declaration of Trust of such
Fleet Capital Trust (each, a "Declaration" and, collectively, the
"Declarations"), each such Declaration being among the Company, as sponsor,
First Chicago Delaware Inc., as Delaware trustee (the "Delaware Trustee"),
The First National Bank of Chicago, as institutional trustee (the
"Institutional Trustee"), and, in the case of Fleet Capital Trust V, Fleet
Capital Trust VI, Fleet Capital Trust VII and Fleet Capital Trust VIII,
Eugene M. McQuade, Douglas L. Jacobs and John R. Rodehorst, and in the case
of Fleet Capital Trust IX and Fleet Capital Trust X, William C. Mutterperl,
Douglas L. Jacobs and John R. Rodehorst as trustees (together, the "Regular
Trustees").
This opinion is being delivered in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Act. Capitalized terms used but not
otherwise defined herein have the meanings ascribed to them in the Registration
Statement.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of (i) the certificate of
trust of each of the Fleet Capital Trusts (the "Certificates of Trust"), in the
case of (a) Fleet Capital Trust V, filed with the Secretary of State of the
State of Delaware on November 1, 1996, (b) Fleet Capital Trust VI, Fleet Capital
Trust VII and Fleet Capital Trust VIII, filed with the Secretary of State of the
State of Delaware on March 16, 1998, and (c) Fleet Capital Trust IX and Fleet
Capital Trust X, filed with the Secretary of State of the State of Delaware on
September 3, 1998; (ii) the form of the Declaration of each of the Fleet
Capital Trusts; (iii) the form of the Trust Preferred Securities of each of the
Fleet Capital Trusts and (iv) the Registration Statement. We have also examined
originals or copies, certified or otherwise identified to our satisfaction, of
such other documents, certificates and records as we have deemed necessary or
appropriate as a basis for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such copies. In making our examination of
documents executed by parties other than the Fleet Capital Trusts, we have
assumed that such parties had the power, corporate or other, to enter into and
perform all obligations thereunder and have also assumed the due authorization
by all requisite action, corporate or other, and execution and delivery by such
parties of such documents and that such documents constitute valid and binding
obligations of such parties. In addition, we have assumed that the Declaration
of each
- 2 -
<PAGE>
Fleet Capital Trust V, VI, VII, VIII, IX and X
Fleet Financial Group, Inc.
September 23, 1998
Page 3
Fleet Capital Trust and the Trust Preferred Securities of each Fleet Capital
Trust, when executed, will be executed in substantially the forms reviewed by
us. As to any facts material to the opinions expressed herein which were not
independently established or verified, we have relied upon oral or written
statements and representations of officers, trustees and other representatives
of the Company, the Fleet Capital Trusts and others.
Members of our firm are admitted to the bar in the State of Delaware,
and we do not express any opinion as to the laws of any jurisdiction other than
the laws of the State of Delaware.
Based on and subject to the foregoing and to the other qualifications
and limitations set forth herein, we are of the opinion that the Trust Preferred
Securities of each Fleet Capital Trust, when the Declaration of such Fleet
Capital Trust is duly executed and delivered by the parties thereto and the
terms of the Trust Preferred Securities are established in accordance with the
terms of the Declaration of such Fleet Capital Trust, will be duly authorized
for issuance and, when issued, executed and authenticated in accordance with the
Declaration of such Fleet Capital Trust and delivered and paid for as
contemplated by the Registration Statement, will be validly issued, fully paid
and nonassessable, representing undivided beneficial interests in the assets of
such Fleet Capital Trust; and the holders of such Trust Preferred Securities
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We bring to your attention, however,
that the holders of Trust Preferred Securities of each Fleet Capital Trust may
be obligated, pursuant to the Declaration of such Fleet Capital Trust, to (i)
provide indemnity and/or security in connection with and pay taxes or
governmental charges arising from transfers of such Trust Preferred Securities
and (ii) provide security and indemnity in connection with the requests of or
directions to the Institutional Trustee of such Fleet Capital Trust to exercise
its rights and powers under the Declaration of such Fleet Capital Trust.
This opinion is furnished to you solely for your benefit in connection
with the filing of the Registration Statement and, except as set forth below, is
not to be used, circulated, quoted or otherwise referred to for any other
purpose or relied upon by any other person for any purpose without our prior
written consent. We hereby consent to the use of our name under the heading
"Legal Matters" in the prospectus which forms a part of the Registration
Statement. We also hereby consent to the filing of this opinion with the
Commission as an exhibit to the Registration Statement. In
- 3 -
<PAGE>
Fleet Capital Trust V, VI, VII, VIII, IX and X
Fleet Financial Group, Inc.
September 23, 1998
Page 4
giving this consent, we do not thereby admit that we are within the category of
persons whose consent is required under Section 7 of the Act or the rules and
regulations of the Commission promulgated thereunder.
This opinion is expressed as of the date hereof unless otherwise
expressly stated, and we disclaim any undertaking to advise you of any
subsequent changes in the facts stated or assumed herein or of any subsequent
changes in applicable law.
Very truly yours,
/s/ Skadden, Arps, Slate, Meagher & Flom LLP
- 4 -
<PAGE>
[LETTERHEAD]
Exhibit 8
September 23, 1998
Fleet Financial Group, Inc.
One Federal Street
Boston, Massachusetts 02110
Fleet Capital Trust V,
Fleet Capital Trust VI,
Fleet Capital Trust VII,
Fleet Capital Trust VIII,
Fleet Capital Trust IX, and
Fleet Capital Trust X
c/o Fleet Financial Group, Inc.
One Federal Street
Boston, Massachusetts 02110
Re: Registration Statement on Form S-3
Registration No. 333-62905
Ladies and Gentlemen:
We have acted as counsel to Fleet Financial Group, Inc., a Rhode Island
corporation (the "Company"), and each of Fleet Capital Trust V, Fleet Capital
Trust VI, Fleet Capital Trust VII, Fleet Capital Trust VIII, Fleet Capital Trust
IX and Fleet Capital Trust X, statutory business trusts formed under the laws of
the State of Delaware (the "Trusts"), in connection with the above-captioned
registration statement on Form S-3 (the "Registration Statement") filed with the
Securities and Exchange Commission (the "Commission") for the purpose of
registering (i) Preferred Securities representing undivided beneficial interests
in the assets of the Trust and (ii) Junior Subordinated Debentures issued by the
Company to the Trust, in connection with the sale of the Preferred Securities.
All capitalized terms used herein and not otherwise defined shall have the
meanings set forth in the form of Prospectus Supplement for an offering of
Preferred Securities filed as an exhibit to the Registration Statement (the
"Form of Prospectus Supplement").
We hereby confirm that, although the discussion set forth under the
heading "UNITED STATES FEDERAL INCOME TAXATION" in the form of Prospectus
<PAGE>
Fleet Financial Group, Inc.
September 23, 1998
Page 2
Supplement does not purport to discuss all possible United States
federal income tax consequences of the purchase, ownership and disposition of
Preferred Securities, in our opinion, such discussion constitutes, in all
material respects, a fair and accurate summary of the United States federal
income tax consequences of the purchase, ownership and disposition of Preferred
Securities, based upon current law. It is possible that contrary positions may
be taken by the Internal Revenue Service and that a court may agree with such
contrary positions.
This opinion is furnished to you solely for your benefit in connection
with the filing of the Registration Statement and, except as set forth below, is
not to be used, circulated, quoted or otherwise referred to for any other
purpose or relied upon by any other person for any purpose without our prior
written consent. We hereby consent to the use of our name under the heading
"Legal Matters" in the Form of Prospectus Supplement and the filing of this
opinion with the Commission as Exhibit 8 to the Registration Statement. In
giving this consent, we do not thereby admit that we are within the category of
persons whose consent is required under Section 7 of the Securities Act of 1933,
as amended, or the rules and regulations of the Commission promulgated
thereunder. This opinion is expressed as of the date hereof unless otherwise
expressly stated and applies only to the disclosure under the heading
"UNITED STATES FEDERAL INCOME TAXATION" set forth in the Form of Prospectus
Supplement filed as of the date hereof. We disclaim any undertaking to advise
you of any subsequent changes of the facts stated or assumed herein or any
subsequent changes in applicable law.
Very truly yours,
/s/ EDWARDS & ANGELL, LLP
-------------------------
EDWARDS & ANGELL, LLP
2
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT 12 (a)
FLEET FINANCIAL GROUP, INC.
COMPUTATION OF CONSOLIDATED RATIO OF EARNINGS
TO FIXED CHARGES EXCLUDING INTEREST ON DEPOSITS
(dollars in millions)
Six Three
Months Months
Ended Ended
June 30, June 30, Year ended December 31,
- -------------------------------------------------------------------- ------------------------------------------------------
1998 1998 1997 1996 1995 1994 1993
- -------------------------------------------------------------------- ------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings:
Income before income taxes and cumulative effect of
accounting changes $ 1,181 $ 646 $ 2,294 $ 2,070 $ 1,156 $ 1,460 $ 1,173
Adjustments:
(a) Fixed charges:
(1) Interest on borrowed funds 497 271 737 813 1,413 1,074 790
(2) 1/3 of rent 27 13 53 55 52 53 54
---------- ---------- ------- ------- ------- ------- -------
(b) Adjusted earnings $ 1,705 $ 930 $ 3,084 $ 2,938 $ 2,621 $ 2,587 $ 2,017
---------- ---------- ------- ------- ------- ------- -------
---------- ---------- ------- ------- ------- ------- -------
Fixed charges $ 524 $ 284 $ 790 $ 868 $ 1,465 $ 1,127 $ 844
---------- ---------- ------- ------- ------- ------- -------
---------- ---------- ------- ------- ------- ------- -------
Adjusted earnings/Fixed charges 3.27x 3.30x 3.90x 3.38x 1.79x 2.30x 2.39x
---------- ---------- ------- ------- ------- ------- -------
---------- ---------- ------- ------- ------- ------- -------
</TABLE>
INCLUDING INTEREST ON DEPOSITS
(dollars in millions)
<TABLE>
<CAPTION>
Six Three
Months Months
Ended Ended
June 30, June 30, Year ended December 31,
- -------------------------------------------------------------------- ------------------------------------------------------
1998 1998 1997 1996 1995 1994 1993
- -------------------------------------------------------------------- ------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings:
Income before income taxes and cumulative effect of
accounting changes $1,181 $ 646 $2,294 $2,070 $1,156 $1,460 $1,173
Adjustments:
(a) Fixed charges:
(1) Interest on borrowed funds 497 271 737 813 1,413 1,074 790
(2) 1/3 of rent 27 13 53 55 52 53 54
(3) Interest on deposits 912 474 1,654 1,754 1,726 1,170 1,165
---------- ---------- ------- ------- ------- ------- -------
(b) Adjusted earnings $2,617 $1,404 $4,738 $4,692 $4,347 $3,757 $3,182
---------- ---------- ------- ------- ------- ------- -------
---------- ---------- ------- ------- ------- ------- -------
Fixed charges $1,436 $ 758 $2,444 $2,622 $3,191 $2,297 $2,009
---------- ---------- ------- ------- ------- ------- -------
---------- ---------- ------- ------- ------- ------- -------
Adjusted earnings/Fixed charges 1.83x 1.86x 1.94x 1.79x 1.36x 1.64x 1.58x
---------- ---------- ------- ------- ------- ------- -------
---------- ---------- ------- ------- ------- ------- -------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT 12 (b)
FLEET FINANCIAL GROUP, INC.
COMPUTATION OF CONSOLIDATED RATIO OF EARNINGS
TO FIXED CHARGES AND PREFERRED DIVIDENDS
EXCLUDING INTEREST ON DEPOSITS
(dollars in millions)
Six Three
Months Months
Ended Ended
June 30, June 30, Year ended December 31,
- -------------------------------------------------------------------- -------------------------------------------------------
1998 1998 1997 1996 1995 1994 1993
- -------------------------------------------------------------------- -------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings:
Income before income taxes and cumulative effect of
accounting changes $1,181 $ 646 $2,294 $2,070 $1,156 $1,460 $1,173
Adjustments:
(a) Fixed charges:
(1) Interest on borrowed funds 497 271 737 813 1,413 1,074 790
(2) 1/3 of rent 27 13 53 55 52 53 54
(b) Preferred dividends 42 21 104 117 62 51 54
---------- ---------- ------- ------- ------- ------- -------
(c) Adjusted earnings $1,747 $ 951 $3,188 $3,055 $2,683 $2,638 $2,071
---------- ---------- ------- ------- ------- ------- -------
---------- ---------- ------- ------- ------- ------- -------
Fixed charges and preferred dividends $ 566 $ 305 $ 894 $ 985 $1,527 $1,178 $ 898
---------- ---------- ------- ------- ------- ------- -------
---------- ---------- ------- ------- ------- ------- -------
Adjusted earnings/Fixed charges and preferred dividends 3.09x 3.12x 3.57x 3.10x 1.76x 2.24x 2.31x
---------- ---------- ------- ------- ------- ------- -------
---------- ---------- ------- ------- ------- ------- -------
</TABLE>
INCLUDING INTEREST ON DEPOSITS
(dollars in millions)
<TABLE>
<CAPTION>
Six Three
Months Months
Ended Ended
June 30, June 30, Year ended December 31,
- -------------------------------------------------------------------- ---------- -------------------------------------------
1998 1998 1997 1996 1995 1994 1993
- -------------------------------------------------------------------- -------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings:
Income before income taxes and cumulative effect of
accounting changes $ 1,181 $ 646 $ 2,294 $ 2,070 $ 1,156 $ 1,460 $ 1,173
Adjustments:
(a) Fixed charges:
(1) Interest on borrowed funds 497 271 737 813 1,413 1,074 790
(2) 1/3 of rent 27 13 53 55 52 53 54
(3) Interest on deposits 912 474 1,654 1,754 1,726 1,170 1,165
(b) Preferred dividends 42 21 104 117 63 51 54
---------- ---------- ------- ------- ------- ------- -------
(c) Adjusted earnings $2,659 $1,425 $4,842 $4,809 $4,410 $3,808 $3,236
---------- ---------- ------- ------- ------- ------- -------
---------- ---------- ------- ------- ------- ------- -------
Fixed charges and preferred dividends $1,478 $ 779 $2,548 $2,739 $3,254 $2,348 $2,063
---------- ---------- ------- ------- ------- ------- -------
---------- ---------- ------- ------- ------- ------- -------
Adjusted earnings/Fixed charges and preferred dividends 1.80x 1.83x 1.90x 1.76x 1.36x 1.62x 1.57x
---------- ---------- ------- ------- ------- ------- -------
---------- ---------- ------- ------- ------- ------- -------
</TABLE>
<PAGE>
EXHIBIT 23(A)
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Fleet Financial Group, Inc.:
We consent to the use of our report incorporated herein by reference and to the
reference to our firm under the heading "Experts" in the accompanying Amendment
No. 1 to the Registration Statement.
/s/ KPMG Peat Marwick LLP
Boston, Massachusetts
September 23, 1998
<PAGE>
Exhibit 25(e)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
Fleet Financial Group, Inc.
(Exact name of obligor as specified in its trust agreement)
Rhode Island 05-0341324
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
One Federal Street
Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
Debt Securities
(Title of Indenture Securities)
<PAGE>
Item 1. General Information. Furnish the following
information as to the trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of the Currency, Washington, D.C., Federal Deposit
Insurance Corporation, Washington, D.C., The Board of
Governors of the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations With the Obligor. If the obligor
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a part
of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of
the Act.
2
<PAGE>
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all
in the City of Chicago and State of Illinois, on the 17th day of
September, 1998.
The First National Bank of Chicago,
Trustee
By /s/ John R. Prendiville
------------------------------------
John R. Prendiville
Vice President
* Exhibit 1, 2, 3 and 4 are herein incorporated by reference to Exhibits bearing
identical numbers in Item 16 of the Form T-1 of The First National Bank of
Chicago, filed as Exhibit 25 to the Registration Statement on Form S-3 of US
WEST Capital Funding, Inc. on May 6, 1998 (Registration No. 333-51907-01).
3
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
September 17, 1998
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of the indenture between Fleet Financial
Group, Inc. and The First National Bank of Chicago, as trustee, the undersigned,
in accordance with Section 321(b) of the Trust Indenture Act of 1939, as
amended, hereby consents that the reports of examinations of the undersigned,
made by Federal or State authorities authorized to make such examinations, may
be furnished by such authorities to the Securities and Exchange Commission upon
its request therefor.
Very truly yours,
The First National Bank of Chicago
By: /s/ John R. Prendiville
-----------------------------------
John R. Prendiville
Vice President
4
<PAGE>
EXHIBIT 7
<TABLE>
<CAPTION>
<S> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for June 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
Dollar Amounts in C400
thousands ----
Thousands RCFD BIL MIL THOU
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCFD
----
a. Noninterest-bearing balances and currency and coin(1)................... 0081 4,490,272 1.a
b. Interest-bearing balances(2)............................................ 0071 5,586,990 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)............... 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)............ 1773 8,974,952 2.b
3. Federal funds sold and securities purchased under agreements to resell..... 1350 5,558,583 3.
RCFD
4. Loans and lease financing receivables: ----
a. Loans and leases, net of unearned income (from Schedule RC-C)........... 2122 28,257,868 4.a
b. LESS: Allowance for loan and lease losses............................... 3123 413,742 4.b
c. LESS: Allocated transfer risk reserve................................... 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and reserve RCFD
----
(item 4.a minus 4.b and 4.c)............................................ 2125 27,844,126 4.d
5. Trading assets (from Schedule RD-D)........................................ 3545 6,073,169 5.
6. Premises and fixed assets (including capitalized leases)................... 2145 721,430 6.
7. Other real estate owned (from Schedule RC-M)............................... 2150 6,827 7.
8. Investments in unconsolidated subsidiaries and associated companies
(from Schedule RC-M)....................................................... 2130 184,515 8.
9. Customers' liability to this bank on acceptances outstanding............... 2155 310,026 9.
10. Intangible assets (from Schedule RC-M)..................................... 2143 302,859 10.
11. Other assets (from Schedule RC-F).......................................... 2160 2,137,491 11.
12. Total assets (sum of items 1 through 11)................................... 2170 62,191,240 12.
</TABLE>
(1) Includes cash items in process of collection and unposted debits. (2)
Includes time certificates of deposit not held for trading.
5
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
Schedule RC-Continued
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
----
from Schedule RC-E, part 1)............................................ 2200 21,810,607 13.a
(1) Noninterest-bearing(1)............................................. 6631 9,864,956 13.a1
(2) Interest-bearing................................................... 6636 11,945,651 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
----
IBFs (from Schedule RC-E, part II)..................................... 2200 15,794,963 13.b
(1) Noninterest bearing................................................ 6631 482,528 13.b1
(2) Interest-bearing................................................... 6636 15,312,435 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 3,858,711 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 1,444,748 15.a
b. Trading Liabilities(from Sechedule RC-D)............................... RCFD 3548 5,661,633 15.b
16. Other borrowed money: RCFD
----
a. With original maturity of one year or less............................. 2332 4,356,061 16.a
b. With original maturity of more than one year.......................... A547 385,550 16.b
c. With original maturity of more than three years ....................... A548 320,386 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding................... 2920 310,026 18.
19. Subordinated notes and debentures......................................... 3200 2,200,000 19.
20. Other liabilities (from Schedule RC-G).................................... 2930 1,176,564 20.
21. Total liabilities (sum of items 13 through 20)............................ 2948 57,319,249 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus............................. 3838 0 23.
24. Common stock.............................................................. 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock).................. 3839 3,188,187 25.
26. a. Undivided profits and capital reserves................................. 3632 1,467,324 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities............................................................. 8434 18,040 26.b
27. Cumulative foreign currency translation adjustments....................... 3284 (2,418) 27.
28. Total equity capital (sum of items 23 through 27)......................... 3210 4,871,991 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)..................................... 3300 62,191,240 29.
</TABLE>
Memorandum
To be reported only with the March Report of
Condition.
<TABLE>
<CAPTION>
<S> <C> <C> <C>
1. Indicate in the box at the right the number of the statement below that best
describes the most comprehensive level of auditing work performed for the
bank by independent external auditors as of any date during 1996..............RCFD 6724..N/A Number
M.1.
</TABLE>
<TABLE>
<CAPTION>
<S> <C>
1 = Independent audit of the bank conducted in accordance 4.= Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
</TABLE>
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
<PAGE>
Exhibit 25(i)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
-------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
--------------------------
Fleet Financial Group, Inc.
(Exact name of obligor as specified in its trust agreement)
Rhode Island 05-0341324
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
One Federal Street
Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
Guarantee of Preferred Securities of
Fleet Capital Trust IX
(Title of Indenture Securities)
1
<PAGE>
Item 1. General Information. Furnish the following
information as to the trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of the Currency, Washington, D.C., Federal Deposit
Insurance Corporation, Washington, D.C., The Board of
Governors of the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations With the Obligor. If the obligor
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a part
of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of
the Act.
2
<PAGE>
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all
in the City of Chicago and State of Illinois, on the 17th day of
September, 1998.
The First National Bank of Chicago,
Trustee
By /s/ John R. Prendiville
-----------------------
John R. Prendiville
Vice President
* Exhibit 1, 2, 3 and 4 are herein incorporated by reference to Exhibits bearing
identical numbers in Item 16 of the Form T-1 of The First National Bank of
Chicago, filed as Exhibit 25 to the Registration Statement on Form S-3 of US
WEST Capital Funding, Inc. on May 6, 1998 (Registration No. 333-51907-01).
3
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
September 17, 1998
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of the guarantee between Fleet Financial
Group, Inc. and The First National Bank of Chicago, as trustee, the undersigned,
in accordance with Section 321(b) of the Trust Indenture Act of 1939, as
amended, hereby consents that the reports of examinations of the undersigned,
made by Federal or State authorities authorized to make such examinations, may
be furnished by such authorities to the Securities and Exchange Commission upon
its request therefor.
Very truly yours,
The First National Bank of Chicago
By: /s/ John R. Prendiville
------------------------
John R. Prendiville
Vice President
4
<PAGE>
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/98
ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for June 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
Dollar Amounts in thousands C400
------
<S> <C> <C> <C>
ASSETS RCFD
1. Cash and balances due from depository institutions (from Schedule RC-A): ----
a. Noninterest-bearing balances and currency and coin(1).......................... 0081 4,490,272 1.a
b. Interest-bearing balances(2)................................................... 0071 5,586,990 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)...................... 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)................... 1773 8,974,952 2.b
3. Federal funds sold and securities purchased under agreements to resell............ 1350 5,558,583 3.
RCFD
4. Loans and lease financing receivables: ----
a. Loans and leases, net of unearned income (from Schedule RC-C).................. 2122 28,257,868 4.a
b. LESS: Allowance for loan and lease losses...................................... 3123 413,742 4.b
c. LESS: Allocated transfer risk reserve.......................................... 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and RCFD
----
reserve (item 4.a minus 4.b and 4.c).......................................... 2125 27,844,126 4.d
5. Trading assets (from Schedule RD-D).............................................. 3545 6,073,169 5.
6. Premises and fixed assets (including capitalized leases)......................... 2145 721,430 6.
7. Other real estate owned (from Schedule RC-M)..................................... 2150 6,827 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)................................................... 2130 184,515 8.
9. Customers' liability to this bank on acceptances outstanding..................... 2155 310,026 9.
10. Intangible assets (from Schedule RC-M)........................................... 2143 302,859 10.
11. Other assets (from Schedule RC-F)................................................ 2160 2,137,491 11.
12. Total assets (sum of items 1 through 11)......................................... 2170 62,191,240 12.
</TABLE>
- ----------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
5
<PAGE>
Legal Title of Bank: The First National Bank of Chicago Call Date:
06/30/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Schedule RC-Continued
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
---------------------------
<S> <C> <C> <C>
LIABILITIES
13. Deposits: RCON
a. In domestic offices (sum of totals of columns A and C ----
from Schedule RC-E, part 1).................................................... 2200 21,810,607 13.a
(1) Noninterest-bearing(1)..................................................... 6631 9,864,956 13.a1
(2) Interest-bearing........................................................... 6636 11,945,651 13.a2
RCFN
b. In foreign offices, Edge and Agreement subsidiaries, and ----
IBFs (from Schedule RC-E, part II)............................................. 2200 15,794,963 13.b
(1) Noninterest bearing........................................................ 6631 482,528 13.b1
(2) Interest-bearing........................................................... 6636 15,312,435 13.b2
14. Federal funds purchased and securities sold under agreements to repurchase: RCFD 2800 3.858,711 14
15. a. Demand notes issued to the U.S. Treasury....................................... RCON 2840 1,444,748 15.a
b. Trading Liabilities(from Sechedule RC-D)....................................... RCFD 3548 5,661,633 15.b
RCFD
16. Other borrowed money: ----
a. With original maturity of one year or less..................................... 2332 4,356,061 16.a
b. With original maturity of more than one year.................................. A547 385,550 16.b
c. With original maturity of more than three years ............................... A548 320,386 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding........................... 2920 310,026 18.
19. Subordinated notes and debentures................................................. 3200 2,200,000 19.
20. Other liabilities (from Schedule RC-G)............................................ 2930 1,176,564 20.
21. Total liabilities (sum of items 13 through 20).................................... 2948 57,319,249 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus..................................... 3838 0 23.
24. Common stock...................................................................... 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock).......................... 3839 3,188,187 25.
26. a. Undivided profits and capital reserves......................................... 3632 1,467,324 26.a
b. Net unrealized holding gains (losses) on available-for-sale securities......... 8434 18,040 26.b
27. Cumulative foreign currency translation adjustments............................... 3284 (2,418) 27.
28. Total equity capital (sum of items 23 through 27)................................. 3210 4,871,991 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)............................................. 3300 62,191,240 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
<TABLE>
<S> <C> <C> <C>
1. Indicate in the box at the right the number of the statement below that best
describes the most comprehensive level of auditing work performed for the bank
by independent external auditors as of any date during 1996........RCFD 6724..... N/A Number
M.1.
</TABLE>
1 = Independent audit of the bank 4.= Directors' examination of the
conducted in accordance with bank performed by other external
generally accepted auditing auditors (may be required by state
standards by a certified public chartering authority)
accounting firm which submits a 5 = Review of the bank's financial
report on the bank statements by external auditors
2 = Independent audit of the bank's 6 = Compilation of the bank's
parent holding company conducted in financial statements by external
accordance with generally accepted auditors
auditing standards by a certified 7 = Other audit procedures (excluding
public accounting firm which tax preparation work)
submits a report on the 8 = No external audit work
consolidated holding company (but
not on the bank separately)
3 = Directors' examination of the
bank conducted in accordance with
generally accepted auditing
standards by a certified public
accounting firm (may be required by
state chartering authority)
- -------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
6
<PAGE>
Exhibit 25(j)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
------------------------
Fleet Financial Group, Inc.
(Exact name of obligor as specified in its trust agreement)
Rhode Island 05-0341324
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
One Federal Street
Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
Guarantee of Preferred Securities of
Fleet Capital Trust X
(Title of Indenture Securities)
1
<PAGE>
Item 1. General Information. Furnish the following
information as to the trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of the Currency, Washington, D.C., Federal Deposit
Insurance Corporation, Washington, D.C., The Board of
Governors of the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations With the Obligor. If the obligor
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a part
of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of
the Act.
2
<PAGE>
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all
in the City of Chicago and State of Illinois, on the 17th day of
September, 1998.
The First National Bank of Chicago,
Trustee
By /s/ John R. Prendiville
-----------------------
John R. Prendiville
Vice President
* Exhibit 1, 2, 3 and 4 are herein incorporated by reference to Exhibits bearing
identical numbers in Item 16 of the Form T-1 of The First National Bank of
Chicago, filed as Exhibit 25 to the Registration Statement on Form S-3 of US
WEST Capital Funding, Inc. on May 6, 1998 (Registration No. 333-51907-01).
3
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
September 17, 1998
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of the guarantee between Fleet Financial
Group, Inc. and The First National Bank of Chicago, as trustee, the undersigned,
in accordance with Section 321(b) of the Trust Indenture Act of 1939, as
amended, hereby consents that the reports of examinations of the undersigned,
made by Federal or State authorities authorized to make such examinations, may
be furnished by such authorities to the Securities and Exchange Commission upon
its request therefor.
Very truly yours,
The First National Bank of Chicago
By: /s/ John R. Prendiville
-----------------------
John R. Prendiville
Vice President
4
<PAGE>
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/98
ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for June 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
Dollar Amounts in thousands C400
--------------------------- ----
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCFD
----
a. Noninterest-bearing balances and currency and coin(1)........... 0081 4,490,272 1.a
b. Interest-bearing balances(2).................................... 0071 5,586,990 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)....... 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D).... 1773 8,974,952 2.b
3. Federal funds sold and securities purchased under agreements to
resell............................................................. 1350 5,558,583 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCFD
----
RC-C).............................................................. 2122 28,257,868 4.a
b. LESS: Allowance for loan and lease losses....................... 3123 413,742 4.b
c. LESS: Allocated transfer risk reserve........................... 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and RCFD
----
reserve (item 4.a minus 4.b and 4.c)............................ 2125 27,844,126 4.d
5. Trading assets (from Schedule RD-D)................................ 3545 6,073,169 5.
6. Premises and fixed assets (including capitalized leases)........... 2145 721,430 6.
7. Other real estate owned (from Schedule RC-M)....................... 2150 6,827 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)..................................... 2130 184,515 8.
9. Customers' liability to this bank on acceptances outstanding....... 2155 310,026 9.
10. Intangible assets (from Schedule RC-M)............................. 2143 302,859 10.
11. Other assets (from Schedule RC-F).................................. 2160 2,137,491 11.
12. Total assets (sum of items 1 through 11)........................... 2170 62,191,240 12.
</TABLE>
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
5
<PAGE>
Legal Title of Bank: The First National Bank of Chicago Call Date:
06/30/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Schedule RC--Continued
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
----
from Schedule RC-E, part 1)............................................. 2200 21,810,607 13.a
(1) Noninterest-bearing(1).............................................. 6631 9,864,956 13.a1
(2) Interest-bearing.................................................... 6636 11,945,651 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
----
IBFs (from Schedule RC-E, part II)...................................... 2200 15,794,963 13.b
(1) Noninterest bearing................................................. 6631 482,528 13.b1
(2) Interest-bearing.................................................... 6636 15,312,435 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 3.858,711 14
15. a. Demand notes issued to the U.S. Treasury................................ RCON 2840 1,444,748 15.a
b. Trading Liabilities(from Sechedule RC-D)................................ RCFD 3548 5,661,633 15.b
16. Other borrowed money: RCFD
----
a. With original maturity of one year or less.............................. 2332 4,356,061 16.a
b. With original maturity of more than one year........................... A547 385,550 16.b
c. With original maturity of more than three years......................... A548 320,386 16.c
17. Not applicable.............................................................
18. Bank's liability on acceptance executed and outstanding.................... 2920 310,026 18.
19. Subordinated notes and debentures.......................................... 3200 2,200,000 19.
20. Other liabilities (from Schedule RC-G)..................................... 2930 1,176,564 20.
21. Total liabilities (sum of items 13 through 20)............................. 2948 57,319,249 21.
22. Not applicable.............................................................
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus.............................. 3838 0 23.
24. Common stock............................................................... 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock)................... 3839 3,188,187 25.
26. a. Undivided profits and capital reserves.................................. 3632 1,467,324 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities.............................................................. 8434 18,040 26.b
27. Cumulative foreign currency translation adjustments........................ 3284 (2,418) 27.
28. Total equity capital (sum of items 23 through 27).......................... 3210 4,871,991 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)...................................... 3300 62,191,240 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external auditors as of any date during 1996
RCFD 6724 N/A
Number
M.1.
1 = Independent audit of the bank 4.= Directors' examination of the
conducted in accordance with bank performed by other external
generally accepted auditing auditors (may be required by state
standards by a certified public chartering authority)
accounting firm which submits a 5 = Review of the bank's financial
report on the bank statements by external auditors
2 = Independent audit of the bank's 6 = Compilation of the bank's
parent holding company conducted in financial statements by external
accordance with generally accepted auditors
auditing standards by a certified 7 = Other audit procedures (excluding
public accounting firm which tax preparation work)
submits a report on the 8 = No external audit work
consolidated holding company (but
not on the bank separately)
3 = Directors' examination of the
bank conducted in accordance with
generally accepted auditing
standards by a certified public
accounting firm (may be required by
state chartering authority)
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
6
<PAGE>
Exhibit 25(n)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
-------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
-------------------------
Fleet Capital Trust IX
(Exact name of obligor as specified in its trust agreement)
Delaware To Be Applied For
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
One Federal Street
Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
Preferred Securities
(Title of Indenture Securities)
<PAGE>
Item 1. General Information. Furnish the following
information as to the trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of the Currency, Washington, D.C., Federal Deposit
Insurance Corporation, Washington, D.C., The Board of
Governors of the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations With the Obligor. If the obligor
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a part
of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of
the Act.
2
<PAGE>
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all
in the City of Chicago and State of Illinois, on the 17th day of
September, 1998.
The First National Bank of Chicago,
Trustee
By /s/ John R. Prendiville
-----------------------
John R. Prendiville
Vice President
* Exhibit 1, 2, 3 and 4 are herein incorporated by reference to Exhibits bearing
identical numbers in Item 16 of the Form T-1 of The First National Bank of
Chicago, filed as Exhibit 25 to the Registration Statement on Form S-3 of US
WEST Capital Funding, Inc. on May 6, 1998 (Registration No. 333-51907-01).
3
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
September 17, 1998
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of the indenture between Fleet Capital
Trust IX and The First National Bank of Chicago, as trustee, the undersigned, in
accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended,
hereby consents that the reports of examinations of the undersigned, made by
Federal or State authorities authorized to make such examinations, may be
furnished by such authorities to the Securities and Exchange Commission upon its
request therefor.
Very truly yours,
The First National Bank of Chicago
By: /s/ John R. Prendiville
------------------------
John R. Prendiville
Vice President
4
<PAGE>
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/98
ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for June 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
Dollar Amounts in thousands C400
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCFD
a. Noninterest-bearing balances and currency and coin(1)................... 0081 4,490,272 1.a
b. Interest-bearing balances(2)............................................ 0071 5,586,990 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)............... 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)............ 1773 8,974,952 2.b
3. Federal funds sold and securities purchased under agreements to
resell..................................................................... 1350 5,558,583 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCFD
RC-C)...................................................................... 2122 28,257,868 4.a
b. LESS: Allowance for loan and lease losses............................... 3123 413,742 4.b
c. LESS: Allocated transfer risk reserve................................... 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and RCFD
reserve (item 4.a minus 4.b and 4.c).................................... 2125 27,844,126 4.d
5. Trading assets (from Schedule RD-D)........................................ 3545 6,073,169 5.
6. Premises and fixed assets (including capitalized leases)................... 2145 721,430 6.
7. Other real estate owned (from Schedule RC-M)............................... 2150 6,827 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)............................................. 2130 184,515 8.
9. Customers' liability to this bank on acceptances outstanding............... 2155 310,026 9.
10. Intangible assets (from Schedule RC-M)..................................... 2143 302,859 10.
11. Other assets (from Schedule RC-F).......................................... 2160 2,137,491 11.
12. Total assets (sum of items 1 through 11)................................... 2170 62,191,240 12.
</TABLE>
- -------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
5
<PAGE>
Legal Title of Bank: The First National Bank of Chicago Call Date:
06/30/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Schedule RC-Continued
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
from Schedule RC-E, part 1)........................................ 2200 21,810,607 13.a
(1) Noninterest-bearing(1)......................................... 6631 9,864,956 13.a1
(2) Interest-bearing.............................................. 6636 11,945,651 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
IBFs (from Schedule RC-E, part II)................................. 2200 15,794,963 13.b
(1) Noninterest bearing............................................ 6631 482,528 13.b1
(2) Interest-bearing............................................... 6636 15,312,435 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 3,858,711 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 1,444,748 15.a
b. Trading Liabilities(from Sechedule RC-D)......................... RCFD 3548 5,661,633 15.b
16. Other borrowed money: RCFD
a. With original maturity of one year or less......................... 2332 4,356,061 16.a
b. With original maturity of more than one year...................... A547 385,550 16.b
c. With original maturity of more than three years ................... A548 320,386 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding 2920 310,026 18.
19. Subordinated notes and debentures..................................... 3200 2,200,000 19.
20. Other liabilities (from Schedule RC-G)................................ 2930 1,176,564 20.
21. Total liabilities (sum of items 13 through 20)........................ 2948 57,319,249 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus......................... 3838 0 23.
24. Common stock.......................................................... 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock) 3839 3,188,187 25.
26. a. Undivided profits and capital reserves............................. 3632 1,467,324 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities......................................................... 8434 18,040 26.b
27. Cumulative foreign currency translation adjustments................... 3284 (2,418) 27.
28. Total equity capital (sum of items 23 through 27) 3210 4,871,991 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)................................. 3300 62,191,240 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external auditors as of any date during 1996
RCFD N/A
6724 Number
M.1.
1 = Independent audit of the bank 4.= Directors' examination of the
conducted in accordance with bank performed by other external
generally accepted auditing auditors (may be required by state
standards by a certified public chartering authority)
accounting firm which submits a 5 = Review of the bank's financial
report on the bank statements by external auditors
2 = Independent audit of the bank's 6 = Compilation of the bank's
parent holding company conducted in financial statements by external
accordance with generally accepted auditors
auditing standards by a certified 7 = Other audit procedures (excluding
public accounting firm which tax preparation work)
submits a report on the 8 = No external audit work
consolidated holding company (but
not on the bank separately)
3 = Directors' examination of the
bank conducted in accordance with
generally accepted auditing
standards by a certified public
accounting firm (may be required by
state chartering authority)
- -------------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
6
<PAGE>
Exhibit 25(o)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
Fleet Capital Trust X
(Exact name of obligor as specified in its trust agreement)
Delaware To Be Applied For
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
One Federal Street
Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
Preferred Securities
(Title of Indenture Securities)
<PAGE>
Item 1. General Information. Furnish the following
information as to the trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of the Currency, Washington, D.C., Federal Deposit
Insurance Corporation, Washington, D.C., The Board of
Governors of the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations With the Obligor. If the obligor
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a part
of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of
the Act.
2
<PAGE>
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all
in the City of Chicago and State of Illinois, on the 17th day of
September, 1998.
The First National Bank of Chicago,
Trustee
By /s/ John R. Prendiville
-----------------------
John R. Prendiville
Vice President
* Exhibit 1, 2, 3 and 4 are herein incorporated by reference to Exhibits bearing
identical numbers in Item 16 of the Form T-1 of The First National Bank of
Chicago, filed as Exhibit 25 to the Registration Statement on Form S-3 of US
WEST Capital Funding, Inc. on May 6, 1998 (Registration No. 333-51907-01).
3
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
September 17, 1998
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of the indenture between Fleet Capital
Trust X and The First National Bank of Chicago, as trustee, the undersigned, in
accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended,
hereby consents that the reports of examinations of the undersigned, made by
Federal or State authorities authorized to make such examinations, may be
furnished by such authorities to the Securities and Exchange Commission upon its
request therefor.
Very truly yours,
The First National Bank of Chicago
By: /s/ John R. Prendiville
------------------------
John R. Prendiville
Vice President
<PAGE>
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/98
ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for June 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
Dollar Amounts in thousands C400
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule RCFD
RC-A): ----
a. Noninterest-bearing balances and currency and coin(1) 0081 4,490,272 1.a
b. Interest-bearing balances(2).................. 0071 5,586,990 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)............ 1773 8,974,952 2.b
3. Federal funds sold and securities purchased under agreements to
resell 1350 5,558,583 3.
4. Loans and lease financing receivables: RCFD
a. Loans and leases, net of unearned income (from Schedule ----
RC-C)............................................ 2122 28,257,868 4.a
b. LESS: Allowance for loan and lease losses..... 3123 413,742 4.b
c. LESS: Allocated transfer risk reserve......... 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and RCFD
reserve (item 4.a minus 4.b and 4.c).......... ----
2125 27,844,126 4.d
5. Trading assets (from Schedule RD-D)......... 3545 6,073,169 5.
6. Premises and fixed assets (including capitalized leases) 2145 721,430 6.
7. Other real estate owned (from Schedule RC-M) 2150 6,827 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)................... 2130 184,515 8.
9. Customers' liability to this bank on acceptances outstanding 2155 310,026 9.
10. Intangible assets (from Schedule RC-M)...... 2143 302,859 10.
11. Other assets (from Schedule RC-F)........... 2160 2,137,491 11.
12. Total assets (sum of items 1 through 11).... 2170 62,191,240 12.
</TABLE>
(1) Includes cash items in process of collection and unposted debits. (2)
Includes time certificates of deposit not held for trading.
5
<PAGE>
Legal Title of Bank: The First National Bank of Chicago Call Date:
06/30/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Schedule RC-Continued
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands
<S> <C> <C> <C>
LIABILITIES
13. Deposits: RCON
a. In domestic offices (sum of totals of columns A and C ----
from Schedule RC-E, part 1)................... 2200 21,810,607 13.a
(1) Noninterest-bearing(1).................... 6631 9,864,956 13.a1
(2) Interest-bearing......................... 6636 11,945,651 13.a2
RCFN
b. In foreign offices, Edge and Agreement subsidiaries, and ----
IBFs (from Schedule RC-E, part II)... 2200 15,794,963 13.b
(1) Noninterest bearing....................... 6631 482,528 13.b1
(2) Interest-bearing.......................... 6636 15,312,435 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 3,858,711 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 1,444,748 15.a
b. Trading Liabilities(from Sechedule RC-D)......................... RCFD 3548 5,661,633 15.b
16. Other borrowed money: RCFD
----
a. With original maturity of one year or less.... 2332 4,356,061 16.a
b. With original maturity of more than one year. A547 385,550 16.b
c. With original maturity of more than three years .............. A548 320,386 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding 2920 310,026 18.
19. Subordinated notes and debentures................ 3200 2,200,000 19.
20. Other liabilities (from Schedule RC-G)........... 2930 1,176,564 20.
21. Total liabilities (sum of items 13 through 20)... 2948 57,319,249 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus.... 3838 0 23.
24. Common stock..................................... 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock) 3839 3,188,187 25.
26. a. Undivided profits and capital reserves........ 3632 1,467,324 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities.................................... 8434 18,040 26.b
27. Cumulative foreign currency translation adjustments 3284 (2,418) 27.
28. Total equity capital (sum of items 23 through 27) 3210 4,871,991 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)............ 3300 62,191,240 29.
</TABLE>
Memorandum To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external auditors as of any date during 1996
RCFD N/A
Number
M.1.
1 = Independent audit of the bank 4.= Directors' examination of the
conducted in accordance with bank performed by other external
generally accepted auditing auditors (may be required by state
standards by a certified public chartering authority)
accounting firm which submits a 5 = Review of the bank's financial
report on the bank statements by external auditors
2 = Independent audit of the bank's 6 = Compilation of the bank's
parent holding company conducted in financial statements by external
accordance with generally accepted auditors
auditing standards by a certified 7 = Other audit procedures (excluding
public accounting firm which tax preparation work)
submits a report on the 8 = No external audit work
consolidated holding company (but
not on the bank separately)
3 = Directors' examination of the
bank conducted in accordance with
generally accepted auditing
standards by a certified public
accounting firm (may be required by
state chartering authority)
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
6
