<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 9, 1999
REGISTRATION NO. 333-86829
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
<TABLE>
<S> <C> <C>
FLEET BOSTON CORPORATION RHODE ISLAND 05-0341324
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 IDENTIFICATION NO.)
ORGANIZATION)
</TABLE>
------------------------
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, SECRETARY AND GENERAL COUNSEL
FLEET BOSTON CORPORATION
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. ROBBINS 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]
------------------------
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.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Title of each class Amount to be offering price aggregate offering Amount of
of securities to be registered registered(1) per unit(2) price(3) registration fee
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities(4).......................... (5) (5) (5) (5)
- ---------------------------------------------------------------------------------------------------------------------------------
Preferred Stock, par value $1.00 per
share(6)(7)............................... (5) (5) (5) (5)
- ---------------------------------------------------------------------------------------------------------------------------------
Depositary Shares(7)........................ (5) (5) (5) (5)
- ---------------------------------------------------------------------------------------------------------------------------------
Common Stock, par value $0.01 per
share(8).................................. (5) (5) (5) (5)
- ---------------------------------------------------------------------------------------------------------------------------------
Warrants(9)................................. (5) (5) (5) (5)
- ---------------------------------------------------------------------------------------------------------------------------------
Preferred securities of Fleet Capital Trust
VI(10).................................... (5) (5) (5) (5)
- ---------------------------------------------------------------------------------------------------------------------------------
Preferred securities of Fleet Capital Trust
VII(10)................................... (5) (5) (5) (5)
- ---------------------------------------------------------------------------------------------------------------------------------
Preferred securities of Fleet Capital Trust
VIII(10).................................. (5) (5) (5) (5)
- ---------------------------------------------------------------------------------------------------------------------------------
Preferred securities of Fleet Capital Trust
IX(10).................................... (5) (5) (5) (5)
- ---------------------------------------------------------------------------------------------------------------------------------
Preferred securities of Fleet Capital Trust
X(10)..................................... (5) (5) (5) (5)
- ---------------------------------------------------------------------------------------------------------------------------------
Guarantees by Fleet Boston Corporation of
the above-reference preferred
securities(11)............................ (5) (5) (5) (5)
- ---------------------------------------------------------------------------------------------------------------------------------
Junior Subordinated Debentures of Fleet
Boston Corporation(10).................... (5) (5) (5) (5)
- ---------------------------------------------------------------------------------------------------------------------------------
Total............................... $2,351,868,750(12) 100% $2,351,868,750(12) N/A(13)
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) This Registration Statement also registers, where required, an
indeterminate amount of securities to be sold by affiliates of Fleet Boston
Corporation ("FleetBoston") in market-making transactions.
(2) The proposed maximum offering price per unit will be determined from time
to time by FleetBoston in connection with the issuance by FleetBoston of
the securities registered hereunder.
(3) 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.
(4) Subject to note (12) below, there is being registered hereunder an
indeterminate principal amount of Debt Securities as may be sold, from time
to time, by the Registrant.
(5) Not applicable pursuant to General Instructions II.D. of Form S-3.
(6) Subject to note (12) 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.
(7) Subject to note (12) 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 FleetBoston
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.
(8) Subject to note (12) below, there is being registered hereunder an
indeterminate number of shares of Common Stock as may be sold, from time to
time, by FleetBoston. 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.
(9) Subject to note (12) 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.
(10) Subject to note (12) below, there is being registered hereunder an
indeterminate number of Preferred Securities of 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 FleetBoston. A like
amount of Junior Subordinated Debentures may be issued and sold by
FleetBoston 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
FleetBoston 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 FleetBoston 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
FleetBoston'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 FleetBoston of payments
due on the Preferred Securities. No separate consideration will be received
for any Guarantees or such back-up obligations.
(12) In no event will the aggregate initial offering price of all securities
issued from time to time pursuant to this Registration Statement exceed
$2,351,868,750 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, FleetBoston may issue such higher
principal amount as may be sold for an initial public offering price of up
to $2,351,868,750 (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.
(13) The registration fee of $556,000 was previously paid with the original
filing of Form S-3 relating to $2,000,000,000 of new securities registered.
The remaining amount of securities included in this amendment
($351,868,750) relate to Registration Statement No. 333-62905 (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
Prospectuses contained herein also relate to $351,868,750 of securities
previously registered under Registration Statement No. 333-62905 and this
constitutes Post-Effective Amendment No. 1 to such Registration Statement.
------------------------
<PAGE> 3
EXPLANATORY NOTE
This Registration Statement contains three forms of Prospectus: (a) 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; (b)
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 (c) 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 FleetBoston.
This Registration Statement also contains a form of Prospectus Supplement
to be used in connection with the offering and sale of Preferred Securities.
<PAGE> 4
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE
MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT
AN OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY
THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED DECEMBER 9, 1999
PROSPECTUS
FLEET BOSTON LOGO
FLEET BOSTON CORPORATION
Fleet Boston Corporation may offer and sell --
- -- Debt Securities
- -- Warrants
We will provide specific terms of these securities in supplements to this
prospectus. You should read this prospectus and any supplements carefully before
you invest.
A security is not a deposit and the securities are not insured or guaranteed by
the Federal Deposit Insurance Corporation or any other governmental agency.
This prospectus may be used to offer and sell securities only if accompanied by
the prospectus supplement for those securities.
NEITHER THE SEC NOR ANY STATE SECURITIES COMMISSION HAS APPROVED THESE
SECURITIES OR DETERMINED THAT THIS PROSPECTUS OR THE ACCOMPANYING PROSPECTUS
SUPPLEMENT IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is , 1999.
<PAGE> 5
IMPORTANT NOTICE ABOUT INFORMATION PRESENTED IN THIS
PROSPECTUS AND THE ACCOMPANYING PROSPECTUS SUPPLEMENT
We may provide information to you about the securities we are offering in
three separate documents that progressively provide more detail:
- this prospectus, which provides general information, some of which may
not apply to your securities;
- the accompanying prospectus supplement, which describes the terms of the
securities, some of which may not apply to your securities; and
- if necessary, a pricing supplement, which describes the specific terms of
your securities.
IF THE TERMS OF YOUR SECURITIES VARY BETWEEN THE PRICING SUPPLEMENT, THE
PROSPECTUS SUPPLEMENT AND THE ACCOMPANYING PROSPECTUS, YOU SHOULD RELY ON THE
INFORMATION IN THE FOLLOWING ORDER OF PRIORITY:
- THE PRICING SUPPLEMENT, IF ANY;
- THE PROSPECTUS SUPPLEMENT; AND
- THE PROSPECTUS.
We include cross-references in this prospectus and the accompanying
prospectus supplement to captions in these materials where you can find further
related discussions. The following Table of Contents and the Table of Contents
included in the accompanying prospectus supplement provide the pages on which
these captions are located.
------------------------
Unless indicated in the applicable prospectus supplement, neither we nor
the underwriters have taken any action that would permit us to publicly sell
these securities in any jurisdiction outside the United States. If you are an
investor outside the United States, you should inform yourself about and comply
with any restrictions as to the offering of the securities and the distribution
of this prospectus.
<PAGE> 6
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
About This Prospectus............... 2
Where You Can Find More
Information....................... 2
Forward-looking Statements.......... 4
Fleet Boston Corporation............ 5
Supplemental Consolidated Ratios of
Earnings to Fixed Charges......... 6
Use of Proceeds..................... 6
Regulation and Supervision.......... 6
General........................... 7
Liability for Bank Subsidiaries... 7
Capital Requirements.............. 7
FDICIA............................ 8
Dividend Restrictions............. 9
Deposit Insurance Assessments..... 9
Depositor Preference Statute...... 10
Brokered Deposits................. 10
Interstate Banking and
Branching...................... 10
Control Acquisitions.............. 11
Recent Legislation................ 11
Future Legislation................ 12
Description of Debt Securities...... 12
General........................... 12
Registration and Transfer......... 14
</TABLE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Payment and Place of Payment...... 14
Global Securities................. 14
Events of Default................. 15
Modification and Waiver........... 16
Consolidation, Merger and Sale of
Assets......................... 17
Regarding the Trustee............. 17
International Offering............ 17
Senior Debt Securities.............. 18
Restrictive Covenants............. 18
Defeasance........................ 19
Subordinated Debt Securities........ 19
Subordination..................... 19
Restrictive Covenants............. 21
Description of Warrants............. 21
Offered Warrants.................. 21
Further Information in Prospectus
Supplement..................... 22
Significant Provisions of the
Warrant Agreements............. 23
Plan of Distribution................ 24
Experts............................. 25
Legal Opinions...................... 25
</TABLE>
<PAGE> 7
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission, the "SEC," utilizing a "shelf" registration
process. Under this shelf process, we may from time to time sell any combination
of the debt securities or warrants described in this prospectus in one or more
offerings up to a total dollar amount of $2,351,868,750. We may also sell other
securities under the registration statement that will reduce the total dollar
amount of securities that we may sell under this prospectus. This prospectus
provides you with a general description of the debt securities or warrants we
may offer. Each time we sell debt securities or warrants, we will provide a
prospectus supplement that will contain specific information about the terms of
that offering. The prospectus supplement may also add, update or change
information contained in this prospectus. You should read both this prospectus
and any prospectus supplement together with the additional information described
under the heading "Where You Can Find More Information."
Unless otherwise indicated or unless the context requires otherwise, all
references in this prospectus to "FLEETBOSTON," "WE," "US," "OUR" or similar
references mean Fleet Boston Corporation.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement under the Securities
Act of 1933 that registers, among other securities, the offer and sale of the
securities offered by this prospectus. The registration statement, including the
attached exhibits and schedules, contains additional relevant information about
us. The rules and regulations of the SEC allow us to omit certain information
included in the registration statement from this prospectus.
In addition, we file reports, proxy statements and other information with
the SEC under the Securities Exchange Act of 1934. You may read and copy this
information at the following locations of the SEC:
Public Reference Room
450 Fifth Street, N.W.
Room 1024
Washington, D.C. 20549
Northeast Regional Office
7 World Trade Center
Suite 1300
New York, New York 10048
Midwest Regional Office
500 West Madison Street
Suite 1400
Chicago, Illinois 60661-2511
You may also obtain copies of this information by mail from the Public
Reference Section of the SEC, 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549, at prescribed rates.
The SEC also maintains an internet world wide web site that contains
reports, proxy statements and other information about issuers, like us, who file
electronically with the SEC. The address of that site is:
http://www.sec.gov.
You can also inspect reports, proxy statements and other information about
us at the offices of the New York Stock Exchange, 20 Broad Street, New York, New
York 10005.
The SEC allows us to "INCORPORATE BY REFERENCE" information into this
prospectus. This means that we can disclose important information to you by
referring you to another document filed separately with the SEC. The information
incorporated by reference is considered to be a part of this prospectus, except
for any information that is superseded by information that is included directly
in this document or in a more recent incorporated document.
2
<PAGE> 8
This prospectus incorporates by reference the documents listed below that
we have previously filed with the SEC. They contain important information about
us and our financial condition.
<TABLE>
<CAPTION>
SEC FILINGS PERIOD
----------- ------
<S> <C>
Annual Report on Form 10-K.............................. Year ended December 31, 1998, as filed
on March 26, 1999
Quarterly Report on Form 10-Q........................... Quarter ended March 31, 1999, as filed
on May 14, 1999
Quarter ended June 30, 1999, as filed
on August 12, 1999
Quarter ended September 30, 1999, as
filed on November 12, 1999
Items 10-13 of FleetBoston's Definitive Proxy Statement
to FleetBoston's Stockholders for the 1999 Annual
Meeting of FleetBoston Stockholders................... Filed on March 5, 1999
The description of FleetBoston common stock set forth in
the FleetBoston registration statement filed by
Industrial National Corporation (predecessor to
FleetBoston) on Form 8-B dated May 29, 1970, and any
amendment or report filed for the purpose of updating
such description; and
Current Reports on Form 8-K............................. Filed:
-February 1, 1999
-March 17, 1999
-April 2, 1999
-April 20, 1999
-May 14, 1999
-July 20, 1999
-August 12, 1999
-September 16, 1999
-September 30, 1999
-October 1, 1999
-October 15, 1999
-November 2, 1999
-November 19, 1999
-November 22, 1999
</TABLE>
We incorporate by reference additional documents that we may file with the
SEC between the date of this prospectus and the date we sell all of the debt
securities. These documents include periodic reports, such as Annual Reports on
Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, as
well as proxy statements.
You can obtain any of the documents incorporated by reference in this
document through us, or from the SEC through the SEC's Internet world wide web
site at the address described above. Documents incorporated by reference are
available from us without charge, excluding any exhibits to those documents,
unless the exhibit is specifically incorporated by reference as an exhibit in
this prospectus. You can obtain documents incorporated by reference in this
prospectus by requesting them in writing or by telephone from us at the
following address:
Investor Relations Department
Fleet Boston Corporation
P.O. Box 2016, MA BOS 01-20-02
Boston, Massachusetts 02106-2106
(617) 434-7858
We have not authorized anyone to give any information or make any
representation about us that is different from, or in addition to, those
contained in this prospectus or in any of the materials that we have
incorporated into this prospectus. If anyone does give you information of this
sort, you should not rely on it. If you are in a jurisdiction where offers to
sell, or solicitations of offers to purchase, the securities offered by this
document are unlawful, or if you are a person to whom it is unlawful to direct
these
3
<PAGE> 9
types of activities, then the offer presented in this document does not extend
to you. The information contained in this document speaks only as of the date of
this document unless the information specifically indicates that another date
applies.
FORWARD-LOOKING STATEMENTS
This prospectus, including information included or incorporated by
reference, contains certain forward-looking statements with respect to our
financial condition, results of operations, plans, objectives, future
performance and business, including, without limitation:
- statements relating to the cost savings and accretion to reported
earnings estimated to result from our merger with BankBoston Corporation;
- statements relating to revenues of the combined company after our merger
with BankBoston;
- statements relating to the restructuring charges estimated to be incurred
in connection with our merger with BankBoston; and
- statements preceded by, followed by or that include the words "believes,"
"expects," "anticipates," "estimates" or similar expressions.
These forward-looking statements involve risks and uncertainties. Actual
results may differ materially from those contemplated by the forward-looking
statements due to many factors, including:
- general political and economic conditions, either internationally,
nationally or in the states in which we are doing business, may be less
favorable than expected;
- interest rate and currency fluctuations, equity and bond market
fluctuations, the level of customers' bankruptcies, and inflation may be
greater than expected;
- competitive pressures among financial services companies may increase
significantly;
- legislative or regulatory changes may adversely affect our business;
- technological changes, including year 2000 data systems compliance
issues, may be more difficult or expensive than anticipated;
- expected cost savings from our merger with BankBoston may not be fully
realized or realized within the expected time frame;
- revenues following our merger with BankBoston may be lower than expected;
- costs or difficulties related to the integration of our business and that
of BankBoston may be greater than expected; and
- the negative impact of the divestitures to be completed in connection
with our merger with BankBoston may be greater than expected.
4
<PAGE> 10
FLEET BOSTON CORPORATION
We are a diversified financial services company, with consumer and
commercial platforms serving approximately 20 million customers nationally and
internationally. Our lines of business include:
- institutional and investment banking;
- cash management;
- trade services;
- export finance;
- mortgage banking;
- corporate finance;
- asset-based lending;
- commercial lending;
- real estate lending;
- government banking;
- investment management services;
- equipment leasing;
- credit cards;
- discount brokerage services;
- student loan processing; and
- full-service banking in leading Latin American Markets.
On October 1, 1999, we completed the merger of BankBoston Corporation into
us.
- The name of the combined company was changed to "Fleet Boston
Corporation."
- The combined company will be doing business under the name "FleetBoston
Financial."
- The headquarters of the combined company will remain in Boston,
Massachusetts.
- Terrence Murray, our Chairman and Chief Executive Officer, was appointed
the Chairman of the Board of Directors and Chief Executive Officer of the
combined company.
- Charles K. Gifford, Chairman and Chief Executive Officer of BankBoston,
was appointed the President and Chief Operating Officer of the combined
company. Mr. Gifford will succeed to the role of Chief Executive Officer
as of December 31, 2001, or at such earlier time as Mr. Murray may step
down from that role, and Mr. Gifford will succeed to the role of Chairman
of the Board of Directors on December 31, 2002, or at such earlier time
as Mr. Murray may step down from that role.
- The board of directors of the combined company consists of 13 directors
from Fleet and 11 directors from BankBoston.
- The merger was accounted for under the "pooling-of-interests" method of
accounting. This means that, for accounting and financial reporting
purposes, we will treat our companies as if they had always been one, and
no goodwill will be created. In addition, the merger was treated as a
"reorganization" under the Internal Revenue Code. This means that we will
not recognize any gain or loss as a result of the merger.
- At the effective time of the merger, each share of common stock of
BankBoston, outstanding immediately prior to the effective time of the
merger was converted into 1.1844 shares of our common stock.
In connection with obtaining regulatory approvals for the merger, the
Federal Reserve Board and the United States Department of Justice required us to
agree to divest approximately $13 billion of deposits and $9 billion of loans
from the combined company, resulting in estimated divested income of $160
million after tax.
All financial information set forth in this prospectus and accompanying
prospectus supplement has been restated for all periods to give effect to the
merger. Because the divestitures will not be significant to us, the financial
information has not been adjusted to show the effects of the divestitures.
At September 30, 1999, our total assets on a consolidated basis were $185.3
billion, our consolidated total deposits were $113.2 billion
5
<PAGE> 11
and our consolidated total stockholders' equity was $15.5 billion. Based on
total assets at September 30, 1999, we were the eighth largest bank holding
company in the United States.
For additional information regarding the merger and certain pro forma
financial information relating to the merger, see our current reports on Form
8-K filed March 17, 1999, April 2, 1999, May 14, 1999, August 12, 1999,
September 16, 1999, September 30, 1999, October 1, 1999, October 15, 1999 and
November 22, 1999, each of which is incorporated by reference into this
prospectus. See "Where You Can Find More Information."
Our principal office is located at One Federal Street, Boston,
Massachusetts 02110, telephone number (617) 346-4000.
SUPPLEMENTAL CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
Our supplemental consolidated ratios of earnings to fixed charges were as
follows for the five most recent fiscal years and the nine months ended
September 30, 1999:
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
SEPTEMBER 30, YEAR ENDED DECEMBER 31,
------------- --------------------------------
1999 1998 1997 1996 1995 1994
------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges:
Excluding Interest on Deposits........... 2.62x 2.62x 3.00x 2.79x 1.91x 2.11x
Including Interest on Deposits........... 1.72 1.62 1.72 1.61 1.39 1.52
</TABLE>
- -------------------------
For the purpose of computing the ratio of earnings to fixed charges,
"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
We intend to use the net proceeds from the sale of the securities for
general corporate purposes unless otherwise indicated in the prospectus
supplement, pricing supplement or term sheet relating to a specific issue of
securities. Our general corporate purposes may include extending credit to, or
funding investments in, our subsidiaries. The precise amounts and the timing of
our use of the net proceeds will depend upon our subsidiaries' funding
requirements and the availability of other funds. Until we use the net proceeds
from the sale of any of our securities for general corporate purposes, we will
use the net proceeds to reduce our short-term indebtedness or for temporary
investments. We expect that we will, on a recurrent basis, engage in additional
financings as the need arises to finance our growth, through acquisitions or
otherwise, or to fund our subsidiaries.
REGULATION AND SUPERVISION
The following discussion sets forth the material elements of the regulatory
framework applicable to bank holding companies and their subsidiaries, and
provides certain specific information relevant to us. This regulatory framework
primarily is intended for the protection of depositors and the deposit insurance
funds that insure deposits of banks, and not for the protection of security
holders. To the extent that the following information describes statutory and
regulatory provisions, it is qualified in its entirety by reference to those
provisions. A
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change in the statutes, regulations or regulatory policies applicable to us or
our subsidiaries may have a material effect on our business.
GENERAL
As a bank holding company, we are subject to regulation under the Bank
Holding Company Act of 1956, as amended, and to inspection, examination and
supervision by the Federal Reserve Board. Under the Bank Holding Company Act,
bank holding companies generally may not acquire ownership or control of any
company, including a bank, without the prior approval of the Federal Reserve
Board. In addition, bank holding companies generally may engage, directly or
indirectly, only in banking and those other activities as are determined by the
Federal Reserve Board to be closely related to banking.
Various governmental requirements, including Sections 23A and 23B of the
Federal Reserve Act, as amended, limit borrowings by us and our non-bank
subsidiaries from our affiliate insured depository institutions, and also limit
various other transactions between us and our non-bank subsidiaries, on the one
hand, and our affiliate insured depository institutions, on the other. Section
23A of the Federal Reserve Act also generally requires that an insured
depository institution's loans to its non-bank affiliates be secured, and
Section 23B of the Federal Reserve Act generally requires that an insured
depository institution's transactions with its non-bank affiliates be on
arm's-length terms.
Our banking subsidiaries are subject to extensive supervision, examination
and regulation by various bank regulatory authorities and other governmental
agencies in the states and countries where we and our subsidiaries operate. We
and our subsidiaries are also affected by the fiscal and monetary policies of
the U.S. federal government and the Federal Reserve Board, and by various other
governmental requirements and regulations.
LIABILITY FOR BANK SUBSIDIARIES
Under current Federal Reserve Board policy, a bank holding company is
expected to act as a source of financial and managerial strength to each of its
subsidiary banks and to maintain resources adequate to support each subsidiary
bank. This support may be required at times when the bank holding company may
not have the resources to provide it. In addition, Section 55 of the National
Bank Act permits the OCC to order the pro rata assessment of stockholders of a
national bank whose capital has become impaired. If a stockholder fails, within
three months, to pay that assessment, the board of directors has a duty to sell
the stockholder's stock to cover the deficiency. In the event of a bank holding
company's bankruptcy, any commitment by the bank holding company to a U.S.
federal bank regulatory agency to maintain the capital of a subsidiary bank
would be assumed by the bankruptcy trustee and entitled to priority of payment.
Any depository institution insured by the FDIC can be held liable for any
loss incurred, or reasonably expected to be incurred, by the FDIC in connection
with:
- the default of a commonly controlled FDIC-insured depository institution;
or
- any assistance provided by the FDIC to a commonly controlled FDIC-insured
depository institution in danger of default.
"DEFAULT" generally is defined as the appointment of a conservator or receiver
and "IN DANGER OF DEFAULT" generally is defined as the existence of certain
conditions indicating that a default is likely to occur in the absence of
regulatory assistance.
All of our domestic banks are FDIC-insured depositary institutions. Also,
if a default occurred with respect to a bank, any capital loans to the bank from
its parent holding company would be subordinate in right of payment to payment
of the bank's depositors and certain of its other obligations.
CAPITAL REQUIREMENTS
We are subject to risk-based capital requirements and guidelines imposed by
the Federal Reserve Board, which are substantially similar to the capital
requirements and guidelines imposed by the Federal Reserve Board, the OCC, the
OTS and the FDIC on our
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depository institutions within their respective jurisdictions. For this purpose,
a depository institution's or holding company's assets and certain specified
off-balance sheet commitments are assigned to four risk categories, each
weighted differently based on the level of credit risk that is ascribed to those
assets or commitments. In addition, risk-weighted assets are adjusted for
low-level recourse and market-risk equivalent assets. A depository institution's
or holding company's capital, in turn, is divided into three tiers:
- core, or "TIER 1," capital, which consists primarily of stockholders'
equity less certain identifiable intangible assets and certain other
assets;
- supplementary, or "TIER 2," capital, which includes, among other items,
certain other debt and equity investments that do not qualify as Tier 1
capital; and
- market risk, or "TIER 3," capital, which includes qualifying unsecured
subordinated debt.
Like other bank holding companies, we currently are required to maintain
Tier 1 and "TOTAL CAPITAL" (the sum of Tier 1, Tier 2 and Tier 3 capital) equal
to at least 4% and 8% of our total risk-weighted assets (including certain
off-balance-sheet items, such as unused lending commitments and standby letters
of credit), respectively. At September 30, 1999, we met both requirements, with
Tier 1 and total capital equal to 7.14% and 11.28% of our total risk-weighted
assets.
The Federal Reserve Board, the FDIC and the OCC have adopted rules to
incorporate market and interest rate risk components into their risk-based
capital standards. Amendments to the risk-based capital requirements,
incorporating market risk, became effective January 1, 1998. Under the new
market-risk requirements, capital will be allocated to support the amount of
market risk related to a financial institution's ongoing trading activities.
The Federal Reserve Board also requires bank holding companies to maintain
a minimum "LEVERAGE RATIO," defined as Tier 1 capital to average adjusted total
assets, of 3%, if the bank holding company has the highest regulatory rating and
meets certain other requirements, or of 3% plus an additional cushion of at
least 1% to 2% if the bank holding company does not meet these requirements. At
September 30, 1999, our leverage ratio was 7.21%, which significantly exceeded
the minimum leverage ratio to which we were subject.
The Federal Reserve Board may set capital requirements higher than the
minimums noted above for holding companies whose circumstances warrant it. For
example, bank holding companies experiencing or anticipating significant growth
may be expected to maintain strong capital positions substantially above the
minimum supervisory levels without significant reliance on intangible assets.
Furthermore, the Federal Reserve Board has indicated that it will consider a
"TANGIBLE TIER 1 CAPITAL LEVERAGE RATIO," which would deduct all intangibles,
and other indicia of capital strength in evaluating proposals for expansion or
new activities.
Each of our banks is subject to similar risk-based and leverage capital
requirements adopted by its applicable U.S. federal banking agency. Each of our
banks was in compliance with the applicable minimum capital requirements as of
September 30, 1999.
Failure to meet capital requirements could subject a bank to a variety of
enforcement remedies, including the termination of deposit insurance by the
FDIC, and to certain restrictions on its business, which are described under
"-- FDICIA."
FDICIA
The Federal Deposit Insurance Corporation Improvement Act of 1991,
"FDICIA," among other things, identifies five capital categories for insured
depository institutions -- well capitalized, adequately capitalized,
undercapitalized, significantly undercapitalized and critically
undercapitalized -- and requires U.S. federal bank regulatory agencies to
implement systems for "prompt corrective action" for insured depository
institutions that do not meet minimum capital require-
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ments based on these categories. FDICIA imposes progressively more restrictive
constraints on operations, management and capital distributions, depending on
the category in which an institution is classified. Unless a bank or thrift is
well-capitalized, it is subject to restrictions on its ability to offer brokered
deposits and on certain other aspects of its operations. An undercapitalized
bank or thrift must develop a capital restoration plan and its parent bank
holding company must guarantee the bank's or thrift's compliance with the plan
up to the lesser of 5% of the bank's or thrift's assets at the time it became
undercapitalized and the amount needed to comply with the plan.
As of September 30, 1999, each of our bank and thrift subsidiaries was
well-capitalized, based on the prompt corrective action ratios and guidelines
described above. It should be noted, however, that a bank's capital category is
determined solely for the purpose of applying the OCC's, or the FDIC's, prompt
corrective action regulations and that the capital category may not constitute
an accurate representation of the bank's overall financial condition or
prospects.
DIVIDEND RESTRICTIONS
Various U.S. federal and state statutory provisions limit the amount of
dividends our banks can pay to us without regulatory approval. Dividend payments
by national banks are limited to the lesser of:
- the level of undivided profits; and
- absent regulatory approval, an amount not in excess of net income for the
current year combined with retained net income for the preceding two
years.
Likewise, the approval of the Federal Reserve Board is required for any
dividend by a state-chartered bank that is a member of the Federal Reserve
System, a "STATE MEMBER BANK," if the total of all dividends declared by the
bank in any calendar year would exceed the total of its net profits, as defined
by regulatory agencies for that year, combined with its retained net profits for
the preceding two years. In addition, a state member bank may not pay a dividend
in an amount greater than its net profits then on hand. Depending on certain
factors, a U.S. federal savings bank may be required to file an application or
notice with the OTS prior to the payment of any dividends. For example, an
application is required if the total amount of all dividends and other capital
distributions for the current calendar year paid by a U.S. federal savings bank
exceeds its net income for that year as well as its retained net income for the
preceding two years. A prior notice is required if, among other things, a U.S.
federal savings bank is proposing to pay a dividend that would reduce the amount
of, or retire any of part of, its common or preferred stock or retire any part
of any debt instruments which are included in its capital for purposes of OTS
regulations.
At September 30, 1999, approximately $1.66 billion of the total
stockholders' equity of our banks was available for payment of dividends to us,
without approval by the applicable regulatory authority.
In addition, U.S. federal bank regulatory authorities have authority to
prohibit our banks from engaging in an unsafe or unsound practice in conducting
their business. The payment of dividends, depending upon the financial condition
of the bank in question, could be deemed to constitute an unsafe or unsound
practice. The ability of our banks to pay dividends in the future is currently,
and could be further, influenced by bank regulatory policies and capital
guidelines.
DEPOSIT INSURANCE ASSESSMENTS
The deposits of each of our domestic banks are insured up to regulatory
limits by the FDIC, and, accordingly, are subject to deposit insurance
assessments to maintain the Bank Insurance Fund, the "BIF," and/or the Savings
Association Insurance Fund, the "SAIF," 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 (1) the bank's capitalization and (2)
supervisory evaluations provided to the
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FDIC by the institution's primary U.S. federal regulator. Each insured bank's
insurance assessment rate is then determined by the risk category in which it is
classified by the FDIC.
Effective January 1, 1997, the annual insurance premiums on bank deposits
insured by the BIF and the SAIF vary between $0.00 per $100 of deposits for
banks classified in the highest capital and supervisory evaluation categories to
$0.27 per $100 of deposits for banks classified in the lowest capital and
supervisory evaluation categories.
The Deposit Insurance Funds Act provides for assessments to be imposed on
insured depository institutions with respect to deposits insured by the BIF and
the SAIF (in addition to assessments currently imposed on depository
institutions with respect to BIF- and SAIF-insured deposits) to pay for the cost
of Financing Corporation, "FICO," funding. The FDIC established the FICO
assessment rates effective October 1, 1999, at $0.01184 per $100 annually for
BIF-assessable deposits and $0.05920 per $100 annually for SAIF-assessable
deposits. The FICO assessments do not vary depending upon a depository
institution's capitalization or supervisory evaluations. Our banks held
approximately $97.0 billion and $3.4 billion, respectively, of BIF-assessable
and SAIF-assessable deposits as of September 30, 1999.
DEPOSITOR PREFERENCE STATUTE
In the "liquidation or other resolution" of an institution by any receiver,
U.S. federal legislation provides that deposits and certain claims for
administrative expenses and employee compensation against the insured depository
institution would be afforded a priority over other general unsecured claims
against that institution, including federal funds and letters of credit.
BROKERED DEPOSITS
Under FDIC regulations, no FDIC-insured depository institution can accept
brokered deposits unless it (1) is well capitalized, or (2) is adequately
capitalized and receives a waiver from the FDIC. In addition, these regulations
prohibit any depository institution that is not well-capitalized from (1) paying
an interest rate on deposits in excess of 75 basis points over certain
prevailing market rates or (2) offering "pass through" deposit insurance on
certain employee benefit plan accounts, unless it provides certain notice to
affected depositors.
INTERSTATE BANKING AND BRANCHING
Under the Riegle-Neal Interstate Banking and Branching Efficiency Act,
"RIEGLE-NEAL," subject to certain concentration limits and other requirements:
- bank holding companies such as us are permitted to acquire banks and bank
holding companies located in any state;
- any bank that is a subsidiary of a bank holding company is permitted to
receive deposits, renew time deposits, close loans, service loans and
receive loan payments as an agent for any other bank subsidiary of that
bank holding company; and
- banks are permitted to acquire branch offices outside their home states
by merging with out-of-state banks, purchasing branches in other states
and establishing de novo branch offices in other states. The ability of
banks to acquire branch offices through purchase or opening of other
branches is contingent, however, on the host state having adopted
legislation "opting in" to those provisions of Riegle-Neal. In addition,
the ability of a bank to merge with a bank located in another state is
contingent on the host state not having adopted legislation "opting out"
of that provision of Riegle-Neal.
We might use Riegle-Neal to acquire banks in additional states and to
consolidate our bank subsidiaries under a smaller number of separate charters.
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CONTROL ACQUISITIONS
The Change in Bank Control Act prohibits a person or group of persons from
acquiring "control" of a bank holding company, unless the Federal Reserve Board
has been notified and has not objected to the transaction. Under a rebuttable
presumption established by the Federal Reserve Board, the acquisition of 10% or
more of a class of voting stock of a bank holding company with a class of
securities registered under Section 12 of the Exchange Act, such as us, would,
under the circumstances set forth in the presumption, constitute acquisition of
control of the bank holding company.
In addition, a company is required to obtain the approval of the Federal
Reserve Board under the Bank Holding Company Act before acquiring 25% (5% in the
case of an acquiror that is a bank holding company) or more of any class of
outstanding common stock of a bank holding company, or otherwise obtaining
control or a "controlling influence" over that bank holding company.
RECENT LEGISLATION
On November 12, 1999, President Clinton signed into law legislation that
allows bank holding companies to engage in a wider range of nonbanking
activities, including greater authority to engage in securities and insurance
activities. Under the Gramm-Leach-Bliley Act (the "Act"), a bank holding company
that elects to become a financial holding company may engage in any activity
that the Federal Reserve Board, in consultation with the Secretary of the
Treasury, determines by regulation or order is (1) financial in nature, (2)
incidental to any such financial activity, or (3) complementary to any such
financial activity and does not pose a substantial risk to the safety or
soundness of depository institutions or the financial system generally. This Act
makes significant changes in U.S. banking law, principally by repealing the
restrictive provisions of the 1933 Glass-Steagall Act. The Act specifies certain
activities that are deemed to be financial in nature, including lending,
exchanging, transferring, investing for others, or safeguarding money or
securities; underwriting and selling insurance; providing financial, investment,
or economic advisory services; underwriting, dealing in or making a market in,
securities; and any activity currently permitted for bank holding companies by
the Federal Reserve Board under section 4(c)(8) of the Bank Holding Company Act.
The Act does not authorize banks or their affiliates to engage in commercial
activities that are not financial in nature. A bank holding company may elect to
be treated as a financial holding company only if all depository institution
subsidiaries of the holding company are well-capitalized, well-managed and have
at least a satisfactory rating under the Community Reinvestment Act.
National banks are also authorized by the Act to engage, through "financial
subsidiaries," in any activity that is permissible for a financial holding
company (as described above) and any activity that the Secretary of the
Treasury, in consultation with the Federal Reserve Board, determines is
financial in nature or incidental to any such financial activity, except (1)
insurance underwriting, (2) real estate development or real estate investment
activities (unless otherwise permitted by law), (3) insurance company portfolio
investments and (4) merchant banking. The authority of a national bank to invest
in a financial subsidiary is subject to a number of conditions, including, among
other things, requirements that the bank must be well-managed and
well-capitalized (after deducting from the bank's capital outstanding
investments in financial subsidiaries). The Act provides that state banks may
invest in financial subsidiaries (assuming they have the requisite investment
authority under applicable state law) subject to the same conditions that apply
to national bank investments in financial subsidiaries.
The Act also contains a number of other provisions that will affect our
operations and the operations of all financial institutions. One of the new
provisions relates to the financial privacy of consumers, authorizing federal
banking regulators to adopt rules that will limit the ability of banks and other
financial entities to disclose non-public information about consumers to
non-affiliated entities. These limi-
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tations will likely require more disclosure to consumers, and in some
circumstances will require consent by the consumer before information is allowed
to be provided to a third party.
At this time, we are unable to predict the impact the Act may have upon our
or our subsidiaries' financial condition or results of operations.
FUTURE LEGISLATION
Changes to the laws and regulations in the states and countries where we
and our subsidiaries do business can affect the operating environment of bank
holding companies and their subsidiaries in substantial and unpredictable ways.
We cannot accurately predict whether legislation will ultimately be enacted,
and, if enacted, the ultimate effect that it, or implementing regulations, would
have upon our or our subsidiaries' financial condition or results of operations.
DESCRIPTION OF DEBT SECURITIES
The senior debt securities will be issued under an indenture dated as of
December 6, 1999, the "SENIOR INDENTURE," between us and The Bank of New York as
senior trustee. The subordinated debt securities will be issued under an
indenture dated as of December 6, 1999, the "SUBORDINATED INDENTURE," between us
and The Bank of New York as subordinated trustee. A copy of each of the
indentures are exhibits to the registration statement which contains this
prospectus.
The following summaries of all material terms of the indentures are not
complete and are subject to, and are qualified in their entirety by reference
to, all the provisions of the respective indentures, including the definitions
of terms.
The following summaries describe the general terms and provisions of the
debt securities to be offered by any prospectus supplement. The particular terms
of the debt securities offered by any prospectus supplement and the extent, if
any, to which these general provisions may apply to the debt securities so
offered, will be described in the prospectus supplement relating to those
offered securities.
The senior debt securities will be unsecured and will rank equally with all
other unsecured and unsubordinated indebtedness of FleetBoston. The subordinated
debt securities will be unsecured and will be subordinated to all existing and
future senior indebtedness and other financial obligations of FleetBoston as
described under "Subordinated Debt Securities -- Subordination" beginning on
page 19. Because we are a holding company, our rights and the rights of our
creditors, including the holders of the debt securities we are offering under
this prospectus, to participate in the assets of any of our subsidiaries upon
the subsidiary's liquidation or reorganization will be subject to the prior
claims of the subsidiary's creditors except to the extent that we may ourselves
be a creditor with recognized claims against the subsidiary. In addition,
dividends, loans and advances from certain of our banking subsidiaries to us and
our non-banking subsidiaries are restricted by federal and state statutes and
regulations.
GENERAL
We may issue the debt securities from time to time, without limitation as
to aggregate principal amount and in one or more series. We expect from time to
time to incur additional indebtedness which may be senior to the debt
securities. Neither the indentures nor the debt securities will limit or
otherwise restrict the amount of other indebtedness which may be incurred or
other securities which may be issued by us or our subsidiaries, including
indebtedness which may rank senior to the debt securities. The debt securities
will not be secured.
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We may issue debt securities upon the satisfaction of conditions contained
in the indentures, including the delivery to the applicable trustee of a
resolution of our Board of Directors or a certificate of an authorized officer
which fixes or establishes the terms of the debt securities being issued. Any
resolution or officer's certificate approving the issuance of any issue of debt
securities will include the terms of that issue of debt securities, including:
- the title and series designation;
- the aggregate principal amount and the limit, if any, on the aggregate
principal amount or initial public offering price of the debt securities
which may be issued under the applicable indenture;
- the principal amount payable, whether at maturity or upon earlier
acceleration, whether the principal amount will be determined with
reference to an index, formula or other method which may be calculated,
without limitation, with reference to the value of currencies, securities
or baskets of securities, commodities, indices or other measurements to
which any such amount payable is linked, and whether the debt securities
will be issued as original issue discount securities (as defined below);
- the date or dates on which the principal of the debt securities is
payable;
- any fixed or variable interest rate or rates per annum or the method or
formula for determining an interest rate;
- the date from which any interest shall accrue;
- any interest payment dates;
- whether the debt securities are senior or subordinated, and if
subordinated, the terms of the subordination if different from that
summarized in this prospectus;
- the price or prices at which the debt securities will be issued, which
may be expressed as a percentage of the aggregate principal amount of
those debt securities;
- the stated maturity date;
- whether the debt securities are to be issued in global form;
- any sinking fund requirements;
- any provisions for redemption, the redemption price and any remarketing
arrangements;
- the minimum denominations;
- whether the debt securities are denominated or payable in United States
dollars or a foreign currency or units of two or more foreign currencies;
- the form in which we will issue the debt securities, whether registered,
bearer or both, and any restrictions applicable to the exchange of one
form for another and to the offer, sale and delivery of the debt
securities in either form;
- information with respect to book-entry procedures;
- the place or places where payments or deliveries on the debt securities
shall be made and the debt securities may be presented for registration
of transfer or exchange;
- whether any of the debt securities will be subject to defeasance in
advance of the date for redemption or the stated maturity date;
- whether, and the terms and conditions relating to when, we may satisfy
all or part of our obligations with regard to payment upon maturity, or
any redemption or required repurchase or in connection with any exchange
provisions, or any interest payment, by delivering to the holders of the
debt securities, other securities, which may or may not be issued by us,
or a combination of cash, securities and/or property, "MATURITY
CONSIDERATION";
- the terms, if any, upon which the debt securities are convertible into
other securities of FleetBoston or another issuer and the terms and
conditions upon which any conversion will be effected, including the
initial conversion price or rate, the conversion period and any other
provi-
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sions in addition to or instead of those described in this prospectus;
and
- any other terms of the debt securities which are not inconsistent with
the provisions of the applicable indenture.
Please see the accompanying prospectus supplement, pricing supplement or
the terms sheet you have received or will receive for the terms of the specific
debt securities we are offering. We may deliver this prospectus before or
concurrently with the delivery of a terms sheet. We may issue debt securities
under the indentures upon the exercise of warrants to purchase debt securities.
See "Description of Warrants." Nothing in the indentures or in the terms of the
debt securities will prohibit the issuance of securities representing
subordinated indebtedness that is senior or junior to the subordinated debt
securities.
Prospective purchasers of debt securities should be aware that special U.S.
Federal income tax, accounting and other considerations may be applicable to
instruments such as the debt securities. The prospectus supplement relating to
an issue of debt securities will describe these considerations, if they apply.
Debt securities may be issued as "ORIGINAL ISSUE DISCOUNT SECURITIES" which
bear no interest or interest at a rate which at the time of issuance is below
market rates and which will be sold at a substantial discount below their
principal amount. In the event that the maturity of any original issue discount
security is accelerated, the amount payable to the holder of the original issue
discount security upon acceleration will be determined in accordance with the
applicable prospectus supplement, the terms of the security and the relevant
indenture, but will be an amount less than the amount payable at the maturity of
the principal of that original issue discount security. Special federal income
tax and other considerations relating to original issue discount securities will
be described in the applicable prospectus supplement.
REGISTRATION AND TRANSFER
Unless otherwise indicated in the applicable prospectus supplement, we will
issue each series of debt securities in registered form only, without coupons.
The indentures, however, provide that we may also issue Debt Securities in
bearer form only, or in both registered and bearer form. If debt securities are
issued in bearer form, the prospectus supplement will contain additional
provisions which apply to those debt securities.
Holders may present debt securities in registered form for transfer or
exchange 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.
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 we may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection with any transfer or exchange.
PAYMENT AND PLACE OF PAYMENT
We will pay or deliver principal, maturity consideration and any premium
and interest in the manner, at the places and subject to the restrictions set
forth in the applicable indenture, the debt securities and the applicable
prospectus supplement. However, at our option, we may pay any interest by check
mailed to the holders of registered debt securities at their registered
addresses.
GLOBAL SECURITIES
Each indenture provides that we may issue debt securities in global form.
If any series of debt securities is issued in global form, the prospectus
supplement will describe any circumstances under which beneficial owners of
interests in any of those global debt securities may exchange their interests
for debt securities of that series and of like tenor and principal
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amount in any authorized form and denomination.
EVENTS OF DEFAULT
The following are events of default under the indentures with respect to
debt securities of any series:
- default in the payment of any principal or premium when due;
- default in the payment of any interest when due, which continues for 30
days;
- default in the delivery or payment of the maturity consideration when
due;
- default in the deposit of any sinking fund payment when due;
- default in the performance of any other obligation contained in the
applicable indenture for the benefit of that series or in the debt
securities of that series, which continues for 60 days after written
notice;
- specified events in bankruptcy, insolvency or reorganization; and
- any other event of default provided with respect to debt securities of
that series.
If an event of default occurs and is continuing for any series of senior
debt securities, the senior trustee or the holders of at least 25% in aggregate
principal amount or issue price of the outstanding securities of that series may
declare all amounts, or any lesser amount provided for in the debt securities of
that series, to be due and payable or deliverable immediately.
The subordinated trustee and the holders of subordinated debt securities
will not be entitled to accelerate the maturity of the subordinated debt
securities upon the occurrence of any of the events of default described above
except in the case of certain events relating to bankruptcy, insolvency or
reorganization. There is no right of acceleration in the case of a default in
the performance of any covenant with respect to the subordinated debt
securities, including the payment of interest and principal or the delivery of
the maturity consideration.
At any time after the trustee or the holders have accelerated series of
debt securities, but before the senior trustee has obtained a judgment or decree
for payment of money due or delivery of the maturity consideration, the holders
of a majority in aggregate principal amount or issue price of outstanding debt
securities of that series may rescind and annul that acceleration and its
consequences, provided that all payments and/or deliveries due, other than those
due as a result of acceleration, have been made and all events of default have
been remedied or waived.
The holders of a majority in principal amount or aggregate issue price of
the outstanding debt securities of any series may waive an event of default with
respect to that series, except a default:
- in the payment of any amounts due and payable or deliverable under the
debt securities of that series; or
- in an obligation contained in, or a provision of, an indenture which
cannot be modified under the terms of that indenture without the consent
of each holder of each series of debt securities affected.
The holders of a majority in principal amount or issue price of the
outstanding debt securities of a series may direct the time, method and place of
conducting any proceeding for any remedy available to the applicable trustee or
exercising any trust or power conferred on the trustee with respect to debt
securities of that series, provided that any direction is not in conflict with
any rule of law or the indenture. Subject to the provisions of the indenture
relating to the duties of the trustee, before proceeding to exercise any right
or power under the indenture at the direction of the holders, the trustee is
entitled to receive from those holders reasonable security or indemnity against
the costs, expenses and liabilities which might be incurred by it in complying
with any direction.
Unless otherwise stated in the applicable prospectus supplement, any series
of debt securities issued under any indenture will not have
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the benefit of any cross-default provisions with any of our other indebtedness.
A holder of any debt security of any series will have the right to
institute a proceeding with respect to the indenture or for any remedy under the
indenture, if:
- that holder previously gives to the trustee written notice of a
continuing event of default with respect to debt securities of that
series;
- the holders of not less than 25% in aggregate principal amount or issue
price of the outstanding debt securities of that series also shall have
made written request and offered the trustee indemnity satisfactory to
the trustee to institute such proceeding as trustee;
- the trustee shall not have received from the holders of a majority in
principal amount or issue price of the outstanding debt securities of
that series a direction inconsistent with the request; and
- the trustee shall have failed to institute the proceeding within 60 days.
However, any holder of a debt security has the absolute right to institute suit
for any defaulted payment after the due dates for payment under that debt
security.
We are required to furnish to the trustees annually a statement as to the
performance of our obligations under the indentures and as to any default in
that performance.
MODIFICATION AND WAIVER
Each indenture may be modified and amended by us and the applicable trustee
with the consent of holders of at least 66 2/3% in principal amount or issue
price of each series of debt securities affected. However, without the consent
of each holder of any debt security affected, we may not amend or modify any
indenture to:
- change the stated maturity date of the principal or maturity
consideration of, or any installment of principal or interest on, any
debt security;
- reduce the principal amount or maturity consideration of, the rate of
interest on, or any premium payable upon the redemption of any debt
security;
- reduce the amount of principal or maturity consideration of an original
issue discount security payable upon acceleration of its maturity;
- change the place or currency of payment of principal or maturity
consideration of, or any premium or interest on, any debt security;
- impair the right to institute suit for the enforcement of any payment or
delivery on or with respect to any debt security;
- reduce the percentage in principal amount or issue price of debt
securities of any series, the consent of whose holders is required to
modify or amend the indenture or to waive compliance with certain
provisions of the indenture; or
- reduce the percentage in principal amount or issue price of debt
securities of any series, the consent of whose holders is required to
waive any past default.
The holders of at least a majority in principal amount or issue price of
the outstanding debt securities of any series may, with respect to that series,
waive past defaults under the applicable indenture, except as described under
"-- Events of Default" beginning on page 14.
We and the trustee may also modify and amend each indenture without the
consent of any holder for any of the following purposes:
- to evidence the succession of another person to us;
- to add to our covenants for the benefit of the holders of all or any
series of securities;
- to add events of default;
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<PAGE> 22
- to add or change any provisions of the indentures to facilitate the
issuance of bearer securities;
- to change or eliminate any of the provisions of the applicable indenture,
so long as 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 that provision;
- to establish the form or terms of debt securities of any series;
- to evidence and provide for the acceptance of appointment by a successor
trustee;
- 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 that indenture, so long as the
interests of holders of debt securities of any series are not adversely
affected in any material respect under that indenture;
- to convey, transfer, assign, mortgage or pledge any property to or with
the trustee; or
- to provide for conversion rights of the holders of the debt securities of
any series to enable those holders to convert those securities into other
securities.
CONSOLIDATION, MERGER AND SALE OF ASSETS
Unless otherwise indicated in the applicable prospectus supplement, we may
consolidate or merge with or into any other corporation, and we may sell, lease
or convey all or substantially all of our assets to any corporation, provided
that:
- the resulting corporation, if other than us, is a corporation organized
and existing under the laws of the United States of America or any U.S.
state and assumes all of our obligations to:
- pay or deliver the principal or maturity consideration of, and any
premium, or interest on, the debt securities; and
- perform and observe all of our other obligations under the
indentures, and
- we are not, or any successor corporation, as the case may be, is not,
immediately after any consolidation or merger, in default under the
indentures.
Neither of the indentures 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 our stock ownership. 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
We maintain banking relations with the trustee. In addition, our banking
subsidiaries maintain deposit accounts and correspondent banking relations with
the trustee.
INTERNATIONAL OFFERING
If specified in the applicable prospectus supplement, we may issue debt
securities outside the United States. Those debt securities may be issued in
bearer form and will be described in the applicable prospectus supplement. In
connection with any offering outside the United States, we will designate paying
agents, registrars or other agents with respect to the debt securities, as
specified in the applicable prospectus supplement.
Debt securities issued outside the United States may be subject to certain
selling restrictions which will be described in the applicable prospectus
supplement. These debt securities may be listed on one or more foreign stock
exchanges as described in the applicable prospectus supplement. We will describe
special United States tax and other considerations, if any, applicable to an
offering outside the United States in the applicable prospectus supplement.
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SENIOR DEBT SECURITIES
The senior debt securities will be our direct, unsecured obligations and
will rank pari passu with all of our other outstanding senior indebtedness.
RESTRICTIVE COVENANTS
DISPOSITION OF VOTING STOCK OF CERTAIN SUBSIDIARIES. We may not sell or
otherwise dispose of, or permit the issuance of, any voting stock or any
security convertible or exercisable into voting stock of a "principal
constituent bank" of FleetBoston or any subsidiary of FleetBoston which owns a
principal constituent bank. A "PRINCIPAL CONSTITUENT BANK" is defined in the
senior indenture as Fleet National Bank and any other of our majority-owned
banking subsidiaries designated as a principal constituent bank. Any designation
of a banking subsidiary as a principal constituent bank with respect to senior
debt securities of any series shall remain effective until the senior debt
securities of that series have been repaid. As of the date of this prospectus,
no banking subsidiaries other than Fleet National Bank have been designated as
principal constituent banks with respect to any series of debt securities.
This restriction does not apply to dispositions made by us or any
subsidiary:
- acting in a fiduciary capacity for any person other than us or any
subsidiary;
- to us or any of our wholly-owned subsidiaries;
- if required by law for the qualification of directors;
- to comply with an order of a court or regulatory authority;
- in connection with a merger of, or consolidation of, a principal
constituent bank with or into a wholly-owned subsidiary or a
majority-owned banking subsidiary, as long as we hold, directly or
indirectly, in the entity surviving such merger or consolidation, not
less than the percentage of voting stock we held in the principal
constituent bank prior to such action;
- if that disposition or issuance is for fair market value as determined by
our Board of Directors, and, if after giving effect to that disposition
or issuance and any potential dilution, we and our wholly-owned
subsidiaries will own directly not less than 80% of the voting stock of
such principal constituent bank or any subsidiary which owns a principal
constituent bank;
- if a principal constituent bank sells additional shares of voting stock
to its stockholders at any price, if, after such sale, we hold directly
or indirectly not less than the percentage of voting stock of such
principal constituent bank we owned prior to that sale; or
- if we 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 majority-owned banking subsidiary subject to Section 23A of the
Federal Reserve Act.
LIMITATION UPON LIENS ON CERTAIN CAPITAL STOCK. We may not at any time,
directly or indirectly, create, assume, incur or permit to exist any mortgage,
pledge, encumbrance or lien or charge of any kind upon:
- any shares of capital stock of any principal constituent bank, other than
directors' qualifying shares; or
- any shares of capital stock of a subsidiary which owns capital stock of
any principal constituent bank.
This restriction does not apply to:
- liens for taxes, assessments or other governmental charges or levies
which are not yet due or are payable without penalty or which we are
contesting in good faith by appropriate proceedings so long as we have
set aside on our books adequate reserves to cover the contested amount;
or
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- the lien of any judgment, if that judgment is discharged, or stayed on
appeal or otherwise, within 60 days.
DEFEASANCE
We may terminate or "defease" our obligations under the senior indenture
with respect to the senior debt securities of any series by taking the following
steps:
- depositing irrevocably with the senior trustee an amount which through
the payment of interest, principal or premium, if any, will provide an
amount sufficient to pay the entire amount of the senior debt securities:
- in the case of senior debt securities denominated in U.S.
dollars, U.S. dollars or U.S. government obligations;
- in the case of senior debt securities denominated in a foreign
currency, money in that foreign currency or foreign government
obligations of the foreign government or governments issuing
that foreign currency; or
- a combination of money and U.S. government obligations or
foreign government obligations;
- delivering:
- an opinion of independent counsel that the holders of the
senior debt securities of that series will have no federal
income tax consequences as a result of that deposit and
termination;
- if the senior debt securities of that series are then listed on
the New York Stock Exchange, an opinion of counsel that those
senior debt securities will not be delisted as a result of the
exercise of this defeasance option;
- an opinion of counsel as to certain other matters; and
- officers' certificates certifying as to compliance with the
senior indenture and other matters;
- no event of default under the senior indenture may exist or be caused by
the defeasance;
- the defeasance shall not cause an event of default under any of our other
agreements or instruments; and
- we shall have paid all other amounts due and owing under the senior
indenture.
SUBORDINATED DEBT SECURITIES
The subordinated debt securities will be our direct, unsecured obligations.
Unless otherwise specified in the applicable prospectus supplement, the
subordinated debt securities will rank equal with all of our outstanding
subordinated indebtedness that is not specifically stated to be junior to the
subordinated debt securities.
SUBORDINATION
The subordinated debt securities will be subordinated in right of payment
to all "senior indebtedness," as defined below. In certain events of insolvency,
payments on the subordinated debt securities will also be effectively
subordinated in right of payment to all "other financial obligations," as
defined on the next page. In certain circumstance relating to our liquidation,
dissolution, winding up, reorganization, insolvency or similar proceedings, the
holders of all senior indebtedness will first be entitled to receive payment in
full before the holders of the subordinated debt securities will be entitled to
receive any payment on the subordinated debt securities. If, after all payments
have been made to the holders of senior indebtedness, (A) there are amounts
available for payment on the subordinated debt
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securities and (B) any person entitled to payment according to the terms of our
other financial obligations, as defined on the page 20, has not received full
payment, then amounts available for payments on the subordinated debt securities
will first be used to pay in full those other financial obligations before any
payment may be made on the subordinated debt securities. This obligation to pay
over these excess amounts does not exist for any of our subordinated
indebtedness issued prior to November 30, 1992, "EXISTING SUBORDINATED
INDEBTEDNESS."
In the event of the acceleration of the maturity of any debt securities,
all senior indebtedness and other financial obligations will have to be repaid
before any payment can be made on the subordinated debt securities.
In addition, no payment may be made on the subordinated debt securities in
the event:
- there is a default in any payment or delivery with respect to any senior
indebtedness; or
- there is an event of default with respect to any senior indebtedness
which permits the holders of that senior indebtedness to accelerate the
maturity of the senior indebtedness.
By reason of this subordination in favor of the holders of senior
indebtedness, in the event of an insolvency, our creditors who are not holders
of senior indebtedness or the subordinated debt securities may recover less,
proportionately, than holders of senior indebtedness and may recover more,
proportionately, than holders of the subordinated debt securities. By reason of
the obligation of the holders of subordinated debt securities to pay over any
amount remaining after payment of senior indebtedness to persons in respect of
our other financial obligations, in the event of insolvency, holders of our
existing subordinated indebtedness 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, "SENIOR INDEBTEDNESS" is
defined in the subordinated indenture as:
- the principal of, premium, if any, and interest on all of our
"indebtedness for money borrowed," as defined below, except (A) existing
subordinated indebtedness and other subordinated debt securities issued
under the subordinated indenture, (B) any indebtedness which is expressly
stated to be junior in right of payment to the subordinated debt
securities and (C) indebtedness which is expressly stated to rank equal
with the subordinated debt securities; and
- any deferrals, renewals or extensions of any senior indebtedness.
The term "INDEBTEDNESS FOR MONEY BORROWED" means:
- any of our obligations or any obligation we have guaranteed for the
repayment of borrowed money, whether or not evidenced by bonds,
debentures, notes or other written instruments; and
- any of our deferred payment obligations or any such obligation we have
guaranteed for the payment of the purchase price of property or assets
evidenced by a note or similar instrument.
Unless otherwise specified in the prospectus supplement relating to the
particular series of subordinated debt securities offered by that prospectus
supplement, "OTHER FINANCIAL OBLIGATIONS" means all of our obligations to make
payment pursuant to the terms of financial instruments, such as:
- securities contracts and foreign currency exchange contracts;
- 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
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- similar financial instruments, other than obligations on account of
senior indebtedness and obligations on account of indebtedness for money
borrowed ranking equal with or subordinate to the subordinated debt
securities.
As of September 30, 1999, FleetBoston had an aggregate of $4.1 billion in
subordinated debt outstanding, of which $868 million is subordinated to
FleetBoston's senior indebtedness and $3.2 billion is subordinated to
FleetBoston's senior indebtedness and other financial obligations.
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 our other obligations. Any prospectus supplement relating to a particular
series of subordinated debt securities will set forth the aggregate amount of
our indebtedness senior to the subordinated debt securities as of a recent
practicable date.
The subordinated debt securities shall rank equal 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 amounts
remaining after payment of senior indebtedness to persons in respect of other
financial obligations.
The prospectus supplement may further describe the provisions, if any,
which may apply to the subordination of the subordinated debt securities of a
particular series.
RESTRICTIVE COVENANTS
The subordinated indenture does not contain any significant restrictive
covenants. The prospectus supplement relating to a series of subordinated debt
securities may describe certain restrictive covenants, if any, to which we may
be bound under the subordinated indenture.
DESCRIPTION OF WARRANTS
OFFERED WARRANTS
We may issue warrants that are debt warrants or universal warrants. We may
offer warrants separately or together with one or more additional warrants or
debt securities or any combination of those securities in the form of units, as
described in the applicable prospectus supplement. If we issue warrants as part
of a unit, the accompanying prospectus supplement will specify whether those
warrants may be separated from the other securities in the unit prior to the
warrants' expiration date. Universal warrants issued in the United States may
not be so separated prior to the 91st day after the issuance of the unit, unless
otherwise specified in the applicable prospectus supplement.
Debt Warrants. We may issue, together with debt securities or separately,
warrants for the purchase of debt securities on terms to be determined at the
time of sale. We refer to this type of warrant as a "DEBT WARRANT."
Universal Warrants. We may also issue warrants to purchase or sell, on
terms to be determined at the time of sale:
- securities of an entity not affiliated with us, a basket of those
securities, an index or indices of those securities or any combination of
the above;
- currencies; or
- commodities.
We refer to the property in the above clauses as "WARRANT PROPERTY." We
refer to this type of warrant as a "UNIVERSAL WARRANT." We may satisfy our
obligations, if any, with respect to any universal warrants by delivering the
warrant property or, in the case of warrants to purchase or sell securities or
commodities, the cash value of the securities or commodities, as
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described in the applicable prospectus supplement.
FURTHER INFORMATION IN PROSPECTUS SUPPLEMENT
General Terms of Warrants. The applicable prospectus supplement will
contain, where applicable, the following terms of and other information relating
to the warrants:
- the specific designation and aggregate number of, and the price at which
we will issue, the warrants;
- the currency with which the warrants may be purchased;
- the date on which the right to exercise the warrants will begin and the
date on which that right will expire or, if you may not continuously
exercise the warrants throughout that period, the specific date or dates
on which you may exercise the warrants;
- whether the warrants will be issued in fully registered form or bearer
form, in definitive or global form or in any combination of these forms,
although, in any case, the form of a warrant included in a unit will
correspond to the form of the unit and of any debt security included in
that unit;
- any applicable material United States federal income tax consequences;
- the identity of the warrant agent for the warrants and of any other
depositaries, execution or paying agents, transfer agents, registrars,
determination, or other agents;
- the proposed listing, if any, of the warrants or any securities
purchasable upon exercise of the warrants on any securities exchange;
- if applicable, the minimum or maximum amount of the warrants that may be
exercised at any one time;
- information with respect to book-entry procedures, if any;
- the antidilution provisions of the warrants, if any;
- any redemption or call provisions;
- whether the warrants are to be sold separately or with other securities
as part of units; and
- any other terms of the warrants.
Additional Terms of Debt Warrants. The prospectus supplement will contain,
where applicable, the following terms of and other information relating to any
debt warrants:
- the designation, aggregate principal amount, currency and terms of the
debt securities that may be purchased upon exercise of the debt warrants;
- if applicable, the designation and terms of the debt securities with
which the debt warrants are issued and the number of the debt warrants
issued with each of the debt securities;
- if applicable, the date on and after which the debt warrants and the
related debt securities will be separately transferable; and
- the principal amount of debt securities purchasable upon exercise of each
debt warrant, the price at which and the currency in which the debt
securities may be purchased and the method of exercise.
Additional Terms of Universal Warrants. The applicable prospectus
supplement will contain, where applicable, the following terms of and other
information relating to any universal warrants:
- whether the universal warrants are put warrants or call warrants and
whether you or we will be entitled to exercise the warrants;
- the specific warrant property, and the amount or the method for
determining the amount of the warrant property, purchasable or saleable
upon exercise of each universal warrant;
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<PAGE> 28
- the price at which and the currency with which the underlying securities,
currencies or commodities may be purchased or sold upon the exercise of
each universal warrant, or the method of determining that price;
- whether the exercise price may be paid in cash, by the exchange of any
other security offered with the universal warrants or both and the method
of exercising the universal warrants; and
- whether the exercise of the universal warrants is to be settled in cash
or by delivery of the underlying securities, commodities, or both.
SIGNIFICANT PROVISIONS OF THE WARRANT AGREEMENTS
We will issue the warrants under one or more warrant agreements to be
entered into between us and a bank or trust company, as warrant agent, in one or
more series, which will be described in the prospectus supplement for the
warrants. The forms of warrant agreements are filed as exhibits to the
registration statement. The following summaries of significant provisions of the
warrant agreements and the warrants are not intended to be comprehensive and
holders of warrants should review the detailed provisions of the relevant
warrant agreement for a full description and for other information regarding the
warrants.
Modifications without Consent of Warrantholders. We and the warrant agent
may amend the terms of the warrants and the warrant certificates without the
consent of the holders to:
- cure any ambiguity;
- cure, correct or supplement any defective or inconsistent provision; or
- amend the terms in any other manner which we may deem necessary or
desirable and which will not adversely affect the interests of the
affected holders in any material respect.
Enforceability of Rights of Warrantholders. The warrant agents will act
solely as our agents in connection with the warrant certificates and will not
assume any obligation or relationship of agency or trust for or with any holders
of warrant certificates or beneficial owners of warrants. Any holder of warrant
certificates and any beneficial owner of warrants may, without the consent of
any other person, enforce by appropriate legal action, on its own behalf, its
right to exercise the warrants evidenced by the warrant certificates in the
manner provided for in that series of warrants or pursuant to the applicable
warrant agreement. No holder of any warrant certificate or beneficial owner of
any warrants will be entitled to any of the rights of a holder of the debt
securities or any other warrant property, if any, purchasable upon exercise of
the warrants, including, without limitation, the right to receive the payments
on those debt securities or other warrant property or to enforce any of the
covenants or rights in the relevant indenture or any other similar agreement.
Registration and Transfer of Warrants. Subject to the terms of the
applicable warrant agreement, warrants in registered, definitive form may be
presented for exchange and for registration of transfer, at the corporate trust
office of the warrant agent for that series of warrants, or at any other office
indicated in the prospectus supplement relating to that series of warrants,
without service charge. However, the holder will be required to pay any taxes
and other governmental charges as described in the warrant agreement. The
transfer or exchange will be effected only if the warrant agent for the series
of warrants is satisfied with the documents of title and identity of the person
making the request.
New York Law to Govern. The warrants and each warrant agreement will be
governed by, and construed in accordance with, the laws of the State of New
York.
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PLAN OF DISTRIBUTION
FleetBoston may sell securities:
- to the public through a group of underwriters managed or co-managed by
one or more underwriters, which may include BancBoston Robertson Stephens
Inc. or other affiliates;
- through one or more agents, which may include BancBoston Robertson
Stephens Inc. or other affiliates; or
- directly to purchasers.
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 those prevailing market prices; or
- at negotiated prices.
Each prospectus supplement will describe the method of distribution of the
securities and any applicable restrictions.
The prospectus supplement with respect to the securities of a particular
series will describe the terms of the offering of the securities, including the
following:
- the name of the agent or the name or names of any underwriters;
- the public offering or purchase price;
- any discounts and commissions to be allowed or paid to the agent or
underwriters;
- all other items constituting underwriting compensation;
- any discounts and commissions to be allowed or paid to dealers; and
- any exchanges on which the securities will be listed.
We may agree to enter into an agreement to indemnify the agents and the
several underwriters against certain civil liabilities, including liabilities
under the Securities Act or to contribute to payments the agents or the
underwriters may be required to make.
If so indicated in the applicable prospectus supplement, we will authorize
underwriters or other persons acting as our agents to solicit offers by certain
institutions to purchase debt securities or warrants from us pursuant to delayed
delivery contracts providing for payment and delivery on the date stated in the
prospectus supplement. Each contract will be for an amount not less than, and
the aggregate amount of securities sold pursuant to those contracts will be
equal to, the respective amounts stated in the prospectus supplement.
Institutions with whom the contracts, when authorized, may be made include
commercial and savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions and other institutions, but
shall in all cases be subject to our approval. Delayed delivery contracts will
not be subject to any conditions except that:
- the purchase by an institution of the debt securities or warrants covered
under that contract shall not at the time of delivery be prohibited under
the laws of the jurisdiction to which that institution is subject; and
- 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 other persons acting as Fleet's agents will not have
any responsibility in respect of the validity or performance of delayed
delivery 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, us or
one or more of our affiliates in the ordinary course of business.
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BancBoston Robertson Stephens Inc. is our wholly-owned subsidiary.
Accordingly, the distribution of securities by BancBoston Robertson Stephens
Inc. will conform to the requirements set forth in Rule 2720 of the Conduct
Rules of the National Association of Securities Dealers, Inc.
Certain of the underwriters may use this prospectus and the accompanying
prospectus supplement for offers and sales related to market-making transactions
in the securities. These underwriters may act as principal or agent in these
transactions, and the sales will be made at prices related to prevailing market
prices at the time of sale.
EXPERTS
Our supplemental consolidated financial statements incorporated in this
prospectus by reference to our Current Report on Form 8-K filed November 22,
1999 amending our Annual Report on Form 10-K for the year ended December 31,
1998 have been so incorporated by reference in this document in reliance on the
report of PricewaterhouseCoopers LLP, independent accountants, given upon the
authority of that firm as experts in accounting and auditing.
LEGAL OPINIONS
The validity of the securities offered hereby will be passed upon for us by
Edwards & Angell, LLP, 101 Federal Street, Boston, Massachusetts 02110-1800. V.
Duncan Johnson, a partner of Edwards & Angell, LLP, is a director of Fleet Bank
(RI), National Association, one of our wholly-owned subsidiaries, and
beneficially owns 9,856 shares of our common stock.
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[Fleet Boston LOGO]
FLEET BOSTON
CORPORATION
$
DEBT SECURITIES
WARRANTS
------------------------
PROSPECTUS
, 1999
------------------------
You should rely only on the information contained or incorporated by
reference in this prospectus. We have not authorized anyone to provide you with
different information.
We are not offering the debt securities in any state where the offer is not
permitted.
We do not claim the accuracy of the information in this prospectus as of
any date other than the dates stated on the cover.
<PAGE> 32
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN
OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED DECEMBER 9, 1999
PROSPECTUS
FLEET BOSTON LOGO
FLEET BOSTON CORPORATION
Fleet Boston Corporation may offer and sell --
- -- Common Stock
- -- Preferred Stock
- -- Warrants
We will provide specific terms of these securities in supplements to this
prospectus. You should read this prospectus and any supplements carefully before
you invest.
A security is not a deposit and the securities are not insured or guaranteed by
the Federal Deposit Insurance Corporation or any other governmental agency.
This prospectus may be used to offer and sell securities only if accompanied by
the prospectus supplement for those securities.
NEITHER THE SEC NOR ANY STATE SECURITIES COMMISSION HAS APPROVED THESE
SECURITIES OR DETERMINED THAT THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS IS
TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is , 1999.
<PAGE> 33
IMPORTANT NOTICE ABOUT INFORMATION PRESENTED IN THIS
PROSPECTUS AND THE ACCOMPANYING PROSPECTUS SUPPLEMENT
We provide information to you about the securities in two separate
documents that progressively provide more detail:
- this prospectus, which provides general information, some of which may
not apply to your securities; and
- the accompanying prospectus supplement, which describes the specific and
final terms of your securities.
IF THE TERMS OF YOUR SECURITIES VARY BETWEEN THE PROSPECTUS SUPPLEMENT AND
THE ACCOMPANYING PROSPECTUS, YOU SHOULD RELY ON THE INFORMATION IN THE FOLLOWING
ORDER OF PRIORITY:
- THE PROSPECTUS SUPPLEMENT; AND
- THE PROSPECTUS.
We include cross-references in this prospectus and the accompanying
prospectus supplement to captions in these materials where you can find further
related discussions. The following Table of Contents and the Table of Contents
included in the accompanying prospectus supplement provide the pages on which
these captions are located.
------------------------
Unless indicated in the applicable prospectus supplement, neither we nor
the underwriters have taken any action that would permit us to publicly sell
these securities in any jurisdiction outside the United States. If you are an
investor outside the United States, you should inform yourself about and comply
with any restrictions as to the offering of the securities and the distribution
of this prospectus.
<PAGE> 34
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
About This Prospectus............... 2
Where You Can Find More
Information....................... 2
Forward Looking Statements.......... 4
Fleet Boston Corporation............ 5
Supplemental Consolidated Ratios of
Earnings to Fixed Charges and
Dividends on Preferred Stock...... 6
Use of Proceeds..................... 6
Regulation and Supervision.......... 7
General........................... 7
Liability for Bank Subsidiaries... 7
Capital Requirements.............. 8
FDICIA............................ 9
Dividend Restrictions............. 9
Deposit Insurance Assessments..... 10
Depositor Preference Statute...... 10
Brokered Deposits................. 10
Interstate Banking and
Branching...................... 10
Control Acquisitions.............. 11
Recent Legislation................ 11
Future Legislation................ 12
Description of Preferred Stock...... 12
General........................... 12
Dividends......................... 14
Rights Upon Liquidation........... 14
Redemption........................ 14
Voting Rights..................... 15
Conversion Rights................. 16
Description of Depositary Shares.... 17
General........................... 17
Dividends and Other
Distributions.................. 17
Withdrawal of Stock............... 17
Redemption of Depositary Shares... 17
Voting the Preferred Stock........ 18
</TABLE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Amendment and Termination of the
Deposit Agreement.............. 18
Charges of Depositary............. 18
Resignation and Removal of
Depositary..................... 18
Notices........................... 18
Limitation of Liability........... 19
Inspection of Books............... 19
Description of Existing Preferred
Stock............................. 20
General........................... 20
9.35% Cumulative Preferred
Stock.......................... 20
Series V 7.25% Perpetual Preferred
Stock.......................... 20
Series VI 6.75% Perpetual
Preferred Stock................ 20
Series VII Fixed/Adjustable Rate
Cumulative Preferred Stock..... 21
Series VIII Fixed/Adjustable Rate
Noncumulative Preferred
Stock.......................... 21
Junior Preferred Stock............ 22
Description of Common Stock......... 22
General........................... 22
Transfer Agent and Registrar...... 23
Restrictions on Ownership......... 23
Preferred Share Purchase Rights... 23
Selected Provisions in the Articles
of FleetBoston.................... 24
Business Combinations with Related
Persons........................ 24
Directors......................... 25
Description of Warrants............. 25
Plan of Distribution................ 26
Experts............................. 27
Legal Opinions...................... 27
</TABLE>
<PAGE> 35
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission, the "SEC," utilizing a "shelf" registration
process. Under this shelf process, we may from time to time sell any combination
of common stock, preferred stock or warrants described in this prospectus in one
or more offerings up to a total dollar amount of $2,351,868,750. We may also
sell other securities under the registration statement that will reduce the
total dollar amount of securities that we may sell under this prospectus. This
prospectus provides you with a general description of the securities we may
offer. Each time we sell securities, we will provide a prospectus supplement
that will contain specific information about the terms of that offering. The
prospectus supplement may also add, update or change information contained in
this prospectus. You should read both this prospectus and any prospectus
supplement together with the additional information described under the heading
"Where You Can Find More Information."
Unless otherwise indicated or unless the context requires otherwise, all
references in this prospectus to "FLEETBOSTON," "WE," "US," "OUR" or similar
references mean Fleet Boston Corporation.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement under the Securities
Act of 1933 that registers, among other securities, the offer and sale of the
securities offered by this prospectus. The registration statement, including the
attached exhibits and schedules, contains additional relevant information about
us. The rules and regulations of the SEC allow us to omit certain information
included in the registration statement from this prospectus.
In addition, we file reports, proxy statements and other information with
the SEC under the Securities Exchange Act of 1934. You may read and copy this
information at the following locations of the SEC:
Public Reference Room
450 Fifth Street, N.W.
Room 1024
Washington, D.C. 20549
Northeast Regional Office
7 World Trade Center
Suite 1300
New York, New York 10048
Midwest Regional Office
500 West Madison Street
Suite 1400
Chicago, Illinois 60661-2511
You may also obtain copies of this information by mail from the Public
Reference Section of the SEC, 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549, at prescribed rates.
The SEC also maintains an internet world wide web site that contains
reports, proxy statements and other information about issuers, like us, who file
electronically with the SEC. The address of that site is:
http://www.sec.gov.
You can also inspect reports, proxy statements and other information about
us at the offices of the New York Stock Exchange, 20 Broad Street, New York, New
York 10005.
The SEC allows us to "INCORPORATE BY REFERENCE" information into this
prospectus. This means that we can disclose important information to you by
referring you to another document filed separately with the SEC. The information
incorporated by reference is considered to be a part of this prospectus, except
for any information that is superseded by information that is included directly
in this document or in a more recent incorporated document.
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<PAGE> 36
This prospectus incorporates by reference the documents listed below that
we have previously filed with the SEC. They contain important information about
us and our financial condition.
<TABLE>
<CAPTION>
SEC FILINGS PERIOD
----------- ------
<S> <C>
Annual Report on Form 10-K.............................. Year ended December 31, 1998, as filed
on March 26, 1999
Quarterly Report on Form 10-Q........................... Quarter ended March 31, 1999, as filed
on May 14, 1999
Quarter ended June 30, 1999, as filed
on August 12, 1999
Quarter ended September 30, 1999, as
filed on November 12, 1999
Items 10-13 of FleetBoston's Definitive Proxy Statement
to FleetBoston's Stockholders for the 1999 Annual
Meeting of FleetBoston Stockholders................... Filed on March 5, 1999
The description of FleetBoston common stock set forth in
the FleetBoston registration statement filed by
Industrial National Corporation (predecessor to
FleetBoston) on Form 8-B dated May 29, 1970, and any
amendment or report filed for the purpose of updating
such description; and
Current Reports on Form 8-K............................. Filed:
-February 1, 1999
-March 17, 1999
-April 2, 1999
-April 20, 1999
-May 14, 1999
-July 20, 1999
-August 12, 1999
-September 16, 1999
-September 30, 1999
-October 1, 1999
-October 15, 1999
-November 2, 1999
-November 19, 1999
-November 22, 1999
</TABLE>
We incorporate by reference additional documents that we may file with the
SEC between the date of this prospectus and the date we sell all of the
securities. These documents include periodic reports, such as Annual Reports on
Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, as
well as proxy statements.
You can obtain any of the documents incorporated by reference in this
document through us, or from the SEC through the SEC's Internet world wide web
site at the address described above. Documents incorporated by reference are
available from us without charge, excluding any exhibits to those documents,
unless the exhibit is specifically incorporated by reference as an exhibit in
this prospectus. You can obtain documents incorporated by reference in this
prospectus by requesting them in writing or by telephone from us at the
following address:
Investor Relations Department
Fleet Boston Corporation
P.O. Box 2016, MA BOS 01-20-02
Boston, Massachusetts 02106-2106
(617) 434-7858
We have not authorized anyone to give any information or make any
representation about us that is different from, or in addition to, those
contained in this prospectus or in any of the materials that we have
incorporated into this prospectus. If anyone does give you information of this
sort, you should not rely on it. If you are in a jurisdiction where offers to
sell, or solicitations of offers to purchase, the securities offered by this
document are unlawful, or if you are a person to whom it is unlawful to direct
these types of activities, then the offer presented in this
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<PAGE> 37
document does not extend to you. The information contained in this document
speaks only as of the date of this document unless the information specifically
indicates that another date applies.
FORWARD-LOOKING STATEMENTS
This prospectus, including information included or incorporated by
reference, contains certain forward-looking statements with respect to our
financial condition, results of operations, plans, objectives, future
performance and business, including, without limitation:
- statements relating to the cost savings and accretion to reported
earnings estimated to result from our merger with BankBoston Corporation;
- statements relating to revenues of the combined company after our merger
with BankBoston;
- statements relating to the restructuring charges estimated to be incurred
in connection with our merger with BankBoston; and
- statements preceded by, followed by or that include the words "believes,"
"expects," "anticipates," "estimates" or similar expressions.
These forward-looking statements involve certain risks and uncertainties.
Actual results may differ materially from those contemplated by the
forward-looking statements due to many factors, including:
- general political and economic conditions, either internationally,
nationally or in the states in which we are doing business, may be less
favorable than expected;
- interest rate and currency fluctuations, equity and bond market
fluctuations, the level of customers' bankruptcies, and inflation may be
greater than expected;
- competitive pressures among financial services companies may increase
significantly;
- legislative or regulatory changes may adversely affect our business;
- technological changes, including year 2000 data systems compliance
issues, may be more difficult or expensive than anticipated;
- expected cost savings from our merger with BankBoston may not be fully
realized or realized within the expected time frame;
- revenues following our merger with BankBoston may be lower than expected;
- costs or difficulties related to the integration of our business and that
of BankBoston may be greater than expected; and
- the negative impact of the divestitures to be completed in connection
with our merger with BankBoston may be greater than expected.
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<PAGE> 38
FLEET BOSTON CORPORATION
We are a diversified financial services company, with consumer and
commercial platforms serving approximately 20 million customers nationally and
internationally. Our lines of business include:
- institutional and investment banking;
- cash management;
- trade services;
- export finance;
- mortgage banking;
- corporate finance;
- asset-based lending;
- commercial lending;
- real estate lending;
- government banking;
- investment management services;
- equipment leasing;
- credit cards;
- discount brokerage services;
- student loan processing; and
- full-service banking in leading Latin American Markets.
On October 1, 1999, we completed the merger of BankBoston Corporation into
us.
- The name of the combined company was changed to "Fleet Boston
Corporation."
- The combined company will be doing business under the name "FleetBoston
Financial."
- The headquarters of the combined company will remain in Boston,
Massachusetts.
- Terrence Murray, our Chairman and Chief Executive Officer, was appointed
the Chairman of the Board of Directors and Chief Executive Officer of the
combined company.
- Charles K. Gifford, Chairman and Chief Executive Officer of BankBoston,
was appointed the President and Chief Operating Officer of the combined
company. Mr. Gifford will succeed to the role of Chief Executive Officer
as of December 31, 2001, or at such earlier time as Mr. Murray may step
down from that role, and Mr. Gifford will succeed to the role of Chairman
of the Board of Directors on December 31, 2002, or at such earlier time
as Mr. Murray may step down from that role.
- The board of directors of the combined company consists of 13 directors
from Fleet and 11 directors from BankBoston.
- The merger was accounted for under the "pooling-of-interests" method of
accounting. This means that, for accounting and financial reporting
purposes, we will treat our companies as if they had always been one, and
no goodwill will be created. In addition, the merger was treated as a
"reorganization" under the Internal Revenue Code. This means that we will
not recognize any gain or loss as a result of the merger.
- At the effective time of the merger, each share of common stock of
BankBoston, outstanding immediately prior to the effective time of the
merger was converted into 1.1844 shares of our common stock.
In connection with obtaining regulatory approvals for the merger, the
Federal Reserve Board and the United States Department of Justice required us to
agree to divest approximately $13 billion of deposits and $9 billion of loans
from the combined company, resulting in estimated divested income of $160
million after tax.
All financial information set forth in this prospectus and accompanying
prospectus supplement has been restated for all periods to give effect to the
merger. Because the divestitures will not be significant to us, the financial
information has not been adjusted to show the effects of the divestitures.
At September 30, 1999, our total assets on a consolidated basis were $185.3
billion, our consolidated total deposits were $113.2 billion
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<PAGE> 39
and our consolidated total stockholders' equity was $15.5 billion. Based on
total assets at September 30, 1999, we were the eighth largest bank holding
company in the United States.
For additional information regarding the merger and certain pro forma
financial information relating to the merger, see our current reports on Form
8-K filed March 17, 1999, April 2, 1999, May 14, 1999, August 12, 1999,
September 16, 1999, September 30, 1999, October 1, 1999, October 15, 1999 and
November 22, 1999, each of which is incorporated by reference into this
prospectus. See "Where You Can Find More Information."
Our principal office is located at One Federal Street, Boston,
Massachusetts 02110, telephone number (617) 346-4000.
SUPPLEMENTAL CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES AND DIVIDENDS ON
PREFERRED STOCK
Our supplemental consolidated ratios of earnings to fixed charges and
dividends on preferred stock were as follows for the five most recent fiscal
years and the nine months ended September 30, 1999:
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
SEPTEMBER 30, YEAR ENDED DECEMBER 31,
------------- --------------------------------
1999 1998 1997 1996 1995 1994
------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges and
Dividends on Preferred Stock:
Excluding Interest on Deposits........... 2.57x 2.55x 2.85x 2.62x 1.87x 2.05x
Including Interest on Deposits........... 1.71 1.62 1.70 1.59 1.38 1.51
</TABLE>
- -------------------------
For the purpose of computing the ratio of earnings to fixed charges,
"EARNINGS" consist of income before income taxes plus fixed charges, excluding
capitalized interest, and, where indicated, the pretax equivalent 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
We intend to use the net proceeds from the sale of the securities for
general corporate purposes unless otherwise indicated in the prospectus
supplement, pricing supplement or term sheet relating to a specific issue of
securities. Our general corporate purposes may include extending credit to, or
funding investments in, our subsidiaries. The precise amounts and the timing of
our use of the net proceeds will depend upon our subsidiaries' funding
requirements and the availability of other funds. Until we use the net proceeds
from the sale of any of our securities for general corporate purposes, we will
use the net proceeds to reduce our short-term indebtedness or for temporary
investments. We expect that we will, on a recurrent basis, engage in additional
financings as the need arises to finance our growth, through acquisitions or
otherwise, or to fund our subsidiaries.
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<PAGE> 40
REGULATION AND SUPERVISION
The following discussion sets forth the material elements of the regulatory
framework applicable to bank holding companies and their subsidiaries, and
provides certain specific information relevant to us. This regulatory framework
primarily is intended for the protection of depositors and the deposit insurance
funds that insure deposits of banks, and not for the protection of security
holders. To the extent that the following information describes statutory and
regulatory provisions, it is qualified in its entirety by reference to those
provisions. A change in the statutes, regulations or regulatory policies
applicable to us or our subsidiaries may have a material effect on our business.
GENERAL
As a bank holding company, we are subject to regulation under the Bank
Holding Company Act of 1956, as amended, and to inspection, examination and
supervision by the Federal Reserve Board. Under the Bank Holding Company Act,
bank holding companies generally may not acquire ownership or control of any
company, including a bank, without the prior approval of the Federal Reserve
Board. In addition, bank holding companies generally may engage, directly or
indirectly, only in banking and those other activities as are determined by the
Federal Reserve Board to be closely related to banking.
Various governmental requirements, including Sections 23A and 23B of the
Federal Reserve Act, as amended, limit borrowings by us and our non-bank
subsidiaries from our affiliate insured depository institutions, and also limit
various other transactions between us and our non-bank subsidiaries, on the one
hand, and our affiliate insured depository institutions, on the other. Section
23A of the Federal Reserve Act also generally requires that an insured
depository institution's loans to its non-bank affiliates be secured, and
Section 23B of the Federal Reserve Act generally requires that an insured
depository institution's transactions with its non-bank affiliates be on
arm's-length terms.
Our banking subsidiaries are subject to extensive supervision, examination
and regulation by various bank regulatory authorities and other governmental
agencies in the states and countries where we and our subsidiaries operate. We
and our subsidiaries are also affected by the fiscal and monetary policies of
the U.S. federal government and the Federal Reserve Board, and by various other
governmental requirements and regulations.
LIABILITY FOR BANK SUBSIDIARIES
Under current Federal Reserve Board policy, a bank holding company is
expected to act as a source of financial and managerial strength to each of its
subsidiary banks and to maintain resources adequate to support each subsidiary
bank. This support may be required at times when the bank holding company may
not have the resources to provide it. In addition, Section 55 of the National
Bank Act permits the OCC to order the pro rata assessment of stockholders of a
national bank whose capital has become impaired. If a stockholder fails, within
three months, to pay that assessment, the board of directors has the duty to
sell the stockholder's stock to cover the deficiency. In the event of a bank
holding company's bankruptcy, any commitment by the bank holding company to a
U.S. federal bank regulatory agency to maintain the capital of a subsidiary bank
would be assumed by the bankruptcy trustee and entitled to priority of payment.
Any depository institution insured by the FDIC can be held liable for any
loss incurred, or reasonably expected to be incurred, by the FDIC in connection
with:
- the default of a commonly controlled FDIC-insured depository institution;
or
- any assistance provided by the FDIC to a commonly controlled FDIC-insured
depository institution in danger of default.
"DEFAULT" generally is defined as the appointment of a conservator or receiver
and "IN DANGER OF DEFAULT" generally is defined as the
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<PAGE> 41
existence of certain conditions indicating that a default is likely to occur in
the absence of regulatory assistance.
All of our domestic banks are FDIC-insured depositary institutions. Also,
if a default occurred with respect to a bank, any capital loans to the bank from
its parent holding company would be subordinate in right of payment to payment
of the bank's depositors and certain of its other obligations.
CAPITAL REQUIREMENTS
We are subject to risk-based capital requirements and guidelines imposed by
the Federal Reserve Board, which are substantially similar to the capital
requirements and guidelines imposed by the Federal Reserve Board, the OCC, the
OTS and the FDIC on our depository institutions within their respective
jurisdictions. For this purpose, a depository institution's or holding company's
assets and certain specified off-balance sheet commitments are assigned to four
risk categories, each weighted differently based on the level of credit risk
that is ascribed to those assets or commitments. In addition, risk-weighted
assets are adjusted for low-level recourse and market-risk equivalent assets. A
depository institution's or holding company's capital, in turn, is divided into
three tiers:
- core, or "TIER 1," capital, which consists primarily of stockholders'
equity less certain identifiable intangible assets and certain other
assets;
- supplementary, or "TIER 2," capital, which includes, among other items,
certain other debt and equity investments that do not qualify as Tier 1
capital; and
- market risk, or "TIER 3," capital, which includes qualifying unsecured
subordinated debt.
Like other bank holding companies, we currently are required to maintain
Tier 1 and "TOTAL CAPITAL" (the sum of Tier 1, Tier 2 and Tier 3 capital) equal
to at least 4% and 8% of our total risk-weighted assets (including certain
off-balance-sheet items, such as unused lending commitments and standby letters
of credit), respectively. At September 30, 1999, we met both requirements, with
Tier 1 and total capital equal to 7.14% and 11.28% of our total risk-weighted
assets.
The Federal Reserve Board, the FDIC and the OCC have adopted rules to
incorporate market and interest rate risk components into their risk-based
capital standards. Amendments to the risk-based capital requirements,
incorporating market risk, became effective January 1, 1998. Under the new
market-risk requirements, capital will be allocated to support the amount of
market risk related to a financial institution's ongoing trading activities.
The Federal Reserve Board also requires bank holding companies to maintain
a minimum "LEVERAGE RATIO," defined as Tier 1 capital to average adjusted total
assets, of 3%, if the bank holding company has the highest regulatory rating and
meets certain other requirements, or of 3% plus an additional cushion of at
least 1% to 2% if the bank holding company does not meet these requirements. At
September 30, 1999, our leverage ratio was 7.21%, which significantly exceeded
the minimum leverage ratio to which we were subject.
The Federal Reserve Board may set capital requirements higher than the
minimums noted above for holding companies whose circumstances warrant it. For
example, bank holding companies experiencing or anticipating significant growth
may be expected to maintain strong capital positions substantially above the
minimum supervisory levels without significant reliance on intangible assets.
Furthermore, the Federal Reserve Board has indicated that it will consider a
"TANGIBLE TIER 1 CAPITAL LEVERAGE RATIO," which would deduct all intangibles,
and other indicia of capital strength in evaluating proposals for expansion or
new activities.
Each of the banks is subject to similar risk-based and leverage capital
requirements adopted by its applicable U.S. federal banking agency. Each of our
banks was in compliance with the applicable minimum capital requirements as of
September 30, 1999.
Failure to meet capital requirements could subject a bank to a variety of
enforcement remedies, including the termination of deposit insurance by the
FDIC, and to certain restric-
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<PAGE> 42
tions on its business, which are described under "-- FDICIA."
FDICIA
The Federal Deposit Insurance Corporation Improvement Act of 1991,
"FDICIA," among other things, identifies five capital categories for insured
depository institutions -- well capitalized, adequately capitalized,
undercapitalized, significantly undercapitalized and critically
undercapitalized -- and requires U.S. federal bank regulatory agencies to
implement systems for "prompt corrective action" for insured depository
institutions that do not meet minimum capital requirements based on these
categories. FDICIA imposes progressively more restrictive constraints on
operations, management and capital distributions, depending on the category in
which an institution is classified. Unless a bank or thrift is well-capitalized,
it is subject to restrictions on its ability to offer brokered deposits and on
certain other aspects of its operations. An undercapitalized bank or thrift must
develop a capital restoration plan and its parent bank holding company must
guarantee the bank's or thrift's compliance with the plan up to the lesser of 5%
of the bank's or thrift's assets at the time it became undercapitalized and the
amount needed to comply with the plan.
As of September 30, 1999, each of our bank and thrift subsidiaries was
well-capitalized, based on the prompt corrective action ratios and guidelines
described above. It should be noted, however, that a bank's capital category is
determined solely for the purpose of applying the OCC's, or the FDIC's, prompt
corrective action regulations and that the capital category may not constitute
an accurate representation of the bank's overall financial condition or
prospects.
DIVIDEND RESTRICTIONS
Various U.S. federal and state statutory provisions limit the amount of
dividends our banks can pay to us without regulatory approval. Dividend payments
by national banks are limited to the lesser of:
- the level of undivided profits; and
- absent regulatory approval, an amount not in excess of net income for the
current year combined with retained net income for the preceding two
years.
Likewise, the approval of the Federal Reserve Board is required for any
dividend by a state-chartered bank that is a member of the Federal Reserve
System, a "STATE MEMBER BANK," if the total of all dividends declared by the
bank in any calendar year would exceed the total of its net profits, as defined
by regulatory agencies for that year, combined with its retained net profits for
the preceding two years. In addition, a state member bank may not pay a dividend
in an amount greater than its net profits then on hand. Depending on certain
factors, a U.S. federal savings bank may be required to file an application or
notice with the OTS prior to the payment of any dividends. For example, an
application is required if the total amount of all dividends and other capital
distributions for the current calendar year paid by a U.S. federal savings bank
exceeds its net income for that year as well as its retained net income for the
preceding two years. A prior notice is required if, among other things, a U.S.
federal savings bank is proposing to pay a dividend that would reduce the amount
of, or retire any of part of, its common or preferred stock or retire any part
of any debt instruments which are included in its capital for purposes of OTS
regulations.
At September 30, 1999, approximately $1.66 billion of the total
stockholders' equity of our banks was available for payment of dividends to us,
without approval by the applicable regulatory authority.
In addition, U.S. federal bank regulatory authorities have authority to
prohibit our banks from engaging in an unsafe or unsound practice in conducting
their business. The payment of dividends, depending upon the financial condition
of the bank in question, could be deemed to constitute an unsafe or unsound
practice. The ability of our banks to pay dividends in the
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<PAGE> 43
future is currently, and could be further, influenced by bank regulatory
policies and capital guidelines.
DEPOSIT INSURANCE ASSESSMENTS
The deposits of each of our domestic banks are insured up to regulatory
limits by the FDIC, and, accordingly, are subject to deposit insurance
assessments to maintain the Bank Insurance Fund, the "BIF," and/or the Savings
Association Insurance Fund, the "SAIF," 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 (1) the bank's capitalization and (2)
supervisory evaluations provided to the FDIC by the institution's primary U.S.
federal regulator. Each insured bank's insurance assessment rate is then
determined by the risk category in which it is classified by the FDIC.
Effective January 1, 1997, the annual insurance premiums on bank deposits
insured by the BIF and the SAIF vary between $0.00 per $100 of deposits for
banks classified in the highest capital and supervisory evaluation categories to
$0.27 per $100 of deposits for banks classified in the lowest capital and
supervisory evaluation categories.
The Deposit Insurance Funds Act provides for assessments to be imposed on
insured depository institutions with respect to deposits insured by the BIF and
the SAIF (in addition to assessments currently imposed on depository
institutions with respect to BIF- and SAIF-insured deposits) to pay for the cost
of Financing Corporation, "FICO," funding. The FDIC established the FICO
assessment rates effective October 1, 1999, at $0.01184 per $100 annually for
BIF-assessable deposits and $0.05920 per $100 annually for SAIF-assessable
deposits. The FICO assessments do not vary depending upon a depository
institution's capitalization or supervisory evaluations. Our banks held
approximately $97.0 billion and $3.4 billion, respectively, of BIF-assessable
and SAIF-assessable deposits as of September 30, 1999.
DEPOSITOR PREFERENCE STATUTE
In the "liquidation or other resolution" of an institution by any receiver,
U.S. federal legislation provides that deposits and certain claims for
administrative expenses and employee compensation against the insured depository
institution would be afforded a priority over other general unsecured claims
against that institution, including federal funds and letters of credit.
BROKERED DEPOSITS
Under FDIC regulations, no FDIC-insured depository institution can accept
brokered deposits unless it (1) is well capitalized, or (2) is adequately
capitalized and receives a waiver from the FDIC. In addition, these regulations
prohibit any depository institution that is not well-capitalized from (1) paying
an interest rate on deposits in excess of 75 basis points over certain
prevailing market rates or (2) offering "pass through" deposit insurance on
certain employee benefit plan accounts, unless it provides certain notice to
affected depositors.
INTERSTATE BANKING AND BRANCHING
Under the Riegle-Neal Interstate Banking and Branching Efficiency Act,
"RIEGLE-NEAL," subject to certain concentration limits and other requirements:
- bank holding companies such as us are permitted to acquire banks and bank
holding companies located in any state;
- any bank that is a subsidiary of a bank holding company is permitted to
receive deposits, renew time deposits, close loans, service loans and
receive loan payments as an agent for any other bank subsidiary of that
bank holding company; and
- banks are permitted to acquire branch offices outside their home states
by merging with out-of-state banks, purchasing branches in other states
and establishing de novo branch offices in other states. The ability of
banks to acquire branch offices through purchase
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or opening of other branches is contingent, however, on the host state
having adopted legislation "opting in" to those provisions of
Riegle-Neal. In addition, the ability of a bank to merge with a bank
located in another state is contingent on the host state not having
adopted legislation "opting out" of that provision of Riegle-Neal.
We might use Riegle-Neal to acquire banks in additional states and to
consolidate our bank subsidiaries under a smaller number of separate charters.
CONTROL ACQUISITIONS
The Change in Bank Control Act prohibits a person or group of persons from
acquiring "control" of a bank holding company, unless the Federal Reserve Board
has been notified and has not objected to the transaction. Under a rebuttable
presumption established by the Federal Reserve Board, the acquisition of 10% or
more of a class of voting stock of a bank holding company with a class of
securities registered under Section 12 of the Exchange Act, such as us, would,
under the circumstances set forth in the presumption, constitute acquisition of
control of the bank holding company.
In addition, a company is required to obtain the approval of the Federal
Reserve Board under the Bank Holding Company Act before acquiring 25% (5% in the
case of an acquiror that is a bank holding company) or more of any class of
outstanding common stock of a bank holding company, or otherwise obtaining
control or a "controlling influence" over that bank holding company.
RECENT LEGISLATION
On November 12, 1999, President Clinton signed into law legislation that
allows bank holding companies to engage in a wider range of nonbanking
activities, including greater authority to engage in securities and insurance
activities. Under the Gramm-Leach-Bliley Act (the "Act"), a bank holding company
that elects to become a financial holding company may engage in any activity
that the Federal Reserve Board, in consultation with the Secretary of the
Treasury, determines by regulation or order is (1) financial in nature, (2)
incident to any such financial activity, or (3) complementary to any such
financial activity and does not pose a substantial risk to the safety or
soundness of depository institutions or the financial system generally. This Act
makes significant changes in U.S. banking law, principally by repealing the
restrictive provisions of the 1933 Glass-Steagall Act. The Act specifies certain
activities that are deemed to be financial in nature, including lending,
exchanging, transferring, investing for others, or safeguarding money or
securities; underwriting and selling insurance; providing financial, investment,
or economic advisory services; underwriting, dealing in or making a market in,
securities; and any activity currently permitted for bank holding companies by
the Federal Reserve Board under section 4(c)(8) of the Bank Holding Company Act.
The Act does not authorize banks or their affiliates to engage in commercial
activities that are not financial in nature. A bank holding company may elect to
be treated as a financial holding company only if all depository institution
subsidiaries of the holding company are well-capitalized, well-managed and have
at least a satisfactory rating under the Community Reinvestment Act.
National banks are also authorized by the Act to engage, through "financial
subsidiaries," in any activity that is permissible for a financial holding
company (as described above) and any activity that the Secretary of the
Treasury, in consultation with the Federal Reserve Board, determines is
financial in nature or incidental to any such financial activity, except (1)
insurance underwriting, (2) real estate development or real estate investment
activities (unless otherwise permitted by law), (3) insurance company portfolio
investments and (4) merchant banking. The authority of a national bank to invest
in a financial subsidiary is subject to a number of conditions, including, among
other things, requirements that the bank must be well-managed and
well-capitalized (after deducting from the bank's capital outstanding
investments in financial subsidiaries). The Act provides that state banks may
invest in financial
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subsidiaries (assuming they have the requisite investment authority under
applicable state law) subject to the same conditions that apply to national bank
investments in financial subsidiaries.
The Act also contains a number of other provisions that will affect our
operations and the operations of all financial institutions. One of the new
provisions relates to the financial privacy of consumers, authorizing federal
banking regulators to adopt rules that will limit the ability of banks and other
financial entities to disclose non-public information about consumers to
non-affiliated entities. These limitations will likely require more disclosure
to consumers, and in some circumstances will require consent by the consumer
before information is allowed to be provided to a third party.
At this time, we are unable to predict the impact the Act may have upon our
or our subsidiaries' financial condition or results of operations.
FUTURE LEGISLATION
Changes to the laws and regulations in the states and countries where we
and our subsidiaries do business can affect the operating environment of bank
holding companies and their subsidiaries in substantial and unpredictable ways.
We cannot accurately predict whether legislation will ultimately be enacted,
and, if enacted, the ultimate effect that it, or implementing regulations, would
have upon our or our subsidiaries' financial condition or results of operations.
DESCRIPTION OF PREFERRED STOCK
The following summary contains a description of the general terms of the
preferred stock, par value $1.00 per share, the "PREFERRED STOCK" that we may
issue. Other terms of any series of preferred stock will be described in the
prospectus supplement relating to that series of preferred stock. The terms of
any series of preferred stock may differ from the terms described below. Certain
provisions of the preferred stock described below and in any prospectus
supplement are not complete. You should refer to our Restated Articles of
Incorporation, as amended, "ARTICLES OF INCORPORATION," and the certificate of
designation which will be filed with the SEC in connection with the offering of
the series of preferred stock.
GENERAL
Our articles of incorporation authorize our board of directors to provide
for the issuance of preferred stock in one or more series, without shareholder
action. The board of directors can determine the rights, preferences and
limitations of each series. Under our articles of incorporation, 16,000,000
shares are authorized for issuance as preferred stock. Prior to the issuance of
each series of preferred stock, our board of directors will adopt resolutions
creating and designating the series as a series of preferred stock. As of
September 30, 1999, we had outstanding five series of preferred stock as
follows:
- 500,000 shares of 9.35% cumulative preferred stock, having a liquidation
value of $250 per share, plus accrued and unpaid dividends, were
designated and 500,000 shares were issued and outstanding;
- 1,265,000 shares of series V 7.25% perpetual preferred stock, having a
liquidation value of $250 per share, plus accrued and unpaid dividends,
were designated and 765,010 shares were issued and outstanding;
- 690,000 shares of series VI 6.75% perpetual preferred stock, having a
liquidation value of $250 per share, plus accrued and unpaid dividends,
were designated and 600,000 shares were issued and outstanding;
- 805,000 shares of series VII fixed/adjustable rate cumulative
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preferred stock, having a liquidation value of $250 per share, plus accrued and
unpaid dividends, were designated and 700,000 shares were issued and
outstanding; and
- 200,000 shares of series VIII fixed/adjustable rate noncumulative
preferred stock, having a liquidation value of $250 per share, plus
accrued and unpaid dividends, were designated and 200,000 shares were
issued and outstanding.
In addition, our board of directors has established a series of 6,000,000 shares
of cumulative participating junior preferred stock, the "JUNIOR PREFERRED
STOCK," issuable upon exercise of our preferred share purchase rights described
below, of which no shares were issued and outstanding as of September 30, 1999.
Each such outstanding series is described below under "Description of Existing
Preferred Stock".
The preferred stock has the terms described below, unless otherwise
provided in the prospectus supplement relating to a particular series of the
preferred stock. You should read the prospectus supplement relating to the
particular series of the preferred stock being offered for specific terms,
including:
- the title of the preferred stock and the number of shares offered;
- the amount of liquidation preference per share;
- the price at which the preferred stock will be issued;
- the dividend rate, or method of calculation, the dates on which dividends
will be payable, whether dividends will be cumulative or noncumulative
and, if cumulative, the dates from which dividends will commence to
accumulate;
- any redemption or sinking fund provisions;
- any conversion provisions;
- whether we have elected to offer depositary shares as described under
"Description of Depositary Shares"; and
- any other rights, preferences, privileges, limitations and restrictions
on the preferred stock.
The preferred stock will, when issued, be fully paid and nonassessable.
Unless otherwise specified in the prospectus supplement, each series of the
preferred stock will rank equally as to dividends and liquidation rights in all
respects with each other series of preferred stock, except for the junior
preferred stock, and will rank senior in all respects to any outstanding shares
of our junior preferred stock and common stock.
The preferred stock will have no preemptive rights to subscribe for any
additional securities which we may issue.
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, a
division of EquiServe LP.
As described under "Description of Depositary Shares", we may, at our
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
of depositary receipts representing depositary shares, each of which will
represent a fractional interest in a share of that series of the preferred
stock. The fractional interest will be specified in the prospectus supplement
relating to a particular series of the preferred stock.
Any series of the preferred stock will, with respect to the priority of the
payment of dividends and the priority of payments upon liquidation, winding up
and dissolution, rank:
- senior to all classes of common stock and all equity securities issued by
us the terms of which specifically provide that the equity securities
will rank junior to the preferred stock, the "JUNIOR SECURITIES;"
- equally with all equity securities issued by us the terms of which
specifically provide that the equity securities will rank equally with
the preferred stock, the "PARITY SECURITIES;" and
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- junior to all equity securities issued by us the terms of which
specifically provide that the equity securities will rank senior to the
preferred stock.
DIVIDENDS
Holders of the preferred stock of each series will be entitled to receive,
when, as and if declared by our board of directors, cash dividends at such rates
and on such dates described in the prospectus supplement. Different series of
preferred stock may be entitled to dividends at different rates or based on
different methods of calculation. The dividend rate may be fixed or variable or
both. If variable, the formula or other method used for determining the
applicable dividend rate for each dividend period will be described in the
applicable prospectus supplement. If fixed, 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 described in the applicable prospectus supplement. If our
board of directors does not declare a dividend payable on a dividend payment
date on any series of noncumulative preferred stock, then the holders of that
noncumulative preferred stock will have no right to receive a dividend for that
dividend payment date, and we will have no obligation to pay the dividend
accrued for that period, whether or not dividends on that series are declared
payable on any future dividend payment dates.
No full dividends may be declared or paid or funds set apart for the
payment of any dividends on any parity securities unless dividends have been
paid or set apart for payment on the preferred stock. If full dividends are not
paid, the preferred stock will share dividends pro rata with the parity
securities. No dividends may be declared or paid or funds set apart for the
payment of dividends on any junior securities unless full cumulative dividends
for all dividend periods terminating on or prior to the date of the declaration
or payment will have been paid or declared and a sum sufficient for the payment
set apart for payment on the preferred stock.
Our ability to pay dividends on our preferred stock is subject to policies
established by the Federal Reserve Board. See "Regulation and
Supervision--Dividend Restrictions."
RIGHTS UPON LIQUIDATION
If we dissolve, liquidate or wind up our affairs, either voluntarily or
involuntarily, the holders of each series of preferred stock will be entitled to
receive, before any payment or distribution of assets is made to holders of
junior securities, liquidating distributions in the amount described in the
prospectus supplement relating to that series of the preferred stock, plus an
amount equal to accrued and unpaid dividends and, if the series of the preferred
stock is cumulative, for all dividend periods prior to that point in time. If
the amounts payable with respect to the preferred stock of any series and any
other parity securities are not paid in full, the holders of the preferred stock
of that series and of the parity securities will share proportionately in the
distribution of our assets in proportion to the full liquidation preferences to
which they are entitled. After the holders of preferred stock and the parity
securities are paid in full, they will have no right or claim to any of our
remaining assets.
Because we are a bank holding company, our rights, the rights of our
creditors and of our stockholders, including the holders of the preferred stock
offered by this prospectus, to participate in the assets of any subsidiary upon
the subsidiary's liquidation or recapitalization may be subject to the prior
claims of the subsidiary's creditors except to the extent that we may ourselves
be a creditor with recognized claims against the subsidiary.
REDEMPTION
A series of the preferred stock may be redeemable, in whole or in part, at
our option or the option of the holder. In addition, a series of preferred stock
may be subject to mandatory redemption pursuant to a sinking fund or otherwise.
The redemption provisions that may apply to a series of preferred stock,
including the redemption dates and the redemption prices
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for that series, will be described in the prospectus supplement.
In the event of partial redemptions of preferred stock, whether by
mandatory or optional redemption, our board of directors will determine the
method for selecting the shares to be redeemed, which may be by lot or pro rata
or by any other method determined to be equitable.
On or after a redemption date, unless we default in the payment of the
redemption price, dividends will cease to accrue on shares of preferred stock
called for redemption. In addition, all rights of holders of the shares will
terminate except for the right to receive the redemption price.
Under current regulations, bank holding companies may exercise an option to
redeem shares of preferred stock included as Tier 1 capital, or exchange the
preferred stock for debt securities, without the prior approval of the Federal
Reserve Board, if the bank holding company will remain well capitalized,
received a composite rating of 1 or 2 on its most recent BOPEC (which is an
acronym for Bank, Other non-bank subsidiaries, Parent, Earnings and Capital)
inspection and is not the subject of any unresolved supervisory issues.
VOTING RIGHTS
Unless otherwise described in the applicable prospectus supplement, holders
of the preferred stock will have no voting rights except as set forth below or
as otherwise required by law.
Whenever dividends payable on the preferred stock are in arrears for a
number of dividend periods, whether or not consecutive, which in the aggregate
is equivalent to six calendar quarters, the holders of outstanding shares of the
preferred stock, voting as a class with holders of shares of all other series of
preferred stock ranking equally with the preferred stock either as to dividends
or the distribution of assets upon liquidation, dissolution or winding up and
upon which like voting rights have been conferred and are exercisable, will be
entitled to vote for the election of two additional directors on the terms set
forth below. These voting rights will continue, in the case of any series of
cumulative preferred stock, until all past dividends accumulated on shares of
cumulative preferred stock are paid in full. Upon payment in full of these
dividends, the voting rights will terminate except as expressly provided by law.
These voting rights are subject to re-vesting in the event of each and every
subsequent default in the payment of dividends. Holders of all series of
preferred stock which are granted these voting rights and which rank equally
with the preferred stock will vote as a class, and, unless otherwise specified
in the applicable prospectus supplement, each holder of shares of the preferred
stock will have one vote for each share of stock held and each other series will
have the number of votes, if any, for each share of stock held as may be granted
to them. In the event that the holders of shares of the preferred stock are
entitled to vote as described in this paragraph, our board of directors will be
increased by two directors, and the holders of the preferred stock will have the
exclusive right as members of that class, as outlined above, to elect two
directors at the next annual meeting of stockholders.
Upon termination of the right of the holders of the preferred stock to vote
for directors as discussed in the preceding paragraph, the term of office of all
directors then in office elected by those holders will terminate immediately.
Whenever the term of office of the directors elected by those holders ends and
the related special voting rights expire, the number of directors will
automatically be decreased to the number of directors as would otherwise
prevail.
So long as any shares of preferred stock remain outstanding, we shall not,
without the affirmative vote or consent of the holders of at least two-thirds of
the shares of the preferred stock outstanding at the time, voting as a class
with all other series of preferred stock ranking equally with the preferred
stock either as to dividends or the distribution of assets upon liquidation,
dissolution or winding up and upon which like voting rights have been conferred
and are exercisable, given in person or by proxy, either in writing or at a
meeting:
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- issue, authorize or increase the authorized amount of, any class or
series of stock ranking senior to the preferred stock with respect to
payment of dividends or the distribution of assets upon liquidation,
dissolution or winding up of us; or
- amend, alter or repeal, whether by merger, consolidation or otherwise,
the provisions of our articles of incorporation or the certificate of
designations of the preferred stock so as to adversely affect any powers,
preferences, privileges or rights of the preferred stock.
However, any increase in the amount of authorized preferred stock or the
creation and issuance, or an increase in the authorized or issued amount, of
other series of preferred stock, or any increase in the amount of authorized
shares of preferred stock, in each case ranking equally with or junior to the
preferred stock with respect to the payment of dividends and the distribution of
assets upon our liquidation, dissolution or winding up will not be deemed to
adversely affect these powers, preferences, privileges or rights.
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, the
series may then be deemed a "class of voting securities" and a holder of 25% or
more of that series, or a holder of 5% or more if it otherwise exercises a
"controlling influence" over us, may then be subject to regulation as a bank
holding company in accordance with the Bank Holding Company Act. In addition,
whenever a series is deemed a class of voting securities, (a) 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 that series and (b) 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 that series.
CONVERSION RIGHTS
The prospectus supplement relating to any series of the preferred stock
that is convertible will state the terms on which shares of that series are
convertible into our other securities.
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DESCRIPTION OF DEPOSITARY SHARES
GENERAL
We may, at our option, elect to offer fractional shares of preferred stock,
"DEPOSITARY SHARES," rather than full shares of preferred stock. If we do, we
will issue to the public receipts, called "DEPOSITARY RECEIPTS," for depositary
shares, each of which will represent a fraction, to be described in the
prospectus supplement, of a share of a particular series of preferred stock.
The shares of any series of preferred stock represented by depositary
shares will be deposited under a Deposit Agreement, the "DEPOSIT AGREEMENT,"
between us and the depositary named in the prospectus supplement, the
"DEPOSITARY." 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 represented by the depositary share, to
all the rights and preferences of the preferred stock represented by the
depositary share. Those rights include dividend, voting, redemption, conversion
and liquidation rights.
The following summary of certain provisions of the deposit agreement is not
complete and is subject to, and is qualified in its entirety by reference to,
all the provisions of the deposit agreement. Whenever particular sections of the
deposit agreement are referred to, it is intended that the sections shall be
incorporated by reference in this prospectus. You should read copies of the
forms of deposit agreement and depositary receipt filed as exhibits to the
registration statement which contains this prospectus.
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 in proportion to the numbers of depositary shares owned by
those holders.
If there is a distribution other than in cash, the depositary will
distribute property received by it to the record holders of depositary shares,
unless the depositary determines that it is not feasible to make the
distribution. If this occurs, the depositary may, with our approval, sell the
property and distribute the net proceeds from the sale to the holders.
WITHDRAWAL OF STOCK
Unless the related depositary shares have been previously called for
redemption, upon surrender of the depositary receipts at the office of the
depositary, the holder of the depositary shares will be entitled to delivery, at
the office of the depositary to or upon his or her order, of the number of whole
shares of the preferred stock and any money or other property represented by the
depositary shares. 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 the holder at the same time a new depositary receipt
evidencing the excess number of depositary shares. In no event will the
depositary deliver fractional shares of preferred stock upon surrender of
depositary receipts.
REDEMPTION OF DEPOSITARY SHARES
Whenever we redeem shares of preferred stock held by the depositary, the
depositary will redeem as of the same redemption date the number of depositary
shares representing shares of the preferred stock so redeemed, so long as we
have paid in full to the depositary the redemption price of the preferred stock
to be redeemed plus an amount equal to any accumulated and unpaid dividends on
the preferred stock to the date fixed for redemption. The redemption price per
depositary share will be equal to the redemption price and any other amounts per
share payable on the preferred stock multiplied by the fraction of a share of
preferred stock represented by one depositary share. If less than all the
depositary shares are to be redeemed, the depositary shares to be
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redeemed will be selected by the lot or pro rata as may be determined by the
depositary.
After the date fixed for redemption, depositary shares called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of depositary shares will cease, except the right to receive the moneys
payable upon redemption and any money or other property to which the holders of
the depositary shares were entitled upon redemption upon surrender to the
depositary of the depositary receipts evidencing the 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 the notice of meeting to the record holders of the depositary receipts
relating to that preferred stock. The record date for the depositary receipts
relating to the preferred stock will be the same date as the record date for the
preferred stock. Each record holder of the depositary shares on the record date
will be entitled to instruct the depositary as to the exercise of the voting
rights pertaining to the number of shares of preferred stock represented by that
holder's depositary shares. The depositary will endeavor, insofar as
practicable, to vote the number of shares of preferred stock represented by the
depositary shares in accordance with those instructions, and we 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 not vote any shares of
preferred stock except to the extent it receives specific instructions from the
holders of depositary shares representing that number of shares of preferred
stock.
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 us and the depositary. However, any amendment that materially and
adversely alters the rights of the existing holders of depositary receipts will
not be effective unless it has been approved by the holders of at least a
majority of the depositary shares then outstanding.
We or the depositary may terminate the deposit agreement only if:
- all outstanding depositary shares have been redeemed; or
- there has been a final distribution in respect of the preferred stock in
connection with our liquidation, dissolution or winding up and the
distribution has been distributed to the holders of depositary receipts.
CHARGES OF DEPOSITARY
We will pay all transfer and other taxes and governmental charges arising
solely from the existence of the depositary arrangements. We 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 receipts 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.
RESIGNATION AND REMOVAL OF DEPOSITARY
The depositary may resign at any time by delivering to us notice of its
election to do so, and we may remove the depositary at any time. Any resignation
or removal of the depositary will take effect upon our appointment of a
successor depositary and its acceptance of such appointment. The 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.
NOTICES
The depositary will forward to holders of depositary receipts all notices,
reports and other communications, including proxy solicitation materials
received from us, which are delivered to the depositary and which we are
required to furnish to the holders of the preferred stock.
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LIMITATION OF LIABILITY
Neither we nor the depositary will be liable if either of us is prevented
or delayed by law or any circumstance beyond our control in performing our
obligations under the deposit agreement. Our obligations and those of the
depositary under the deposit agreement will be limited to performance in good
faith of our and their duties under that agreement. We and the depositary 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.
We and the depositary may rely upon written advice of counsel or accountants, on
information provided by persons presenting preferred stock for deposit, holders
of depositary receipts or other persons believed to be competent and on
documents believed to be genuine.
INSPECTION OF BOOKS
Any record holder of depositary shares who has been a holder for at least
six months or who holds at least five percent of our outstanding shares of
capital stock 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 the holder is acting in good faith and that
the inspection is for a proper purpose.
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DESCRIPTION OF EXISTING PREFERRED STOCK
GENERAL
The following summary of the outstanding series of our preferred stock does
not purport to be complete, and is subject in all respects to the applicable
provisions of the Rhode Island Business Corporation Act, our articles of
incorporation and our bylaws.
9.35% CUMULATIVE PREFERRED STOCK
We must pay dividends on the outstanding 9.35% preferred stock cumulatively
and on a quarterly basis at the rate of 9.35% per annum. We may not redeem any
shares of our common stock or any other junior securities or parity securities,
unless we have paid full cumulative dividends for all past dividend payment
periods. Further, if any dividends on the 9.35% preferred stock are in arrears,
we may not redeem any shares of the 9.35% preferred stock, unless we
simultaneously redeem all outstanding shares of the 9.35% preferred stock,
except pursuant to a purchase or exchange offer made on the same terms to
holders of all outstanding shares of the 9.35% preferred stock.
We are permitted to redeem the 9.35% preferred stock on at least 30 but not
more than 60 days' notice, at our option, in whole or in part, at any time on
and after January 15, 2000, at a redemption price equal to $250 per share, plus
any accrued and unpaid dividends. On December 7, 1999, we announced our
intention to redeem all of our outstanding 9.35% preferred stock on January 15,
2000.
Holders of the 9.35% preferred stock have no voting rights, except as
described above under "Description of Preferred Stock--Voting Rights."
SERIES V 7.25% PERPETUAL PREFERRED STOCK
The holders of Series V preferred stock are entitled to receive dividends
at the rate of 7.25% per annum, payable quarterly, before we may declare or pay
any dividend on our common stock or any junior securities. The dividends on the
Series V preferred stock are cumulative. We may redeem the Series V preferred
stock, in whole or in part, at our option, on and after April 15, 2001, at $250
per share, plus accrued and unpaid dividends, if any. However, so long as any
shares of the Series V preferred stock are outstanding, we may not redeem any
shares of our common stock or any other junior securities or parity securities,
unless we have paid full cumulative dividends on all outstanding shares of the
Series V preferred stock for all past dividend payment periods.
If any dividends on the Series V preferred stock are in arrears, we may not
redeem any shares of the Series V preferred stock, unless we simultaneously
redeem all outstanding shares of the Series V preferred stock, except pursuant
to a purchase or exchange offer made on the same terms to holders of all
outstanding shares of the Series V preferred stock.
Holders of the Series V preferred stock have no voting rights except as
described above under "Description of Preferred Stock--Voting Rights."
SERIES VI 6.75% PERPETUAL PREFERRED STOCK
The holders of Series VI preferred stock are entitled to receive dividends
at the rate of 6.75% per annum, payable quarterly, before we may declare or pay
any dividend on our common stock or any junior securities. The dividends on the
Series VI preferred stock are cumulative. We will adjust the amount of dividends
payable in respect of the Series VI preferred stock in the event the Internal
Revenue Code is amended to reduce the percentage of the dividend payable on the
Series VI preferred stock which may be deducted by corporate holders, called the
"DIVIDENDS RECEIVED DEDUCTION."
We may redeem the Series VI preferred stock, in whole or in part, at our
option, on and after April 15, 2006, at $250 per share, plus accrued and unpaid
dividends, if any. We may also redeem the Series VI preferred stock prior to
April 15, 2006, in whole, at our option, in the
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event the Internal Revenue Code is amended to reduce the dividends received
deduction.
So long as any shares of the Series VI preferred stock are outstanding, we
may not redeem any shares of our common stock or any other junior securities or
parity securities unless we have paid full cumulative dividends on all
outstanding shares of the Series VI preferred stock for all past dividend
payment periods. Further, if any dividends on the Series VI preferred stock are
in arrears, we may not redeem any shares of the Series VI preferred stock unless
we simultaneously redeem all outstanding shares of the Series VI preferred
stock, except pursuant to a purchase or exchange offer made on the same terms to
holders of all outstanding shares of the Series VI preferred stock.
Holders of the Series VI preferred stock have no voting rights except as
described above under "Description of Preferred Stock--Voting Rights."
SERIES VII FIXED/ADJUSTABLE RATE
CUMULATIVE PREFERRED STOCK
Through April 1, 2006, the holders of the Series VII preferred are entitled
to receive dividends at the rate of 6.60% per annum computed on the basis of the
issue price of the Series VII preferred stock of $250 per share, payable
quarterly, before we may declare or pay any dividend upon our common stock or
any junior securities. Thereafter the dividend rate on the Series VII preferred
stock 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, as each term is defined in the Certificate of Designation
establishing the Series VII preferred stock. 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%.
Dividends on the Series VII preferred stock are cumulative. We will adjust
the amount of dividends that will be payable in respect of the Series VII
preferred stock in the event the Internal Revenue Code is amended to reduce the
dividends received deduction.
We may redeem the Series VII preferred stock, in whole or in part, at our
option, on and after April 1, 2006, at $250 per share, plus accrued and unpaid
dividends, if any. We may also redeem the Series VII preferred stock prior to
April 1, 2006, in whole, at our option, in the event the Internal Revenue Code
is amended to reduce the dividends received deduction.
So long as any shares of the Series VII preferred stock are outstanding, we
may not redeem any shares of our common stock or any junior securities or parity
securities, unless we have paid full cumulative dividends on all outstanding
shares of Series VII preferred stock for all past dividend payment periods.
Further, if any dividends on the Series VII preferred stock are in arrears, we
may not redeem any shares of the Series VII preferred stock, unless we
simultaneously redeem all outstanding shares of the Series VII preferred stock,
except pursuant to a purchase or exchange offer made on the same terms to
holders of all outstanding shares of the Series VII preferred stock.
Holders of the Series VII preferred stock have no voting rights except as
described above under "Description of Preferred Stock--Voting Rights."
SERIES VIII FIXED/ADJUSTABLE RATE NONCUMULATIVE PREFERRED STOCK
Through October 1, 2001, the holders of the Series VIII preferred stock are
entitled to receive dividends at the rate of 6.59% per annum, payable quarterly,
before we may declare or pay any dividend on our common stock or any junior
securities. Thereafter the dividend rate on the Series VIII preferred stock 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,
as each term is defined in the Certificate of Designations establishing the
Series VIII preferred stock. The applicable rate per annum for any dividend
period beginning on or after October 1, 2001 will not be less than 7.0% nor
greater than 13.0%. The divi-
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<PAGE> 55
dends on the Series VIII preferred stock are noncumulative. We will adjust the
amount of dividends payable in respect of the Series VIII preferred stock in the
event the Internal Revenue Code is amended to reduce the dividends received
deduction.
We may redeem the Series VIII preferred stock, in whole or in part, at our
option on and after October 1, 2001, at $250 per share, plus accrued and unpaid
dividends, if any, for the then-current dividend period, without accumulation of
accrued and unpaid dividends for prior dividend periods. We may also redeem the
Series VIII preferred stock prior to October 1, 2001, in whole, at our option,
in the event the Internal Revenue Code is amended to reduce the dividends
received deduction.
So long as any shares of the Series VIII preferred stock are outstanding,
we may not redeem any shares of our common stock or any junior securities or
parity securities, unless we have paid all dividends on all outstanding shares
of Series VIII preferred stock for the then-current dividend period. Further, if
dividends on the Series VIII preferred stock have not been paid for the
then-current dividend period, we may not redeem any shares of the Series VIII
preferred stock, unless we simultaneously redeem all outstanding shares of such
class, except pursuant to a purchase or exchange offer made on the same terms to
holders of all outstanding shares of the Series VIII preferred stock.
Holders of the Series VIII preferred stock have no voting rights except as
described above under "Description of Preferred Stock--Voting Rights."
JUNIOR PREFERRED STOCK
As of the date of this Prospectus, there were six million shares of junior
preferred stock reserved for issuance upon the exercise of our preferred share
purchase rights. See "--Description of Common Stock--Preferred Share Purchase
Rights." Shares of junior preferred stock purchasable upon exercise of our
preferred share purchase 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 our senior securities, be entitled to a preferential cumulative
quarterly dividend payment equal to the greater of $1.00 per share or, subject
to certain adjustments, 100 times the dividend declared per share of our common
stock. Upon our liquidation, dissolution or winding up, holders of junior
preferred stock will, subject to the rights of those 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 amount received
per share of our common stock. Finally, in the event of any merger,
consolidation or other transaction in which shares of our common stock are
exchanged, each share of junior preferred stock will, subject to the rights of
those senior securities, be entitled to receive 100 times the amount received
per share of our common stock. Each share of junior preferred stock will have
100 votes, voting together with our common stock. The rights of junior preferred
stock are protected by customary antidilution provisions.
DESCRIPTION OF COMMON STOCK
GENERAL
We have two billion shares of common stock authorized, of which 915,564,364
million shares were outstanding as of October 31, 1999.
Holders of our common stock are entitled to receive dividends when, as and
if declared by our board of directors out of any funds legally available for
dividends. Holders of our common stock are also entitled, upon our liquidation,
and after claims of creditors and preferences of preferred stock, and any other
class or series of preferred stock outstanding at the time of liquidation, to
receive pro rata our net assets. We pay dividends on our common stock only if we
have paid or provided for all dividends on our outstanding series of preferred
stock, for the
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<PAGE> 56
then-current period and, in the case of any cumulative preferred stock, all
prior periods.
Our preferred stock has, or upon issuance will have, preference over our
common stock with respect to the payment of dividends and the distribution of
assets in the event of our liquidation or dissolution. Our preferred stock also
has such other preferences as may be fixed by our board of directors.
Holders of our common stock are entitled to one vote for each share that
they hold and are vested with all of the voting power except as our board of
directors has provided, or may provide in the future, with respect to preferred
stock or any other class or series of preferred stock that the board of
directors may authorize in the future. See "Description of Preferred Stock" and
"Description of Existing Preferred Stock." Shares of our common stock are not
redeemable, and have no subscription, conversion or preemptive rights.
The affirmative vote of not less than 80% of our outstanding voting stock,
voting separately as a class, is required for certain business combinations
between us and/or our subsidiaries and persons owning 10% or more of our voting
stock. See "Selected Provisions in our Articles of Incorporation--Business
Combinations With Related Persons."
Our common stock is listed on the New York Stock Exchange. When we issue
shares of Common Stock, the shares will be fully paid and non-assessable. There
is a provision of Rhode Island law (G.L. 1956 sec. 7-1.1-43) that relates to
distributions by us to our stockholders. If our board of directors approves, and
we make, a distribution when we are insolvent, or that renders us insolvent, and
any of our directors is found liable for the distribution, then our stockholders
may be required to pay back to us the amount of the distribution made to our
stockholders (or the portion of the distribution that caused us to become
insolvent).
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for our common stock is First Chicago
Trust Company, a division of EquiServe LP.
RESTRICTIONS ON OWNERSHIP
The Bank Holding Company Act requires any "bank holding company," as
defined in the Bank Holding Company Act, to obtain the approval of the Federal
Reserve Board prior to the acquisition of 5% or more of our 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 our common stock under
the Change in Bank Control Act. Any holder of 25% or more of our common stock,
or a holder of 5% or more if the holder otherwise exercises a "controlling
influence" over us, is subject to regulation as a bank holding company under the
Bank Holding Company Act. See "Regulation and Supervision."
PREFERRED SHARE PURCHASE RIGHTS
On November 21, 1990, our board of directors declared a dividend of one
preferred share purchase right, a "FLEETBOSTON RIGHT," for each outstanding
share of our common stock. This was adjusted to one-half of a right per share
upon our two-for-one common stock split that was effective October 7, 1998. We
paid the dividend on December 4, 1990, to the stockholders of record on that
date. Each FleetBoston right, when exercisable and prior to adjustment, will
entitle the registered holder to purchase from us 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, subject to certain adjustments. Until the
"Distribution Date," as defined in the FleetBoston rights agreement, we will
issue one-half of a FleetBoston right with each share of our common stock.
The FleetBoston rights have certain anti-takeover effects. The FleetBoston
rights may cause substantial dilution to a person or group that attempts to
acquire us on terms not approved by our board of directors, except pursuant to
an offer conditioned on a substantial number of FleetBoston rights being
acquired. The FleetBoston rights should not interfere with any merger or other
business combination approved by our board of directors prior to the time that
there is an "acquiring person," as defined in the
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<PAGE> 57
FleetBoston rights agreement, at which time holders of the FleetBoston rights
become entitled to exercise their FleetBoston rights for shares of our common
stock at one-half the market price of our common stock. Until there is an
acquiring person, however, the FleetBoston rights generally may be redeemed by
our board of directors at $.005 per FleetBoston right.
SELECTED PROVISIONS IN THE ARTICLES OF FLEETBOSTON
The following discussion sets forth material provisions of our articles of
incorporation.
BUSINESS COMBINATIONS WITH RELATED PERSONS
Our articles of incorporation provide that neither we nor any of our
subsidiaries may engage in business transactions known as "business
combinations" with persons known as "related persons" unless the transaction:
- was approved by an 80% vote of our board of directors prior to the time
the related person became a related person;
- is approved by a vote of 80% of the continuing directors and a majority
of our entire board of directors and the transaction complies with
certain conditions related to price and procedure; or
- if there is not full compliance with the preceding two bullet points, the
transaction is approved by a vote of 80% of the outstanding shares of our
capital stock entitled to vote generally in the election of directors,
voting as a single class.
A "BUSINESS COMBINATION" includes:
- any merger or consolidation of us or any of our 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 of our
assets or any of our subsidiaries; Substantial part is defined as assets
having a value of more than 5% of our total consolidated assets;
- any purchase, exchange, lease or other acquisition by us or any of our
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
that has the effect, directly or indirectly, of increasing the
proportionate amount of our voting shares 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 any of our
subsidiaries.
A "RELATED PERSON" includes any person who is the beneficial owner of 10%
or more of our voting shares prior to the consummation of a business combination
or any person who is our affiliate and was the beneficial owner of 10% or more
of our 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
our board of directors.
"CONTINUING DIRECTORS" are those individuals who were members of our board
of directors prior to the time a related person became the beneficial owner of
10% or more of our 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 supermajority vote (80%) of our board of
directors, a majority vote of the continuing directors and a supermajority vote
(80%) of our stockholders is required. If the amendment is recommended to the
stockholders by a majority of our board of directors and not less than 80% of
the continuing directors, only the vote provided under the Rhode Island Business
Corporation Act is required.
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<PAGE> 58
DIRECTORS
Our articles of incorporation contain a number of additional provisions
that are intended to delay an outside party's ability to take control of our
board of directors, even after the outside party has obtained majority ownership
of our common stock. Our articles of incorporation provide for a classified
board of directors, consisting of three classes of directors serving staggered
three-year terms.
Our directors may only be removed for cause and only by a vote of:
- the holders of 80% of the outstanding shares of stock entitled to vote on
the election of directors, voting separately as a class at a meeting
called for that purpose; or
- a majority of the continuing directors and a majority of our board of
directors as it exists at that time.
Vacancies on our board of directors, regardless of the reason, may only be
filled by our board of directors, acting by a vote of 80% of the directors then
in office.
Our articles of incorporation provide that our board of directors is to
consist of 13 members, unless otherwise determined by resolution adopted by a
supermajority vote (80%) of our board of directors and a majority of the
continuing directors. Our board of directors has adopted a resolution fixing the
number of directors at 24. The resolution also provides that the board of
directors only may be increased by the affirmative vote of 80% of our board of
directors and a majority of the continuing directors. However, in the event that
quarterly dividends are not paid on our non-voting preferred stock, the holders
of that preferred stock, voting separately as a class, will be entitled to elect
additional directors.
DESCRIPTION OF WARRANTS
We may issue warrants to purchase preferred stock or common stock. Warrants
may be issued independently or together with preferred stock or common stock and
may be attached to or separate from any preferred stock or common stock. Each
series of warrants will be issued under a separate warrant agreement to be
entered into between us and a warrant agent. The warrant agent will act solely
as our agent 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. Below is a description of certain general terms and provisions of
the warrants that we may offer. Further terms of the warrants and the applicable
warrant agreement will be described in the prospectus supplement.
The prospectus supplement relating to a particular issue of warrants will
describe the terms of the warrants, which may include the following:
- the title of the warrants;
- the offering price for the warrants, if any;
- the aggregate number of the warrants;
- the designation and terms of the preferred stock or common stock
purchasable upon exercise of the warrants;
- if applicable, the designation and terms of the preferred stock or common
stock with which the warrants are issued and the number of warrants
issued with each security;
- if applicable, the date from and after which the warrants and the related
preferred stock or common stock will be separately transferable;
- the number of shares of preferred stock or common stock purchasable upon
exercise of a warrant and the price at which those shares may be
purchased;
- the date on which the right to exercise the warrants shall begin and the
date on which such right shall expire;
- if applicable, the minimum or maximum amount of the warrants that may be
exercised at any one time;
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<PAGE> 59
- information with respect to book-entry procedures, if any;
- the currency or currency units in which the offering price, if any, and
the exercise price are payable;
- if applicable, a discussion of material United States Federal income tax
considerations;
- the antidilution provisions of the warrants, if any;
- any redemption or call provisions; and
- any additional terms of the warrants, including terms, procedures, and
limitations relating to the exchange and exercise of the warrants.
PLAN OF DISTRIBUTION
FleetBoston may sell securities:
- to the public through a group of underwriters managed or co-managed by
one or more underwriters, which may be BancBoston Robertson Stephens Inc.
or other affiliates;
- through one or more agents, which may be BancBoston Robertson Stephens
Inc. or other affiliates; or
- directly to purchasers.
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 those prevailing market prices; or
- at negotiated prices.
Each prospectus supplement will describe the method of distribution of the
securities and any applicable restrictions.
The prospectus supplement with respect to the securities of a particular
series will describe the terms of the offering of the securities, including the
following:
- the name of the agent or the name or names of any underwriters;
- the public offering or purchase price;
- any discounts and commissions to be allowed or paid to the agent or
underwriters;
- all other items constituting underwriting compensation;
- any discounts and commissions to be allowed or paid to dealers; and
- any exchanges on which the securities will be listed.
Only the agents or underwriters named in the prospectus supplement are
agents or underwriters in connection with the securities being offered.
We may agree to enter into an agreement to indemnify the agents and the
several underwriters against certain civil liabilities, including liabilities
under the Securities Act or to contribute to payments the agents or the
underwriters may be required to make.
If so indicated in the applicable prospectus supplement, we will authorize
underwriters or other persons acting as our agents to solicit offers by certain
institutions to purchase securities or warrants from us pursuant to delayed
delivery contracts providing for payment and delivery on the date stated in the
prospectus supplement. Each contract will be for an amount not less than, and
the aggregate amount of securities sold pursuant to those contracts will be
equal to the respective amounts stated in the prospectus supplement.
Institutions with whom the contracts, when authorized, may be made include
commercial and savings banks, insurance companies, pension funds, investment
companies, educational and charitable institu-
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<PAGE> 60
tions and other institutions, but shall in all cases
be subject to our approval. Delayed delivery contracts will not be subject to
any conditions except that:
- the purchase by an institution of the securities or warrants covered
under that contract shall not at the time of delivery be prohibited under
the laws of the jurisdiction to which that institution is subject; and
- if the securities or warrants are also being sold to underwriters acting
as principals for their own account, the underwriters shall have
purchased such securities or warrants not sold for delayed delivery. The
underwriters and other persons acting as our agents will not have any
responsibility in respect of the validity or performance of delayed
delivery 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, us or
one or more of our affiliates in the ordinary course of business.
BancBoston Robertson Stephens Inc. is our wholly-owned subsidiary.
Accordingly, the distribution of securities by BancBoston Robertson Stephens
Inc. will conform to the requirements set forth in Rule 2720 of the Conduct
Rules of the National Association of Securities Dealers, Inc.
Certain of the underwriters may use this prospectus and the accompanying
prospectus supplement for offers and sales related to market-making transactions
in the securities. These underwriters may act as principal or agent in these
transactions, and the sales will be made at prices related to prevailing market
prices at the time of sale.
EXPERTS
Our supplemental consolidated financial statements incorporated in this
prospectus by reference to our Current Report on Form 8-K filed November 22,
1999 amending our Annual Report on Form 10-K for the year ended December 31,
1998 have been so incorporated by reference in this document in reliance on the
report of PricewaterhouseCoopers LLP, independent accountants, given upon the
authority of that firm as experts in accounting and auditing.
LEGAL OPINIONS
The validity of the securities offered hereby will be passed upon for us by
Edwards & Angell, LLP, 101 Federal Street, Boston, Massachusetts 02110-1800. V.
Duncan Johnson, a partner of Edwards & Angell, LLP, is a director of Fleet Bank
(RI), National Association, one of our wholly-owned subsidiaries, and
beneficially owns 9,856 shares of our common stock.
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<PAGE> 61
[Fleet Boston LOGO]
FLEET BOSTON CORPORATION
$
PREFERRED STOCK
COMMON STOCK
WARRANTS
------------------------
PROSPECTUS
, 1999
------------------------
You should rely only on the information contained or incorporated by
reference in this prospectus. We have not authorized anyone to provide you with
different information.
We are not offering the securities in any state where the offer is not
permitted.
We do not claim the accuracy of the information in this prospectus as of
any date other than the dates stated on the cover.
<PAGE> 62
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE
MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT
AN OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY
THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED DECEMBER 9, 1999
PROSPECTUS
[FLEET BOSTON LOGO]
FLEET BOSTON CORPORATION
JUNIOR SUBORDINATED DEBENTURES
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 BOSTON CORPORATION
------------------------
THE TRUSTS:
The trusts are Delaware business trusts. Each trust may from time to time:
- sell preferred securities representing undivided beneficial interests in
the trust to the public.
- sell common securities representing undivided beneficial interests in
the trust to Fleet Boston Corporation.
- use the proceeds from these sales to buy an equal principal amount of
junior subordinated debentures of Fleet Boston Corporation.
- distribute the cash payments it receives on the junior subordinated
debentures it owns to the holders of the preferred and common
securities.
DISTRIBUTIONS:
- For each preferred security that you own, you will receive cumulative
cash distributions at a rate set forth in the accompanying prospectus
supplement on the liquidation amount of the preferred security. The
liquidation amount per preferred security will be set forth in the
accompanying prospectus supplement.
FLEET BOSTON CORPORATION:
- Fleet Boston Corporation will fully and unconditionally guarantee the
payment by the trust of the preferred securities based on obligations
discussed in this prospectus. This is called the preferred securities
guarantee.
------------------------
We will provide specific terms of these securities in supplements to this
prospectus. You should read this prospectus and any supplements carefully before
you invest.
A security is not a deposit and the securities are not insured or
guaranteed by the Federal Deposit Insurance Corporation or any other
governmental agency.
This prospectus may be used to offer and sell securities only if
accompanied by the prospectus supplement for those securities.
NEITHER THE SEC NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR
DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS PROSPECTUS OR THE
ACCOMPANYING PROSPECTUS SUPPLEMENT IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE DATE OF THIS PROSPECTUS IS , 1999
<PAGE> 63
IMPORTANT NOTICE ABOUT INFORMATION PRESENTED IN THIS
PROSPECTUS AND THE ACCOMPANYING PROSPECTUS SUPPLEMENT
We provide information to you about the securities we are offering in two
separate documents that progressively provide more detail:
- this prospectus, which provides general information, some of which may
not apply to your securities; and
- the accompanying prospectus supplement, which describes the specific and
final terms of your securities.
IF THE TERMS OF YOUR SECURITIES VARY BETWEEN THE PROSPECTUS SUPPLEMENT AND
THE ACCOMPANYING PROSPECTUS, YOU SHOULD RELY ON THE INFORMATION IN THE FOLLOWING
ORDER OF PRIORITY:
- THE PROSPECTUS SUPPLEMENT; AND
- THE PROSPECTUS.
We include cross-references in this prospectus and the accompanying
prospectus supplement to captions in these materials where you can find further
related discussions. The Table of Contents included in the accompanying
prospectus supplement provide the pages on which these captions are located.
------------------------
Unless indicated in the applicable prospectus supplement, neither we nor
the underwriters have taken any action that would permit us to publicly sell
these securities in any jurisdiction outside the United States. If you are an
investor outside the United States, you should inform yourself about and comply
with any restrictions as to the offering of the securities and the distribution
of this prospectus.
<PAGE> 64
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission, the "SEC," utilizing a "shelf" registration
process. Under this shelf process, we may from time to time sell any combination
of the securities described in this prospectus in one or more offerings up to a
total dollar amount of $2,351,868,750. We may also sell other securities under
the registration statement that will reduce the total dollar amount of
securities that we may sell under this prospectus. This prospectus provides you
with a general description of the securities we may offer. Each time we sell
securities, we will provide a prospectus supplement that will contain specific
information about the terms of that offering. The prospectus supplement may also
add, update or change information contained in this prospectus. You should read
both this prospectus and any prospectus supplement together with the additional
information described under the heading "Where You Can Find More Information."
Unless otherwise indicated or unless the context requires otherwise, all
references in this prospectus to "FLEETBOSTON," "WE," "US," "OUR" or similar
references mean Fleet Boston Corporation.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement under the Securities
Act of 1933 that registers, among other securities, the offer and sale of the
securities offered by this prospectus. The registration statement, including the
attached exhibits and schedules, contains additional relevant information about
us. The rules and regulations of the SEC allow us to omit certain information
included in the registration statement from this prospectus.
In addition, we file reports, proxy statements and other information with
the SEC under the Securities Exchange Act of 1934. You may read and copy this
information at the following locations of the SEC:
Public Reference Room
450 Fifth Street, N.W.
Room 1024
Washington, D.C. 20549
Northeast Regional Office
7 World Trade Center
Suite 1300
New York, New York 10048
Midwest Regional Office
500 West Madison Street
Suite 1400
Chicago, Illinois 60661-2511
You may also obtain copies of this information by mail from the Public
Reference Section of the SEC, 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549, at prescribed rates.
The SEC also maintains an internet world wide web site that contains
reports, proxy statements and other information about issuers, like us, who file
electronically with the SEC. The address of that site is:
http://www.sec.gov.
You can also inspect reports, proxy statements and other information about
us at the offices of the New York Stock Exchange, 20 Broad Street, New York, New
York 10005.
The SEC allows us to "INCORPORATE BY REFERENCE" information into this
prospectus. This means that we can disclose important information to you by
referring you to another document filed separately with the SEC. The information
incorporated by reference is considered to be a part of this prospectus, except
for any information that is superseded by information that is included directly
in this document or in a more recent incorporated document.
2
<PAGE> 65
This prospectus incorporates by reference the documents listed below that
we have previously filed with the SEC. They contain important information about
us and our financial condition.
<TABLE>
<CAPTION>
SEC FILINGS PERIOD
----------- ------
<S> <C>
Annual Report on Form 10-K............................ Year ended December 31, 1998, as filed
on March 26, 1999
Quarterly Report on Form 10-Q......................... Quarter ended March 31, 1999, as filed
on May 14, 1999
Quarter ended June 30, 1999, as filed
on August 12, 1999
Quarter ended September 30, 1999, as
filed on November 12, 1999
Items 10-13 of FleetBoston's Definitive Proxy
Statement to FleetBoston's Stockholders for the 1999
Annual Meeting of FleetBoston Stockholders.......... Filed on March 5, 1999
The description of FleetBoston common stock set forth
in the FleetBoston registration statement filed by
Industrial National Corporation (predecessor to
FleetBoston) on Form 8-B dated May 29, 1970, and any
amendment or report filed for the purpose of
updating such description; and
Current Reports on Form 8-K........................... Filed:
-February 1, 1999
-March 17, 1999
-April 2, 1999
-April 20, 1999
-May 14, 1999
-July 20, 1999
-August 12, 1999
-September 16, 1999
-September 30, 1999
-October 1, 1999
-October 15, 1999
-November 2, 1999
-November 19, 1999
-November 22, 1999
</TABLE>
We incorporate by reference additional documents that we may file with the
SEC between the date of this prospectus and the date we sell all of the
securities. These documents include periodic reports, such as Annual Reports on
Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, as
well as proxy statements.
You can obtain any of the documents incorporated by reference in this
document through us, or from the SEC through the SEC's Internet world wide web
site at the address described above. Documents incorporated by reference are
available from us without charge, excluding any exhibits to those documents,
unless the exhibit is specifically incorporated by reference as an exhibit in
this prospectus. You can obtain documents incorporated by reference in this
prospectus by requesting them in writing or by telephone from us at the
following address:
Investor Relations Department
Fleet Boston Corporation
P.O. Box 2016, MA BOS 01-20-02
Boston, Massachusetts 02106-2106
(617) 434-7858
We have not authorized anyone to give any information or make any
representation about us that is different from, or in addition to, those
contained in this prospectus or in any of the materials that we have
incorporated into this
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prospectus. If anyone does give you information of this sort, you should not
rely on it. If you are in a jurisdiction where offers to sell, or solicitations
of offers to purchase, the securities offered by this document are unlawful, or
if you are a person to whom it is unlawful to direct these types of activities,
then the offer presented in this document does not extend to you. The
information contained in this document speaks only as of the date of this
document unless the information specifically indicates that another date
applies.
We have not included separate financial statements of the trusts in this
prospectus. FleetBoston does not believe that holders of the preferred
securities would find these financial statements helpful because:
- all of the voting securities of each of the trusts will be owned,
directly or indirectly, by FleetBoston, a reporting company under the
Securities Exchange Act of 1934;
- each of the trusts has no independent operations and exists for the sole
purpose of issuing the preferred securities and
investing the proceeds in junior subordinated debentures issued by
FleetBoston; and
- FleetBoston's obligations described in this prospectus and in any
accompanying prospectus supplement constitute a full and unconditional
guarantee of payments due on the preferred securities.
The trusts do not currently file reports with the SEC. The trusts will be
required to file reports upon the effectiveness of the registration statement
which contains this prospectus, although they intend to seek and expect to
receive exemptions from those reporting requirements.
FORWARD-LOOKING STATEMENTS
This prospectus, including information included or incorporated by
reference, contains certain forward-looking statements with respect to
FleetBoston's financial condition, results of operations, plans, objectives,
future performance and business, including, without limitation:
- statements relating to the cost savings and accretion to reported
earnings estimated to result from the merger between FleetBoston and
BankBoston Corporation;
- statements relating to revenues of the combined company after the merger
between FleetBoston and BankBoston;
- statements relating to the restructuring charges estimated to be incurred
in connection with the merger between FleetBoston and BankBoston; and
- statements preceded by, followed by or that include the words "believes,"
"expects," "anticipates," "estimates" or similar expressions.
These forward-looking statements involve certain risks and uncertainties.
Actual results may differ materially from those contemplated by the
forward-looking statements due to many factors, including:
- general political and economic conditions, either internationally,
nationally or in the states in which FleetBoston and BankBoston doing
business, may be less favorable than expected;
- interest rate and currency fluctuations, equity and bond market
fluctuations, the level of customer's bankruptcies, and inflation may be
greater than expected;
- competitive pressures among financial services companies may increase
significantly;
- legislative or regulatory changes may adversely affect the business in
which FleetBoston is engaged;
- technological changes, including year 2000 data systems compliance
issues, may be more difficult or expensive than anticipated;
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- expected cost savings from the merger between FleetBoston and BankBoston
may not be fully realized or realized within the expected time frame;
- revenues following the merger between FleetBoston and BankBoston may be
lower than expected;
- costs or difficulties related to the integration of FleetBoston's
business and that of BankBoston may be greater than expected; and
- the negative impact of the divestitures to be completed in connection
with the merger between FleetBoston and BankBoston may be greater than
expected.
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FLEET BOSTON CORPORATION
We are a diversified financial services company, with consumer and
commercial platforms serving approximately 20 million customers nationally and
internationally. Our lines of business include:
- institutional and investment banking;
- cash services;
- trade services;
- export finance;
- mortgage banking;
- corporate finance;
- asset-based lending;
- commercial lending;
- real estate lending;
- government banking;
- investment management services;
- equipment leasing;
- credit cards;
- discount brokerage services;
- student loan processing; and
- full-service banking in leading Latin American markets.
On October 1, 1999, we completed the merger of BankBoston Corporation into
us.
- The name of the combined company was changed to "Fleet Boston
Corporation".
- The combined company will be doing business under the name "FleetBoston
Financial."
- The headquarters of the combined company will remain in Boston,
Massachusetts.
- Terrence Murray, our Chairman and Chief Executive Officer, was appointed
the Chairman of the Board of Directors and Chief Executive Officer of the
combined company.
- Charles K. Gifford, Chairman and Chief Executive Officer of BankBoston,
was appointed the President and Chief Operating Officer of the combined
company. Mr. Gifford will succeed to the role of Chief Executive Officer
as of December 31, 2001, or at such earlier time as Mr. Murray may step
down from that role, and Mr. Gifford will succeed to the role of Chairman
of the Board of Directors on December 31, 2002, or at such earlier time
as Mr. Murray may step down from that role.
- The board of directors of the combined company consists of 13 directors
from FleetBoston and 11 directors from BankBoston.
- The merger was accounted for under the "pooling-of-interests" method of
accounting. This means that, for accounting and financial reporting
purposes, we will treat our companies as if they had always been one, and
no goodwill will be created. In addition, the merger was treated as a
"reorganization" under the Internal Revenue Code. This means that
FleetBoston will not recognize any gain or loss as a result of the
merger.
- At the effective time of the merger, each share of common stock of
BankBoston, outstanding immediately prior to the effective time of the
merger was converted into 1.1844 shares of FleetBoston's common stock.
In connection with obtaining regulatory approvals for the merger, the
Federal Reserve Board and the United States Department of Justice required us to
agree to divest approximately $13 billion of deposits and $9 billion of loans
from the combined company, resulting in estimated divested income of $160
million after tax.
All financial information set forth in this prospectus and accompanying
prospectus supplement has been restated for all periods to give effect to the
merger. Because the divestitures will not be significant to us, the financial
information has not been adjusted to show the effects of the divestitures.
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At September 30, 1999, our total assets on a consolidated basis, were
$185.3 billion, our consolidated total deposits were $113.2 billion and our
consolidated total stockholders' equity was $15.5 billion. Based on total assets
at September 30, 1999, we were eighth largest bank holding company in the United
States.
For additional information regarding the merger and certain pro forma
financial information relating to the merger, see FleetBoston's current reports
on Form 8-K filed March 17, 1999, April 2, 1999, May 14, 1999, August 12,
September 16, 1999, September 30, 1999, October 1, 1999, October 15, 1999 and
November 22, 1999, each of which is incorporated by reference into this
prospectus. See "Where You Can Find More Information."
FleetBoston's principal office is located at One Federal Street, Boston,
Massachusetts 02110, telephone number (617) 346-4000.
THE TRUSTS
Each of the trusts is a statutory business trust formed under Delaware law
pursuant to a declaration of trust, each a "DECLARATION," executed by
FleetBoston, as sponsor for the trust and the Fleet Capital trustees, as defined
below, for the trust and the filing of a certificate of trust with the Delaware
Secretary of State.
Each trust exists for the exclusive purposes of:
- issuing the preferred securities and common securities representing
undivided beneficial interests in the assets of the trust;
- investing the gross proceeds of the preferred securities and the common
securities, together the "TRUST SECURITIES," in junior subordinated
debentures; and
- engaging in only those other activities necessary or incidental to the
activities described in the previous two bullets.
All of the common securities will be directly or indirectly owned by
FleetBoston. The common securities of each trust will rank equally, and payments
will be made pro rata with the preferred securities of that trust, 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. FleetBoston will, directly or indirectly,
acquire common securities of each trust in an aggregate liquidation amount equal
to at least three percent of the total capital of each trust.
Each trust's business and affairs will be conducted by the trustees, the
"FLEET CAPITAL TRUSTEES," appointed by FleetBoston, 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 trust. The duties and obligations of the
Fleet Capital trustees shall be governed by the declaration of that 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 FleetBoston, the
"REGULAR TRUSTEES." One Fleet Capital trustee of each trust will be a financial
institution which will be unaffiliated with FleetBoston and which will 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. 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 trust will have its principal place of business or
reside in the State of Delaware.
Each Fleet Capital trust has a term of approximately 55 years, but may
terminate earlier as provided in the applicable declaration.
FleetBoston 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 trust in the State of Delaware,
and its principal
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place of business is, The Bank of New York (Delaware), White Clay Center, Route
273, Newark, Delaware 19711. The principal place of business of each trust shall
be c/o Fleet Boston Corporation, One Federal Street, Boston, Massachusetts
02110, telephone number (617) 346-4000.
SUPPLEMENTAL CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
FleetBoston's supplemental consolidated ratios of earnings to fixed charges
were as follows for the five most recent fiscal years and the nine months ended
September 30, 1999:
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
SEPTEMBER 30, YEAR ENDED DECEMBER 31,
------------- --------------------------------
1999 1998 1997 1996 1995 1994
------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges:
Excluding Interest on Deposits............. 2.62x 2.62x 3.00x 2.79x 1.91x 2.11x
Including Interest on Deposits........... 1.72 1.62 1.72 1.61 1.39 1.52
</TABLE>
- -------------------------
For the purpose of computing the ratio of earnings to fixed charges,
"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
Each trust will use the proceeds of the sale of the trust securities to
acquire junior subordinated debentures from FleetBoston. FleetBoston intends to
use the net proceeds from the sale of the junior subordinated debentures for
general corporate purposes unless otherwise indicated in the prospectus
supplement. FleetBoston's general corporate purposes may include extending
credit to, or funding investments in, its subsidiaries. The precise amounts and
the timing of FleetBoston's use of the net proceeds will depend upon its
subsidiaries' funding requirements and the availability of other funds. Until
FleetBoston uses the net proceeds for general corporate purposes, it will use
the net proceeds to reduce its short-term indebtedness or for temporary
investments. FleetBoston expects that it will, on a recurrent basis, engage in
additional financings as the need arises to finance its growth, through
acquisitions or otherwise, or to fund its subsidiaries.
REGULATION AND SUPERVISION
The following discussion sets forth the material elements of the regulatory
framework applicable to bank holding companies and their subsidiaries, and
provides certain specific information relevant to FleetBoston. This regulatory
framework primarily is intended for the protection of depositors and the deposit
insurance funds that insure deposits of banks, and not for the protection of
security holders. To the extent that the following information describes
statutory and regulatory provisions, it is qualified in its entirety by
reference to those provisions. A change in the statutes, regulations or
regulatory policies applicable to FleetBoston or its subsidiaries may have a
material effect on its business.
GENERAL
As a bank holding company, FleetBoston is subject to regulation under the
Bank Holding Company Act of 1956, as amended, and to
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inspection, examination and supervision by the Federal Reserve Board. Under the
Bank Holding Company Act, bank holding companies generally may not acquire
ownership or control of any company, including a bank, without the prior
approval of the Federal Reserve Board. In addition, bank holding companies
generally may engage, directly or indirectly, only in banking and those other
activities as are determined by the Federal Reserve Board to be closely related
to banking.
Various governmental requirements, including Sections 23A and 23B of the
Federal Reserve Act, as amended, limit borrowings by FleetBoston and its
non-bank subsidiaries from its affiliate insured depository institutions, and
also limit various other transactions between FleetBoston and its non-bank
subsidiaries, on the one hand, and its affiliate insured depository
institutions, on the other. Section 23A of the Federal Reserve Act also
generally requires that an insured depository institution's loans to its
non-bank affiliates be secured, and Section 23B of the Federal Reserve Act
generally requires that an insured depository institution's transactions with
its non-bank affiliates be on arm's-length terms.
FleetBoston's banking subsidiaries are subject to extensive supervision,
examination and regulation by various bank regulatory authorities and other
governmental agencies in the states and countries where it and its subsidiaries
operate. FleetBoston and its subsidiaries are also affected by the fiscal and
monetary policies of the U.S. federal government and the Federal Reserve Board,
and by various other governmental requirements and regulations.
LIABILITY FOR BANK SUBSIDIARIES
Under current Federal Reserve Board policy, a bank holding company is
expected to act as a source of financial and managerial strength to each of its
subsidiary banks and to maintain resources adequate to support each subsidiary
bank. This support may be required at times when the bank holding company may
not have the resources to provide it. In addition, Section 55 of the National
Bank Act permits the OCC to order the pro rata assessment of stockholders of a
national bank whose capital has become impaired. If a stockholder fails, within
three months, to pay that assessment, the board of directors has a duty to sell
the stockholder's stock to cover the deficiency. In the event of a bank holding
company's bankruptcy, any commitment by the bank holding company to a U.S.
federal bank regulatory agency to maintain the capital of a subsidiary bank
would be assumed by the bankruptcy trustee and entitled to priority of payment.
Any depository institution insured by the FDIC can be held liable for any
loss incurred, or reasonably expected to be incurred, by the FDIC in connection
with:
- the default of a commonly controlled FDIC-insured depository institution;
or
- any assistance provided by the FDIC to a commonly controlled FDIC-insured
depository institution in danger of default.
"DEFAULT" generally is defined as the appointment of a conservator or receiver
and "IN DANGER OF DEFAULT" generally is defined as the existence of certain
conditions indicating that a default is likely to occur in the absence of
regulatory assistance.
All of FleetBoston's domestic banks are FDIC-insured depositary
institutions. Also, if a default occurred with respect to a bank, any capital
loans to the bank from its parent holding company would be subordinate in right
of payment to payment of the bank's depositors and certain of its other
obligations.
CAPITAL REQUIREMENTS
FleetBoston is subject to risk-based capital requirements and guidelines
imposed by the Federal Reserve Board, which are substantially similar to the
capital requirements and guidelines imposed by the Federal Reserve Board, the
OCC, the OTS and the FDIC on FleetBoston's depository institutions within their
respective jurisdictions. For this purpose, a depository institution's or
holding company's assets and certain specified off-balance sheet commitments are
assigned to four risk categories, each weighted differently based on the level
of credit risk that is ascribed to those
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assets or commitments. In addition, risk-weighted assets are adjusted for
low-level recourse and market-risk equivalent assets. A depository institution's
or holding company's capital, in turn, is divided into three tiers:
- core, or "TIER 1," capital, which consists primarily of stockholders'
equity less certain identifiable intangible assets and certain other
assets;
- supplementary, or "TIER 2," capital, which includes, among other items,
certain other debt and equity investments that do not qualify as Tier 1
capital; and
- market risk, or "TIER 3," capital, which includes qualifying unsecured
subordinated debt.
Like other bank holding companies, FleetBoston currently is required to
maintain Tier 1 and "TOTAL CAPITAL" (the sum of Tier 1, Tier 2 and Tier 3
capital) equal to at least 4% and 8% of its total risk-weighted assets
(including certain off-balance-sheet items, such as unused lending commitments
and standby letters of credit), respectively. At September 30, 1999, FleetBoston
met both requirements, with Tier 1 and total capital equal to 7.14% and 11.28%
of its total risk-weighted assets.
The Federal Reserve Board, the FDIC and the OCC have adopted rules to
incorporate market and interest rate risk components into their risk-based
capital standards. Amendments to the risk-based capital requirements,
incorporating market risk, became effective January 1, 1998. Under the new
market-risk requirements, capital will be allocated to support the amount of
market risk related to a financial institution's ongoing trading activities.
The Federal Reserve Board also requires bank holding companies to maintain
a minimum "LEVERAGE RATIO," defined as Tier 1 capital to average adjusted total
assets, of 3%, if the bank holding company has the highest regulatory rating and
meets certain other requirements, or of 3% plus an additional cushion of at
least 1% to 2% if the bank holding company does not meet these requirements. At
September 30, 1999, our leverage ratio was 7.21%, which significantly exceeded
the minimum leverage ratio to which we were subject.
The Federal Reserve Board may set capital requirements higher than the
minimums noted above for holding companies whose circumstances warrant it. For
example, bank holding companies experiencing or anticipating significant growth
may be expected to maintain strong capital positions substantially above the
minimum supervisory levels without significant reliance on intangible assets.
Furthermore, the Federal Reserve Board has indicated that it will consider a
"TANGIBLE TIER 1 CAPITAL LEVERAGE RATIO," which would deduct all intangibles,
and other indicia of capital strength in evaluating proposals for expansion or
new activities.
Each of FleetBoston's banks is subject to similar risk-based and leverage
capital requirements adopted by its applicable U.S. federal banking agency. Each
of FleetBoston's banks was in compliance with the applicable minimum capital
requirements as of September 30, 1999.
Failure to meet capital requirements could subject a bank to a variety of
enforcement remedies, including the termination of deposit insurance by the
FDIC, and to certain restrictions on its business, which are described under
"-- FDICIA."
FDICIA
The Federal Deposit Insurance Corporation Improvement Act of 1991,
"FDICIA," among other things, identifies five capital categories for insured
depository institutions -- well capitalized, adequately capitalized,
undercapitalized, significantly undercapitalized and critically
undercapitalized -- and requires U.S. federal bank regulatory agencies to
implement systems for "prompt corrective action" for insured depository
institutions that do not meet minimum capital requirements based on these
categories. FDICIA imposes progressively more restrictive constraints on
operations, management and capital distributions, depending on the category in
which an institution is classified. Unless a bank or thrift is well-capitalized,
it is subject to restrictions on its ability to offer brokered deposits and on
certain other aspects
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of its operations. An undercapitalized bank or thrift must develop a capital
restoration plan and its parent bank holding company must guarantee the bank's
or thrift's compliance with the plan up to the lesser of 5% of the bank's or
thrift's assets at the time it became undercapitalized and the amount needed to
comply with the plan.
As of September 30, 1999, each of FleetBoston's bank and thrift
subsidiaries was well-capitalized, based on the prompt corrective action ratios
and guidelines described above. It should be noted, however, that a bank's
capital category is determined solely for the purpose of applying the OCC's, or
the FDIC's, prompt corrective action regulations and that the capital category
may not constitute an accurate representation of the bank's overall financial
condition or prospects.
DIVIDEND RESTRICTIONS
Various U.S. federal and state statutory provisions limit the amount of
dividends FleetBoston's banks can pay to it without regulatory approval.
Dividend payments by national banks are limited to the lesser of:
- the level of undivided profits; and
- absent regulatory approval, an amount not in excess of net income for the
current year combined with retained net income for the preceding two
years.
Likewise, the approval of the Federal Reserve Board is required for any
dividend by a state-chartered bank that is a member of the Federal Reserve
System, a "STATE MEMBER BANK," if the total of all dividends declared by the
bank in any calendar year would exceed the total of its net profits, as defined
by regulatory agencies for that year, combined with its retained net profits for
the preceding two years. In addition, a state member bank may not pay a dividend
in an amount greater than its net profits then on hand. Depending on certain
factors, a U.S. federal savings bank may be required to file an application or
notice with the OTS prior to the payment of any dividends. For example, an
application is required if the total amount of all dividends and other capital
distributions for the current calendar year paid by a U.S. federal savings bank
exceeds its net income for that year as well as its retained net income for the
preceding two years. A prior notice is required if, among other things, a U.S.
federal savings bank is proposing to pay a dividend that would reduce the amount
of, or retire any of part of, its common or preferred stock or retire any part
of any debt instruments which are included in its capital for purposes of OTS
regulations.
At September 30, 1999, approximately $1.66 billion of the total
stockholders' equity of FleetBoston's banks was available for payment of
dividends to FleetBoston, without approval by the applicable regulatory
authority.
In addition, U.S. federal bank regulatory authorities have authority to
prohibit FleetBoston's banks from engaging in an unsafe or unsound practice in
conducting their business. The payment of dividends, depending upon the
financial condition of the bank in question, could be deemed to constitute an
unsafe or unsound practice. The ability of FleetBoston's banks to pay dividends
in the future is currently, and could be further, influenced by bank regulatory
policies and capital guidelines.
DEPOSIT INSURANCE ASSESSMENTS
The deposits of each of FleetBoston's domestic banks are insured up to
regulatory limits by the FDIC, and, accordingly, are subject to deposit
insurance assessments to maintain the Bank Insurance Fund, the "BIF," and/or the
Savings Association Insurance Fund, the "SAIF," 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 (1) the bank's capitalization and
(2) supervisory evaluations provided to the FDIC by the institution's primary
U.S. federal regulator. Each insured bank's insurance assessment rate is then
determined by the risk category in which it is classified by the FDIC.
Effective January 1, 1997, the annual insurance premiums on bank deposits
insured by the BIF and the SAIF vary between $0.00
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per $100 of deposits for banks classified in the highest capital and supervisory
evaluation categories to $0.27 per $100 of deposits for banks classified in the
lowest capital and supervisory evaluation categories.
The Deposit Insurance Funds Act provides for assessments to be imposed on
insured depository institutions with respect to deposits insured by the BIF and
the SAIF (in addition to assessments currently imposed on depository
institutions with respect to BIF- and SAIF-insured deposits) to pay for the cost
of Financing Corporation, "FICO," funding. The FDIC established the FICO
assessment rates effective October 1, 1999, at $0.01184 per $100 annually for
BIF-assessable deposits and $0.05920 per $100 annually for SAIF-assessable
deposits. The FICO assessments do not vary depending upon a depository
institution's capitalization or supervisory evaluations. FleetBoston's banks
held approximately $97.0 billion and $3.4 billion, respectively, of
BIF-assessable and SAIF-assessable deposits as of September 30, 1999.
DEPOSITOR PREFERENCE STATUTE
In the "liquidation or other resolution" of an institution by any receiver,
U.S. federal legislation provides that deposits and certain claims for
administrative expenses and employee compensation against the insured depository
institution would be afforded a priority over other general unsecured claims
against that institution, including federal funds and letters of credit.
BROKERED DEPOSITS
Under FDIC regulations, no FDIC-insured depository institution can accept
brokered deposits unless it (1) is well capitalized, or (2) is adequately
capitalized and receives a waiver from the FDIC. In addition, these regulations
prohibit any depository institution that is not well-capitalized from (1) paying
an interest rate on deposits in excess of 75 basis points over certain
prevailing market rates or (2) offering "pass through" deposit insurance on
certain employee benefit plan accounts, unless it provides certain notice to
affected depositors.
INTERSTATE BANKING AND BRANCHING
Under the Riegle-Neal Interstate Banking and Branching Efficiency Act,
"RIEGLE-NEAL," subject to certain concentration limits and other requirements:
- bank holding companies such as FleetBoston are permitted to acquire banks
and bank holding companies located in any state;
- any bank that is a subsidiary of a bank holding company is permitted to
receive deposits, renew time deposits, close loans, service loans and
receive loan payments as an agent for any other bank subsidiary of that
bank holding company; and
- banks are permitted to acquire branch offices outside their home states
by merging with out-of-state banks, purchasing branches in other states
and establishing de novo branch offices in other states. The ability of
banks to acquire branch offices through purchase or opening of other
branches is contingent, however, on the host state having adopted
legislation "opting in" to those provisions of Riegle-Neal. In addition,
the ability of a bank to merge with a bank located in another state is
contingent on the host state not having adopted legislation "opting out"
of that provision of Riegle-Neal.
FleetBoston might use Riegle-Neal to acquire banks in additional states and
to consolidate its bank subsidiaries under a smaller number of separate
charters.
CONTROL ACQUISITIONS
The Change in Bank Control Act prohibits a person or group of persons from
acquiring "control" of a bank holding company, unless the Federal Reserve Board
has been notified and has not objected to the transaction. Under a rebuttable
presumption established by the Federal Reserve Board, the acquisition of 10% or
more of a class of voting stock of a bank
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holding company with a class of securities registered under Section 12 of the
Exchange Act, such as FleetBoston, would, under the circumstances set forth in
the presumption, constitute acquisition of control of the bank holding company.
In addition, a company is required to obtain the approval of the Federal
Reserve Board under the Bank Holding Company Act before acquiring 25% (5% in the
case of an acquiror that is a bank holding company) or more of any class of
outstanding common stock of a bank holding company, or otherwise obtaining
control or a "controlling influence" over that bank holding company.
RECENT LEGISLATION
On November 12, 1999, President Clinton signed into law legislation that
allows bank holding companies to engage in a wider range of nonbanking
activities, including greater authority to engage in securities and insurance
activities. Under the Gramm-Leach-Bliley Act (the "Act"), a bank holding company
that elects to become a financial holding company may engage in any activity
that the Federal Reserve Board, in consultation with the Secretary of the
Treasury, determines by regulation or order is (1) financial in nature, (2)
incidental to any such financial activity, or (3) complementary to any such
financial activity and does not pose a substantial risk to the safety or
soundness of depository institutions or the financial system generally. This Act
makes significant changes in U.S. banking law, principally by repealing the
restrictive provisions of the 1933 Glass-Steagall Act. The Act specifies certain
activities that are deemed to be financial in nature, including lending,
exchanging, transferring, investing for others, or safeguarding money or
securities; underwriting and selling insurance; providing financial, investment,
or economic advisory services; underwriting, dealing in or making a market in,
securities; and any activity currently permitted for bank holding companies by
the Federal Reserve Board under section 4(c)(8) of the Bank Holding Company Act.
The Act does not authorize banks or their affiliates to engage in commercial
activities that are not financial in nature. A bank holding company may elect to
be treated as a financial holding company only if all depository institution
subsidiaries of the holding company are well-capitalized, well-managed and have
at least a satisfactory rating under the Community Reinvestment Act.
National banks are also authorized by the Act to engage, through "financial
subsidiaries," in any activity that is permissible for a financial holding
company (as described above) and any activity that the Secretary of the
Treasury, in consultation with the Federal Reserve Board, determines is
financial in nature or incidental to any such financial activity, except (1)
insurance underwriting, (2) real estate development or real estate investment
activities (unless otherwise permitted by law), (3) insurance company portfolio
investments and (4) merchant banking. The authority of a national bank to invest
in a financial subsidiary is subject to a number of conditions, including, among
other things, requirements that the bank must be well-managed and
well-capitalized (after deducting from the bank's outstanding investments in
financial subsidiaries). The Act provides that state banks may invest in
financial subsidiaries (assuming they have the requisite investment authority
under applicable state law) subject to the same conditions that apply to
national bank investments in financial subsidiaries.
The Act also contains a number of other provisions that will affect our
operations and the operations of all financial institutions. One of the new
provisions relates to the financial privacy of consumers, authorizing federal
banking regulators to adopt rules that will limit the ability of banks and other
financial entities to disclose non-public information about consumers to
non-affiliated entities. These limitations will likely require more disclosure
to consumers, and in some circumstances will require consent by the consumer
before information is allowed to be provided to a third party.
At this time, we are unable to predict the impact the Act may have upon our
or our subsidiaries' financial condition or results of operations.
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FUTURE LEGISLATION
Changes to the laws and regulations in the states and countries where we
and our subsidiaries do business can affect the operating environment of bank
holding companies and their subsidiaries in substantial and unpredictable ways.
We cannot accurately predict whether legislation will ultimately be enacted,
and, if enacted, the ultimate effect that it, or implementing regulations, would
have upon our or our subsidiaries' financial condition or results of operations.
DESCRIPTION OF THE JUNIOR SUBORDINATED DEBENTURES
FleetBoston may issue junior subordinated debentures from time to time in
one or more series under a base indenture, between FleetBoston and The Bank of
New York, as trustee, the "DEBT TRUSTEE," as supplemented by a supplemental
indenture or a resolution of FleetBoston's board of directors or a special
committee appointed by the board of directors. The base indenture, as
supplemented by the supplemental indenture is called 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.
Set forth below is a description of the general terms of the junior
subordinated debentures in which the trusts will invest the proceeds from the
issuance and sale of the trust securities. The particular terms of the junior
subordinated debentures will be described in the prospectus supplement relating
to the particular preferred securities being offered. The following description
is not intended to be complete and is qualified by the indenture, the form of
which is filed as an exhibit to the registration statement which contains this
prospectus, and the Trust Indenture Act.
GENERAL
The junior subordinated debentures will be issued as unsecured debt of
FleetBoston. The junior subordinated debentures will be fully subordinated as
described in the accompanying prospectus supplement under "Subordination." The
indenture does not limit the aggregate principal amount of junior subordinated
debentures which may be issued and provides that the junior subordinated
debentures may be issued from time to time in one or more series.
The prospectus supplement relating to the particular junior subordinated
debentures being offered will describe the terms of those securities, which may
include:
- the designation of the junior subordinated debentures;
- the aggregate principal amount of the junior subordinated debentures;
- the percentage of their principal amount at which the junior subordinated
debentures will be issued;
- the date or dates on which the junior subordinated debentures will mature
and the right, if any, to shorten or extend such date or dates;
- the rate or rates, if any, per annum, at which the junior subordinated
debentures will bear interest, or the method of determination of such
rate or rates;
- the date or dates from which interest shall accrue and the interest
payment and record dates;
- the right, if any, to extend the interest payment periods and the
duration of that extension;
- provisions, if any, for a sinking purchase or other analogous fund;
- any provisions for redemption; and
- any other specific terms of the junior subordinated debentures.
If a prospectus supplement specifies that the junior subordinated
debentures will be denominated in a currency or currency unit other than United
States dollars, the prospectus supplement shall also specify the denomination in
which the junior subordinated debentures will be issued and the coin or currency
in which the principal, premium, if any, and interest, if any,
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on the 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.
ADDITIONAL INTEREST
If, at any time a trust is required to pay any taxes, duties, assessments
or governmental charges of whatever nature, other than withholding taxes,
imposed by the United States, or any other taxing authority, then FleetBoston
will be required to pay additional interest on the junior subordinated
debentures. The amount of any additional interest will be an amount sufficient
so that the net amounts received and retained by the trust after paying any such
taxes, duties, assessments or other governmental charges will be not less than
the amounts that the trust would have received had no such taxes, duties,
assessments or other governmental charges been imposed. This means that the
trust will be in the same position it would have been in if it did not have to
pay those taxes, duties, assessments or other charges.
FORM, EXCHANGE, REGISTRATION, TRANSFER AND PAYMENT
Unless otherwise indicated in the applicable prospectus supplement,
FleetBoston will issue the junior subordinated debentures in registered form
only, 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. However, FleetBoston or the debt trustee may require a
holder to pay an amount sufficient to cover any tax or other governmental charge
payable in connection with a transfer or exchange.
FleetBoston will pay or deliver principal and any premium and interest in
the manner, at the places and subject to the restrictions set forth in the
indenture and the prospectus supplement. However, at FleetBoston's option, it
may pay any interest by check mailed to the holders of registered junior
subordinated debentures at their registered addresses.
GLOBAL JUNIOR SUBORDINATED DEBENTURES
The indenture provides that FleetBoston may issue junior subordinated
debentures in global form. If any series of junior subordinated debentures is
issued in global form, the applicable prospectus supplement will describe the
circumstances, if any, under which beneficial owners of interests in any of
those global junior subordinated debentures may exchange their interest for
junior subordinated debentures of that series and of like tenor and principal
amount in any authorized form and denomination.
SUBORDINATION
The junior subordinated debentures will be subordinated and junior in right
of payment to certain other indebtedness of FleetBoston to the extent set forth
in the applicable prospectus supplement.
CERTAIN COVENANTS OF FLEETBOSTON
If junior subordinated debentures are issued to a trust or a trustee of a
trust in connection with the issuance of trust securities by a trust and:
- there shall have occurred and be continuing an event of default;
- FleetBoston shall be in default relating to its payment of any
obligations under the guarantee; or
- FleetBoston shall have given notice of its election to defer payments of
interest on the junior subordinated debentures by extending the interest
payment period and that period, or any extension of that period, shall be
continuing;
then
- FleetBoston shall not declare or pay any dividend on, make any
distributions relating to, or redeem, purchase, acquire or make a
liquidation payment relating to, any of its capital stock or make any
guarantee payment with respect thereto other than:
(1) repurchases, redemptions or other acquisitions of shares of
capital stock of FleetBoston in connec-
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tion with any employee benefit plans or any other contractual
obligation of FleetBoston, other than a contractual obligation
ranking equally with or junior to the junior subordinated
debentures;
(2) as a result of an exchange or conversion of any class or series of
FleetBoston's capital stock for any other class or series of
FleetBoston's capital stock; or
(3) the purchase of fractional interests in shares of FleetBoston's
capital stock pursuant to the conversion or exchange provisions of
that FleetBoston capital stock or the security being converted or
exchanged; and
- FleetBoston shall not make any payment of interest, principal or premium,
if any, on or repay, repurchase or redeem any debt securities issued by
FleetBoston which rank equally with or junior to the junior subordinated
debentures.
So long as the junior subordinated debentures remain outstanding,
FleetBoston will covenant to:
- directly or indirectly maintain 100 percent ownership of the common
securities of the trust, unless a permitted successor of FleetBoston
succeeds to its ownership of the common securities;
- use its reasonable efforts to cause the trust to
(1) remain a statutory business trust, except in connection with the
distribution of junior subordinated debentures to the holders of
trust securities in liquidation of the trust, the redemption of
all of the trust securities of the trust, or mergers,
consolidations or amalgamations, each as permitted by the
declaration which established the trust; and
(2) otherwise continue to be classified as a grantor trust for United
States federal income tax purposes; and
- 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.
LIMITATION ON MERGERS AND SALES OF ASSETS
The indenture provides that FleetBoston may not consolidate with, or merge
into, any other corporation or convey or transfer its properties and assets
substantially as an entirety unless:
- the successor entity is a corporation organized in the United States and
expressly assumes the obligations of FleetBoston under the indenture; and
- after giving effect thereto, no event of default and no event which,
after notice or lapse of time, or both, would become an event of default,
shall have occurred and be continuing under the indenture.
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.
EVENTS OF DEFAULT, WAIVER AND NOTICE
The indenture provides that the following are events of default relating to
the junior subordinated debentures:
- default in the payment of the principal of, or premium, if any, on, any
junior subordinated debenture at its maturity;
- default for 30 days in the payment of any installment of interest on any
junior subordinated debenture;
- default for 90 days after written notice in the performance of any other
covenant in respect of the junior subordinated debenture;
- specified events of bankruptcy, insolvency or reorganization, or court
appointment of a receiver, liquidator or
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trustee of FleetBoston or, with certain exceptions, the trust; and
- any other event of default provided in the applicable resolution of the
board of directors or supplemental indenture under which the junior
subordinated debentures are issued.
If an indenture event of default shall occur 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 that series then outstanding may
declare the principal of all junior subordinated debentures of that series to be
due and payable immediately.
The holders of a majority in aggregate outstanding principal amount of that
series of junior subordinated debentures may annul the declaration and waive the
default if the default has been cured and a sum sufficient to pay all matured
installments of interest and principal due other than by acceleration has been
deposited with the debt trustee. The majority holders may not waive a payment
default on the junior subordinated debentures which has become due solely by
acceleration.
The holders of a majority in principal amount of the junior subordinated
debentures of any series affected 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, so long as the holders of the junior
subordinated debentures have offered to the debt trustee indemnity satisfactory
to it against expenses and liabilities.
The indenture requires the annual filing by FleetBoston with the debt
trustee of a certificate as to the absence of certain defaults under the
indenture.
The debt trustee may withhold notice of any event of default from the
holders of the junior subordinated debentures, except in the payment of
principal, interest or premium, if the trustee considers it in the interest of
those holders to do so.
DISTRIBUTION OF THE JUNIOR SUBORDINATED DEBENTURES
Under circumstances discussed more fully in the prospectus supplement
involving the dissolution of a trust, provided that any required regulatory
approval is obtained, junior subordinated debentures will be distributed to the
holders of the trust securities in liquidation of that trust. See "Description
of the Preferred Securities--Distribution of the Junior Subordinated Debentures"
in the accompanying prospectus supplement.
If the junior subordinated debentures are distributed to the holders of the
preferred securities, FleetBoston will use its best efforts to have the junior
subordinated debentures listed on the NYSE or on such other national securities
exchange or similar organization on which the preferred securities are then
listed or quoted.
MODIFICATION OF THE INDENTURE
Modifications and amendments to the indenture may be made by FleetBoston
and the debt trustee with the consent of the holders of a majority in principal
amount of the junior subordinated debentures at the time outstanding. However,
no such modification or amendment may, without the consent of the holder of each
junior subordinated debenture affected:
- modify the payment terms of the junior subordinated debentures;
- reduce the percentage of holders of junior subordinated debentures
necessary to modify or amend the indenture or waive compliance by
FleetBoston with any covenant or past default; or
- otherwise materially adversely affect the interests of the holders of any
series of junior subordinated debentures.
If the junior subordinated debentures are held by a trust or a trustee of a
trust, the supplemental indenture shall not be effective until the holders of a
majority in liquidation preference of trust securities of that trust shall have
consented to the supplemental indenture.
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If the consent of the holder of each outstanding junior subordinated debenture
is required, the supplemental indenture shall not be effective until each holder
of the trust securities of that trust shall have consented to the supplemental
indenture.
DEFEASANCE AND DISCHARGE
The indenture provides that FleetBoston, at its option:
(a) will be discharged from any and all obligations in respect of the
junior subordinated debentures of a series, except for 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 specified restrictive covenants of the indenture;
in each case if FleetBoston deposits, in trust, money or U.S. government
obligations in an amount sufficient to pay all the principal of, and interest
and premium, if any, on, the junior subordinated debentures when such payments
are due.
To exercise any such option, FleetBoston is required to deliver an opinion
of counsel to the effect that:
- the deposit and related defeasance would not cause the holders of the
junior subordinated debentures of that 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) above, such opinion shall be accompanied
by a private letter ruling to that effect received by FleetBoston 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
- if listed on any national securities exchange, the junior subordinated
debentures would not be delisted from such exchange as a result of the
exercise of the defeasance option.
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.
THE DEBT TRUSTEE
FleetBoston 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 trust may issue, from time to time, only one series of preferred
securities having terms described in the accompanying prospectus supplement.
Each series of preferred securities will be issued pursuant to the terms of an
amended and restated declaration of trust, a "DECLARATION." Each declaration
will be qualified as an indenture under the Trust Indenture Act. The Bank of New
York will act as trustee under the declaration for purposes of compliance with
the provisions of the Trust Indenture Act.
The preferred securities will have those 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 trust
and described in the accompanying prospectus supplement. Those terms may
include:
- the distinctive designation of the preferred securities;
- the number of preferred securities issuable by the trust;
- the annual distribution rate, or method of determining such rate, for
preferred
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securities and the date or dates upon which those distributions shall be
payable;
- whether distributions on preferred securities shall be cumulative, and,
if so, the date or dates or method of determining the date or dates from
which distributions on preferred securities shall be cumulative;
- the amount or amounts which shall be paid out of the assets of the trust
to the holders of preferred securities upon voluntary or involuntary
dissolution, winding-up or termination of the trust;
- the obligation, if any, of the trust to purchase or redeem preferred
securities issued by the 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 the trust shall be purchased or redeemed,
in whole or in part, pursuant to such obligation;
- the voting rights, if any, of holders of preferred securities in addition
to those required by law or described in this prospectus supplement,
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 other trusts, or of both, as a condition
to specified action or amendments to the declaration of the trust;
- the terms and conditions, if any, upon which the junior subordinated
debentures owned by the trust may be distributed to holders of preferred
securities;
- if applicable, any securities exchange upon which the preferred
securities shall be listed; and
- any other relevant rights, preferences, privileges, limitations or
restrictions of preferred securities not inconsistent with the
declaration or with applicable law.
All preferred securities will be guaranteed by FleetBoston 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.
VOTING RIGHTS
Except as described in this prospectus, under the Delaware Business Trust
Act, the Trust Indenture Act, under "Description of the Preferred Securities
Guarantees--Modification of the Preferred Securities Guarantees; Assignment" in
this prospectus, 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.
The holders of a majority in aggregate liquidation amount of the preferred
securities have the right to direct any proceeding for any remedy available to
the institutional trustee so long as the institutional trustee receives the tax
opinion discussed below. The holders also have the right to direct the
institutional trustee under the declaration to:
(1) direct any proceeding for any remedy available to the debt trustee, or
exercising any trust or power conferred on the debt trustee;
(2) waive any past indenture event of default that is waivable under the
indenture;
(3) exercise any right to rescind or annul an acceleration of the maturity
of the junior subordinated debentures; or
(4) consent to any amendment, modification or termination where such
consent is required.
If there is an event of default on the preferred securities, and such
default is a result of a payment default under the junior subordinated
debentures, the holders of the preferred securities may also sue FleetBoston
directly, a "DIRECT ACTION," to enforce payment of the
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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 due date specified in the junior
subordinated debentures.
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, or a "SUPER MAJORITY," then only a super majority may
direct the institutional trustee to give such consent or take such action. Where
a consent or action under the indenture would require the consent or act of
individual holders of the junior subordinated debentures, then only those
individual holders may direct 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, any record holder of preferred securities
may directly sue FleetBoston to enforce the institutional trustee's rights under
the junior subordinated debentures. The record holder does not have to sue the
institutional trustee or any other person or entity before enforcing his rights.
The institutional trustee is required to notify all holders of the
preferred securities of any notice of default received from the indenture
trustee. The notice is required to state that the event of default also
constitutes a declaration event of default. Except for directing the time,
method and place of conducting a proceeding for a remedy available to the
institutional trustee, the institutional trustee will not take any of the
actions described in clauses (1), (2), (3) or (4) above unless the institutional
trustee receives an opinion of a nationally recognized independent tax counsel.
The opinion must be to the effect that, as a result of such action, the trust
will not fail to be classified as a grantor trust for United States federal
income tax purposes.
If the consent of institutional trustee is required under the indenture for
any amendment, modification or termination of the indenture, the institutional
trustee is required to request the written direction of the holders of the trust
securities. In that case, the institutional trustee will vote as directed by a
majority in liquidation amount of the trust securities voting together as a
single class. Where any amendment, modification or termination under the
indenture would require the consent of a super majority or an individual holder,
however, the institutional trustee may only give such consent at the direction
of the holders of the same super majority of the holders of the trust securities
or such individual holder, as applicable. The institutional trustee is not
required to take any such action in accordance with the directions of the
holders of the trust securities unless the institutional trustee has obtained a
tax opinion to the effect described above.
A waiver of an indenture event of default by the institutional trustee at
the direction of the holders of the preferred securities 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 by
written consent. The regular trustees will mail to each holder of record of
preferred securities a notice of any meeting at which such holders are entitled
to vote, or of any matter upon which action by written consent of such holders
is to be taken. Each such notice will include a statement setting forth the
following information:
- the date of such meeting or the date by which such action is to be taken;
- 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
- instructions for the delivery of proxies or consents.
No vote or consent of the holders of preferred securities will be required for a
trust to redeem and cancel preferred securities or distribute
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junior subordinated debentures in accordance with the declaration.
Despite the fact that holders of preferred securities are entitled to vote
or consent under the circumstances described above, any of the preferred
securities that are owned at the time by FleetBoston or any entity directly or
indirectly controlling or controlled by, or under direct or indirect common
control with, FleetBoston, will not be entitled to vote or consent. Instead,
these preferred securities will be treated as if they were not outstanding.
Holders of the preferred securities generally will have no rights to
appoint or remove the regular trustees. Instead, the trustees may be appointed,
removed or replaced solely by FleetBoston as the indirect or direct holder of
all of the common securities.
COMMON SECURITIES
In connection with the issuance of preferred securities, each trust will
issue one series of common securities having the terms including distributions,
redemption, voting, liquidation rights or such restrictions as shall be set
forth in the prospectus supplement. Except for voting rights, the terms of the
common securities will be substantially identical to the terms of the preferred
securities. The common securities will rank equally, and payments will be made
on the common securities pro rata, with the preferred securities, except that,
upon an event of default, 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 limited circumstances, the common securities of a trust
carry the right to vote to appoint, remove or replace any of the trustees of
that trust. All of the common securities of each trust will be directly or
indirectly owned by FleetBoston.
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 FleetBoston 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 Bank of New York will act as the guarantee trustee for
purposes of the Trust Indenture Act. The terms of each preferred securities
guarantee will be those set forth in the preferred securities guarantee and
those made part of the preferred securities guarantee by the Trust Indenture
Act. The summary of the material terms of the preferred securities guarantees is
not intended to be complete and is qualified in all respects by the provisions
of the form of preferred securities guarantee which is filed as an exhibit to
the registration statement which contains this prospectus, and the Trust
Indenture Act. Each preferred securities guarantee will be held by the guarantee
trustee for the benefit of the holders of the preferred securities of the
applicable trust.
GENERAL
Pursuant to and to the extent set forth in the preferred securities
guarantee, FleetBoston will irrevocably and unconditionally agree to pay in full
to the holders of the preferred securities, except to the extent paid by the
trust, as and when due, regardless of any defense, right of set-off or
counterclaim which the trust may have or assert, the following payments, which
are referred to as "GUARANTEE PAYMENTS," without duplication:
- any accrued and unpaid distributions that are required to be paid on the
preferred securities, to the extent the trust has funds available for
distributions;
- the redemption price, plus all accrued and unpaid distributions, to the
extent the trust has funds available for redemptions, relating to any
preferred securities called for redemption by the trust; and
- upon a voluntary or involuntary dissolution, winding-up or termination of
the
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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:
- the aggregate of the liquidation amount and all accrued and unpaid
distributions on the preferred securities to the date of payment; or
- the amount of assets of the trust remaining for distribution to
holders of the preferred securities in liquidation of the trust.
The redemption price and liquidation amount will be fixed at the time the
preferred securities are issued.
FleetBoston'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 trust to pay such amounts to such holders.
The preferred securities guarantees will not apply to any payment of
distributions except to the extent a trust shall have funds available for such
payments. If FleetBoston does not make interest payments on the junior
subordinated debentures purchased by a trust, the trust will not pay
distributions on the preferred securities and will not have funds available for
such payments.
The preferred securities guarantees, when taken together with FleetBoston's
obligations under the junior subordinated debentures, the indentures and the
declarations, including its obligations to pay costs, expenses, debts and
liabilities of the trusts, other than those relating to trust securities, will
provide a full and unconditional guarantee on a subordinated basis by
FleetBoston of payments due on the preferred securities.
FleetBoston has also agreed separately to irrevocably and unconditionally
guarantee the obligations of the trusts with respect to the common securities 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 FLEETBOSTON
In each preferred securities guarantee, FleetBoston will covenant that, so
long as any preferred securities remain outstanding, if there shall have
occurred any event that would constitute an event of default under the preferred
securities guarantee or the indenture of the trust, or if FleetBoston 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:
- FleetBoston shall not declare or pay any dividend on, make any
distributions relating to, or redeem, purchase, acquire or make a
liquidation payment relating to, any of its capital stock or make any
guarantee payment with respect thereto other than:
(1) repurchases, redemptions or other acquisitions of shares of
capital stock of FleetBoston in connection with any employee
benefit plans or any other contractual obligation of FleetBoston,
other than a contractual obligation ranking equally with or junior
to the junior subordinated debentures;
(2) as a result of an exchange or conversion of any class or series of
FleetBoston's capital stock for any other class or series of
FleetBoston's capital stock; or
(3) the purchase of fractional interests in shares of FleetBoston's
capital stock pursuant to the conversion or exchange provisions of
such FleetBoston capital stock or the security being converted or
exchanged; and
- FleetBoston shall not make any payment of interest, principal or premium,
if any,
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on, or repay, repurchase or redeem any debt securities issued by
FleetBoston which rank equally with or junior to the junior subordinated
debentures.
MODIFICATION OF THE PREFERRED SECURITIES GUARANTEES; ASSIGNMENT
The preferred securities guarantee may be amended only with the prior
approval of the holders of not less than a majority in aggregate liquidation
amount of the outstanding preferred securities. No vote will be required,
however, for any changes that do not adversely affect the rights of holders of
preferred securities. All guarantees and agreements contained in the preferred
securities guarantee shall bind the successors, assignees, receivers, trustees
and representatives of FleetBoston and shall be for the benefit of the holders
of the preferred securities then outstanding.
TERMINATION
Each preferred securities guarantee will terminate upon full payment of the
redemption price of all preferred securities, upon distribution of the junior
subordinated debentures to the holders of the trust securities or upon full
payment of the amounts payable in accordance with the declaration upon
liquidation of such trust. 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 must restore payment of any sums paid under the
preferred securities or the preferred securities guarantee.
EVENTS OF DEFAULT
An event of default under a preferred securities guarantee will occur upon
the failure of FleetBoston to perform any of its payment or other obligations
under the preferred securities guarantee.
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 in respect of the preferred
securities guarantee or to direct the exercise of any trust or power conferred
upon the guarantee trustee under the preferred securities guarantee. Any holder
of preferred securities may institute a legal proceeding directly against
FleetBoston to enforce the guarantee trustee's rights and the obligations of
FleetBoston under the preferred securities guarantee, without first instituting
a legal proceeding against the relevant trust, the guarantee trustee or any
other person or entity.
STATUS OF THE PREFERRED SECURITIES GUARANTEES
The preferred securities guarantees will constitute unsecured obligations
of FleetBoston and will rank
- subordinate and junior in right of payment to all other liabilities of
FleetBoston, except those made equal or subordinate by their terms;
- equally with the most senior preferred or preference stock now or
hereafter issued by FleetBoston and with any guarantee now or hereafter
entered into by FleetBoston in respect of any preferred or preference
stock of any affiliate of FleetBoston; and
- senior to FleetBoston common stock.
The terms of the preferred securities provide that each holder of preferred
securities by acceptance of such securities agrees to the subordination
provisions and other terms of the preferred securities guarantee.
The preferred securities guarantees will constitute a guarantee of payment
and not of collection. This means that the guaranteed party may sue the
guarantor to enforce its rights under the guarantee without suing any other
person or entity.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
Prior to the occurrence of a default relating to a preferred securities
guarantee, the guarantee trustee undertakes to perform only such duties as are
specifically set forth in the preferred securities guarantee. After default, the
guarantee trustee will exercise the same degree
23
<PAGE> 86
of care as a prudent individual would exercise in the conduct of his or her own
affairs. Provided that the foregoing requirements have been met, the 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 indemnity satisfactory to it against the costs,
expenses and liabilities which might be incurred thereby.
FleetBoston or its affiliates maintain certain accounts and other banking
relationships with the guarantee trustee and its affiliates in the ordinary
course of business.
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 the trusts are to
issue the trust securities and to invest the proceeds from that 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, those payments will be sufficient to cover the
distributions and payments due on the trust securities. This is due to the
following factors:
- the aggregate principal amount of junior subordinated debentures will be
equal to the sum of the aggregate stated liquidation amount of the trust
securities;
- 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 trust securities;
- under the indenture, FleetBoston will pay, and the trusts will not be
obligated to pay, directly or indirectly, all costs, expenses, debts and
obligations of the trusts, other than those relating to the trust
securities; and
- the declaration further provides that the FleetBoston trustees may not
cause or permit the trusts to engage in any activity that is not
consistent with the purposes of the trusts.
Payments of distributions, to the extent there are available funds, and
other payments due on the preferred securities, to the extent there are
available funds, are guaranteed by FleetBoston to the extent described in this
prospectus. If FleetBoston does not make interest payments on the junior
subordinated debentures, the trust will not have sufficient funds to pay
distributions on the preferred securities. Each preferred securities guarantee
is a subordinated guarantee in relation to the preferred securities. The
preferred securities guarantee does not apply to any payment of distributions
unless and until the trust has sufficient funds for the payment of such
distributions. See "Description of the Preferred Securities Guarantees."
The preferred securities guarantees cover the payment of distributions and
other payments on the preferred securities only if and to the extent that
FleetBoston has made a payment of interest or principal or other payments on the
junior subordinated debentures. The preferred securities guarantees, when taken
together with FleetBoston's obligations under the junior subordinated debentures
and the indenture and its obligations under the declaration, will provide a full
and unconditional guarantee of distributions, redemption payments and
liquidation payments on the preferred securities.
If FleetBoston fails to make interest or other payments on the junior
subordinated debentures when due, taking account of any extension period, the
declaration allows the holders of the preferred securities to direct the
institutional trustee to enforce its rights under
24
<PAGE> 87
the junior subordinated debentures. If the institutional trustee fails to
enforce these rights, any holder of preferred securities may directly sue
FleetBoston to enforce such rights without first suing the institutional trustee
or any other person or entity. See "Description of the Preferred
Securities--Book Entry Only Issuance--The Depository Trust Company" and
"--Voting Rights" in the accompanying prospectus supplement.
A holder of preferred securities may institute a direct action if a
declaration event of default has occurred and is continuing and such event is
attributable to the failure of FleetBoston to pay interest or principal on the
junior subordinated debentures on the date such interest or principal is
otherwise payable. A direct action may be brought without first (1) directing
the institutional trustee to enforce the terms of the junior subordinated
debentures or (2) suing FleetBoston to enforce the institutional trustee's
rights under the junior subordinated debentures. In connection with such direct
action, FleetBoston will be subrogated to the rights of such holder of preferred
securities under the declaration to the extent of any payment made by
FleetBoston to such holder of preferred securities. Consequently, FleetBoston
will be entitled to payment of amounts that a holder of preferred securities
receives in respect of an unpaid distribution to the extent that such holder
receives or has already received full payment relating to such unpaid
distribution from a trust.
FleetBoston acknowledges that the guarantee trustee shall enforce the
preferred securities guarantees on behalf of the holders of the preferred
securities. If FleetBoston fails to make payments under the preferred securities
guarantees, the preferred securities guarantees allow the holders of the
preferred securities to direct the guarantee trustee to enforce its rights
thereunder. If the guarantee trustee fails to enforce the preferred securities
guarantees, any holder of preferred securities may directly sue FleetBoston to
enforce the guarantee trustee's rights under the preferred securities
guarantees. Such holder need not first sue the trust, the guarantee trustee, or
any other person or entity. A holder of preferred securities may also directly
sue FleetBoston to enforce such holder's right to receive payment under the
preferred securities guarantees. Such holder need not first (1) direct the
guarantee trustee to enforce the terms of the preferred securities guarantee or
(2) sue the trust or any other person or entity.
FleetBoston and the trusts believe that the above mechanisms and
obligations, taken together, are equivalent to a full and unconditional
guarantee by FleetBoston of payments due on the preferred securities. See
"Description of the Preferred Securities Guarantees--General."
PLAN OF DISTRIBUTION
FleetBoston may sell the junior subordinated debentures and any trust may
sell preferred securities in any of, or any combination of, the following ways:
- directly to purchasers;
- through agents, including BancBoston Robertson Stephens Inc.; and
- through underwriters or dealers, including BancBoston Robertson Stephens
Inc.
These underwriters, dealers or agents may be affiliates of FleetBoston, and
offers or sales of such securities may include secondary market transactions by
affiliates of FleetBoston.
Offers to purchase preferred securities may be solicited directly by
FleetBoston and/or any trust, as the case may be, or by agents designated by
FleetBoston and/or any 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 of 1933, involved in the offer or sale of the
25
<PAGE> 88
preferred securities in respect of which this
prospectus is delivered will be named, and any commissions payable by
FleetBoston 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 which is
ordinarily five business days or less. Agents, dealers and underwriters may be
customers of, engage in transactions with, or perform services for FleetBoston
in the ordinary course of business.
If an underwriter or underwriters are utilized in the sale, FleetBoston
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 preferred securities in respect of which
this prospectus is delivered to the public.
If a dealer is utilized in the sale of the preferred securities in respect
of which this prospectus is delivered, FleetBoston and/or any trust, as the case
may be, will sell such preferred securities to the dealer, as principal. The
dealer may then resell such preferred 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 FleetBoston and/or any trust, as the case may be, against
certain liabilities, including liabilities under the Securities Act of 1933.
This prospectus and related prospectus supplement may be used by direct or
indirect subsidiaries of FleetBoston 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 BancBoston Robertson Stephens Inc. or any other
affiliate or subsidiary of FleetBoston in the offer and sale of the preferred
securities will comply with the requirements of Rule 2720 of the Conduct Rules
of the National Association of Securities Dealers, Inc.
Underwriters, agents or their controlling persons may engage in
transactions with and perform services for FleetBoston in the ordinary course of
business.
Certain of the underwriters may use this prospectus and the accompanying
prospectus supplement for offers and sales related to market-making transactions
in the securities. These underwriters may act as principal or agent in these
transactions, and the sales will be made at prices related to prevailing market
prices at the time of sale.
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 trusts by Skadden, Arps,
Slate, Meagher & Flom LLP, special Delaware counsel to the trusts. The validity
of the junior subordinated debentures and the preferred securities guarantee and
certain matters relating thereto will be passed upon for FleetBoston and certain
United States federal income taxation matters will be passed upon for
FleetBoston and the 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 Bank (RI), National Association and
beneficially owns 9,856 shares of FleetBoston Common Stock. Certain legal
matters will be passed upon for the Underwriters by Skadden, Arps, Slate,
Meagher & Flom LLP, New York, New York.
26
<PAGE> 89
EXPERTS
Our supplemental consolidated financial statements incorporated in this
prospectus by reference to our Current Report on Form 8-K filed November 22,
1999 amending our Annual Report on Form 10-K for the year ended December 31,
1998 have been so incorporated by reference in this document in reliance on the
report of PricewaterhouseCoopers LLP, independent accountants, given upon the
authority of that firm as experts in accounting and auditing.
27
<PAGE> 90
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PREFERRED SECURITIES
FLEET BOSTON LOGO
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 BOSTON CORPORATION
------------------------
PROSPECTUS
------------------------
You should rely only on the information contained or incorporated by
reference in this prospectus. We have not authorized anyone to provide you with
different information.
We are not offering the securities in any state where the offer is not
permitted.
We do not claim the accuracy of the information in this prospectus as of
any date other than the dates stated on the cover.
, 1999
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 91
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE
MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT
AN OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY
THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS SUPPLEMENT DATED , 1999
PROSPECTUS SUPPLEMENT
(TO PROSPECTUS DATED , 1999)
FLEET BOSTON LOGO
$
PREFERRED SECURITIES
FLEET CAPITAL TRUST VI
% PREFERRED SECURITIES
(LIQUIDATION AMOUNT $ PER PREFERRED SECURITY)
FULLY AND UNCONDITIONALLY GUARANTEED BY
FLEET BOSTON CORPORATION
------------------------
THE TRUST:
Fleet Capital Trust VI is a Delaware business trust. The trust will:
- sell preferred securities representing undivided beneficial interests in
the trust to the public.
- sell common securities representing undivided beneficial interests in the
trust to Fleet Boston Corporation.
- use the proceeds from these sales to buy an equal principal amount of
junior subordinated debentures due of Fleet Boston Corporation.
- distribute the cash payments it receives on the junior subordinated
debentures it owns to the holders of the preferred and common securities.
QUARTERLY DISTRIBUTIONS:
- For each preferred security that you own, you will receive cumulative
cash distributions at an annual rate equal to % on the
liquidation amount of $ per preferred security, on ,
, and of each year, beginning
.
- Fleet Boston Corporation can defer interest payments on the junior
subordinated debentures at any time for up to 20 consecutive quarterly
periods. If Fleet Boston Corporation does defer interest payments, the
trust will also defer payment of distributions on the preferred and
common securities. However, deferred distributions will themselves accrue
interest at an annual rate equal to , compounded quarterly,
to the extent permitted by law.
FLEET BOSTON CORPORATION:
- Fleet Boston Corporation will fully and unconditionally guarantee the
payment by the trust of the preferred securities based on obligations
discussed in the accompanying prospectus.
The trust will apply to have the preferred securities listed on the New
York Stock Exchange under the symbol " ." If approved for listing, trading
is expected to commence within 30 days after the preferred securities are first
issued.
INVESTING IN THE PREFERRED SECURITIES INVOLVES RISKS WHICH ARE DESCRIBED IN
THE "RISK FACTORS" SECTION BEGINNING ON PAGE S-6 OF THIS PROSPECTUS SUPPLEMENT.
------------------------
Neither the SEC nor any state securities commission has approved or
disapproved of these securities or determined if this prospectus supplement or
the prospectus to which it relates is truthful or complete. Any representation
to the contrary is a criminal offense.
<TABLE>
<CAPTION>
PER PREFERRED SECURITY TOTAL
---------------------- ------------
<S> <C> <C>
Public offering price....................................... $ $
Underwriting commission to be paid by Fleet Boston
Corporation ................................................
Proceeds to the trust....................................... $ $
</TABLE>
The underwriters may also purchase up to an additional preferred
securities at the public offering price within 30 days from the date of this
prospectus supplement to cover over-allotment.
------------------------
The date of this prospectus supplement is .
<PAGE> 92
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
PROSPECTUS SUPPLEMENT RELATING TO PREFERRED SECURITIES OF
FLEET CAPITAL TRUST VI
Summary Information--Q&A.................................... S-3
Risk Factors................................................ S-6
Fleet Capital............................................... S-9
Supplemental Selected Consolidated Financial Data--Fleet
Boston Corporation........................................ S-10
Capitalization.............................................. S-12
Accounting Treatment........................................ S-14
Description of the Preferred Securities..................... S-14
Description of the Guarantee................................ S-25
Description of the Junior Subordinated Debentures........... S-25
Effect of Obligations under the Junior Subordinated
Debentures and the Guarantee.............................. S-34
United States Federal Income Taxation....................... S-35
ERISA Considerations........................................ S-39
Underwriting................................................ S-41
PROSPECTUS RELATING TO PREFERRED SECURITIES OF FLEET CAPITAL
TRUST VI
About This Prospectus....................................... 2
Where You Can Find More Information......................... 2
Forward-looking Statements.................................. 4
Fleet Boston Corporation.................................... 6
The Trusts.................................................. 7
Supplemental Consolidated Ratios of Earnings to Fixed
Charges................................................... 8
Use of Proceeds............................................. 8
Regulation and Supervision.................................. 8
Description of the Junior Subordinated Debentures........... 14
Description of the Preferred Securities..................... 18
Description of the Preferred Securities Guarantees.......... 21
Effect of Obligations Under the Junior Subordinated
Debentures and the Preferred Securities Guarantees........ 24
Plan of Distribution........................................ 25
Legal Matters............................................... 26
Experts..................................................... 27
</TABLE>
You should rely only on the information contained in this document or that
we have referred you to. We have not authorized anyone to provide you with any
other information.
The trust may sell preferred securities after the date of this prospectus
supplement, and this prospectus supplement and the prospectus may be delivered
to you after the date of this prospectus supplement. However, you should realize
that the affairs of FleetBoston or the trust may have changed since the date of
this prospectus supplement. This prospectus supplement will not reflect such
changes.
You should not consider this prospectus supplement or the prospectus to be
an offer or solicitation relating to the preferred securities in any
jurisdiction in which such an offer or solicitation is not authorized.
Furthermore, you should not consider this prospectus supplement or the
prospectus to be an offer or solicitation relating to the preferred securities
if the person making the offer or solicitation is not qualified to do so, or if
it is unlawful for you to receive such an offer or solicitation.
S-2
<PAGE> 93
SUMMARY INFORMATION--Q&A
The following information supplements, and should be read together with,
the information contained in other parts of this prospectus supplement and in
the accompanying prospectus. This summary highlights selected information from
this prospectus supplement and the accompanying prospectus to help you
understand the preferred securities. You should carefully read this prospectus
supplement and the accompanying prospectus to understand fully the terms of the
preferred securities, as well as the tax and other considerations that are
important to you in making a decision about whether to invest in the preferred
securities. You should pay special attention to the "Risk Factors" section
beginning on page S-6 of this prospectus supplement to determine whether an
investment in the preferred securities is appropriate for you. The preferred
securities are one of the series of preferred securities referred to in the
accompanying prospectus.
For your convenience, we make reference to specific page numbers in this
prospectus supplement and the accompanying prospectus for more detailed
information on some of the terms and concepts used throughout this prospectus
supplement.
WHAT ARE THE PREFERRED SECURITIES?
Each preferred security represents an undivided beneficial interest in the
assets of Fleet Capital Trust VI, "FLEET CAPITAL." Each preferred security will
entitle the holder to receive quarterly cash distributions as described in this
prospectus supplement. The underwriters are offering preferred securities at a
price of $ for each preferred security.
WHO IS FLEET CAPITAL?
Fleet Capital Trust VI is a Delaware business trust.
Fleet Capital will sell its preferred securities to the public and its
common securities to Fleet Boston Corporation, "FLEETBOSTON." The preferred
securities and the common securities together are referred to in this prospectus
supplement and the accompanying prospectus as the "TRUST SECURITIES." Fleet
Capital will use the proceeds from these sales to buy a series of Junior
Subordinated Debentures due from FleetBoston with the same financial terms
as the preferred securities. FleetBoston will, on a subordinated basis, fully
and unconditionally guarantee the payment by Fleet Capital of the preferred
securities, the "GUARANTEE."
There are five trustees of Fleet Capital. Three of Fleet Capital trustees
are officers of FleetBoston, the "REGULAR TRUSTEES." The Bank of New York will
act as the institutional trustee of Fleet Capital and one of its affiliates will
act as the Delaware trustee.
WHO IS FLEETBOSTON?
FleetBoston is a diversified financial services company, with consumer and
commercial platforms serving approximately 20 million customers nationally and
internationally. FleetBoston's lines of business include institutional and
investment banking, cash management, trade services, export finance, mortgage
banking, corporate finance, asset-based lending, commercial lending, real estate
lending, government banking, investment management services, equipment leasing,
credit cards; discount brokerage services, student loan processing, and
full-service banking in leading Latin American Markets.
WHEN WILL YOU RECEIVE QUARTERLY DISTRIBUTIONS?
If you purchase the preferred securities, you are entitled to receive
cumulative cash distributions at an annual rate of % of the liquidation
amount of $ per preferred security. Distributions will accumulate from the
date Fleet Capital issues the preferred securities and will be paid quarterly in
arrears on , , and of each
year, beginning .
S-3
<PAGE> 94
WHEN CAN PAYMENT OF YOUR DISTRIBUTIONS BE DEFERRED?
FleetBoston can, on one or more occasions, defer interest payments on the
junior subordinated debentures for up to 20 consecutive quarterly periods unless
an event of default under the junior subordinated debentures has occurred and is
continuing (see page S-29). A deferral of interest payments cannot extend,
however, beyond the maturity date of the junior subordinated debentures, which
is .
If FleetBoston defers interest payments on the junior subordinated
debentures, Fleet Capital will also defer distributions on the preferred
securities. During this deferral period, distributions will continue to accrue
on the preferred securities at an annual rate of % of the liquidation amount
of $ per preferred security. Also, the deferred distributions will
themselves accrue interest (to the extent permitted by law) at an annual rate of
%, compounded quarterly. Once FleetBoston makes all interest payments on
the junior subordinated debentures, with accrued interest, it can again postpone
interest payments on the junior subordinated debentures if no event of default
under the junior subordinated debentures has occurred and is continuing.
During any period in which FleetBoston defers interest payments on the
junior subordinated debentures, FleetBoston will not be permitted to:
- declare or pay a dividend or make any other payment or distribution on
its capital stock;
- redeem, purchase or make a liquidation payment on any of its capital
stock;
- make an interest, principal or premium payment on, or repurchase or
redeem, any of its debt securities that rank equal with or junior to the
junior subordinated debentures; or
- make any guarantee payments relating to any of the above.
There are limited exceptions to these restrictions which are described on page
S-29 and S-30.
If FleetBoston defers the payment of interest on the junior subordinated
debentures, the preferred securities will be treated as being reissued with
original issue discount for United States federal income tax purposes. This
means that, beginning at the time of deferral, you will be required to recognize
interest income with respect to distributions even during the period such
distributions are deferred and include such amounts in your gross income for
United States federal income tax purposes before you receive any cash
distributions relating to such interest payments. See "United States Federal
Income Taxation" beginning on page S-35.
WHEN CAN FLEET CAPITAL REDEEM THE PREFERRED SECURITIES?
Fleet Capital will redeem all of the outstanding preferred securities when
the junior subordinated debentures are paid at maturity on . In
addition, if FleetBoston redeems any junior subordinated debentures before their
maturity, Fleet Capital will use the cash it receives on the redemption of the
junior subordinated debentures to redeem, on a pro rata basis, preferred
securities and common securities having an aggregate liquidation amount equal to
the aggregate principal amount of the junior subordinated debentures redeemed.
FleetBoston can redeem some or all of the junior subordinated debentures
before their maturity at 100% of their principal amount plus accrued interest to
the date of redemption:
- on one or more occasions any time on or after ; and
- before , if specified changes in tax or regulatory law occur
(each of which is a "SPECIAL EVENT" and each of which is more fully
described on page S-28), and within 90 days of the occurrence of the
special event.
S-4
<PAGE> 95
Any redemption of the junior subordinated debentures may require approval
of the Board of Governors of the Federal Reserve System.
WHAT IS FLEETBOSTON'S GUARANTEE OF THE PREFERRED SECURITIES?
FleetBoston will fully and unconditionally guarantee the preferred
securities based on:
- its obligations under the guarantee; and
- its obligations under the declaration of trust which governs the terms of
the preferred securities (see page S-14); and
- its obligations under the indenture which governs the terms of the junior
subordinated debentures (see page S-25).
If FleetBoston does not make a payment on the junior subordinated
debentures, Fleet Capital will not have sufficient funds to make payments on the
preferred securities. The guarantee does not cover payments when Fleet Capital
does not have sufficient funds to make payments on the preferred securities.
FleetBoston's obligations under the guarantee are subordinate to its obligations
to make payments on all of its other liabilities except its obligations under
similar guarantees.
WHEN COULD THE JUNIOR SUBORDINATED DEBENTURES BE DISTRIBUTED TO YOU?
FleetBoston has the right to terminate Fleet Capital at any time. If
FleetBoston decides to exercise its right to terminate Fleet Capital, Fleet
Capital will redeem the preferred securities by distributing the junior
subordinated debentures to holders of the preferred securities and the common
securities on a pro rata basis.
Any distribution of the junior subordinated debentures may require approval
of the Board of Governors of the Federal Reserve System.
WILL THE PREFERRED SECURITIES BE LISTED ON A STOCK EXCHANGE?
The trust has applied to have the preferred securities listed on the NYSE
under the symbol " ". If approved for listing, trading is expected to
commence within 30 days after the preferred securities are first issued. You
should be aware that the listing of the preferred securities will not
necessarily assure that a liquid trading market will be available for the
preferred securities. If the trust distributes the junior subordinated
debentures, FleetBoston will use its best efforts to list the junior
subordinated debentures on the NYSE or any other exchange or other organization
on which the preferred securities are then listed.
WHAT HAPPENS IF FLEET CAPITAL IS TERMINATED AND THE JUNIOR SUBORDINATED
DEBENTURES ARE NOT DISTRIBUTED?
Fleet Capital may also terminate in circumstances where the junior
subordinated debentures will not be distributed. In those situations, Fleet
Capital will pay the liquidation amount of for each preferred security plus
unpaid distributions to the date such payment is made. Fleet Capital will be
able to make this distribution of cash only if the junior subordinated
debentures are redeemed by FleetBoston.
IN WHAT FORM WILL THE PREFERRED SECURITIES BE ISSUED?
The preferred securities will be represented by one or more global
securities that will be deposited with and registered in the name of The
Depository Trust Company, New York, New York, "DTC," or its nominee. This means
that you will not receive a certificate for your preferred securities. Fleet
Capital expects that the preferred securities will be ready for delivery through
DTC on or about .
S-5
<PAGE> 96
RISK FACTORS
Your investment in the preferred securities will involve some risks. You
should carefully consider the following discussion of risks, and the other
information in this prospectus supplement and the accompanying prospectus,
before deciding whether an investment in the preferred securities is suitable
for you.
FLEETBOSTON'S OBLIGATIONS UNDER THE GUARANTEE AND THE JUNIOR SUBORDINATED
DEBENTURES ARE SUBORDINATED.
FleetBoston's obligations under the guarantee are unsecured and will rank
in priority of payment:
- junior to all of FleetBoston's other liabilities, except those
liabilities made equal or junior to the guarantee by their terms;
- equal with all of FleetBoston's senior most preferred and preference
stock now or in the future issued by it, and with any guarantee now or in
the future issued by it in respect of any preferred or preference stock
of any of its affiliates, including FleetBoston's guarantee of the
outstanding preferred or capital securities of Fleet Capital Trust I,
Fleet Capital Trust II, Fleet Capital Trust III, Fleet Capital Trust IV
and Fleet Capital Trust V; and
- senior to Fleet's common stock.
This means that Fleet cannot make any payments on the guarantee if it
defaults on a payment of any of its other liabilities, except those liabilities
made equal or junior to the guarantee by their terms. In the event of the
bankruptcy, liquidation or dissolution of Fleet, its assets would be available
to pay obligations under the guarantee only after all payments had been made on
its other liabilities, except those liabilities made equal or junior to the
guarantee by their terms.
FleetBoston's obligations under the junior subordinated debentures are
unsecured and will rank junior in priority of payment to FleetBoston's "SENIOR
INDEBTEDNESS" and "OTHER FINANCIAL OBLIGATIONS" (see page S-27 for definitions
of these terms). This means that FleetBoston cannot make any payments of
principal, including redemption payments, or interest on the junior subordinated
debentures if it defaults on a payment on its senior indebtedness or other
financial obligations. This also means that in the event of the bankruptcy,
liquidation or dissolution of FleetBoston, its assets would be available to pay
obligations under the junior subordinated debentures only after all payments had
been made on its senior indebtedness and other financial obligations. As of
September 30, 1999, senior indebtedness and other financial obligations of
FleetBoston aggregated approximately $8.5 billion (holding company only). In
addition, because FleetBoston is a bank holding company, the junior subordinated
debentures are effectively subordinated to all existing and future liabilities
of FleetBoston's subsidiaries, including depositors.
The preferred securities, the guarantee and the junior subordinated
debentures do not limit the ability of FleetBoston and its subsidiaries to incur
additional indebtedness, including indebtedness that ranks senior in priority of
payment to the junior subordinated debentures and the guarantee.
For more information please refer to "Description of the Junior
Subordinated Debentures -- Subordination" beginning on page S-25 and
"Description of the Preferred Securities Guarantees" beginning on page 21 of the
accompanying prospectus.
GUARANTEE ONLY COVERS PAYMENTS IF FLEET CAPITAL HAS CASH AVAILABLE
The ability of Fleet Capital to pay scheduled distributions on the
preferred securities, the redemption price of the preferred securities and the
liquidation amount of each preferred security is solely dependent upon
FleetBoston making the related payments on the junior subordinated debentures
when due.
If FleetBoston defaults on its obligation to pay principal or interest on
the junior subordinated debentures, Fleet Capital will not have sufficient funds
to pay distributions, the redemption price or the liquidation amount of each
preferred security. In those circumstances, you will not be able to rely upon
the guarantee for payment of these amounts.
S-6
<PAGE> 97
Instead, you:
- may directly sue FleetBoston or seek other remedies to collect your pro
rata share of payments owed; or
- rely on the institutional trustee to enforce Fleet Capital's rights under
the junior subordinated debentures.
FLEET'S ABILITY TO DEFER DISTRIBUTIONS WILL CAUSE CASH PAYMENTS TO CEASE, WILL
HAVE FEDERAL INCOME TAX CONSEQUENCES FOR YOU AND MAY AFFECT THE TRADING PRICE OF
THE PREFERRED SECURITIES
If no event of default under the junior subordinated debentures has
occurred and is continuing, FleetBoston can, on one or more occasions, defer
interest payments on the junior subordinated debentures for up to 20 consecutive
quarterly periods. If FleetBoston defers interest payments on the junior
subordinated debentures, Fleet Capital will defer distributions on the preferred
securities during any deferral period. However, distributions would still
accumulate and those deferred distributions will themselves accrue interest at
an annual rate of %, to the extent permitted by law.
If FleetBoston defers the payment of interest on the junior subordinated
debentures, you will be required to recognize interest income for United States
federal income tax purposes in respect of your pro rata share of the interest on
the junior subordinated debentures held by Fleet Capital before you receive any
cash distributions relating to those interest payments. In addition, if you sell
the preferred securities before the end of any deferral period or before the
record date relating to distributions which are paid, you will not receive the
cash distributions relating to any accrued and unpaid interest even though you
will be required to recognize such interest in income for United States federal
income tax purposes.
FleetBoston has no current intention of deferring interest payments on the
junior subordinated debentures. However, if FleetBoston exercises its right in
the future, the preferred securities may trade at a price that does not fully
reflect the value of accrued but unpaid interest on the junior subordinated
debentures. If you sell the preferred securities during an interest deferral
period, you may not receive the same return on your investment as someone who
continues to hold the preferred securities. In addition, the existence of
FleetBoston's right to defer payments of interest on the junior subordinated
debentures may mean that the market price for the preferred securities, which
represent an undivided beneficial interest in the junior subordinated
debentures, may be more volatile than other securities that do not have these
rights.
See "United States Federal Income Taxation" beginning on page S-35 for more
information regarding the United States federal income tax consequences of
purchasing, holding and selling the preferred securities.
PREFERRED SECURITIES MAY BE REDEEMED BEFORE IF A SPECIAL EVENT OCCURS
If a special event occurs and is continuing, FleetBoston has the right to
redeem all of the junior subordinated debentures. The "special events" are
defined on page S-28. If such a redemption happens, Fleet Capital will use the
cash it receives on the redemption of the junior subordinated debentures to
redeem all of the preferred and common securities within 90 days of the event.
Please see "Description of the Preferred Securities -- Redemption
Procedures" on page S-17 and "Description of the Junior Subordinated
Debentures -- Optional Redemption" beginning on page S-28 for more information.
DISTRIBUTION OF JUNIOR SUBORDINATED DEBENTURES MAY HAVE A POSSIBLE ADVERSE
EFFECT ON TRADING PRICE
FleetBoston has the right to terminate Fleet Capital at any time. If
FleetBoston decides to exercise its right to terminate Fleet Capital, Fleet
Capital will redeem the preferred and common securities by distributing the
junior subordinated debentures to holders of the preferred securities and common
securities on a pro rata basis. Any distribution of the junior subordinated
debentures may require approval of the Board of Governors of the Federal Reserve
System.
S-7
<PAGE> 98
Under current United States federal income tax laws, a distribution of
junior subordinated debentures to you on the dissolution of Fleet Capital should
not be a taxable event to you. However, if Fleet Capital is characterized for
United States federal income tax purposes as an association taxable as a
corporation or there is a change in law at the time Fleet Capital is dissolved,
the distribution of junior subordinated debentures to you may be a taxable event
to you.
FleetBoston has no current intention of causing the termination of Fleet
Capital and the distribution of the junior subordinated debentures. FleetBoston
anticipates that it would consider exercising this right in the event that
expenses associated with maintaining Fleet Capital were substantially greater
than currently expected, such as if a special event occurred. FleetBoston cannot
predict the other circumstances under which this right would be exercised.
FleetBoston cannot predict the market prices for the junior subordinated
debentures that may be distributed. Accordingly, the junior subordinated
debentures that you receive on a distribution, or the preferred securities you
hold pending such a distribution, may trade at a discount to the price that you
paid to purchase the preferred securities.
Because you may receive junior subordinated debentures, you should make an
investment decision with regard to the junior subordinated debentures, in
addition to the preferred securities. You should carefully review all the
information regarding the junior subordinated debentures contained in this
prospectus supplement and the accompanying prospectus.
LIMITED VOTING RIGHTS
You will have limited voting rights. In particular, only FleetBoston can
elect or remove any of Fleet Capital's trustees.
See "Fleet Capital" on page S-9 and "Description of the Preferred
Securities -- Voting Rights" beginning on page 18 in the accompanying
prospectus.
TRADING PRICE OF THE PREFERRED SECURITIES MAY NOT REFLECT THE VALUE OF ACCRUED
BUT UNPAID INTEREST
If you use the accrual method of accounting for tax purposes and dispose of
your preferred securities between quarterly distributions, you will be required
to:
- include accrued but unpaid interest as ordinary income for United States
federal tax purposes; and
- add the accrued but unpaid income to your adjusted tax basis in the
preferred securities disposed of.
If you sell the preferred securities for less than your adjusted tax basis
in the preferred securities, you will recognize a loss which generally may not
be used to offset ordinary income for United States federal tax purposes. See
"United States Federal Income Taxation" beginning on page S-35.
THERE IS NOT AN ESTABLISHED TRADING MARKET FOR THE PREFERRED SECURITIES
The preferred securities are a new issue of securities of Fleet Capital
with no established trading market. Fleet Capital cannot assure you that an
active trading market for the preferred securities will develop or be sustained
in the future. While the underwriters have indicated to FleetBoston and Fleet
Capital their intention to create a market for the preferred securities, they
are not obligated to do so and may discontinue market-making at any time without
notice. As a result, you may have difficulty selling or otherwise disposing of
the preferred securities.
NO PROTECTION IN HIGHLY LEVERAGED TRANSACTIONS
Under the indenture which governs the terms of the junior subordinated
debentures, you will not be protected from a highly leveraged transaction,
including a change of control of FleetBoston or other similar transaction. Such
a transaction may have the effect of increasing FleetBoston's liabilities that
are senior to the junior subordinated debentures.
S-8
<PAGE> 99
FLEET CAPITAL
This section supplements, and to the extent inconsistent with, replaces the
section entitled "The Trusts" in the accompanying Prospectus.
Fleet Capital is a statutory business trust formed under Delaware law
pursuant to:
- a declaration of trust, dated as of March 16, 1998, as amended, executed
by FleetBoston, as sponsor, and the trustees of Fleet Capital, the "FLEET
CAPITAL TRUSTEES;" and
- the filing of a certificate of trust with the Secretary of State of the
State of Delaware on March 16, 1998, as amended.
The 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 which contains this prospectus supplement and the
accompanying prospectus. The declaration will be qualified as an indenture under
the Trust Indenture Act of 1939, as amended, the "TRUST INDENTURE ACT."
Fleet Capital exists for the exclusive purposes of:
(1) issuing the trust securities representing undivided beneficial
interests in the assets of Fleet Capital;
(2) investing the gross proceeds of the trust securities in the junior
subordinated debentures; and
(3) engaging only in other necessary or incidental activities.
Upon issuance of the preferred securities, the purchasers will own all of
the preferred securities. See "Description of the Preferred
Securities -- Book-Entry Only Issuance -- The Depository Trust Company."
FleetBoston 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.
Pursuant to the declaration, the number of Fleet Capital trustees will
initially be five. FleetBoston, 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. Three of the FleetBoston Capital trustees, the "REGULAR TRUSTEES,"
will be persons who are employees or officers of, or who are affiliated with,
FleetBoston. The fourth trustee will be a financial institution that is
unaffiliated with FleetBoston which 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 Bank of New York 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 Bank of New York will act as trustee
under the guarantee, the "GUARANTEE TRUSTEE," and as trustee under the indenture
which governs the junior subordinated debentures, the "DEBT TRUSTEE." The fifth
trustee will be an entity that maintains its principal place of business in the
state of Delaware. Initially, The Bank of New York (Delaware), an affiliate of
the institutional trustee, will act as Delaware trustee.
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 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 that account.
The guarantee trustee will hold the guarantee for the benefit of the
holders of the preferred securities.
FleetBoston 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" on page S-32.
S-9
<PAGE> 100
SUPPLEMENTAL SELECTED CONSOLIDATED FINANCIAL DATA
FLEET BOSTON CORPORATION
The following unaudited consolidated summary sets forth supplemental
selected financial data for FleetBoston and its subsidiaries for the nine months
ended September 30, 1999 and 1998 and for each of the years in the five-year
period ending December 31, 1998. The following summary should be read in
conjunction with the supplemental financial information incorporated herein by
reference to other documents. See "Where You Can Find More Information" in the
accompanying prospectus. The summary for the nine months ended September 30,
1999 and 1998 is based on unaudited financial statements which include all
adjustments that, in the opinion of management of FleetBoston, are necessary for
a fair presentation of the results of the respective interim periods. The
results of operations for the nine months ended September 30, 1999 are not
necessarily indicative of the results expected for 1999 or any other interim
period. All data has been restated to reflect the BankBoston merger, accounted
for as a pooling of interests. Certain amounts in prior periods have been
reclassified to conform to current-year presentation. All per common share
amounts and associated ratios have been adjusted to reflect FleetBoston's
two-for-one common stock split during 1998.
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30, YEARS ENDED DECEMBER 31,
------------------- --------------------------------------------------------
1999 1998 1998 1997 1996 1995 1994
-------- -------- -------- -------- -------- -------- --------
(DOLLARS IN MILLIONS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
CONSOLIDATED SUMMARY OF OPERATIONS:
Interest income (fully taxable equivalent)....... $ 9,719 $ 9,217 $ 12,400 $ 11,319 $ 10,977 $ 11,398 $ 9,780
Interest expense............................... 4,608 4,437 5,946 5,127 5,119 6,009 4,584
-------- -------- -------- -------- -------- -------- --------
Net interest income (fully taxable
equivalent).................................. 5,111 4,780 6,454 6,192 5,858 5,389 5,196
Provision for credit losses.................... 688 590 850 522 444 376 219
-------- -------- -------- -------- -------- -------- --------
Net interest income after provision for credit
losses (fully taxable equivalent)............ 4,423 4,190 5,604 5,670 5,414 5,013 4,977
Noninterest income............................. 5,001 3,788 5,281 4,206 3,658 3,237 2,683
Noninterest expense............................ 6,032 5,159 7,050 6,050 5,831 5,831 5,168
Net income..................................... 2,072 1,702 2,324 2,246 1,860(a) 1,351(b) 1,428
PER COMMON SHARE(d):
Basic earnings per share....................... $ 2.20 $ 1.81 $ 2.47 $ 2.39 $ 1.88(a) $ 1.25(b) $ 1.54
Diluted earnings per share..................... 2.15 1.76 2.41 2.33 1.84(a) 1.19(b) 1.45
Weighted average basic shares outstanding (in
thousands)................................... 920,667 915,578 916,123 902,442 932,575 895,370 882,131
Weighted average diluted shares outstanding (in
thousands)................................... 944,996 938,242 939,136 924,021 949,824 943,344 935,832
Book value..................................... $ 16.01 $ 14.38 $ 14.70 $ 13.23 $ 12.08 $ 11.15 $ 9.85
Cash dividends declared........................ .81 .735 1.00 .92 .87 .82 .70
Common dividend payout ratio................... 36.79% 40.43% 40.15% 35.55% 40.71% 50.76% 32.13%
RATIO OF EARNINGS TO FIXED CHARGES:
Excluding interest on deposits................. 2.62x 2.60x 2.62x 3.00x 2.79x 1.91x 2.11x
Including interest on deposits................. 1.72 1.62 1.62 1.72 1.61 1.39 1.52
RATIO OF EARNINGS TO FIXED CHARGES AND DIVIDENDS
ON PREFERRED STOCK:
Excluding interest on deposits................. 2.57x 2.53x 2.55x 2.85x 2.62x 1.87x 2.05x
Including interest on deposits................. 1.71 1.61 1.62 1.70 1.59 1.38 1.51
CONSOLIDATED BALANCE SHEET--AVERAGE BALANCES:
Total assets................................... $187,128 $167,959 $170,228 $151,886 $146,108 $141,543 $135,532
Securities held to maturity.................... 1,681 1,891 1,874 2,000 1,852 11,777 12,985
Securities available for sale.................. 22,773 19,597 19,853 16,321 17,525 16,244 19,198
Loans and leases, net of unearned income....... 116,873 109,905 111,039 102,369 97,598 90,447 80,771
Due from brokers/dealers....................... 3,289 3,869 3,765 2,884 2,179 1,926 1,606
</TABLE>
S-10
<PAGE> 101
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30, YEARS ENDED DECEMBER 31,
------------------- --------------------------------------------------------
1999 1998 1998 1997 1996 1995 1994
-------- -------- -------- -------- -------- -------- --------
(DOLLARS IN MILLIONS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
Interest-bearing deposit liabilities............. 90,976 87,533 88,634 82,437 81,824 74,828 71,049
Short-term borrowings.......................... 23,037 21,598 21,669 17,127 15,099 23,919 23,825
Due to brokers/dealers......................... 4,080 4,693 4,501 3,463 2,645 2,341 1,821
Long-term debt(e).............................. 21,311 10,111 10,962 7,993 8,158 8,741 7,506
Stockholders' equity........................... 14,621 13,566 13,674 12,188 12,139 10,885 9,785
CONSOLIDATED RATIOS:
Net interest margin (fully taxable
equivalent).................................. 4.27% 4.40% 4.40% 4.68% 4.57% 4.24% 4.26%
Return on average assets....................... 1.47 1.35 1.37 1.48 1.27(a) .95(b) 1.05
Return on average common stockholders'
equity....................................... 19.42 17.45 17.64 19.71 16.31(a) 13.16(b) 15.60
Average stockholders' equity to
average assets............................... 7.81 8.08 8.03 8.02 8.31 7.69 7.22
Tier 1 risk-based capital ratio................ 7.14 6.90 7.11 7.55 8.30 7.97 8.52
Total risk-based capital ratio................. 11.28 11.30 11.51 11.31 12.18 11.91 12.82
Period-end reserve for credit losses to
period-end loans and leases, net of unearned
income....................................... 2.10 2.01 2.06 2.01 2.35 2.42 2.75
Net charge-offs to average loans and leases,
net of unearned income....................... .74 .71 .75 .64 .61 .55 .51
Period-end nonperforming assets to period-end
loans and leases, net of unearned income and
other real estate owned(c)................... .66 .60 .61 .72 1.16 1.03 1.56
</TABLE>
- ---------------
(a) Includes impact of merger-related charges ($180 million pre-tax, $117
million post-tax) recorded in 1996.
(b) Includes impact of the loss on assets held for sale by accelerated
disposition ($175 million pre-tax, $112 million post-tax) and merger-related
charges ($490 million pre-tax, $317 million post-tax) recorded in 1995.
(c) Excludes $113 million, $126 million, $46 million, $214 million, $265 million
and $317 million of nonperforming assets reclassified to held for sale by
accelerated disposition at September 30, 1999 and 1998, and December 31,
1998, 1997, 1996 and 1995, respectively. Including such amounts, the ratios
would have been .75%, .71%, .65%, .92%, 1.43% and 1.37% at September 30,
1999 and 1998, and December 31, 1998, 1997, 1996 and 1995, respectively.
(d) All per share and average share information has been adjusted to reflect
FleetBoston's two-for-one common stock split during 1998.
(e) Amounts include guaranteed preferred beneficial interests in FleetBoston's
junior subordinated debentures.
S-11
<PAGE> 102
CAPITALIZATION
The following table sets forth the actual consolidated capitalization of
FleetBoston and its subsidiaries at September 30, 1999, and FleetBoston's
capitalization as of such date as adjusted to reflect the December 1, 1999 sale
of $500 million of 7.375% subordinated notes due 2009 as well as the sale of the
preferred securities offered hereby. The table should be read in conjunction
with FleetBoston's supplemental consolidated financial statements and notes
thereto included in the documents incorporated by reference herein. All data has
been restated to give effect to the BankBoston merger. See "Where You Can Find
More Information" in the accompanying prospectus.
<TABLE>
<CAPTION>
ACTUAL AS ADJUSTED
------- -----------
AT SEPTEMBER 30, 1999
----------------------
(DOLLARS IN MILLIONS)
<S> <C> <C>
Senior and subordinated debt................................ $23,391 $23,891
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 capital securities of
Fleet Capital Trust V(5).................................. 250 250
Company-obligated mandatory redeemable preferred securities
of Fleet Capital Trust VI(6).............................. --
Company-obligated mandatorily redeemable preferred
securities of BankBoston Capital Trust I(7)............... 250 250
Company-obligated mandatorily redeemable preferred
securities of BankBoston Capital Trust II(8).............. 250 250
Company-obligated mandatorily redeemable preferred
securities of BankBoston Capital Trust III(9)............. 248 248
Company-obligated mandatorily redeemable preferred
securities of BankBoston Capital Trust IV(10)............. 247 247
------- -------
Total long-term debt........................................ 25,240
STOCKHOLDERS' EQUITY
Preferred stock, $1.00 par value............................ 691 691
Common stock, $.01 par value................................ 9 9
Common surplus.............................................. 4,749 4,749
Retained earnings........................................... 10,465 10,465
Accumulated other comprehensive income...................... (48) (48)
Treasury stock.............................................. (409) (409)
------- -------
Total stockholders' equity.................................. 15,457 15,457
------- -------
Total long-term debt and stockholders' equity............... $40,697 $
======= =======
</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.
FleetBoston owns all of the common securities of this trust. Upon
redemption of the 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. FleetBoston owns all of the common securities of this
trust. Upon redemption of the 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. FleetBoston owns all of the common securities of this
trust. Upon redemption of the debentures, the preferred securities are
mandatorily redeemable.
(4) Issued on April 28, 1998. The sole assets of Fleet Capital Trust IV are
7.17% Junior Subordinated Deferrable Interest Debentures with a principal
amount of approximately $154.6 million. Such debentures mature on March 31,
2028. FleetBoston owns all of the Common Securities of this trust. Upon
redemption of the debentures, the preferred securities are mandatorily
redeemable.
(5) Issued on December 18, 1998. The sole assets of Fleet Capital Trust V are
Floating Rate Junior Subordinated Deferrable Interest Debentures due 2028
with a principal amount of approximately $257.7 million. Such debentures
mature on December 18, 2028. FleetBoston owns all of the common securities
of this trust. Upon redemption of the debentures, the preferred securities
are mandatorily redeemable.
(6) As described in this prospectus supplement, 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 an annual rate equal to % on
S-12
<PAGE> 103
the liquidation amount of $ per preferred security and will mature on
. FleetBoston owns all of the common securities of Fleet
Capital. Upon redemption of the junior subordinated debentures, the
preferred securities will be mandatorily redeemable.
(7) Issued on November 26, 1996. The sole assets of BKB Capital Trust I are
8.25% Series A Junior Subordinated Deferrable Interest Debentures due
December 15, 2026 with a principal amount of approximately $258.6 million.
FleetBoston owns all of the common securities of this trust. Upon
redemption of the debentures, the preferred securities are mandatorily
redeemable.
(8) Issued on April 8, 1997. The sole assets of BKB Capital Trust II are 7.75%
Series A Junior Subordinated Deferrable Interest Debentures due December
15, 2026 with a principal amount of approximately $258.6 million.
FleetBoston owns all of the common securities of this trust. Upon
redemption of the debentures, the preferred securities are mandatorily
redeemable.
(9) Issued on June 4, 1997. The sole assets of BKB Capital Trust III are
Floating Rate Junior Subordinated Deferrable Interest Debentures due June
15, 2027 with a principal amount of approximately $255.9 million.
FleetBoston owns all of the common securities of this trust. Upon
redemption of the debentures, the preferred securities are mandatorily
redeemable.
(10) Issued on June 8, 1998. The sole assets of BKB Capital Trust IV are
Floating Rate Junior Subordinated Deferrable Interest Debentures due June
8, 2028 with a principal amount of approximately $255.9 million.
FleetBoston owns all of the common securities of this trust. Upon
redemption of the debentures, the preferred securities are mandatorily
redeemable.
S-13
<PAGE> 104
ACCOUNTING TREATMENT
The financial statements of Fleet Capital will be consolidated into
FleetBoston's consolidated financial statements, with the preferred securities
classified as a component of long-term debt of FleetBoston. The financial
statement footnotes of FleetBoston will reflect that the sole asset of Fleet
Capital will be $ million principal amount of the junior subordinated
debentures, bearing interest at an annual rate equal to and
maturing on . All future reports filed by FleetBoston under the
Securities Exchange Act of 1934 will present information regarding Fleet Capital
and other similar FleetBoston trusts in the manner described above. In addition,
a footnote to FleetBoston's audited financial statements will reflect that:
(1) Fleet Capital and such other trusts are wholly-owned by FleetBoston;
(2) 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
(3) the guarantee, when taken together with FleetBoston'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
FleetBoston 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."
DESCRIPTION OF THE PREFERRED SECURITIES
The preferred securities will be issued pursuant to the terms of an amended
and restated declaration of trust. The declaration will be qualified as an
indenture under the Trust Indenture Act. The institutional trustee, The Bank of
New York, will act as 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.
Set forth below is a summary of the material terms and provisions of the
preferred securities. This summary supplements, and to the extent inconsistent,
replaces, the description set forth under the caption "Description of the
Preferred Securities" in the accompanying prospectus. This summary, which
describes the material provisions of the preferred securities, is not intended
to be complete and is qualified by the declaration, the form of which is filed
as an exhibit to the registration statement which contains this prospectus
supplement, the Delaware Business Trust Act and the Trust Indenture Act.
GENERAL
The declaration authorizes the regular trustees to issue the trust
securities on behalf of Fleet Capital. The trust securities represent undivided
beneficial interests in the assets of Fleet Capital. All of the common
securities will be owned, directly or indirectly, by FleetBoston. The common
securities rank equally, and payments will be made on a pro rata basis, with the
preferred securities. However, if a "DECLARATION EVENT OF DEFAULT" as defined
under "Declaration Events of Default" on page S-19, occurs and is continuing,
the rights of the holders of the common securities to receive payments will be
subordinated to the rights of the holders of the preferred securities.
S-14
<PAGE> 105
The declaration does not permit Fleet Capital to issue any securities other
than the trust securities or to incur any indebtedness. Under 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.
Payments on the preferred securities are guaranteed by FleetBoston to the
extent described under "Description of the Preferred Securities Guarantees" in
the accompanying prospectus. The guarantee will be held by The Bank of New York,
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 those 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 or, if there is a default in the payment of
distributions, including when Fleet Capital does not have sufficient available
funds to pay such distribution, the holder may take "DIRECT ACTION," as defined
in the accompanying prospectus on page 18. See "Voting Rights" and "Declaration
Events of Default" below and "Description of the Preferred Securities--Voting
Rights" in the accompanying prospectus beginning on page 18.
DISTRIBUTIONS
Distributions on the preferred securities will be fixed at an annual rate
equal to on the liquidation amount of $ per preferred
security. Distributions which are unpaid for more than one quarter will bear
interest at that same rate, compounded quarterly. The term "distribution" as
used in this prospectus supplement and the accompanying prospectus includes any
interest payable on unpaid distributions 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. The amount of distributions
payable for any period shorter than a full quarterly period will be computed on
the basis of the actual number of days elapsed per 30-day month. If any
distribution payment date is not a business day, then such distribution will be
made on the next succeeding day that is a business day and without any interest
or other payment in respect of the delay. However, if the next business day is
in the next calendar year, payment of distributions will be made on the
preceding business day.
Distributions on the preferred securities:
(1) will be cumulative;
(2) will accrue from ; and
(3) except as otherwise described below, will be payable quarterly in
arrears on , , and of each
year, commencing .
As long as FleetBoston is not in default in the payment of interest on the
junior subordinated debentures, FleetBoston may defer payments of interest on
the junior subordinated debentures by extending the interest payment period from
time to time on the junior subordinated debentures, an "EXTENSION PERIOD." If
FleetBoston exercises this extension option, quarterly distributions on the
preferred securities would also be deferred during any such extension period.
Because interest would continue to accrue on the junior subordinated debentures,
any deferred distributions would also continue to accrue with interest at an
annual rate equal to % percent per annum compounded quarterly. This
right to extend the interest payment period for the junior subordinated
debentures is limited to a period not exceeding 20 consecutive quarters, and may
not 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, FleetBoston 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."
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If FleetBoston exercises this deferral right, then during any extension
period:
(1) FleetBoston shall not declare or pay any dividend on, make any
distributions with respect to, or redeem, purchase, acquire, or make a
liquidation payment relating to, any of its capital stock other than:
- repurchases, redemptions or other acquisitions of shares of capital
stock of FleetBoston in connection with any employee benefit plans
or any other contractual obligation of FleetBoston, other than a
contractual obligation ranking equally with or junior to the junior
subordinated debentures;
- as a result of an exchange or conversion of any class or series of
FleetBoston's capital stock for any other class or series of
FleetBoston's capital stock; or
- 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;
(2) FleetBoston shall not make any payment of interest, principal or
premium, if any, on or repay, repurchase or redeem any debt securities
issued by FleetBoston which rank equally with or junior to the junior
subordinated debentures; and
(3) FleetBoston shall not make any guarantee payments with respect to the
foregoing, other than pursuant to the guarantee.
If distributions are deferred, the deferred distributions and accrued but
unpaid interest shall be paid to holders of the preferred securities as they
appear on the books and records of Fleet Capital 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 those
distributions. Fleet Capital's funds available for distribution to the holders
of the preferred securities will be limited to payments received from
FleetBoston 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 FleetBoston to the extent set forth under
"Description of the Preferred Securities Guarantees" beginning on page 20 in the
accompanying prospectus.
PAYMENT AND RECORD DATES
Distributions will be payable to the holders of the preferred securities as
they appear on the books and records of Fleet Capital on the relevant record
dates. As long as the preferred securities are in book-entry form, the record
date will be one business day prior to the relevant payment date. A "BUSINESS
DAY" is any day other than Saturday, Sunday or any other day on which banking
institutions in New York City (in the State of New York) are permitted or
required by any applicable law to close. If the preferred securities are not in
book-entry form, the record date will be the 15th day of the month in which the
relevant payment date occurs. The record dates and payment dates for the
preferred securities are the same as the record dates and payment dates for the
junior subordinated debentures.
If Fleet Capital does not pay a distribution because FleetBoston fails to
make the corresponding interest payment on the junior subordinated debentures,
that defaulted distribution will be payable to the person in whose name the
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. This means
that the defaulted distribution will not be paid to the person in whose name
such preferred security is registered on the original record date. However,
distributions shall not be
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considered payable on any distribution payment date falling within an extension
period unless FleetBoston 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
institutional trustee, who will hold amounts received on the junior subordinated
debentures for the benefit of the holders of the trust securities. Subject to
any applicable laws and regulations and the provisions of the declaration, each
payment of distributions will be made as described under "Book-Entry Only
Issuance--The Depository Trust Company" below.
If any date on which distributions are to be made on the preferred
securities is not a business day, then payment will be made on the next
succeeding day which is a business day and without any interest or other payment
in respect of the delay. However, if the next business day is in the next
calendar year, payment of distributions will be made on the preceding business
day.
REDEMPTION
The stated maturity of the junior subordinated debentures is .
The junior subordinated debentures will be redeemable prior to the stated
maturity at the option of FleetBoston at a redemption price equal to 100% of the
principal amount, plus accrued interest to the date of redemption:
(1) in whole or in part, from time to time, on or after ; or
(2) at any time prior to , in whole but not in part, upon the
occurrence and continuation of a special event as defined under
"Description of the Junior Subordinated Debentures--Optional
Redemption" on page S-28.
The proceeds from any repayment or redemption of the junior subordinated
debentures will simultaneously be used to redeem trust securities having an
aggregate liquidation amount equal to the aggregate principal amount of the
junior subordinated debentures so repaid or redeemed, the "REDEMPTION PRICE."
Holders of trust securities must be given not less than 30 nor more than 60
days' notice of any early 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" beginning on page S-22. Any early
redemption may require prior approval of the Federal Reserve Board if 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 of the preferred securities
and FleetBoston has paid to Fleet Capital a sufficient amount of cash in
connection with the related redemption or maturity of the junior subordinated
debentures, then immediately prior to the close of business on the redemption
date:
(1) distributions will cease to accrue on the preferred securities called
for redemption;
(2) the preferred securities called for redemption shall no longer be
deemed to be outstanding; and
(3) all rights of holders of the preferred securities called for redemption
will cease, except the right of the holders of those preferred
securities to receive the redemption price, but without interest.
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Any notice of redemption will be irrevocable. If any date fixed for
redemption of preferred securities is not a business day, then the redemption
date will be postponed to the next succeeding day that is a business day.
If FleetBoston fails to repay junior subordinated debentures on maturity or
on the date fixed for a redemption or if payment of the redemption price is
improperly withheld or refused and not paid by Fleet Capital or by FleetBoston
under its guarantee, distributions on those 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:
(1) 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
(2) 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.
Subject to the foregoing and applicable law, including, without limitation,
United States federal securities laws and the regulations of the Federal Reserve
Board, FleetBoston 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
FleetBoston 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. This may require the prior approval of the Federal Reserve
Board if 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, FleetBoston will use its best efforts to cause the
junior subordinated debentures to be listed on any exchange as the preferred
securities are then listed.
On the date for any distribution of junior subordinated debentures upon
dissolution of Fleet Capital:
(1) the trust securities will no longer deemed to be outstanding;
(2) DTC, as defined herein under "Bank-Entry Only Issuance -- The
Depository Trust Company" on page S-22, 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
(3) any certificates representing trust securities not held by the
depositary or its nominee until such certificates are presented to
FleetBoston or its agent for transfer or reissuance will be deemed to
represent junior subordinated debentures having:
- an aggregate principal amount equal to the aggregate stated
liquidation amount of the trust securities;
- an interest rate identical to the distribution rate of the trust
securities; and
- accrued and unpaid interest equal to accrued and unpaid
distributions on, the trust securities.
FleetBoston and Fleet Capital cannot assure you 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 Fleet Capital were to
dissolve and liquidate. Accordingly, the
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preferred securities or the junior subordinated debentures may trade at a
discount to the price paid to purchase the preferred securities offered by this
prospectus supplement.
LIQUIDATION DISTRIBUTION UPON DISSOLUTION
If Fleet Capital liquidates, dissolves, winds-up or terminates, each a
"LIQUIDATION," 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 to the date of payment, the "LIQUIDATION DISTRIBUTION." These
distributions will not be paid if, in connection with a liquidation, junior
subordinated debentures with terms that match the preferred securities have been
distributed on a pro rata basis to the holders of the preferred securities.
If, upon any liquidation, the liquidation distribution can be paid only in
part because Fleet Capital does not have sufficient assets to pay in full the
entire 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 liquidation pro rata with the holders of the preferred
securities. However, 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:
(1) on , the expiration of the term of Fleet Capital;
(2) upon the bankruptcy of FleetBoston or Fleet Capital;
(3) upon the filing of a certificate of dissolution or its equivalent with
respect to FleetBoston;
(4) the filing of a certificate of cancellation for 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;
(5) the revocation of FleetBoston's charter and the expiration of 90 days
after the date of revocation without the charter being reinstated;
(6) upon the distribution of junior subordinated debentures to the holders
of the trust securities;
(7) upon the entry of a decree of a judicial dissolution of FleetBoston or
Fleet Capital; or
(8) upon the redemption of all the trust securities.
DECLARATION EVENTS OF DEFAULT
An "INDENTURE EVENT OF DEFAULT" is an event of default under the indenture
and also constitutes a "DECLARATION EVENT OF DEFAULT," which is an event of
default under the declaration relating to the trust securities. See "Description
of the Junior Subordinated Debentures -- Events of Default, Waiver and Notice"
in the accompanying prospectus on page for a description of indenture events
of default.
Under the declaration, the holder of the common securities will be deemed
to have waived any declaration event of default relating to the common
securities until all declaration events of default relating to the preferred
securities have been cured, waived or otherwise eliminated. Until all
declaration events of default relating to the preferred securities have been
cured, waived or otherwise eliminated, the institutional trustee will be acting
solely on behalf of the holders of the preferred securities. 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 relating to the
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preferred securities is waived by the holders of the preferred securities, the
holders of the common securities have agreed that such waiver also constitutes a
waiver of such declaration event of default relating 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 preferred securities may directly institute a
legal proceeding against FleetBoston to enforce these rights without first suing
the institutional trustee or any other person or entity. If a declaration event
of default has occurred and is continuing and such event is attributable to the
failure of FleetBoston 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 also bring a direct action. This means that a holder may directly
sue FleetBoston to enforce payment of the principal 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. Such holder
need not first (1) direct the institutional trustee to enforce the terms of the
junior subordinated debentures or (2) sue FleetBoston to enforce the
institutional trustee's rights under the junior subordinated debentures.
In connection with such direct action, FleetBoston will be subrogated to
the rights of such holder of preferred securities under the declaration to the
extent of any payment made by FleetBoston to such holder of preferred securities
in such direct action. This means that FleetBoston will be entitled to payment
of amounts that a holder of preferred securities receives in respect of an
unpaid distribution that resulted in the bringing of a direct action to the
extent that such holder receives or has already received full payment relating
to such unpaid distribution from Fleet Capital. 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 an indenture 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. FleetBoston and Fleet
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 in the accompanying prospectus under "Description of
the Preferred Securities -- Voting Rights" beginning on page 19, under the
Delaware Business Trust Act, the Trust Indenture Act and under "Description of
the Preferred Securities Guarantees--Modification of the Preferred Securities
Guarantees; Assignment" on page 23 in the accompanying prospectus, and as
otherwise required by law and the declaration, the holders of the preferred
securities will have no voting rights.
MODIFICATION OF THE DECLARATION
The declaration may be modified and amended if approved by the regular
trustees, and in certain circumstances, the institutional trustee. However, if
any proposed amendment provides for, or the regular trustees otherwise propose
to effect:
(1) 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
(2) the dissolution, winding-up or termination of Fleet Capital other than
pursuant to the terms of the declaration,
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then the holders of the trust securities voting together as a single class will
be entitled to vote on such amendment or proposal. 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. If however, any
amendment or proposal referred to in clause (1) above would adversely affect
only the preferred securities or the common securities, then only holders of the
affected class will be entitled to vote on such amendment or proposal. Such
amendment or proposal shall not be effective except with the approval of a
majority in liquidation amount of such class of trust securities.
Despite the foregoing, no amendment or modification may be made to the
declaration if such amendment or modification would:
(1) cause Fleet Capital to be classified for United States federal income
taxation purposes as other than a grantor trust;
(2) reduce or otherwise adversely affect the powers of the institutional
trustee; or
(3) 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:
(1) 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, so long as
the successor securities rank the same as the trust securities
rank regarding distributions and payments upon liquidation,
redemption and otherwise;
(2) FleetBoston expressly acknowledges a trustee of such successor entity
possessing the same powers and duties as the institutional trustee, in
its capacity as the holder of the junior subordinated debentures;
(3) 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;
(4) 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;
(5) 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;
(6) such successor entity has a purpose identical to that of Fleet Capital;
(7) prior to such merger, consolidation, amalgamation or replacement, Fleet
Capital has received an opinion of a
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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;
(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
(c) following such merger, consolidation, amalgamation or replacement,
Fleet Capital (or the successor entity) will be treated as a
grantor trust for United States federal income tax purposes; and
(8) FleetBoston guarantees the obligations of such successor entity under
the successor securities at least to the extent provided by the
guarantee.
Despite the foregoing, Fleet Capital shall not, except with the consent of
holders of 100% 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 preferred securities will be book-entry securities. Upon issuance, all
book-entry securities will be represented by one or more fully registered global
preferred securities, without distribution coupons. Each global preferred
security will be deposited with, or on behalf of, The Depository Trust Company,
"DTC," a securities depository, and will be registered in the name of DTC or a
nominee of DTC. DTC will thus be the only registered holder of the preferred
securities and will be considered the sole owner of the preferred securities for
purposes of the declaration.
Purchasers of preferred securities may only hold interests in the global
notes through DTC if they are a participant in the DTC system. Purchasers may
also hold interests through a securities intermediary -- banks, brokerage houses
and other institutions that maintain securities accounts for customers -- that
has an account with DTC or its nominee. DTC will maintain accounts showing the
preferred security holdings of its participants, and these participants will in
turn maintain accounts showing the preferred security holdings of their
customers. Some of these customers may themselves be securities intermediaries
holding preferred securities for their customers. Thus, each beneficial owner of
a book-entry preferred security will hold that preferred security indirectly
through a hierarchy of intermediaries, with DTC at the "top" and the beneficial
owner's own securities intermediary at the "bottom."
The preferred securities of each beneficial owner of a book-entry security
will be evidenced solely by entries on the books of the beneficial owner's
securities intermediary. The actual purchaser of the preferred securities will
generally not be entitled to have the preferred securities represented by the
global securities registered in its name and will not be considered the owner
under the declaration. In most cases, a beneficial owner will also not be able
to obtain a paper certificate evidencing the holder's ownership of preferred
securities. The book-entry system for holding preferred securities eliminates
the need for physical movement of certificates and is the system through which
most publicly traded common stock is held in the United States. However, the
laws of some
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jurisdictions require some purchasers of securities to take physical delivery of
their securities in definitive form. These laws may impair the ability to
transfer book-entry securities.
A beneficial owner of book-entry securities represented by a global
preferred security may exchange the securities for definitive (paper) preferred
securities only if:
(1) DTC is unwilling or unable to continue as depositary for such global
preferred security and FleetBoston is unable to find a qualified
replacement for DTC within 90 days;
(2) at any time DTC ceases to be a clearing agency registered under the
Securities Exchange Act of 1934; or
(3) FleetBoston in its sole discretion decides to allow some or all book-
entry securities to be exchangeable for definitive preferred securities
in registered form.
Any global preferred security that is exchangeable will be exchangeable in
whole for definitive notes in registered form, with the same terms and of an
equal aggregate principal amount, in denominations of $ and
whole multiples of $ . Definitive preferred securities will be registered in
the name or names of the person or persons specified by DTC in a written
instruction to the registrar of the securities. DTC may base its written
instruction upon directions it receives from its participants.
In this prospectus supplement and accompanying prospectus, for book-entry
preferred securities, references to actions taken by preferred security holders
will mean actions taken by DTC upon instructions from its participants, and
references to payments and notices of redemption to preferred security holders
will mean payments and notices of redemption to DTC as the registered holder of
the preferred securities for distribution to participants in accordance with
DTC's procedures.
DTC has advised us that DTC is a limited purpose trust company organized
under the laws of the State of New York, 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 under section 17A of the Securities
Exchange Act of 1934. The rules applicable to DTC and its participants are on
file with the SEC.
DTC has advised us that DTC's management is aware that some computer
applications, systems, and the like for processing dates that are dependent upon
calendar dates, including dates before, on, and after January 1, 2000, may
encounter "Year 2000 problems." DTC has informed its participants and other
members of the financial community that it has developed and is implementing a
program so that its systems, as they relate to the timely payment of
distributions to securityholders, book-entry deliveries, and settlement of
trades within DTC, continue to function appropriately. This program includes a
technical assessment, a remediation plan and a testing plan, each of which is
complete.
However, DTC's ability to perform properly its services is also dependent
upon other parties, including but not limited to issuers and their agents, as
well as third party vendors from whom DTC licenses software and hardware, and
third party vendors on whom DTC relies for information or the provision of
services, including telecommunication and electrical utility services providers,
among others. DTC has informed its participants and other members of the
financial community that it has contacted third party vendors from whom DTC
acquires services to: (1) impress upon them the importance of those services
being Year 2000 compliant, and (2) determine the extent of their efforts for
Year 2000 remediation (and, as appropriate, testing) of their services. In
addition, DTC is in the process of continually developing and updating such
contingency plans as it deems appropriate.
According to DTC, the foregoing information with respect to DTC has been
provided for informational purposes only and is not intended
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to serve as a representation, warranty, or contract modification of any kind.
FleetBoston and the trustees will not have any responsibility or liability
for any aspect of the records relating to, or payments made on account of,
beneficial ownership interest in the book-entry securities or for maintaining,
supervising or reviewing any records relating to the beneficial ownership
interests.
DTC may discontinue providing its services as securities depositary with
respect to the preferred securities at any time by giving reasonable notice to
Fleet Capital. Under such circumstances, in the event that a successor
securities depositary is not obtained, preferred securities certificates are
required to be printed and delivered. Additionally, the regular trustees, with
the consent of FleetBoston, may decide to discontinue use of the system of
book-entry transfers through DTC or any successor depositary with respect to the
preferred securities. In that event, certificates for the preferred securities
will be printed and delivered.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that FleetBoston and Fleet Capital believe to be
reliable, but neither FleetBoston nor Fleet Capital takes responsibility for the
accuracy thereof.
PAYMENT
Payments on 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. In the case of certificated securities, payments
shall be made by check mailed to the address of the holder as such address shall
appear on the records of FleetBoston's registrar and transfer agent.
REGISTRAR, TRANSFER AGENT AND PAYING AGENT
In the event that the preferred securities do not remain in book-entry only
form, the following provisions will apply:
(1) the institutional trustee will act as paying agent and may
designate an additional or substitute paying agent at any time;
(2) 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 FleetBoston may require, in
respect of any tax or other government charges that may be imposed in
relation to it; and
(3) 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
Prior to the occurrence of a default with respect to the trust securities
and after the curing of any defaults that may have occurred, the institutional
trustee undertakes to perform only such duties as are specifically set forth in
the declaration. After such a default, the institutional trustee will exercise
the same degree of care as a prudent individual would exercise in the conduct of
his or her own affairs. 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 indemnity satisfactory to it 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 following a declaration event of
default. The institutional trustee also serves as trustee under the guarantee
and the indenture. FleetBoston and certain of its subsidiaries conduct certain
banking transactions with the institutional trustee in the ordinary course of
their business.
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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. FleetBoston is authorized
and directed to conduct its affairs so that the junior subordinated debentures
will be treated as indebtedness of FleetBoston for United States federal income
tax purposes. In this connection, FleetBoston 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
FleetBoston, that each of FleetBoston 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
FleetBoston will agree, to the extent set forth in the guarantee, to pay in
full to the holders of the preferred securities, 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. FleetBoston's obligation to
make a payment under the guarantee may be satisfied by direct payment of the
required amounts by FleetBoston to the holders of preferred securities or by
causing Fleet Capital to pay such amounts to such holders.
The guarantee, when taken together with FleetBoston'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,
provides a full and unconditional guarantee on a subordinated basis by
FleetBoston of payments due on the preferred securities.
The guarantee will be qualified as an indenture under the Trust Indenture
Act. The Bank of New York 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 beginning on page 21 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 on page 13 in the accompanying prospectus under the caption
"Description of the Junior Subordinated Debentures." While the following
description is not intended to be complete and is qualified by the indenture,
dated as of , between FleetBoston and The Bank of New York as
trustee, the "DEBT TRUSTEE", as supplemented by a supplemental
indenture, dated as of
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, as so supplemented, the "INDENTURE," all material terms of the junior
subordinated debentures are set forth in this prospectus supplement and in the
accompanying prospectus. The forms of the base and supplemental indentures are
filed as exhibits to the registration statement which contains this prospectus
supplement and the accompanying prospectus.
GENERAL
The junior subordinated debentures will be issued as unsecured debt of
FleetBoston under the indenture. The junior subordinated debentures will be
limited in aggregate principal amount to $ . This amount is 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 on page S-29 under
"Option to Extend Interest Payment Period" and additional interest, as defined
on page S-30 under "Additional Interest", if any, on ,
.
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
described in this prospectus supplement, under limited circumstances junior
subordinated debentures may be issued in certificated form in exchange for a
global security. See "Book-Entry and Settlement" below. If 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, to 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.
Payment of interest may be made at the option of FleetBoston 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.
FleetBoston does not intend to issue and sell the junior subordinated debt
securities to any purchasers other than Fleet Capital.
There are no covenants or provisions in the indenture that would afford the
holders of the junior subordinated debentures protection in the event of a
highly leveraged transaction or other similar transaction involving FleetBoston
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 FleetBoston (each as defined
below) and rank equal 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. This means that no payment may be
made of principal, including redemption payments, premium, if any, or interest
on the junior subordinated debentures if:
(1) there is a default in the payment of the principal of, premium, if any,
interest on or otherwise in respect of any senior indebtedness or other
financial obligations, whether at maturity or at a date fixed for
prepayment or by declaration or otherwise; or
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(2) any event of default with respect to any senior indebtedness or other
financial obligations has occurred and is continuing, or would occur as
a result of such payment on the junior subordinated debentures, if the
event of default would permit the holders of such senior indebtedness
or other financial obligations, or a trustee on behalf of those
holders, to accelerate the maturity of the senior indebtedness or other
financial obligations.
Upon any distribution of assets of FleetBoston to creditors upon any
dissolution, winding-up, liquidation or reorganization, whether voluntary or
involuntary, or in bankruptcy, insolvency, receivership or other proceedings,
all of the principal of, and interest on, all senior indebtedness and other
financial obligations of FleetBoston must be paid in full before the holders of
the junior subordinated debentures are entitled to receive or retain any
payment.
The term "SENIOR INDEBTEDNESS" means, with respect to FleetBoston:
(1) the principal, premium, if any, and interest in respect of:
(a) indebtedness of FleetBoston for money borrowed; and
(b) indebtedness evidenced by securities, debentures, bonds or other
similar instruments issued by FleetBoston;
(2) all capital lease obligations of FleetBoston;
(3) all obligations of FleetBoston issued or assumed as the deferred
purchased price of property, all conditional sale obligations of
FleetBoston and all obligations of FleetBoston under any title
retention agreement (but excluding trade accounts payable arising in
the ordinary course of business);
(4) all obligations of FleetBoston for the reimbursement of any letter of
credit, banker's acceptance, security purchase facility or similar
credit transaction;
(5) all obligations of the type referred to in clauses (1) through (4)
above of other persons for the payment of which FleetBoston is
responsible or liable as obligor, guarantor or otherwise; and
(6) all obligations of the type referred to in clauses (1) through (5)
above of other persons secured by any lien on any property or asset of
FleetBoston, whether or not such obligation is assumed by FleetBoston,
except that senior indebtedness shall not include:
(a) any such indebtedness that is by its terms subordinated to or
ranks equally with the junior subordinated debentures; and
(b) any indebtedness between and among FleetBoston or its affiliates,
including all other debt securities and guarantees in respect to
those debt securities, issued to:
- any other Fleet capital trust or a trustee of such Fleet
capital trust; and
- any other trust, or a trustee of such trust, partnership or
other entity affiliated with FleetBoston that is a financing
vehicle of FleetBoston in connection with the issuance by such
financing vehicle of preferred securities or other securities
that rank equal with, or junior to, the preferred securities.
The term "OTHER FINANCIAL OBLIGATIONS" means all obligations of FleetBoston
to make payment pursuant to the terms of financial instruments, such as:
(1) securities contracts and foreign currency exchange contracts;
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(2) 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
(3) in the case of both (1) and (2) above, similar financial instruments,
other than:
(a) obligations on account of senior indebtedness; and
(b) obligations on account of indebtedness for money borrowed ranking
equally with or subordinate to the junior subordinated debentures.
Upon satisfaction of all claims of all senior indebtedness and other
financial obligations, 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 FleetBoston 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 FleetBoston.
As of , , restated to give effect to the BankBoston merger,
senior indebtedness and other financial obligations of FleetBoston aggregated
approximately $ billion (holding company only). In addition, because
FleetBoston is a holding company, the junior subordinated debentures are
effectively subordinated to all existing and future liabilities of FleetBoston's
subsidiaries, including depositors.
OPTIONAL REDEMPTION
FleetBoston shall have the right to redeem the junior subordinated
debentures prior to their stated maturity:
(1) in whole or in part, from time to time, on or after ; or
(2) at any time prior to , in whole but not in part, upon
the occurrence and continuation of a special event, as defined below;
in either case, upon not less than 30 nor more than 60 days' notice. The
redemption price will be equal to 100% of the principal amount to be redeemed,
plus accrued interest to the date of redemption. Such redemption may require
prior approval of the Federal Reserve Board if approval is then required under
applicable law, rules, guidelines or policies.
A "SPECIAL EVENT" means a tax event or a regulatory capital event, each as
defined below.
A "TAX EVENT" means that the regular trustees will have received an opinion
of nationally recognized independent tax counsel experienced in such matters to
the effect that, as a result of:
(1) 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
(2) 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,
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there is more than an insubstantial risk that:
(1) 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;
(2) interest payable by FleetBoston on the junior subordinated debentures
is not, or within 90 days of the date of such opinion will not be,
deductible by FleetBoston, in whole or in part, for United States
federal income tax purposes; or
(3) 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.
A "REGULATORY CAPITAL EVENT" means that FleetBoston shall have received an
opinion of independent bank regulatory counsel experienced in such matters to
the effect that, as a result of:
(1) 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
(2) 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,
there is more than an insubstantial risk that the preferred securities will no
longer constitute, or within 90 days of the date thereof, will not constitute,
Tier 1 capital or its then equivalent for regulatory capital purposes.
INTEREST
The Junior Subordinated Debentures will bear interest at an annual rate of
% from the original date of issuance, payable quarterly in arrears on
, , and of each year, commencing
. Each date on which interest is paid is called an "INTEREST
PAYMENT DATE."
Interest will be paid to the person in whose name such junior subordinated
debenture is registered on the relevant record date. If the junior subordinated
debentures remain in book-entry form, the record dates for the junior
subordinated debentures will be one business day prior to the relevant interest
payment date. If the junior subordinated debentures are not in book-entry form,
the record dates for the junior subordinated debentures will be the 15th day of
the month in which the relevant interest payment date occurs.
The period beginning on and including and ending on but
excluding the first interest payment date and each successive period beginning
on and including an interest payment date and ending on but excluding the next
succeeding interest payment date is herein called an "INTEREST PERIOD."
The amount of interest payable for any interest 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 will be computed on
the basis of the actual number of days elapsed per 30-day month. If any interest
payment date is not a business day, then such interest payment will be made on
the next succeeding day that is a business day and without any interest or other
payment in respect of the delay. However, if the next business day is in the
next calendar year, payment of interest will be made on the preceding business
day.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
FleetBoston can defer interest payments by extending the interest payment
period for a period not exceeding 20 consecutive quarterly periods. However, no
extension period may extend beyond the maturity of the junior subordinated
debentures. At the end of such extension period, FleetBoston shall pay all
interest then accrued and unpaid, including any
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additional interest as described under "Additional Interest" below, together
with interest thereon compounded at the rate specified for the junior
subordinated debentures to the extent permitted by applicable law, "COMPOUND
INTEREST."
During any such extension period:
(1) FleetBoston shall not declare or pay any dividend on, make any
distribution relating to, or redeem, purchase, acquire or make a
liquidation payment relating to any of its capital stock, other than:
(a) purchases or acquisitions of shares of FleetBoston common stock in
connection with any employee benefit plans or any other
contractual obligation of FleetBoston, other than a contractual
obligation ranking pari passu with or junior to the junior
subordinated debentures;
(b) as a result of the exchange or conversion of one class or series
of FleetBoston's capital stock for another class or series of
FleetBoston 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;
(2) FleetBoston shall not make any payment of interest, principal or
premium, if any, on or repay, repurchase or redeem any debt securities
issued by FleetBoston that rank equally with or junior to the junior
subordinated debentures; and
(3) FleetBoston 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, FleetBoston may
further defer payments of interest by extending such extension period. However,
such extension period, including all such previous and further extensions, may
not exceed 20 consecutive quarters. No extension period, however, may 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,
FleetBoston 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.
FleetBoston 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 is the sole holder of the
junior subordinated debentures, FleetBoston 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:
(1) the date distributions on the preferred securities are payable; or
(2) if the junior subordinated debentures are then listed, the date the
regular trustees are required to give notice to the NYSE or any 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 FleetBoston's selection of
such extension period to the holders of the preferred securities. If the
institutional trustee is not the sole holder of the junior subordinated
debentures, FleetBoston 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:
(1) the interest payment date; or
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(2) if the junior subordinated debentures are then listed, the date upon
which Fleet is required to give notice to any 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 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 FleetBoston will be required to pay additional
interest on the junior subordinated debentures. "ADDITIONAL INTEREST" will be an
amount sufficient 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. This means that
Fleet Capital will be in the same position it would have been if it did not have
to pay such taxes, duties, assessments or other charges.
INDENTURE EVENTS OF DEFAULT
The indenture events of default are described on page 15 of the
accompanying prospectus under "Description of the Junior Subordinated
Debentures--Events of Default, Waiver and Notice."
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
immediately due and payable. The institutional trustee may also enforce its
other rights as a creditor relating to the junior subordinated debentures. 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" beginning on page S-19 and "--Voting
Rights" beginning on page 19 of the accompanying prospectus.
If the institutional trustee fails to enforce its rights under the junior
subordinated debentures after a holder of the preferred securities has made a
written request, such holder of the preferred securities may institute a legal
proceeding directly against FleetBoston 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.
Despite the foregoing, if a declaration event of default has occurred and
is continuing and such event is attributable to the failure of FleetBoston to
pay interest or principal on the junior subordinated debentures when such
interest or principal is otherwise payable, FleetBoston acknowledges that, in
such event, a holder of preferred securities may sue for payment on or after the
respective due date specified in the junior subordinated debentures. Despite any
payments made to such holder of preferred securities by FleetBoston in
connection with a direct action, FleetBoston shall remain obligated to pay the
principal of or interest on the junior subordinated debentures held by Fleet
Capital or the institutional trustee. FleetBoston shall be subrogated to the
rights of the holder of such preferred securities relating to payments on the
preferred securities to the extent of any payments made by FleetBoston to such
holder in any direct action.
Except as provided in the preceding paragraph 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.
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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. 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. These
laws may impair the ability to transfer beneficial interests in such a global
security.
Except as provided on page S-31 under "Discontinuance of the Depositary's
Services," owners of beneficial interests in 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, of such global security for any purpose under the indenture. A global
security representing junior subordinated debentures is only exchangeable 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. This means that 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 FleetBoston Capital, DTC
will act as the depositary for the junior subordinated debentures. As of the
date of this prospectus supplement, the description in this prospectus
supplement 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 DTC. FleetBoston 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.
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" beginning on page S-22.
None of FleetBoston, Fleet Capital, the institutional trustee, any paying
agent and any other agent of FleetBoston, 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:
(1) the depositary notifies FleetBoston that it is unwilling or unable to
continue as a depositary for such global security and no successor
depositary shall have been appointed;
(2) 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;
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(3) FleetBoston, in its sole discretion, determines that such global
security shall be so exchangeable; or
(4) 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 FleetBoston will pay all fees and expenses
related to;
(1) the offering of the trust securities and the junior subordinated
debentures;
(2) the organization, maintenance and dissolution of Fleet Capital;
(3) the retention of the regular trustees; and
(4) the enforcement by the institutional trustee of the rights of the
holders of the preferred securities.
FleetBoston 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 FleetBoston. If that occurs, FleetBoston 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.
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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 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. This is due to the
following factors:
(1) the aggregate principal amount of junior subordinated debentures will
be equal to the sum of the aggregate stated liquidation amount of the
trust securities;
(2) 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 trust securities;
(3) FleetBoston 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
(4) the declaration further provides that the regular trustees may not
cause or permit Fleet Capital to engage in any activity that is not
consistent with the purposes of Fleet Capital.
Payments of distributions, to the extent there are available funds, and
other payments due on the preferred securities, to the extent there are
available funds, are guaranteed by FleetBoston to the extent described under
"Description of the Preferred Securities Guarantees" on page 21 in the
accompanying prospectus. If FleetBoston does not make interest payments on the
junior subordinated debentures, 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 Fleet Capital has sufficient funds
for the payment of such distributions. See "Description of the Preferred
Securities Guarantees" on page 21 in the accompanying prospectus.
The guarantee covers the payment of distributions and other payments on the
preferred securities only if and to the extent that FleetBoston has made a
payment of interest or principal on the junior subordinated debentures. The
guarantee, when taken together with FleetBoston's obligations under the junior
subordinated debentures and the indenture and its obligations under the
declaration will provide a full and unconditional guarantee of amounts payable
on the preferred securities.
If FleetBoston fails to make interest or other payments on the junior
subordinated debentures when due, taking account of any extension period, the
declaration allows the holders of the preferred securities to direct the
institutional trustee to enforce its rights under the junior subordinated
debentures. If the institutional trustee fails to enforce these rights, any
holder of preferred securities may directly sue FleetBoston to enforce the
institutional trustee's rights without first suing the institutional trustee or
any other person or entity. See "Description of the Preferred
Securities--Book-Entry Only Issuance--The Depository Trust Company" on page S-22
and "--Voting Rights," beginning on page 18 of the accompanying prospectus. A
holder of preferred securities may institute a direct action if a declaration
event of default has occurred and is continuing and such event is attributable
to the failure of FleetBoston to pay interest or principal on the junior
subordinated debentures on the date such interest or principal is otherwise
payable. A direct action may be brought without first (1) directing the
institutional trustee to enforce the terms of the junior subordinated debentures
or (2) suing FleetBoston to enforce the institutional trustee's rights under the
junior subordinated debentures. In connection with such direct action,
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FleetBoston will be subrogated to the rights of such holder of preferred
securities under the declaration to the extent of any payment made by
FleetBoston to such holder of preferred securities in such direct action.
Consequently, FleetBoston will be entitled to payment of amounts that a holder
of preferred securities receives in respect of an unpaid distribution to the
extent that such holder receives or has already received full payment relating
to such unpaid distribution from Fleet Capital.
FleetBoston acknowledges that the guarantee trustee shall enforce the
guarantee on behalf of the holders of the preferred securities. If FleetBoston
fails to make payments under the guarantee, the guarantee allows the holders of
preferred securities to direct the guarantee trustee to enforce its rights
thereunder. If the guarantee trustee fails to enforce the guarantee, any holder
of preferred securities may directly sue FleetBoston to enforce the guarantee
trustee's rights under the guarantee. Such holder need not first sue Fleet
Capital, the guarantee trustee, or any other person or entity. A holder of
preferred securities may also directly sue FleetBoston to enforce such holder's
right to receive payment under the guarantee. Such holder need not first (1)
direct the guarantee trustees to enforce the terms of the guarantee or (2) sue
Fleet Capital or any other person or entity.
FleetBoston and Fleet Capital believe that the above mechanisms and
obligations, taken together, are equivalent to a full and unconditional
guarantee by FleetBoston of payments due on the preferred securities. See
"Description of the Preferred Securities Guarantees -- General" in the
accompanying prospectus.
UNITED STATES FEDERAL INCOME TAXATION
GENERAL
In the opinion of Edwards & Angell, LLP, counsel to FleetBoston 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 (as
defined below) 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 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, the "REGULATIONS," 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
S-35
<PAGE> 126
be classified for United States federal income tax purposes as indebtedness of
FleetBoston.
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 a pro
rata undivided interest in the junior subordinated debentures, and each holder
will be required to include in its gross income any interest, or original issue
discount, "OID," paid or accrued with respect to its allocable share of those
junior subordinated debentures.
INTEREST INCOME AND ORIGINAL ISSUE DISCOUNT
Under 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. FleetBoston
believes that the likelihood of its exercising its option to defer payments of
interest on the junior subordinated debentures is "remote" since exercising that
option would prevent FleetBoston from, among other things, declaring dividends
on any class of its equity securities. Accordingly, FleetBoston 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 FleetBoston were to exercise its option to defer
payments of interest on the junior subordinated debentures, the junior
subordinated debentures would at that time be treated as reissued 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
cash 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 FleetBoston 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, 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.
RECEIPT OF JUNIOR SUBORDINATED DEBENTURES OR CASH UPON LIQUIDATION OF FLEET
CAPITAL
FleetBoston 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 received 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
S-36
<PAGE> 127
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 in this prospectus supplement under
"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 capital securities for cash.
See "Sales of Preferred Securities" below.
SALES OF PREFERRED SECURITIES
A holder that sells preferred securities, including a redemption of the
preferred securities by Fleet Capital, 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:
(1) a citizen or individual resident (or is treated as a citizen or
individual resident) of the United States for federal income tax purposes;
(2) a corporation or partnership created or organized in or under the
laws of the United States or any political subdivision thereof;
(3) an estate the income of which is includible in its gross income
for federal income tax purposes without regard to its source; or
(4) a trust if, and only if, (a) a court within the United States is
able to exercise primary supervision over the administration of the trust
and (b) one or more United States persons have the authority to control all
substantial decisions of the trust.
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<PAGE> 128
Under present United States federal income tax law:
(1) 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
generally will not be subject to United States federal withholding tax, so
long as
(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 FleetBoston entitled
to vote;
(b) the beneficial owner of the preferred security is not a
controlled foreign corporation that is related to FleetBoston 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 U.S. 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
(2) a United States Alien Holder of a preferred security generally
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, 2001, subject to certain transition rules. The final withholding regulations
are quite complex. United States Alien Holders are strongly urged to consult
their tax advisors regarding the 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 FEDERAL, STATE, LOCAL
AND FOREIGN INCOME AND OTHER TAX LAWS AND THE POSSIBLE EFFECTS OF CHANGES IN
UNITED STATES FEDERAL OR OTHER TAX LAWS.
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<PAGE> 129
ERISA CONSIDERATIONS
Each fiduciary of a pension, profit-sharing or other employee benefit plan,
a "PLAN," subject to the Employee Retirement Income Security Act of 1974, as
amended, "ERISA," 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.
Section 406 of ERISA and Section 4975 of the Code prohibit plans, as well
as individual retirement accounts and Keogh plans subject to Section 4975 of the
Code, also "PLANS," from engaging in certain transactions involving "plan
assets" with persons who are "parties in interest" under ERISA or "disqualified
persons" under the Code, "PARTIES IN INTEREST," with respect to such plan or
account. A violation of these "prohibited transaction" rules may result in civil
penalty or other liabilities under ERISA and/or an excise tax under Section 4975
of the Code for such persons, unless exemptive relief is available under an
applicable statutory or administrative exemption. Employee benefit plans that
are governmental plans (as defined in section 3(32) of ERISA), certain church
plans (as defined in Section 3(33) of ERISA) and foreign plans (as described in
Section 4(b)(4)of ERISA) are not subject to the requirements of ERISA or Section
4975 of the Code. However, governmental plans may be subject to similar
provisions under applicable state laws.
Under a regulation, the "PLAN ASSETS REGULATION," issued by the U.S.
Department of Labor, the assets of Fleet Capital would be deemed to be "plan
assets" of a plan for purposes of ERISA and Section 4975 of the Code if a plan
were to acquire an equity interest in Fleet Capital and no exception was
applicable under the Plan Assets Regulation. An "EQUITY INTEREST" is defined
under the Plan Assets Regulation as any interest in an entity other than an
instrument which is treated as indebtedness under applicable law and which has
no substantial equity features and specifically includes a beneficial interest
in a trust.
Pursuant to the Plan Assets Regulation, the assets of Fleet Capital would
not be deemed to be "plan assets" of investing plans if, among other exceptions,
at all times, less than 25% of the value of each class of equity interests in
Fleet Capital were held by plans, other employee benefit plans not subject to
ERISA or Section 4975 of the Code, such as governmental, church and foreign
plans, and entities holding assets deemed to be "plan assets" of any plan,
collectively, "BENEFIT PLAN INVESTORS," or if the preferred securities were
"publicly-offered securities" for purpose of the Plan Assets Regulation. No
assurance can be given that the preferred securities held by benefit plan
investors will be less than 25% of the total value of such preferred securities
at the completion of the initial offering or thereafter, and no monitoring or
other measures will be taken with respect to the satisfaction of the conditions
to this exception. In addition, no assurance can be given that the preferred
securities would be considered to be "publicly-offered securities" under the
Plan Assets Regulation.
FleetBoston, the obligor with respect to the junior subordinated debentures
held by Fleet Capital, and its affiliates and the institutional trustee may be
considered parties in interest with respect to many plans and, as a result of
this transaction, may become parties in interest to plans that purchase the
preferred securities. Accordingly, the purchase and/or holding of preferred
securities by a plan with respect to which FleetBoston, the institutional
trustee or any affiliate is or becomes a party in interest 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.
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<PAGE> 130
The Department of Labor has issued five prohibited transaction class
exemptions, "PTCES," that may provide exemptive relief if required for direct or
indirect prohibited transactions that may arise from the purchase or holding of
the preferred securities if assets of Fleet Capital were deemed to be "plan
assets." These exemptions are:
(1) PTCE 84-14, an exemption for certain transactions determined by
independent qualified professional asset managers;
(2) PTCE 90-1, an exemption for certain transactions involving insurance
company pooled separate accounts;
(3) PTCE 91-38, an exemption for certain transactions involving bank
collective investment funds;
(4) PTCE 95-60, an exemption for transactions involving certain insurance
company general accounts; or
(5) PTCE 96-23, an exemption for plan asset transactions managed by
in-house asset managers.
Because the preferred securities may be deemed to be equity interests in
Fleet Capital for purposes of applying ERISA and Section 4975 of the Code, the
preferred securities may not be purchased or held by (1) any plan, (2) any
entity whose underlying assets include "plan assets" by reason of any plan's
investment in the entity, a "PLAN ASSET ENTITY," or (3) any person investing
"plan assets" of any plan, unless in each case such purchaser or holder is
eligible for the exemptive relief available under any of the PTCEs listed above
or another applicable exemption. Any purchaser or holder of the preferred
securities or any interest therein will be deemed to have represented by its
purchase and holding thereof that it either,
(1) is not a plan or a plan asset entity and is not purchasing such
securities on behalf of or with "plan assets" of any plan; or
(2) is eligible for the exemptive relief available under any of the PTCEs
listed above or another applicable exemption with respect to such purchase or
holding.
If a purchaser or holder of the preferred securities that is a plan or a plan
asset entity elects to rely on an exemption other than one of the PTCEs listed
above, FleetBoston and Fleet Capital may require a satisfactory opinion of
counsel or other evidence with respect to the availability of such exemption for
such purchase and holding.
Due to the complexity of these rules and the penalties that may be imposed
upon persons involved in non-exempt transactions, it is important that
fiduciaries or other persons considering purchasing the preferred securities on
behalf of or with "plan assets" of any plan consult with its ERISA counsel
regarding the potential consequences if the assets of Fleet Capital were deemed
to be "plan assets" and the availability of exemptive relief under any of the
PTCEs listed above or any other applicable exemption.
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<PAGE> 131
UNDERWRITING
Subject to the terms and conditions set forth in an underwriting agreement,
Fleet Capital has agreed to sell to each of the underwriters named below, and
each of the underwriters 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 in the underwriting agreement, to purchase all the
preferred securities offered hereby if any of the preferred securities are
purchased. If an underwriter defaults, 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 selected 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 selected 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 FleetBoston, the underwriting agreement provides that FleetBoston
will pay as 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.
The following table shows the per preferred security and total public
offering price, underwriting commission to be paid by FleetBoston and the
proceeds to Fleet Capital. This information is presented assuming either no
exercise or full exercise by the underwriters of their over-allotment option.
<TABLE>
<CAPTION>
PER
PREFERRED WITHOUT WITH
SECURITY OPTION OPTION
--------- ------- -------
<S> <C> <C> <C>
Public offering
price.................
Underwriting commission
to be paid by
FleetBoston...........
Proceeds to Fleet
Capital...............
</TABLE>
During a period of days from the date of the prospectus supplement,
neither Fleet Capital nor FleetBoston 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.
The preferred securities constitute a new issue of securities of Fleet
Capital with no established trading market. Although the underwriters have
indicated to FleetBoston and Fleet Capital that they intend to make a market in
the preferred securities, as permitted by applicable laws and regulations, 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 FleetBoston have agreed to indemnify the underwriters
against, or contribute to payments that the underwriters
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<PAGE> 132
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 Securities and Exchange 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 underwriters are permitted to engage in some
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 underwriters
may reduce the short position by purchasing preferred securities in the open
market.
The underwriters may also impose a penalty bid on certain selling group
members. This means that if the underwriters 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 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 FleetBoston, 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 FleetBoston, Fleet Capital nor any of the
underwriters makes any representation that the underwriters will engage in such
transactions or that such transactions, once commenced, will not be discontinued
without notice.
BancBoston Robertson Stephens Inc. is a wholly-owned subsidiary of
FleetBoston. Accordingly, the distribution of securities by BancBoston Robertson
Stephens Inc. will conform to the requirements set forth in Rule 2720 of the
Conduct Rules of the National Association of Securities Dealers, Inc., the
"NASD." No NASD member participating in offers and sales will execute a
transaction in the preferred securities in a discretionary account without the
prior written specific approval of the member's customer.
Some of the underwriters or their affiliates engage in transactions with,
and, from time to time, have performed services for, FleetBoston and its
subsidiaries in the ordinary course of business.
Certain of the underwriters may use this prospectus and the accompanying
prospectus supplement for offers and sales related to market-making transactions
in the securities. These underwriters may act as principal or agent in these
transactions, and the sales will be made at prices related to prevailing market
prices at the time of sale.
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<PAGE> 133
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
$
FLEET BOSTON LOGO
FLEET CAPITAL TRUST VI
% PREFERRED SECURITIES
FULLY AND UNCONDITIONALLY GUARANTEED BY
FLEET BOSTON CORPORATION
--------------------------------------
PROSPECTUS SUPPLEMENT
--------------------------------------
, 1999
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 134
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBITS
--------
<S> <C> <C>
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 as of December 6, 1999 between
FleetBoston and The Bank of New York, as Trustee.
*4(b) -- Form of Warrant Agreement for Warrants attached to Debt
Securities.
*4(c) -- Form of Warrant Agreement for Warrants not attached to Debt
Securities.
*4(d) -- Form of Warrant Agreement for Universal Warrants.
4(e) -- Form of Put Warrant (included in Exhibit 4(d)).
4(f) -- Form of Call Warrant (included in Exhibit 4(d)).
*4(g) -- Form of Note for Senior Debt Securities.
*4(h) -- Subordinated Indenture dated as of December 6, 1999 between
FleetBoston and The Bank of New York, as Trustee.
*4(i) -- Form of Note for Subordinated Debt Securities.
4(j) -- Form of Medium-Term Note (incorporated by reference to
Exhibit 4(f) of Registration Statement No. 33-50216).
4(k) -- Restated Articles of Incorporation of FleetBoston
(incorporated by reference to Exhibit 3 of FleetBoston's
Quarterly Report on Form 10-Q dated September 30, 1999).
*4(l) -- Bylaws of FleetBoston.
4(m) -- Form of Certificate of Designations (incorporated by
reference to Exhibit 4(a) of Registration Statement No.
33-40967).
4(n) -- Form of Deposit Agreement (incorporated by reference to
Exhibit 4(b) of Registration Statement No. 33-40967).
4(o) -- 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(p) -- 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(q) -- Rights Agreement dated as of November 21, 1990 between
FleetBoston 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 FleetBoston's
Current Report on Form 8-K dated November 21, 1990, Exhibits
4(a) and 4(b) to the FleetBoston's Current Report on Form
8-K dated March 28, 1991 and Exhibit 99.3 to FleetBoston's
Current Report on Form 8-K dated February 20, 1995).
4(r) -- Instruments defining the rights of security holders,
including indentures (FleetBoston 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 FleetBoston and its subsidiaries
on a consolidated basis. FleetBoston hereby agrees to
furnish a copy of any such instrument to the Commission upon
request).
4(s) -- 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 FleetBoston's
Current Report on Form 8-K dated July 12, 1991).
</TABLE>
II-1
<PAGE> 135
<TABLE>
<CAPTION>
EXHIBITS
--------
<S> <C> <C>
*4(t)(i) -- Certificate of Trust of Fleet Capital Trust VI (incorporated
by reference to Exhibit 4(a)(vi) of Registration Statement
No. 333-48043), as amended by First Amendment to Certificate
of Trust of Fleet Capital Trust VI.
*4(t)(ii) -- Certificate of Trust of Fleet Capital Trust VII
(incorporated by reference to Exhibit 4(a)(vii) of
Registration Statement No. 333-48043), as amended by First
Amendment to Certificate of Trust of Fleet Capital Trust
VII.
*4(t)(iii) -- Certificate of Trust of Fleet Capital Trust VIII
(incorporated by reference to Exhibit 4(a)(viii) of
Registration Statement No. 333-48043), as amended by First
Amendment to Certificate of Trust of Fleet Capital Trust
VIII.
*4(t)(iv) -- Certificate of Trust of Fleet Capital Trust IX (incorporated
by reference to Exhibit 4(q)(ix) of Registration Statement
No. 333-62905), as amended by First Amendment to Certificate
of Trust of Fleet Capital Trust IX.
*4(t)(v) -- Certificate of Trust of Fleet Capital Trust X (incorporated
by reference to Exhibit 4(q)(x) of Registration Statement
No. 333-62905), as amended by First Amendment to Certificate
of Trust of Fleet Capital Trust X.
*4(u)(i) -- Declaration of Trust of Fleet Capital Trust VI (incorporated
by reference to Exhibit 4(b)(vi) of Registration Statement
No. 333-48043), as amended by First Amendment to Declaration
of Trust of Fleet Capital Trust VI.
*4(u)(ii) -- Declaration of Trust of Fleet Capital Trust VII
(incorporated by reference to Exhibit 4(b)(vii) of
Registration Statement No. 333-48043), as amended by First
Amendment to Declaration of Trust of Fleet Capital Trust
VII.
*4(u)(iii) -- Declaration of Trust of Fleet Capital Trust VIII
(incorporated by reference to Exhibit 4(b)(viii) of
Registration Statement No. 333-48043), as amended by First
Amendment to Declaration of Trust of Fleet Capital Trust
VIII.
*4(u)(iv) -- Declaration of Trust of Fleet Capital Trust IX (incorporated
by reference to Exhibit 4(r)(ix) of Registration Statement
No. 333-62905), as amended by First Amendment to Declaration
of Trust of Fleet Capital Trust IX.
*4(u)(v) -- Declaration of Trust of Fleet Capital Trust X (incorporated
by reference to Exhibit 4(r)(x) of Registration Statement
No. 333-62905), as amended by First Amendment to Declaration
of Trust of Fleet Capital Trust X.
*4(v) -- Form of Amended and Restated Declaration of Trust to be used
in connection with the issuance of the Preferred Securities.
*4(w) -- Form of Indenture between FleetBoston and The Bank of New
York, as Trustee.
*4(x) -- Form of Supplemental Indenture to be used in connection with
the issuance of the Junior Subordinated Debentures and
Preferred Securities.
4(y) -- Form of Preferred Security (included in Exhibit 4(v)).
4(z) -- Form of Junior Subordinated Debenture (included in Exhibit
4(x)).
*4(aa) -- Form of Preferred Securities Guarantee.
*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 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 Supplemental Consolidated Ratio of Earnings
to Fixed Charges and Preferred Dividends (incorporated by
reference to Exhibit 12(a) of FleetBoston's Current Report
on Form 8-K dated November 22, 1999).
12(b) -- Computation of Supplemental Consolidated Ratio of Earnings
to Fixed Charges (incorporated by reference to Exhibit 12(b)
of FleetBoston's Current Report on Form 8-K dated November
22, 1999).
*23(a) -- Consent of PricewaterhouseCoopers LLP.
23(b) -- Consent of Edwards & Angell, LLP (included in Exhibit 5(a)).
</TABLE>
II-2
<PAGE> 136
<TABLE>
<CAPTION>
EXHIBITS
--------
<S> <C> <C>
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
FleetBoston (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 under the Trust Indenture
Act of 1939, as amended, of The Bank of New York, as Senior
Trustee.
**25(b) -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of The Bank of New York, as
Subordinated Trustee.
**25(c) -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of The Bank of New York, as Trustee
under the Indenture relating to Fleet Capital Trust VI,
Fleet Capital Trust VII, Fleet Capital Trust VIII, Fleet
Capital Trust IX and Fleet Capital Trust X.
**25(d) -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of The Bank of New York, as Trustee
under the Amended and Restated Declaration of Trust of Fleet
Capital Trust VI.
**25(e) -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of The Bank of New York, as Trustee
under the Amended and Restated Declaration of Trust of Fleet
Capital Trust VII.
**25(f) -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of The Bank of New York, as Trustee
under the Amended and Restated Declaration of Trust of Fleet
Capital Trust VIII.
**25(g) -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of The Bank of New York, as Trustee
under the Amended and Restated Declaration of Trust of Fleet
Capital Trust IX.
**25(h) -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of The Bank of New York, as Trustee
under the Amended and Restated Declaration of Trust of Fleet
Capital Trust X.
**25(i) -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of The Bank of New York, as Trustee
under the Preferred Securities Guarantee relating to Fleet
Capital Trust VI.
**25(j) -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of The Bank of New York, as Trustee
under the Preferred Securities Guarantee relating to Fleet
Capital Trust VII.
**25(k) -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of The Bank of New York, as Trustee
under the Preferred Securities Guarantee relating to Fleet
Capital Trust VIII.
**25(l) -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of The Bank of New York, as Trustee
under the Preferred Securities Guarantee relating to Fleet
Capital Trust IX.
**25(m) -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of The Bank of New York, as Trustee
under the Preferred Securities Guarantee relating to Fleet
Capital Trust X.
</TABLE>
- ---------------
* Filed herewith.
** Previously Filed.
II-3
<PAGE> 137
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 December 8, 1999.
FLEET BOSTON CORPORATION
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 December 8, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
* Chairman, Chief Executive Officer and Director
- ----------------------------------------------------- (Principal Executive Officer)
TERRENCE MURRAY
President, Chief Operating Officer and
- ----------------------------------------------------- Director
CHARLES K. GIFFORD
/s/ ROBERT J. HIGGINS President of Commercial and Retail Banking and
- ----------------------------------------------------- Director
ROBERT J. HIGGINS
President of Global Banking and Financial
- ----------------------------------------------------- Services and Director
HENRIQUE DE CAMPOS MEIRELLES
* Vice Chairman and Chief Financial Officer
- ----------------------------------------------------- (Principal Financial Officer)
EUGENE M. MCQUADE
* Controller
- ----------------------------------------------------- (Principal Accounting Officer)
ROBERT C. LAMB, JR.
* Director
- -----------------------------------------------------
JOEL B. ALVORD
* Director
- -----------------------------------------------------
WILLIAM BARNET, III
Director
- -----------------------------------------------------
DANIEL P. BURNHAM
* Director
- -----------------------------------------------------
PAUL J. CHOQUETTE, JR.
* Director
- -----------------------------------------------------
JOHN T. COLLINS
Director
- -----------------------------------------------------
WILLIAM F. CONNELL
</TABLE>
II-4
<PAGE> 138
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
Director
- -----------------------------------------------------
GARY L. COUNTRYMAN
Director
- -----------------------------------------------------
ALICE F. EMERSON
* Director
- -----------------------------------------------------
JAMES F. HARDYMON
* Director
- -----------------------------------------------------
MARIAN L. HEARD
* Director
- -----------------------------------------------------
ROBERT M. KAVNER
Director
- -----------------------------------------------------
THOMAS J. MAY
Director
- -----------------------------------------------------
DONALD F. MCHENRY
* Director
- -----------------------------------------------------
MICHAEL B. PICOTTE
Director
- -----------------------------------------------------
THOMAS R. PIPER
* Director
- -----------------------------------------------------
THOMAS C. QUICK
Director
- -----------------------------------------------------
FRANCENE S. RODGERS
Director
- -----------------------------------------------------
JOHN W. ROWE
* Director
- -----------------------------------------------------
THOMAS M. RYAN
* Director
- -----------------------------------------------------
PAUL R. TREGURTHA
* By /s/ WILLIAM C. MUTTERPERL
-----------------------------------------------
WILLIAM C. MUTTERPERL
ATTORNEY-IN-FACT
</TABLE>
II-5
<PAGE> 139
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 December 8, 1999.
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-6
<PAGE> 140
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBITS
--------
<S> <C> <C>
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 as of December 6, 1999 between
FleetBoston and The Bank of New York, as Trustee.
*4(b) -- Form of Warrant Agreement for Warrants attached to Debt
Securities.
*4(c) -- Form of Warrant Agreement for Warrants not attached to Debt
Securities.
*4(d) -- Form of Warrant Agreement for Universal Warrants.
4(e) -- Form of Put Warrant (included in Exhibit 4(d)).
4(f) -- Form of Call Warrant (included in Exhibit 4(d)).
*4(g) -- Form of Note for Senior Debt Securities.
*4(h) -- Subordinated Indenture dated as of December 6, 1999 between
FleetBoston and The Bank of New York, as Trustee.
*4(i) -- Form of Note for Subordinated Debt Securities.
4(j) -- Form of Medium-Term Note (incorporated by reference to
Exhibit 4(f) of Registration Statement No. 33-50216).
4(k) -- Restated Articles of Incorporation of FleetBoston
(incorporated by reference to Exhibit 3 of FleetBoston's
Quarterly Report on Form 10-Q dated September 30, 1999).
*4(l) -- Bylaws of FleetBoston.
4(m) -- Form of Certificate of Designations (incorporated by
reference to Exhibit 4(a) of Registration Statement No.
33-40967).
4(n) -- Form of Deposit Agreement (incorporated by reference to
Exhibit 4(b) of Registration Statement No. 33-40967).
4(o) -- 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(p) -- 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(q) -- Rights Agreement dated as of November 21, 1990 between
FleetBoston 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 FleetBoston's
Current Report on Form 8-K dated November 21, 1990, Exhibits
4(a) and 4(b) to FleetBoston's Current Report on Form 8-K
dated March 28, 1991 and Exhibit 99.3 to FleetBoston's
Current Report on Form 8-K dated February 20, 1995).
4(r) -- Instruments defining the rights of security holders,
including indentures (FleetBoston 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 FleetBoston and its subsidiaries
on a consolidated basis. FleetBoston hereby agrees to
furnish a copy of any such instrument to the Commission upon
request).
4(s) -- 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 FleetBoston's
Current Report on Form 8-K dated July 12, 1991).
</TABLE>
II-7
<PAGE> 141
<TABLE>
<CAPTION>
EXHIBITS
--------
<S> <C> <C>
*4(t)(i) -- Certificate of Trust of Fleet Capital Trust VI (incorporated
by reference to Exhibit 4(a)(vi) of Registration Statement
No. 333-48043), as amended by First Amendment to Certificate
of Trust of Fleet Capital Trust VI.
*4(t)(ii) -- Certificate of Trust of Fleet Capital Trust VII
(incorporated by reference to Exhibit 4(a)(vii) of
Registration Statement No. 333-48043), as amended by First
Amendment to Certificate of Trust of Fleet Capital Trust
VII.
*4(t)(iii) -- Certificate of Trust of Fleet Capital Trust VIII
(incorporated by reference to Exhibit 4(a)(viii) of
Registration Statement No. 333-48043), as amended by First
Amendment to Certificate of Trust of Fleet Capital Trust
VIII.
*4(t)(iv) -- Certificate of Trust of Fleet Capital Trust IX (incorporated
by reference to Exhibit 4(q)(ix) of Registration Statement
No. 333-62905), as amended by First Amendment to Certificate
of Trust of Fleet Capital Trust IX.
*4(t)(v) -- Certificate of Trust of Fleet Capital Trust X (incorporated
by reference to Exhibit 4(q)(x) of Registration Statement
No. 333-62905), as amended by First Amendment to Certificate
of Trust of Fleet Capital Trust X.
*4(u)(i) -- Declaration of Trust of Fleet Capital Trust VI (incorporated
by reference to Exhibit 4(b)(vi) of Registration Statement
No. 333-48043), as amended by First Amendment to Declaration
of Trust of Fleet Capital Trust VI.
*4(u)(ii) -- Declaration of Trust of Fleet Capital Trust VII
(incorporated by reference to Exhibit 4(b)(vii) of
Registration Statement No. 333-48043), as amended by First
Amendment to Declaration of Trust of Fleet Capital Trust
VII.
*4(u)(iii) -- Declaration of Trust of Fleet Capital Trust VIII
(incorporated by reference to Exhibit 4(b)(viii) of
Registration Statement No. 333-48043), as amended by First
Amendment to Declaration of Trust of Fleet Capital Trust
VIII.
*4(u)(iv) -- Declaration of Trust of Fleet Capital Trust IX (incorporated
by reference to Exhibit 4(r)(ix) of Registration Statement
No. 333-62905), as amended by First Amendment to Declaration
of Trust of Fleet Capital Trust IX.
*4(u)(v) -- Declaration of Trust of Fleet Capital Trust X (incorporated
by reference to Exhibit 4(r)(x) of Registration Statement
No. 333-62905), as amended by First Amendment to Declaration
of Trust of Fleet Capital Trust X.
*4(v) -- Form of Amended and Restated Declaration of Trust to be used
in connection with the issuance of the Preferred Securities.
*4(w) -- Form of Indenture between FleetBoston and The Bank of New
York, as Trustee.
*4(x) -- Form of Supplemental Indenture to be used in connection with
the issuance of the Junior Subordinated Debentures and
Preferred Securities.
4(y) -- Form of Preferred Security (included in Exhibit 4(v)).
4(z) -- Form of Junior Subordinated Debenture (included in Exhibit
4(x)).
*4(aa) -- Form of Preferred Securities Guarantee.
*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 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 Supplemental Consolidated Ratio of Earnings
to Fixed Charges and Preferred Dividends (incorporated by
reference to Exhibit 12(a) of FleetBoston's Current Report
on Form 8-K dated November 22, 1999).
12(b) -- Computation of Supplemental Consolidated Ratio of Earnings
to Fixed Charges (incorporated by reference to Exhibit 12(b)
of FleetBoston's Current Report on Form 8-K dated November
22, 1999).
</TABLE>
II-8
<PAGE> 142
<TABLE>
<CAPTION>
EXHIBITS
--------
<S> <C> <C>
*23(a) -- Consent of PricewaterhouseCoopers 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
FleetBoston (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 under the Trust Indenture
Act of 1939, as amended, of The Bank of New York, as Senior
Trustee.
**25(b) -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of The Bank of New York, as
Subordinated Trustee.
**25(c) -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of The Bank of New York, as Trustee
under the Indenture relating to Fleet Capital Trust VI,
Fleet Capital Trust VII, Fleet Capital Trust VIII, Fleet
Capital Trust IX and Fleet Capital Trust X.
**25(d) -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of The Bank of New York, as Trustee
under the Amended and Restated Declaration of Trust of Fleet
Capital Trust VI.
**25(e) -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of The Bank of New York, as Trustee
under the Amended and Restated Declaration of Trust of Fleet
Capital Trust VII.
**25(f) -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of The Bank of New York, as Trustee
under the Amended and Restated Declaration of Trust of Fleet
Capital Trust VIII.
**25(g) -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of The Bank of New York, as Trustee
under the Amended and Restated Declaration of Trust of Fleet
Capital Trust IX.
**25(h) -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of The Bank of New York, as Trustee
under the Amended and Restated Declaration of Trust of Fleet
Capital Trust X.
**25(i) -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of The Bank of New York, as Trustee
under the Preferred Securities Guarantee relating to Fleet
Capital Trust VI.
**25(j) -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of The Bank of New York, as Trustee
under the Preferred Securities Guarantee relating to Fleet
Capital Trust VII.
**25(k) -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of The Bank of New York, as Trustee
under the Preferred Securities Guarantee relating to Fleet
Capital Trust VIII.
**25(l) -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of The Bank of New York, as Trustee
under the Preferred Securities Guarantee relating to Fleet
Capital Trust IX.
**25(m) -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of The Bank of New York, as Trustee
under the Preferred Securities Guarantee relating to Fleet
Capital Trust X.
</TABLE>
- ---------------
* Filed herewith.
** Previously Filed.
II-9
<PAGE> 1
Exhibit 4(a)
- --------------------------------------------------------------------------------
FLEET BOSTON CORPORATION
AND
THE BANK OF NEW YORK
TRUSTEE
-----------------------------------
INDENTURE
DATED AS OF DECEMBER 6, 1999
-----------------------------------
SENIOR DEBT SECURITIES
- --------------------------------------------------------------------------------
<PAGE> 2
FLEET BOSTON CORPORATION
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND
INDENTURE, DATED AS OF DECEMBER 6, 1999
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
----------- -----------------
sec. 310(a)(1) ........................................ 609
(a)(2) ........................................ 609
(a)(3) ........................................ Not Applicable
(a)(4) ........................................ Not Applicable
(a)(5) ........................................ 609
(b) ........................................ 608
610
(c) ........................................ Not Applicable
sec. 311(a) ........................................ 613(a)
(b) ........................................ 613(b)
(b)(2) ........................................ 703(a)(2)
703(b)
sec. 312(a) ........................................ 701
702(a)
(b) ........................................ 702(b)
(c) ........................................ 702(c)
sec. 313(a) ........................................ 703(a)
(b) ........................................ 703(b)
(c) ........................................ 703(a), 703(b)
(d) ........................................ 703(c)
sec. 314(a)(1) ........................................ 704
(2), (3)
(a)(4) ........................................ 1009
(b) ........................................ Not Applicable
(c)(1) ........................................ 102
(c)(2) ........................................ 102
(c)(3) ........................................ Not Applicable
(d) ........................................ Not Applicable
(e) ........................................ 102
(f) ........................................ Not Applicable
sec. 315(a) ........................................ 601(a)
(b) ........................................ 602
703(a)(6)
-i-
<PAGE> 3
(c) ........................................ 610(b)
(d) ........................................ 610(c)
(d)(1) ........................................ 610(a)(1)
(d)(2) ........................................ 610(c)(2)
(d)(3) ........................................ 610(c)(3)
(e) ........................................ 514
sec. 316(a) ........................................ 101
(a)(1)(A) ........................................ 502
512
(a)(1)(B) ........................................ 513
(a)(2) ........................................ Not Applicable
(b) ........................................ 508
(c) ........................................ 104
sec. 317 (a)(1) ........................................ 503
(a)(2) ........................................ 504
(b) ........................................ 1003
sec. 318(a) ........................................ 107
- ---------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
-ii-
<PAGE> 4
TABLE OF CONTENTS
-----------------
ARTICLE ONE - DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION..........1
SECTION 101. DEFINITIONS......................................................1
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.............................7
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE...........................8
SECTION 104. ACTS OF HOLDERS..................................................8
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY............................9
SECTION 106. NOTICE TO HOLDERS; WAIVER.......................................10
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT...............................10
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS........................10
SECTION 109. SUCCESSORS AND ASSIGNS..........................................10
SECTION 110. SEPARABILITY CLAUSE.............................................10
SECTION 111. BENEFITS OF INDENTURE...........................................11
SECTION 112. GOVERNING LAW...................................................11
SECTION 113. LEGAL HOLIDAYS..................................................11
SECTION 114. JUDGMENT CURRENCY; PAYMENT TO BE IN PROPER CURRENCY.............11
SECTION 115. MONEYS OF DIFFERENT CURRENCIES TO BE SEGREGATED.................12
ARTICLE TWO - SECURITY FORMS..................................................12
SECTION 201. FORMS GENERALLY.................................................12
SECTION 202. FORM OF SECURITIES..............................................12
SECTION 203. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.................13
ARTICLE THREE - THE SECURITIES................................................13
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES............................13
SECTION 302. DENOMINATIONS...................................................15
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING..................15
SECTION 304. TEMPORARY SECURITIES............................................16
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.............17
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES................18
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED..................18
SECTION 308. PERSONS DEEMED OWNERS...........................................20
SECTION 309. CANCELLATION....................................................20
SECTION 310. COMPUTATION OF INTEREST.........................................20
SECTION 311. PAYMENT IN CURRENCIES...........................................20
SECTION 312. CUSIP NUMBERS...................................................22
ARTICLE FOUR - SATISFACTION AND DISCHARGE.....................................22
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.........................22
SECTION 402. APPLICATION OF TRUST MONEY......................................23
SECTION 403. SATISFACTION, DISCHARGE AND DEFEASANCE OF SECURITIES
OF ANY SERIES.................................................................23
SECTION 404. REPAYMENT TO COMPANY............................................26
SECTION 405. REINSTATEMENT...................................................26
ARTICLE FIVE - REMEDIES.......................................................26
SECTION 501. EVENTS OF DEFAULT...............................................26
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT..............27
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY TRUSTEE....................................................................28
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM................................29
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.....29
SECTION 506. APPLICATION OF MONEY OR OTHER PROPERTY COLLECTED................30
SECTION 507. LIMITATION ON SUITS.............................................30
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM, MATURITY CONSIDERATION AND INTEREST..................................31
<PAGE> 5
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES..............................31
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE..................................31
SECTION 511. DELAY OR OMISSION NOT WAIVER....................................31
SECTION 512. CONTROL BY HOLDERS..............................................31
SECTION 513. WAIVER OF PAST DEFAULTS.........................................32
SECTION 514. UNDERTAKING FOR COSTS...........................................32
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS................................32
ARTICLE SIX - THE TRUSTEE.....................................................33
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.............................33
SECTION 602. NOTICE OF DEFAULTS..............................................34
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.......................................34
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES..........35
SECTION 605. MAY HOLD SECURITIES.............................................35
SECTION 606. MONEY OR OTHER PROPERTY HELD IN TRUST...........................36
SECTION 607. COMPENSATION AND REIMBURSEMENT..................................36
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.........................36
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.........................37
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR...............37
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR..........................39
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.....40
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY...............40
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.............................40
ARTICLE SEVEN - HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY.............42
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.......42
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS..........42
SECTION 703. REPORTS BY TRUSTEE..............................................43
SECTION 704. REPORTS BY COMPANY..............................................43
ARTICLE EIGHT - CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE..........44
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS............44
SECTION 802. SUCCESSOR CORPORATION SUBSTITUTED...............................45
ARTICLE NINE - SUPPLEMENTAL INDENTURES........................................45
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS..............45
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.................46
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES............................47
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES...............................47
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.............................48
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES..............48
ARTICLE TEN - COVENANTS.......................................................48
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, THE MATURITY
CONSIDERATION AND INTEREST....................................................48
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY................................48
SECTION 1003. MONEY OR OTHER PROPERTY FOR SECURITIES PAYMENTS AND
DELIVERIES TO BE HELD IN TRUST................................................49
SECTION 1004. CORPORATE EXISTENCE............................................50
SECTION 1005. MAINTENANCE OF PROPERTIES......................................50
SECTION 1006. PAYMENT OF TAXES AND OTHER CLAIMS..............................50
SECTION 1007. LIMITATION ON SALE OR ISSUANCE OF CAPITAL STOCK OF CERTAIN
SUBSIDIARIES..................................................................50
SECTION 1008. LIMITATION UPON LIENS ON CERTAIN CAPITAL STOCK.................52
SECTION 1009. STATEMENT AS TO COMPLIANCE.....................................52
SECTION 1010. WAIVER OF CERTAIN COVENANTS....................................52
SECTION 1011. CALCULATION OF ORIGINAL ISSUE DISCOUNT.........................53
SECTION 1012. STATEMENT BY OFFICERS AS TO DEFAULT............................53
ARTICLE ELEVEN - REDEMPTION OF SECURITIES.....................................53
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SECTION 1101. APPLICABILITY OF ARTICLE.......................................53
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE..........................53
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED..............53
SECTION 1104. NOTICE OF REDEMPTION...........................................54
SECTION 1105. DEPOSIT OF REDEMPTION PRICE....................................54
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE..........................54
SECTION 1107. SECURITIES REDEEMED IN PART....................................55
ARTICLE TWELVE - SINKING FUNDS................................................55
SECTION 1201. APPLICABILITY OF ARTICLE.......................................55
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES..........55
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND......................56
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<PAGE> 7
INDENTURE, dated as of December 6, 1999, between FLEET BOSTON
CORPORATION, a corporation duly organized and existing under the laws of the
State of Rhode Island (herein called the "Company"), having its principal office
at One Federal Street, Boston, Massachusetts 02211, and THE BANK OF NEW YORK, a
New York banking corporation (herein called the "Trustee"), with its principal
corporate trust office located in New York, New York.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series and denominated in U.S.
dollars or foreign currencies, including units of two or more foreign
currencies, as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
Now, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed by the
Company and by the Trustee, for the equal and proportionate benefit of all
Holders of the Securities or of series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings, assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles
and, except as otherwise herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally accepted at the
date of such computation; and
(4) 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.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
<PAGE> 8
"Authenticating Agent" with respect to any series of Securities means
any person authorized by the Trustee pursuant to Section 614.
"Bank" means (i) any institution organized under the laws of the United
States, any State of the United States, the District of Columbia, any territory
of the United States, Puerto Rico, Guam, American Samoa or the Virgin Islands
which (a) accepts deposits that the depositor has a legal right to withdraw on
demand, and (b) engages in the business of making commercial loans and (ii) any
trust company organized under any of the foregoing laws.
"Board of Directors" means either the board of directors of the
Company, any duly authorized committee of that board or the Chairman, any Vice
Chairman, the President or any Vice President of the Company duly authorized by
the board of directors of the Company to take a specified action or make a
specified determination.
"Board Resolution" means 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 of the Company and to be in full force and effect on the
date of such certification, and delivered to the appropriate Trustee.
"Business Day" means any day other than a Saturday or Sunday that is
neither a legal holiday nor a day on which banking institutions are authorized
or obligated by law or regulation to close in The City of New York or (i) with
respect to Securities denominated in a Foreign Currency, in the city specified
in the Board Resolution pursuant to Section 301 or (ii) with respect to
Securities which will bear interest based on a specified percentage of London
interbank offered quotations, a day which is also a day on which banks in
London, England are open for business (including dealings in foreign exchange
and foreign currency deposits).
"Commission" means 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 on such date.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President, a
Vice Chairman, Chief Financial Officer or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Controller, an Assistant Controller, its
Secretary or an Assistant Secretary, and delivered to the Trustee.
"Components", with respect to a composite currency, means the currency
amounts that are components of such composite currency on the Conversion Date
with respect to such composite currency. After such Conversion Date if the
official unit of any component currency is altered by way of combination or
subdivision, the number of units of such currency in the Component shall be
proportionately divided or multiplied. After such Conversion Date if two or more
component currencies are consolidated into a single currency, the amounts of
those currencies as Components shall be replaced by an amount in such single
currency equal to the sum of the amounts of such consolidated component
currencies expressed in such single currency, and such amount shall thereafter
be a Component. If after such Conversion Date any component currency shall be
divided into two or more currencies, the amount of such currency as a Component
shall be replaced by amounts of such two or more currencies, each of which shall
be equal to the amount of such former component currency
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<PAGE> 9
divided by the number of currencies into which such component currency was
divided, and such amounts shall thereafter be Components.
"Constituent Bank" means a Subsidiary which is a Bank.
"Conversion Date", with respect to a composite currency, has the
meaning specified in Section 311(d).
"Corporate Trust Office" means the corporate trust office of the
Trustee located in the Borough of Manhattan, The City of New York, at which at
any particular time its corporate trust business shall be administered, which
office, at the date of the execution hereof, is located at 101 Barclay Street,
Floor 8 West, New York, New York 10286, Attention: Corporate Trust Trustee
Administration.
"Corporation" includes corporations, associations, companies and
business trusts.
"Defaulted Interest" has the meaning specified in Section 307.
"Euro" means the single currency of participating member states which
was introduced on January 1, 1999 at the commencement of the third stage of
European economic and monetary union pursuant to the Treaty establishing the
European Community as amended by the Treaty on European Union (and references
during the transitional period following the introduction of the Euro on January
1, 1999 up to the end of the transitional period on December 31, 2001 to
"Deutsche marks" or "DM" and to "French francs" or "FFR" refer, in each case to
the national currency units of, respectively, Germany and France (being
non-decimal denominations of the Euro)).
"Event of Default" has the meaning specified in Section 501.
"Exchange Rate" means (a) if pursuant to Section 311(a) payment is to
be made in U.S. dollars with respect to a Security denominated in a Foreign
Currency, the highest firm bid quotation for U.S. dollars received by the
Exchange Rate Agent at approximately 11:00 A.M. New York City time on the second
Business Day preceding the applicable payment date (or, if no such rates are
quoted on such date, the last date on which such rates were quoted), from three
recognized foreign exchange dealers in The City of New York selected by the
Exchange Rate Agent and approved by the Company (one of which may be the
Exchange Rate Agent) for the purchase by the quoting dealer, for settlement on
such payment date, of the aggregate amount of the Foreign Currency payable on
such payment date in respect of all Securities denominated in such Foreign
Currency and (b) if an Exchange Rate is to be computed for purposes of any
provision other than Section 311(a), the rate determined pursuant to the
foregoing clause (a) on such date and at such time as may be specified in the
relevant provision.
In the case of clause (a) above, if no such bid quotations are
available, payments pursuant to Section 311(a) will be made in the applicable
Foreign Currency, unless such Foreign Currency is unavailable due to the
imposition of exchange controls (or, in the case of a composite currency, such
currency ceases to be used for the purposes for which it was established as
provided in Section 311(d) (ii)) or other circumstances beyond the control of
the Company, in which case the Company will be entitled to make payments in U.S.
dollars on the basis of the Market Exchange Rate for such Foreign Currency.
If for any reason any of the foregoing rates are not available with
respect to one or more Foreign Currencies for which an Exchange Rate is
required, the Company shall use the most recently available quotation of the
Federal Reserve Bank of New York, or quotations from one or more commercial
banks in The City of New York or in the country of issue of the Foreign Currency
in question, or such other quotations as the Company, in each case, shall deem
appropriate; provided, however, that if there is more than one market for
dealing in any Foreign Currency by reason of foreign
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<PAGE> 10
exchange regulations or otherwise, the market to be used for such quotations
shall be the largest market upon which a nonresident issuer of securities
designated in such Foreign Currency would purchase such Foreign Currency in
order to make payments in respect of such securities.
"Exchange Rate Agent" means the New York clearing house bank designated
by the Company to act as such for any series of Securities (with notice to the
Trustee for that series), or any successor thereto, and may be the Trustee for
the series.
"Exchange Rate Officer's Certificate", with respect to any date for the
payment of principal of (and premium, if any) and interest on any series of
Securities, means a certificate signed by an officer of the Exchange Rate Agent
and delivered to the Company and to the Trustee, setting forth (i) the
applicable Market Exchange Rate or Exchange Rate and (ii) the U.S. dollar or
Foreign Currency amount of principal (and premium, if any) and interest payable
with respect to a Security of any series on the basis of the Market Exchange
Rate or Exchange Rate, as the case may be (on an aggregate basis and on the
basis of a Security having the lowest denomination principal amount pursuant to
Section 302 in the relevant currency).
"Fleet National Bank" means Fleet National Bank, a national banking
association.
"Foreign Currency" means a currency issued by the government of any
country (other than a currency of the United States of America) or a currency
based on the aggregate value of currencies of any group of countries.
"Foreign Government Obligations" has the meaning specified in Section
403.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means with respect to each series of Securities for which a
Person is acting as Trustee, this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities for which such
Person is Trustee established as contemplated by Section 301 exclusive, however,
of any provisions or terms which relate solely to other series of Securities for
which such Person is not Trustee, regardless of when such terms or provisions
were adopted, and exclusive of any provisions or terms adopted by means of one
or more indentures supplemental hereto executed and delivered after such Person
had become such Trustee but to which such Person, as such Trustee, was not a
party.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Judgment Currency" has the meaning specified in Section 114.
"Market Exchange Rate" means (a) if pursuant to Section 311(d) (i),
payment is to be made in U.S. dollars with respect to a Security denominated in
a Foreign Currency (other than a composite currency), the noon buying rate in
The City of New York for cable transfers of such Foreign Currency as certified
by the Federal Reserve Bank of New York on the second Business Day preceding the
applicable payment date and (b) if pursuant to Section 311(d) (ii) payment is to
be made in U.S. dollars with respect to a Security denominated in a composite
currency, for each Component of such composite currency, the Market Exchange
Rate determined pursuant to the foregoing clause (a) on the second Business Day
preceding the applicable payment date.
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<PAGE> 11
In the event a Market Exchange Rate as described in clause (a) or (b)
above is not available, the Company will be entitled to make payments in U.S.
dollars pursuant to Section 311(d) (i) or (ii) on the basis of the most recently
available Market Exchange Rate for such Foreign Currency or each Component of
such composite currency, as the case may be.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security, an installment of principal or the
Maturity Consideration becomes due and payable or deliverable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Maturity Consideration" means securities, which may be issued by the
Company or another Person, or a combination of cash, such securities and/or
other property that may be delivered to Holders of Securities of any series to
satisfy the Company's obligations with regard to payment upon Maturity, or any
redemption or required repurchase or in connection with any exchange provisions,
or any interest payment.
"New York Banking Day" has the meaning specified in Section 114.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President, a Vice Chairman, the Chief Financial Officer or a 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.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee to whom such
opinion is to be provided.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities of any series theretofore canceled by the
Trustee or delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee for
such series or any Paying Agent for such series (other than the
Company) in trust or set aside and segregated in trust by the Company
(if the Company shall act as its own Paying Agent) for the Holders of
such Securities; provided that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been
made; and
(iii) Securities of any series which have been paid pursuant
to Section 306 or in exchange for or in lieu of which other Securities
have been authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Securities
are held by a bona fide purchaser in whose hands such Securities are
valid obligations of the Company.
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
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<PAGE> 12
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which are registered in the Security Register
in the name of the Company, any obligor stated to be so obligated on such
Securities or any Affiliate of the Company or such obligor which is listed as
such on an Officers' Certificate delivered to the Trustee for that series shall
be so disregarded. Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee for such series the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means for any series any Person authorized by the
Company to pay or deliver the principal of (and premium, if any), Maturity
Consideration or interest on, any Securities of that series on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any),
Maturity Consideration and interest on the Securities of that series are payable
or deliverable as specified as contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Constituent Bank" means Fleet National Bank or such other
Constituent Bank(s) as may be designated from time to time, pursuant to a Board
Resolution and set forth in an Officer's Certificate, pursuant to the terms of
Section 301 hereof. If a Constituent Bank is designated as a Principal
Constituent Bank in connection with the Securities of any series, such Principal
Constituent Bank shall remain a Principal Constituent Bank until such time as
the Securities of such series are repaid.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price or Maturity Consideration specified in such Security
at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Required Currency" means the currency in which principal of (and
premium, if any), Maturity Consideration and interest on a Security is payable
pursuant to Section 311.
"Responsible Officer", means, when used with respect to The Bank of New
York, an officer within the corporate trust department and, when used with
respect to any other Trustee, any trust officer or any other officer performing
functions similar to those performed by the persons who at the time shall be
such officers, and any other officer of such Trustee to whom corporate trust
matters are
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<PAGE> 13
referred because of his knowledge of and familiarity with the particular subject
and who shall have direct responsibility for the administration of this
Indenture.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Register", "Security Registrar" and "Co-Security Registrar"
have the respective meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Specified Currency" means the currency in which the Securities of any
series are denominated.
"Stated Maturity", when used with respect to any Security or any
installment of principal, Maturity Consideration thereof or interest thereon,
means the date specified in such Security or a coupon representing such
installment of interest as the fixed date on which the principal or Maturity
Consideration of such Security or such installment of principal, Maturity
Consideration or interest is due and payable or deliverable.
"Subsidiary" means a corporation more than 50% of the Voting Stock of
which is owned, directly or indirectly, by the Company or by one or more other
Subsidiaries, or by the Company and one or more other Subsidiaries.
"Trustee" means the Person named as "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to the securities of that series.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended by the Trust Indenture Reform Act of 1990, as in force at the date as
of which this instrument was executed, except as provided in Section 905.
"U.S. Government Obligations" has the meaning specified in Section 403.
"Vice President", when used with respect to the Company or a Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"Voting Stock" means stock of the class or classes having general
voting power under ordinary circumstances to elect at least a majority of the
board of directors, managers or trustees of such corporation (irrespective of
whether or not at the time stock of any other class or classes shall have or
might have voting power by reason of the happening of any contingency).
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to any Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
such Trustee an Officers' Certificate stating that all conditions precedent
(including any covenants, compliance with which constitutes a condition
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 (including any covenants,
compliance with which constitutes a condition precedent), if any, have been
complied with, except that in the case of any such application or request as to
which the
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<PAGE> 14
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than annual
certificates provided pursuant to Section 1009) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(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 each such individual,
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, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of Securities of any series may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Holders in person
or by agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section
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<PAGE> 15
601) conclusive in favor of such Trustee and the Company, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which such Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof or
the Holder of any Predecessor Security in respect of anything done, omitted or
suffered to be done by the Trustee or the Company in reliance thereon, whether
or not notation of such action is made upon such Security.
(e) For purposes of determining the principal amount of Outstanding
Securities of any series, or if such outstanding Securities are not payable at
Maturity for a fixed principal amount, the issue price, the Securityholders of
which are required, requested or permitted to give any request, demand,
authorization, direction, notice, consent, waiver or take any other Act under
the Indenture, each Security denominated in a Foreign Currency shall be deemed
to have a principal amount or issue price determined by converting the principal
amount or issue price of such Security in the currency or currencies in which
such Security is denominated into U.S. dollars at the Exchange Rate(s) as of
9:00 A.M. New York City time as determined by an Exchange Rate Agent (as
evidenced by a certificate of such Exchange Rate Agent) on the date such Act is
delivered to the Trustee pursuant to Section 104(a). Any such determination by
the Company or an Exchange Rate Agent shall be conclusive and binding on the
Holders and the Trustee, and neither the Company nor such Exchange Rate Agent
shall be liable therefor in the absence of bad faith.
(f) The Company may, but shall not be obligated to, set a record date
for purposes of determining the identity of Holders entitled to vote or consent
to any action by vote or consent authorized or permitted under this Indenture,
which record date shall be the later of 10 days prior to the first solicitation
of such consent or the date of the most recent list of Holders furnished to the
Trustee pursuant to Section 701 of this Indenture prior to such solicitation. If
a record date is fixed, those persons who were Holders of Securities at such
record date (or their duly designated proxies), and only those persons, shall be
entitled to take such action by vote or consent or to revoke any vote or consent
previously given, whether or not such persons continue to be Holders after such
record date. No such vote or consent shall be valid or effective for more than
120 days after such record date.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
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(1) the Trustee by any Holder of any Securities or by the
Company shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its Corporate
Trust Office; or
(2) the Company by the Trustee or by any Holder of Securities
shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed, first-class
postage prepaid, to the Company addressed to the attention of its
Secretary at the address of its principal office specified in the first
paragraph of this instrument, or at any other address previously
furnished in writing to such Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any series of
Securities of any event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at his address as it
appears in the Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. In any
case where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. In the
event that notice to Holders is given as provided in this Section 106, such
notice shall be deemed sufficient as to all Holders and shall be conclusively
presumed to have been given whether or not actually received. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of such Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If and to the extent that any provision hereof limits, qualifies or
conflicts with the duties imposed by any of Section 310 to 317, inclusive, of
the Trust Indenture Act through operation of Section 318(c) thereof, such
imposed duties shall control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
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Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York without regard to conflicts of
laws principles thereof.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities) payment or delivery of interest or principal (and premium, if any)
or Maturity Consideration need not be made at such Place of Payment on such
date, but may be made on the next succeeding Business Day, or such other
Business Day as may be specified in an Officers' Certificate delivered to the
appropriate Trustee pursuant to Section 301 hereof, at such Place of Payment
with the same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity, provided that no interest shall
accrue for the period from and after such Interest Payment Date, Redemption Date
or Stated Maturity, as the case may be.
SECTION 114. Judgment Currency; Payment to Be in Proper Currency.
Each reference in any Security, or in the Board Resolution relating
thereto, to any currency shall be of the essence. Subject to Section 311(d), the
Company agrees, to the fullest extent that it may effectively do so under
applicable law, that (a) if for the purpose of obtaining judgment in any court
it is necessary to convert the sum or amount of Maturity Consideration due or
payable in respect of the principal of (and premium, if any), Maturity
Consideration or interest on the Securities of any series in a Specified
Currency into a currency in which a judgment will be rendered (the "Judgment
Currency"), the rate of exchange used shall be the Exchange Rate (as determined
by the Exchange Rate Agent) as of 11:00 a.m. New York City time on the New York
Banking Day immediately preceding that on which final unappealable judgment is
given and (b) its obligations to make any payment or delivery of principal of
(and premium, if any), Maturity Consideration and interest on any Security (i)
shall not be discharged or satisfied by any tender by the Company, or recovery
by the Trustee, either pursuant to any judgment (whether or not entered in
accordance with subsection (a) above or otherwise, in any currency other than
the Required Currency, except to the extent that any such tender or recovery
shall result in such Trustee timely holding the full amount of the Required
Currency then due and payable in respect of such payments, (ii) shall be
enforceable as an alternative or additional cause of action for the purpose of
recovering in the Required Currency the amount, if any, by which such timely
holding shall fall short of the full amount of the Required Currency so
expressed to be then due and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. For purposes of the
foregoing, "New York Banking Day" means any day except a Saturday, Sunday or a
legal holiday in The City of New York or a day on which banking institutions in
The City of New York are authorized or required by law or executive order to
close. Except as permitted under Section 311(d), if any such tender or recovery
is in a currency other than the Required Currency, the Trustee for the series
may take such actions as it considers appropriate to exchange such currency for
the Required Currency; provided, however, that the Trustee shall have no
obligation to make any payment in any currency other than the currency tendered
to or recovered by such Trustee. The costs and risks of any such exchange,
including without limitation the risks of delay and exchange rate fluctuation,
shall be borne by the Company, and it shall remain fully liable for any
shortfall or delinquency in the full amount of the Required Currency then due
and payable, and in no circumstances shall the Trustee be liable
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therefor. The Company hereby waives any defense of payment based upon any such
tender or recovery which is not in the Required Currency, or which, when
exchanged for the Required Currency by the Trustee for the series, is less than
the full amount of the Required Currency then due and payable.
SECTION 115. Moneys of Different Currencies to be Segregated.
The Trustee shall segregate all moneys, funds and accounts held by such
Trustee hereunder in one currency from any moneys, funds and accounts in any
other currencies, notwithstanding any provision herein which would otherwise
permit such Trustee to commingle such moneys, funds and accounts.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution 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 the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities. If the form of Securities of any series is established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such
Securities.
The Trustees' certificates of authentication shall be in substantially
the form set forth in this Article.
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 202. Form of Securities
Each Security shall be in one of the forms approved from time to time
by or pursuant to a Board Resolution. Upon or prior to the delivery of a
Security in any such form to the Trustee for authentication, the Company shall
deliver to the Trustee the following:
(i) the Board Resolution by or pursuant to which such form of
Security has been approved, certified by the Secretary or an Assistant
Secretary of the Company;
(ii) the Officers' Certificate required by Section 301 of this
Indenture;
(iii) the Company Order required by Section 303 of this
Indenture; and
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(iv) the Opinion of Counsel required by Section 303 of this
Indenture.
SECTION 203. Form of Trustee's Certificate of Authentication.
This is one of the Securities of the series provided for under the
within mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By ________________________________
Authorized Signatory
Dated: __________________
ARTICLE THREE
THE SECURITIES
SECTION 301. 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. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series,
(1) the title of the Securities, including CUSIP numbers, of
the series (which shall distinguish the Securities of the series from
all other Securities);
(2) the Trustee for the Securities of the series (which
Trustee shall be the Trustee named herein or a successor Trustee
appointed in accordance with the terms of this Indenture);
(3) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906 or
1107);
(4) the date or dates on which the principal or Maturity
Consideration of the Securities of the series is payable or
deliverable;
(5) the rate or rates, or the method to be used in
ascertaining the rate or rates, at which the Securities of the series
shall bear interest, if any, the date or dates from which such interest
shall accrue, the Interest Payment Dates on which such interest shall
be payable or deliverable and the Regular Record Date for the interest
payable or deliverable on any Interest Payment Date;
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(6) the place or places where the principal of (and premium,
if any), Maturity Consideration and interest on Securities of the
series shall be payable or deliverable, the place or places where the
Securities of such series may be presented for registration of transfer
or exchange, and the place or places where notices and demands to or
upon the Company in respect of the Securities of such series may be
made;
(7) the period or periods within which, the price, prices or
Maturity Consideration at 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;
(8) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and the
terms and conditions upon which Securities of such series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(9) the denominations in which Securities of the series shall
be issuable;
(10) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the maturity thereof
pursuant to Section 502;
(11) (A) the currency of denomination of the Securities of the
series, which may be in U.S. dollars or any Foreign Currency, (B) if
such currency of denomination of such series is a composite currency
other than the Euro, the agency or organization, if any, responsible
for overseeing such composite currency and (C) if such Securities are
denominated in a Foreign Currency, the financial center relative to the
Foreign Currency;
(12) If the Securities of the series are to be denominated in
a Foreign Currency, whether the Holders thereof may elect to have
payments of the principal of (and premium, if any) and interest on such
Securities made in such Foreign Currency;
(13) if the Securities of the series are to be denominated in
a Foreign Currency, the designation of an Exchange Rate Agent;
(14) if the amount of payments of principal of (and premium,
if any), Maturity Consideration or interest, if any, on the Securities
of the series may be determined with reference to an index based on a
coin or currency other than that in which the Securities are stated to
be payable, the manner in which such amounts shall be determined;
(15) the extent to which any of the Securities will be
issuable in temporary or permanent global form, and the manner in which
any interest payable or deliverable on a temporary or permanent global
Security shall be paid or delivered;
(16) any addition to or modification or deletion of any Event
of Default or covenants of the Company with respect to the Securities
of such series whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein;
(17) any covenant solely for the benefit of the Securities of
the series;
(18) the applicability of Section 403 of this indenture to the
Securities of the series;
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(19) the appointment of any Paying Agent or Agents for the
Securities of such series;
(20) whether, and the terms and conditions relating to when
the Company may satisfy all or part of its obligations with regard to
payment or delivery upon Maturity, or any redemption or required
repurchase or in connection with any exchange provisions, or any
interest payment, by paying or delivering Maturity Consideration to the
Holders of the Securities; and
(21) 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 Board Resolution and set forth in such Officers' Certificate or in any
such indenture supplemental hereto.
At the option of the Company, interest on the Securities of any series
that bears interest may be paid by mailing a check to the address of the person
entitled thereto as such address shall appear in the Security Register.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, 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 setting forth the terms of the series.
SECTION 302. Denominations.
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 301. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President, one of its Vice Chairmen or one of its
Vice Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
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, together with a Company Order for the
authentication and delivery of such Securities and such other documents as such
Trustee may reasonably request, and such Trustee in accordance with the Company
Order and subject to the provisions hereof shall authenticate and deliver such
Securities. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
such Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating:
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(a) if the form of such securities has been established by or
pursuant to Board Resolution as permitted by Section 201, that such
form has been established in conformity with the provisions of this
Indenture;
(b) if the terms of such Securities have been established by
or pursuant to Board Resolution as permitted by Section 301, that such
terms have been established in conformity with the provisions of this
Indenture; and
(c) that all conditions precedent to the authentication and
delivery of such Securities have been complied with and that such
Securities, when authenticated and delivered by the Trustee for such
series 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, enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting the enforcement of creditors, rights and to general equity
principles.
If such form or terms have been so established, such Trustee shall not
be required to authenticate such Securities if the issuance of such Securities
pursuant to this Indenture will affect such Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to such Trustee.
Notwithstanding the generality of the foregoing, the Trustee will not
be required to authenticate Securities denominated in a Foreign Currency if the
Trustee reasonably believes that it would be unable to perform its duties with
respect to such Securities.
Each Security shall be dated the date of its authentication.
No Security of any series shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose, unless there appears on
such Security a certificate of authentication substantially in the form provided
for herein executed by the Trustee by manual signature of one of its authorized
officers, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee for such series shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of the same series of authorized denominations.
Until so exchanged the temporary
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Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the office of the Security
Registrar designated pursuant to this Section 305 or Section 1002 a register
(being the combined register of the Security Registrar and all Co-Security
Registrars and herein sometimes collectively referred to as the "Security
Register") in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Securities and of transfers of
Securities. The Trustee is hereby initially appointed Security Registrar with
respect to the series of Securities for which it is acting as Trustee, in each
case for the purpose of registering Securities and transfers of Securities as
herein provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
a like aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company, the Security Registrar or the
Co-Security Registrar for the series) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Company, the Security
Registrar or the Co-Security Registrar for the series duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
Neither the Company, the Security Registrar nor any Co-Security
Registrar shall be required (i) to issue, register the transfer of or exchange
Securities of any series during a period beginning at the opening of business 15
days before the day of the mailing of a notice of redemption of Securities of
that series selected for redemption under Section 1103 and ending at the close
of business on the day of such mailing, or (ii) to register the transfer of or
exchange any Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security of any series is surrendered to the Trustee,
together with such security or indemnity as may be required by the Company or
the Trustee to save each of them harmless, the Company shall execute and such
Trustee shall authenticate and deliver in exchange therefor a new Security of
the same series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
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If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request such Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security or deliver the Maturity
Consideration deliverable thereon.
Upon the issuance of any new Security under this Section, 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 (including the fees and expenses of such Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided, as contemplated by Section 301, interest on
any Security which is payable or deliverable, and is punctually paid, delivered
or duly provided for, on any Interest Payment Date shall be paid or delivered to
the Person in whose name that Security (or one or more Predecessor Securities)
is registered at the close of business of the Regular Record Date for such
interest, PROVIDED, HOWEVER, that in the case of a Security originally issued
between a Regular Record Date and the Interest Payment Date or on an Interest
Payment Date relating to such Regular Record Date, interest for the period
beginning on the date of issue and ending on such Interest Payment Date shall be
paid or delivered on the next succeeding Interest Payment Date to the Person in
whose name such Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date with respect to such
succeeding Interest Payment Date.
Any interest on any Security of any series which is payable or
deliverable, but is not punctually paid, delivered or duly provided for, on any
Interest Payment Date (herein called "Defaulted Interest") shall forthwith cease
to be payable or deliverable to the Holder on the relevant Regular Record Date
by virtue of having been such Holder, and such Defaulted Interest may be paid or
delivered by the Company, at its election in each case, as provided in Clause
(1) or (2) below:
(1) The Company may elect to make payment or delivery of any
Defaulted Interest to the Persons in whose names the Securities of such
series (or their respective Predecessor Securities) are registered at
the close of business on a Special Record Date for the payment or
delivery 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 or delivered on
each Security of such series and
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the date of the proposed payment or delivery, and at the same time the
Company shall deposit with such Trustee an amount of money or other
property equal to the aggregate amount proposed to be paid or delivered
in respect of such Defaulted Interest or shall make arrangements
satisfactory to such Trustee for such deposit prior to the date of the
proposed payment or delivery, such money or other property when
deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this Clause provided. Thereupon such
Trustee shall fix a Special Record Date for the payment or delivery of
such Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment or delivery
and not less than 10 days after the receipt by such Trustee of the
notice of the proposed payment or delivery. Such 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
or delivery of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder of
Securities of such series at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment or delivery of such Defaulted Interest
and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid or delivered to the Persons in whose
names the Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable or deliverable pursuant to
the following Clause (2).
(2) The Company may make payment or delivery of any Defaulted
Interest on the Securities of any series 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 Trustee
of the proposed payment or delivery pursuant to this Clause, such
manner of payment shall be deemed practicable by such Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security of any series for registration
of transfer, the Company, the Trustee and any agent of the Company or such
Trustee may treat the Person in whose name such Security is registered as the
owner of such Security for the purpose of receiving payment or delivery of
principal of (and premium, if any), Maturity Consideration in respect of, and
(subject to Section 307) interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
such Trustee nor any agent of the Company or such Trustee shall be affected by
notice to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be canceled and delivered to
such Trustee. The Company may at any time deliver to the Trustee for
cancellation any Securities of such series previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly canceled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for
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any Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Securities held by such Trustee shall
be disposed of by the Trustee in accordance with its customary procedures and
such Trustee shall provide to the Company, if requested by the Company, a
certificate of such disposition.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a year of twelve 30-day months.
SECTION 311. Payment in Currencies.
(a) Unless otherwise provided in Section 301 hereof, subject to
subsection (b) hereof, if the Maturity Consideration is to be satisfied by a
cash payment, payment of the principal of (and premium, if any), Maturity
Consideration and interest on the Securities of any series, whether or not
denominated in a Foreign Currency pursuant to Section 301 shall be made in U.S.
dollars. If a series of Securities is denominated in a Foreign Currency, the
amount receivable in U.S. dollars by the Holders of such series shall be
determined as provided in Section 311(c).
(b) If authorized pursuant to Section 301, any Holder of a Security of
a series of Securities denominated in a Foreign Currency may elect to receive
payments in the Foreign Currency in which such Security is denominated pursuant
to Section 301. A Holder may make such election by delivering to the Trustee a
written notice thereof, in such form as may be acceptable to such Trustee, not
later than the close of business on the Regular Record Date or Special Record
Date, as the case may be, immediately preceding the applicable Interest Payment
Date or the fifteenth day immediately preceding the Maturity of an installment
of principal, as the case may be. Such election shall remain in effect with
respect to such Holder until such Holder delivers to such Trustee a written
notice rescinding such election; PROVIDED, HOWEVER, that any such notice must be
delivered to such Trustee not later than the close of business on the Regular
Record Date or Special Record Date, as the case may be, immediately preceding
the next Interest Payment Date or the fifteenth day immediately preceding the
Maturity of an installment of principal, as the case may be, in order to be
effective for the payment to be made thereon; and PROVIDED, FURTHER, that no
such rescission may be made with respect to payments to be made on any Security
with respect to which notice of redemption has been given by the Company
pursuant to Article Eleven. The Trustee will advise the Company, in writing, of
the aggregate amount payable in a Foreign Currency pursuant to an election under
this subsection (b).
(c) For each series of securities denominated in a Foreign Currency,
the Exchange Rate Agent shall deliver to the Company and to the Trustee, by
personal delivery, telecopy, or other means reasonably acceptable to such
Trustee and the Company not later than the close of business on the second
Business Day prior to the date each payment is required to be made with respect
to the Securities of such series, a copy of the Exchange Rate Officer's
Certificate relating to each such Foreign Currency. Payments in U.S. dollars
pursuant to Section 311(a) shall be equal to the sum obtained by converting the
specified Foreign Currency, which is to be paid in U.S. dollars pursuant to
Section 311(a), at the applicable Exchange Rate or Market Exchange Rate set
forth in such Exchange Rate Officer's Certificate.
(d) If the Foreign Currency, other than a composite currency, in which
a series of Securities is denominated is not available to the Company for making
payment thereof due to the imposition of exchange controls or other
circumstances beyond the control of the Company, then with respect to each date
for the payment of principal of (and premium, if any) and interest on such
series of Securities occurring after the last date on which the Foreign Currency
was so used, all payments with respect to
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the Securities of any such series shall be made in U.S. dollars. If payment is
to be made in U.S. dollars to the Holders of any such series of Securities
pursuant to the provisions of the preceding sentence, then the amount to be paid
in U.S. dollars on a payment date by the Company to the Trustee for the series
and by such Trustee or any Paying Agent to the Holders of Securities of such
series shall be determined by an Exchange Rate Agent and shall be equal to the
sum obtained by converting the specified Foreign Currency into U.S. dollars at
the applicable Market Exchange Rate set forth in an Exchange Rate Officer's
Certificate.
(e) All decisions and determinations of the Company or an Exchange Rate
Agent regarding the Exchange Rate, Market Exchange Rate or conversion of Foreign
Currency into U.S. dollars pursuant to Section 104(e) or this Section shall, in
the absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the Company (in the case of a determination by an Exchange Rate
Agent), the Trustee, any Paying Agent and all Holders of the Securities of such
series. If a Foreign Currency (other than a composite currency) in which payment
of a series of Securities may be made, pursuant to subsection (a) above, is not
available to the Company for making payments thereof due to the imposition of
exchange controls or other circumstances beyond the control of the Company, the
Company, after learning thereof, will give notice thereof to the Trustee
immediately (and such Trustee promptly thereafter will give notice to the
Holders of such series of Securities denominated in a Foreign Currency in the
manner provided in Section 106) specifying the last date on which such Foreign
Currency was used for the payment of principal of (and premium, if any), or
interest on such series of Securities. In the event any composite currency in
which a Security is denominated or payable ceases to be used for the purposes
for which it was established or is not available due to circumstances beyond the
control of the Company, the Company, after learning thereof, will give notice
thereof to the Trustee immediately (and such Trustee thereafter will give notice
to the Holders of such series of Securities denominated in a Foreign Currency in
the manner provided in Section 106). In the event of any subsequent change in
any Component of any composite currency in which a series of Securities is
denominated or payable, the Company, after learning thereof, will give notice to
the Trustee for the series similarly (and such Trustee promptly thereafter will
give notice to the Holders in the manner provided in Section 106). The Trustee
shall be fully justified and protected in relying and acting upon the
information so received by it from the Company and from any Exchange Rate Agent
and shall not otherwise have any duty or obligation to determine such
information independently. The Company agrees to appoint and maintain an
Exchange Rate Agent for the performance of the obligations of the Exchange Rate
Agent Specified herein.
SECTION 312. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; PROVIDED that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the "CUSIP" numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and
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each Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in
Section 306 and (ii) Securities for whose payment money or, if
applicable, such other property constituting Maturity
Consideration if determinable has theretofore been deposited
in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such
trust, as provided in Section 1003) have been canceled and
delivered to the appropriate Trustee; or
(B) all such Securities not theretofore canceled and delivered
to the appropriate Trustee
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) are to be called for redemption within
one year under arrangements satisfactory to the
appropriate Trustee for the giving of notice of
redemption by such Trustee in the name, and at the
expense, of the Company, and the Company, in the case
of (i), (ii) or (iii) above, has deposited or caused
to be deposited with such Trustee as trust funds in
trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness on such Securities
of the relevant series not theretofore delivered to
such Trustee for cancellation, for principal (and
premium, if any) and interest to the date of such
deposit (in the case of Securities which have become
due and payable) or to the Stated Maturity or
Redemption Date, as the case may be or, if
applicable, such other property constituting Maturity
Consideration if determinable;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to
Securities of all series as to which it is Trustee and if the other conditions
thereto are met. The effectiveness of any such instrument shall be conditioned
upon receipt of such instruments from the Trustee hereunder.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Company to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
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SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money, property, U.S. Government Obligations and Foreign Government Obligations
deposited with the Trustee pursuant to Sections 401 and 403 in respect of
Securities of a series shall be held in trust and applied by it, in accordance
with the provisions of such Securities and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Persons entitled thereto,
of the principal (and premium, if any), Maturity Consideration and interest for
whose payment such money has been deposited with the Trustee; unless otherwise
specified herein, such money need not be segregated from other funds except to
the extent required by law.
SECTION 403. Satisfaction, Discharge and Defeasance of Securities of
any Series. If this Section 403 is specified, as contemplated by Section 301, to
be applicable to the Securities of any series, the Company shall be deemed to
have paid and discharged the entire indebtedness on all the Securities of any
such series at the time Outstanding, and, upon Company Request, the Trustee for
the series, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction, discharge and defeasance of such indebtedness, when
(1) either
(A) with respect to all Securities of such series at
the time Outstanding, the Company shall have deposited or
caused to be deposited irrevocably with the Trustee as trust
funds in trust, (i) in the case of Securities denominated in a
Foreign Currency, money in such Foreign Currency or such
Foreign Government Obligations (as defined below) of the
government or governments issuing such Foreign Currency or a
combination thereof, or (ii) in the case of Securities
denominated in U.S. dollars, U.S. dollars or U.S. Government
Obligations (as defined below) or a combination thereof, in
each case, in an amount which, or which through the payment of
interest, principal and 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
in respect of the Securities for such series, money in an
amount sufficient (in the case of a deposit including any U.S.
Government Obligations or Foreign Government Obligations in
the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification
thereof delivered to such Trustee at or prior to the time of
such deposit) to pay and discharge each installment of
principal of (including any mandatory sinking fund payments),
premium, if any, and interest on, the Outstanding Securities
of such series on the dates such installments of principal
(and premium, if any), and interest are due or the Stated
Maturity or date of redemption of such series, if applicable;
or
(B) the Company has properly fulfilled such other
means of satisfaction and discharge as is specified, as
contemplated by Section 301, to be applicable to the
Securities of such series;
(2) the Company shall have delivered to the Trustee an
Officers' Certificate certifying as to whether the Securities of such
series are then listed on the New York Stock Exchange;
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(3) if the Securities of such series are then listed on the
New York Stock Exchange, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Company's exercise
of its option under this Section would not cause such Securities to be
delisted;
(4) no Event of Default or event (including such deposit)
which, with notice or lapse of time, or both, 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 as evidenced to
such Trustee in an Officers' Certificate delivered to such Trustee
concurrently with such deposit;
(5) the Company shall have paid or caused to be paid all other
sums payable with respect to the Securities of such series at the time
outstanding;
(6) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(7) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that Holders of the Securities of such series
will not recognize income, gain or loss for Federal income tax purposes
as a result of the Company's exercise of its option under this Section
403 and will be subject to Federal income tax on the same amount and in
the manner and at the same times as would have been the case if such
option had not been exercised, and, in the case of the Securities of
such series being discharged, accompanied by a ruling to that effect
received from, or published by, the Internal Revenue Service;
(8) the Company shall have delivered to the Trustee for the
series an Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein provided for relating to the
satisfaction, discharge and defeasance of the entire indebtedness on
all Securities of any such series at the time Outstanding have been
complied with; and
(9) the Company has delivered to the Trustee an Opinion of
Counsel to the effect that immediately following the deposit described
in clause (1) above neither the Company nor the Trust held by the
Trustee shall be an "investment company" or a company "controlled" by
an "investment company" within the meaning of the Investment Company
Act of 1940.
"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.
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Any deposits with the Trustee for the series referred to in Sections
401 and 403(l)(A) above shall be irrevocable and shall be made under the terms
of an escrow trust agreement in form and substance reasonably satisfactory to
the Trustee. If any Securities of a series with respect to which a deposit has
been made pursuant to Sections 401 and 403(l) (A) at the time outstanding are to
be redeemed prior to their Stated Maturity, whether pursuant to any optional
redemption provisions or in accordance with any mandatory sinking fund
requirement, the applicable escrow trust agreement shall provide therefor and
the Company shall make such arrangements as are satisfactory to the Trustee for
the series for the giving of notice of redemption by the Trustee for the series
in the name, and at the expense, of the Company. If the Securities of such
series are not to become due and payable at their Stated Maturity or upon call
for redemption within one year of the date of deposit, then the Company shall
give, promptly after the date of such deposit, notice of such deposit to the
Holders of Securities of such series.
Upon the satisfaction of the conditions set forth in this Section 403
with respect to all the Securities of any series at the time Outstanding, the
terms and conditions of such series, including the terms and conditions with
respect thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company (except as to any surviving rights of conversion or
registration of transfer or exchange and rights relating to mutilated,
destroyed, lost and stolen Securities pursuant to Section 306 of Securities of
such series expressly provided for herein or in the form of Security of such
series); PROVIDED, that the Company shall not be discharged from any payment
obligations in respect of Securities of such series which are deemed not to be
Outstanding under clause (iii) of the definition thereof if such obligations
continue to be valid obligations of the Company under applicable law; and
PROVIDED FURTHER that in the event a petition for relief under the Bankruptcy
Reform Act of 1978 or a successor statute is filed with respect to the Company
within 91 days after the deposit, the entire indebtedness on all Securities of
such series shall not be discharged and in such event the Trustee shall return
such deposited funds or obligations as it is then holding to the Company on
Company Request.
SECTION 404. Repayment to Company. After the payment in full of the
entire indebtedness of a series of Securities with respect to which a deposit
has been made with the Trustee pursuant to Section 403, such Trustee and any
Paying Agent for such series shall upon Company Request promptly return to the
Company any money, U.S. Government Obligations or Foreign Government Obligations
held by them that are not required for the payment of the principal of (and
premium, if any), and interest on the Securities of such series.
SECTION 405. Reinstatement. If the Trustee is unable to apply any
money, U.S. Government Obligations or Foreign Government Obligations in
accordance with Section 403 by reason of any legal proceeding or by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's obligations
under this Indenture and the Securities shall be revived and reinstated as
though no deposit had occurred pursuant to Section 403 until such time as the
Trustee is permitted to apply all such money, U.S. Government Obligations or
Foreign Government Obligations in accordance with Section 403.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
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(1) default in the payment or delivery of any interest upon
any Security of that series when it becomes due and payable, and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity; or
(3) default in the delivery or payment of Merger Consideration
when due; or
(4) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series; or
(5) 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 or which has expressly been
included in this Indenture solely for the benefit of series of
Securities other than that series), and continuance of such default or
breach for a period of 60 days after there has been given, for such
series 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 of that series a written
notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(6) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company or any
Principal Constituent Bank in an involuntary case or proceeding under
any applicable Federal or State bankruptcy, insolvency, reorganization
or other similar law or (B) a decree or order appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or any Principal Constituent Bank or of any
substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order for relief or any such other decree or order unstayed and in
effect for a period of 60 consecutive days; or
(7) the commencement by the Company or any Principal
Constituent Bank of a voluntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by any of the foregoing to the
entry of a decree or order for relief in an involuntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement
of any bankruptcy or insolvency case or proceeding, or the filing by
any of the foregoing of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State law, or
the consent by any of the foregoing to the filing of such petition or
to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of the
Company or any Principal Constituent Bank or of any substantial part of
the property of any, or the making by any of the foregoing of an
assignment for the benefit of creditors, or the admission by any of the
foregoing in writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by the Company or
any Principal Constituent Bank in furtherance of any such action; or
(8) any other Event of Default provided with respect to
Securities of that series.
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SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in principal amount or, if such Securities
are not payable at Maturity for a fixed principal amount, 25% of the aggregate
issue price of the Outstanding Securities of that series may declare the
principal amount or Maturity Consideration (or, if the 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 of the Securities of that
series to be due and payable or deliverable immediately, by a notice in writing
to the Company (and to such Trustee if given by Holders), and upon any such
declaration such principal amount (or specified amount) or Maturity
Consideration shall become immediately due and payable or deliverable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money or other property due or deliverable has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in principal amount or, if such Securities are not payable at Maturity for a
fixed principal amount, the aggregate issue price of the Outstanding Securities
of that series, by written notice to the Company and such Trustee, may rescind
and annul such declaration and its consequences if
(1) the Company has paid, or deposited with or delivered to
the Trustee a sum or other property sufficient to pay
(A) all overdue interest on all Securities of that
series,
(B) the principal of (and premium, if any, on) or
Maturity Consideration of any Securities of that series which
have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates
prescribed therefor in such Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid by such Trustee hereunder, the
Security Registrar, the Co-Security Registrar for such series
and any Paying Agent and the reasonable compensation,
expenses, disbursements and advances of any one of them and
their agents and counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of, or non-delivery
of the Maturity Consideration of, Securities of that series which have
become due solely by such declaration of acceleration, have been cured
or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) or the delivery of the Maturity Consideration of
any Security at the Maturity thereof,
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the Company will, upon demand of the Trustee, pay or deliver to it, for the
benefit of the Holders of such Securities, the whole amount or other property
then due and payable or deliverable on such Securities for principal (and
premium, if any), Maturity Consideration and interest on and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal (and premium, if any), Maturity Consideration and on any overdue
interest, at the rate or rates prescribed therefor in such Securities, and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of such Trustee, its agents and counsel.
If the Company fails to pay or deliver such amounts and/or other
consideration forthwith upon such demand, such Trustee, in its own name and as
trustee of an express trust, may institute a judicial proceeding for the
collection of the sums or other property so due and unpaid or not delivered, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys or other property adjudged or decreed to be payable or deliverable in the
manner provided by law out of the property of the Company or any other obligor
upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as such Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal or Maturity
Consideration of the Securities shall then be due and payable or deliverable as
therein expressed or by declaration or otherwise and irrespective of whether the
filing Trustee shall have made any demand on the Company for the payment of
overdue principal or interest or delivery of the Maturity Consideration) shall
be entitled and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any), Maturity Consideration and interest
owing and unpaid or undelivered in respect of the Securities of each
series for which the filing Trustee is Trustee and to file such other
papers or documents as may be necessary or advisable in order to have
the claims of such Trustee (including any claim for the reasonable
compensation, expenses and disbursements of such Trustee, its agents
and counsel) and of the Holders allowed in such judicial proceeding,
and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities of each series to make such payments or deliveries to
the Trustee and, in the event that such Trustee shall consent to the making of
such payments or deliveries directly to the Holders, to pay to such Trustee any
amount due it for the
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reasonable compensation, expenses, disbursements and advances of such Trustee,
its agents and counsel, and any other amounts due such Trustee under Section
607.
Nothing herein contained shall be deemed to authorize any Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize any Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by any Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by any Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of such Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. Application of Money or other Property Collected. Any
money or other property collected by the Trustee with respect to Securities of a
series pursuant to this Article shall be applied in the following order, at the
date or dates fixed by such Trustee and, in case of the distribution of such
money or other property on account of principal (or premium, if any), Maturity
Consideration or interest upon presentation of the Securities of such series and
the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due such Trustee under Section
607.
SECOND: To the payment of the amounts then due and unpaid for principal
of (and premium, if any), Maturity Consideration and interest on the Securities
of such series, in respect of which or for the benefit of which such money or
other property has been collected, ratably, without preference or priority of
any kind, according to the amounts due and payable on such Securities for
principal (and premium, if any), Maturity Consideration and interest,
respectively. Subject to Section 311(d)(ii), the Security Holders of each series
of Securities denominated in a Foreign Currency shall be entitled to receive a
ratable portion of the amount determined by an Exchange Rate Agent by converting
the principal amount Outstanding of such series of Securities in the currency in
which such series of Securities is denominated into U.S. dollars at the Exchange
Rate (as determined by the Exchange Rate Agent, as of the date of declaration of
acceleration of the Maturity of the Securities (or, if there is no such rate on
such date for the reasons specified in Section 311(d)(i), the applicable Market
Exchange Rate).
THIRD: The balance if any, to the persons entitled thereto.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the
Trustee for that series of a continuing Event of Default with respect
to the Securities of that series;
(2) the Holders of not less than 25% in principal amount or,
if such Securities are not payable at Maturity for a fixed principal
amount, the aggregate issue
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price of the Outstanding Securities of that series shall have made
written request to the Trustee for that series to institute proceedings
in respect of such Event of Default in its own name as Trustee
hereunder;
(3) such Holder or Holders have offered to the Trustee
indemnity satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) such Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to such Trustee during such 60-day period by the Holders of
a majority in principal amount or, if such Securities are not payable
at Maturity for a fixed principal amount, the aggregate issue price of
the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders 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 of
such Holders or Holders of any other series, or to obtain or to seek to obtain
priority or preference over any other of such Holders or to enforce any right
under this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all of such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium, Maturity Consideration and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment or delivery of the principal of (and premium, if any), Maturity
Consideration and (subject to Section 307) interest on such Security on the
Stated Maturity or Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement of
any such payment or delivery, and such rights shall not be impaired without the
consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If any Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
such Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, such Trustee and the Holders
shall be restored severally and respectively to their former positions hereunder
and thereafter all rights and remedies of such Trustee and the Holders shall
continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to any Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
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SECTION 511. Delay or Omission Not Waiver.
No delay or omission of any Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
any Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by such Trustee or by the Holders, as the case may
be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount, or if such Securities are not
payable at Maturity for a fixed principal amount, the aggregate issue price of
the Outstanding Securities of any series, 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 such Trustee, with
respect to the Securities of such series; provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) such Trustee may take any other action deemed proper by
such Trustee which is not inconsistent with such direction,
(3) such direction is not unduly prejudicial to the rights of
other Holders, and
(4) such direction would not involve such Trustee in personal
liability.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount, or if such
Securities are not payable at Maturity for a fixed principal amount, the
aggregate issue price of the Outstanding Securities of any series may on behalf
of the Holders of all the Securities of such series waive any past default
hereunder with respect to such series and its consequences, except a default
(1) in the payment or delivery of the principal of (or
premium, if any), Maturity Consideration or interest on any Security of
such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. Undertaking for 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,
suffered 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 and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities of any series, or to any suit instituted by
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any Holder for the enforcement of the payment of the principal of (or premium,
if any), Maturity Consideration or interest on any Security on or after the
Stated Maturity or Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the exercise of any power
herein granted to the Trustee, but will suffer and permit the exercise of every
such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this
Indenture and only with respect to series of Securities as to
which it is Trustee, and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to it 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) In case an Event of Default has occurred and is continuing as to a
series of Securities as to which it is Trustee, 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 person would exercise or use
under the circumstances in the conduct of his or her own affairs.
(c) 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
(1) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) 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 Holders of a
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majority in principal amount or, if such Securities are not payable at
Maturity for a fixed principal amount, the aggregate issue price, of
the Outstanding Securities of any series as to which it is the Trustee,
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 with respect to the
Securities of such series; and
(d) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(e) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder known to
the Trustee with respect to the Securities of any series, the Trustee shall
transmit by mail to all Holders of Securities of such series, as their names and
addresses appear in the Security Register, notice of such default hereunder,
unless such default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of (or premium,
if any), Maturity Consideration or interest on any Security of such series or in
the payment of any sinking fund installment with respect to 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 or Responsible Officers of the Trustee in good faith determine that
the withholding of such notice is in the interest of the Holders of Securities
of such series; and provided, further, that in the case of any default of the
character specified in Section 501(5) with respect to Securities of such series,
no such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section, the term "default" means
any event which is, or after notice or lapse of time or both would become, an
Event of Default with respect to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may conclusively rely and shall be protected
in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors of the Company may be
sufficiently evidenced by a Board Resolution of the Company;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed), may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
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(d) the Trustee may consult with counsel of its selection and
the advice of such counsel or any 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 reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee security or indemnity
satisfactory to the Trustee against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or
direction;
(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, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but such Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(h) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture;
(i) the Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the Trustee
has actual knowledge thereof or unless written notice of any event
which is in fact such a default is received by the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the
Securities and this Indenture; and
(j) the rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right
to be indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder, and to each agent,
custodian and other Person employed to act hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of
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Securities and, subject to Sections 608 and 613, may otherwise deal with the
Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 606. Money or Other Property Held in Trust.
Money held by the Trustee in trust or by any Paying Agent hereunder
need not be segregated from other funds or other property except to the extent
required by law. Neither the Trustee nor any Paying Agent shall be under any
liability for interest on any money or other property received by it hereunder.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay the Trustee, the Security Registrar, any
Co-Security Registrar and any Paying Agent, as the case may be, from
time to time such compensation as shall be agreed in writing between
the Company and the Trustee for all services rendered by them hereunder
(which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee, the Security Registrar, any Co-Security
Registrar and any Paying Agent, as the case may be, upon their request
for all reasonable expenses, disbursements and advances incurred or
made by any one of them in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of their agents and counsel), except any such expense,
disbursement or advance as may be attributable to their negligence or
bad faith;
(3) to indemnify each of the Trustee, the Security Registrar,
any Co-Security Registrar and any Paying Agent, as the case may be,
for, and to hold each of them harmless against, any and all loss,
liability, damage, claim or expense, including taxes (other than taxes
based on the income of the Trustee) incurred without negligence or bad
faith arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs
and expenses of defending themselves against any claim (whether
asserted by the Company, a Holder or any other Person) or liability in
connection with the exercise or performance of any of their powers or
duties hereunder (unless the Trustee, Security Registrar, a Co-Security
Registrar or Paying Agent was negligent or acted in bad faith in such
exercise or performance); and
(4) as security for the performance of the obligations of the
Company pursuant to this Section 607, the Trustee for the Securities of
any series shall have a lien prior to the Securities of all such series
upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of (and
premium, if any) or interest, if any, on the Securities of any such
series.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 608. Disqualification; Conflicting Interests.
The Trustee for the Securities issued hereunder shall be subject to the
provisions of Section 310(b) of the Trust Indenture Act during the period of
time provided for therein. In determining whether the Trustee has a conflicting
interest as defined in Section 310(b) of the Trust Indenture Act with respect to
the Securities of any series, there shall be excluded this Indenture with
respect to Securities of any particular series of Securities other than that
series. Nothing herein shall prevent the
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Trustee from filing with the Securities and Exchange Commission the application
referred to in the second to last paragraph of Section 310(b) of the Trust
Indenture Act.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall at all
times be either
(i) a corporation organized and doing business under
the laws of the United States of America, any State thereof or
the District of Columbia, authorized under such laws to
exercise corporate trust powers, and subject to supervision or
examination by Federal, State or District of Columbia
authority; or
(ii) a corporation or other Person organized and
doing business under the laws of a foreign government that is
permitted to act as Trustee pursuant to a rule, regulation or
order of the Commission, authorized under such laws to
exercise corporate trust powers, and subject to supervision or
examination by authority of such foreign government or a
political subdivision thereof substantially equivalent to
supervision or examination applicable to United States
institutional trustees; in either case having a combined
capital and surplus of at least $50,000,000.
If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, 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.
Neither the Company nor any person directly or indirectly controlling,
controlled by, or under common control with the Company shall serve as trustee
for the Securities of any series issued hereunder. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor
Trustee in accordance with the applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the
Securities of one or more of such series by giving written notice
thereof to the Company. If the instrument of acceptance by a successor
Trustee required by Section 611 shall not have been delivered to the
resigning Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition, at the expense of the
Company, any court of competent jurisdiction for the appointment of a
successor Trustee.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series,
delivered to such Trustee and to the Company. If an instrument of
acceptance by a successor Trustee shall not have been delivered to the
Trustee within 30 days after the giving of such notice of removal, the
Trustee being removed may petition, at the expense of the Company, any
court of competent
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jurisdiction for the appointment of a successor Trustee with respect to
the Securities of such series.
(d) If at any time:
(1) the Trustee shall fail to comply with Section
310(b) of the Trust Indenture Act after written request
therefor by the Company or by any Holder who has been a bona
fide Holder of a Security of any series for at least six
months, or
(2) the Trustee shall cease to be eligible under
Section 609 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation;
then, in any such case, (i) the Company by a Board Resolution may
remove the Trustee with respect to all Securities, or (ii) subject to
Section 514, any Holder who has been a bona fide Holder of a Security
for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee with respect to all Securities and the
appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, with respect to the Securities of one or more
series, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of that or
those series (it being understood that any such successor Trustee may
be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply
with the applicable requirements of Section 611. If, within one year
after such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee with respect to the Securities of any
series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered
to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 611, become the
successor Trustee with respect to the Securities of such series and to
that extent supersede the successor Trustee appointed by the Company.
If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 611, any holder who has
been a bona fide Holder of a Security of such series for at least six
months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and
each appointment of a
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successor Trustee with respect to the Securities of any series by
mailing written notice of such event by first-class mail, postage
prepaid, to all Holders of Securities of such series as their names and
addresses appear in the Security Register. Each notice shall include
the name of the successor Trustee with respect to the Securities of
such series and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to
the retiring Trustee or Trustees an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring
Trustee or Trustees shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee or
Trustees; but, on the request of the Company or the successor Trustee,
such retiring Trustee or Trustees shall, upon payment of its charges
and all amounts owing under Section 607, execute and deliver an
instrument transferring to such successor Trustee all the rights,
powers, and trusts of the retiring Trustee or Trustees and shall duly
assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee or Trustees hereunder.
(b) In case of the appointment hereunder of a successor
Trustee 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 one or more series shall execute and
deliver an indenture supplemental hereto wherein each successor Trustee
shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm
to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring
with respect to all Securities, 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 that or those series as to which the retiring Trustee is
not retiring shall continue to be vested in the retiring Trustee, and
(3) 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 trusts 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, 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 and
that no Trustee shall be responsible for any notice given to, or
received by, or any act or failure to act on the part of any other
Trustee hereunder, and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein, such
retiring Trustee shall with respect to the Securities of that or those
series to which the appointment of such successor Trustee
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relates have no further responsibility for the exercise of rights and
powers or for the performance of the duties and obligations vested in
the Trustee under this Indenture, and each such successor Trustee
without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request of the
Company or any successor Trustee, such retiring Trustee shall duly
assign, transfer and deliver to such successor Trustee, to the extent
contemplated by such supplemental indenture, the property and money
held by such retiring Trustee hereunder with respect to the Securities
of that or those series to which the appointment of such successor
Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights,
powers and trusts referred to in paragraph (a) or (b) of this Section,
as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business.
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 the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act
with respect to each series of Securities for which it is Trustee.
SECTION 614. Appointment of Authenticating Agent.
At any time when any of the Securities of any series remain Outstanding
the Trustee may appoint an Authenticating Agent or Agents with respect to any
such series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued upon exchange,
registration of transfer or partial redemption thereof and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by a Trustee or a Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of a Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of a Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus as most recently reported or determined by it sufficient under the laws
of any jurisdiction under which it is organized or in which it is doing business
to conduct a trust business, and which is otherwise authorized under such laws
to conduct such business and is subject to supervision or examination by Federal
or State authority. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
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The Trustee shall initially act as Authenticating Agent for each series
of Securities issued hereunder.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of any Trustee or the Authenticating Agent.
An Authenticating Agent with respect to any series may resign at any
time by giving written notice thereof to the Trustee for such series and to the
Company. The Trustee may at any time (and upon request by the Company shall)
terminate the agency of an Authenticating Agent by giving written notice thereof
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 such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
The provisions of Sections 308, 604 and 605 shall be applicable to each
Authenticating Agent.
Pursuant to each appointment made under this Section, the Securities of
each series covered by such appointment may have endorsed thereon, in addition
to the Trustee's certificate of authentication, an alternative certificate of
authentication in the following form:
This is one of the Securities of the series provided for under the
within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By __________________________________
As Authenticating Agent
By __________________________________
Authorized Officer
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each Regular
Record Date, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders of Securities of
such series as of such Regular Record Date; and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of the 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 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in
the most recent list furnished to the Trustee as provided in Section
701 and the names and addresses of Holders received by the Trustee in
its capacity as Co-Security Registrar. The Trustee may destroy any list
furnished to it as provided in Section 701 upon receipt of a new list
so furnished.
(b) If three or more Holders of Securities of any series
(herein referred to as "applicants") apply in writing to the Trustee,
and furnish to the Trustee reasonable proof that each such applicant
has owned a Security for a period of at least six months preceding the
date of such application, and such application states that the
applicants desire to communicate with other Holders of such series with
respect to their rights under this Indenture or under the Securities of
such series 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 five business days after the receipt of such
application, at its election, either
(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance with
Section 702(a); or
(ii) inform such applicants as to the approximate
number of Holders whose names and addresses appear in the
information preserved at the time by the Trustee in accordance
with Section 702(a), and as to the approximate cost of mailing
to such Holders 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 Holder whose name and address appear
in the information preserved at the time by the Trustee in accordance
with Section 702(a) a copy of the form of proxy or other communication
which is specified in such request, with reasonable promptness after a
tender to the Trustee of the material to be mailed and of payment, or
provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender the Trustee shall mail to
such applicants and file with the Commission, together with a copy of
the material to be mailed, a written statement to the effect that, in
the opinion of the
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Trustee, such mailing would be contrary to the best interest of the
Holders 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 Holders 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) Every Holder of Securities of each series, by receiving
and holding the same, agrees with the Company and the Trustee that
neither the Company nor the Trustee nor any agent of either of them
shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders in accordance
with Section 702(b), 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 Section 702 (b).
SECTION 703. Reports by Trustee.
(a) Within 60 days after August 15 of each year commencing
with the later of August 15, 2000 or the first August 15 after the
first issuance of Securities of a series for which the Trustee is
acting as Trustee pursuant to this Indenture, the Trustee shall
transmit by mail to all Holders of Securities of such series as
provided in Section 313(c) of the Trust Indenture Act, as their names
and addresses appear in the Security Register for such series, a brief
report dated as of such August 15 if required by Section 313(a) of the
Trust Indenture Act.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock
exchange, if any, upon which the Securities are listed, with the
Commission and with the Company. The Company will promptly notify the
Trustee when the Securities are listed on any stock exchange and of any
delisting thereof.
SECTION 704. Reports by Company.
The Company shall:
(1) 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 Securities Exchange Act of 1934; or, if the
Company is not required to file information, documents or reports
pursuant to either of said Sections, then it shall 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 Securities Exchange Act of
1934 in respect of a security listed and
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registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with 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
of this Indenture as may be required from time to time by such rules
and regulations; and
(3) transmit by mail to all Holders, as their names and
addresses appear in 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
paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
(4) delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of
such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein,
including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers'
Certificates).
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, unless:
(1) The corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation organized and
existing under the laws of the United States of America, any State
thereof or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee,
in form satisfactory to the Trustee, the due and punctual payment or
delivery of the principal of (and premium, if any) and interest on all
the Securities and the performance of every covenant of this Indenture
on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be
continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied
with.
SECTION 802. Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by the Company
into any other corporation or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 801, the successor corporation formed by such
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consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor corporation had been named as the Company
herein, and thereafter, except in the case of a lease, the predecessor
corporation shall be relieved of all obligations and covenants under this
Indenture and the Securities.
Such successor corporation may cause to be signed, and may issue either
in its own name or in the name of the Company, any or all of the Securities of
any series issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Trustee of Securities; 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 shall
authenticate and shall deliver such Securities which previously shall have been
signed and delivered by the officers of the Company to the Trustee for
authentication pursuant to such provisions and any Securities of a series which
such successor corporation thereafter shall cause to be signed and delivered to
the Trustee on its behalf for the purpose pursuant to such provisions. All the
Securities so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Securities theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such Securities had
been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, conveyance or lease,
such changes in phraseology and form may be made in the Securities thereafter to
be issued as may be appropriate.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another corporation to the
Company by merger, sale of assets or otherwise and the assumption by
any such successor of the covenants of the Company herein and in the
Securities; or
(2) to add to the covenants of the Company for the benefit 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 solely for the
benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the issuance of Securities in bearer form, registerable or not
registerable as to principal or Maturity Consideration, and with or
without interest coupons; or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision; or
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(6) to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee; or
(7) to establish the form or terms of Securities of any series
as permitted by Sections 201 and 301; or
(8) 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 611(b); or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided such action shall not
adversely affect the interests of the Holders of Securities of any
series in any material respect; or
(10) to provide for conversion rights of the Holders of
Securities of any series to enable such Holders to convert such
Securities into other securities of the Company.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than 66 2/3% in principal
amount or, if such Securities are not payable at Maturity for a fixed principal
amount, 66 2/3% of the aggregate issue price, of the Outstanding Securities of
each series affected by such supplemental indenture, by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and such Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture insofar as
they apply to such series or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, or any Maturity
Consideration of, any Outstanding Security, or reduce the principal
amount or Maturity Consideration thereof or the rate of interest
thereon or any premium payable or deliverable upon the redemption
thereof, or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502, or change
any Place of Payment where, or the coin or currency or other property
in which, any Outstanding Security or any premium or the interest
thereon is payable or deliverable, or impair the right to institute
suit for the enforcement of any such payment or delivery on or after
the Stated Maturity thereof (or, in the case of redemption, on or after
the Redemption Date); or
(2) reduce the percentage in principal amount or issue price
of the Outstanding Securities of any series, the consent of whose
Holders is required for any such supplemental indenture, or the consent
of whose Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture; or
(3) modify any of the provisions of this Section, Section 513
or Section 1010, except to increase any such percentage or to provide
that certain other provisions
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of this Indenture cannot be modified or waived without the consent of
the Holder of each Outstanding Security affected thereby; provided,
however, that this clause shall not be deemed to require the consent of
any Holder with respect to changes in the references to "the Trustee"
and concomitant changes in this Section and Section 1010 or the
deletion of this proviso, in accordance with the requirements of
Sections 611(b) and 901(8).
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 the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the right under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects such
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by such Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by such
Trustee in exchange for Outstanding Securities of such series.
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ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, the Maturity
Consideration and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay or deliver the principal of (and
premium, if any), Maturity Consideration and interest (if any) on the Securities
of that series in accordance with the terms of the Securities and this
Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment or delivery of Maturity Consideration, where
Securities of that series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of such Trustee, and the
Company hereby appoints such Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency. Notwithstanding any other provisions to the contrary, the
Company at its option may make payment of principal (and premium, if any) and
interest with respect to Securities by check mailed to the address of the Person
entitled thereto, as such address appears on the Security Register of the
Company.
SECTION 1003. Money or Other Property for Securities Payments and
Deliveries to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any), Maturity Consideration or interest on any of
the Securities of that series, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum or other property sufficient to pay or
deliver the principal (and premium, if any), Maturity Consideration or interest
so becoming due until such sums or other property shall be paid or delivered to
such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of (and
premium, if any), Maturity Consideration or interest on any Securities of that
series, deposit with a Paying Agent a sum or other property sufficient to pay or
deliver the principal (and premium, if any), Maturity Consideration or interest
so becoming due, such sum or other property to be held in trust for the benefit
of the Persons entitled to such principal,
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premium, Maturity Consideration or interest, and (unless such Paying Agent is
the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums or other property held by it for the payment
or delivery of the principal of (and premium, if any), Maturity
Consideration or interest on Securities of that series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making of
any payment or delivery of principal (and premium, if any), Maturity
Consideration or interest on the Securities of that series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay or deliver to
the Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money or other property deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment or delivery of the
principal of (and premium, if any), Maturity Consideration or interest in any
Security of any series and remaining unclaimed for two years after such
principal (and premium, if any), Maturity Consideration or interest has become
due and payable or deliverable shall be paid or delivered to the Company on
Company request, or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment or delivery thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment or delivery, may at the expense of the Company cause
to be published once, in a newspaper published in the English language,
customarily published on each Business Day and of general circulation in the
Borough of Manhattan, The City of New York, notice that such money or other
property remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money or other property then remaining will be repaid or
delivered to the Company.
SECTION 1004. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, and that of each Subsidiary and the rights (charter and statutory)
and franchises of the Company and its Subsidiaries; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Company shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the
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Company and its Subsidiaries considered as a whole and that the loss thereof is
not disadvantageous in any material respect to the Holders.
SECTION 1005. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent the Company from discontinuing the
operation and maintenance of any of such properties, or disposing of any of
them, if such discontinuance or disposal is, in the judgment of the Company or
of the Subsidiary concerned, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Holders.
SECTION 1006. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings and the Company shall have set aside on its books adequate reserves
with respect thereto (segregated to the extent required by generally accepted
accounting principles).
SECTION 1007. Limitation on Sale or Issuance of Capital Stock of
Certain Subsidiaries.
Except as set forth below, the Company will not sell, assign, pledge,
transfer or otherwise dispose of, or permit the issuance of, or permit a
Subsidiary to sell, assign, pledge, transfer or dispose of, any shares of Voting
Stock of any Subsidiary, or any securities convertible into or options, warrants
or rights to subscribe for or purchase shares of Voting Stock of any Subsidiary,
which is:
(a) A Principal Constituent Bank; or
(b) A Subsidiary which owns shares of Voting Stock or any
securities convertible into or options, warrants or rights to subscribe
for or purchase shares of Voting Stock of a Principal Constituent Bank;
provided, however, that nothing in this Section shall prohibit any
dispositions made by the Company or any Subsidiary (i) acting in a
fiduciary capacity for any person other than the Company or any
Subsidiary, or (ii) to the Company or any of its wholly owned (except
for directors' qualifying shares) Subsidiaries. Notwithstanding the
foregoing, sales, assignments, pledges, transfers, issuances or other
dispositions of shares of Voting Stock or securities convertible into
or options, warrants or rights to subscribe for or purchase shares of
Voting Stock of a corporation referred to in Clause (a) or (b) above
may be made where:
(i) the sales, assignments, pledges, transfers,
issuances or other dispositions are made, in the minimum
amount required by law, to any Person for the purpose of the
qualification of such Person to serve as a director; or
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(ii) the sales, assignments, pledges, transfers,
issuances or other dispositions are made in compliance with an
order of a court or regulatory authority of competent
jurisdiction; or
(iii) the sales, assignments, pledges, transfers,
issuances or other dispositions are made in connection with a
merger or consolidation of a Principal Constituent Bank with
or into a wholly owned Subsidiary or a Constituent Bank, if,
after such merger or consolidation with such Constituent Bank,
the Company owns, directly or indirectly, not less than the
percentage of Voting Stock of the surviving entity of such
transaction as it owned of such Principal Constituent Bank
prior to such transaction; or
(iv) the sales, assignments, pledges, transfers,
issuances or other dispositions are for fair market value (as
determined by the Board of Directors of the Company, which
determination shall be conclusive and evidenced by a Board
Resolution) and, after giving effect to such disposition, the
Company and its wholly owned (except for directors' qualifying
shares) Subsidiaries, will own directly not less than 80% of
the Voting Stock of such Principal Constituent Bank or
Subsidiary; or
(v) a Principal Constituent Bank sells additional
shares of Voting Stock to its stockholders at any price, if,
after such sale, the Company owns, directly or indirectly, not
less than the percentage of Voting Stock of such Principal
Constituent Bank it owned prior to such sale; or
(vi) a pledge is made or a lien is created to secure
loans or other extensions of credit by a Constituent Bank
subject to section 23A of the Federal Reserve Act.
SECTION 1008. Limitation Upon Liens on Certain Capital Stock.
Except as provided in Section 1007, the Company 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, the Company 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 the Company in good faith by appropriate proceedings and the
Company shall have set aside on its books adequate reserves with respect thereto
(segregated to the extent required by generally accepted accounting principles),
or (b) the lien of any judgment, if such judgment shall not have remained
undischarged, or unstayed on appeal or otherwise, for more than 60 days.
SECTION 1009. Statement as to Compliance.
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, a brief certificate,
which need not comply with Section 102, signed by the principal executive
officer, the principal financial officer or the principal accounting officer of
the Company, covering the period from the date of issuance of such Securities to
the end of the calendar year in
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which such Securities were issued, in the case of the first such certificate,
and covering the preceding calendar year in the case of each subsequent
certificate stating, as to each signer thereof, that
(1) a review of the activities of the Company during such year
and of performance under this Indenture has been made under his
supervision, and
(2) to the best of his knowledge, based on such review, (a)
the Company has complied with all conditions and covenants on its part
contained in this Indenture throughout such year, or, if there has been
a default by the Company in the performance, observance or fulfillment
of any such condition or covenant, specifying each such default known
to him and the nature and status thereof, and (b) no event has occurred
and is continuing which is, or after notice or lapse of time or both
would become, an Event of Default, or, if such an event has occurred
and is continuing, specifying each such event known to him and the
nature and status thereof.
For the purpose of this Section 1009, compliance shall be determined
without regard to any grace period or requirement of notice provided pursuant to
the terms of this Indenture.
SECTION 1010. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1004 to 1008, inclusive, with
respect to the Securities of any series if before the time for such compliance
the Holders of at least 50% in principal amount, or if such Securities are not
payable at Maturity for a fixed principal amount, 50% of the aggregate issue
price, of the Outstanding Securities of such series shall, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the trustee in respect of any such term,
provision or condition shall remain in full force and effect.
SECTION 1011. Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end of each
calendar year (i) a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on Outstanding
Securities as of the end of such year and (ii) such other specific information
relating to such original issue discount as may then be relevant under the
Internal Revenue Code of 1986, as amended from time to time.
SECTION 1012. Statement by Officers as to Default.
The Company shall deliver to the Trustee, as soon as possible and in
any event within five days after the Company becomes aware of the occurrence of
any Event of Default or an event which, with notice or the lapse of time or
both, would constitute an Event of Default, an Officers' Certificate setting
forth the details of such Event of Default or default and the action which the
Company proposes to take with respect thereto.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
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SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution. In case of any redemption at the election of the Company,
the Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
such Trustee of such Redemption Date and of the principal amount or amount of
Maturity Consideration of Securities of such series to be redeemed. In the case
of any redemption of Securities prior to the expiration of any restriction on
such redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish such Trustee with an Officers' Certificate
evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as such Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized denominations for
Securities of that series or any integral multiple thereof) of the principal
amount or issue price of Securities of such series or a denomination larger than
the minimum authorized denomination for Securities of that series.
Such Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall identify the Securities to be redeemed
(including CUSIP numbers) and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities to be
redeemed,
(4) that on the Redemption Date, the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after
said date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the
case.
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Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by such
Trustee in the name and at the expense of the Company. 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, a failure to
give such notice by mail or any defect in the notice to the Holder of any
Security designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Security.
SECTION 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that installments of interest whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Regular Record Dates according to
their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and such Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing), and the Company shall execute, and such
Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities of the same Series, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
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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". If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
Series; provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and will also deliver to such Trustee any Securities to
be so delivered. Not less than 30 days before each such sinking fund payment
date such Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
FLEET BOSTON CORPORATION
By /s/ Douglas L. Jacobs
----------------------------------
Title:
THE BANK OF NEW YORK, Trustee
By /s/ Annette Kos
----------------------------------
Title:
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<PAGE> 1
EXHIBIT (4)(b)
FLEET BOSTON CORPORATION
FORM OF WARRANT AGREEMENT [FOR WARRANTS SOLD ATTACHED TO DEBT SECURITIES](1)
THIS WARRANT AGREEMENT is dated as of ______________ between Fleet
Boston Corporation, a Rhode Island corporation (hereinafter called the
"Company," which term includes any successor corporation under the Indenture
hereinafter referred to) and _______________________________________, as Warrant
Agent (herein called the "Warrant Agent").
WHEREAS, the Company has entered into an Indenture dated as of [], 1999
(the "Indenture") with The Bank of New York, as trustee (the "Trustee"),
providing for the issuance from time to time of its unsecured debentures, notes
or other evidences of indebtedness (the "Debt Securities"), to be issued in one
or more series, as provided in the Indenture; and
WHEREAS, the Company proposes to sell [title of Debt Securities being
offered] (the "Offered Securities") with warrant certificates evidencing one or
more warrants (the "Warrants" or individually a "Warrant") representing the
right to purchase [title of Debt Securities purchasable through exercise of
Warrants] (the "Warrant Securities"), such warrant certificates and other
warrant certificates issued pursuant to this Agreement being herein called the
"Warrant Certificates"; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company in connection with the issuance, exchange, exercise and replacement of
the Warrant Certificates, and in this Agreement wishes to set forth, among other
things, the form and provisions of the Warrant Certificates and the terms and
conditions on which they may be issued, exchanged, exercised and replaced;
NOW THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES.
SECTION 1.01. ISSUANCE OF WARRANTS. Warrants shall be initially issued
in connection with the issuance of the Offered Securities [but shall be
separately transferable on and after __________, 19__ (the "Detachable Date")]
[and shall not be separately transferable] and each Warrant Certificate shall
evidence one or more Warrants. Each Warrant evidenced thereby shall represent
the right, subject to the provisions contained herein and therein to purchase a
Warrant
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(1) Complete or modify the provisions of this Form as appropriate to reflect the
terms of the Warrants and Warrant Securities. Monetary amounts may be in U.S.
dollars, in a foreign denominated currency or in one or more units of foreign
currencies such as the Euro.
<PAGE> 2
Security in the principal amount of $_______________. Warrant Certificates shall
be initially issued in units with the Offered Securities and each Warrant
Certificate included in such a unit shall evidence _____ Warrants for each
$________ principal amount of Offered Securities included in such unit.
SECTION 1.02. EXECUTION AND DELIVERY OF WARRANT CERTIFICATES. Each
Warrant Certificate, whenever issued shall be in [bearer] [registered] form
substantially in the form set forth in Exhibit A hereto, shall be dated
_____________________ and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the officers of the Company executing the
same may approve (execution thereof to be conclusive evidence of such approval)
and as are not inconsistent with the provisions of this Agreement, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which the
Warrants may be listed, or to conform to usage. The Warrant Certificates shall
be signed on behalf of the Company by its Chairman of the Board, any Vice
Chairman, its President, any Vice President, its Treasurer or one of its
Assistant Treasurers under its corporate seal and attested by its Secretary or
one of its Assistant Secretaries. Such signatures may be manual or facsimile
signatures of such authorized officers and may be imprinted or otherwise
reproduced on the Warrant Certificates. The seal of the Company may be in the
form of a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Warrant Certificates.
No Warrant Certificate shall be valid for any purpose and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the manual signature of the Warrant Agent. Such signature by
the Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence that the Warrant Certificate so countersigned has been duly
issued hereunder.
In case any officer of the Company who shall have signed any of the
Warrant Certificates either manually or by facsimile signature shall cease to be
such officer before the Warrant Certificates so signed shall have been
countersigned and delivered by the Warrant Agent such Warrant Certificates may
be countersigned and delivered notwithstanding that the person who signed such
Warrant Certificates ceased to be such officer of the Company; and any Warrant
Certificate may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such Warrant Certificate, shall be the proper
officers of the Company, although at the date of the execution of this Agreement
any such person was not such officer.
[If bearer Warrants - The term "holder" or "holder of a Warrant
Certificate" as used herein shall mean [If Offered Securities with Warrants
which are not immediately detachable -, prior to the Detachable Date, the
registered owner of the Offered Security to which such Warrant Certificate was
initially attached and after such Detachable Date] the bearer of such Warrant
Certificate.]
[If registered Warrants - The term "holder" or "holder of a Warrant
Certificate" as used herein shall mean any person in whose name at the time any
Warrant Certificate shall be
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<PAGE> 3
registered upon the books to be maintained by the Warrant Agent for that
purpose. [If Offered Securities with Warrants which are not immediately
detachable - or upon the register of the Offered Securities prior to the
Detachable Date. The Company will or will cause the registrar of the Offered
Securities to make available at all times to the Warrant Agent such information
as to holders of the Offered Securities with Warrants as may be necessary to
keep the Warrant Agent's records up to date.]]
SECTION 1.03. ISSUANCE OF WARRANT CERTIFICATES. Warrant Certificates
evidencing the right to purchase an aggregate principal amount not exceeding
$___________ aggregate principal amount of Warrant Securities (except as
provided in Section 2.03(c), 3.02 and 4.01) may be executed by the Company and
delivered to the Warrant Agent upon the execution of this Warrant Agreement or
from time to time thereafter. The Warrant Agent shall, upon receipt of Warrant
Certificates duly executed on behalf of the Company, countersign Warrant
Certificates evidencing Warrants representing the right to purchase up to
$________ aggregate principal amount of Warrant Securities and shall deliver
such Warrant Certificates to or upon the order of the Company. Subsequent to
such original issuance of the Warrant Certificates, the Warrant Agent shall
countersign a Warrant Certificate only if the Warrant Certificate is issued in
exchange or substitution for one or more previously countersigned Warrant
Certificates [If registered Warrants - or in connection with their transfer], as
hereinafter provided or as provided in Section 2.03(c).
ARTICLE II.
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS.
SECTION 2.01. WARRANT PRICE. On _____________ 19, ___, the exercise
price of each Warrant is $___________. During the period from _____________,
19___, through and including _____________, 19___, the exercise price of each
Warrant will be $________ plus [accrued amortization of the original issue
discount] [accrued interest] from _____________, 19___. On ____________, 19___,
the exercise price of each Warrant will be $________. During the period from
_________________, 19___, through and including ______________, 19___, the
exercise price of each Warrant will be $________ plus [accrued amortization of
the original issue discount] [accrued interest] from _______________, 19___. [In
each case, the original issue discount will be amortized at a ____% annual rate,
computed on an annual basis using a 360-day year consisting of twelve 30-day
months]. Such purchase price of Warrant Securities is referred to in this
Agreement as the "Warrant Price." [The original issue discount for each $1,000
principal amount of Warrant Securities is $____.]
SECTION 2.02. DURATION OF WARRANTS. Each Warrant may be exercised in
whole at any time as specified herein on or after [the date hereof]
[______________, 19___,] and at or before 5 p.m. New York time on _____________,
19___ (the "Expiration Date"). Each Warrant not exercised at or before 5 p.m.
New York time on the Expiration Date shall become void, and all rights of the
holder of the Warrant Certificate evidencing such Warrant under this Agreement
shall cease.
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<PAGE> 4
SECTION 2.03. EXERCISE OF WARRANTS. (a) During the period specified in
Section 2.02, any whole number of Warrants may be exercised by providing certain
information set forth on the reverse side of the Warrant Certificate and by
paying in full, [in lawful money of the United States of America] [in cash or by
certified check or official bank check or by bank wire transfer, in each case]
[by bank wire transfer], in immediately available funds, the Warrant Price for
each Warrant exercised to the Warrant Agent at its corporate trust office [or at
________], provided that such exercise is subject to receipt within five
business days of such [payment] [wire transfer] by the Warrant Agent of the
Warrant Certificate with the form of election to purchase Warrant Securities set
forth on the reverse side of the Warrant Certificate properly completed and duly
executed. The date on which payment in full of the Warrant Price is received by
the Warrant Agent shall, subject to receipt of the Warrant Certificate as
aforesaid, be deemed to be the date on which the Warrant is exercised. The
Warrant Agent shall deposit all funds received by it in payment of the Warrant
Price in an account of the Company maintained with it and shall advise the
Company by telephone at the end of each day on which a [payment] [wire transfer]
for the exercise of Warrants is received of the amount so deposited to its
account. The Warrant Agent shall promptly confirm such telephone advice to the
Company in writing.
(b) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company and the Trustee under the Indenture of (i) the
number of Warrants exercised, (ii) the instructions of each holder of the
Warrant Certificates evidencing such Warrants with respect to delivery of the
Warrant Securities to which such holder is entitled upon such exercise, (iii)
delivery of Warrant Certificates evidencing the balance, if any, of the Warrants
remaining after such exercise, and (iv) such other information as the Company or
the Trustee shall reasonably require.
(c) As soon as practicable after the exercise of any Warrant, the
Company shall issue, pursuant to the Indenture, in authorized denominations to
or upon the order of the holder of the Warrant Certificate evidencing such
Warrant, the Warrant Securities to which such holder is entitled in fully
registered form, registered in such name or names as may be direct by such
holder(2). If fewer than all of the Warrants evidenced by such Warrant
Certificate are exercised, the Company shall execute, and an authorized officer
of the Warrant Agent shall manually countersign and deliver, a new Warrant
Certificate evidencing the number of such Warrants remaining unexercised.
(d) The Company shall not be required to pay any stamp or other tax or
other governmental charge required to be paid in connection with any transfer
involved in the issue of the Warrant Securities; and in the event that any such
transfer is involved, the Company shall not be required to issue or deliver any
Warrant Security until such tax or other charge shall have been paid or it has
been established to the Company's satisfaction that no such tax or other charge
is due.
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(2) Subject to change in accordance with changes in tax laws and regulations.
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<PAGE> 5
ARTICLE III.
OTHER PROVISIONS RELATING TO RIGHTS OF
HOLDERS OF WARRANT CERTIFICATES.
SECTION 3.01. NO RIGHTS AS WARRANT SECURITYHOLDER CONFERRED BY WARRANTS
OR WARRANT CERTIFICATES. No Warrant Certificate or Warrant evidenced thereby
shall entitle the holder thereof to any of the rights of a holder of Warrant
Securities, including, without limitation, the right to receive the payment of
principal of, premium, if any, or interest on Warrant Securities or to enforce
any of the covenants in the Indenture.
SECTION 3.02 LOST, STOLEN, MUTILATED OR DESTROYED WARRANT CERTIFICATES.
Upon receipt by the Warrant Agent of evidence reasonably satisfactory to it of
the ownership of and the loss, theft, destruction or mutilation of any Warrant
Certificate and of indemnity reasonably satisfactory to it, and in the case of
mutilation, upon surrender thereof to the Warrant Agent for cancellation then,
in the absence of notice to the Company or the Warrant Agent that such Warrant
Certificate has been acquired by a bona fide purchaser, the Company shall
execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, in exchange for or in lieu of the lost, stolen,
destroyed or mutilated Warrant Certificate, a new Warrant Certificate of the
same tenor and evidencing a like number of Warrants. Upon the issuance of any
new Warrant Certificate under this Section, 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 (including the fees and
expenses of the Warrant Agent) in connection therewith. Every substitute Warrant
Certificate executed and delivered pursuant to this Section in lieu of any lost,
stolen or destroyed Warrant Certificate shall represent an additional
contractual obligation of the Company, whether or not the lost, stolen or
destroyed Warrant Certificate shall be at any time enforceable by anyone, and
shall be entitled to the benefits of this Agreement equally and proportionately
with any and all other Warrant Certificates duly executed and delivered
hereunder. The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
of mutilated, lost, stolen or destroyed Warrant Certificates.
SECTION 3.03. HOLDER OF WARRANT CERTIFICATE MAY ENFORCE RIGHTS.
Notwithstanding any of the provisions of this Agreement, any holder of a Warrant
Certificate, without the consent of the Warrant Agent, the Trustee, the holder
of any Warrant Securities or the holder of any other Warrant Certificate may, in
his own behalf and for his own benefit, enforce and may institute and maintain
any suit, action or proceeding against the Company suitable to enforce, or
otherwise in respect of, his right to exercise the Warrants evidenced by his
Warrant Certificate in the manner provided in his Warrant Certificate and in
this Agreement.
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<PAGE> 6
ARTICLE IV.
EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES.
SECTION 4.01. EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES. [If
Offered Securities with Warrants which are immediately detachable - Upon] [If
Offered Securities with Warrants which are not immediately detachable - Prior to
the Detachable Date, a Warrant Certificate may be exchanged or transferred only
together with the Offered Securities to which the Warrant Certificate was
initially attached, and only for the purpose of effecting, or in conjunction
with, an exchange or transfer of such Offered Securities. Prior to the
Detachable Date, each transfer of the Offered Securities [on the register of the
Offered Securities] shall operate also to transfer the related Warrant
Certificates. After the Detachable Date upon] surrender at the corporate trust
office of the Warrant Agent [or ___________], Warrant Certificates evidencing
Warrants may be exchanged for Warrant Certificates in other denominations
evidencing such Warrants [If registered Warrants: or the transfer thereof may be
registered in whole or in part]; provided that such other Warrant Certificates
evidence the same aggregate number of Warrants as the Warrant Certificates so
surrendered. [If registered Warrants - The Warrant Agent shall keep, at its
corporate trust office [and at ________], books in which, subject to such
reasonable regulations as it may prescribe, it shall register Warrant
Certificates and exchanges and transfers of outstanding Warrant Certificates,
upon surrender of the Warrant Certificates to the Warrant Agent at its corporate
trust office [or __________] for exchange [or registration of transfer],
properly endorsed or accompanied by appropriate instruments of registration of
transfer and written instructions for transfer, all in form satisfactory to the
Company and the Warrant Agent.] No service charge shall be made for any exchange
[or registration of transfer] of Warrant Certificates, but the Company may
require payment of a sum sufficient to cover any stamp or other tax or other
governmental charge that may be imposed in connection with any such exchange [or
registration of transfer]. Whenever any Warrant Certificates are so surrendered
for exchange [or registration of transfer] an authorized officer of the Warrant
Agent shall manually countersign and deliver to the person or persons entitled
thereto a Warrant Certificate or Warrant Certificates duly authorized and
executed by the Company as so requested. The Warrant Agent shall not be required
to effect any exchange [or registration of transfer] which will result in the
issuance of a Warrant Certificate evidencing a fraction of a Warrant or a number
of full Warrants and a fraction of a Warrant. All Warrant Certificates issued
upon any exchange [or registration of transfer] of Warrant Certificates shall be
the valid obligations of the Company, evidencing the same obligations, and
entitled to the same benefits under this Agreement, as the Warrant Certificates
surrendered for such exchange [or registration of transfer].
SECTION 4.02. TREATMENT OF HOLDERS OF WARRANT CERTIFICATES. [If Offered
Securities with bearer Warrants which are not immediately detachable - Subject
to Section 4.01. each] [If Offered Securities with bearer Warrants which are
immediately detachable - Each] Warrant Certificate shall be transferable by
delivery and shall be deemed negotiable and the bearer of each Warrant
Certificate may be treated by the Company, the Warrant Agent and all other
persons dealing with such bearer as the absolute owner thereof for any purpose
and as the person entitled to exercise the rights represented by the Warrants
evidenced thereby, any notice to the contrary notwithstanding.] [If registered
Warrants which are not immediately detachable -
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<PAGE> 7
Every holder of a Warrant Certificate, by accepting the same, consents and
agrees with the Company, the Warrant Agent and with every subsequent holder of
such Warrant Certificate that until the transfer of the Warrant Certificate is
registered on the books of the Warrant Agent [or the register of the Offered
Securities prior to the Detachable Date] the Company and the Warrant Agent] or
the registrar of the Offered Securities prior to the Detachable Date], may treat
the registered holder as the absolute owner thereof for any purpose and as the
person entitled to exercise the rights represented by the Warrants evidenced
thereby, any notice to the contrary notwithstanding.]
SECTION 4.03. CANCELLATION OF WARRANT CERTIFICATES. Any Warrant
Certificate surrendered for exchange [registration of transfer] or exercise of
the Warrants evidenced thereby shall, if surrendered to the Company, be
delivered to the Warrant Agent and all Warrant Certificates surrendered or so
delivered to the Warrant Agent shall be promptly canceled by the Warrant Agent
and shall not be reissued and, except as expressly permitted by this Agreement,
no Warrant Certificate shall be issued hereunder in exchange or in lieu thereof.
The Warrant Agent shall deliver to the Company from time to time or otherwise
dispose of canceled Warrant Certificates in a manner satisfactory to the
Company.
ARTICLE V.
CONCERNING THE WARRANT AGENT.
SECTION 5.01. WARRANT AGENT. The Company hereby appoints _________ as
Warrant Agent of the Company in respect of the Warrants and the Warrant
Certificates upon the terms and subject to the conditions herein set forth; and
________ hereby accepts such appointment. The Warrant Agent shall have the
powers and authority granted to and conferred upon it in the Warrant
Certificates and hereby and such further powers and authority to act on behalf
of the Company as the Company may hereafter grant to or confer upon it. All of
the terms and provisions with respect to such powers and authority contained in
the Warrant Certificates are subject to and governed by the terms and provisions
hereof.
SECTION 5.02. CONDITIONS OF WARRANT AGENT'S OBLIGATIONS. The Warrant
Agent accepts its obligations herein set forth upon the terms and conditions
hereof, including the following, to all of which the Company agrees and to all
of which the rights hereunder of the holders from time to time of the Warrant
Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees
promptly to pay the Warrant Agent the compensation to be agreed upon
with the Company for all services rendered by the Warrant Agent and to
reimburse the Warrant Agent for reasonable out-of-pocket expenses
(including counsel fees) incurred by the Warrant Agent in connection
with the services rendered hereunder by the Warrant Agent. The Company
also agrees to indemnity the Warrant Agent for, and to hold it harmless
against any loss, liability or expense incurred without negligence or
bad faith on the part of the Warrant Agent, arising out of or in
7
<PAGE> 8
connection with its acting as Warrant Agent hereunder, as well as the
costs and expenses of defending against any claim of such liability.
(b) Agent for the Company. In acting under this Warrant
Agreement and in connection with the Warrant Certificates, the Warrant
Agent is acting solely as agent of the Company and does not assume any
obligation or relationship of agency or trust for or with any of the
holders of Warrant Certificates or beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with counsel
satisfactory to it and the advice of such counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in accordance
with the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and shall
incur no liability for or in respect to any action taken or thing
suffered by it in reliance upon any Warrant Certificate, notice,
direction, consent, certificate, affidavit, statement or other paper or
document reasonably believed by it to be genuine and to have been
presented or signed by the proper parties.
(e) Certain Transaction. The Warrant Agent, and its officers,
directors and employees, may become the owner of, or acquire any
interest in, Warrants, with the same rights that it or they would have
if it were not the Warrant Agent hereunder, and, to the extent
permitted by applicable law, it or they may engage or be interested in
any financial or other transaction with the Company and may act on, or
as depository, trustee or agent for, any committee or body of holders
of Warrant Securities or other obligations of the Company as freely as
if it were not the Warrant Agent hereunder. Nothing in this Warrant
Agreement shall be deemed to prevent the Warrant Agent from acting as
trustee for any series of Debt Securities under the Indenture.
(f) No Liability for Interest. The Warrant Agent shall have no
liability for interest on any monies at any time received by it
pursuant to any of the provisions of this Agreement or of the Warrant
Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall have
no liability with respect to any invalidity of this Agreement or any of
the Warrant Certificates.
(h) No Responsibility for Representations. The Warrant Agent
shall not be responsible for any of the recitals or representations
herein or in the Warrant Certificates (except as to the Warrant Agent's
countersignature thereon), all of which are made solely by the Company.
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<PAGE> 9
(i) No Implied Obligations. The Warrant Agent shall be
obligated to perform only such duties as are herein and in the Warrant
Certificates specifically set forth and no implied duties or
obligations shall be read into this Agreement or the Warrant
Certificates against the Warrant Agent. The Warrant Agent shall not be
under any obligation to take any action hereunder which may tend to
involve it in any expense or liability, the payment of which within a
reasonable time is not, in its reasonable opinion, assured to it. The
Warrant Agent shall not be accountable or under any duty or
responsibility for the use by the Company of any of the Warrant
Certificates authenticated by the Warrant Agent and delivered by it to
the Company pursuant to this Agreement or for the application by the
Company of the proceeds of the Warrant Certificates. The Warrant Agent
shall have no duty or responsibility in case of any default by the
Company in the performance of its covenants or agreements contained
herein or in the Warrant Certificates or in the case of the receipt of
any written demand from a holder of a Warrant Certificate with respect
to such default, including, without limiting the generality of the
foregoing, any duty or responsibility to initiate or attempt to
initiate any proceedings at law or otherwise or, except as provided in
Section 6.02, to make any demand upon the Company.
SECTION 5.03. RESIGNATION AND APPOINTMENT OF SUCCESSOR. (a) The Company
agrees, for the benefit of the holders of the Warrant Certificates, that there
shall at all times be a Warrant Agent hereunder until all the Warrant
Certificates are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to the Company of such intention on its part, specifying the date
on which its desired resignation shall become effective provided that such date
shall not be less than three months after the date on which such notice is given
unless the Company otherwise agrees. The Warrant Agent hereunder may be removed
at any time by the filing with it of an instrument in writing signed by or on
behalf of the Company and specifying such removal and the date when it shall
become effective. Such resignation or removal shall take effect upon the
appointment by the Company, as hereinafter provided, of a successor Warrant
Agent (which shall be a bank or trust company authorized under the laws of the
jurisdiction of its organization to exercise corporate trust powers) and the
acceptance of such appointment by such successor Warrant Agent. The obligation
of the Company under Section 5.02 (a) shall continue to the extent set forth
therein notwithstanding the registration or removal of the Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged a bankrupt or
insolvent, or shall file a petition seeking relief under the Federal Bankruptcy
Code as now constituted or hereafter amended, or under any other applicable
Federal or State bankruptcy law or similar law or make an assignment for the
benefit of its creditors or consent to the appointment of a receiver or
custodian of all or any substantial part of its property, or shall admit in
writing its inability to pay or meet its debts as they mature, or if a receiver
or custodian of it or of all or any substantial part of its property shall be
appointed, or if an order of any court shall be entered for relief against it
under the provisions of the Federal Bankruptcy Code, as now constituted or
hereafter amended, or under
9
<PAGE> 10
any other applicable Federal or State bankruptcy or similar law, or if any
public officer shall have taken charge or control of the Warrant Agent or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, a successor Warrant Agent, qualified as aforesaid, shall be
appointed by the Company by an instrument in writing, filed with the successor
Warrant Agent. Upon the appointment as foresaid of a successor Warrant Agent and
acceptance by the successor Warrant Agent of such appointment, the Warrant Agent
shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with all
the authority, rights, powers, trust, immunities, duties and obligations of such
predecessor with like effect as if originally named as Warrant Agent hereunder,
and such predecessor, upon payment of its charges and disbursements then unpaid,
shall thereupon become obligated to transfer, deliver and pay over, and such
successor Warrant Agent shall be entitled to receive, all monies securities and
other property on deposit with or held by such predecessor, as Warrant Agent
hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be
merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation to
which the Warrant Agent shall sell or otherwise transfer all or substantially
all the assets and business of the Warrant Agent, provided that it shall be
qualified as aforesaid, shall be the successor Warrant Agent under this
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
ARTICLE VI.
MISCELLANEOUS
SECTION 6.01. AMENDMENT. This Agreement may be amended by the parties
hereto, without the consent of the holder of any Warrant Certificate, for the
purpose of curing any ambiguity, or of curing, correcting or supplementing any
defective provision contained herein or making any other provisions with respect
to matters or questions arising under this Agreement as the Company and the
Warrant Agent may deem necessary or desirable: provided that such action shall
not adversely affect the interests of the holders of the Warrant Certificates.
SECTION 6.02. NOTICES AND DEMANDS TO THE COMPANY AND WARRANT AGENT. If
the Warrant Agent shall receive any notice or demand addressed to the Company by
the holder of a Warrant Certificate pursuant to the provisions of the Warrant
Certificates, the Warrant Agent shall promptly forward such notice or demand to
the Company.
SECTION 6.03. ADDRESSES. Any communication from the Company to the
Warrant Agent with respect to this Agreement shall be addressed to
_______________ Attention: _____________, and any communication from the Warrant
Agent to the Company with respect
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<PAGE> 11
to this Agreement shall be addressed to Fleet Boston Corporation, One Federal
Street, Boston, Massachusetts 02110, Attention: General Counsel (or such other
address as shall be specified in writing by the Warrant Agent or by the
Company.)
SECTION 6.04. APPLICABLE LAW. The validity, interpretation and
performance of this Agreement and each Warrant Certificate issued hereunder and
of the respective terms and provisions thereof shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 6.05. DELIVERY OF PROSPECTUS. The Company will furnish to the
Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of Warrants (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
will deliver to the holder of the Warrant Certificate evidencing such Warrant,
prior to or concurrently with, the delivery of the Warrant Securities issued
upon such exercise, a Prospectus.
SECTION 6.06. OBTAINING OF GOVERNMENTAL APPROVALS. The Company will
from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities acts filings under United States Federal and
State laws (including, without limitation, a registration statement in respect
of the Warrants and Warrant Securities under the Securities Act of 1933), which
may be or become requisite in connection with the issuance, sale, transfer and
delivery of the Warrant Certificates, the exercise of the Warrants, the
issuance, sale, transfer and delivery of the Warrant Securities issued upon
exercise of the Warrants or upon the expiration of the period during which the
Warrants are exercisable.
SECTION 6.07. PERSONS HAVING RIGHTS UNDER WARRANT AGREEMENT. Nothing in
this Agreement shall give to any person other than the Company. the Warrant
Agent and the holders of the Warrant Certificates any right, remedy or claim
under or by reason of this Agreement.
SECTION 6.08. HEADINGS. The descriptive headings of the several
Articles and Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the provisions
hereof.
SECTION 6.09. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which as so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
SECTION 6.10. INSPECTION OF AGREEMENT. A copy of this Agreement shall
be available at all reasonable times at the principal corporate trust office of
the Warrant Agent for inspection by the holder of any Warrant Certificate. The
Warrant Agent may require such holder to submit his Warrant Certificate for
inspection by it.
11
<PAGE> 12
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and their respective corporate seals to be affixed hereunto, and
the same to be attested, all as of the day and year first above written.
FLEET BOSTON CORPORATION
By:
-----------------------------------
Attest:
- --------------------------- [NAME OF WARRANT AGENT],
As Warrant Agent
By:
-----------------------------------
Attest:
- --------------------------
12
<PAGE> 13
EXHIBIT A
(FORM OF WARRANT CERTIFICATE)
[FACE OF WARRANT CERTIFICATE]
[Form of Legend of Prior to _______________, this Warrant Certificate
Debt Securities with cannot be transferred or exchanged unless attached
Warrants which are not to a [Title of Offered Securities].]
immediately detachable
EXERCISEABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
FLEET BOSTON CORPORATION
WARRANTS TO PURCHASE
[TITLE OF WARRANT SECURITIES]
VOID AFTER 5 P.M. NEW YORK TIME ON ________________, 19___
[No.] Warrants
This certifies that [the bearer is the] [____________________ or
registered assigns is the registered] owner of the above indicated number of
Warrants, each warrant entitling such [bearer] [owner] to purchase, at any time
[after 5 p.m. New York time on ________________, 19___ and] on or before 5 p.m.
New York time on _________________, 19___ $____________ principal amount of
[Title of Warrant Securities] (the "Warrant Securities") of Fleet Boston
Corporation (the "Company"), issued and to be issued under the Indenture (as
hereinafter defined) on the following basis: [on ______________, 19____ the
exercise price of each Warrant is $________; during the period from
________________, 19___ through and including __________________, 19___, the
exercise price of each Warrant will be $________ plus [accrued amortization of
the original issue discount] [accrued interest] from _______________, 19___; on
________________, 19___ the exercise price of each Warrant will be $_______;
during the period from ________________, 19___ through and including
_________________, 19___, the exercise price of each Warrant will be $_______
plus [accrued amortization of the original issue discount] [accrued interest]
from _____________, 19___ [in each case, the original issue discount will be
amortized at a _____% annual rate, computed on an annual basis, using a 360-day
year consisting of twelve 30-day months] (the "Warrant Price"). [The original
issue discount for each $1,000 principal amount of Warrant Securities is
$_______.] The holder may exercise the Warrants evidenced hereby by providing
certain information set forth on the back hereof and by paying in full, [in
lawful money of the United States of America] [in cash or by certified check or
official bank check or by bank wire transfer, in each case] [by bank wire
transfer] in immediately available funds, the Warrant Price for each Warrant
exercised to the warrant Agent (as hereinafter defined) and by surrendering this
Warrant Certificate, with the purchase form on the back hereof duly executed, at
the corporate trust office of [name of Warrant Agent], or its successor as
warrant agent (the "Warrant Agent"), [or ______] currently at the
<PAGE> 14
address specified on the reverse hereof, and upon compliance with and subject to
the conditions set forth herein and in the Warrant Agreement (as hereinafter
defined).
Any whole number of Warrants evidenced by this Warrant Certificate may
be exercised to purchase Warrant Securities in registered form in denominations
of $______ and any integral multiples thereof. Upon any exercise of fewer than
all of the Warrants evidenced by this Warrant Certificate, there shall be issued
to the holder hereof a new Warrant Certificate evidencing the number of Warrants
remaining unexercised.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of _______________, 19___ (the "Warrant Agreement")
between the Company and the Warrant Agent and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions the holder of this Warrant Certificate consents by acceptance hereof.
Copies of the Warrant Agreement are on file at the above-mentioned office of the
Warrant Agent [and at _____________].
The Warrant Securities to be issued and delivered upon the exercise of
the Warrants evidenced by this Warrant Certificate will be issued under and in
accordance with an Indenture dated as of ___________, 1999 (the "Indenture"),
between the Company and The Bank of New York, as trustee, and will be subject to
the terms and provisions contained in the Indenture. Copies of the Indenture and
the form of the Warrant Securities are on file at the corporate trust office of
the trustee [and at _________________________].
[If Offered Securities with bearer Warrants which are not immediately
detachable - Prior to ________________, 19___, this Warrant Certificate may be
exchanged or transferred only together with the [Title of Offered Securities]
("Offered Securities") to which this Warrant Certificate was initially attached,
and only for the purpose of effecting, or in conjunction with, an exchange or
transfer of such Offered Securities. After such date, this [If Offered
Securities with bearer Warrants which are immediately detachable - This] Warrant
Certificate, and all rights hereunder, may be transferred by delivery and the
Company and the Warrant Agent may treat the bearer hereof as the owner for all
purposes.]
[If Offered Securities with registered Warrants which are not
immediately detachable - Prior to _________________, 19___, this Warrant
Certificate may be exchanged or transferred only together with the [Title of
Offered Securities] ("Offered Securities") to which this Warrant Certificate was
initially attached, and only for the purpose of effecting, or in conjunction
with, an exchange or transfer of such Offered Securities. After such date, this
[If Offered Securities with registered Warrants which are immediately detachable
- - Transfer of this] Warrant Certificate may be registered when this Warrant
Certificate is surrendered at the corporate trust office of the Warrant Agent
[or _____________] by the registered owner or his assigns, in person or by an
attorney duly authorized in writing, in the manner and subject to the
limitations provided in the Warrant Agreement.]
[If Offered Securities with Warrants which are not immediately
detachable - Except as provided in the immediately preceding paragraph after]
[If Offered Securities with Warrants
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<PAGE> 15
which are immediately detachable After] countersignature by the Warrant Agent
and prior to the expiration of this Warrant Certificate, this Warrant
Certificate may be exchanged at the corporate trust office of the Warrant Agent
for Warrant Certificates representing the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the holder hereof to any of
the rights of a holder of the Warrant Securities, including, without limitation,
the right to receive payments of principal of, premium, if any, or interest, if
any, on the Warrant Securities or to enforce any of the covenants of the
Indenture.
This Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
Dated as of _______________, 19___.
FLEET BOSTON CORPORATION
By
------------------------------------
Attest:
- -----------------------------
Countersigned:
- -----------------------------
As Warrant Agent
By
---------------------------
Authorized Signature
15
<PAGE> 16
[REVERSE OF WARRANT CERTIFICATE]
INSTRUCTIONS FOR EXERCISE OF WARRANT
To exercise the Warrants evidenced hereby, the holder must pay [in cash
or by certificate check or official bank check or by bank wire transfer] [by
bank wire transfer], in immediately available funds, the Warrant Price in full
for Warrants exercised to [insert name of Warrant Agent] Corporate Trust
Department, [insert address of Warrant Agent], Attn. __________________ [or
__________________], which [payment] [wire transfer] must specify the name of
the holder and the number of Warrants exercised by such holder. In addition, the
holder must complete the information required below and present this Warrant
Certificate in person or by mail (registered mail is recommended) to the Warrant
Agent at the addresses set forth below. This Warrant Certificate, completed and
duly executed, must be received by the Warrant Agent within five business days
of the [payment] [wire transfer].
TO BE EXECUTED UPON EXERCISE OF WARRANT
The undersigned hereby irrevocably elects to exercise _________
Warrants, evidenced by this Warrant Certificate, to purchase $________ principal
amount of the [Title of Warrant Securities] (the "Warrant Securities") of Fleet
Boston Corporation and represents that he has tendered payment for such Warrant
Securities [in cash or by certified check or official bank check or by bank wire
transfer, in each case] [by bank wire transfer], in immediately available funds,
to the order of Fleet Boston Corporation, c/o [insert name and address of
Warrant Agent], in the amount of $_________ in accordance with the terms hereof.
The undersigned requests that said principal amount of Warrant Securities be in
fully registered form in the authorized denominations, registered in such names
and delivered all as specified in accordance with the instructions set forth
below.
If the number of Warrants exercised is less than all of the Warrants
evidenced hereby, the undersigned requests that a new Warrant Certificate
representing the remaining Warrants evidenced hereby be issued and delivered to
the undersigned unless otherwise specified in the instructions below.
Dated: Name
- ---------- ---------- ---------- --------------------------------------
(Please Print)
- ---------- ---------- ----------
Address
-----------------------------------
-----------------------------------
Signature
---------------------------------
16
<PAGE> 17
The Warrants evidenced hereby may be exercised at the following
addresses:
By hand at
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
By mail at
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
[Instructions as to form and delivery of Warrant Securities and, if
applicable, Warrant Certificates evidencing unexercised Warrants - complete as
appropriate.]
17
<PAGE> 18
CERTIFICATE FOR DELIVERY OF BEARER WARRANT SECURITIES
FLEET BOSTON CORPORATION
WARRANT SECURITIES
TO: Fleet Boston Corporation
c/o
____________________, as Trustee
This certificate is submitted in connection with our request that you
deliver to us $____________ principal amount of Warrant Securities in bearer
form upon exercise of Warrants. We hereby certify that either (a) none of such
Warrant Securities will be held by or on behalf of a United States Person, or
(b) if a United States Person will have a beneficial interest in such Warrant
Securities, such person is described in Section 165(j)(3)(A), (B) or (C) of the
United States Internal Revenue Code of 1954, as amended, and the regulations
thereunder. As used herein, "United States Person" means a citizen or resident
of the United States, a corporation, partnership or other entity created or
organized in or under the laws of the United States or any political subdivision
thereof or an estate or trust whose income from sources without the United
States includible in gross income for United States Federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States.
We understand that this certificate is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: --------------------------------------
(Please print name)
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<PAGE> 19
[IF REGISTERED WARRANT]
ASSIGNMENT
(FORM OF ASSIGNMENT TO BE EXECUTED IF HOLDER DESIRES
TO TRANSFER WARRANTS EVIDENCED HEREBY)
FOR VALUE RECEIVED _______________________ hereby sells, assigns and
transfers unto _________________________________________
_____________________________________________ Please insert social security
(Please print name and address including zip code) or other identifying number
--------- -------- ----------
--------- -------- ----------
- --------------------------------------------------------------------------------
the Warranty represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint _____________________ Attorney, to transfer
said Warrant Certificate on the books of the Warrant Agent with full power of
substitution in the premises.
Dated: --------------------------------------
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of this Warrant
Certificate and must bear a signature
guarantee by a commercial bank, trust
company or member broker of the New
York, American, Midwest or Pacific
Stock Exchange.)
Signature Guaranteed:
- -------------------------------------
*Subject to change in accordance with changes in tax laws and regulations.
<PAGE> 1
EXHIBIT (4)(c)
FLEET BOSTON CORPORATION
FORM OF WARRANT AGREEMENT [FOR WARRANTS SOLD ALONE](1)
THIS WARRANT AGREEMENT is dated as of ______________ between Fleet
Boston Corporation, a Rhode Island corporation (hereinafter called the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to) and __________________________, as Warrant Agent
(herein called the "Warrant Agent").
WHEREAS, the Company has entered into an Indenture dated as of
___________, 1999 (the "Indenture"), with The Bank of New York, as trustee (the
"Trustee"), provided for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (the "Debt Securities"), to
be issued in one or more series, as provided in the Indenture; and
WHEREAS, the Company proposes to sell warrant certificates evidencing
one or more warrants (the "Warrants" or, individually a "Warrant") representing
the right to purchase [title of Debt Securities purchasable through exercise of
Warrants] (the "Warrant Securities"), such warrant certificates and other
warrant certificates issued pursuant to this Agreement being herein called the
"Warrant Certificates"; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company in connection with the issuance, exchange, exercise and replacement of
the Warrant Certificates, and in this Agreement wishes to set forth, among other
things, the form and provisions of the Warrant Certificates and the terms and
conditions on which they may be issued, exchanged, exercised and replaced.
NOW, THEREFORE, in consideration of the premises ands of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION AND DELIVERY OF WARRANT CERTIFICATES
SECTION 1.01. ISSUANCE OF WARRANTS. Each Warrant Certificate shall
evidence one or more Warrants. Each Warrant evidenced thereby shall represent
the right, subject to the provisions contained herein and therein, to purchase a
Warrant Security in the principal amount of $___________ to be issued pursuant
to the Indenture.
SECTION 1.02. EXECUTION AND DELIVERY OF WARRANT CERTIFICATES. Each
Warrant Certificate, whenever issued, shall be in [bearer] [registered] form
substantially in the form set forth in Exhibit A hereto, shall be dated
______________ and may have such letters, numbers or
- ---------------
(1) Complete or modify the provisions of this Form as appropriate to reflect the
terms of the Warrants and Warrant Securities. Monetary amounts may be in U.S.
dollars, in a foreign denominated currency or in one or more units of foreign
currencies such as the Euro.
<PAGE> 2
other marks of identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as the officers of the Company
executing the same may approve (execution thereof to be conclusive evidence of
such approval) and as are not inconsistent with the provisions of this Agreement
or as may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange on which
the Warrants may be listed or to conform to usage. The Warrant Certificates
shall be signed on behalf of the Company by its Chairman of the Board, any Vice
Chairman, its President, any Vice President, its Treasurer or one of its
Assistant Treasurers under its corporate seal and attested by its Secretary or
one of its Assistant Secretaries. Such signatures may be manual or facsimile
signatures of such authorized officers and may be imprinted or otherwise
reproduced on the Warrant Certificates. The seal of the Company may be in the
form of a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Warrant Certificates.
No Warrant Certificate shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable until such Warrant Certificate has been
countersigned by the manual signature of the Warrant Agent. Such signature by
the Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence that the Warrant Certificate so countersigned has been duly
issued hereunder.
In case any officer of the Company who shall have signed any of the
Warrant Certificates either manually or by facsimile signature shall cease to be
such officer before the Warrant Certificates so signed shall have been
countersigned and delivered by the Warrant Agent, such Warrant Certificates may
be countersigned and delivered notwithstanding that the person who signed such
Warrant Certificates ceased to be such officer of the Company; and any Warrant
Certificate may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such Warrant Certificates, shall be the proper
officers of the Company, although at the date of the execution of this Agreement
any such person was not such officer.
[If bearer Warrants - The term "holder" or "holder of a Warrant
Certificate" as used herein shall mean the bearer of such Warrant Certificate.]
[If registered Warrants - The term "holder" or "holder of a Warrant
Certificate" as used herein shall mean any person in whose name at the time any
Warrant Certificate shall be registered upon the books to be maintained by the
Warrant Agent for that purpose.]
SECTION 1.03. ISSUANCE OF WARRANT CERTIFICATES. Warrant Certificates
evidencing the right to purchase an aggregate principal amount not exceeding
$__________ aggregate principal amount of Warrant Securities (except as provided
in Sections 2.03(c), 3.02 and 4.01) may be executed by the Company and delivered
to the Warrant Agent upon the execution of this Warrant Agreement or from time
to time thereafter. The Warrant Agent shall, upon receipt of Warrant
Certificates duly executed on behalf of the Company, countersign Warrant
Certificates evidencing Warrants representing the right to purchase up to
$____________ aggregate principal amount of Warrant Securities and shall deliver
such Warrant Certificates to or upon the order of the Company. Subsequent to
such original issuance of the Warrant Certificates, the Warrant
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<PAGE> 3
Agent shall countersign a Warrant Certificate only if the Warrant Certificate is
issued in exchange or substitution for one or more previously countersigned
Warrant Certificates [If registered Warrants - or in connection with their
transfer], as hereinafter provided or as provided in Section 2.03(c).
ARTICLE II.
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS.
SECTION 2.01. WARRANT PRICE. On _____________, 19___, the exercise
price of each Warrant is $___________. During the period from ______________,
19___, through and including ______________, 19___, the exercise price of each
Warrant will be $___________ plus [accrued amortization of the original issue
discount] [accrued interest] from ____________, 19___. On _______________,
19___, the exercise price of each Warrant will be $____________. During the
period from _______________, 19___, through and including 19___, the exercise
price of each Warrant will be $___________ plus [accrued amortization of the
original issue discount] [accrued interest] from ______________, 19___. [In each
case, the original issue discount will be amortized at a ___% annual rate,
computed on an annual basis using a 360-day year consisting of twelve 30-day
months]. Such purchase price of Warrant Securities is referred to in this
Agreement as the "Warrant Price." [The original issue discount for each $1,000
principal amount of Warrant Securities is $__________.]
SECTION 2.02. DURATION OF WARRANTS. Each Warrant may be exercised in
whole at any time, as specified herein, on or after [the date thereof]
[______________, 19___] and at or before 5 p.m. New York time on
_______________, 19___ (the "Expiration Date"). Each Warrant not exercised at or
before 5 p.m. New York time on the Expiration Date shall become void, and all
rights of the holder of the Warrant Certificate evidencing such Warrant under
this Agreement shall cease.
SECTION 2.03. EXERCISE OF WARRANTS. (a) During the period specified in
Section 2.02, any whole number of Warrants may be exercised by providing certain
information set forth on the reverse side of the Warrant Certificate and by
paying in full, [in lawful money of the United States of America] [in cash or by
certified check or official bank check or by bank wire transfer, in each case]
[by bank wire transfer], in immediately available funds, the Warrant Price for
each Warrant exercised, to the Warrant Agent at its corporate trust office [or
at ____________], provided that such exercise is subject to receipt, within five
business days of such [payment] [wire transfer] by the Warrant Agent of the
Warrant Certificate with the form of election to purchase Warrant Securities set
forth on the reverse side of the Warrant Certificate properly completed and duly
executed. The date on which payment in full of the Warrant Price is received by
the Warrant Agent shall, subject to receipt of the Warrant Certificate as
aforesaid, be deemed to be the date on which the Warrant is exercised. The
Warrant Agent shall deposit all funds received by it in payment of the Warrant
Price in an account of the Company maintained with it and shall advise the
Company by telephone at the end of each day on which a [payment] [wire transfer]
for the exercise of Warrants is received of the amount so deposited to its
account. The Warrant Agent shall promptly confirm such telephone advice to the
Company in writing.
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<PAGE> 4
(b) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company and the Trustee under the Indenture of (i) the
number of Warrants exercised, (ii) the instructions of each holder of the
Warrant Certificates evidencing such Warrants with respect to delivery of the
Warrant Securities to which such holder is entitled upon such exercise, (iii)
delivery of Warrant Certificates evidencing the balance, if any, of the Warrants
remaining after such exercise, and (iv) such other information as the Company or
the Trustee shall reasonably require.
(c) As soon as practicable after the exercise of any Warrant, the
Company shall issue, pursuant to the Indenture, in authorized denominations to
or upon the order of the holder of the Warrant Certificate evidencing such
Warrant, the Warrant Securities to which such holder is entitled in fully
registered form, registered in such name or names as may be directed by such
holder(2). If fewer than all of the Warrants evidenced by such Warrant
Certificate are exercised, the Company shall execute, and an authorized officer
of the Warrant Agent shall manually countersign and deliver, a new Warrant
Certificate evidencing the number of such Warrants remaining unexercised.
(d) The Company shall not be required to pay any stamp or other tax or
other governmental charge required to be paid in connection with any transfer
involved in the issue of the Warrant Securities and in the event that any such
transfer is involved, the Company shall not be required to issue or deliver any
Warranty Security until such tax or other charge shall have been paid or it has
been established to the Company's satisfaction that no such tax or other charge
is due.
ARTICLE III.
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT CERTIFICATES.
SECTION 3.01. NO RIGHTS AS WARRANT SECURITYHOLDER CONFERRED BY WARRANTS
OR WARRANT CERTIFICATES. No Warrant Certificate or Warrant evidenced thereby
shall entitle the holder thereof to any of the rights of a holder of Warrant
Securities, including, without limitation, the right to receive the payment of
principal of, premium, if any, or interest on Warrant Securities or to enforce
any of the covenants in the Indenture.
SECTION 3.02. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT
CERTIFICATES. Upon receipt by the Warrant Agent of evidence reasonably
satisfactory to it of the ownership of and the loss, theft, destruction or
mutilation of any Warrant Certificate and of indemnity reasonably satisfactory
to it and in the case of mutilation, upon surrender thereof to the Warrant Agent
for cancellation, then, in the absence of notice to the Company or the Warrant
Agent that such Warrant Certificate has been acquired by a bona fide purchase,
the Company shall execute, and
- ----------------------
(2) Subject to change in accordance with changes in tax laws and regulations.
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<PAGE> 5
an authorized officer of the Warrant Agent shall manually countersign and
deliver, in exchange for or in lieu of the lost, stolen, destroyed or mutilated
Warrant Certificate, a new Warrant Certificate of the same tenor and evidencing
a like number of Warrants. Upon the issuance of any new Warrant Certificate
under this Section, 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 (including the fees and expenses of the Warrant
Agent) in connection therewith. Every substitute Warrant Certificate executed
and delivered pursuant to this Section in lieu of any lost, stolen or destroyed
Warrant Certificate shall represent an additional contractual obligation of the
Company, whether or not the lost, stolen or destroyed Warrant Certificate shall
be at any time enforceable by anyone, and shall be entitled to the benefits of
this Agreement equally and proportionately with any and all other Warrant
Certificates duly executed and delivered hereunder. The provisions of this
Section are exclusive and shall preclude (to the extent lawful) all other rights
and remedies with respect to the replacement of mutilated, lost, stolen or
destroyed Warrant Certificates.
SECTION 3.03. HOLDER OF WARRANT CERTIFICATE MAY ENFORCE RIGHTS.
Notwithstanding any of the provisions of this Agreement, any holder of a Warrant
Certificate, without the consent of the Warrant Agent, the Trustee, the holder
of any Warrant Securities or the holder of any other Warrant Certificate may, in
his own behalf and for his own benefit, enforce, and may institute and maintain
any suit, action or proceeding against the Company suitable to enforce, or
otherwise in respect of, his right to exercise the Warrants evidenced by his
Warrant Certificate in the manner provided in his Warrant Certificate and in
this Agreement.
ARTICLE IV.
EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES.
SECTION 4.01. EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES. Upon
surrender at the corporate trust office of the Warrant Agent [or _____________],
Warrant Certificates evidencing Warrants may be exchanged for Warrant
Certificates in other denominations evidencing such Warrants [If registered
Warrants: or the transfer therefore may be registered in whole or in part];
provided that such other Warrant Certificates evidence the same aggregate number
of Warrants as the Warrant Certificates so surrendered. [If registered Warrants
- - The Warrant Agent shall keep, at its corporate trust office [and at
______________], books in which, subject to such reasonable regulations as it
may prescribe, it shall register Warrant Certificates and exchanges and
transfers of outstanding Warrant Certificates, upon surrender of the Warrant
Certificates to the Warrant Agent at its corporate trust office [ or
_____________] for exchange [or registration of transfer], properly endorsed or
accompanied by appropriate instruments of registration of transfer and written
instructions for transfer, all in form satisfactory to the Company and the
Warrant Agent.] No service charge shall be made for any exchange [or
registration of transfer] or Warrant Certificates, but the Company may require
payment of a sum sufficient to cover any stamp or other tax or other
governmental charge that may be imposed in connection with any such exchange [or
registration of transfer]. Whenever any Warrant Certificates are so surrendered
for exchange [or registration of transfer] an authorized officer of the Warrant
Agent
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<PAGE> 6
shall manually countersign and deliver to the person or persons entitled thereto
a Warrant Certificate or Warrant Certificates duly authorized and executed by
the Company, as so requested. The Warrant Agent shall not be required to effect
any exchange [or registration of transfer] which will result in the issuance of
a Warrant Certificate evidencing a fraction of a Warrant or a number of full
Warrants and a fraction of a Warrant. All Warrant Certificates issued upon any
exchange [or registration of transfer] of Warrant Certificates shall be the
valid obligations of the Company, evidencing the same obligations, and entitled
to the same benefits under this Agreement, as the Warrant Certificates
surrendered for such exchange [or registration of transfer].
SECTION 4.02 TREATMENT OF HOLDERS OF WARRANT CERTIFICATES. [Bearer
warrants - Each Warrant Certificate shall be transferable by delivery and shall
be deemed negotiable and the bearer of each Warrant Certificate may be treated
by the Company, the Warrant Agent and all other persons dealing with such bearer
as the absolute owner thereof for any purpose and as the person entitled to
exercise the rights represented by the Warrants evidenced thereby, any notice to
the contrary notwithstanding.] [Registered Warrants - The Company and the
Warrant Agent may treat the registered holder as the absolute owner thereof for
any purpose and as the person entitled to exercise the rights represented by the
Warrants evidenced thereby, any notice to the contrary notwithstanding.]
SECTION 4.03 CANCELLATION OF WARRANT CERTIFICATES. Any Warrant
Certificate surrendered for exchange [registration of transfer] or exercise of
the Warrants evidenced thereby shall, if surrendered to the Company, be
delivered to the Warrant Agent and all Warrant Certificates surrendered or so
delivered to the Warrant Agent shall be promptly canceled by the Warrant Agent
and shall not be reissued and except as expressly permitted by this Agreement,
no Warrant Certificate shall be issued hereunder in exchange or in lieu thereof.
The Warrant Agent shall deliver to the Company from time to time or otherwise
dispose of canceled Warrant Certificates in a manner satisfactory to the
Company.
ARTICLE V.
CONCERNING THE WARRANT AGENT
SECTION 5.01 WARRANT AGENT. The Company hereby appoints
________________, as Warrant Agent of the Company in respect of the Warrants and
the Warrant Certificates upon the terms and subject to the conditions herein set
forth, and ________________ hereby accepts such appointment. The Warrant Agent
shall have the powers and authority granted to and conferred upon it in the
Warrant Certificates and hereby and such further powers and authority to act on
behalf of the Company as the Company may hereafter grant to or confer upon it.
All of the terms and provisions with respect to such powers and authority
contained in the Warrant Certificates are subject to and governed by the terms
and provisions hereof.
SECTION 5.02 CONDITIONS OF WARRANT AGENT'S OBLIGATIONS. The Warrant
Agent accepts its obligations herein set forth upon the terms and conditions
thereof, including the following, to
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<PAGE> 7
all of which the Company agrees and to all of which the rights hereunder of the
holders from time to time of the Warrant Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees
promptly to pay the Warrant Agent the compensation to be agreed upon
with the Company for all services rendered by the Warrant Agent and to
reimburse the Warrant Agent for reasonable out-of-pocket expenses
(including counsel (fees)) incurred by the Warrant Agent in connection
with the services rendered hereunder by the Warrant Agent. The Company
also agrees to indemnify the Warrant Agent for and to hold it harmless
against any loss, liability or expense incurred without negligence or
bad faith on the part of the Warrant Agent, arising out of or in
connection with its acting as Warrant Agent hereunder, as well as the
costs and expenses of defending against any claim of such liability.
(b) Agent for the Company. In acting under this Warrant
Agreement and in connection with the Warrant Certificates, the Warrant
Agent is acting solely as agent of the Company and does not assume any
obligation or relationship of agency or trust for or with any of the
holders of Warrant Certificates or beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with counsel
satisfactory to it and the advise of such counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in accordance
with the advise of such counsel.
(d) Documents. The Warrant Agent shall be protected and shall
incur no liability for or in respect of any action taken or thing
suffered by it in reliance upon any Warrant Certificate, notice,
direction, consent, certificate, affidavit, statement or other paper or
document reasonably believe by it to be genuine and have been presented
or signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, and its officers,
directors and employees, may become the owner of, or acquire any
interest in, Warrants, with the same rights that it or they would have
if it were not the Warrant Agent hereunder, and, to the extent
permitted by applicable law, it or they may engage or be interested in
any financial or other transaction with the Company and may act on or
as depository, trustee or agent for, any committee or body of holders
of Warrant Securities or other obligations of the Company as freely as
if it were not the Warrant Agent hereunder. Nothing in this Warrant
Agreement shall be deemed to prevent the Warrant Agent from acting as
trustee for any series of Debt Securities under the Indenture.
(f) No Liability for Interest. The Warrant Agent shall have no
liability for interest on any monies at any time received by its
pursuant to any of the provisions of this Agreement or of the Warrant
Certificates.
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<PAGE> 8
(g) No Liability for Invalidity. The Warrant Agent shall have
no liability with respect to any invalidity of this Agreement or any of
the Warrant Certificates.
(h) No Responsibility for Representations. The Warrant Agent
shall not be responsible for any of the recitals or representations
herein or in the Warrant Certificates (except as to the Warrant Agent's
countersignature thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be
obligated to perform only such duties as are herein and in the Warrant
Certificates specifically set forth and no implied duties or
obligations shall be read into this Agreement or the Warrant
Certificates against the Warrant Agent. The Warrant Agent shall not be
under any obligation to take any action hereunder which may tend to
involve it in any expense or liability, the payment of which within a
reasonable time is not, in its reasonable opinion, assured to it. The
Warrant Agent shall not be accountable or under any duty or
responsibility for the use by the Company of any of the Warrant
Certificates authenticated by the Warrant Agent and delivered by it to
the Company pursuant to this Agreement or for the application by the
Company of the proceeds of the Warrant Certificates. The Warrant Agent
shall have no duty or responsibility in case of any default by the
Company in the performance of its covenants or agreements contained
herein or in the Warrant Certificates or in the case of the receipt of
any written demand from a holder of a Warrant Certificate with respect
to such default, including, without limiting the generality of the
foregoing, any duty or responsibility to initiate or attempt to
initiate any proceedings at law or otherwise, or except as provided in
Section 6.02, to make any demand upon the Company.
SECTION 5.03. RESIGNATION AND APPOINTMENT OF SUCCESSOR. (a) The Company
agrees, for the benefit of the holders of the Warrant Certificates, that there
shall at all times be a Warrant Agent hereunder until all the Warrant
Certificates are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to the Company of such intention on its part specifying the date
on which its desired resignation shall become effective; provided that such date
shall not be less than three months after the date on which such notice is given
unless the Company otherwise agrees. The Warrant Agent hereunder may be removed
at any time by the filing with it of an instrument in writing signed by or on
behalf of the Company and specifying such removal and the date when it shall
become effective. Such resignation or removal shall take effect upon the
appointment by the Company, as hereinafter provided, of a successor Warrant
Agent (which shall be a bank or trust company authorized under the laws of the
jurisdiction of its organization to exercise corporate trust powers) and the
acceptance of such appointment by such successor Warrant Agent. The obligation
of the Company under Section 5.02(a) shall continue to the extent set forth
therein notwithstanding the resignation or removal of the Warrant Agent.
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<PAGE> 9
(c) In case at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or shall file a petition seeking relief under the Federal Bankruptcy
Code, as now constituted or hereafter amended, or under any other applicable
Federal or State bankruptcy law or similar law or make an assignment for the
benefits of its creditors or consent to the appointment of a receiver or
custodian of all or any substantial part of its property, or shall admit in
writing its inability to pay or meet its debts as they mature, or if a receiver
or custodian of it or of all of any substantial part of its property shall be
appointed, or if an order of any court shall be entered for relief against it
under the provisions of the Federal Bankruptcy Code, as now constituted or
hereafter amended, or under any other applicable Federal or State bankruptcy or
similar law, or if any public officer shall have taken charge or control of the
Warrant Agent or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, a successor Warrant Agent, qualified as aforesaid,
shall be appointed by the Company by an instrument in writing filed with the
successor Warrant Agent. Upon the appointment as aforesaid of a successor
Warrant Agent and acceptance by the successor Warrant Agent of such appointment,
the Warrant Agent shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder and thereupon such successor Warrant Agent,
without any further act, deed or conveyance, shall become vested with all the
authority, rights, powers, trusts, immunities, duties and obligations of such
predecessor with like effect as if originally named as Warrant Agent hereunder,
and such predecessor, upon payment of its charges and disbursements then unpaid,
shall thereupon become obligated to transfer, deliver and pay over, and such
successor Warrant Agent shall be entitled to receive all monies, securities and
other property on deposit with or held by such predecessor as Warrant Agent
hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be
merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a part, or any corporation to
which the Warrant Agent shall sell or otherwise transfer all or substantially
all the assets and business of the Warrant Agent, provided that is shall be
qualified as aforesaid, shall be the successor Warrant Agent under this
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
ARTICLE VI.
MISCELLANEOUS
SECTION 6.01. AMENDMENT. This Agreement may be amended by the parties
hereto, without the consent of the holder of any Warrant Certificate for the
purpose of curing any ambiguity, or of curing, correcting or supplementing any
defective provision contained herein, or making any other provisions with
respect to matters or questions arising under this Agreement as the Company and
the Warrant Agent may deem necessary or desirable; provided that such action
shall not adversely affect the interests of the holders of the Warrant
Certificates.
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<PAGE> 10
SECTION 6.02 NOTICES AND DEMANDS TO THE COMPANY AND WARRANT AGENT. If
the Warrant Agent shall receive any notice or demand addressed to the Company by
the holder of a Warrant Certificate pursuant to the provisions of the Warrant
Certificates, the Warrant Agent shall promptly forward such notice or demand to
the Company.
SECTION 6.03 ADDRESSES. Any communication from the Company to the
Warrant Agent with respect to this Agreement shall be addressed to
_______________, Attention _________________, and any communication from the
Warrant Agent to the Company with respect to this Agreement shall be addressed
to Fleet Boston Corporation, One Federal Street, Boston, Massachusetts 02110,
Attention: General Counsel (or such address as shall be specified in writing by
the Warrant Agent or by the Company).
SECTION 6.04 APPLICABLE LAW. The validity, interpretation and
performance of this Agreement and each Warrant Certificate issued hereunder and
of the prospective terms and provisions thereof shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 6.05 DELIVERY OF PROSPECTUS. The Company will furnish to the
Warrant Agent sufficient copies of a prospectus realign to the Warrant
Securities deliverable upon exercise of Warrants (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
will deliver to the holder of the Warrant Certificate evidencing such Warrant
prior to or concurrently with the delivery of the Warrant Securities issued upon
such exercise, a Prospectus.
SECTION 6.06 OBTAINING OF GOVERNMENTAL APPROVALS. The Company will from
time to time take all action which may be necessary to obtain and keep effective
any and all permits, consents and approvals of governmental agencies and
authorities and securities acts filings under United States Federal and State
laws (including, without limitation, a registration statement in respect of the
Warrants and Warrant Securities under the Securities Act of 1933), which may be
or become requisite in connection with the issuance, sale, transfer, and
delivery of the Warrant Certificates, the exercise of the Warrants, the
issuance, sale, transfer and delivery of the Warrant Securities issued upon
exercise of the Warrants or upon the expiration of the period during which the
Warrants are exercisable.
SECTION 6.07. PERSONS HAVING RIGHTS UNDER WARRANTY AGREEMENT. Nothing
in this Agreement shall give to any person other than the Company, the Warrant
Agent and the holders of the Warrant Certificates any right, remedy or claim
under or by reason of this Agreement.
SECTION 6.08. HEADINGS. The descriptive headings of the several
Articles and Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the provisions
hereof.
SECTION 6.09. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which as so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
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SECTION 6.10. INSPECTION OF AGREEMENT. A copy of this Agreement shall
be available at all reasonable times at the principal corporate trust office of
the Warrant Agent for inspection by the holder of any Warrant Certificate. The
Warrant Agent may require such holder to submit his Warrant Certificate for
inspection by it.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and their respective corporate seals to be affixed hereunto and
the same to be attested, all as of the date and year first above written.
FLEET BOSTON CORPORATION
By:
-----------------------------------
Attest:
- --------------------------- [NAME OF WARRANT AGENT],
As Warrant Agent
By:
-----------------------------------
Attest:
- --------------------------
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(FORM OF WARRANT CERTIFICATE)
[FACE OF WARRANT CERTIFICATE]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
FLEET BOSTON CORPORATION
WARRANTS TO PURCHASE
[TITLE OF WARRANT SECURITIES]
VOID AFTER 5 P.M. NEW YORK TIME ON ______________, 19__
[NO.] WARRANTS
This certifies that [the bearer is the] [___________________ or
registered assigns is the registered] owner of the above indicated number of
Warrants, each Warrant entitled such [bearer] [owner] to purchase, at any time
[after 5 p.m. New York time on ____________, 19__, and] on or before 5 p.m. New
York time on ________________, 19__, $___________ principal amount of [Title of
Warrant Securities] (the "Warrant Securities") of Fleet Boston Corporation (the
"Company"), issued and to be issued under the Indenture (as hereinafter
defined), on the following basis: [on ______________, 19__, the exercise price
of each Warrant is $___________; during the period from _______________, 19__
through and including ____________, 19__, the exercise price of each Warrant
will be $_____________ plus [accrued amortization of the original issue
discount] [accrued interest] from _______________, 19__; on ________________,
19___, through and including _____________, 19__, the exercise price of each
Warrant will be $__________ plus [accrued amortization of the original issue
discount] [accrued interest] from _____________, 19__, [in each case, the
original issue discount will be amortized at a _____% annual rate, computed on
an annual basis, using a 360-day year consisting of twelve 30-day months] (the
"Warrant Price") [The original issue discount for each $1,000 principal amount
of Warrant Securities is $___________]. The holder may exercise the Warrants
evidenced hereby by providing certain information set forth on the back hereof
and by paying in full, [in lawful money of the United States of America] [in
cash or by certified check or official bank check or by bank wire transfer, in
each case] [by bank wire transfer], in immediately available funds, the Warrant
Price for each Warrant exercised to the Warrant Agent (as hereinafter defined)
and by surrendering this Warrant Certificate, with the purchase form on the back
hereof duly executed, at the corporate trust office of [name of Warrant Agent],
or its successor as warrant agent (the "Warrant Agent"), [or__________]
currently at the address specified on the reverse hereof, and upon compliance
with and subject to the conditions set forth herein and in the Warrant Agreement
(as hereinafter defined).
Any whole number of Warrants evidenced by this Warrant Certificate may
be exercised to purchase Warrant Securities in registered form in denominations
of $__________ and any integral multiples thereof. Upon any exercise of fewer
than all of the Warrants evidenced by this Warrant Certificate, there shall be
issued to the holder hereof a new Warrant Certificate evidencing the number of
Warrants remaining unexercised.
<PAGE> 13
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of ______________, 19__, (the "Warrant Agreement")
between the Company and the Warrant Agent and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions the holder of this Warrant Certificate consents by acceptance hereof.
Copies of the Warrant Agreement are on file at the above-mentioned office of the
Warrant Agent [and at _____________].
The Warrant Securities to be issued and delivered upon the exercise of
the Warrants evidenced by this Warrant Certificate will be issued under and in
accordance with an Indenture dated as of ___________, 1999 (the "Indenture")
between the Company and The Bank of New York, as trustee, and will be subject to
the terms and provisions contained in the Indenture. Copies of the Indenture and
the form of Warrant Securities are on file at the corporate trust office of the
trustee [ and at _______________].
[Bearer Warrants - This Warrant Certificate may be transferred when
surrendered at the corporate trust office of the Warrant Agent [or
________________] by the registered owner of his appointed person or by an
attorney duly authorized in writing, in the manner and subject to the terms
provided in the Warrant Agreement.]
After countersignature by the Warrant Agent and prior to the expiration
of this Warrant Certificate, this Warrant Certificate may be exchanged at the
corporate trust office of the Warrant Agent for Warrant Certificates
representing the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the holder hereof to any of
the rights of a holder of Warrant Securities, including, without limitation, the
right to receive payments of principal of, premium, if any, or interest, if any,
on the Warrant Securities or to enforce any of the covenants of the Indenture.
This Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
Dated as of ________________, 19__.
FLEET BOSTON CORPORATION
By
------------------------------------
Attest:
- -----------------------------
Countersigned:
- -----------------------------
As Warrant Agent
By
---------------------------
Authorized Signature
13
<PAGE> 14
[Reverse of Warrant Certificate]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the holder must pay [in cash
or by certified check or official bank check or by bank wire transfer] [by bank
wire transfer], in immediately available funds, the Warrant Price in full for
Warrants exercised to [insert name of Warrant Agent] Corporation Trust
Department, [insert address of Warrant Agent], Attn. _______________ [or
______________], which [payment] [wire transfer] must specify the name of the
holder and the number of Warrants exercised by such holder. In addition, the
holder must complete the information required below and present this Warrant
Certificate in person or by mail (registered mail is recommended) to the Warrant
Agent at the addresses set forth below. This Warrant Certificate, completed and
duly executed, must be received by the Warrant Agent within five business days
of the [payment] [wire transfer].
To be Executed Upon Exercise of Warrant
The undersigned hereby irrevocably elects to exercise _______________
Warrants evidenced by this Warrant Certificate to purchase $_____________
principal amount of the [Title of Warrant Securities] (the "Warrant Securities")
of Fleet Boston Corporation and represents that he has tendered payment for such
Warrant Securities [in cash or by certified check or official bank check or by
bank wire transfer in each case] [by bank wire transfer], in immediately
available funds, to the order of Fleet Boston Corporation, c/o [insert name and
address of Warrant Agent], in the amount of $______________ in accordance with
the terms hereof. The undersigned requests that said principal amount of Warrant
Securities be in fully registered from in the authorized denominations,
registered in such names and delivered, all as specified in accordance with the
instructions set forth below.
If the number of Warrants exercised is less than all of the Warrants
evidenced hereby, the undersigned requests that a new Warrant Certificate
representing the remaining Warrants evidenced hereby be issued and delivered to
the undersigned unless otherwise specified in the instructions below.
Name:
------------------------------
(Please Print)
Address:
---------------------------
---------------------------
Signature:
-------------------------
- ------------ -------- ----------
- ------------ -------- ----------
(Insert Social Security or Other
Indemnifying Number of Holder)
14
<PAGE> 15
The Warrants evidenced hereby may be exercised at the following
addresses:
By hand at
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
By mail at
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
[Instructions as to form and delivery of Warrant Securities and, if
applicable, Warrant Certificates evidencing unexercised Warrants - complete as
appropriate.]
15
<PAGE> 16
Assignment
(Form of Assignment to be Executed if Holder Desires
to Transfer Warrants Evidenced Hereby)
FOR VALUE RECEIVED _______________________ hereby sells, assigns and
transfers unto _________________________________________
_____________________________________________ Please insert social security
(Please print name and address including zip code) or other identifying number
--------- -------- ----------
--------- -------- ----------
- --------------------------------------------------------------------------------
the Warranty represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint _____________________ Attorney, to transfer
said Warrant Certificate on the books of the Warrant Agent with full power of
substitution in the premises.
Dated: --------------------------------------
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of this Warrant
Certificate and must bear a signature
guarantee by a commercial bank, trust
company or member broker of the New
York, American, Midwest or Pacific
Stock Exchange.)
Signature Guaranteed:
- -------------------------------------
<PAGE> 1
Exhibit 4(d)
FLEET BOSTON CORPORATION
and
[Name of Warrant Agent], Warrant Agent
UNIVERSAL WARRANT AGREEMENT
dated as of [ ]
<PAGE> 2
TABLE OF CONTENTS
ARTICLE 1. UNIVERSAL WARRANTS 1
SECTION 1.01. RANKING. 1
SECTION 1.02. FORM, EXECUTION AND DELIVERY OF WARRANT CERTIFICATES 1
SECTION 1.03. NUMBER UNLIMITED; ISSUABLE IN SERIES 3
SECTION 1.04. COUNTERSIGNATURE AND DELIVERY OF WARRANT CERTIFICATES 4
SECTION 1.05. PLACE OF EXERCISE; REGISTRATION OF TRANSFERS AND EXCHANGES 6
SECTION 1.06. MUTILATED OR MISSING WARRANT CERTIFICATES 9
SECTION 1.07. REGISTERED HOLDERS 10
SECTION 1.08. CANCELLATION 10
SECTION 1.09. ADDITIONAL WARRANT AGENTS 11
SECTION 1.10. APPOINTMENT OF CALCULATION AGENTS 11
ARTICLE 2. DURATION AND EXERCISE OF UNIVERSAL WARRANTS 11
SECTION 2.01. DURATION AND EXERCISE OF UNIVERSAL WARRANTS 11
SECTION 2.02. RETURN OF MONEY HELD UNCLAIMED FOR TWO YEARS 11
ARTICLE 3. OTHER PROVISIONS RELATING TO RIGHTS OF WARRANTHOLDERS 12
SECTION 3.01. WARRANTHOLDER MAY ENFORCE RIGHTS 12
SECTION 3.02. NO RIGHTS AS HOLDER OF WARRANT PROPERTY CONFERRED BY
UNIVERSAL WARRANTS OR WARRANT CERTIFICATES 12
SECTION 3.03. MERGER, CONSOLIDATION, CONVEYANCE OR TRANSFER 12
ARTICLE 4. UNIVERSAL WARRANTS ACQUIRED BY THE COMPANY; PAYMENT OF TAXES 12
SECTION 4.01. UNIVERSAL WARRANTS ACQUIRED BY THE COMPANY 12
SECTION 4.02. PAYMENT OF TAXES 13
ARTICLE 5. CONCERNING THE WARRANT AGENT 13
SECTION 5.01. WARRANT AGENT 13
SECTION 5.02. CONDITION OF WARRANT AGENT'S OBLIGATIONS 13
<PAGE> 3
SECTION 5.03. RESIGNATION AND APPOINTMENT OF SUCCESSOR 15
ARTICLE 6. MISCELLANEOUS 16
SECTION 6.01. AMENDMENT 16
SECTION 6.02. NOTICES AND DEMANDS TO THE COMPANY AND THE WARRANT AGENT 17
SECTION 6.03. ADDRESSES FOR NOTICES 17
SECTION 6.04. NOTICES TO WARRANTHOLDERS 17
SECTION 6.05. OBTAINING OF APPROVALS 18
SECTION 6.06. PERSONS HAVING RIGHTS UNDER THIS AGREEMENT 18
SECTION 6.07. INSPECTION OF AGREEMENT 18
SECTION 6.08. OFFICER'S CERTIFICATES AND OPINIONS OF COUNSEL; STATEMENTS
TO BE CONTAINED THEREIN 18
SECTION 6.09. PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS 19
SECTION 6.10. JUDGMENT CURRENCY 19
SECTION 6.11. HEADINGS 19
SECTION 6.12. COUNTERPARTS 19
SECTION 6.13. APPLICABLE LAW 19
<PAGE> 4
WARRANT AGREEMENT
THIS AGREEMENT, dated as of ____________, between FLEET BOSTON CORPORATION,
a corporation organized and existing under the laws of the State of Rhode Island
(the "Company"), and [Name of Warrant Agent], a [ ] (the "Warrant Agent").
WHEREAS, the Company has duly authorized the issue from time to time of
warrants (the "Universal Warrants") to purchase or sell (i) securities of an
entity unaffiliated with the Company, a basket of such securities, an index or
indices of such securities or any combination of the above, (ii) currencies or
(iii) commodities (the property described in clauses (i), (ii) and (iii), in
relation to a Universal Warrant, being hereinafter referred to as the "Warrant
Property" applicable to such Universal Warrant) to be issued in one or more
series and in such number and with such terms as may from time to time be
authorized in accordance with the terms of this Agreement;
WHEREAS, the Company has duly authorized the execution and delivery of this
Agreement to provide, among other things, for the delivery and administration of
the Universal Warrants; and
WHEREAS, all things necessary to make this Agreement a valid agreement
according to its terms have been done;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
UNIVERSAL WARRANTS
SECTION 1.01. RANKING. The Universal Warrants are unsecured contractual
obligations of the Company and will rank pari passu with the Company's other
unsecured contractual obligations and with the Company's unsecured and
unsubordinated debt.
SECTION 1.02. FORM, EXECUTION AND DELIVERY OF WARRANT CERTIFICATES. (a)
Certificates ("Warrant Certificates") evidencing the Universal Warrants of each
series shall be substantially in the form of Exhibits I and II hereto or in such
form (not inconsistent with this Agreement) as shall be established by or
pursuant to one or more Board Resolutions (as defined below) (as set forth in a
Board Resolution or, to the extent established pursuant to, rather than set
forth in, a Board Resolution, in an Officer's Certificate (as defined below)
detailing such establishment) or in one or more agreements supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Agreement. The Warrant
Certificates may have imprinted or otherwise reproduced thereon such letters,
numbers or other marks of identification or designation and such legends or
endorsements as the officers of the Company executing the same may approve
(execution thereof to be conclusive evidence of such approval) and that are not
inconsistent with the provisions of this Agreement, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto, or
with any rule or regulation of any self- regulatory organization (an "SRO") on
which the Universal Warrants of such series may be listed, or of any securities
depository, or to conform to usage. Warrant Certificates shall be signed on
behalf of the Company by the chief financial officer, the treasurer or any
assistant treasurer or such other person specifically designated by the Board of
Directors to execute Warrant Certificates, which signature may or may not be
attested by the secretary or an assistant secretary of the Company. The
signature of any of such officers may be either manual or facsimile.
Typographical and other minor errors or defects in any such signature shall not
affect the validity or enforceability of any Warrant Certificate that has been
duly countersigned and delivered by the Warrant Agent.
<PAGE> 5
"Board Resolution" means a copy of one or more resolutions, certified by
the secretary or an assistant secretary of the Company to have been duly adopted
or consented to by the Board of Directors and to be in full force and effect,
and delivered to the Warrant Agent.
"Board of Directors" means either the Board of Directors of the Company or
any committee of such Board duly authorized to act on its behalf for the
purposes of this Agreement.
"Officer's Certificate" means a certificate signed by the chairman of the
board, any vice chairman, the president, the chief financial officer, any vice
president, the chief legal officer, the treasurer, any assistant treasurer or
such other person authorized by the Board of Directors to execute any such
certificate and delivered it to the Warrant Agent. Without limiting the
generality of the foregoing, if the Universal Warrants of any series are to be
issued as components of a unit ("Unit") with one or more other securities of the
Company, an officer's certificate or similar certificate relating to the
Universal Warrants delivered pursuant to an indenture or unit agreement or
similar agreement governing such Units or one or more other components thereof
may also constitute an Officer's Certificate under this Agreement.
(b) In case any officer of the Company who shall have signed a
Warrant Certificate, either manually or by facsimile signature, shall cease to
be such officer before such Warrant Certificate shall have been countersigned
and delivered by the Warrant Agent to the Company or delivered by the Company,
such Warrant Certificate nevertheless may be countersigned and delivered as
though the person who signed such Warrant Certificate had not ceased to be such
officer of the Company; and a Warrant Certificate may be signed on behalf of the
Company by any person who, at the actual date of the execution of such Warrant
Certificate, shall be a proper officer of the Company to sign such Warrant
Certificate, although at the date of the execution of this Warrant Agreement any
such person was not such officer.
(c) Pending the preparation of final Warrant Certificates evidencing
Universal Warrants of any series, the Company may execute and the Warrant Agent
shall countersign and deliver temporary Warrant Certificates evidencing such
Universal Warrants (printed, lithographed, typewritten or otherwise produced, in
each case in form satisfactory to the Warrant Agent). Such temporary Warrant
Certificates shall be issuable substantially in the form of the final Warrant
Certificates but with such omissions, insertions and variations as may be
appropriate for temporary Warrant Certificates, all as may be determined by the
Company with the concurrence of the Warrant Agent. Such temporary Warrant
Certificates may contain such reference to any provisions of this Warrant
Agreement as may be appropriate. Every such temporary Warrant Certificate shall
be executed by the Company and shall be countersigned by the Warrant Agent upon
the same conditions and in substantially the same manner, and with like effect,
as the final Warrant Certificates. Without unreasonable delay, the Company shall
execute and shall furnish final Warrant Certificates and thereupon such
temporary Warrant Certificates may be surrendered in exchange therefor without
charge, and the Warrant Agent shall countersign and deliver in exchange for such
temporary Warrant Certificates final Warrant Certificates evidencing a like
aggregate number of Universal Warrants of the same series and of like tenor as
those evidenced by such temporary Warrant Certificates. Until so exchanged, such
temporary Warrant Certificates and the Universal Warrants evidenced thereby
shall be entitled to the same benefits under this Warrant Agreement as final
Warrant Certificates and the Universal Warrants evidenced thereby.
SECTION 1.03. NUMBER UNLIMITED; ISSUABLE IN SERIES. (a) The aggregate
number of Universal Warrants that may be delivered under this Agreement is
unlimited.
(b) The Universal Warrants may be issued in one or more series. There
shall be established in or pursuant to one or more Board Resolutions (and to the
extent established pursuant to, rather than set forth in, a Board Resolution, in
an Officer's Certificate detailing such establishment) or established in one or
more agreements supplemental hereto, prior to the initial issuance of Universal
Warrants of any series:
-2-
<PAGE> 6
(i) the designation of the Universal Warrants of the
series, which shall distinguish the Universal Warrants
of the series from the Universal Warrants of all other
series;
(ii) any limit upon the aggregate number of the Universal
Warrants of the series that may be countersigned and
delivered under this Agreement (except for Universal
Warrants countersigned and delivered upon registration
of transfer of, or in exchange for, or in lieu of,
other Universal Warrants of the series);
(iii) the specific Warrant Property purchasable or salable
upon exercise of the Universal Warrants of the series,
and the amount thereof (or the method for determining
the same);
(iv) the price at which the Universal Warrants of the series
will be issued and, if other than U.S. dollars, the
coin or currency or composite currency in which such
issue price will be payable;
(v) whether the Universal Warrants of the series are
warrants to purchase ("call warrants") or warrants to
sell ("put warrants") the Warrant Property;
(vi) the price at which and, if other than U.S. Dollars, the
coin or currency or composite currency with which the
Warrant Property may be purchased or sold upon exercise
of the Universal Warrants of the series (or the method
for determining the same);
(vii) whether the exercise price for the Universal Warrants
of the series may be paid in cash or by the exchange of
any other security of the Company, or both, or
otherwise, and the method of exercise of the Universal
Warrants of the series;
(viii) whether the exercise of the Universal Warrants of the
series is to be settled in cash or by delivery of the
Warrant Property or both, or otherwise;
(ix) the date on which the right to exercise the Universal
Warrants of the series shall commence and the date (the
"Expiration Date") on which such right shall expire or,
if the Universal Warrants of the series are not
continuously exercisable throughout such period, the
specific date or dates on which they will be
exercisable;
(x) whether the Warrant Certificates representing the
Universal Warrants of the series will be in registered
form ("Registered Warrants") or bearer form ("Bearer
Warrants") or both;
(xi) whether the Warrant Certificates evidencing any
Registered Warrants or Bearer Warrants of the series
will be issued in global form ("Global Warrant
Certificates") or definitive form ("Definitive Warrant
Certificates") or both, and whether and on what terms
(if different from those set forth herein) Warrant
Certificates in one form may be converted into or
exchanged for Warrant Certificates in the other form;
(xii) any warrant agents, depositaries, authenticating or
paying agents, transfer agents or registrars or any
determination or calculation agents or other agents
with respect to Universal Warrants of the series;
(xiii) whether the Universal Warrants of the series will be
issued separately or together as a unit (a "Unit") with
one or more other securities of the Company or any
other person and,
-3-
<PAGE> 7
if the Universal Warrants of the series are to be
issued as components of Units, whether and on what
terms the Universal Warrants of the series may be
separated from the other components of such Units prior
to the Expiration Date of such Universal Warrants; and
(xiv) any other terms of the Universal Warrants of the series
(which terms shall not be inconsistent with the
provisions of this Agreement).
(c) All Universal Warrants of any one series shall be substantially
identical, except as may otherwise be provided by or pursuant to the Board
Resolution or Officer's Certificate referred to above or as set forth in any
such agreement supplemental hereto. All Universal Warrants of any one series
need not be issued at the same time and may be issued from time to time,
consistent with the terms of this Agreement, if so provided by or pursuant to
such Board Resolution, such Officer's Certificate or in any such agreement
supplemental hereto.
SECTION 1.04. COUNTERSIGNATURE AND DELIVERY OF WARRANT CERTIFICATES. (a)
The Company may deliver Warrant Certificates evidencing Universal Warrants of
any series executed by the Company to the Warrant Agent for countersignature
together with the applicable documents referred to below in this Section, and
the Warrant Agent shall thereupon countersign and deliver such Warrant
Certificates to or upon the order of the Company (contained in the Issuer Order
(as defined below) referred to below in this Section) or pursuant to such
procedures acceptable to the Warrant Agent as may be specified from time to time
by an Issuer Order. Any terms of the Universal Warrants evidenced by such
Warrant Certificates may be determined by or pursuant to such Issuer Order or
such other procedures. If provided for in such procedures, such Issuer Order may
authorize countersignature and delivery pursuant to oral instructions from the
Company or its duly authorized agent, which instructions shall be promptly
confirmed in writing. In countersigning such Warrant Certificates and accepting
the responsibilities under this Agreement in relation to the Universal Warrants
evidenced by such Warrant Certificates, the Warrant Agent shall be entitled to
receive (in the case of subparagraphs 1.04(a)(ii), 1.04(a)(iii) and 1.04(a)(iv)
below only at or before the time of the first request of the Company to the
Warrant Agent to countersign Warrant Certificates in a particular form
evidencing Universal Warrants) and shall be fully protected in relying upon,
unless and until such documents have been superseded or revoked:
(i) an Issuer Order requesting such countersignature and
setting forth delivery instructions if the Warrant
Certificates are not to be delivered to the Company;
(ii) any Board Resolution, Officer's Certificate and/or
executed supplemental agreement pursuant to which the
forms and terms of the Universal Warrants evidenced by
such Warrant Certificates were established;
(iii) an Officer's Certificate setting forth the forms and
terms of the Universal Warrants evidenced by such
Warrant Certificates stating that the form or forms and
terms of the Universal Warrants evidenced by such
Warrant Certificates have been established pursuant to
Sections 1.02 and 1.03 and comply with this Agreement,
and covering such other matters as the Warrant Agent
may reasonably request; and
(iv) At the option of the Company, either an Opinion of
Counsel (as defined below) or a letter addressed to the
Warrant Agent permitting it to rely on an Opinion of
Counsel, substantially to the effect that:
(A) the forms of the Warrant Certificates have been
duly authorized and established in conformity with
the provisions of this Agreement;
-4-
<PAGE> 8
(B) in the case of an underwritten offering, the terms
of the Universal Warrants have been duly authorized
and established in conformity with the provisions
of this Agreement and, in the case of an offering
that is not underwritten, certain terms of the
Universal Warrants have been established pursuant
to a Board Resolution, an Officer's Certificate or
a supplemental agreement in accordance with this
Agreement, and when such other terms as are to be
established pursuant to procedures set forth in an
Issuer Order shall have been established, all terms
will have been duly authorized by the Company and
will have been established in conformity with the
provisions of this Agreement; and
(C) when the Warrant Certificates have been executed by
the Company and countersigned by the Warrant Agent
in accordance with the provisions of this Agreement
and delivered to and duly paid for by the
purchasers thereof, subject to such other
conditions as may be set forth in such opinion of
counsel, they will have been duly issued under this
Agreement and the Universal Warrants evidenced
thereby will be valid and legally binding
obligations of the Company, enforceable in
accordance with their respective terms, and will be
entitled to the benefits of this Agreement.
In rendering such opinions, such counsel may qualify any opinions as to
enforceability by stating that such enforceability may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other similar laws
affecting the rights and remedies of creditors and is subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law). Such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the State of New York and the
federal law of the United States, upon opinions of other counsel (copies of
which shall be delivered to the Warrant Agent), who shall be counsel reasonably
satisfactory to the Warrant Agent, in which case the opinion shall state that
such counsel believes he and the Warrant Agent are entitled so to rely. Such
counsel may also state that, insofar as such opinion involves factual matters,
such counsel has relied, to the extent such counsel deems proper, upon
certificates of officers of the Company and its subsidiaries and certificates of
public officials.
"Issuer Order" means a written statement, request or order of the Company
signed in its name by the chairman of the board, any vice chairman, the
president, the chief financial officer, any vice president, the chief legal
officer, the treasurer, any assistant treasurer or such other person
specifically designated by the Board of Directors to execute any such written
instrument, request or order. Without limiting the generality of the foregoing,
if the Universal Warrants of a series are issued as components of Units, an
issuer order or similar order relating to the Universal Warrants delivered
pursuant to an indenture or unit or similar agreement governing such Units or
one or more other components thereof may also constitute an Issuer Order under
this Agreement if addressed to the Warrant Agent.
"Opinion of Counsel" means an opinion in writing signed by [ ] or by such
other legal counsel, who may be an employee of or counsel to the Company, and
who shall be satisfactory to the Warrant Agent.
(b) The Warrant Agent shall have the right to decline to countersign
and deliver any Warrant Certificates under this Section if the Warrant Agent,
being advised by counsel, determines that such action may not lawfully be taken
by the Company or if the Warrant Agent in good faith determines that (i) such
action would expose the Warrant Agent to personal liability to existing
registered or beneficial holders of Universal Warrants (each, a "Warrantholder")
or would affect the Warrant Agent's own rights, duties or immunities under the
Warrant Certificates, the Universal Warrants, this Agreement or otherwise or
(ii) the terms of such Universal Warrants are administratively unacceptable to
it.
-5-
<PAGE> 9
(c) If the Company shall establish pursuant to Section 1.03 that the
Universal Warrants of a series are to be evidenced in whole or in part by one or
more Global Warrant Certificates, then the Company shall execute and the Warrant
Agent shall, in accordance with this Section and the Issuer Order with respect
to such series, countersign and deliver one or more Global Warrant Certificates
that (i) shall evidence all or part of the Universal Warrants of such series
issued in such form and not yet canceled, (ii) shall be registered in the name
of the Depositary (as defined below) for such Universal Warrants or the nominee
of such Depositary, (iii) shall be delivered by the Warrant Agent to such
Depositary or pursuant to such Depositary's instructions and (iv) shall bear a
legend substantially to the following effect: "Unless and until it is exchanged
in whole or in part for Universal Warrants in definitive registered form, this
Warrant Certificate and the Universal Warrants evidenced hereby may not be
transferred except as a whole by the Depositary to the nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary."
"Depositary" means, with respect to the Universal Warrants of any series
that are or may be evidenced by one or more Global Warrant Certificates, the
person or persons designated as Depositary by the Company pursuant to Section
1.03 hereof until a successor Depositary shall have become such pursuant to the
applicable provisions of this Agreement, and thereafter "Depositary" shall mean
or include each person who is then a Depositary hereunder, and if at any time
there is more than one such person, "Depositary" as used with respect to the
Universal Warrants of any such series shall mean the Depositary with respect to
that series.
(d) If so required by applicable law, each Depositary for a series of
Universal Warrants must, at the time of its designation and at all times while
it serves as Depositary, be a clearing agency registered under the Securities
Exchange Act of 1934 and any other applicable statute or regulation.
(e) Each Warrant Certificate shall be dated the date of its
countersignature. A Warrant Certificate shall not be valid for any purpose, and
no Universal Warrant evidenced thereby shall be exercisable, unless and until
such Warrant Certificate has been countersigned by the manual signature of an
authorized officer of the Warrant Agent. Such countersignature by an authorized
officer of the Warrant Agent upon any Warrant Certificate executed by the
Company in accordance with this Agreement shall be conclusive evidence that the
Warrant Certificate so countersigned and the Universal Warrants evidenced
thereby have been duly issued hereunder.
SECTION 1.05. PLACE OF EXERCISE; REGISTRATION OF TRANSFERS AND EXCHANGES.
(a) Except as otherwise established pursuant to Section 1.03 with respect to
Universal Warrants of a series, Universal Warrants may be presented for exercise
at the Warrant Agent's Window (as defined below) in accordance with procedures
to be established pursuant to Section 1.03.
(b) Except as otherwise provided herein or as established pursuant to
Section 1.03 with respect to the Universal Warrants of a series, the Warrant
Agent shall from time to time register the transfer of any outstanding
Registered Definitive Warrant Certificates upon the records to be maintained by
it for that purpose (the "Warrant Register") at the Warrant Agent's Office (as
defined below), subject to such reasonable regulations as the Company or the
Warrant Agent may prescribe with respect to the Universal Warrants of such
series, upon surrender thereof at the Warrant Agent's Window (as defined below),
Attention: Transfer Department, duly endorsed by, or accompanied by a written
instrument or instruments of transfer in form satisfactory to the Warrant Agent
and the Company duly executed by, the Registered Holder(s) (as defined below)
thereof or by the duly appointed legal representative thereof or by a duly
authorized attorney, such signature to be guaranteed by a bank or trust company
with a correspondent office in The City of New York or by a broker or dealer
that is a member of the National Association of Securities Dealers, Inc. (the
"NASD") or by a member of a national securities exchange or in such other manner
acceptable to the Warrant Agent and the Company. Upon any such registration of
transfer, one or more new Warrant Certificates of the same series and
-6-
<PAGE> 10
like terms evidencing a like number of unexercised Universal Warrants shall be
issued to the transferee(s) and the surrendered Warrant Certificate shall be
cancelled by the Warrant Agent.
(c) Except as otherwise established for a series of Universal
Warrants pursuant to Section 1.03, at the option of a Registered Holder,
Definitive Warrant Certificates may be exchanged for other Definitive Warrant
Certificates evidencing the same aggregate number of unexercised Universal
Warrants of the same series and of like tenor upon surrender to the Warrant
Agent of the Definitive Warrant Certificates to be exchanged at the Warrant
Agent's Window, Attention: Transfer Department. The "Warrant Agent's Window"
shall be the window of the Warrant Agent maintained for purposes of transfer and
tender in the Borough of Manhattan, The City of New York (or at the address of
any additional agency established by the Company pursuant to Section 1.08
hereof, or at the address of any successor Warrant Agent (as provided in Section
5.03)), which is, on the date of this Agreement, [name and address of Warrant
Agent's Window]. If the Universal Warrants of any series are issued in both
registered and unregistered form, except as otherwise established for such
series pursuant to Section 1.03, at the option of the holder thereof, Warrant
Certificates evidencing Bearer Warrants of any series may be exchanged for
Definitive Warrant Certificates evidencing an equal number of unexercised
Registered Warrants of the same series and of like tenor upon surrender of such
Warrant Certificates evidencing Bearer Warrants to be exchanged at the Warrant
Agent's Window, Attention: Transfer Department. Unless otherwise established for
such series pursuant to Section 1.03, Registered Warrants of any series may not
be exchanged for Bearer Warrants of such series. Upon surrender of any
unexercised Warrant Certificate for exchange, the Warrant Agent shall cancel
such Warrant Certificate, and the Company shall execute, and the Warrant Agent
shall countersign and deliver, one or more new Warrant Certificates evidencing a
like number of unexercised Universal Warrants of the same series and of like
tenor.
(d) Universal Warrants evidenced by the Warrant Certificates issued
upon transfer or exchange pursuant to paragraph (b) or (c) of this Section shall
be valid obligations of the Company, constituting the same obligations of the
Company as the Universal Warrants evidenced by the Warrant Certificates
surrendered for transfer or exchange, and entitled to the same benefits under
this Agreement as were such Universal Warrants evidenced by the Warrant
Certificates prior to such surrender.
(e) Except as provided in Section 1.06, no service charge shall be
made for any registration of transfer or exchange of Warrant Certificates, but
the Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Warrant Certificates, other than exchanges pursuant to
this Section not involving any transfer.
(f) In the event that upon any exercise of Universal Warrants
evidenced by a Warrant Certificate the number of Universal Warrants exercised
shall be less than the total number of Universal Warrants evidenced by such
Warrant Certificate, there shall be issued to the Registered Holder thereof (or,
in the case of Bearer Warrants, the holder thereof) or his assignee a new
Warrant Certificate evidencing the number of Universal Warrants of the same
series and of like tenor not exercised.
(g) Warrant Certificates evidencing Bearer Warrants shall be
transferable by delivery.
(h) Notwithstanding any other provision of this Agreement, unless and
until it is exchanged in whole or in part for Definitive Warrant Certificates, a
Global Warrant Certificate evidencing all or a portion of the Universal Warrants
of a series may not be transferred except as a whole by the Depositary for such
series to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary for such series or a nominee of such
successor Depositary.
(i) If at any time the Depositary for any series of Universal
Warrants notifies the Company that it is unwilling or unable to continue as
Depositary for such series
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or if at any time the Depositary for such series shall no longer be eligible
under this Agreement, the Company shall appoint a successor Depositary with
respect to such series. If a successor Depositary for such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such ineligibility, the Company's election pursuant to
Section 1.03 that such series be evidenced by one or more Global Warrant
Certificates shall no longer be effective and the Company will execute, and the
Warrant Agent, upon receipt of an Officer's Certificate for the countersignature
and delivery of Definitive Warrant Certificates evidencing Universal Warrants of
such series, will countersign and deliver Definitive Warrant Certificates
evidencing Universal Warrants of such series and of like tenor in an aggregate
number equal to the number of the unexercised Universal Warrants represented by
such Global Warrant Certificate or Certificates in exchange for such Global
Warrant Certificate or Certificates.
(j) If established pursuant to Section 1.03 with respect to a series
of Universal Warrants evidenced in whole or in part by one or more Global
Warrant Certificates, the Depositary for such series may surrender such Global
Warrant Certificate or Certificates in exchange in whole or in part for
Definitive Warrant Certificates evidencing Universal Warrants of the same series
and of like tenor on such terms as are acceptable to the Company and such
Depositary. Thereupon, the Company shall execute, and the Warrant Agent shall
countersign and deliver, without service charge:
(i) to the person specified by such Depositary a new
Definitive Warrant Certificate of the same series and
of like tenor in an aggregate number equal to and in
exchange for such person's beneficial interest in the
Universal Warrants evidenced by such Global Warrant
Certificate or Certificates; and
(ii) to such Depositary a new Global Warrant Certificate or
Certificates evidencing Universal Warrants of the same
series and of like tenor in number equal to the
difference, if any, between the number of unexercised
Universal Warrants evidenced by the surrendered Global
Warrant Certificates and the number of unexercised
Universal Warrants evidenced by such Definitive Warrant
Certificate countersigned and delivered pursuant to
clause 1.05(j)(i) above.
Upon the exchange of a Global Warrant Certificate for Definitive Warrant
Certificates, such Global Warrant Certificate shall be canceled by the Warrant
Agent or an agent of the Company or the Warrant Agent. Registered Definitive
Warrant Certificates issued in exchange for a Registered Global Warrant
Certificate pursuant to this Section shall be registered in such names and in
such authorized denominations as the Depositary for such series, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Warrant Agent or an agent of the Company or the Warrant Agent. The
Warrant Agent or such agent shall deliver such Warrant Certificates to or as
directed by the persons in whose names such Warrant Certificates are so
registered. Definitive Bearer Warrant Certificates issued in exchange for a
Global Bearer Warrant Certificate pursuant to this Section shall be issued in
such authorized denominations as the Depositary for such series, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Warrant Agent or an agent of the Company or the Warrant Agent. The
Warrant Agent or such agent shall deliver such Warrant Certificates to or as
directed by the Depositary for such series.
(k) Notwithstanding anything herein or in the terms of any series of
Universal Warrants to the contrary, none of the Company, the Warrant Agent or
any agent of the Company or the Warrant Agent (any of which, other than the
Company, shall rely on an Officer's Certificate and an Opinion of Counsel) shall
be required to exchange any Bearer Warrant for a Registered Warrant if such
exchange would result in adverse Federal income tax consequences to the Company
under then applicable United States Federal income tax laws.
(l) The Company will maintain one or more offices or agencies in a
city or cities located outside the United States (including any city in which
such an agency is required to be maintained under the rules of
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any stock exchange on which the Universal Warrants of such series are listed)
where the Bearer Warrants, if any, of each series may be presented for exercise
and payment. No payment on any Bearer Warrants will be made upon presentation of
such Bearer Warrant at an agency of the Company within the United States nor
will any payment be made by transfer to an account in, or by mail to an address
in, the United States unless pursuant to applicable United States laws and
regulations then in effect such payment can be made without adverse tax
consequences to the Company. Notwithstanding the foregoing, payments in United
States dollars with respect to Bearer Warrants of any series which are payable
in United States dollars may be made at an agency of the Company maintained in
the Borough of Manhattan, The City of New York if such payment in United States
dollars at each agency maintained by the Company outside the United States for
payment on such Bearer Warrants is illegal or effectively precluded by exchange
controls or other similar restrictions.
(m) The Company may from time to time designate one or more
additional offices or agencies where the Universal Warrants of a series may be
presented for exercise and payment, where the Universal Warrants of that series
may be presented for exchange as provided in this Agreement and where the
Registered Universal Warrants of that series may be presented for registration
of transfer as in this Agreement provided, and the Company may from time to time
rescind any 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 the agencies provided for in
this Section. The Company will give to the Warrant Agent prompt written notice
of any such designation or rescission thereof.
SECTION 1.06. MUTILATED OR MISSING WARRANT CERTIFICATES. (a) If any Warrant
Certificate evidencing Universal Warrants of any series is mutilated, lost,
stolen or destroyed, the Company may in its discretion execute, and the Warrant
Agent may countersign and deliver, in exchange and substitution for the
mutilated Warrant Certificate, or in replacement for the Warrant Certificate
lost, stolen or destroyed, a new Warrant Certificate representing an equivalent
number of unexercised Universal Warrants of the same series and of like tenor,
bearing an identification number, if applicable, not contemporaneously
outstanding, but only (in case of loss, theft or destruction) upon receipt of
evidence satisfactory to the Company and the Warrant Agent of such loss, theft
or destruction of such Warrant Certificate and security or indemnity, if
requested, also satisfactory to them. Applicants for such substitute Warrant
Certificates shall also comply with such other reasonable regulations and pay
such other reasonable charges as the Company or the Warrant Agent may prescribe.
(b) In case the Universal Warrants evidenced by any such mutilated,
lost, stolen or destroyed Warrant Certificate have been or are about to be
exercised, or deemed to be exercised, the Company in its absolute discretion
may, instead of issuing a new Warrant Certificate, and subject to the conditions
set forth in clause 1.06(a) above, direct the Warrant Agent to treat the same as
if it had received the Warrant Certificate together with an irrevocable exercise
notice in proper form in respect thereof, as established with respect to the
Universal Warrants of such series.
(c) The Universal Warrants evidenced by each new Warrant Certificate
issued pursuant to this Section in lieu of any lost, stolen or destroyed Warrant
Certificate shall be original, additional contractual obligations of the
Company, and shall be entitled to the same benefits under this Agreement as the
Universal Warrants evidenced by the Warrant Certificate that was lost, stolen or
destroyed.
(d) Upon the issuance of any new Warrant Certificate in accordance
with this Section, 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 (including the fees and expenses of the Warrant
Agent) connected therewith.
(e) The provisions of this Section are exclusive and shall preclude
(to the extent lawful) any other rights and remedies with respect to the
replacement or payment of mutilated, lost, stolen or destroyed Warrant
Certificates.
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SECTION 1.07. REGISTERED HOLDERS. (a) Prior to due presentment for
registration of transfer, the Company, the Warrant Agent, and any agent of the
Company or the Warrant Agent may deem and treat the person in whose name a
Warrant Certificate shall be registered in the Warrant Register (a "Registered
Holder") as the absolute owner of the Registered Warrants evidenced thereby
(notwithstanding any notation of ownership or other writing on the Warrant
Certificate) for any purpose whatsoever, and as the person entitled to exercise
the rights represented by the Registered Warrants evidenced thereby, and neither
the Company nor the Warrant Agent, nor any agent of the Company or the Warrant
Agent, shall be affected by any notice to the contrary. All payments on account
of any Registered Warrant to the Registered Holder, 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 of the Company for moneys paid upon such Registered
Warrant. This Section shall be without prejudice to the rights of Warrantholders
as described elsewhere herein.
(b) The Company, the Warrant Agent and any agent of the Company or
the Warrant Agent may treat the holder of any Bearer Warrant as the absolute
owner of such Bearer Warrant for the purpose of exercising the rights
represented thereby and for all other purposes and neither the Company, the
Warrant Agent, nor any agent of the Company or the Warrant Agent shall be
affected by any notice to the contrary. All payments on account of such Bearer
Warrant made to any such person, 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 such Bearer Warrant. This Section shall be
without prejudice to the rights of Warrantholders as described elsewhere herein.
SECTION 1.08. CANCELLATION. All Universal Warrant Certificates surrendered
to the Warrant Agent for redemption or registration of transfer or exchange
shall be promptly cancelled by the Warrant Agent. The Company may at any time
deliver to the Warrant Agent for cancellation any Universal Warrant Certificates
previously countersigned and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Universal Warrant Certificates so
delivered shall, upon receipt by the Warrant Agent of an Issuer Order, be
promptly cancelled by the Warrant Agent. No Universal Warrant Certificates shall
be countersigned in lieu of or in exchange for any Universal Warrant
Certificates cancelled as provided in this Section, except as permitted by this
Agreement. All cancelled Universal Warrant Certificates held by the Warrant
Agent shall be disposed of in accordance with its customary procedures and a
certificate of their disposition shall be delivered by the Warrant Agent to the
Company, unless by Issuer Order the Company shall direct that cancelled
Universal Warrant Certificates be returned to it.
If the Company or any affiliate of the Company shall acquire any Universal
Warrant Certificate, such acquisition shall not operate as a cancellation of
such Universal Warrant Certificate unless and until such Universal Warrant
Certificate is delivered to the Warrant Agent for the purpose of cancellation.
SECTION 1.09. ADDITIONAL WARRANT AGENTS. Whenever the Company shall appoint
a warrant agent other than the Warrant Agent with respect to the Universal
Warrants of any series, it will cause such warrant agent to execute and deliver
to the Warrant Agent an instrument in which such agent shall agree with the
Warrant Agent, subject to the provisions of this Section:
(a) that it will hold all Warrant Property received by it as such
agent for any payment with respect to the Universal Warrants of such series in
trust for the benefit of the Warrantholders of such series if any, or of the
Warrant Agent, and
(b) that it will give the Warrant Agent notice of any failure by the
Company to make any payment with respect to the Universal Warrants of such
series when the same shall be due and payable.
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<PAGE> 14
The Company will, on or prior to each date of any payment of Universal Warrants
of any such series, deposit with the Warrant Agent or any such additional
warrant agent a sum sufficient to make such payment, and the Company will
promptly notify the Warrant Agent of any failure to take such action with
respect to any such additional warrant agent.
SECTION 1.10. APPOINTMENT OF CALCULATION AGENTS. Pursuant to Section 1.03
hereof, the Company may, in connection with any series of Universal Warrants
appoint [name of initial Calculation Agent] or any other person or entity as
Calculation Agent to make any calculations as may be required pursuant to the
terms of any such series of Universal Warrants. Any such Calculation Agent shall
act as an independent expert and, unless otherwise provided by this Agreement,
its calculations and determinations under this Agreement shall, absent manifest
error, be final and binding on the Company, the Warrant Agent and the
Warrantholders. Any such calculations will be made available to a Warrantholder
for inspection at the Warrant Agent's Office.
ARTICLE 2
DURATION AND EXERCISE OF UNIVERSAL WARRANTS
SECTION 2.01. DURATION AND EXERCISE OF UNIVERSAL WARRANTS. All terms with
respect to duration and exercise of Universal Warrants will be established
pursuant to Section 1.03 for each series of Universal Warrants.
SECTION 2.02. RETURN OF MONEY HELD UNCLAIMED FOR TWO YEARS. Except as
otherwise provided herein, any money or other assets deposited with or paid to
the Warrant Agent for the payment of any Universal Warrants and not paid but
remaining unclaimed for two years after the date upon which such money or other
assets shall have become due and payable shall be repaid by the Warrant Agent to
the Company, at the Company's request pursuant to an Officer's Certificate, and
the holders of such Universal Warrants shall thereafter look only to the Company
for any payment which such holders may be entitled to collect and all liability
of the Warrant Agent with respect to such money shall thereupon cease; provided
that the Warrant Agent, before making any such repayment, may (but shall not be
obligated to) at the expense of the Company notify (i) in the case of Registered
Warrants evidenced by Definitive Warrant Certificates, the Registered Holders,
(ii) in the case of Warrants evidenced by one or more Global Warrant
Certificates, the participants of the Depositary, and (iii) in the case of
Bearer Warrants evidenced by Definitive Warrant Certificates, the holders
thereof, in each case as provided in Section 6.04, that said money has not been
so applied and remains unclaimed and that after a date named in the notification
any unclaimed balance of said money then remaining will be returned to the
Company.
ARTICLE 3
OTHER PROVISIONS RELATING TO RIGHTS OF WARRANTHOLDERS
SECTION 3.01. WARRANTHOLDER MAY ENFORCE RIGHTS. Notwithstanding any of the
provisions of this Agreement, any Warrantholder may, without the consent of the
Warrant Agent, the Depositary, any participant of the Depositary, any other
Warrantholder, the holder of any Warrant Property or, if applicable, the common
depositary for [ ], or its successor, as operator of the Euroclear System and
Cedelbank, or its successor, in and for its own behalf, enforce, and may
institute and maintain, any suit, action or proceeding against the Company
suitable to enforce, or otherwise in respect of, its right to exercise its
Universal Warrants as provided in this Agreement and established with respect to
such Universal Warrants pursuant to Section 1.03.
SECTION 3.02. NO RIGHTS AS HOLDER OF WARRANT PROPERTY CONFERRED BY
UNIVERSAL WARRANTS OR WARRANT Certificates. No Warrant Certificate or Universal
Warrant evidenced thereby shall entitle the holder or any beneficial owner
thereof to any of the rights of a holder or beneficial owner of Warrant
Property, including,
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without limitation, the right to receive the payment of principal of (premium,
if any) or interest, if any, on Warrant Property or to vote or to enforce any
rights under any documents governing Warrant Property.
SECTION 3.03. MERGER, CONSOLIDATION, CONVEYANCE OR TRANSFER. (a) If at any
time there shall be a merger or consolidation of the Company or a conveyance or
transfer of its property and assets substantially as an entirety, then in any
such event the successor, if other than the Company, shall by an instrument of
assumption delivered to the Warrant Agent succeed to and be substituted for the
Company, with the same effect as if it had been named herein and in the Warrant
Certificates as the Company. The Company shall thereupon, except in the case of
a transfer by way of lease, be relieved of any further obligation hereunder and
under the Universal Warrants and the Warrant Certificates, and the Company, as
the predecessor corporation, except in the case of a transfer by way of lease,
may thereupon or at any time thereafter be dissolved, wound up or liquidated.
Such successor and assuming corporation may thereupon cause to be signed, and
may issue either in its own name or in the name of the Company, Warrant
Certificates evidencing any or all of the Universal Warrants issuable hereunder
that theretofore shall not have been signed by the Company. All the Universal
Warrants so issued shall in all respects have the same legal rank and benefit
under this Agreement as the Universal Warrants theretofore or thereafter issued
in accordance with the terms of this Agreement as though all of such Universal
Warrants had been issued at the date of the execution hereof. In any case of any
such merger, consolidation, conveyance or transfer, such changes in phraseology
and form (but not in substance) may be made in the Warrant Certificates
representing the Universal Warrants thereafter to be issued as may be
appropriate.
(b) The Warrant Agent may receive an Opinion of Counsel as conclusive
evidence that any such merger, consolidation, conveyance, transfer or assumption
complies with the provisions of this Section.
ARTICLE 4
UNIVERSAL WARRANTS ACQUIRED BY THE COMPANY; PAYMENT OF TAXES
SECTION 4.01. UNIVERSAL WARRANTS ACQUIRED BY THE COMPANY. (a) In the event
the Company shall purchase or otherwise acquire Universal Warrants, such
Universal Warrants may, at the option of the Company, be (i) in the case of
Bearer Warrants or Registered Warrants evidenced by Definitive Warrant
Certificates, delivered to the Warrant Agent, and if so delivered, the Warrant
Agent shall promptly cancel such Universal Warrants on the records of the
Warrant Agent or (ii) in the case of Warrants evidenced by one or more Global
Warrant Certificates, surrendered free through a participant of the Depositary
to the Depositary for credit to the account of the Warrant Agent maintained at
the Depositary, and if so credited, the Warrant Agent shall promptly note the
cancellation of such Universal Warrants by notation on the records of the
Warrant Agent and the Warrant Agent shall cause its records to be marked to
reflect the reduction in the number of Universal Warrants evidenced by the
Global Warrant Certificate or Certificates by the number of Universal Warrants
so canceled promptly after such account is credited. Universal Warrants acquired
by the Company may also, at the option of the Company, be resold by the Company
directly or to or through any of its affiliates in lieu of being surrendered to
the Warrant Agent or credited to its account. No Warrant Certificate shall be
countersigned in lieu of or in exchange for any Universal Warrant that is
canceled as provided herein, except as otherwise expressly permitted by this
Agreement.
(b) Any canceled Warrant Certificate held by the Warrant Agent under
this Agreement shall be disposed of by the Warrant Agent in accordance with its
customary procedures unless otherwise directed by the Company, and the Warrant
Agent shall deliver a certificate of disposition to the Company evidencing the
same.
SECTION 4.02. PAYMENT OF TAXES. The Company will pay all stamp, withholding
and other duties, if any, attributable to the initial issuance of each series or
tranche of Universal Warrants; provided, however, that, anything in this
Agreement to the contrary notwithstanding, the Company shall not be required to
pay any tax
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or other governmental charge that may be payable in respect of any transfer
involving any beneficial or record interest in, or ownership interest of, any
Universal Warrants or Warrant Certificates.
ARTICLE 5
CONCERNING THE WARRANT AGENT
SECTION 5.01. WARRANT AGENT. The Company hereby appoints [name of Warrant
Agent] as Warrant Agent of the Company in respect of the Universal Warrants upon
the terms and subject to the conditions set forth herein; and [name of Warrant
Agent] hereby accepts such appointment. The Warrant Agent shall have the powers
and authority granted to and conferred upon it in this Agreement and such
further powers and authority to act on behalf of the Company as the Company may
hereafter grant to or confer upon it with its consent. All of the terms and
provisions with respect to such powers and authority contained in any Warrant
Certificate are subject to and governed by the terms and provisions hereof.
SECTION 5.02. CONDITION OF WARRANT AGENT'S OBLIGATIONS. The Warrant Agent
accepts its obligations herein set forth upon the terms and conditions hereof,
including the following, to all of which the Company agrees and to all of which
the rights hereunder of the holders from time to time of the Universal Warrants
shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the
compensation to be agreed upon with the Company for all services rendered by the
Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of-
pocket expenses (including attorneys' fees and expenses) incurred by the Warrant
Agent without negligence or bad faith on its part in connection with the
services rendered by it hereunder. The Company also agrees to indemnify the
Warrant Agent for, and to hold it harmless against, any loss, liability or
expense (including reasonable attorneys' fees and expenses) incurred without
negligence or bad faith on the part of the Warrant Agent, arising out of or in
connection with its acting as such Warrant Agent hereunder, as well as the
reasonable costs and expenses of defending against any claim of liability in the
premises. The obligations of the Company under this Section shall survive the
expiration of all Universal Warrants issued under this Agreement.
(b) In acting under this Agreement, the Warrant Agent is acting
solely as agent of the Company and does not assume any obligation or
relationship of agency or trust for or with any Warrantholders.
(c) The Warrant Agent may consult with counsel satisfactory to it
(including counsel to the Company), and the opinion of such counsel shall be
full and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in accordance with the
opinion of such counsel.
(d) The Warrant Agent shall be protected and shall incur no liability
for or in respect of any action taken or thing suffered by it in reliance upon
any notice, direction, consent, certificate, affidavit, opinion, statement or
other paper or document reasonably believed by it to be genuine and to have been
presented or signed by the proper parties.
(e) The Warrant Agent and its officers, directors and employees may
become the owner of, or acquire any interest in, any Universal Warrants or other
obligations of the Company, with the same rights that it or they would have if
it were not the Warrant Agent hereunder and, to the extent permitted by
applicable law, it or they may engage or be interested in any financial or other
transaction with the Company and may act on behalf of, or as depositary, trustee
or agent for, any committee or body of owners or holders of Universal Warrants
or other obligations of the Company as freely as if it were not the Warrant
Agent hereunder.
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<PAGE> 17
(f) The Warrant Agent shall not be under any liability for interest
on any monies at any time received by it pursuant to any of the provisions of
this Agreement nor shall it be obligated to segregate such monies from other
monies held by it, except as required by law. The Warrant Agent shall not be
responsible for advancing funds on behalf of the Company.
(g) The Warrant Agent shall not be under any responsibility with
respect to the validity or sufficiency of this Agreement or the execution and
delivery hereof (except the due authorization, execution and delivery hereof by
the Warrant Agent) or with respect to the validity or execution of the Warrant
Certificates (except its countersignature thereof).
(h) The recitals contained herein and in the Warrant Certificates
(except as to the Warrant Agent's countersignature thereon) shall be taken as
the statements of the Company, and the Warrant Agent assumes no responsibility
for the correctness of the same.
(i) The Warrant Agent shall be obligated to perform such duties as
are specifically set forth in this Agreement and no implied duties or
obligations shall be read into this Agreement against the Warrant Agent. The
Warrant Agent shall not be under any obligation to take any action hereunder
likely to involve it in any expense or liability, the payment of which is not,
in its reasonable opinion, assured to it. The Warrant Agent shall not be
accountable or under any duty or responsibility for the application by the
Company of any proceeds of the issuance of any Warrants. The Warrant Agent shall
have no duty or responsibility in case of any default by the Company in the
performance of its covenants or agreements contained in this Agreement or in any
Warrant Certificate or in the case of the receipt of any written demand from a
holder of a Universal Warrant with respect to such default, including, without
limiting the generality of the foregoing, any duty or responsibility to initiate
or attempt to initiate any proceedings at law or otherwise or, except as
provided in Section 6.02, to make any demand upon the Company.
SECTION 5.03. RESIGNATION AND APPOINTMENT OF SUCCESSOR. (a) The Company
agrees, for the benefit of the holders from time to time of the Universal
Warrants, that there shall at all times be a Warrant Agent hereunder with
respect to each series of Universal Warrants until all the Universal Warrants of
such series are no longer outstanding or until monies for the payment of all
outstanding Universal Warrants of such series, if any, shall have been paid to
the Warrant Agent and shall have been returned to the Company as provided in
Section 2.02, whichever occurs earlier.
(b) The Warrant Agent may at any time resign as such agent with
respect to any series of Universal Warrants by giving written notice to the
Company of such intention on its part, specifying the date on which its desired
resignation shall become effective, subject to the appointment of a successor
Warrant Agent with respect to such series and acceptance of such appointment by
such successor Warrant Agent as hereinafter provided. The Warrant Agent
hereunder may be removed with respect to any series of Universal Warrants at any
time by the filing with it of an instrument in writing signed by or on behalf of
the Company and specifying such removal and the date when it shall become
effective. Such resignation or removal shall take effect upon the appointment by
the Company, as hereinafter provided, of a successor Warrant Agent with respect
to such series (which shall be a banking institution organized under the laws of
the United States of America or one of the states thereof, have a combined
capital and surplus of at least $50,000,000 (as set forth in its most recent
reports of condition published pursuant to law or to the requirements of any
United States federal or state regulatory or supervisory authority) and having
an office in the Borough of Manhattan, The City of New York) and the acceptance
of such appointment by such successor Warrant Agent. In the event a successor
Warrant Agent has not been appointed and accepted its duties within 90 days of
the Warrant Agent's notice of resignation, the Warrant Agent may apply to any
court of competent jurisdiction for the designation of a successor Warrant Agent
with respect to such series. The obligation of the Company under Section
5.02(a)shall continue to the extent set forth therein notwithstanding the
resignation or removal of the Warrant Agent with respect to any series of
Universal Warrants.
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(c) In case at any time the Warrant Agent with respect to any series
of Universal Warrants shall give notice of its intent to resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged a bankrupt or
insolvent, or make an assignment for the benefit of its creditors, or consent to
the appointment of a receiver or custodian of all or any substantial part of its
property, or shall admit in writing its inability to pay or meet its debts as
they mature, or if a receiver or custodian of it or of all or any substantial
part of its property shall be appointed, or if any public officer shall have
taken charge or control of the Warrant Agent or of its property or affairs, for
the purpose of rehabilitation, conservation or liquidation, a successor Warrant
Agent, qualified as aforesaid, shall be promptly appointed by the Company by an
instrument in writing, filed with the successor Warrant Agent. Upon the
appointment as aforesaid of a successor Warrant Agent and acceptance by the
latter of such appointment, the Warrant Agent so superseded shall cease to be
Warrant Agent hereunder with respect to such series.
(d) Any successor Warrant Agent appointed hereunder with respect to
any series of Universal Warrants shall execute, acknowledge and deliver to its
predecessor and to the Company an instrument accepting such appointment
hereunder, and thereupon such successor Warrant Agent, without any further act,
deed or conveyance, shall become vested with all the authority, rights, powers,
trusts, immunities, duties and obligations of such predecessor with like effect
as if originally named as Warrant Agent with respect to such series hereunder,
and such predecessor, upon payment of its charges and disbursements then unpaid,
shall thereupon become obligated to transfer, deliver and pay over, and such
successor Warrant Agent shall be entitled to receive, all monies, securities and
other property on deposit with or held by such predecessor (including, without
limitation, the Warrant Register), as Warrant Agent with respect to such series
hereunder.
(e) If a successor Warrant Agent is appointed with respect to the
Universal Warrants of one or more (but not all) series, the Company, the
predecessor Warrant Agent and each successor Warrant Agent with respect to the
Universal Warrants of any applicable series shall execute and deliver an
agreement supplemental hereto that shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights, powers and duties
of the predecessor Warrant Agent with respect to the Universal Warrants of any
series as to which the predecessor Warrant Agent is not retiring shall continue
to be vested in the predecessor Warrant Agent, and shall add to or change any of
the provisions of this Agreement as shall be necessary to provide for or
facilitate the administration of the Universal Warrants hereunder by more than
one Warrant Agent, it being understood that nothing herein or in such
supplemental agreement shall constitute such Warrant Agents Co-Warrant Agents of
the same Universal Warrants and that each such Warrant Agent shall be a Warrant
Agent with respect to separate series of Universal Warrants.
(f) Any corporation into which the Warrant Agent hereunder may be
merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party or any corporation to
which the Warrant Agent shall sell or otherwise transfer all or substantially
all the corporate agency assets and business of the Warrant Agent, provided that
it shall be qualified as aforesaid, shall be the successor Warrant Agent under
this Agreement without the execution or filing of any paper or any further act
on the part of any of the parties hereto.
ARTICLE 6
MISCELLANEOUS
SECTION 6.01. AMENDMENT. (a) This Agreement and the terms of the Universal
Warrants of any series may be amended (by means of an agreement supplemental
hereto or otherwise) by the Company and the Warrant Agent, without the consent
of the Warrantholders of any series of Universal Warrants, (i) for the purpose
of curing any ambiguity, or of curing, correcting or supplementing any defective
or inconsistent
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<PAGE> 19
provision contained herein or therein, (ii) to establish the form or terms of
Warrant Certificates or Universal Warrants of any series as permitted by
Sections 1.02 and 1.03, (iii) to evidence and provide for the acceptance of
appointment hereunder by a successor Warrant Agent with respect to the Universal
Warrants of any series and to add to or change any of the provisions of this
Agreement as shall be necessary to provide for or facilitate the administration
of the Universal Warrants hereunder by more than one Warrant Agent pursuant to
Section 5.03, or (iv) in any other manner which the Company may deem necessary
or desirable and which will not materially and adversely affect the interests of
the Warrantholders of such series.
(b) The Company and the Warrant Agent may modify or amend this
Agreement (by means of an agreement supplemental hereto or otherwise) with the
consent of Warrantholders holding not less than a majority in number of the then
outstanding Universal Warrants of all series affected by such modification or
amendment, for any purpose; provided, however, that no such modification or
amendment that changes the exercise price of the Universal Warrants of any
series, reduces the amount receivable upon exercise, cancellation or expiration
of the Warrants other than in accordance with the antidilution provisions or
other similar adjustment provisions included in the terms of the Warrants,
shortens the period of time during which the Universal Warrants of such series
may be exercised, or otherwise materially and adversely affects the exercise
rights of the affected Warrantholders or reduces the percentage of the number of
outstanding Universal Warrants of such series, the consent of whose holders is
required for modification or amendment of this Agreement, may be made without
the consent of each Warrantholder affected thereby. In the case of Universal
Warrants evidenced by one or more Global Warrant Certificates, the Company and
the Warrant Agent shall be entitled to rely upon certification in form
satisfactory to each of them that any requisite consent has been obtained from
holders of beneficial ownership interests in the relevant Global Warrant
Certificate. Such certification may be provided by participants of the
Depositary acting on behalf of such beneficial owners of Universal Warrants,
provided that any such certification is accompanied by a certification from the
Depositary as to the Universal Warrant holdings of such participants.
(c) An amendment that changes or eliminates any provision of this
Agreement that has expressly been included solely for the benefit of one or more
particular series of Universal Warrants, or that modifies the rights of
Warrantholders of such series with respect to such provision, shall be deemed
not to affect the rights under this Agreement of the Warrantholders of any other
series.
(d) Upon the request of the Company, accompanied by a copy of a Board
Resolution (which Board Resolution may provide general terms or parameters for
such action and may provide that the specific terms of such action may be
determined in accordance with or pursuant to an Issuer Order) authorizing the
execution of any such amendment, and upon the filing with the Warrant Agent of
evidence of the consent of Warrantholders as aforesaid, the Warrant Agent shall
join with the Company in the execution of such amendment unless such amendment
affects the Warrant Agent's own rights, duties or immunities under this
Agreement or otherwise, in which case the Warrant Agent may in its discretion,
but shall not be obligated to, enter into such amendment. In executing, or
accepting the additional duties created by, any amendment permitted by this
Article, the Warrant Agent shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such amendment is authorized or permitted by this Agreement. The fact and date
of the execution of any consent of Warrantholders, or the authority of the
Person executing the same, may be proved in any manner which the Warrant Agent
(with the approval of the Company) deems sufficient.
(e) It shall not be necessary for the consent of the Warrantholders
under this Section to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent shall approve the substance thereof.
SECTION 6.02. NOTICES AND DEMANDS TO THE COMPANY AND THE WARRANT AGENT. If
the Warrant Agent shall receive any notice or demand addressed to the Company by
any Warrantholder pursuant to the provisions of
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<PAGE> 20
this Agreement or the terms of the Universal Warrants of any series, the Warrant
Agent shall promptly forward such notice or demand to the Company.
SECTION 6.03. ADDRESSES FOR NOTICES. Any communications to the Warrant
Agent with respect to this Agreement shall be in writing addressed to [Warrant
Agent address], Attention: [Warrant Agent Contact] (the "Warrant Agent's
Office") and any communications to the Company with respect to this Agreement
shall be addressed to Fleet Boston Corporation, One Federal Street, 36th Floor,
Boston, Massachusetts 02110, Attention: General Counsel (or in each case to such
other address as shall be given in writing to the other party hereto).
SECTION 6.04. NOTICES TO WARRANTHOLDERS. The Company may cause to have
notice given to the Warrantholders of any series by providing the Warrant Agent
with a form of notice to be distributed by (i) in the case of Registered
Warrants evidenced by Definitive Warrant Certificates, the Warrant Agent to
Registered Holders by first class mail, (ii) in the case of Warrants evidenced
by one or more Global Warrant Certificates, the Depositary to be distributed by
the Depositary to its participants in accordance with the custom and practices
of the Depositary or (iii) in the case of Bearer Warrants evidenced by
Definitive Warrant Certificates, publication at least once in an Authorized
Newspaper (as defined below) in The City of New York, and Western Europe.
"Authorized Newspaper" means a newspaper (which, in the case of The City of
New York, will, if practicable, be The Wall Street Journal (Eastern Edition)
and, in the case of Western Europe, will, if practicable, be the Financial Times
(London Edition)) published in an official language of the country of
publication customarily published at least once a day for at least five days in
each calendar week and of general circulation in The City of New York, and
Western Europe, as applicable. If it shall be impractical in the opinion of the
Warrant Agent to make any publication of any notice required hereby in an
Authorized Newspaper, any publication or other notice in lieu thereof that is
made or given with the approval of the Warrant Agent shall constitute a
sufficient publication of such notice.
SECTION 6.05. OBTAINING OF APPROVALS. The Company will from time to time
take all action that may be necessary to obtain and keep effective any and all
filings or notices under applicable law, which may be or become required in
connection with the issuance, sale, trading, transfer or delivery of the Warrant
Certificates or the exercise of the Universal Warrants.
SECTION 6.06. PERSONS HAVING RIGHTS UNDER THIS AGREEMENT. Nothing in this
Agreement expressed or implied and nothing that may be inferred from any of the
provisions hereof is intended, or shall be construed, to confer upon, or give
to, any person or corporation other than the Company, the Warrant Agent and the
Warrantholders any right, remedy or claim under or by reason of this Agreement
or of any covenant, condition, stipulation, promise or agreement hereof, and all
covenants, conditions, stipulations, promises and agreements contained in this
Agreement shall be for the sole and exclusive benefit of the Company, the
Warrant Agent, their respective successors and the Warrantholders.
SECTION 6.07. INSPECTION OF AGREEMENT. A copy of this Agreement shall be
available at all reasonable times at the Warrant Agent's Office for inspection
by the Warrantholders, participants of the Depositary certified as such by the
Depositary or any person certified by any such participant to be an indirect
participant of the Depositary or any person certified by any such participant to
be a beneficial owner of a Universal Warrant, in each case, on behalf of whom
such participant holds Universal Warrants.
SECTION 6.08. OFFICER'S CERTIFICATES AND OPINIONS OF COUNSEL; STATEMENTS TO
BE CONTAINED THEREIN. (a) Each certificate or opinion provided for in this
Agreement and delivered to the Warrant Agent with respect to compliance with a
condition or covenant provided for in this Agreement shall include (i) a
statement that the person making such certificate or opinion has read such
covenant or condition, (ii) a brief statement as to the
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<PAGE> 21
nature and scope of the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are based, (iii) a
statement that, in the opinion of such person, such person has made such
examination or investigation as is necessary to enable such person to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (iv) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
(b) Any certificate, statement or opinion of an officer of the
Company may be based, insofar as it relates to legal matters, upon a certificate
or opinion of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon which
such officer's certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate, statement or opinion of counsel may be based,
insofar as it relates to factual matters, information with respect to which is
in the possession of the Company, upon the certificate, statement or opinion of
or representations by an officer or officers of the Company, unless such counsel
knows that the certificate, statement or opinion or representations with respect
to the matters upon which such officer's certificate, statement or opinion may
be based as aforesaid are erroneous, or in the exercise of reasonable care
should know that the same are erroneous.
(c) Any certificate, statement or opinion of an officer of the
Company or of counsel may be based, insofar as it relates to accounting matters,
upon a certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which such officer's or counsel's, as the
case may be, certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Warrant Agent shall contain a
statement that such firm is independent.
SECTION 6.09. PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS. If the date
fixed for any payment with respect to the Universal Warrants of any series
appertaining thereto shall not be a Business Day (as defined below), then such
payment need not be made on such date, but may be made on the next succeeding
Business Day with same force and effect as if made on the date fixed, and no
interest shall accrue for the period after such date.
"Business Day" means, with respect to any Universal Warrant, a Business Day
as defined in any debt security included in any unit comprising such Universal
Warrant or as otherwise established pursuant to Section 1.03 hereof or if the
term Business Day is not so specified, Business Day means any day that is not a
Saturday or Sunday or a legal holiday in The City of New York or a day on which
banking institutions in The City of New York are authorized or required by law,
regulation or executive order to be closed.
SECTION 6.10. JUDGMENT CURRENCY. The Company agrees, to the fullest extent
that it may effectively do so under applicable law, that (a) if for the purpose
of obtaining judgment in any court it is necessary to convert the sum due in
respect of the Universal Warrants of any series (the "Required Currency") into a
currency in which a judgment will be rendered (the "Judgment Currency"), the
rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Warrant Agent could purchase in The City of New York the
Required Currency with the Judgment Currency on the day on which final
unappealable judgment is entered, unless such day is not a New York Banking Day
(as defined below), in which event, to the extent permitted by applicable law,
the rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Warrant Agent could purchase in The City of New York the
Required Currency with the Judgment Currency on the last New York Banking Day
preceding the day on which final unappealable judgment is entered and (b) its
obligations under this Agreement and the terms of the Universal Warrants of such
series to make payments in the Required Currency (i) shall not be discharged or
satisfied by any tender, or any recovery pursuant to any judgment (whether or
not entered in accordance with clause 6.10(a)), in any
-18-
<PAGE> 22
currency other than the Required Currency, except to the extent that such tender
or recovery shall result in the actual receipt, by the payee, of the full amount
of the Required Currency expressed to be payable in respect of such payments,
(ii) shall be enforceable as an alternative or additional cause of action for
the purpose of recovering in the Required Currency so expressed to be payable
and (iii) shall not be affected by judgment being obtained for any other sum due
under this Agreement. For purposes of the foregoing, "New York Banking Day"
means any day except a Saturday, Sunday or a legal holiday in The City of New
York or a day on which banking institutions in The City of New York are
authorized or required by law or executive order to close.
SECTION 6.11. HEADINGS. The descriptive headings of the several Articles
and Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
SECTION 6.12. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original; but
such counterparts shall together constitute but one and the same instrument.
SECTION 6.13. APPLICABLE LAW. This Agreement and each Universal Warrant
shall be deemed to be a contract under the laws of the State of New York, and
for all purposes shall be construed in accordance with the laws of said State,
excluding choice of law provisions.
[Signatures continued on next page]
-19-
<PAGE> 23
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the day and year first above written.
FLEET BOSTON CORPORATION
By:________________________________
Name:______________________________
Title:_____________________________
[NAME OF WARRANT AGENT]
By:________________________________
Name:______________________________
Title:_____________________________
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<PAGE> 24
EXHIBIT I
[FORM OF FACE OF REGISTERED CALL WARRANT CERTIFICATE]
No. ___________ CUSIP No. __________________________
[Unless and until it is exchanged in whole or in part for Universal Warrants in
definitive registered form, this Warrant Certificate and the Universal Warrants
evidenced hereby may not be transferred except as a whole by the Depositary to
the nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such successor Depositary.](1)
FLEET BOSTON CORPORATION
[Designation of Universal Warrants]
NUMBER OF WARRANTS EVIDENCED BY THIS CERTIFICATE: [UP TO _____](2)
WARRANT PROPERTY:
AMOUNT OF WARRANT PROPERTY
PURCHASABLE PER WARRANT:
CALL PRICE PER WARRANT:
FORM OF PAYMENT OF
CALL PRICE:
FORM OF SETTLEMENT:
DATES OF EXERCISE:
OTHER TERMS:
This Warrant Certificate certifies that __________, or registered assigns,
is the Registered Holder of the number of [Designation of Universal Warrants]
(the "Warrants") [specified above](3) [specified on Schedule A hereto](4). Upon
receipt by the Warrant Agent of this Warrant Certificate, the exercise notice on
the reverse hereof (or an exercise notice in substantially identical form
delivered herewith)(the "Exercise Notice"), duly completed and executed, and the
Call Price per Warrant set forth above, in the form set forth above, for each
Warrant to be exercised (the "Exercise Property") at the Warrant Agent's Window,
Attention: Tender Department, in the Borough of Manhattan, The City of New York,
each Warrant evidenced hereby entitles the Registered Holder hereof to receive,
subject to the terms and conditions set forth herein and in the Warrant
Agreement (as defined below), from Fleet Boston Corporation (the "Company") the
amount and form of
- --------
1 Applies to global warrant certificates.
2 Applies to global warrant certificates.
3 Applies to definitive warrant certificates.
4 Applies to global warrant certificates.
<PAGE> 25
property (the "Warrant Property") specified above. Warrants will not entitle the
Warrantholder to any of the rights of the holders of any of the Warrant
Property.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof, and such further provisions shall
for all purposes have the same effect as though fully set forth in this place.
This Warrant Certificate shall not be valid unless countersigned by the
Warrant Agent.
IN WITNESS WHEREOF, Fleet Boston Corporation has caused this instrument to
be duly executed.
Dated:_____________________
FLEET BOSTON CORPORATION
By:________________________________
Name:______________________________
Title:_____________________________
Attest:
By:______________________________
Secretary
Countersigned as of the date above written:
[NAME OF WARRANT AGENT],
as Warrant Agent
By:______________________________
Authorized Officer
I-2
<PAGE> 26
[FORM OF REVERSE OF REGISTERED CALL WARRANT CERTIFICATE]
FLEET BOSTON CORPORATION
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Universal Warrants issued by the Company pursuant to a
Universal Warrant Agreement, dated as of [date of Warrant Agreement] (the
"Warrant Agreement"), between the Company and [Name of Warrant Agent] (the
"Warrant Agent") and are subject to the terms and provisions contained in the
Warrant Agreement, to all of which terms and provisions each Warrantholder
consents by acceptance of this Warrant Certificate or a beneficial interest
therein and which Warrant Agreement is hereby incorporated by reference in and
made a part of this Warrant Certificate. Without limiting the foregoing, all
capitalized terms used herein and not otherwise defined shall have the meanings
set forth in the Warrant Agreement. A copy of the Warrant Agreement is on file
at the Warrant Agent's Office. The Warrants constitute a separate series of
Universal Warrants under the Warrant Agreement.
The Warrants are unsecured contractual obligations of the Company and rank
pari passu with the Company's other unsecured contractual obligations and with
the Company's unsecured and unsubordinated debt.
Subject to the provisions hereof and the Warrant Agreement, each Warrant
may be exercised during the dates of exercise set forth on the face hereof by
delivering or causing to be delivered this Warrant Certificate, the Exercise
Notice, duly completed and executed, and the Exercise Property for each such
Warrant to the Warrant Agent's Window, in the Borough of Manhattan, The City of
New York, which is, on the date hereof (unless otherwise specified herein),
[Address of Warrant Agent], Attention: [Warrant Agent contact], or at such other
address as the Warrant Agent may specify from time to time.
Each Warrant entitles the Warrantholder to receive, upon exercise, the
Warrant Property set forth on the face hereof.
The Warrant Agreement and the terms of the Warrants are subject to
amendment as provided in the Warrant Agreement.
This Warrant Certificate shall be governed by, and interpreted in
accordance with, the laws of the State of New York.
I-3
<PAGE> 27
[Designation of Universal Warrants]
Exercise Notice
[Name and Address of Warrant Agent]
[ ]
[ ]
Attention: [Warrant Agent Contact]
The undersigned (the "Registered Holder") hereby irrevocably exercises
__________ Warrants (the "Exercised Warrants") and delivers to you herewith a
Warrant Certificate or Certificates, registered in the Registered Holder's name,
representing a number of Warrants at least equal to the number of Exercised
Warrants, and the Exercise Property with respect thereto.(1)
The Registered Holder hereby directs the Warrant Agent (a) to deliver the
Warrant Property as follows:
and (b) if the number of Exercised Warrants is less than the number of Warrants
represented by the enclosed Warrant Certificate, to deliver a Warrant
Certificate representing the unexercised Warrants to:
Dated: ____________________________ __________________________________
(Registered Holder)
By:_______________________________
Authorized Signature
Address: ___________________
Telephone:___________________
- --------------------
1 Only if terms of the Warrants contemplate that the holder may deliver Warrant
Property to exercise the Warrants.
I-4
<PAGE> 28
[If Warrant is a Global Warrant, insert this Schedule A.]
SCHEDULE A
[Designation of Universal Warrants]
GLOBAL
UNIVERSAL WARRANT
SCHEDULE OF EXCHANGES
The initial number of Universal Warrants represented by this Global
Universal Warrant is __________. In accordance with the Universal Warrant
Agreement and the Unit Agreement dated as of [date of Warrant Agreement] among
the Issuer, [name of Warrant Agent], as Unit Agent, as Warrant Agent, as
Collateral Agent, and as Trustee under the Indenture referred to therein and the
Holders from time to time of the Units described therein, the following (A)
exchanges of [the number of Universal Warrants indicated below for a like number
of Universal Warrants to be represented by a Global Universal Warrant that has
been separated from a Unit (a "Separated Universal Warrant")1 [the number of
Universal Warrants that had been represented by a Global Universal Warrant that
is part of a Unit (an "Attached Unit Universal Warrant") for a like number of
Universal Warrants represented by this Global Universal Warrant]2 or (B)
reductions as a result of the exercise of the number of Universal Warrants
indicated below have been made:
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C>
[Number of
Attached
Unit
Universal
Warrants
Exchanged
for Universal
[Number [Reduced Warrants [Increased
Exchanged Number represented Number Reduced Notation
for Outstanding by this Outstanding Number of Number Made by or
Date of Separated Following Separated Following Universal Outstanding on Behalf of
Exchange or Universal Such Universal Such Warrants Following Warrant
Exercise Warrants](1) Exchange](1) Warrant](2) Exchange](2) Exercised Such Exercise Agent
- ----------- ------------ ------------ ----------- ------------ --------- ------------- ------------
</TABLE>
EXHIBIT II
[FORM OF FACE OF REGISTERED PUT WARRANT CERTIFICATE]
No. ___________ CUSIP No. __________________________
- -------------------------
1 Applies only if this Global Universal Warrant is part of a Unit.
2 Applies only if this Global Universal Warrant has been separated from a Unit.
II-5
<PAGE> 29
[Unless and until it is exchanged in whole or in part for Universal Warrants in
definitive registered form, this Warrant Certificate and the Universal Warrants
evidenced hereby may not be transferred except as a whole by the Depositary to
the nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such successor Depositary.]1
FLEET BOSTON CORPORATION
[Designation of Universal Warrants]
NUMBER OF WARRANTS EVIDENCED BY THIS CERTIFICATE: [UP TO ____](1)
CASH SETTLEMENT VALUE PER WARRANT (OR METHOD OF DETERMINING SAME):
[WARRANT PROPERTY:](2)
[AMOUNT OF WARRANT PROPERTY
SALABLE PER WARRANT:](2)
[PUT PRICE FOR SUCH SPECIFIED AMOUNT OF WARRANT PROPERTY PER WARRANT:](2)
[METHOD OF DELIVERY OF ANY WARRANT PROPERTY TO BE DELIVERED FOR SALE UPON
EXERCISE OF WARRANTS:](2)
DATES OF EXERCISE:
OTHER TERMS:
This Warrant Certificate certifies that __________, or registered assigns,
is the Registered Holder of the number of [Designation of Universal Warrants]
(the "Warrants") [specified above]1 [specified on Schedule A hereto]2 . Upon
receipt by the Warrant Agent of this Warrant Certificate, the exercise notice on
the reverse hereof (or an exercise notice in substantially identical form
delivered herewith)(the "Exercise Notice"), duly completed and executed, and the
Amount of Warrant Property saleable per Warrant set forth above, adjusted, if
applicable, as set forth above, for each Warrant to be exercised, delivered as
set forth above at the Warrant Agent's Window, Attention: Tender Department, in
the Borough of Manhattan, The City of New York (which is, on the date hereof,
[Warrant Agent address], Attention: [Warrant Agent Contact]), each Warrant
evidenced hereby entitles the Registered Holder hereof to receive, subject to
the terms and conditions set forth herein and in the Warrant Agreement (as
defined below), from Fleet Boston Corporation (the "Company") the [Cash
Settlement Value][Put Price]3 per Warrant specified above.
Unless otherwise indicated above, a Warrant will not require or entitle a
Warrantholder to sell or deliver to the Company, nor will the Company be under
any obligation to, nor will it, purchase or take delivery from any Warrantholder
of, any Warrant Property, and upon exercise of a Warrant, the Company will make
only a cash
- --------------------------------
1 Applies to global warrant certificates.
2 Only if the terms of the Warrants contemplate that the holder may deliver
Warrant Property to exercise the Warrants.
3 Only if the terms of the Warrants contemplate that the holder may deliver
Warrant Property to exercise the Warrants.
II-6
<PAGE> 30
payment in the amount of the Cash Settlement Value or Put Price per Warrant.
Warrantholders will not receive any interest on any Cash Settlement Value.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof and such further provisions shall
for all purposes have the same effect as though fully set forth in this place.
This Warrant Certificate shall not be valid unless countersigned by the
Warrant Agent.
IN WITNESS WHEREOF, Fleet Boston Corporation has caused this instrument to
be duly executed.
Dated:________________________
FLEET BOSTON CORPORATION
By:________________________________
Name:______________________________
Title:_____________________________
Attest:
By:__________________________
Secretary
Countersigned as of the date above written:
[NAME OF WARRANT AGENT],
as Warrant Agent
By:__________________________
II-7
<PAGE> 31
[FORM OF REVERSE OF REGISTERED PUT WARRANT CERTIFICATE]
FLEET BOSTON CORPORATION
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Universal Warrants issued by the Company pursuant to a
Universal Warrant Agreement, dated as of [Warrant Agreement date] (the
"Universal Warrant Agreement"), between the Company and [name of Warrant Agent]
(the "Warrant Agent") and are subject to the terms and provisions contained in
the Universal Warrant Agreement, to all of which terms and provisions each
Warrantholder consents by acceptance of this Warrant Certificate or a beneficial
interest therein and which Universal Warrant Agreement is hereby incorporated by
reference in and made a part of this Warrant Certificate. Without limiting the
foregoing, all capitalized terms used herein and not otherwise defined shall
have the meanings set forth in the Universal Warrant Agreement. A copy of the
Universal Warrant Agreement is on file at the Warrant Agent's Office. The
Warrants constitute a separate series of Universal Warrants under the Universal
Warrant Agreement.
The Warrants are unsecured contractual obligations of the Company and rank
pari passu with the Company's other unsecured contractual obligations and with
the Company's unsecured and unsubordinated debt.
Subject to the provisions hereof and the Warrant Agreement, each Warrant
may be exercised during the dates of exercise set forth on the face hereof by
delivering or causing to be delivered this Warrant Certificate, the Exercise
Notice, duly completed and executed, and the Exercise Property for each such
Warrant to the Warrant Agent's Window, in the Borough of Manhattan, the City of
New York, which is, on the date hereof (unless otherwise specified herein),
[Warrant Agent address], Attention: [Warrant Agent Contact], or at such other
address as the Warrant Agent may specify from time to time.
Each Warrant entitles the Warrantholder to receive, upon exercise, the Cash
Settlement Value per Warrant set forth on the face hereof.
The Warrant Agreement and the terms of the Warrants are subject to
amendment as provided in the Universal Warrant Agreement.
This Warrant Certificate shall be governed by, and interpreted in
accordance with, the laws of the State of New York.
II-8
<PAGE> 32
[Designation of Universal Warrants]
Exercise Notice
[Name and Address of Warrant Agent]
[ ]
[ ]
Attention: [Warrant Agent Contact]
The undersigned (the "Registered Holder") hereby irrevocably exercises
__________ Warrants (the "Exercised Warrants") and delivers to you herewith a
Warrant Certificate or Certificates, registered in the Registered Holder's name,
representing a number of Warrants at least equal to the number of Exercised
Warrants[, and the Warrant Property with respect thereto]1.
The Registered Holder hereby directs the Warrant Agent (a) to deliver the
[Cash Settlement Value][Put Price]* per Warrant as follows:
and (b) if the number of Exercised Warrants is less than the number of
Warrants represented by the enclosed Warrant Certificate, to deliver a Warrant
Certificate representing the unexercised Warrants to:
Dated: ____________________________ __________________________________
(Registered Holder)
By:_______________________________
Authorized Signature
Address: ___________________
Telephone:___________________
- --------------------------
1 Only if terms of the Warrants contemplate that the holder may deliver Warrant
Property to exercise the Warrants.
II-9
<PAGE> 33
[If Warrant is a Global Warrant, insert this Schedule A.]
[Designation of Universal Warrants]
SCHEDULE A
GLOBAL
UNIVERSAL WARRANT
SCHEDULE OF EXCHANGES
The initial number of Universal Warrants represented by this Global Universal
Warrant is __________. In accordance with the Universal Warrant Agreement and
the Unit Agreement dated as of [Date of Warrant Agreement] among the Issuer,
[name of Warrant Agent], as Unit Agent, as Warrant Agent, as Collateral Agent,
and as Trustee under the Indenture referred to therein and the Holders from time
to time of the Units described therein, the following (A) exchanges of [the
number of Universal Warrants indicated below for a like number of Universal
Warrants to be represented by a Global Universal Warrant that has been separated
from a Unit (a "Separated Universal Warrant")]1 [the number of Universal
Warrants that had been represented by a Global Universal Warrant that is part of
a Unit (an "Attached Unit Universal Warrant") for a like number of Universal
Warrants represented by this Global Universal Warrant]2 or (B) reductions as a
result of the exercise of the number of Universal Warrants indicated below have
been made:
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C>
[Number of
Attached
Unit
Universal
Warrants
Exchanged
for Universal
[Number [Reduced Warrants [Increased
Exchanged Number represented Number Reduced Notation
for Outstanding by this Outstanding Number of Number Made by or
Date of Separated Following Separated Following Universal Outstanding on Behalf of
Exchange or Universal Such Universal Such Warrants Following Warrant
Exercise Warrants](1) Exchange](1) Warrant](2) Exchange](2) Exercised Such Exercise Agent
</TABLE>
- ----------------
1 Applies only if this Global Universal Warrant is part of a Unit.
2 Applies only if this Global Universal Warrant has been separated from a Unit.
II-10
<PAGE> 1
EXHIBIT 4(g)
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to Issuer or its agent
for registration of transfer, exchange, or payment, and any certificate issued
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
THE SENIOR NOTES ARE NOT SAVINGS ACCOUNTS, DEPOSITS OR OTHER OBLIGATIONS OF ANY
BANK OR NONBANK SUBSIDIARY OF FLEET BOSTON CORPORATION AND ARE NOT INSURED BY
THE FEDERAL DEPOSIT INSURANCE CORPORATION, BANK INSURANCE FUND OR ANY OTHER
GOVERNMENT AGENCY.
REGISTERED REGISTERED
NUMBER R- $
FLEET BOSTON CORPORATION
% SENIOR NOTES DUE
CUSIP:
FLEET BOSTON CORPORATION, a Rhode Island corporation (hereinafter called
the "Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, the principal sum of $ on , and to pay
interest thereon from , or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semi-annually in arrears on
the day of and in each year, commencing , at the rate of % per
annum, until the principal hereof is paid or made available for payment. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Senior Note (or one or more Predecessor Senior Notes) is registered at
the close of business on the day of and the day of in each year;
provided, however, that in case of a Senior Note originally issued between a
Regular Record Date and the Interest Payment Date or on an Interest Payment Date
relating to such Regular Record Date, interest for the period beginning on the
date of issue and ending on such Interest Payment Date shall be paid on the next
succeeding Interest Payment Date to the Person in whose name this Senior Note
(or one or more Predecessor Senior Notes) is registered at the close of business
on the Regular Record Date with respect to such succeeding Interest Payment
Date. Any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Senior Note (or one or more
Predecessor Senior Notes) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Senior Notes of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Senior Notes of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture. Interest will be computed on the basis of a 360-day year
consisting of twelve 30-day months.
Payment of the principal of (and premium, if any) and any such interest on
this Senior Note will be made at the offices or agencies of the Company
maintained for that purpose in the Borough of Manhattan, The City of New York,
or in The City of Providence, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Company payment of
interest may be made by check drawn upon any Paying Agent and mailed on or prior
to an Interest Payment Date to the address of the Person entitled thereto as
such address shall appear in the Security Register.
<PAGE> 2
This Senior Note is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued under an
Indenture dated as of December 6, 1999 (the "Indenture"), between the Company
and The Bank of New York, a New York banking corporation (herein called the
"Trustee", which term includes any successor Trustee under the Indenture), to
which Indenture and all Indentures supplemental thereto reference is hereby made
for a statement of the respective rights of the Company, the Trustee and the
Holders of the Securities, and the terms upon which the Securities are, and are
to be, authenticated and delivered. This Senior Note is one of a series of
Senior Notes of the Company designated as its % Senior Notes Due (herein called
the "Senior Notes"), initially limited in aggregate principal amount to $ .
The Senior Notes may not be redeemed prior to maturity.
As provided in the Indenture and subject to certain limitations set forth
therein, the transfer of this Senior Note may be registered in the Security
Register of the Company upon surrender of this Senior Note for registration of
transfer at the office or agency of the Company in any place where the principal
of (and premium, if any) and interest on this Senior Note are payable, duly
endorsed by, or accompanied by, a written instrument of transfer in form
satisfactory to the Company, duly executed by the registered Holder hereof or
his attorney duly authorized in writing, and thereupon one or more new Senior
Notes, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
The Senior Notes are issuable only as registered Senior Notes without
coupons in denominations of $1,000 and integral multiples of $1,000. As provided
in the Indenture, and subject to certain limitations set forth therein, this
Senior Note is exchangeable for a like aggregate principal amount of Senior
Notes of different authorized denominations, as requested by the Holder
surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment for registration of transfer of this Senior Note,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Senior Note is registered as the owner hereof for
the purpose of receiving payment as herein provided and for all other purposes,
whether or not this Senior Note be overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the contrary.
If an Event of Default with respect to the Senior Notes shall occur and be
continuing, the principal hereof may be declared due and payable in the manner
and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the trustee under
each series to be affected with the consent of the Holders of 66 2/3% in
principal amount of the Outstanding Securities of each series to be affected.
The Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Outstanding Securities of any
series, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Senior Note shall be conclusive and binding upon
such Holder and upon all future Holders of this Senior Note and of any Senior
Notes issued upon the registration of transfer hereof or in exchange herefor or
in lieu hereof whether or not notation of such consent or waiver is made upon
this Senior Note.
<PAGE> 3
No reference herein to the Indenture and no provision of this Senior Note
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest, if any, on this Senior Note at the times, place and rate, and in the
coin and currency, herein prescribed.
All terms used in this Senior Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
Unless the certificate of authentication hereon has been executed by the
Trustee, directly or through an authenticating agent, by the manual signature of
an authorized officer, this Senior Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION FLEET BOSTON CORPORATION
This is one of the Securities of
the series provided for under the
within-mentioned Indenture.
By____________________________
The Bank of New York, a New York banking Chairman and Chief Executive
corporation as Trustee Officer
By______________________________________ By____________________________
Authorized Officer Secretary
<PAGE> 4
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
Name and address of assignee, including zip code, must be printed or
typewritten)
________________________________________________________________________________
________________________________________________________________________________
the within Senior Note, and all rights thereunder, hereby irrevocably
constituting and appointing
________________________________________________________________________________
Attorney to transfer said Senior Note on the books of the within Company, with
full power of substitution in the premises.
Dated:___________ ________________________________
NOTICE: The signature to this assignment
must correspond with the name as
it appears upon the face of the
within or attached Senior Note
in every particular, without
alteration or enlargement or any
change whatever.
<PAGE> 1
Exhibit 4(h)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
FLEET BOSTON CORPORATION
and
THE BANK OF NEW YORK
------------------------------------
INDENTURE
Dated as of December 6, 1999
---------------------------------
Subordinated Debt Securities
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
TABLE SHOWING REFLECTION IN INDENTURE
OF CERTAIN PROVISIONS
OF TRUST INDENTURE ACT OF 1939
TIA SECTION REFLECTED IN INDENTURE SECTION
ss.310(a)(1) .................................. 8.09
(a)(2) .................................. 8.09
(a)(3) .................................. Not Applicable
(a)(4) .................................. Not Applicable
(a)(5) .................................. 8.09
(b) .................................. 8.08
(c) .................................. Not Applicable
ss.311(a) .................................. 8.13(i)
(b) .................................. 8.13(ii)
(b)(2) .................................. 6.03(i)(b)
6.03(ii)
ss.312(a) .................................. 6.01
6.02(i)
(b) .................................. 6.02(ii)
(c) .................................. 6.02(iii)
ss.313(a) .................................. 6.03(i)
(b) .................................. 6.03(ii)
(c) .................................. 6.03(i), (ii) and
(iii)
(d) .................................. 6.03(iii)
ss.314(a)(1)
(2), (3) .................................. 6.04
(a)(4) .................................. 5.10
(b) .................................. Not Applicable
(c)(1) .................................. 1.02
(c)(2) .................................. 1.02
(c)(3) .................................. Not Applicable
(d) .................................. Not Applicable
(e) .................................. 1.02
(f) .................................. Not Applicable
ss.315(a) .................................. 8.01(i)
8.01(iii)
(b) .................................. 8.02
8.03(i)(f)
(c) .................................. 8.01(ii)
(d) .................................. 8.01(iii)
(d)(1) .................................. 8.01(iii)(a)
(d)(2) .................................. 8.01(iii)(b)
<PAGE> 3
(d)(3) .................................. 8.01(iii)(c)
(e) .................................. 7.14
ss.316(a) .................................. 1.01
ss.316(a)(1)(A) .................................. 7.13
7.12
(a)(1)(B) .................................. 7.13
(a)(2) .................................. Not Applicable
(b) .................................. 7.08
(c) .................................. 1.04
ss.317(a)(1) .................................. 7.03
(a)(2) .................................. 7.04
(b) .................................. 5.03
ss.318(a) .................................. 1.08
ii
<PAGE> 4
TABLE OF CONTENTS
-----------------
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATIONS.........1
SECTION 1.01. Definitions....................................................1
Act...........................................................................2
Affiliate.....................................................................2
Authenticating Agent..........................................................2
Authorized Newspaper..........................................................2
Authorized Officer............................................................2
Bank..........................................................................3
Bearer Security...............................................................3
Board of Directors............................................................3
Board Resolution..............................................................3
Business Day..................................................................3
Commission....................................................................3
Common Depository.............................................................3
Company.......................................................................3
Company Request..........................................3
Components...............................................4
Conversion Date..........................................4
Corporate Trust Office...................................4
Corporation..............................................4
Coupon...................................................4
Default..................................................4
Defaulted Interest.......................................4
Euro.....................................................4
8-1/8% Subordinated Notes Due 2004.......................5
8-5/8% Subordinated Notes Due 2004.......................5
Entitled Persons.........................................5
Event of Default.........................................5
Exchange Date............................................5
Exchange Rate............................................5
Exchange Rate Agent......................................6
Exchange Rate Officer's Certificate......................6
Existing Subordinating Indebtedness......................6
Foreign Currency.........................................6
Holder...................................................6
Interest.................................................6
Interest Payment Date....................................6
Judgment Currency........................................6
Market Exchange Rate.....................................7
Maturity.................................................7
Maturity Consideration...................................7
<PAGE> 5
New York Banking Day.....................................7
9% Subordinated Notes Due 2001...........................7
9.90% Subordinated Notes Due 2001........................7
Officers' Certificate....................................7
Opinion of Counsel.......................................8
Original Issue Discount Security.........................8
Other Financial Obligations..............................8
Outstanding..............................................8
Paying Agent.............................................9
Person...................................................9
Place of Payment.........................................9
Predecessor Security.....................................9
Principal Paying Agent...................................9
Redemption Date..........................................9
Redemption Price.........................................9
Registered Security......................................9
Regular Record Date......................................9
Required Currency.......................................10
Responsible Officer.....................................10
Securityholder..........................................10
Security Register.......................................10
Security Registrar......................................10
Senior Indebtedness.....................................10
Special Record Date.....................................10
Specified Currency......................................10
Stated Maturity.........................................11
Subsidiary..............................................11
Trustee.................................................11
Trust Indenture Act.....................................11
United States...........................................11
United States Alien.....................................11
Vice President..........................................11
Voting Stock............................................11
SECTION 1.02. Compliance Certificates and Opinions..........................11
SECTION 1.03. Form of Documents Delivered to Trustee........................12
SECTION 1.04. Acts of Securityholders.......................................13
SECTION 1.05. Notices, etc., to Trustee and Company.........................15
SECTION 1.06. Notices to Securityholders; Waiver............................15
SECTION 1.07. Language of Notices, Etc......................................16
SECTION 1.08. Conflict with Trust Indenture Act.............................17
SECTION 1.09. Effect of Headings and Table of Contents......................17
SECTION 1.10. Successors and Assigns........................................17
SECTION 1.11. Separability Clause...........................................17
SECTION 1.12. Benefits of Indenture.........................................17
SECTION 1.13. Legal Holidays................................................17
-ii-
<PAGE> 6
SECTION 1.14. Governing Law.................................................18
SECTION 1.16. Moneys of Different Currencies to be Segregated...............19
ARTICLE TWO SECURITY FORMS..................................................19
SECTION 2.01. Forms Generally...............................................19
SECTION 2.02. Form of Securities............................................19
SECTION 2.03. Form of Trustee's Certificate of Authentication...............20
ARTICLE THREE THE SECURITIES................................................21
SECTION 3.01. Title and Terms...............................................21
SECTION 3.02. Denominations.................................................24
SECTION 3.03. Execution, Authentication, Delivery and Dating................24
SECTION 3.04. Temporary Securities..........................................25
SECTION 3.05. Registration, Registration of Transfer and Exchange...........28
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities..............30
SECTION 3.07. Payment of Interest; Interest Rights Preserved................31
SECTION 3.08. Persons Deemed Owners.........................................32
SECTION 3.09. Cancellation..................................................33
SECTION 3.10. Computation of Interest.......................................33
SECTION 3.11. Forms of Certification........................................33
SECTION 3.12. Payment in Currencies.........................................34
SECTION 3.13. CUSIP Numbers.................................................36
ARTICLE FOUR REDEMPTION OF SECURITIES.......................................36
SECTION 4.01. Applicability of Article......................................36
SECTION 4.02. Election to Redeem; Notice to Trustee.........................37
SECTION 4.03. Selection by Security Registrar of Securities to be Redeemed..37
SECTION 4.04. Notice of Redemption..........................................37
SECTION 4.05. Deposit of Redemption Price...................................38
SECTION 4.06. Securities Payable on Redemption Date.........................38
SECTION 4.07. Securities Redeemed in Part...................................39
SECTION 4.08. Redemption Suspended During Event of Default..................40
ARTICLE FIVE COVENANTS......................................................40
SECTION 5.01. Payment of Principal, Premium, Maturity Consideration and
Interest.....................................................................40
SECTION 5.02. Maintenance of Office or Agency...............................40
SECTION 5.03. Money or Other Property for Security Payments and
Deliveries to Be Held in Trust...............................................42
SECTION 5.04. Additional Amounts............................................43
SECTION 5.05. Corporate Existence...........................................44
SECTION 5.06. Maintenance of Properties.....................................44
SECTION 5.07. Payment of Taxes and Other Claims.............................45
SECTION 5.08. Statement as to Compliance....................................45
SECTION 5.09. Waiver of Certain Covenants...................................46
SECTION 5.10. Calculation of Original Issue Discount........................46
SECTION 5.11. Statement by Officers as to Default...........................46
ARTICLE SIX HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY...............46
SECTION 6.01. Company to Furnish Trustee Names and Addresses of Holders.....46
SECTION 6.02. Preservation of Information; Communications to Holders........47
-iii-
<PAGE> 7
SECTION 6.03. Reports By Trustee............................................48
SECTION 6.04. Reports by the Company........................................49
ARTICLE SEVEN REMEDIES.......................................................50
SECTION 7.01. Events of Default.............................................50
SECTION 7.02. Acceleration of Maturity; Rescission and Annulment............50
SECTION 7.03. Collection of Indebtedness and Suits for Enforcement by
Trustee......................................................................52
SECTION 7.04. Trustee May File Proofs of Claim..............................52
SECTION 7.05. Trustee May Enforce Claims Without Possession of Securities...53
SECTION 7.06. Application of Money or Other Property Collected..............54
SECTION 7.07. Limitation on Suits...........................................54
SECTION 7.08. Unconditional Right of Securityholders to Receive Principal,
Premium, Maturity Consideration and Interest.................................56
SECTION 7.09. Restoration of Rights and Remedies............................56
SECTION 7.10. Rights and Remedies Cumulative................................56
SECTION 7.11. Delay or Omission Not Waiver..................................57
SECTION 7.12. Control by Securityholders....................................57
SECTION 7.13. Waiver of Past Defaults.......................................57
SECTION 7.14. Undertaking for Costs.........................................58
SECTION 7.15. Waiver of Stay or Extension Laws..............................58
ARTICLE EIGHT THE TRUSTEE...................................................58
SECTION 8.01. Certain Duties and Responsibilities...........................59
SECTION 8.02. Notice of Default.............................................60
SECTION 8.03. Certain Rights of Trustee.....................................60
SECTION 8.04. Not Responsible for Recitals or Issuance of Securities........62
SECTION 8.05 May Hold Securities............................................62
SECTION 8.06. Money or Other Property Held in Trust.........................62
SECTION 8.07. Compensation and Reimbursement................................62
SECTION 8.08. Disqualification; Conflicting Interests.......................63
SECTION 8.09. Corporate Trustee Required; Eligibility.......................64
SECTION 8.10. Resignation and Removal; Appointment of Successor.............64
SECTION 8.11. Acceptance of Appointment by Successor........................66
SECTION 8.12. Merger, Conversion, Consolidation or Succession to Business
of Trustee...................................................................68
SECTION 8.13. Preferential Collection of Claims against Company.............68
SECTION 8.14. Appointment of Authenticating Agent...........................68
ARTICLE NINE SUPPLEMENTAL INDENTURES........................................70
SECTION 9.01. Supplemental Indentures Without Consent of Securityholders....70
SECTION 9.02. Supplemental Indentures With Consent of Securityholders.......71
SECTION 9.03. Execution of Supplemental Indentures..........................72
SECTION 9.04. Effect of Supplemental Indentures.............................73
SECTION 9.05. Conformity with Trust Indenture Act...........................73
SECTION 9.06. Reference in Securities to Supplemental Indentures............73
SECTION 9.07. Subordination Unimpaired......................................73
ARTICLE TEN CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER...................73
SECTION 10.01. Company May Consolidate, etc., Only on Certain Terms.........73
SECTION 10.02. Successor Corporation Substituted............................74
-iv-
<PAGE> 8
ARTICLE ELEVEN SATISFACTION AND DISCHARGE...................................75
SECTION 11.01. Satisfaction and Discharge of Indenture......................75
SECTION 11.02. Application of Trust Money or Property.......................77
ARTICLE TWELVE IMMUNITY OF INCORPORATES, STOCKHOLDERS, OFFICERS AND
DIRECTORS....................................................................77
SECTION 12.01. Exemption from Individual Liability..........................77
ARTICLE THIRTEEN SINKING FUNDS..............................................77
SECTION 13.01. Applicability of Article.....................................77
SECTION 13.02. Satisfaction of Sinking Fund Payments with Securities........78
SECTION 13.03. Redemption of Securities for Sinking Fund....................78
ARTICLE FOURTEEN SUBORDINATION OF NOTES.....................................79
SECTION 14.01 Agreement to Subordinate......................................79
SECTION 14.02. Distribution on Dissolution, Liquidation and
Reorganization; Subrogation of Securities....................................79
SECTION 14.03. Payments on Securities Prohibited During Event of Default
Under Senior Indebtedness....................................................82
SECTION 14.04. Reserved.....................................................83
SECTION 14.05. Authorization of Holders to Trustee to Effect Subordination..83
SECTION 14.06. Notice to Trustee............................................83
SECTION 14.07. Right of Trustee to Hold Senior Indebtedness.................84
SECTION 14.08. Article Fourteen Not to Prevent Defaults or Events of
Default......................................................................84
SECTION 14.09. Trustee Compensation, Etc. Not Prejudiced....................84
SECTION 14.10. Securities to Rank PARIPASSU with Existing Subordinated
Indebtedness; Payment of Proceeds in Certain Cases...........................84
ARTICLE FIFTEEN MISCELLANEOUS...............................................86
SECTION 15.01. Counterparts.................................................86
-v-
<PAGE> 9
EXHIBIT A Form of Certificate to be Given by Person Entitled to
Receive Bearer Security
EXHIBIT B Form of Certificate to be Given by Euro-clear or CEDEL
S.A. in Connection with the Exchange of a Portion of a
Temporary Global Security.
EXHIBIT C Form of Certificate to be Given by Euro-clear or CEDEL
S.A. to Obtain Interest Prior to an Exchange Date
EXHIBIT D Form of Certificate to be Given by Beneficial Owners to
Obtain Interest Prior to an Exchange Date
<PAGE> 10
THIS INDENTURE is dated as of December 6, 1999 between FLEET BOSTON
CORPORATION, a corporation organized and existing under the laws of the State of
Rhode Island (hereinafter called the "Company"), having its principal executive
office at One Federal Street, Boston, Massachusetts 02211 and THE BANK OF NEW
YORK, a New York banking corporation (hereinafter called the "Trustee"), having
its principal corporate trust office located in New York, New York.
RECITALS OF THE COMPANY
The Company deems it necessary from time to time to issue its unsecured
subordinated notes to be issued in one or more series (hereinafter called the
"Securities") as hereinafter set forth, and to provide therefor the Company has
duly authorized the execution and delivery of this Indenture;
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of any
series thereof, as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(i) the term "this Indenture" means this instrument as
originally executed or as it may from time to time be supplemented or
amended by one or more indentures supplemental hereto entered into
pursuant to the applicable provisions hereof and shall include the
terms of particular series of Securities contemplated by Section 3.01;
(ii) all references in this instrument to designated
"Articles", "Sections" and other subdivisions are to the designated
Articles, Sections and other subdivisions of this Indenture. 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;
<PAGE> 11
(iii) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(iv) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by references therein, have the
meanings assigned to them therein; and
(v) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as may be otherwise expressly
provided herein or in one or more indentures supplemental hereto, the
term "generally accepted accounting principles" with respect to any
computation required or permitted hereunder shall mean such accounting
principles as are generally accepted at the date of such computation.
Certain terms, used principally in Article Eight, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning specified
in Section 1.04.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized to act on behalf of
the Trustee to authenticate Securities pursuant to Section 8.14.
"Authorized Newspaper" means a newspaper, in an official language of
the country of publication or in the English language, customarily published on
each Business Day whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Authorized Officer" means the Chairman of the Board, the President,
any Vice Chairman of the Board, the Chief Financial Officer, any Vice President,
the Treasurer, the Secretary, the Comptroller, any Assistant Comptroller, any
Assistant Treasurer or any Assistant Secretary of the Company.
"Bank" means (i) any institution organized under the laws of the United
States, any State of the United States, the District of Columbia, any territory
of the United States, Puerto Rico, Guam, American Samoa or the Virgin Islands
which (a) accepts deposits that the depositor has a
<PAGE> 12
legal right to withdraw on demand, and (b) engages in the business of making
commercial loans and (ii) any trust company organized under any of the foregoing
laws.
"Bearer Security" means any Security in the form established pursuant
to Section 2.02 which is payable to bearer.
"Board of Directors" means either the board of directors of the
Company, any duly authorized committed of that board, the Chairman, any Vice
Chairman, the President or any Vice President of the Company duly authorized by
the Board of Directors of the Company to take a specified action or make a
specified determination.
"Board Resolution" means 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, and delivered to the Trustee.
"Business Day" means any day other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which banking institutions are authorized
or obligated by law or regulation to close in The City of New York or (i) with
respect to Securities denominated in a Foreign Currency, in the city as
specified in the Board Resolution pursuant to Section 3.01 or (ii) with respect
to Securities which will bear interest based on a specified percentage of London
interbank offered quotations, a day which is also a day on which banks in
London, England are open for business (including dealings in foreign exchange
and foreign currency deposits).
"Commission" means the Securities and Exchange Commission as from time
to time constituted, created under the Securities Exchange Act of 1934, as
amended, or if any time after the execution and delivery 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 on such date.
"Common Depository" has the meaning specified in Section 3.04.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until any successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean any such successor corporation.
"Company Request" or "Company order" mean, respectively, a written
request or order signed in the name of the Company by its Chairman of the Board,
its President, a Vice Chairman of the Board, its Chief Financial Officer or a
Vice President, and by its Treasurer, an Assistant Treasurer, its Comptroller,
an Assistant Comptroller, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Components", with respect to a composite currency means the currency
amounts that are components of such composite currency on the Conversion Date
with respect to such composite currency. After such Conversion Date if the
official unit of any component currency is altered by
<PAGE> 13
way of combination or subdivision, the number of units of such currency in the
Component shall be proportionately divided or multiplied. After such Conversion
Date if two or more component currencies are consolidated into a single
currency, the amounts of those currencies as Components shall be replaced by an
amount in such single currency equal to the sum of the amounts of such
consolidated component currencies expressed in such single currency, and such
amount shall thereafter be a Component. If after such Conversion Date any
component currency shall be divided into two or more currencies, the amount of
such currency as a Component shall be replaced by amounts of such two or more
currencies, each of which shall be equal to the amount of such former component
currency divided by the number of currencies into which such component currency
was divided, and such amounts shall thereafter be Components.
"Conversion Date", with respect to a composite currency has the meaning
specified in Section 3.12(iv).
"Corporate Trust Office" means the corporate trust office of the
Trustee located in The City of New York, State of New York, at which at any
particular time its corporate trust business in New York shall be principally
administered, which office at the date of execution of this Agreement is located
at 101 Barclay Street, Floor 8 West, New York, New York 10286, Attention:
Corporate Trust Trustee Administration.
"Corporation" includes corporations, associations, companies and
business trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Default" has the meaning specified in Section 7.07.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Euro" means the single currency of participating member states which
was introduced on January 1, 1999 at the commencement of the third stage of
European economic and monetary union pursuant to the Treaty establishing the
European Community as amended by the Treaty on European Union (and references
during the transitional period following the introduction of the Euro on January
1, 1999 up to the end of the transitional period on December 31, 2001 to
"Deutsche marks" or "DM" and to "French francs" or "FFR" refer, in each case to
the national currency units of, respectively, Germany and France (being
non-decimal denominations of the Euro)).
"8-1/8% Subordinated Notes Due 2004" means the 8-1/8% Subordinated
Notes Due 2004 issued by the Company pursuant to an Indenture dated as of May
15, 1991.
"8-5/8% Subordinated Notes Due 2004" means the 8-5/8% Subordinated
Notes Due 2007 issued by the Company pursuant to an Indenture dated as of May
15, 1991.
"Entitled Persons" means any person who is entitled to payment pursuant
to the terms of Other Financial Obligations.
<PAGE> 14
"Event of Default" has the meaning specified in Section 7.01.
"Exchange Date" has the meaning specified in Section 3.04.
"Exchange Rate" means (a) if pursuant to Section 3.12(i) payment is to
be made in U.S. dollars with respect to a Security denominated in a Foreign
Currency, the highest firm bid quotation for U.S. dollars received by the
Exchange Rate Agent at approximately 11:00 A.M., New York City time on the
second Business Day preceding the applicable payment date (or, if no such rates
are quoted on such date, the last date on which such rates were quoted), from
three recognized foreign exchange dealers in The City of New York selected by
the Exchange Rate Agent and approved by the Company (one of which may be the
Exchange Rate Agent) for the purchase by the quoting dealer, for settlement on
such payment date, of the aggregate amount of the Foreign Currency payable on
such payment date in respect of all Securities denominated in such Foreign
Currency and (b) if an Exchange Rate is to be computed for purposes of any
provisions other than Section 3.l2(i), the rate determined pursuant to the
foregoing clause (a) on such date and at such time as may be specified in the
relevant provision.
In the case of clause (a) above, if no such bid quotations are
available, payments pursuant to Section 3.12(i) will be made in the applicable
Foreign Currency, unless such Foreign Currency is unavailable due to the
imposition of exchange controls (or, in the case of a composite currency, such
currency ceases to be used for the purposes for which it was established as
provided in Section 3.12(iv)(b)) or other circumstances beyond the control of
the Company, in which case the Company will be entitled to make payments in U.S.
dollars on the basis of the Market Exchange Rate for such Foreign Currency.
If for any reason any of the foregoing rates are not available with
respect to one or more Foreign Currencies for which an Exchange Rate is
required, the Company shall use the most recently available quotation of the
Federal Reserve Bank of New York, or quotations from one or more commercial
banks in The City of New York or in the country of issue of the Foreign Currency
in question, or such other quotations as the Company, in each case, shall deem
appropriate; PROVIDED, HOWEVER, that if there is more than one market for
dealing in any Foreign Currency by reason of foreign exchange regulations or
otherwise, the market to be used for such quotations shall be the largest market
upon which a nonresident issuer of securities designated in such Foreign
Currency would purchase such Foreign Currency in order to make payments in
respect of such securities.
"Exchange Rate Agent" means the New York clearing house bank designated
by the Company to act as such for any series of Securities for that series (with
notice to the Trustee for that series), or any successor thereto, and may be the
Trustee for that series.
"Exchange Rate Officer's Certificate", with respect to any date for the
payment of principal of (and premium, if any) and interest on any series of
Securities, means a certificate signed by an officer of the Exchange Rate Agent
and delivered to the Company and to the Trustee, setting forth (i) the
applicable Market Exchange Rate or Exchange Rate and (ii) the U.S.
<PAGE> 15
dollar or Foreign Currency amount of principal (and premium, if any) and
interest payable with respect to a Security of any series on the basis of the
Market Exchange Rate or Exchange Rate, as the case may be (on an aggregate basis
and on the basis of a Security having the lowest denomination principal amount
pursuant to Section 3.02 in the relevant currency).
"Existing Subordinating Indebtedness" means the principal of, premium,
if any, and interest on, the Company's 9.90% Subordinated Notes due 2001, the
Company's 9% Subordinated Notes due 2001, the Company's 8-1/8% Subordinated
Notes due 2004 and the Company's 8-5/8% Subordinated Notes due 2007.
"Foreign Currency" means a currency issued by the government of any
country (other than a currency of the United States of America) or any composite
currency based on the aggregate value of currencies of any group of countries.
"Holder", when used with respect to any Security, means a
Securityholder.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any series of
Securities, means the Stated Maturity of an installment of interest on such
Security.
"Judgment Currency" has the meaning specified in Section 1.15.
"Market Exchange Rate" means (a) if pursuant to Section 3.12(iv)(b)
payment is to be made in U.S. dollars with respect to a Security denominated in
a Foreign Currency (other than a composite currency), the noon buying rate in
The City of New York for cable transfers of such Foreign Currency as certified
by the Federal Reserve Bank of New York on the second Business Day preceding the
applicable payment date and (b) if pursuant to Section 3.12(iv)(a) payment is to
be made in U.S. dollars with respect to a Security denominated in a composite
currency, for each Component of such composite currency, the Market Exchange
Rate determined pursuant to the foregoing clause (a) on the second Business Day
preceding the applicable payment date.
In the event a Market Exchange Rate as described in clause (a) or (b)
above is not available, the Company will be entitled to make payments in U.S.
dollars pursuant to Section 3.12(iv)(a) or (b) on the basis of the most recently
available Market Exchange Rate for such Foreign Currency or each Component of
such composite currency, as the case may be.
"Maturity", when used with respect to any Security, means the date on
which the principal or Maturity Consideration of such Security (or any
installment of principal or Maturity Consideration) becomes due and payable or
deliverable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Maturity Consideration" means securities, which may be issued by the
Company or another Person, or a combination of cash, such securities and/or
other property that may be
<PAGE> 16
delivered to Holders of Securities of any series to satisfy the Company's
obligations with regard to payment upon Maturity, or any redemption or required
repurchase or in connection with any exchange provisions, or any interest
payment.
"New York Banking Day" has the meaning specified in Section 1.15.
"9% Subordinated Notes Due 2001" means the 9% Subordinated Notes Due
2001 issued by the Company pursuant to an Indenture dated as of May 15, 1991.
"9.90% Subordinated Notes Due 2001" means the 9.90% Subordinated Notes
Due 2001 issued by the Company pursuant to an Indenture dated as of May 15,
1991.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President, a Vice Chairman of the Board, the Chief Financial
Officer or a Vice President, and by the Treasurer, an Assistant Treasurer, the
Comptroller, an Assistant Comptroller, the Secretary or an Assistant Secretary
of the Company, and delivered to the Trustee. Each such certificate shall
contain the statements set forth in Section 1.02.
"Opinion of Counsel" means a written opinion of counsel, who may
(except as otherwise expressly provided in this Indenture) be an employee of the
Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 7.02.
"Other Financial Obligations" means all obligations of the Company to
make payment or delivery 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.
"Outstanding", when used with respect to a Security or Securities of
any series, as of the date of determination, all such Securities theretofore
authenticated and delivered under this Indenture, except:
(i) such Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) such Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Trustee or
any Paying
<PAGE> 17
Agent in trust for the Holders of such Securities, provided that, if
such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(iii) such Securities in lieu of which other Securities have
been authenticated and delivered pursuant to Section 3.06 of this
Indenture;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of such Securities Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of Original Issue Discount Securities that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the Maturity thereof pursuant to Section 7.02, and Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which a Responsible Officer of the Trustee
actually knows to be so owned shall be disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or such other
obligor. The Trustee shall be entitled to rely upon a certificate of the Company
as conclusive evidence regarding the ownership or pledge of Securities by the
Company or any Affiliate of the Company.
"Paying Agent" means any Person authorized by the Company to pay or
deliver the principal of, premium, if any, Maturity Consideration, or interest
on, any Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where, subject to the provisions of Section
5.02, the principal of (premium, if any), Maturity Consideration and interest on
the Securities of that series are payable or deliverable as specified in
accordance with Section 3.01.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and for the purposes of this definition, any Security
authenticated and delivered, under Section 3.06 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
<PAGE> 18
"Principal Paying Agent" means the Paying Agent designated as such by
the Company pursuant to Section 3.01 of this Indenture.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price or Maturity Consideration specified in such Security
at which it is to be redeemed pursuant to this Indenture.
"Registered Security" means any Security in the form established
pursuant to Section 2.01 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Security on any
Interest Payment Date means the date, if any, specified in such Security as the
"Regular Record Date".
"Required Currency" means the currency in which principal of (and
premium, if any), Maturity Consideration and interest on a Security is payable
pursuant to Section 3.12.
"Responsible Officer", when used with respect to the Trustee, means any
vice president, any assistant vice president, any assistant treasurer, any
senior trust officer, trust officer or assistant trust officer or any other
officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular subject
and who has direct responsibility for the administration of this Indenture.
"Securityholder" means, in the case of a Registered Security, the
Person in whose name the Security is registered in the Security Register and, in
the case of a Bearer Security (or any temporary global Security in bearer form),
the bearer thereof and, when used with respect to any coupon, the bearer
thereof.
"Security Register" has the meaning specified in Section 3.05.
"Security Registrar" has the meaning specified in Section 3.05.
"Senior Indebtedness" means the principal of, premium, if any, and
interest on (i) all of the Company's indebtedness for money borrowed, other than
(a) the Securities and the Existing Subordinated Securities, (b) such
indebtedness as is by its terms expressly stated to be junior in right of
payment to the Securities and (c) such indebtedness as is by its terms expressly
stated to rank pari passu with the Securities and (ii) any deferrals, renewals
or extensions of any such Senior Indebtedness. The term "indebtedness for money
borrowed" as used in the foregoing sentence shall include, without limitation,
any obligation of, or any obligation guaranteed by, the Company for the
repayment of borrowed money, whether or not evidenced by bonds, debentures,
notes or other written instruments, and any deferred obligation of, or any such
obligation
<PAGE> 19
guaranteed by, the Company of the payment of the purchase price of property or
assets. Senior Indebtedness may also include other obligations of the Company
if, and to the extent specifically provided in the Officer's Certificate
pursuant to Section 3.01 setting forth the terms of a series of Securities.
"Special Record Date" for the payment of any Defaulted Interest (as
defined in Section 3.07) means the date fixed by the Trustee pursuant to Section
3.07.
"Specified Currency" means the currency in which the Securities of any
series are denominated.
"Stated Maturity", when used with respect to any Security, or any
installment of principal, Maturity Consideration thereof or interest thereon,
means the date specified in such Security or a coupon representing such
installment of interest as the fixed date on which the principal or Maturity
Consideration of such Security, or such installment of principal, Maturity
Consideration or interest, is due and payable or deliverable.
"Subsidiary", means a corporation more than 50% of the Voting Stock of
which is owned, directly or indirectly, by the Company or by one or more other
Subsidiaries or by the Company and one or more other Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
securities of that series.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended by the Trust Indenture Reform Act of 1990, as in force at the date as
of which this instrument was executed, except as provided in Section 9.05.
"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.
"United States Alien" means any Person who, for United States federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien subsidiary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
<PAGE> 20
"Voting Stock" means stock of the class or classes having general
voting power under ordinary circumstances to elect at least a majority of the
board of directors, managers or trustees of such corporation (irrespective of
whether or not at the time stock of any other class or classes shall have or
might have voting power by reason of the happening of any contingency).
SECTION 1.02. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent
(including any covenants compliance with which constitutes a condition
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 (including any covenants
compliance with which constitutes a condition precedent), if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than annual
certificates provided pursuant to Section 5.10) shall include:
(i) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(ii) 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;
(iii) a statement that, in the opinion of each such
individual, 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
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
<PAGE> 21
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. Acts of Securityholders.
(i) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given
or taken by Securityholders or Securityholders of any series may be
embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Securityholders in person or by an agent
duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee, and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Securityholders signing such instrument
or instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose
of this Indenture and (subject to Section 8.01) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this
Section.
(ii) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness
of such execution or by the certificate of any notary public or other
officer authorized by law to take acknowledgments of deeds, certifying
that the individual signing such instrument or writing acknowledged to
him the execution thereof. Where such execution is by or on behalf of
any legal entity other than an individual, such certificate or
affidavit shall also constitute proof of the authority of the Person
executing the same. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the
same, may also be provided in any other manner which the Trustee deems
sufficient.
(iii) The ownership of Registered Securities shall be proved
by the Security Register.
<PAGE> 22
(iv) The principal amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the same, may be
proved by the production of such Bearer Securities or by a certificate
executed, as depository, by any trust company, bank, banker or other
depositary, wherever situated, if such certificate shall be deemed by
the Trustee to be satisfactory, showing that at the date therein
mentioned such Person had on deposit with such depositary, or exhibited
to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such
Bearer Security, if such certificate or affidavit is deemed by the
Trustee to be satisfactory. The Trustee and the Company may assume that
such ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect of the
same Bearer Security is produced, or (2) such Bearer Security is
produced to the Trustee by some other Person, or (3) such Bearer
Security is surrendered in exchange for a Registered Security, or (4)
such Bearer Security is no longer Outstanding.
(v) The fact and date of execution of any such instrument or
writing, the authority of the Person executing the same and the
principal amount and serial numbers of Bearer Securities held by the
Person so executing such instrument or writing and the date of holding
the same may also be proved in any other manner which the Trustee deems
sufficient; and the Trustee may in any instance require further proof
with respect to any of the matters referred to in this Section.
(vi) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Security shall
bind every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof, in respect of any action taken,
suffered or omitted by the Trustee or the Company in reliance thereon,
whether or not notation of such action is made upon such Security.
(vii) For purposes of determining the principal amount or, if
such Outstanding Securities are not payable at Maturity for a fixed
principal amount, the issue price of Outstanding Securities of any
series, the Securityholders of which are required, requested or
permitted to give any request, demand, authorization, direction,
notice, consent, waiver or take any other Act under the Indenture, each
Security denominated in Foreign Currency shall be deemed to have a
principal amount or issue price determined by converting the principal
amount or issue price of such Security in the currency or currencies in
which such Security is denominated into U.S. dollars at the Exchange
Rate(s) as of 9:00 A.M. New York time as determined by an Exchange Rate
Agent (as evidenced by a certificate of such Exchange Rate Agent) on
the date such Act is delivered to the Trustee pursuant to Section
1.04(i). Any such determination by the Company or an Exchange Rate
Agent shall be conclusive and binding on the Holders and the
<PAGE> 23
Trustee for such series, and neither the Company nor such Exchange Rate
Agent shall be liable therefor in the absence of bad faith.
(viii) The Company may, but shall not be obligated to, set a
record date for purposes of determining the identity of Holders
entitled to vote or consent to any action by vote or consent authorized
or permitted under this Indenture, which record date shall be the later
of 10 days prior to the first solicitation of such consent or the date
of the most recent list of Holders furnished to the Trustee pursuant to
Section 6.01 of this Indenture prior to such solicitation. If a record
date is fixed, those persons who were Holders of Securities at such
record date (or their duly designated proxies), and only those persons,
shall be entitled to take such action by vote or consent or to revoke
any vote or consent previously given, whether or not such persons
continue to be Holders after such record date. No such vote or consent
shall be valid or effective for more than 120 days after such record
date.
SECTION 1.05. Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Securityholders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(i) the Trustee by any Securityholder or by the Company shall
be sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee and received at its Corporate
Trust Office, attention: Corporate Trust Department, or
(ii) the Company by any Securityholder or by the Trustee shall
be sufficient for every purpose hereunder if in writing and mailed,
first-class, postage prepaid, to the Company, to the attention of its
Treasurer, addressed to it at the address of its principal office
specified in the first paragraph of this Indenture or at any other
address previously furnished in writing to the Trustee by the Company.
SECTION 1.06. Notices to Securityholders; Waiver.
Where this Indenture or any Security provides for notice to Holders of
any event:
(1) Such notice shall be sufficiently given (unless
otherwise herein or in such Security expressly provided) if in
writing and mailed, first-class postage prepaid, to each
Holder of a Registered Security affected by such event, at his
address as it appears in the Security Register, not later than
the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice.
<PAGE> 24
(2) Such notice shall be sufficiently given to
Holders of Bearer Securities if published in an Authorized
Newspaper in The City of New York and, if the Securities of
such series are then listed on The International Stock
Exchange of the United Kingdom and the Republic of Ireland
Limited and such stock exchange shall so require, in London
and, if the Security of such series are then listed on the
Luxembourg Stock Exchange and such stock exchange shall so
require, in Luxembourg and, if the Security of such series are
then listed on any other stock exchange and such stock
exchange shall so require, in any other required city outside
the United States or, if not practicable, elsewhere in Europe
on a Business Day at least twice, the first such publication
to be not earlier than the earliest date, and not later than
the latest date, prescribed for the giving of such notice; it
being understood that the Company shall notify the Trustee of
any of the foregoing requirements a reasonable amount of time
prior to the date on which such notice must be given.
In case by reason of the suspension of regular mail service in the
applicable country or countries or by reason of any other case it shall be
impracticable to give such notice to Holders of Registered Securities by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder. In any case
where notice to Holders of Registered Securities is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder of a Registered Security shall affect the sufficiency of such
notice with respect to other Holders of Registered Securities or the sufficiency
of any notice by publication to Holders of Bearer Securities given as provided
above.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice mailed to
Holders of Registered Securities as provided above.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Such waivers of notice by Securityholders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
SECTION 1.07. Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent, or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice
<PAGE> 25
may be in an official language of the country of publication, as may be
specified in a form of Security or, in the absence of such specification, as
directed in writing by the Company.
SECTION 1.08. Conflict with Trust Indenture Act.
If and to the extent that any provision hereof limits, qualifies or
conflicts with the duties imposed by any of Sections 310 to 317, inclusive, of
the TIA through operation of Section 318(c) thereof, such imposed duties shall
control.
SECTION 1.09. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.10. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 1.11. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1.12. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, the Holders and, to the extent provided in Article Fourteen hereof,
the holders of Senior Indebtedness, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
SECTION 1.13. Legal Holidays.
In any case where any Interest Payment Date, Stated Maturity or
Redemption Date of any Security or any date on which any Defaulted Interest is
proposed to be paid or delivered shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provisions of the Securities or this
Indenture) payment or delivery of the principal of, premium, if any, Maturity
Consideration or interest on any Securities need not be made at such Place of
Payment on such date, but may be made on the next succeeding Business Day with
the same force and effect as if made on the Interest Payment Date, Stated
Maturity or Redemption Date or on the date on which Defaulted Interest is
proposed to be paid or delivered, and, if such payment or delivery is made, no
interest shall accrue on such payment or delivery for the period from and after
any such Interest Payment Date, Stated Maturity, Redemption Date or on the date
on which Defaulted Interest is proposed to be paid or delivered, as the case may
be.
<PAGE> 26
SECTION 1.14. Governing Law.
This Indenture and the Securities shall be construed in accordance with
and governed by the laws of the State of New York without regard to conflicts of
laws principles thereof.
SECTION 1.15. Judgment Currency; Payment to be in Proper Currency.
Each reference in any Security, or in the Board Resolution relating
thereto, to any currency shall be of the essence. Subject to Section 3.12(iv),
the Company agrees, to the fullest extent that it may effectively do so under
applicable law, that (a) if for the purpose of obtaining judgment in any court
it is necessary to convert the sum or amount of Maturity Consideration due or
payable in respect of the principal of (and premium, if any), Maturity
Consideration or interest on the Securities of any series in a Specified
Currency into a currency in which a judgment will be rendered (the "Judgment
Currency"), the rate of exchange used shall be the Exchange Rate (as determined
by the Exchange Rate Agent) as of 11:00 A.M. New York City time on the New York
Banking Day immediately preceding that on which final unappealable judgment is
given and (b) its obligations to make any payment or delivery of principal of
(and premium, if any), Maturity Consideration and interest on any Security (i)
shall not be discharged or satisfied by any tender by the Company, or recovery
by the Trustee, either pursuant to any judgment (whether or not entered in
accordance with subsection (a) above) or otherwise, in any currency other than
the Required Currency except to the extent that such tender or recovery shall
result in the Trustee timely holding the full amount of the Required Currency
then due and payable in respect of such payments, (ii) shall be enforceable as
an alternative or additional cause of action for the purpose of recovering, in
the Required Currency, the amount, if any, by which such timely holding shall
fall short of the full amount of the Required Currency so expressed to be then
due and (iii) shall not be affected by judgment being obtained for any other sum
due under this Indenture. For purposes of the foregoing, "New York Banking Day"
means any day except a Saturday, Sunday or a legal holiday in The City of New
York or a day on which banking institutions in The City of New York are
authorized or required by law or executive order to close. Except as permitted
under Section 3.12(iv), if any such tender or recovery is in a currency other
than the Required Currency, the Trustee may take such actions as it considers
appropriate to exchange such currency for the Required Currency; PROVIDED,
HOWEVER, the Trustee shall have no obligation to make any payment in any
currency tendered to or recovered by such Trustee. The costs and risks of any
such exchange, including without limitation the risks of delay and exchange rate
fluctuation, shall be borne by the Company, and the Company shall remain fully
liable for any shortfall or delinquency in the full amount of the Required
Currency then due and payable, and in no circumstances shall the Trustee be
liable therefor. The Company hereby waives any defense of payment based upon any
such tender or recovery which is not in the Required Currency, or which, when
exchanged for the Required Currency by the Trustee, is less than the full amount
of the Required Currency then due and payable.
SECTION 1.16. Moneys of Different Currencies to be Segregated.
<PAGE> 27
The Trustee shall segregate all moneys, funds and accounts held by the
Trustee hereunder in one currency from any money, funds or accounts in any other
currencies, notwithstanding any provision herein which would otherwise permit
the Trustee to commingle such moneys, funds and accounts.
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. Forms Generally.
All Securities shall have 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 the rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities. If temporary Securities of any series are issued in
global form as permitted by Section 3.04, the form thereof also shall be
established as provided in the preceding sentence.
The Trustee's certificates of authentication shall be in substantially
the form set forth in this Article.
Unless otherwise provided as contemplated by Section 3.01 with respect
to any series of Securities, the Securities of each series shall be issuable in
registered form without coupons. If so provided as contemplated by Section 3.01,
the Securities of a series shall be issuable solely in bearer form, or in both
registered and bearer form. Unless otherwise specified as contemplated by
Section 3.01, Securities in bearer form shall have interest coupons attached.
The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods on a steel engraved border or 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 Securities.
Each Security shall be in one of the forms approved from time to time
by or pursuant to a Board Resolution. Upon or prior to the delivery of a
Security in any such form to the Trustee for authentication, the Company shall
deliver to the Trustee the following:
(i) the Board Resolution by or pursuant to which such form of
Security has been approved, certified by the Secretary or an Assistant
Secretary of the Company;
(ii) the Officers' Certificate required by Section 3.01 of
this Indenture;
<PAGE> 28
(iii) the Company Order required by Section 3.03 of this
Indenture; and
(iv) the Opinion of Counsel required by Section 3.03 of this
Indenture.
SECTION 2.03. Form of Trustee's Certificate of Authentication.
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK as Trustee
By:____________________________________
Authorized Signatory
Dated:
<PAGE> 29
ARTICLE THREE
THE SECURITIES
SECTION 3.01. Title and Terms.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited. The Securities may be issued up
to the aggregate principal amount of Securities from time to time authorized by
or pursuant to a Board Resolution.
The Securities may be issued in one or more series. All Securities of
each series issued under this Indenture shall in all respects be equally and
ratably entitled to the benefits hereof with respect to such series without
preference, priority or distinction on account of the actual time or times of
the authentication and delivery or Maturity of the Securities of such series.
There shall be established in or pursuant to a Board Resolution, and set forth
in an Officers' Certificate, reasonably acceptable to the Trustee, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(i) the title of the Securities, including CUSIP numbers, of
the series (which shall distinguish the Securities of the series from
all other Securities);
(ii) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of that series pursuant to this Article Three or Sections
4.07 or 9.06);
(iii) the date or dates on which the principal or Maturity
Consideration of the Securities of the series is payable or
deliverable;
(iv) the rate or rates at which the Securities of the series
shall bear interest, if any, the date or dates from which such interest
shall accrue, the Interest Payment Dates on which such interest shall
be payable or deliverable and the Regular Record Date for the interest
payable or deliverable on any Interest Payment Date;
(v) the place or places where, subject to the provisions of
Section 5.02, the principal of (and premium, if any), Maturity
Consideration and interest, if any, on Securities of the series shall
be payable or deliverable;
(vi) the office or offices or agency where the Registered
Securities may be presented for registration of transfer or exchange
and the place or places where notices and demands to or upon the
Company in respect of the Securities of such series may be made;
<PAGE> 30
(vii) the period or periods within which, the price, prices or
Maturity Consideration at 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;
(viii) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and the
terms and conditions upon which, Securities of such series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(ix) the denominations in which Securities of the series shall
be issuable;
(x) (A) the currency of denomination of the Securities of the
series, which may be in U.S. dollars or any Foreign Currency, (B) if
such currency of denomination of such series is a composite currency
other than the Euro, the agency or organization, if any, responsible
for overseeing such composite currency and (C) if such Securities are
denominated in a Foreign Currency, the financial center relative to
such Foreign Currency;
(xi) the designation of the currency or currencies in which
payment of the principal of (and premium, if any) and interest on the
Securities of the series will be made (which shall be either U.S.
dollars or the Foreign Currency in which such Security is denominated),
and if in U.S. dollars on a Security denominated in a Foreign Currency,
whether the Holders thereof may elect to have such payments made in
such Foreign Currency;
(xii) if the Securities of the series are to be denominated in
a Foreign Currency, the designation of an Exchange Rate Agent for
purposes of determining the amounts payable or deliverable with respect
to such Securities in U.S. dollars or a Foreign Currency and exchanging
a Foreign Currency into U.S. dollars or U.S. dollars into a Foreign
Currency, as the case may be;
(xiii) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be
payable or deliverable upon declaration of acceleration of the Maturity
thereof pursuant to Section 7.02;
(xiv) if the amount of payments of principal of (and premium,
if any), Maturity Consideration or any interest, if any, on Securities
of the series may be determined with reference to an index based on a
coin or currency other than that in which the Securities are to be
payable or deliverable, the method or methods by which such amounts
shall be determined;
(xv) the extent to which any of the Securities will be
issuable in temporary or permanent global form, and the manner in which
any interest
<PAGE> 31
payable or deliverable on a temporary or permanent global Security
shall be paid or delivered;
(xvi) any addition to or modification or deletion of any Event
of Default, Default or covenants of the Company with respect to the
Securities of the series, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants set
forth herein;
(xvii) any covenants solely for the benefit of the Securities
of the Series;
(xviii) the appointment of any Paying Agent or Agents for the
Securities of the series; and
(xix) whether, and the terms and conditions relating to when
the Company may satisfy all or part of its obligations with regard to
payment or delivery upon Maturity, or any redemption or required
repurchase or in connection with any exchange provisions, or any
interest payment, by paying or delivering Maturity Consideration to the
holders of the Securities;
(xx) any additional obligation of the Company to be included
as Senior Indebtedness; and
(xxi) any other terms of the series (which shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to Bearer
Securities of such series, if any, shall be substantially identical except as to
denomination and except as may otherwise be provided in or pursuant to such
Board Resolution and set forth in such Officers' Certificate or in any such
indenture supplemental hereto.
All Securities shall be subordinate and junior in right of payment to
the obligations of the Company to holders of Senior Indebtedness of the Company
as provided in Article Fourteen.
At the option of the Company, interest on the Securities of any series
that bear interest may be paid by mailing a check to the address of the Person
entitled thereto as such address shall appear in the Security Register.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, 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 for such series at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
<PAGE> 32
SECTION 3.02. Denominations.
The Securities of each series shall be issuable in such form and
denominations as shall be specified as contemplated by Section 3.01. In the
absence of any specification with respect to the Securities of any series, the
Registered Securities of each series shall be issuable only as Securities
without coupons in minimum denominations of $100,000 and any integral multiple
of $1,000 in excess thereof and the Bearer Securities of each series, if any,
shall be issuable with coupons and in denominations of $10,000 and $50,000.
SECTION 3.03. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President, one of its Vice Chairmen, or one of its
Vice Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signatures of any or all of
these officers on the Securities may be manual or facsimile. Coupons shall bear
the facsimile signature of the Company's Chairman of the Board, its President, a
Vice Chairman of the Board, its Chief Financial Officer, one of its Executive
Vice Presidents or the Treasurer.
Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, together with
any coupons appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee shall, upon receipt of the Company
Order, authenticate and deliver such Securities as in this Indenture provided
and not otherwise; provided, however, that, in connection with its original
issuance, no Bearer Security shall be mailed or otherwise delivered to any
location in the United States; and provided, further, that a definitive Bearer
Security may be delivered in connection with its original issuance only if the
Person entitled to receive such Bearer Security shall have delivered to the
Trustee, or such other Person as shall be specified in a temporary global
Security delivered pursuant to Section 3.04, a certificate in the form required
by Section 3.11(i).
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 8.01) shall be
fully protected in relying upon, an Opinion of Counsel complying with Section
1.02 and stating that,
(i) the form of such Securities has been established in
conformity with the provisions of this Indenture;
(ii) the terms of such Securities have been established in
conformity with the provisions of this Indenture;
<PAGE> 33
(iii) all conditions precedent to the authentication and
delivery of such Securities have been complied with and 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 enforceable in accordance with their terms,
subject to bankruptcy, insolvency, reorganization, moratorium and other
laws of general applicability relating to or affecting the enforcement
of creditors' rights and to general principles of equity; and
(iv) such other matters as the Trustee may reasonably request.
The Trustee shall not be required to authenticate such Securities if
the issue thereof will adversely affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee. Notwithstanding the
generality of the foregoing, the Trustee will not be required to authenticate
Securities denominated in a Foreign Currency if the Trustee reasonably believes
that it would be unable to perform its duties with respect to such Securities.
Each Registered Security shall be dated the date of its authentication;
and unless otherwise specified as contemplated by Section 3.01, each Bearer
Security and any temporary global Security referred to in Section 3.04 shall be
dated as of the date of issuance of such Security.
No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose, unless there appears on
such Security a certificate of authentication substantially in the form provided
for herein executed by the Trustee by manual signature, and such certificate
upon any Security shall be conclusive evidence, and the only evidence that such
Security has been duly authenticated and delivered hereunder.
SECTION 3.04. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denominations,
substantially of the tenor of the definitive Securities in lieu of which they
are issued in registered form or, if authorized, in bearer form with one or more
coupons or without coupons and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities. In the case of
any series which may be issuable as Bearer Securities, such temporary Securities
may be in global form, representing such of the Outstanding Securities of such
series as shall be specified therein.
Except in the case of temporary Securities in global form, each of
which shall be exchanged in accordance with the provisions of the following
paragraph, if temporary Securities
<PAGE> 34
of any series are issued, the Company will cause definitive Securities of such
series to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company in a
Place of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of such series of
authorized denominations provided, however, that no definitive Bearer Security
shall be delivered in exchange for a temporary Registered Security; and
provided, further, that a definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security only in compliance with the conditions
set forth in Section 3.03. 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 such series.
If temporary Securities of any series are issued in global form, any
such temporary global Security shall, unless otherwise provided in such
temporary global Security, be delivered to the London office of a depository or
common depository (the "Common Depository"), as directed by the Company, for the
benefit of the operator of the Euro-clear System ("Euro-clear") and CEDEL S.A.,
for credit to the respective accounts of the beneficial owners of such
Securities (or to such other accounts as they may direct). Upon receipt of
written instructions (which need not comply with Section 1.02) signed on behalf
of the Company by any Person authorized to give such instructions, the Trustee
or any Authenticating Agent shall authenticate such temporary global Security
and make such indication to reflect the initial principal amount, or an increase
in the principal amount, of Outstanding Securities represented thereby. Until
such initial authentication, such temporary global Security shall not evidence
any obligation of the Company. Such temporary global Security shall at any time
represent the aggregate principal amount of Outstanding Securities theretofore
indicated thereon as provided above, subject to reduction to reflect exchanges
as described below.
Unless otherwise specified in such temporary global Security, and
subject to the second proviso in the following paragraph, the interest of a
beneficial owner of Securities in a series in a temporary global Security shall
be exchanged for definitive Securities of such series and of like tenor
following the Exchange Date (as defined below) when the account holder instructs
Euro-clear or CEDEL S.A., as the case may be, to request such exchange on his
behalf and delivers to Euro-clear or CEDEL S.A., as the case may be, a
certificate in the form required by Section 3.11(i), dated no earlier than
fifteen days prior the Exchange Date, copies of which certificate shall be
available from the offices of Euro-clear and CEDEL S.A., the Trustee, any
Authenticating Agent appointed for such series of Securities and each Paying
Agent. Unless otherwise specified in such temporary global Security, any such
exchange shall be made free of charge to the beneficial owners of such temporary
global Security, except that the Company may charge any Person receiving
definitive Securities for the cost of insurance, postage, transportation and the
like in the event that such Person does not take delivery of such definitive
Securities in person at the offices of Euro-clear or CEDEL S.A.
<PAGE> 35
Without unnecessary delay but in any event not later than five Business
Days prior to the date specified in, or determined pursuant to the terms of, any
such temporary global Security as the "Exchange Date" (the "Exchange Date"), the
Company shall deliver to the Trustee, or, if the Trustee appoints an
Authenticating Agent pursuant to Section 8.14, to any such Authenticating Agent,
definitive Securities in aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Company. Unless
otherwise specified as contemplated by Section 3.01, such definitive Securities
shall be in the form of Bearer Securities or Registered Securities, or any
combination thereof, as may be specified by the Company to the Trustee or any
such Authenticating Agent, as may be appropriate. On or after the Exchange Date,
such temporary global Security shall be surrendered by the Common Depository to
the Trustee or any such Authenticating Agent, as the Company's agent for such
purpose, to be exchanged, in whole or from time to time in part, for definitive
Securities without charge to the Common Depository and the Trustee or any such
Authenticating Agent shall authenticate and deliver, in exchange for each
portion of such temporary global Securities, an equal aggregate principal amount
of definitive Securities of the same series, of authorized denominations and of
like tenor as the portion of such temporary global Security to be exchanged,
which, except as otherwise specified as contemplated by Section 3.01, shall be
in the form of Bearer Securities or Registered Securities, or any combination
thereof, as shall be specified by the beneficial owner thereof; provided,
however, that, unless otherwise specified in such temporary global Security,
upon such presentation by the Common Depository, such temporary global Security
is accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by Euro-clear as to the portion of such temporary global Security held
for its account then to be exchanged and a certificate dated the Exchange Date
or a subsequent date and signed by CEDEL S.A., as to the portion of such
temporary global Security held for its account then to be exchanged, each in the
form required by Section 3.11(ii); and provided, further, that a definitive
Bearer Security shall be delivered in exchange for a portion of a temporary
global Security only in compliance with the conditions set forth in Section
3.03.
Upon any exchange of a portion of any such temporary global Security,
the Trustee or any such Authenticating Agent or the Common Depository, as the
case may be, shall indicate upon such temporary global Security, the amount of
such exchange to reflect the reduction of the principal amount evidenced
thereby, whereupon its remaining principal amount shall be reduced for all
purposes by the amount so exchanged. Until so exchanged in full, such temporary
global Security shall in all respects be entitled to the same benefits under
this Indenture as definitive Securities of such series authenticated and
delivered hereunder, except that, unless otherwise specified as contemplated by
Section 3.01, interest payable on such temporary global Security on an Interest
Payment Date for Securities of such series occurring prior to the applicable
Exchange Date shall be payable, without interest, to Euro-clear and CEDEL S.A.
on or after such Interest Payment Date upon delivery by Euro-clear and CEDEL
S.A. to the Trustee or such Authenticating Agent, as the case may be, of a
certificate or certificates in the form required by Section 3.11(iii), for
credit on or after such Interest Payment Date to the respective accounts of the
Persons who are the beneficial owners of such temporary global Security on such
Interest Payment Date and who have each delivered to Euro-clear or CEDEL S.A.,
as the case may be, a certificate in the form required by Section 3.11(iv).
<PAGE> 36
SECTION 3.05. Registration, Registration of Transfer and Exchange.
With respect to Registered Securities, the Company shall keep or cause
to be kept a register (sometimes referred to as the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Securities and the registration of
transfers of Securities and the Company shall appoint a Security Registrar, and
any Co-Security Registrar as may be appropriate, to keep the Security Register.
The Trustee is hereby initially appointed Security Registrar with respect to the
series of Securities for which it is acting as Trustee. Such Security Register
shall be in written form or in any other form capable of being converted into
written form within a reasonable time. At all reasonable times the information
contained in such Security Register shall be available for inspection by the
Trustee at the office of the Security Registrar. In the event that any
Registered Securities issued hereunder have The City of New York as a Place of
Payment, the Company shall appoint either a Security Registrar or Co-Security
Registrar located in The City of New York.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency of the Company in a Place of Payment, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
such series of any authorized denominations and of a like aggregate principal
amount and Stated Maturity.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of such series, of any authorized
denominations and of like aggregate principal amount and Stated Maturity, upon
surrender of the Securities to be exchanged at such office or agency. Whenever
any Securities are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Securities which the
Securityholder making the exchange is entitled to receive.
Registered Securities may not be exchanged for Bearer Securities.
Bearer Securities may not be exchanged for Bearer Securities of other authorized
denominations.
At the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Bearer Securities to be exchanged at any such office or agency, with all
unmatured coupons and all matured coupons in default thereto appertaining. If
the Holder of a Bearer Security is unable to produce any such unmatured coupon
or coupons or matured coupon or coupons in default, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company in an amount equal to the face amount of such missing coupon or
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to any Paying Agent any
such missing coupon in respect of which such a payment shall have been made,
such Holder shall be entitled to receive the amount of such payment from the
Company; provided, however, that interest represented by coupons shall be
payable only upon presentation and surrender of those
<PAGE> 37
coupons at an office or agency of a Paying Agent located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such office or agency in exchange for a Registered
Security of the same series and like tenor after the close of business at such
office or agency on (i) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment Date, or (ii)
any Special Record Date and before the opening of business at such office or
agency on the related date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the coupon relating to such Interest
Payment Date or proposed date for payment, as the case may be.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
exchange shall (if so required by the Company or the Security Registrar) be duly
endorsed or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
Unless otherwise provided in the Securities to be transferred or
exchanged, no service charge shall be made to the Holder for any registration of
transfer or exchange of Securities, but the Company may (unless otherwise
provided in such Securities) require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 3.04, 4.07, or 9.06 not involving any transfer.
None of the Company, the Security Registrar or any Co-Security
Registrar shall be required (i) to issue, register the transfer of or exchange
any Securities of any series during a period beginning at the opening of
business 15 days before the day of selection of Securities of such series to be
redeemed and ending at the close of business on (A) if Securities of the series
are issuable only as Registered Securities, the day of the mailing of the
relevant notice of redemption of Registered Securities of such series so
selected for redemption, or (B) if Securities of the series are issuable as
Bearer Securities, the day of the first publication of the relevant notice of
redemption or, if Securities of the series are also issuable as Registered
Securities and there is no publication, the mailing of the relevant notice of
redemption, or (ii) to register the transfer or exchange of any Securities so
selected for redemption in whole or in part.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities.
If (i) any mutilated Security or Security with a mutilated coupon,
surrendered to the Trustee or the Security Registrar, or if the Company, the
Trustee and the Security Registrar receive evidence to their satisfaction of the
destruction, loss or theft of any Security or coupon,
<PAGE> 38
and (ii) there is delivered to the Company, the Trustee and the Security
Registrar such Security or indemnity as may be required by them to save each of
them harmless, then, in the absence of notice to the Company, the Trustee or the
Security Registrar that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such mutilated, destroyed, lost or
stolen Security or in exchange for the Security to which a destroyed, lost or
stolen coupon appertains (with all appurtenant coupons not destroyed, lost or
stolen), a new Security of the same series and Stated Maturity and of like tenor
and principal amount, bearing a number not contemporaneously outstanding and, if
applicable, with coupons corresponding to the coupons appertaining thereto.
In case any such mutilated, destroyed, lost or stolen Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security or deliver
the Maturity Consideration deliverable thereon; provided, however, that payment
of principal of (and premium, if any), Maturity Consideration and any interest
on Bearer Securities shall be payable only at an office or agency located
outside the United States, and, in the case of interest, unless otherwise
specified as contemplated by Section 3.01, only upon presentation and surrender
of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, 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 (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security, or
in exchange for a Security with a destroyed, lost or stolen coupon, shall
constitute an original additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Security and its coupons, if any, or the
destroyed, lost or stolen coupon shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of the same series and their
coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 3.07. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided, as contemplated by Section 3.01, interest on
any Registered Security which is payable or deliverable, and is punctually paid,
delivered or duly provided for, on any Interest Payment Date shall unless
otherwise provided in such Security be paid or delivered to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest; provided,
however, that in the case of a Registered Security originally issued between a
Regular Record Date and the Interest Payment Date or on an Interest Payment Date
relating to such Regular Record Date, interest for the period beginning on the
date of issue and ending on such Interest
<PAGE> 39
Payment Date shall be paid or delivered on the next succeeding Interest Payment
Date to the Person in whose name such Registered Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date with respect to such succeeding Interest Payment Date shall have
been originally issued. Unless otherwise specified as contemplated by Section
3.01, in case a Bearer Security of any series is surrendered in exchange for a
Registered Security of such series after the close of business (at an office or
agency referred to in Section 3.05) on any Regular Record Date and before the
opening of business (at such office or agency) on the next succeeding Interest
Payment Date, such Bearer Security shall be surrendered without the coupon
relating to such Interest Payment Date and interest will not be payable or
deliverable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable or deliverable
only to the Holder of such coupon when due in accordance with the provisions of
this Indenture.
Any interest on any Registered Security which is payable or
deliverable, but is not punctually paid, delivered or duly provided for, on any
Interest Payment Date (herein called "Defaulted Interest") shall forthwith cease
to be payable or deliverable to the Holder on the relevant Regular Record Date
by virtue of his having been such Holder, and such Defaulted Interest may be
paid or delivered by the Company, at its election in each case, as provided in
clause (i) or clause (ii) below.
(i) The Company may elect to make payments or deliveries of
any Defaulted Interest to the Persons in whose names any such
Registered Securities (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the
payment or delivery 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 or delivered on
each Registered Security and the date of the proposed payment or
delivery, and at the same time the Company shall deposit with the
Trustee an amount of money or other property equal to the aggregate
amount proposed to be paid or delivered in respect to such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment or delivery,
such money or other property 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 or delivery of such Defaulted Interest which shall be
not more than 15 nor less than 10 days prior to the date of the
proposed payment or delivery and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment or
delivery. 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 or delivery of such Defaulted
Interest and the Special Record Date therefor to be mailed,
first-class, postage prepaid, to each Holder at his address as it
appears in the Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment or delivery of such
Defaulted Interest and the Special Record Date therefor having been
mailed as aforesaid, such Defaulted Interest shall be paid or delivered
to the Persons in
<PAGE> 40
whose names such Registered Securities (or their respective Predecessor
Securities) are registered on such Special Record Date and shall no
longer be payable or deliverable pursuant to the following clause (ii).
In case a Bearer Security of any series is surrendered at the office or
agency in a Place of Payment for such series in exchange for a
Registered Security of such series after the close of business at such
office or agency on any Special Record Date and before the opening of
business at such office or agency on the related proposed date of
payment or delivery of Defaulted Interest, such Bearer Security shall
be surrendered without the coupon relating to such proposed date for
payment or delivery and Defaulted Interest will not be payable or
deliverable on such proposed date for payment or delivery in respect of
the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
(ii) The Company may make payment or delivery of any Defaulted
Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities, with
respect to which there exists such default, may be listed, and upon
such notice as may be required by such exchange, if, after notice given
by the Company to the Trustee of the proposed payment or delivery
pursuant to this clause, such payment shall be deemed practicable by
the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of, or in exchange
for, or in lieu of, any other Security shall carry the right to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.08. Persons Deemed Owners.
Title to any Bearer Security, any coupons appertaining thereto and any
temporary global Security in bearer form shall pass by delivery.
Prior to due presentment for registration of transfer of any Registered
Security, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment or delivery of principal of,
premium, if any, Maturity Consideration in respect of, and (subject to Section
3.07) interest on such Security, and for all purposes whatsoever, whether or not
such Security is overdue, and neither the Company, the Trustee nor any agent of
the Company or the Trustee shall be affected by notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security and the bearer of any coupon, as the
case may be, as the absolute owner of such Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or coupon be
<PAGE> 41
overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
SECTION 3.09. Cancellation.
All Securities and coupons surrendered for payment, registration of
transfer, exchange, repayment or redemption shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee. All Securities so delivered
or surrendered directly to the Trustee for any such purpose, shall be promptly
canceled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all Securities
so delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture or such
Securities. All canceled Securities or coupons held by the Trustee shall be
disposed of by the Trustee in accordance with its customary procedures and the
Trustee shall deliver a certificate of such disposition to the Company.
SECTION 3.10. Computation of Interest.
Interest on the Securities of each series shall be computed as shall be
specified as contemplated by Section 3.01.
SECTION 3.11. Forms of Certification.
(i) Whenever any provision of this Indenture or the forms of
Securities contemplate that certifications be given by a Person
entitled to receive a Bearer Security, such certification shall be
provided substantially in the form of Exhibit A hereto, with only such
changes as shall be approved by the Company.
(ii) Whenever any provision of this Indenture or the forms of
Securities contemplate that certification be given by Euro-clear and
CEDEL S.A. in connection with the exchange of a portion of a temporary
global Security, such certification shall be provided substantially in
the form of Exhibit B hereto, with only such changes as shall be
approved by the Company.
(iii) Whenever any provision of the Indenture or the forms of
Securities contemplate that certification be given by Euro-clear and
CEDEL S.A. in connection with payment of interest with respect to a
temporary global Security prior to the related Exchange Date, such
certification shall be provided substantially in the form of Exhibit C
hereto, with only such changes as shall be approved by the Company.
(iv) Whenever any provision of the Indenture or the forms of
securities contemplate that certification be given by a beneficial
owner of a portion of a temporary global Security in connection with
payment or delivery of interest in
<PAGE> 42
respect to a temporary global Security prior to the related Exchange
Date, such certification shall be provided substantially in the form of
Exhibit D hereto, with only such changes as shall be approved by the
Company.
SECTION 3.12. Payment in Currencies.
(i) Unless otherwise provided in Section 3.01 hereof, subject
to Subsection (ii) hereof, payment of the principal of (and premium, if
any), Maturity Consideration if the Maturity Consideration is to be
satisfied by a cash payment, and interest on the Securities of any
series, whether or not denominated in a Foreign Currency pursuant to
Section 3.01 shall be made in U.S. dollars. If a series of Securities
is denominated in a Foreign Currency, the amount receivable in U.S.
dollars by the Holders of such series shall be determined as provided
in Section 3.12(iii).
(ii) If authorized pursuant to Section 3.01, any Holder of a
Security of a series of Securities denominated in a Foreign Currency
may elect to receive payments in the Foreign Currency in which such
Security is denominated pursuant to Section 3.01. A Holder may make
such election by delivering to the Trustee a written notice thereof, in
such form as may be acceptable to the Trustee, not later than the close
of business on the Regular Record Date or Special Record Date, as the
case may be, immediately preceding the applicable Interest Payment Date
or the fifteenth day immediately preceding the Maturity of an
installment of principal, as the case may be. Such election shall
remain in effect with respect to such Holder until such Holder delivers
to the Trustee a written notice rescinding such election; PROVIDED,
HOWEVER, that any such notice must be delivered to such Trustee not
later than the close of business on the Regular Record Date or Special
Record Date, as the case may be, immediately preceding the next
Interest Payment Date or the fifteenth day immediately preceding the
Maturity of an installment of principal, as the case may be, in order
to be effective for the payment to be made thereon; and PROVIDED,
FURTHER, that no such rescission may be made with respect to payments
to be made on any Security with respect to which notice of redemption
has been given by the Company pursuant to Article Four. The Trustee
will advise the Company in writing of the aggregate amount payable in a
Foreign Currency pursuant to an election under this subsection (ii).
(iii) For each series of Securities denominated in a Foreign
Currency, the Exchange Rate Agent shall deliver to the Company and to
the Trustee, by personal delivery, telecopy or other means reasonably
acceptable to such Trustee, not later than the close of business on the
second Business Day prior to the date each payment is required to be
made with respect to the Securities of such series, a copy of the
Exchange Rate Officer's Certificate relating to each such Foreign
Currency.
<PAGE> 43
(iv) If the Foreign Currency, other than a composite currency,
in which a series of Securities is denominated is not available to the
Company for making payment thereof due to the imposition of exchange
controls or other circumstances beyond the control of the Company, then
with respect to each date for the payment of principal of (and premium,
if any) and interest on such series of Securities occurring after the
last date on which the Foreign Currency was so used, all payments with
respect to the Securities of any such series shall be made in U.S.
dollars. If payment is to be made in U.S. dollars to the Holders of any
such series of Securities pursuant to the provisions of the preceding
sentence, then the amount to be paid in U.S. dollars on a payment date
by the Company to the Trustee for the series and by such Trustee or any
Paying Agent to Holders of Securities of such series shall be
determined by an Exchange Rate Agent and shall be equal to the sum
obtained by converting the specified Foreign Currency into U.S. dollars
at the applicable Market Exchange Rate set forth in an Exchange Rate
Officer's Certificate.
(v) All decisions and determinations of the Company or an
Exchange Rate Agent regarding the Exchange Rate, Market Exchange Rate
or conversion of Foreign Currency into U.S. dollars pursuant to Section
1.04(vii) or this Subsection shall, in the absence of manifest error,
be conclusive for all purposes and irrevocably binding upon the Company
(in the case of a determination by an Exchange Rate Agent), the Trustee
for the series, any Paying Agent and all Holders of the Securities of
such series. If a Foreign Currency (other than a composite currency) in
which payment of a series of Securities may be made, pursuant to
Subsection (i) above, is not available to the Company for making
payments thereof due to the imposition of exchange controls or other
circumstances beyond the control of the Company, the Company, after
learning thereof, will give notice thereof to the Trustee immediately
(and the Trustee promptly thereafter will give notice to the Holders of
such series denominated in a Foreign Currency in the manner provided in
Section 1.06) specifying the last date on which such Foreign Currency
was used for the payment of principal of (and premium, if any) or
interest on such series of Securities. In the event any composite
currency in which a Security is denominated or payable ceases to be
used for the purposes for which it was established or is not available
due to circumstances beyond the control of the Company, the Company,
after learning thereof, will give notice thereof to the Trustee for
such series immediately (and such Trustee thereafter will give notice
to the Holders of such series of Securities denominated in a Foreign
Currency in the manner provided in Section 1.06). In the event of any
subsequent change in any Component of any composite currency in which a
series of securities is denominated or payable, the Company, after
learning thereof, will give notice to the Trustee for the series
similarly (and such Trustee promptly thereafter will give notice to the
Holders in the manner provided in Section 1.06). The Trustee for such
series shall be fully justified and protected in relying and acting
upon the information so received by it from the Company and from any
Exchange Rate Agent and shall not otherwise have any duty or
<PAGE> 44
obligation to determine such information independently. The Company
agrees to appoint and maintain an Exchange Rate Agent as is necessary
for the performance of the obligations of the Exchange Rate Agent
specified herein.
SECTION 3.13. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; PROVIDED that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the "CUSIP" numbers.
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 4.01. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and, except as
otherwise specified as contemplated by Section 3.01 for Securities of any
series, in accordance with this Article.
SECTION 4.02. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities redeemable at the
option of the Company shall be evidenced by a Board Resolution. In case of any
redemption at the election of the Company, the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date and
of the principal amount or amount of Maturity Consideration of Securities of
such series to be redeemed. In the case of any redemption of Securities prior to
the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction.
SECTION 4.03. Selection by Security Registrar of Securities to be
Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Security Registrar from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Security Registrar shall deem fair and appropriate and which may provide
for the selection for redemption of portions of the principal amount or issue
price of Securities of such series of a denomination equal to or larger than the
minimum authorized
<PAGE> 45
denomination for Securities of such series. Unless otherwise provided by the
terms of the Securities of any series the denominations of the Securities so
selected for partial redemption shall be, in the case of Registered Securities,
equal in value to $100,000 or an integral multiple of $1,000 in excess thereof,
or, in the case of Bearer Securities, equal to $10,000 or $50,000, and the
principal amount of any such Securities which remains outstanding shall not be
less than the minimum authorized denomination for Securities of such series.
The Security Registrar shall promptly notify the Company, the Trustee
and the Co-Security Registrar, if any, in writing of the Securities selected for
redemption and, in the case of any Security selected for partial redemption, the
principal amount or Maturity Consideration thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal or Maturity Consideration of such Security which has
been or is to be redeemed.
SECTION 4.04. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
1.06, not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed.
All notices of redemption shall identify the Securities to be redeemed
(including CUSIP numbers) and shall state:
(i) the Redemption Date,
(ii) the Redemption Price,
(iii) if less than all Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption, the respective principal amounts) of the particular
Securities to be redeemed,
(iv) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed, and that
interest, if any, thereon shall cease to accrue on and after said date,
(v) the place or places where such Securities, together in the
case of Bearer Securities with all remaining coupons appertaining
thereto, if any, maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price, and
(vi) that the redemption is for a sinking fund, if such is the
case.
<PAGE> 46
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, on Company Request, by the Trustee
in the name and at the expense of the Company. 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, a failure to give
such notice by mail or any defect in the notice to the Holder of any Security
designated for redemption as a whole or in part shall not affect the validity of
the proceedings for the redemption of any other Security.
SECTION 4.05. Deposit of Redemption Price.
Prior to the opening of business on any Redemption Date, the Company
shall deposit or cause to be deposited with the Trustee or with a Paying Agent
(or, if the Company is acting as its own Paying Agent, segregate and hold in
trust as provided in Section 5.03) an amount of money sufficient to pay the
Redemption Price of all the Securities which are to be redeemed on that date.
SECTION 4.06. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified and from and after such date (unless the
Company shall default in the payment of the Redemption Price) such Securities
shall cease to bear interest and the coupons for such interest appertaining to
any Bearer Securities so to be redeemed, except to the extent provided below,
shall be void. Upon surrender of any such Securities for redemption in
accordance with said notice, such Securities shall be paid by the Company at the
Redemption Price; provided, however, that installments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only at an office or agency located outside the United States and,
unless otherwise specified as contemplated by Section 3.01, only upon
presentation and surrender of coupons for such interest. Installments of
interest on Registered Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such on the close of business on the
relevant Regular Record Dates according to their terms and the provisions of
Section 3.07.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may required to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted from the
Company; provided, however, that interest represented by coupons shall be
payable only at an office or agency located outside the United States and,
unless otherwise specified as contemplated by Section 3.01, only upon
presentation and surrender of those coupons.
<PAGE> 47
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid, bear interest
from the Redemption Date at the rate borne by such Security, or as otherwise
provided in such Security.
SECTION 4.07. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at the office or agency of the Company in a Place of Payment therefor (with, if
the Company or the Security Registrar so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder of such Security or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge to the Holder, a new Security or Securities of the same series and Stated
Maturity of any authorized denominations as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
SECTION 4.08. Redemption Suspended During Event of Default.
The Trustee shall not redeem any Securities (unless all Securities then
Outstanding are to be redeemed) or commence the giving of any notice of
redemption of Securities during the continuance of any Event of Default known to
the Trustee, except that where the giving of notice of redemption of any
Securities shall theretofore have been made, the Trustee shall, subject to the
provisions of Section 14.04, redeem such Securities, provided funds are
deposited with it for such purpose. Subject to the rights of the holders of
Senior Indebtedness, except as aforesaid, any moneys theretofore or thereafter
received by the Trustee shall, during the continuance of such Event of Default,
be held in trust for the benefit of the Securityholders and applied in the
manner set forth in Section 7.06; provided, however, that in case such Event of
Default shall have been waived as provided herein or otherwise cured, such
moneys shall thereafter be held and applied in accordance with the provisions of
this Article.
ARTICLE FIVE
COVENANTS
SECTION 5.01. Payment of Principal, Premium, if any, the Maturity
Consideration and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay or deliver the principal of,
premium, if any, Maturity Consideration and interest on the Securities of such
series and any additional amounts described in Section 5.04 in accordance with
the terms of the Securities of such series, any coupons appertaining thereto and
this Indenture. Unless otherwise specified as contemplated by Section 3.01 with
respect to any series of Securities, any interest due on Bearer Securities on or
before Maturity shall be payable or deliverable only outside the United States
upon presentation and surrender of the several
<PAGE> 48
coupons for such interest installments as are evidenced thereby as they
severally mature. Any payment by the Company to a Paying Agent hereunder shall
be made in the applicable currency or currencies in which the respective
payments are required to be made.
SECTION 5.02. Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered Securities,
the Company will maintain in each Place of Payment for any series of Securities
an office or agency where Securities of that series may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities of that series and this Indenture may
be served. The Company will give prompt written notice to the Trustee of the
location, and of any change in the location, of such office or agency. If
Securities of a series may be issuable as Bearer Securities, the Company will
maintain an office or agency where any Securities of that series may be
presented or surrendered for payment (A) in the Borough of Manhattan, The City
of New York, (B) the City of Boston, Massachusetts, where any Securities of that
series may be surrendered for registration of transfer, where Securities of that
series may be surrendered for exchange and where notices and demands to or upon
the Company in respect of the Securities of that series and this Indenture may
be served, (C) subject to any laws or regulations applicable thereto, in a Place
of Payment for that series which is located outside the United States, an office
or agency where Securities of that series and related coupons may be presented
and surrendered for payment (including payment of any additional amounts payable
on Securities of that series pursuant to Section 5.04); provided, however, that
if the Securities of that series are listed on The International Stock Exchange
of the United Kingdom and the Republic of Ireland Limited or the Luxembourg
Stock Exchange or any other stock exchange located outside the United States and
such stock exchange shall so require, the Company will maintain a Paying Agent
for the Securities of that series in London or Luxembourg or any other required
city located outside the United States, as the case may be, so long as the
Securities of that series are listed on such exchange, and (D) subject to any
laws or regulations applicable thereto, in a Place of Payment for such series
located outside the United States an office or agency where any Registered
Securities of that series may be surrendered for registration of transfer, where
Securities of that series may be surrendered for exchange and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of any such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency in respect of any series of Securities or shall fail to furnish
the Trustee with the address thereof, such presentations, and surrenders of
Securities of that series may be made and notices and demands may be made or
served at the Corporate Trust Office of the Trustee, except that the Bearer
Securities of that series and the related coupons may be presented and
surrendered for payment (including payment of any additional amounts payable on
Bearer Securities of that series pursuant to Section 5.04) at the place
specified for the purpose as contemplated by Section 3.01, and the Company
hereby appoints the Trustee as its agent to receive such respective
presentations, surrenders, notices and demands. Notwithstanding any other
provisions, to the contrary, the Company at its option may make payment of
principal, (and premium if any) and interest with respect to Registered
Securities by check mailed to the address of the Person entitled thereto, as
such address appears on the registry books of the Company.
<PAGE> 49
No payment or delivery of principal, premium, Maturity Consideration or
interest on Bearer Securities shall be made at any office or agency of the
Company 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.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered from any or all of such purposes specified above in this Section
and may from time to time rescind such designations; PROVIDED, HOWEVER, that no
such designation, appointment or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in each Place of
Payment for Securities of any series for such purposes. The Company will give
prompt written notice to the Trustee for such series of any such designation or
rescission and of any change in the location of any such other office or agency.
Unless and until the Company rescinds such appointment, the Company hereby
appoints the Trustee, acting through its Corporate Trust Office, as its Paying
Agent in The City of New York with respect to all series of Securities having a
Place of Payment in The City of New York.
SECTION 5.03. Money or Other Property for Security Payments and
Deliveries to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent for any
series of Securities, it will, on or before each due date of the principal of,
premium, if any, Maturity Consideration or interest on any of the Securities of
such series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum or other property sufficient to pay or deliver the principal,
premium, if any, Maturity Consideration or interest so becoming due until such
sums or other property shall be paid to such Persons or otherwise disposed of as
herein provided, and will promptly notify the Trustee of its action or failure
so to act. If the Company chooses to act as its own Paying Agent, the Company
shall notify the Trustee 15 Business Days prior to such action.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to the opening of business on each due date
of the principal of, premium, if any, Maturity Consideration or interest on any
Securities of such series, deposit with a Paying Agent a sum or other property
sufficient to pay or deliver the principal, premium, if any, Maturity
Consideration or interest so becoming due, such sum or other property to be held
in trust for the benefit of the Persons entitled to such principal, premium, if
any, Maturity Consideration or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
The Company will cause each Paying Agent other than the Trustee for any
series of Securities to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee subject to the provisions
of this Section, that such Paying Agent will
(i) hold all sums or other property held by it for the payment
of principal of, premium, if any, Maturity Consideration or interest on
Securities of
<PAGE> 50
such series in trust for the benefit of the Persons entitled thereto
until such sums or other property shall be paid or delivered to such
Persons or otherwise disposed of as herein provided;
(ii) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of such series) in the making of
any payment or delivery of principal of, premium, if any, Maturity
Consideration or interest on the Securities of such series; and
(iii) at any time during the continuance of any such Default,
upon the written request of the Trustee, forthwith pay or deliver to
the Trustee all sums or other property so held in trust by such Paying
Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay or
deliver, or by Company Order direct any Paying Agent to pay or deliver, to the
Trustee all sums or other property held in trust by the Company or such Paying
Agent, such sums or other property to be held by the Trustee upon the same
trusts as those upon which such sums or other property were held by the Company
or such Paying Agent; and upon such payment or delivery by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further liability with
respect to such money or other property.
Any money or other property deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment or delivery of the
principal of, premium, if any, Maturity Consideration or interest on any
Security of any series and remaining unclaimed for two years after such
principal, premium, if any, Maturity Consideration or interest has become due
and payable shall be paid or delivered to the Company, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment or delivery thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money or other property, and all liability of
the Company as trustee thereof, shall thereupon cease; provided, however, that
the Trustee or such Paying Agent, before being required to make any such
repayment or delivery, may at the expense of the Company cause to be published
once, in an Authorized Newspaper in each Place of Payment, notice that such
money or other property remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money or other property then remaining will be
repaid or delivered to the Company.
SECTION 5.04. Additional Amounts.
If the Securities of a series provide for the payment of additional
amounts, the Company will pay to the Holder of any Security of any series or any
coupon appertaining thereto additional amounts as provided therein. Whenever in
this Indenture there is mentioned, in any context, the payment of the principal
of (or premium, if any) or interest on, or in respect to, any Security of any
series or payment of any related coupon or the net proceeds received on the sale
or exchange
<PAGE> 51
of any Securities of any series, such mention shall be deemed to include mention
of the payment of additional amounts provided for in this Section to the extent
that, in such context, additional amounts are, were or would be payable in
respect thereof pursuant to the provisions of this Section and express mention
of the payment of additional amounts (if applicable) in any provisions hereof
shall not be construed as excluding additional amounts in those provisions
hereof where such express mention is not made.
If the Securities of a series provided for the payment of additional
amounts, at least 15 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment or delivery of
principal (and premium, if any) or Maturity Consideration is made), and at least
15 days prior to each date of payment or delivery of principal of (and premium,
if any) or Maturity Consideration or interest if there has been any change with
respect to the matters set forth in the below-mentioned Officers' Certificate,
the Company will furnish the Trustee and the Company's principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment or delivery of principal of (and premium, if any) or Maturity
Consideration or interest on the Securities of that series shall be made to
Holders of Securities of that series or any related coupons who are United
States Aliens without withholding for or on account of any tax, assessment or
other governmental charge described in the Securities of that series. If any
such withholding shall be required, then such Officers' Certificate shall
specify by country the amount, if any, required to be withheld on such payments
or deliveries to such Holders of Securities or coupons and the Company will pay
to the Trustee or such Paying Agent the additional amounts required by this
Section. The Company covenants to indemnify the Trustee and any Paying Agent
for, and to hold them harmless against any loss, liability or expense reasonably
incurred without negligence or bad faith on their part arising out of or in
connection with actions taken or omitted by any of them in reliance on any
Officers' Certificate furnished pursuant to this Section.
SECTION 5.05. Corporate Existence.
Subject to Article Ten, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, and that of each Subsidiary and the rights (charter and statutory)
and franchises of the Company and its Subsidiaries; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Company shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company and its Subsidiaries considered as a
whole and that the loss thereof is not disadvantageous in any material respect
to the Holders.
SECTION 5.06. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
<PAGE> 52
properly and advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent the Company from discontinuing the
operation and maintenance of any of such properties, or disposing of any of them
if such discontinuance or disposal is, in the judgment of the Company or of the
Subsidiary concerned, desirable in the conduct to its business or the business
of any Subsidiary and not disadvantageous in any material respect to the
Holders.
SECTION 5.07. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings and the Company shall have set aside on its books adequate reserves
with respect thereto (segregated to the extent required by generally accepted
accounting principles).
SECTION 5.08. Statement as to Compliance.
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, a brief certificate,
which need not comply with Section 1.02, signed by the principal executive
officer, the principal financial officer or the principal accounting officer of
the Company, covering the period from the date of issuance of such Securities to
the end of the calendar year in which such Securities were issued in the case of
the first such certificate, and covering the preceding calendar year, in the
case of each subsequent certificate, stating, as to each signer thereof, that
(1) a review of the activities of the Company during
such year and of performance under this Indenture has been
made under his supervision, and
(2) to the best of his knowledge, based on such
review, (a) the Company has complied with all conditions and
covenants on its part contained in this Indenture throughout
such year, or, if there has been a Default by the Company in
the performance, observance or fulfillment of any such
condition or covenant, specifying each such Default known to
him and the nature and status thereof, and (b) no event has
occurred and is continuing which is, or after notice or lapse
of time or both would become, an Event of Default, or, if such
an event has occurred and is continuing, specifying each such
event known to him and the nature and status thereof.
<PAGE> 53
For the purpose of this Section 5.08, compliance shall be determined
without regard to any grace period or requirement of notice provided pursuant to
the terms of this Indenture.
SECTION 5.09. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Section 5.05 to 5.07, inclusive, with
respect to the Securities of any series if before the time for such compliance
the Holders of at least 50% in principal amount, or if such Securities are not
payable at Maturity for a fixed principal amount, 50% of the aggregate issue
price of the Outstanding Securities of such series shall, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee for such series in respect of any
such term, provision or condition shall remain in full force and effect.
SECTION 5.10. Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end of each
calendar year (i) a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on Outstanding
Securities as of the end of such year and (ii) such other specific information
relating to such original issue discount as may then be relevant under the
Internal Revenue Code of 1986, as amended from time to time.
SECTION 5.11. Statement by Officers as to Default.
The Company shall deliver to the Trustee, as soon as possible and in
any event within five days after the Company becomes aware of the occurrence of
any Event of Default or an event which, with notice or the lapse of time or
both, would constitute an Event of Default, an Officers' Certificate setting
forth the details of such Event of Default or default and the action which the
Company proposes to take with respect thereto.
ARTICLE SIX
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 6.01. Company to Furnish Trustee Names and Addresses of
Holders.
The Company will furnish or cause to be furnished to the Trustee for
each series
(a) semiannually, not more than 15 days
after each Regular Record Date, a list, in such form
as the Trustee may reasonably require, containing the
names and addresses of the Holders of Registered
Securities as of such Regular Record Date, and
<PAGE> 54
(b) at such other times as the Trustee may
request in writing, within 30 days after 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 requested to be
furnished,
except that no such lists need to be furnished so long as the trustee is in
possession thereof by reason of its acting as Security Registrar for such
series.
SECTION 6.02. Preservation of Information; Communications to Holders.
(i) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in
the most recent list furnished to the Trustee as provided in Section
6.01 and the names and addresses of Holders of Securities received by
the Trustee in its capacity as the Security Registrar, if so acting.
The Trustee may destroy any list furnished to it as provided in Section
6.01 upon receipt of a new list so furnished.
(ii) If 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
six months preceding the date of such application, and such application
states that the applicants desire to communicate with other Holders of
a Security of such series or with the 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 five Business Days after the receipt of such
application, at its election, either
(a) afford such applicants access to the
information preserved at the time by the Trustee in
accordance with Section 6.02(i), or
(b) inform such applicants as to the
approximate number of Holders of Securities 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 Section 6.02(i), and as to the approximate cost
of mailing such Holders 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 Holder of a Security of such series or all Holders of Securities,
as the case may be, whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section 6.02(i), a copy
of
<PAGE> 55
the form of proxy or other communication which is specified in such request,
with reasonable promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the reasonable expenses
of mailing, unless, within five days after such tender, the Trustee shall mail
to such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the best interests of the Holders
of Securities 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 Holders of Securities 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.
(iii) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company
nor the Trustee 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 Section 6.02(ii), 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 Section 6.02(ii).
SECTION 6.03. Reports By Trustee.
(i) The term "reporting date", as used in this Section, shall
be June 15 of each year, commencing with the later of June 15, 2000 or
the first June 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 Registered Securities as provided in
TIA Section 313(c), as their names and addresses appear in the Security
Register, a brief report dated as of such reporting date if required by
TIA Section 313(a).
(ii) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock
exchange, if any, upon which the Securities are listed, with the
Commission and with the Company. The Company will promptly notify the
Trustee when the Securities are listed on any stock exchange and of any
delisting thereof.
<PAGE> 56
SECTION 6.04. Reports by the Company.
The Company shall:
(i) 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 of
Section 15(d) of the Securities Exchange Act of 1934, as amended, or,
if the Company is not required to file information, documents or
reports pursuant to either of said Sections, then it will 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 Securities Exchange Act of
1934, as amended, in respect of security listed and registered on a
national exchange as may be prescribed from time to time in such rules
and regulations;
(ii) file with the Trustee and the Commission, in accordance
with 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
of this Indenture as may be required from time to time by such rules
and regulations; and
(iii) transmit by all to Holders of Securities, in the manner
and to the extent provided in Section 6.03(ii), 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
Paragraphs (i) and (ii) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
<PAGE> 57
ARTICLE SEVEN
REMEDIES
SECTION 7.01. Events of Default.
"Event of Default", with respect to any series of Securities, wherever
used herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body),
unless it is either inapplicable to a particular series or it is specifically
deleted or modified in the supplemental indenture under which such series of
Securities is issued or in the form of Security for such series:
(i) the entry of a decree or order by a court having
jurisdiction in the premises granting relief in respect of the Company
in an involuntary case under the Federal Bankruptcy Code, adjudging the
Company a bankrupt, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect
of the Company under the Federal Bankruptcy Code or any other
applicable federal or state bankruptcy, insolvency or other similar
law, or appointing a receiver, liquidator, custodian, assignee,
trustee, sequestrator (or other similar official) of the Company or of
substantially all of its properties, or ordering the winding up or
liquidation of its affairs under any such law, and the continuance of
any such decree or order unstayed and in effect for a period of 60
consecutive days; or
(ii) the institution by the Company of proceedings to be
adjudicated a bankrupt, or the consent by the Company to the
institution of bankruptcy proceedings against it, or the filing by the
Company of a petition or answer or consent seeking reorganization or
relief under the Federal Bankruptcy Code or any other applicable
federal or state bankruptcy, insolvency or other similar law, or the
consent by the Company to the filing of any such petitioner to the
appointment of a receiver, liquidator, custodian, assignee, trustee,
sequestrator (or other similar official) of the Company, or of
substantially all of its respective properties, under any such law; or
(iii) any other Event of Default provided with respect to
Securities of that series.
SECTION 7.02. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to any series of Securities for
which there are Securities Outstanding occurs and is continuing, then, and in
every such case, the Trustee or the Holders of not less than 25% in principal
amount or, if such Securities are not payable at Maturity for a fixed principal
amount, 25% of the aggregate issue price of the Outstanding
<PAGE> 58
Securities of such series may declare the principal or Maturity Consideration of
all of the Securities of such series (or, if the 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) to be immediately due and payable or
deliverable, by a notice in writing to the Company (and to the Trustee if given
by Securityholders), and upon any such declaration the same shall become
immediately due and payable or deliverable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money or other property due or deliverable has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in principal amount or, if such Securities are not payable at Maturity for a
fixed principal amount, the aggregate issue price of the Outstanding Securities
of such series, by written notice to the Company and the Trustee, may rescind
and annul such declaration and its consequences if
(i) the Company has paid or deposited with, or delivered to,
the Trustee a sum or other property sufficient to pay
(a) all overdue installments of interest on
all Securities of such series,
(b) the principal of, premium, if any, and
Maturity Consideration on any Securities of such
series which have become due otherwise than by such
declaration of acceleration and interest thereon at
the rate or rates prescribed therefor by the terms of
the Securities of such series,
(c) to the extent that payment of such
interest is lawful, interest upon overdue
installments of interest at the rate or rates
prescribed therefor by the terms of the Securities of
such series, and
(d) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, the
Security Registrar, any Paying Agent, and their
agents and counsel; and
(ii) all other Defaults with respect to Securities of that
series, other than the non-payment of the principal of, or non-delivery
of the Maturity Consideration of, Securities of that series which have
become due solely by such declaration of acceleration, have been cured
or waived as provided in Section 7.13.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
<PAGE> 59
SECTION 7.03. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(i) default is made in the payment of any installment of
interest on any Security of any series when such interest becomes due
and payable and such default continues for a period of 30 days, or
(ii) default is made in the payment or delivery of the
principal of or premium, if any, or Maturity Consideration on any
Security of any series at the Maturity thereof,
the Company will, upon demand of the Trustee, pay or deliver to it, for the
benefit of the Holder of any such Security or coupon appertaining thereto, if
any, the whole amount or other property then due and payable or deliverable on
any such Security or coupon for principal, premium, if any, Maturity
Consideration and interest, with interest upon the overdue principal and
premium, if any, Maturity Consideration and (to the extent that payment of such
interest shall be lawful) upon overdue installments of interest, at the rate or
rates prescribed therefor by the terms of any such Security; and, in addition
thereto, such further amount as shall be sufficient to cover the reasonable
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel and
any other amounts due the Trustee under Section 8.07.
If the Company fails to pay or deliver such amounts and/or other
consideration forthwith upon such demand, the Trustee, in its own name and as
trustee of an express trust, may institute a judicial proceeding for the
collection of the sums or other property so due and unpaid or not delivered, and
may prosecute such proceeding to judgment or final decree, and may enforce the
same against the Company or any other obligor upon such Securities and collect
the moneys or other property adjudged or decreed to be payable or deliverable in
the manner provided by law out of the property of the Company or any other
obligor upon such Securities, wherever situated.
If a Default with respect to any series of Securities occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 7.04. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjudgment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal or Maturity
<PAGE> 60
Consideration of any Securities shall then be due and payable or deliverable as
therein expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of overdue
principal, premium, if any, Maturity Consideration or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal, premium, if any, Maturity Consideration and interest owing
and unpaid or undelivered in respect of the Securities and to file such
other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel and any other amounts due the Trustee under Section
8.07) and of the Securityholders allowed in such judicial proceeding,
and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same,
and any receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each
Securityholder to make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments or deliveries directly to
the Securityholders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section
8.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder of a Security or
coupon in any such proceeding.
SECTION 7.05. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or under the
Securities of any series or coupons (if any) appertaining thereto, may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities of such series or coupons appertaining thereto or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and any other amounts due the Trustee under Section 8.07,
be for the ratable benefit of the Holders of the Securities of such series and
coupons appertaining thereto in respect of which such judgment has been
recovered.
SECTION 7.06. Application of Money or Other Property Collected.
<PAGE> 61
Subject to the rights of holders of Senior Indebtedness, any money or
other property collected by the Trustee with respect to a series of Securities
pursuant to this Article shall be applied in the following order, at the date or
dates fixed by the Trustee, and, in case of the distribution of such money or
other property on account of principal (or premium, if any), Maturity
Consideration or interest upon presentation of the Securities of such series or
coupons appertaining thereto, if any, or both, as the case may be, and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 8.07;
SECOND: To the payment of the amounts then due and
unpaid upon the Securities of such series and coupons for principal of
(and premium if any), Maturity Consideration and interest,
respectively. Subject to 3.12(iv)(b), the Holders of each series of
Securities denominated in a Foreign Currency shall be entitled to
receive a ratable portion of the amount determined by an Exchange Rate
Agent by converting the principal amount Outstanding of such series of
Securities in the currency in which such series of Securities is
denominated into U.S. dollars at the Exchange Rate (as determined by
the Exchange Rate Agent) as of the date of declaration of acceleration
of the Maturity of the Securities (or, if there is no such rate on such
date for the reasons specified in Section 3.12(iv)(a), such rate of the
date specified in such section).
SECTION 7.07. Limitation on Suits.
No Holder of any Security of any series or any related coupons shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(i) such Holder has previously given written notice to the
Trustee of a continuing Default with respect to Securities of such
series;
(ii) the Holders of not less than a majority in principal
amount or, if such Securities are not payable at Maturity for a fixed
principal amount, the aggregate issue price of the Outstanding
Securities of such series shall have made written request to the
Trustee to institute proceedings in respect of such Default in its own
name as Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee
indemnity satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(iv) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
<PAGE> 62
(v) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount or, if such Securities are not payable at
Maturity for a fixed principal amount, the aggregate issue price of the
Outstanding Securities of such series;
it being understood and intended that no one or more Holders of
Securities of such 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 Holders of
Securities of such series or to obtain or to seek to obtain priority or
preference over any other such Holders or to enforce any right under
this Indenture, except in the manner herein provided and for the equal
and ratable benefit of all the Holders of Securities of such series.
The following events shall be "Defaults" with respect to any series of
Securities under this Indenture:
(a) an Event of Default with respect to such
series specified in Section 7.01; or
(b) default in the payment of principal of
or premium, if any, on any Securities of such series
at its Maturity; or
(c) default in the delivery or payment of
Maturity Consideration when due; or
(d) default in the payment of any interest
upon any Securities of such series as and when the
same shall become due and payable, and continuance of
such default for a period of 30 days; or
(e) failure on the part of the Company to
duly observe or perform any of the other covenants or
agreements on its part in the Securities of such
series or in this Indenture and continuance of such
failure for a period of sixty days after the date on
which written notice of such failure, requiring the
Company to remedy the same and stating that such
notice is a "Notice of Default" hereunder, shall have
been given by registered mail to the Company by the
Trustee, or to the Company and the Trustee by the
holders of at least 25% in aggregate principal amount
or, if such Securities are not payable at Maturity
for a fixed principal amount, 25% of the aggregate
issue price, of the Securities of such series at the
time Outstanding; or
(f) any other Default provided with respect
to Securities of that Series.
<PAGE> 63
SECTION 7.08. Unconditional Right of Securityholders to Receive
Principal, Premium, Maturity Consideration and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security or coupon shall have the right, which is absolute and
unconditional, to receive payment or delivery of the principal of, premium, if
any, Maturity Consideration and (subject to Section 3.07) interest on such
Security or payment of such coupon on the respective Stated Maturities expressed
in such Security or coupon (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of such payment or delivery, and
such rights shall not be impaired without the consent of such Holder.
SECTION 7.09. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or coupon has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, the Trustee and the Holders shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 7.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, lost, destroyed or stolen Securities or coupons in the last
paragraph of Section 3.06, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 7.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security or
coupon to exercise any right or remedy accruing upon any Default shall impair
any such right or remedy or constitute a waiver of any such Default or an
acquiescence therein. Every right and remedy given by this Article by law to the
Trustee or to the Holders may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 7.12. Control by Securityholders.
The Holders of a majority in principal amount, or if such Securities
are not payable at Maturity for a fixed principal amount, the aggregate issue
price of the Outstanding Securities of
<PAGE> 64
any series 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 with respect to the Securities of
such series, provided that:
(i) such direction shall not be in conflict with any rule of
law or with this Indenture,
(ii) the Trustee shall not determine that the action so
directed would be unjustly prejudicial to the Holders of such series
not taking part in such direction,
(iii) subject to the provisions of Section 8.01, the Trustee
shall have the right to decline to follow any such direction if the
Trustee in good faith shall by a Responsible Officer or Officers of the
Trustee, determine that the proceeding so directed would involve the
Trustees in personal liability, and
(iv) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
SECTION 7.13. Waiver of Past Defaults.
The Holders of a majority in principal amount, or if such Securities
are not payable at Maturity for a fixed principal amount, the aggregate issue
price of the Outstanding Securities of any series may on behalf of the Holders
of all the Securities of such series waive any past Default hereunder and its
consequences, except a Default not theretofor cured
(i) in the payment or delivery of the principal of, premium,
if any, Maturity Consideration or interest on any Security of such
series, or
(ii) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any
Default or Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of the Securities of such series under this Indenture;
but no such waiver shall extend to any subsequent or other default or impair any
right consequent thereon.
SECTION 7.14. Undertaking for 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 it
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,
suffered 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 and
expenses, against any party litigant in
<PAGE> 65
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 shall
not apply to any suit instituted by the Company, to any suit instituted by the
Trustee, to any suit instituted by any Securityholder, or group of
Securityholders, holding in the aggregate more than 10% in principal amount, or
if such Securities are not payable at Maturity for a fixed principal amount, the
aggregate issue price of the Outstanding Securities of any series, or to any
suit instituted by any Holder of Securities or coupons for the enforcement of
the payment of the principal of, premium, if any, Maturity Consideration or
interest on any Security or payment of any coupon on or after the respective
Stated Maturities expressed in such Security or coupon (or, in the case of
redemption, on or after the Redemption Date).
SECTION 7.15. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the exercise of
every such power as though no such law had been enacted.
ARTICLE EIGHT
The Trustee
SECTION 8.01. Certain Duties and Responsibilities.
(i) Except during the continuance of a Default with respect to
any series of Securities,
(a) the Trustee undertakes to perform such
duties and only such duties as are specifically set
forth in this Indenture with respect to Securities of
such series, and no implied covenants or obligations
shall be read into this Indenture against the Trustee
with respect to such series; and
(b) in the absence of bad faith on its part,
the Trustee may conclusively rely, with respect to
such series, as to the truth of the statements and
the correctness of the opinions expressed therein
upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificate or
opinions which by any provision hereof are
specifically required to be furnished to the Trustee,
the Trustee
<PAGE> 66
shall be under a duty to examine the same to
determine whether or not they conform to the
requirements of the Indenture.
(ii) In case a Default with respect to any series of
Securities has occurred and is continuing, the Trustee shall exercise
such of the rights and powers vested in it by this Indenture with
respect to such series, and use the same degree of care and skill in
their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(iii) 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) this Subsection shall not be construed
to limit the effect of Subsection (i) of this
Section;
(b) the Trustee shall not be liable for any
error of judgment made in good faith by a Responsible
Officer, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts;
(c) the Trustee shall not be liable with
respect to any action taken, suffered or omitted to
be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal
amount, or if such Securities are not payable at
Maturity for a fixed principal amount, the aggregate
issue price of the Outstanding Securities of any
series, 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 with
respect to Securities of such series; and
(iv) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
(v) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustees shall be subject
to the provisions of this Section.
SECTION 8.02. Notice of Default.
<PAGE> 67
Within 90 days after the occurrence of any default hereunder known to
the Trustee with respect to Securities of any series, the Trustee shall transmit
by mail to all Holders of Securities of such series, entitled to receive reports
pursuant to Section 6.03(ii), notice of such default hereunder, unless such
default shall have been cured or waived; provided, however, that, except in the
case of a default in the payment of the principal of, premium, if any, Maturity
Consideration or interest on any Security of such series, or in the payment of
any sinking fund installment with respect to 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 Holders of Securities of
such series; and provided further, that in the case of any default of the
character specified in Section 7.07(d) with respect to Securities of such
series, no such notice to Holders of Securities of such series shall be given
until at least 30 days after the occurrence thereof. For the purpose of this
Section, the term "default" with respect to Securities of any series, means any
event which is, or after notice or lapse of time, or both, would become, a
Default or Event of Default with respect to Securities of such series.
SECTION 8.03. Certain Rights of Trustee.
Except as otherwise provided in Section 8.01:
(i) the Trustee may conclusively rely and shall be protected
in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, note or other paper or document believed to be
genuine and to have been signed or presented by the proper party or
parties;
(ii) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(iii) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(iv) the Trustee may consult with counsel of its selection and
the written advice of such counsel or any 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
reliance thereon;
(v) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of
<PAGE> 68
the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee security or indemnity satisfactory to the
Trustee against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(vi) 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, direction,
consent, order, bond, note or other paper or document, but the Trustee,
in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company,
personally or by agent or attorney;
(vii) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent (including
Paying Agents) or attorney appointed with due care by it hereunder.
(viii) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture;
(ix) the Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the Trustee
has actual knowledge thereof or unless written notice of any event
which is in fact such a default is received by the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the
Securities and this Indenture; and
(x) the rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right
to be indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder, and to each agent,
custodian and other Person employed to act hereunder.
SECTION 8.04. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. The Trustee
shall not be accountable for the use or application by the Company of Securities
or the proceeds thereof. The Trustee shall not be responsible for the use or
application of any monies received by any Paying Agent other than the Trustee.
<PAGE> 69
SECTION 8.05 May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, the Security
Registrar, any Co-Security Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of Security
and, subject to Section 8.08, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar, Co-Security Registrar or such other agent.
SECTION 8.06. Money or Other Property Held in Trust.
Subject to Section 1.16, money or other property held by the Trustee in
trust hereunder need not be segregated from other funds or other property except
to the extent required by law. The Trustee shall be under no liability for
interest on any money or other property received by it hereunder except as
otherwise agreed with the Company.
SECTION 8.07. Compensation and Reimbursement.
The Company agrees:
(i) to pay to each of the Trustee, any Co-Trustee, the
Security Registrar, any Co-Security Registrar and Paying Agent, as the
case may be, from time to time such compensation as shall be agreed in
writing between the Company and the Trustee for all services rendered
by it hereunder (which compensation shall not be limited by any
provisions of law in regard to the compensation of a trustee of an
express trust);
(ii) except as otherwise expressly provided herein, to pay to
or to reimburse each of the Trustee, any Co-Trustee, the Security
Registrar, any Co-Security Registrar and Paying Agent, as the case may
be, upon its request for all reasonable expenses, disbursements and
advances incurred or made by such entity in accordance with any
provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of such entity's agents and counsel),
except any such expense, disbursement or advances as may be
attributable to its negligence or bad faith; and
(iii) to indemnify each of the Trustee, any Co-Trustee, the
Security Registrar, any Co-Security Registrar and Paying Agent, as the
case may be, for, and to hold it harmless against any and all loss,
liability, damage, claim or expense, including taxes (other than taxes
based on the income of the Trustee) incurred without negligence or bad
faith on the part of such entity, 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 (whether asserted by the
Company, a Holder or any other Person) or liability in connection with
the exercise or performance of any of its powers or duties hereunder.
<PAGE> 70
As security for the performance of the obligations of the Company under
this Section the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of, premium, if any, or interest on
particular Securities. The claims of the Trustee under this Section shall not be
subject to the provisions of Article Fourteen. The obligations of the Company
under this Section shall survive satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 7.01(i) or Section 7.01(ii), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses or
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
SECTION 8.08. Disqualification; Conflicting Interests.
The Trustee for the Securities of any series issued hereunder shall be
subject to the provisions of Section 310(b) of the Trust Indenture Act during
the period of time provided for therein. In determining whether the Trustee has
a conflicting interest as defined in Section 310(b) of the Trust Indenture Act
with respect to the Securities of any series, there shall be excluded this
Indenture with respect to Securities of any particular series of Securities
other than that series.
Nothing herein shall prevent the Trustee from filing with the
Securities and Exchange Commission the application referred to in the second to
last paragraph of Section 310(b) of the Trust Indenture Act.
SECTION 8.09. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee with respect to each series of
Securities hereunder which shall at all times be either
(i) a corporation organized and doing business under the laws
of the United States of America, any State thereof or the District of
Columbia, authorized under such laws to exercise corporate trust powers
and subject to supervision or examination by federal, state or District
of Columbia authority or
(ii) a corporation or other Person organized and doing
business under the laws of a foreign government that is permitted to
act as Trustee pursuant to a rule, regulation or order of the
Commission authorized under such laws to exercise corporate trust
powers, and subject to supervision or examination by authority of such
foreign government or a political subdivision thereof substantially
equivalent to supervision or examination applicable to United States
institutional trustees,
<PAGE> 71
in either case having a combined capital and surplus of at least $50,000,000.
If such corporation or national banking association 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, the combined capital and surplus of such corporation or national
banking association shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. Neither the
Company nor any person directly or indirectly controlling, controlled by, or
under common control with the Company shall serve as trustee for the Securities
of any series issued hereunder. If at any time the Trustee with respect to any
series of Securities shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 8.10. Resignation and Removal; Appointment of Successor.
(i) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor
Trustee under Section 8.11.
(ii) The Trustee may resign with respect to any series of
Securities at any time by giving written notice thereof to the Company.
If an instrument of acceptance by a successor Trustee shall not have
been delivered to the resigning Trustee within 30 days after the giving
of such notice of resignation, the resigning Trustee may petition, at
the expense of the Company, any court of competent jurisdiction for the
appointment of a successor Trustee with respect to Securities of such
series.
(iii) The Trustee may be removed with respect to any series of
Securities at any time by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the
Trustee and to the Company. If an instrument of acceptance by a
successor Trustee shall not have been delivered to the Trustee within
30 days after the giving of such notice of removal, the Trustee being
removed may petition, at the expense of the Company, any court of
competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(iv) If at any time:
(a) the Trustee shall fail to comply with
TIA Section 310(b) with respect to any series of
Securities after written request therefor by the
Company or by any Securityholder who has been a bona
fide Holder of a Security of such series for at least
six months, or
<PAGE> 72
(b) the Trustee shall cease to be eligible
under Section 8.09 with respect to any series of
Securities and shall fail to resign after written
request therefor by the Company or by any Holder of
Securities of such series, or
(c) the Trustee shall become incapable of
acting with respect to any series of Securities 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, (1) the Company by a Board Resolution may remove the
Trustee with respect to such series, or (2) subject to Section 7.14, any
Securityholder who has been a bona fide Holder of a Security of such 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 with respect to such series.
(v) If the Trustee shall resign, be removed or become
incapable of acting with respect to any series of Securities, or if a
vacancy shall occur in the office of Trustee with respect to any series
of Securities for any cause, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of
one or more of all of such series and that at any time there shall be
only one Trustee with respect to other Securities of any particular
series) and shall comply with the applicable requirements of Section
8.11. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee
with respect to such series of Securities shall be appointed by the Act
of the Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the retiring
Trustee with respect to such series, the successor Trustee so appointed
shall forthwith upon its acceptance of such appointment become the
successor Trustee with respect to such series and to the extent
supersede the successor Trustee appointed by the Company with respect
to such series. If no successor Trustee with respect to such series
shall have been so appointed by the Company or the Holders of
Securities of such series and accepted appointment in the manner
hereinafter provided, any Securityholder who has been a bona fide
Holder of a Security of such series for at least six months may, on
behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee
with respect to such series.
(vi) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any
series and each appointment of a successor trustee with respect to the
Securities of any series by
<PAGE> 73
mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of Registered Securities of such series as
their names and addresses appear in the Security Register and, if
Securities of such series are issuable as Bearer Securities, by
publishing notice of such event once in an Authorized Newspaper in each
Place of Payment located outside the United States. Each notice shall
include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust
Office.
SECTION 8.11. Acceptance of Appointment by Successor.
(i) In the case of the appointment hereunder of a successor
Trustee with respect to any series of Securities, every such successor
Trustee so appointed shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such
appointment and thereupon the resignation or removal of the retiring
Trustee shall become effective with respect to all or any series as to
which it is resigning as Trustee, and such successor Trustee, without
any further act, deed, or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect
to all or any such series; but, on request of the Company or such
successor Trustee, such retiring Trustee shall upon payment of its
charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of such retiring
Trustee with respect to all or any such series; and shall duly assign,
transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder with respect to all or any such
series.
(ii) In case of the appointment hereof of a successor Trustee
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 one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall
accept such appointment and which (a) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and to vest
in, each successor Trustee all the rights, powers, trusts and duties of
the retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates, (b)
if the retiring Trustee is not retiring with respect to all Securities,
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 that or those series
as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (c) 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 trusts 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, and upon the
execution and delivery of such supplemental indenture
<PAGE> 74
the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each successor Trustee,
without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request to the
Company or any successor Trustee, such retiring Trustee shall duly
assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates.
(iii) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights,
powers and trusts referred to in paragraph (i) and (ii) of this
Section, as the case may be.
(iv) No successor Trustee with respect to a series of
Securities shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible with
respect to such series under this Article.
SECTION 8.12. Merger, Conversion, Consolidation or Succession to
Business of Trustee.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation or national banking
association resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation or national banking association
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided that such
corporation or national banking association shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case any Securities
shall have been authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 8.13. Preferential Collection of Claims against Company.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act
with respect to each series of Securities for which it is Trustee.
SECTION 8.14. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents, which may
include any Affiliate of the Company, with respect to one or more series of
Securities. Such Authenticating Agent or Agents, at the option of the Trustee,
shall be authorized to act on behalf of the Trustee
<PAGE> 75
to authenticate Securities of such series issued upon exchange, registration of
transfer or partial redemption thereof or pursuant to Section 3.06, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication or the delivery of Securities to the Trustee for
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent, and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent
and delivery of Securities to the authenticating Agent on behalf of the Trustee.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation or national banking association organized and doing
business under the laws of the United States of America, any State thereof or
the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus as most recently reported or
determined by it sufficient under the laws of any jurisdiction under which it is
organized and in which it is doing business to conduct a trust business and
subject to supervision or examination by federal or state authority.
Notwithstanding the foregoing, an Authenticating Agent located outside the
United States may be appointed by the Trustee if previously approved in writing
by the Company and if such Authenticating Agent has a combined capital and
surplus as most recently reported or determined by it sufficient under the laws
of any jurisdiction under which it is organized and in which it is doing
business to conduct a trust business. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
The Trustee shall initially act as Authenticating Agent located within
the United States for each series of Securities issued hereunder.
Any corporation or national banking association into which an
Authenticating Agent may be merged or converted or with which it may be
consolidated, or any corporation or national banking association resulting from
any merger, conversion or consolidation to which such Authenticating Agent shall
be a party, or any corporation or national banking association succeeding to all
or substantially all of the corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating Agent, provided
such corporation or national banking association shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time (and upon
request by the Company shall) terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the Company.
Upon receiving such a notice of resignation or upon such termination, or in case
at any time such Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights,
<PAGE> 76
powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication an alternate certificate
of authentication in the following form:
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By:____________________________________
As Authenticating Agent
By:____________________________________
Authorized Officer
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of
Securityholders.
Without notice to or the consent of any Holder of any Security or
coupon, the Company, when authorized by a Board Resolution, and the Trustee, at
any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(i) to evidence the succession of another corporation to the
Company, and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(ii) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to one or more series of
Securities and to add to or change 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 Section
8.11; or
(iii) to add to the covenants of the Company, for the benefit
of the Holders of Securities of all or any series (and if such
covenants are
<PAGE> 77
to be for the benefit of less than all series of Securities, stating
that such covenants are expressly being included solely for the benefit
of such series), or to surrender any rights or power herein conferred
upon the Company; or
(iv) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action shall
not adversely affect the interests of the Holders of Securities of any
series or any related coupons in any material respect; or
(v) to add any additional Defaults or Events of Default with
respect to all or any series of the Securities (and, if such Default or
Event of Default is applicable to less than all series of Securities,
specifying the series to which such Default or Event of Default is
applicable); or
(vi) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registerable as to
principal, to change or eliminate any restrictions on the payment of
principal of (or premium, if any), Maturity Consideration or any
interest on Bearer Securities, to permit Bearer Securities to be issued
in exchange for Registered Securities, to permit Bearer Securities to
be issued in exchange for Bearer Securities of other authorized
denominations or to permit the issuance of Securities in uncertificated
form, provided any such action shall not adversely affect the interests
of the Holders of Securities of any series or any related coupons in
any material respect; or
(vii) to change or eliminate any of the provisions of this
Indenture, PROVIDED THAT any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
adversely affected by such change in or elimination of such provisions;
or
(viii) to establish the form or terms of a Security of any
series as permitted by Sections 2.01 and 3.01; or
(ix) to convey, transfer, assign, mortgage or pledge any
property to 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 the Company.
SECTION 9.02. Supplemental Indentures With Consent of Securityholders.
With the consent of the Holders of not less than 66 2/3% in principal
amount, or if such Securities are not payable at Maturity for a fixed principal
amount, 66 2/3% of the aggregate issue price of the Outstanding Securities of
all series affected by such supplemental indenture or
<PAGE> 78
indentures (acting as one class), by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board Resolution, and
the Trustee may enter into an indenture or indentures supplemental hereto for
the purposes of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders of Securities of each such series and any
related coupons under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holders of each
Outstanding Security affected thereby:
(i) change the Stated Maturity of the principal of, or the
Stated Maturity of any installment of principal of or interest (or
premium, if any) or any Maturity Consideration, on any Security, or
reduce the principal amount or Maturity Consideration thereof or any
premium thereon or the rate of interest thereon, or change the
obligation of the Company to pay additional amounts pursuant to Section
5.04 (except as contemplated by Section 10.01(i) and permitted by
Section 9.01), or reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable or deliverable
upon a declaration of acceleration of the Maturity thereof pursuant to
Section 7.02, or change the method of calculating interest thereon or
the coin or currency unit or other property in which any Security (or
premium, if any, thereon) or the interest therefor is payable or
deliverable or impair the right to institute suit for the enforcement
of any such payment or delivery on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date); or
(ii) reduce the percentage in principal amount or issue price
of the Outstanding Securities of any series, the consent of whose
Holders is required for any such supplemental indenture or the consent
of which Holders is required for any waiver (of compliance with certain
provisions of this Indenture or of certain Defaults hereunder and their
consequences) provided for in this Indenture; or
(iii) change any obligations of the Company to maintain an
office or agency in the places and for the purposes specified in
Section 5.02; or
(iv) modify any of the provisions of this Section or Section
7.13, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived.
A supplemental indenture which changes or eliminates any covenant or
other provisions 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 the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Securityholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
<PAGE> 79
SECTION 9.03. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 8.01) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by and complies with this Indenture and has been duly
authorized, executed and delivered and is enforceable in accordance with its
terms. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, liabilities,
duties or immunities under this Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith and any such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bounded thereby.
SECTION 9.05. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the TIA as then in effect.
SECTION 9.06. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall, if required by
the Trustee of the series, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities.
SECTION 9.07. Subordination Unimpaired.
No supplemental indentures executed pursuant to this Article shall
directly or indirectly modify the provisions of Article Fourteen in any manner
which might alter the subordination of the Securities.
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 10.01. Company May Consolidate, etc., Only on Certain Terms.
<PAGE> 80
The Company shall not consolidate with or merge into any other
corporation or convey or transfer its properties and assets substantially as an
entirety to any Person, unless
(i) the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or
transfer or which leases the properties and assets of the Company
substantially as an entirety shall be a corporation organized and
existing under the laws of the United States of America, any State
thereof or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee,
in form satisfactory to the Trustee, the due and punctual payment or
delivery of the principal of, premium, if any, Maturity Consideration
and interest on (including all additional amounts, if any, payable
pursuant to Section 5.04) all the Securities and the performance of
every covenant of this Indenture on the part of the Company to be
performed or observed;
(ii) immediately after giving effect to such transaction, no
Default, and no event which, after notice or lapse of time, or both,
would become a Default, shall have happened and be continuing; and
(iii) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied
with;
provided, that, the provisions of this Section 10.01 may be changed as to any
series of Securities if and to the extent provided in an Officer's Certificate
delivered pursuant to Section 3.01 establishing the terms of such series of
Securities.
SECTION 10.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any conveyance or transfer of the
properties and assets of the Company substantially as an entirety in accordance
with Section 10.01, the successor corporation formed by such consolidation or
into which the Company is merged or to which such conveyance or transfer is made
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such successor
corporation had been named as the Company herein. In the event of any such
conveyance or transfer, the Company as the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture and may be
dissolved, wound up and liquidated at any time thereafter.
Such successor corporation may cause to be signed, and may issue either
in its own name or in the name of the Company, any or all of the Securities
issuable hereunder which theretofore shall not have been signed by the Company
and delivered to the Trustee; and, upon the order of
<PAGE> 81
such successor corporation instead of the Company and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities which previously shall have been
signed and delivered by the officers of the Company to the Trustee for
authentication pursuant to such provisions and any Securities which such
successor corporation thereafter shall cause to be signed and delivered to the
Trustee on its behalf for the purpose pursuant to such provisions. All the
Securities so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Securities theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such Securities had
been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, conveyance or lease,
such changes in phraseology and form may be made in the Securities thereafter to
be issued as may be appropriate.
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE
SECTION 11.01. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for and rights to receive payments thereon
and any right to receive additional amounts, as provided in Section 5.04), and
the Trustee, on demand of and at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture,
when
(i) either
(a) all Securities theretofore authenticated
and delivered (other than (1) coupons appertaining to
Bearer Securities surrendered for exchange for
Registered Securities and maturing after such
exchange, whose surrender is not required or has not
been waived as provided in Section 3.05, (2) coupons
appertaining to Bearer Securities called for
redemption and maturing after the relevant Redemption
Date, whose surrender has been waived as provided in
Section 4.07, (3) Securities and coupons which have
been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.06, and (4)
Securities for whose payment money has theretofore
been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in
Section 3.03) have been delivered to the Trustee for
cancellation; or
(b) all such Securities not theretofore
delivered to the Trustee for cancellation
<PAGE> 82
(1) have become due and payable, or
(2) will become due and payable at
their Maturity within one year, or
(3) are to be called for redemption
within one year under arrangements
satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in
the name, and at the expense, of the
Company, and the Company, in the case of
(b)(1), (2) or (3) above, has deposited or
caused to be deposited with the Trustee, as
trust funds in trust for the purpose, an
amount (said amount to be immediately due
and payable to the Holders) sufficient to
pay and discharge the entire indebtedness on
such Securities and coupons not theretofore
delivered to the Trustee for cancellation,
for principal, premium, if any, and interest
to the date of such deposit (in the case of
Securities which have become due and
payable), or to the Stated Maturity or
Redemption Date, as the case may be.
(ii) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(iii) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 8.07 and, if money shall
have been deposited with the Trustee pursuant to subclause (b) of clause (i) of
this Section, the obligations of the Trustee under Section 11.02 and the last
paragraph of Section 5.03 shall survive such satisfaction and discharge. The
Trustee may give notice to the Holders of Securities Outstanding of the
immediate availability of the amount referred to in Clause (i) of this Section
11.01. Funds held pursuant to this Section shall not be subject to the
provisions of Article Fourteen.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of the Indenture only if requested to do so with respect to
Securities of all series as to which it is Trustee and if the other conditions
thereto are met. The effectiveness of any such instrument shall be conditional
upon receipt of such instruments from the Trustee.
SECTION 11.02. Application of Trust Money or Property.
<PAGE> 83
Subject to the provisions of the last paragraph of Section 5.03, all
money or property deposited with the Trustee pursuant to Section 11.01 in
respect of Securities of a series shall be held in trust and applied by it, in
accordance with the provisions of such Securities, the coupons, if any, and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent), as such Trustee may
determine, to the Persons entitled thereto, of the principal, premium, if any,
Maturity Consideration and interest for whose payment such money has been
deposited with such Trustee; unless otherwise specified herein, such money need
not be segregated from other funds except to the extent required by law.
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. Exemption from Individual Liability.
No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of any Security or coupon, or for any claim based thereon or
otherwise in respect thereof, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, either directly or through 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 this Indenture and the obligations issued hereunder are solely
corporate obligations of the Company, and that no such personal liability
whatever shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors, as such, of the Company or of any successor
corporation, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or coupons or implied
therefrom; and that any and all such personal liability, either at common law or
in equity or by constitution or statute, of, and any and all such rights and
claims against, every such incorporator, stockholder, officer or director, as
such, because of the creation of the indebtedness hereby authorized, or under or
by reason of the obligations, covenants or agreements contained in this
Indenture or in any of the Securities or coupons or implied therefrom, are
hereby expressly waived and released as a condition of, and as a consideration
for, the execution of this Indenture and the issuance of the Securities.
ARTICLE THIRTEEN.
SINKING FUNDS
SECTION 13.01. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 3.01 for Securities of such series.
<PAGE> 84
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". If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 13.02. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 13.02. Satisfaction of Sinking Fund Payments with Securities.
The Company (i) may deliver Outstanding Securities of a series (other
than any previously called for redemption), together in the case of any Bearer
Securities of such series, with all unmatured coupons appertaining thereto and
(ii) may apply as a credit Securities of a series which have been redeemed
either at the election of the Company pursuant to the terms of such Securities
or through the application of permitted optional sinking fund payments pursuant
to the terms of such Securities, in each case in satisfaction of all or any part
of any sinking fund payment with respect to the Securities of such series
required to be made pursuant to the terms of such Securities as provided for by
the terms of such series; provided that such Securities have not been previously
so credited. Such Securities shall be received and credited for such purpose by
the Trustee for the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
SECTION 13.03. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee and the Security
Registrar an Officers' Certificate specifying (i) the amount of the next ensuing
sinking fund payment for that series pursuant to the terms of that series, (ii)
the portion thereof, if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 13.02 (such Security to be
credited, or proof of ownership thereof by the Company satisfactory to the
Trustee, to be delivered together with the Officers' Certificate), and (iii)
that none of such Securities has theretofore been so credited and stating the
basis for such credit, and will also deliver to the Trustee any Securities to be
so delivered. Not less than 30 days before each sinking fund payment date, the
Security Registrar shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 4.03 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 4.04. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Section 4.06 and 4.07 and subject to the limitations set forth
in Section 4.08.
<PAGE> 85
ARTICLE FOURTEEN
SUBORDINATION OF NOTES
SECTION 14.01 Agreement to Subordinate.
The Company, for itself, its successors and assigns, covenants and
agrees, and each Holder of a Security by his acceptance thereof, likewise
covenants and agrees, that the payment or delivery of the principal of and
premium, if any, Maturity Consideration and interest on each and all of the
Securities is hereby expressly subordinated, to the extent and in the manner
hereinafter set forth, in right of payment or delivery to the prior payment or
satisfaction in full of all Senior Indebtedness.
SECTION 14.02. Distribution on Dissolution, Liquidation and
Reorganization; Subrogation of Securities.
(a) Upon any distribution of assets of the Company upon any
dissolution, winding up, liquidation or reorganization of the Company,
whether in bankruptcy, insolvency, reorganization or receivership
proceedings or upon an assignment for the benefit of creditors or any
other marshalling of the assets and liabilities of the Company or
otherwise (subject to the power of a court of competent jurisdiction to
make other equitable provision reflecting the rights conferred in this
Indenture upon the Senior Indebtedness and the holders thereof with
respect to the Securities and the Holders thereof by a lawful plan of
reorganization under applicable bankruptcy law),
(i) the holders of all Senior Indebtedness shall
first be entitled to receive payment or delivery in full in
accordance with the terms of such Senior Indebtedness of the
principal thereof, premium, if any, Maturity Consideration and
the interest due thereon (including interest accruing
subsequent to the commencement of any proceeding for the
bankruptcy or reorganization of the Company under any
applicable bankruptcy, insolvency, or similar law now or
hereafter in effect) before the Holders of the Securities are
entitled to receive any payment or delivery upon the principal
of or premium, if any, Maturity Consideration or interest on
indebtedness evidenced by the Securities;
(ii) any payment or distribution of assets of the
Company of any kind or character, whether in cash, property or
securities, to which the Holders of the Securities or the
Trustee would be entitled except for the provisions of this
Article Fourteen, including any such payment or distribution
which may be payable or deliverable by reason of the payment
of any other indebtedness of the Company being subordinated to
the payment of the Securities, shall be paid by the
liquidating trustee or agent or other person making such
payment or distribution, whether a trustee in
<PAGE> 86
bankruptcy, a receiver or liquidating trustee or otherwise,
directly to the holders of Senior Indebtedness or their
representative or representatives or to the trustee or
trustees under any indenture under which any instruments
evidencing any of such Senior Indebtedness may have been
issued, in accordance with the priorities then existing among
holders of Senior Indebtedness for payment of the aggregate
amounts remaining unpaid on account of the principal of and
premium, if any, and interest (including interest accruing
subsequent to the commencement of any proceeding for the
bankruptcy or reorganization of the Company under any
applicable bankruptcy, insolvency, or similar law now or
hereafter in effect) on the Senior Indebtedness held or
represented by each, to the extent necessary to make payment
in full of all Senior Indebtedness remaining unpaid, after
giving effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness; it being understood that
if the Holders of Securities shall fail to file a proper claim
in the form required by any proceeding referred to in this
subparagraph (ii) prior to thirty days before the expiration
of the time to file such claim or claims, then the holders of
Senior Indebtedness are hereby authorized to file an
appropriate claim or claims for and on behalf of the Holders
of Securities in the form required in any such proceeding; and
(iii) 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, including any such payment or distribution which
may be payable or deliverable by reason of the payment of any
other indebtedness of the Company being subordinate to the
payment of the Securities, shall be received by the Trustee or
Holders of the Securities before all Senior Indebtedness is
paid in full, such payment or distribution shall be held for
the benefit of and shall be paid over to the Holders of such
Senior Indebtedness or their representative or representatives
or to the trustee or trustees under any indenture under which
any instruments evidencing any of such Senior Indebtedness may
have been issued, as aforesaid, for application to the payment
of all Senior Indebtedness remaining unpaid until all such
Senior Indebtedness shall have been paid in full, after giving
effect to any concurrent payment or distribution (or provision
thereof) to the holders of such Senior Indebtedness.
(b) Subject to the payment in full of all Senior Indebtedness,
the Holders of the Securities shall be subrogated (equally and ratably
with the holders of all Existing Subordinated Indebtedness and all
indebtedness of the Company which by its express terms is subordinated
to indebtedness of the Company to substantially the same extent as the
Securities are subordinated and is entitled to like rights of
subordination) to the rights of the holders of Senior Indebtedness to
receive payments or distributions of cash, property or securities of
the Company applicable to the Senior Indebtedness until the principal
of and premium, if any,
<PAGE> 87
Maturity Consideration and interest on the Securities shall be paid in
full and no such payments or distributions to holders of such Senior
Indebtedness to which the Holders of the Securities would be entitled
except for the provisions hereof of cash, property or securities
otherwise distributable to the Senior Indebtedness shall, as between
the Company, its creditors, other than the holders of Senior
Indebtedness, and the Holders of the Securities, be deemed to be a
payment by the Company to or on account of the Senior Indebtedness.
(c) It is understood that the provisions of this Article
Fourteen are intended solely for the purpose of defining the relative
rights of the Holders of the Securities, on the one hand, and the
holders of Senior Indebtedness (and, in the case of Section 14.10, the
holders of Existing Subordinated Indebtedness and Entitled Persons), on
the other hand. Nothing contained in this Article Fourteen or elsewhere
in this Indenture or in the Securities is intended to or shall (i)
impair, as between the Company, and the Holders of the Securities, the
obligation of the Company, which is unconditional and absolute (and
which, subject to the rights under this Article Fourteen of the holders
of Senior Indebtedness and the rights under Section 14.10 of Entitled
Persons, is intended to rank equally with all other general obligations
of the Company), to pay to the Holders of the Securities the principal
of, premium, if any, Maturity Consideration and interest (including
interest accruing subsequent to the commencement of any proceeding for
the bankruptcy or reorganization of the Company under any applicable
bankruptcy, insolvency or similar law now or hereafter in effect) on
the Securities as and when the same shall become due and payable in
accordance with their terms, (ii) affect the relative rights of the
Holders of the Securities and creditors of the Company, other than the
holders of the Senior Indebtedness and of Existing Subordinated
Indebtedness, (iii) prevent the Trustee or the Holder of any Security
from exercising all remedies otherwise permitted by applicable law upon
Default under this Indenture, subject to the rights, if any, under this
Article Fourteen of the holders of Senior Indebtedness and under
Section 14.10 of Entitled Persons, in respect of cash, property or
securities of the Company received upon the exercise of any such remedy
or (iv) prevent the application by the Trustee or any Paying Agent of
any moneys deposited with it hereunder to the payment of or on account
of the principal of or premium, if any, Maturity Consideration or
interest on the Securities or prevent the receipt by the Trustee or any
Paying Agent of such moneys, if, prior to the second Business Day prior
to such deposit, the Trustee or such Paying Agent did not have written
notice, in accordance with Section 14.06 hereof, of any event
prohibiting the making of such deposit by the Company and the Trustee
shall not be affected by any notice which may be received by it on or
after such second Business Day.
(d) Upon any payment or distribution of assets of the Company
referred to in this Article Fourteen, the Trustee, subject to the
provisions of Section 8.01, and the Holders of the Securities shall be
entitled to rely upon any order or decree of a court of competent
jurisdiction in which such dissolution, winding up, liquidation
<PAGE> 88
or reorganization proceedings are pending or upon a certificate of the
liquidating trustee or agent or other person making any distribution to
the Trustee or to the Holders of the Securities for the purpose of
ascertaining the persons entitled to participate in such distribution,
the holders of the Senior Indebtedness, Entitled Persons and other
indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article Fourteen. In the absence of any
such liquidating trustee, agent or other person or any certification by
any such person, the Trustee shall be entitled to rely upon a written
notice by a Person representing himself to be a holder of Senior
Indebtedness or an Entitled Person (or a trustee or representative on
behalf of such holder or Entitled Person) as evidence that such Person
is a holder of Senior Indebtedness or an Entitled Person (or is such a
trustee or representative). 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 Senior Indebtedness or as an
Entitled Person, to participate in any payment or distribution pursuant
to this Section, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Indebtedness or Other Financial Obligations held by such
Person, as to the extent to which such Person is entitled to
participation in such payment or distribution, and as to other facts
pertinent to the rights of such Person under this Section, 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.
(e) With respect to the holders of Senior Indebtedness or
Entitled Persons, the Trustee undertakes to perform or to observe only
such of its covenants and obligations as are specifically set forth in
this Indenture, and no implied covenants or obligations with respect to
the holders of Senior Indebtedness or Entitled Persons shall be read
into this Indenture against the Trustee. The Trustee, however, shall
not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness or any Entitled Person, and shall not be liable to any
such holders if it shall mistakenly pay over or distribute to or on
behalf of Holders of Securities or the Company moneys or assets to
which any holders of Senior Indebtedness or any Entitled Person shall
be entitled by virtue of this Article Fourteen.
SECTION 14.03. Payments on Securities Prohibited During Event of
Default Under Senior Indebtedness.
In the event and during the continuation of any Default in the payment
of principal of, or premium, if any, or interest on, any Senior Indebtedness
beyond any applicable period of grace, or in the event that any Event of Default
with respect to any Senior Indebtedness shall have occurred and be continuing,
or would occur as a result of the payment referred to hereinafter, permitting
the holders of such Senior Indebtedness (or a trustee on behalf of the holders
thereof) to accelerate the maturity thereof, then, unless and until such Default
or Event of Default shall have been cured or waived or shall have ceased to
exist, no payment or delivery of principal of,
<PAGE> 89
or premium, Maturity Consideration or interest on the Securities, or in respect
of any redemption, retirement, purchase or other acquisition of any of the
Securities, shall be made by the Company.
SECTION 14.04. Reserved.
SECTION 14.05. Authorization of Holders to Trustee to Effect
Subordination.
Each Holder of a Security by his acceptance thereof authorizes and
directs the Trustee in his behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in this Article Fourteen
and appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 14.06. Notice to Trustee.
Notwithstanding the provisions of this Article or any other provisions
of the Indenture, neither the Trustee nor any Paying Agent shall be charged with
knowledge of the existence of any Senior Indebtedness or Other Financial
Obligations or of any event which would prohibit the making of any payment of
moneys to or by the Trustee or such Paying Agent, unless and until a Responsible
Officer of the Trustee assigned to its Corporate Trust Department or such Paying
Agent shall have received written notice thereof from the Company or from the
holder of any Senior Indebtedness or from any Entitled Person or from the
representative of any such holder and prior to receipt of any such written
notice the Trustee shall be entitled to assume that no such indebtedness or
event exists; PROVIDED; HOWEVER, that if a Responsible Officer of the Trustee
shall not have received, at least three Business Days prior to the date upon
which by the terms hereof any such money may become payable for any purpose
(including, without limitation, the payment of the principal, issue price,
accrued original issue discount, redemption price or interest, if any, as the
case may be, in respect of any Security), the notice with respect to such money
provided for in this Section 14.06, 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 purpose for which such money was
received and shall not be affected by any notice to the contrary which may be
received by it within three Business Days prior to such date.
Subject to the provisions of Section 8.01, the Trustee 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 (or a trustee or agent on behalf of such holder) to
establish that such notice has been given by a holder of Senior Indebtedness or
Other Financial Obligations (or a trustee or agent on behalf of any such
holder). 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
Senior Indebtedness or Other Financial Obligations to participate in any payment
or distribution pursuant to this Article, the Trustee may request such person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of 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, and if such evidence is not furnished, the Trustee may defer any
<PAGE> 90
payment which it may be required to make for the benefit of such person pursuant
to the terms of this Indenture pending judicial determination as to the rights
of such person to receive such payment.
SECTION 14.07. Right of Trustee to Hold Senior Indebtedness.
The Trustee shall be entitled to all of the rights set forth in this
Article in respect of any Senior Indebtedness or Other Financial Obligation at
any time held by it in its individual capacity to the same extent as any other
holder of such Senior Indebtedness or Other Financial Obligation, and nothing in
this Indenture shall be construed to deprive the Trustee of any of its rights as
such holder.
SECTION 14.08. Article Fourteen Not to Prevent Defaults or Events of
Default.
The failure to make a payment pursuant to the Securities by reason of
any provision in this Article shall not be construed as preventing the
occurrence of a Default or an Event of Default.
SECTION 14.09. Trustee Compensation, Etc. Not Prejudiced.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee pursuant to Section 8.07 or to funds held by the Trustee pursuant to
Section 11.01.
SECTION 14.10. Securities to Rank PARI PASSU with Existing
Subordinated Indebtedness; Payment of Proceeds in Certain Cases.
(a) Subject to the provisions of this Section and to any
provisions established or determined with respect to Securities of any
series pursuant to Section 3.01, the Securities shall rank PARI PASSU
in right of payment with the Existing Subordinated Indebtedness.
(b) Upon the occurrence of any of the events specified in
Section 14.02(a), the provisions of that Section and the corresponding
provisions of each indenture or other instrument or document
establishing or governing the terms of any Existing Subordinated
Indebtedness shall be given effect on a PRO RATA basis to determine the
amount of cash, property or securities which may be payable or
deliverable as between the holders of Senior Indebtedness, on the one
hand, and the Holders of Securities and holders of Existing
Subordinated Indebtedness, on the other hand.
(c) If, after giving effect to the provisions of Section
14.02(a), Section 14.02(b) and the respective corresponding provisions
of each indenture or other instrument or document establishing or
governing the terms of any Existing Subordinated Indebtedness on such
PRO RATA basis, any amount of cash, property or securities shall be
available for payment or distribution in respect of the Securities
<PAGE> 91
("Excess Proceeds"), and any creditors in respect of Other Financial
Obligations shall not have received payment in full of all amounts due
or to become due on or in respect of such Other Financial Obligations
(and provision shall not have been made for such payment in money or
money's worth), then such Excess Proceeds shall first be applied
(ratably with any amount of cash, property or securities available for
payment or distribution in respect of any other indebtedness of the
Company that by its express terms provides for the payment over of
amounts corresponding to Excess Proceeds to creditors in respect of
Other Financial Obligations) to pay or provide for the payment of the
Other Financial Obligations remaining unpaid, to the extent necessary
to pay all Other Financial Obligations in full, after giving effect to
any concurrent payment or distribution to or for creditors in respect
of Other Financial Obligations. Any Excess Proceeds remaining after the
payment (or provision for payment) in full of all Other Financial
Obligations shall be available for payment for distribution in respect
of the Securities.
(d) In the event that, notwithstanding the foregoing
provisions of subsection (c) of this Section 14.10, the Trustee or
Holder of any Security shall have received any payment or distribution
of assets of the Company of any kind or character, whether in cash,
property or securities, before all Other Financial Obligations are paid
in full or payment thereof duly provided for, and if such fact shall,
at or prior to the time of such payment or distribution have been made
known to the Trustee or, as the case may be, such Holder, then and in
such event, subject to any obligation the Trustee or such Holder may
have pursuant to Section 14.02(a), such payment or distribution shall
be paid over or delivered forthwith to the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee, agent or other
Person making payment or distribution of assets of the Company for
payment in accordance with subsection (c) of this Section 14.10.
(e) Subject to the payment in full of all Other Financial
Obligations, the Holders of the Securities shall be subrogated (equally
and ratably with the holders of all indebtedness of the Company that by
its express terms provides for the payment over of amounts
corresponding to Excess Proceeds to creditors in respect of Other
Financial Obligations and is entitled to like rights of subrogation) to
the rights of the creditors in respect of Other Financial Obligations
to receive payments and distributions of cash, property and securities
applicable to the Other Financial Obligations until the principal of
and interest on the Securities shall be paid in full. For purposes of
such subrogation, no payments or distributions to creditors in respect
of Other Financial Obligations of any cash, property or securities to
which Holders of the Securities or the Trustee would be entitled except
for the provisions of this Section, and no payments over pursuant to
the provisions of this Section to creditors in respect of Other
Financial Obligations by Holders of Securities or the Trustee, shall,
as among the Company, its creditors other than creditors in respect of
Other Financial Obligations and the Holders of
<PAGE> 92
Securities be deemed to be a payment or distribution by the Company to
or on account of the Other Financial Obligations.
(f) The provisions of subsections (c), (d) and (e) of this
Section 14.10 are and are intended solely for the purpose of defining
the relative rights of the Holders of the Securities, on the one hand,
and the creditors in respect of Other Financial Obligations, on the
other hand, after giving effect to the rights of the holders of Senior
Indebtedness, as provided in this Article 14. Nothing contained in
subsections (c), (d) and (e) of this Section is intended to or shall
affect the relative rights against the Company of the Holders of the
Securities and (1) the holders of Senior Indebtedness, (2) the holders
of Existing Subordinated Indebtedness or (3) other creditors of the
Company other than creditors in respect of Other Financial Obligations.
ARTICLE FIFTEEN
MISCELLANEOUS
SECTION 15.01. 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.
The Bank of New York hereby accepts the trusts in this Indenture declared and
provided, upon the terms and conditions hereinabove set forth.
<PAGE> 93
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
FLEET BOSTON CORPORATION
By: /s/ Douglas L. Jacobs
---------------------------------
Title:
THE BANK OF NEW YORK
By: /s/ Annette Kos
---------------------------------
Title:
<PAGE> 94
EXHIBIT A
FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER NOTE
CERTIFICATE
-------------------------------------
[Insert title or sufficient description of Securities to be delivered]
This is to certify that the above-captioned Securities are not being
acquired by or on behalf of a United States person, or, if a beneficial interest
in the Securities is being acquired by or on behalf of a United States person,
that such United States person is a financial institution within the meaning of
Section 1.165-12(c)(1)(v) of the United States Treasury regulations which agrees
to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, and the regulations thereunder. If the
undersigned is a dealer, the undersigned agrees to obtain a similar certificate
from each person entitled to delivery of any of the above-captioned Securities
in bearer form purchased from it; provided, however, that, if the undersigned
has actual knowledge that the information contained in such a certificate is
false, the undersigned will not deliver a Security in temporary or definitive
bearer form to the person who signed such certificate notwithstanding the
delivery of such certificate to the undersigned.
As used herein, "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 and 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.
We undertake to advise you by telex if the above statement as to
beneficial ownership is not correct on the date of delivery of the
above-captioned Securities in bearer form as to all of such Securities.
We understand that this certificate is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or
<PAGE> 95
EXHIBIT B
FORM OF CERTIFICATE TO BE GIVEN BY EURO-CLEAR AND
CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL NOTE
CERTIFICATE
------------------------------------
[Insert title or sufficient description of Securities to be delivered]
This is to certify with respect to $_____________ principal amount of
the above-captioned Securities (i) that we have received from each of the
persons appearing in our records as persons entitled to a portion of such
principal amount (our "Qualified Account Holders") a certificate with respect to
such portion substantially in the form attached hereto, and (ii) that we are not
submitting herewith for exchange any portion of the temporary global Security
representing the above-captioned Securities excepted in such certificates.
We further certify that as of the date hereof we have not received any
notification from any of our Qualified Account Holders to the effect that the
statements made by such Qualified Account Holders with respect to any portion of
the part submitted herewith for exchange are no longer true and cannot be relied
upon as of the date hereof.
Dated: ______________________, 19__
[To be dated no earlier than the Exchange
Date]
[MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, Brussels
Office, as Operator of the Euro-clear
System] [CEDEL S.A.]
By:__________________________________
<PAGE> 96
EXHIBIT C
FORM OF CERTIFICATE TO BE GIVEN BY EURO-CLEAR AND
CEDEL S.A. TO OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE
CERTIFICATE
------------------------------------------
[Insert title or sufficient description of Securities]
This is to certify that, as of the Interest Payment Date on [Insert
Date], the undersigned, which is a holder of an interest in the temporary global
Security representing the above Securities, is not a United States person.
As used herein, "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 and 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.
We confirm that the interest payable on such Interest Payment Date will
be paid to each of the persons appearing in our records as being entitled to
interest to be paid on the above date from whom we have received a written
certification dated not earlier than 15 days prior to such Interest Payment date
to the effect that the beneficial owner of such portion with respect to which
interest is to be paid on such date either is not a United States person or is a
United States person which is a financial institution which has provided an
Internal Revenue Service Form W-9 or is an exempt recipient as defined in United
States Treasury Regulations ss. 1.6049-4(c)(1)(ii). We undertake to retain
certificates received from our member organizations in connection herewith for
four years from the end of the calendar year in which such certificates are
received.
<PAGE> 97
EXHIBIT D
FORM OF CERTIFICATE TO BE GIVEN BY BENEFICIAL OWNERS TO
OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE
CERTIFICATE
------------------------------------------
[Insert title or sufficient description of Securities]
This is to certify that as of the date hereof, no portion of the
temporary global Security representing the above-captioned Securities and held
by you for our account is beneficially owned by a United States person or, if
any portion thereof held by you for our account is beneficially owned by a
United States person, such United States person is a financial institution
within the meaning of Section 1.165-12(c)(1)(v) of the United States Treasury
regulations which agrees to comply with Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986 and the regulations thereunder, and certifies that
either it has provided an Internal Revenue Service Form W-9 or is an exempt
recipient as defined in Section 1.6049-4(c)(1)(ii) of the United States Treasury
regulations.
As used herein, "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 and 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.
We undertake to advise you by telex if the above statement as to
beneficial ownership is not correct on the Interest Payment Date on [Insert
Date] as to any such portion of such temporary global Security.
We understand that this certificate is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this would be relevant, we irrevocably authorize you to produce this certificate
or a copy thereof to any interested party in such proceedings.
Dated: ______________________, 19__
[To be dated no earlier than 15 days prior
to the Exchange Date]
<PAGE> 98
[Name of Person Entitled to
Receive Bearer Security]
____________________________________
(Authorized Signatory)
Name:
Title:
The foregoing reflects any advice received subsequent to the date of
any certificate stating that the statements contained in such certificate are no
longer correct.
Dated: ______________________, 19__
[To be dated on or after the relevant Interest
Payment Date]
[MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, Brussels
Office, as Operator of the Euro-clear
System] [CEDEL S.A.]
By:__________________________________
[?] certificate or a copy thereof to any interested party in such proceedings.
Dated: ______________________, 19__
[To be dated on or after the 15th day before
the relevant Interest Payment Date]
[Name of Account Holder]
By:__________________________________
(Authorized Signatory)
Name:
Title:
<PAGE> 1
EXHIBIT 4(i)
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to Issuer or its agent
for registration of transfer, exchange, or payment, and any certificate issued
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
THE SUBORDINATED NOTES ARE NOT SAVINGS ACCOUNTS, DEPOSITS OR OTHER OBLIGATIONS
OF ANY BANK OR NONBANK SUBSIDIARY OF FLEET BOSTON CORPORATION AND ARE NOT
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, BANK INSURANCE FUND OR ANY
OTHER GOVERNMENT AGENCY.
REGISTERED REGISTERED
NUMBER R- $
FLEET BOSTON CORPORATION
% SUBORDINATED NOTES DUE
CUSIP:
FLEET BOSTON CORPORATION, a Rhode Island corporation (hereinafter called
the "Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, the principal sum of $ on , and to pay
interest thereon from , or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semi-annually in arrears on
the day of and in each year, commencing , at the rate of % per
annum, until the principal hereof is paid or made available for payment. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Subordinated Note (or one or more Predecessor Subordinated Notes) is
registered at the close of business on the day of and the day of in
each year; provided, however, that in case of a Subordinated Note originally
issued between a Regular Record Date and the Interest Payment Date or on an
Interest Payment Date relating to such Regular Record Date, interest for the
period beginning on the date of issue and ending on such Interest Payment Date
shall be paid on the next succeeding Interest Payment Date to the Person in
whose name this Subordinated Note (or one or more Predecessor Subordinated
Notes) is registered at the close of business on the Regular Record Date with
respect to such succeeding Interest Payment Date. Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in whose
name this Subordinated Note (or one or more Predecessor Subordinated Notes) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Subordinated Notes of this series not less than 10 days
prior to such Special Record Date, or be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Subordinated Notes of this series may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in said
Indenture. Interest will be computed on the basis of a 360-day year consisting
of twelve 30-day months.
Payment of the principal of (and premium, if any) and any such interest on
this Subordinated Note will be made at the offices or agencies of the Company
maintained for that purpose in the Borough of Manhattan, The City of New York,
or in The City of Providence, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Company payment of
interest may be made by check drawn upon any Paying Agent and mailed on or prior
to an Interest Payment Date to the address of the Person entitled thereto as
such address shall appear in the Security Register.
<PAGE> 2
This Subordinated Note is one of a duly authorized issue of securities of
the Company (herein called the "Securities"), issued and to be issued under an
Indenture dated as of December 6, 1999 (the "Indenture"), between the Company
and The Bank of New York, a New York banking corporation (herein called the
"Trustee", which term includes any successor Trustee under the Indenture), to
which Indenture and all Indentures supplemental thereto reference is hereby made
for a statement of the respective rights of the Company, the Trustee and the
Holders of the Securities, and the terms upon which the Securities are, and are
to be, authenticated and delivered. This Subordinated Note is one of a series of
Subordinated Notes of the Company designated as its % Subordinated Notes Due
(herein called the "Subordinated Notes"), initially limited in aggregate
principal amount to $ .
Upon any distribution of assets of the Company upon dissolution, winding
up, liquidation or reorganization, the payment of the principal of, premium, if
any, and interest on, the Subordinated Notes is to be subordinated in right of
payment to the extent provided in the Indenture to the prior payment in full of
all Senior Indebtedness and Other Financial Obligations of the Company (each as
defined in the Indenture). Each Holder of the Subordinated Notes, by the
acceptance thereof, agrees to and shall be bound by such provisions of the
Indenture. The Subordinated Notes may not be redeemed prior to maturity.
As provided in the Indenture and subject to certain limitations set forth
therein, the transfer of this Subordinated Note may be registered in the
Security Register of the Company upon surrender of this Subordinated Note for
registration of transfer at the office or agency of the Company in any place
where the principal of (and premium, if any) and interest on this Subordinated
Note are payable, duly endorsed by, or accompanied by, a written instrument of
transfer in form satisfactory to the Company, duly executed by the registered
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Subordinated Notes, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Subordinated Notes are issuable only as registered Subordinated Notes
without coupons in denominations of $1,000 and integral multiples of $1,000. As
provided in the Indenture, and subject to certain limitations set forth therein,
this Subordinated Note is exchangeable for a like aggregate principal amount of
Subordinated Notes of different authorized denominations, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment for registration of transfer of this Subordinated
Note, the Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name this Subordinated Note is registered as the owner
hereof for the purpose of receiving payment as herein provided and for all other
purposes, whether or not this Subordinated Note be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
If an Event of Default with respect to the Subordinated Notes shall occur
and be continuing, the principal hereof may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the trustee under
each series to be affected with the consent of the Holders of 66 2/3% in
principal amount of the Outstanding Securities of each series to be affected.
The Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Outstanding Securities of any
series, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Subordinated Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Subordinated Note and of
any Subordinated Notes issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent or
waiver is made upon this Subordinated Note.
<PAGE> 3
No reference herein to the Indenture and no provision of this Subordinated
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of (and premium, if
any) and interest, if any, on this Subordinated Note at the times, place and
rate, and in the coin and currency, herein prescribed.
All terms used in this Subordinated Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
Unless the certificate of authentication hereon has been executed by the
Trustee, directly or through an authenticating agent, by the manual signature of
an authorized officer, this Subordinated Note shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION FLEET BOSTON CORPORATION
This is one of the Securities of
the series provided for under the
within-mentioned Indenture.
By____________________________
The Bank of New York, a New York banking Chairman and Chief Executive
corporation as Trustee Officer
By______________________________________ By____________________________
Authorized Officer Secretary
<PAGE> 4
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
Name and address of assignee, including zip code, must be printed or
typewritten)
________________________________________________________________________________
________________________________________________________________________________
the within Subordinated Note, and all rights thereunder, hereby irrevocably
constituting and appointing
________________________________________________________________________________
Attorney to transfer said Subordinated Note on the books of the within Company,
with full power of substitution in the premises.
Dated:___________ ________________________________
NOTICE: The signature to this assignment
must correspond with the name as
it appears upon the face of the
within or attached Subordinated
Note in every particular, without
alteration or enlargement or any
change whatever.
<PAGE> 1
EXHIBIT 4(1)
FLEET BOSTON CORPORATION
------------------------
BYLAWS
ARTICLE 1.
OFFICES.
SECTION 1.01. Registered Office. The registered office of the
Corporation in the State of Rhode Island shall be at No. 50 Kennedy Plaza, City
of Providence, County of Providence. The name of the resident agent in charge
thereof shall be William C. Mutterperl.
SECTION 1.02. Other Offices. The Corporation may also have an office or
offices in such other place or places either within or without the State of
Rhode Island as the Board of Directors may from time to time determine or the
business of the Corporation require.
ARTICLE 2.
MEETINGS OF STOCKHOLDERS.
SECTION 2.01. Place of Meetings. All meetings of the stockholders of
the Corporation shall be held at such place either within or without the State
of Rhode Island as shall be fixed by the Board of Directors and specified in the
respective notices or waivers of notice of said meetings.
SECTION 2.02. Annual Meetings. (a) The annual meeting of the
stockholders for the election of directors and for the transaction of such other
business as may come before the meeting shall be held at the principal office of
the Corporation in the State of Rhode Island or such place as shall be fixed by
the Board of Directors, as eleven o'clock in the forenoon, local time, on the
second Wednesday in April in each year, if not a legal holiday at the place
where such meeting is to be held, and, if a legal holiday, then on the next
succeeding business day not a legal holiday at the same hour. (b) In respect of
the annual meeting for any particular year the Board of Directors may, by
resolution fix a different day, time or place (either within or without the
State of Rhode Island) for the annual meeting. (c) If the election of directors
shall not be held on the day designated herein or the day fixed by the Board, as
the case may be, for any annual meeting, or on the day of any adjourned session
thereof, the Board of Directors shall cause the election to be held at a special
meeting as soon thereafter as conveniently may be. At such special meeting the
stockholders may elect the directors and transact other business with the same
force and effect as at an annual meeting duly called and held.
SECTION 2.03. Special Meetings. A special meeting of the stockholders
for any purpose or purposes properly brought before such meeting may be called
at any time by the Chairman of the Board or President or President or by order
of the Board of Directors pursuant to a resolution adopted by a majority of the
Board.
SECTION 2.04. Notice of Meetings. (a) Except as otherwise required by
statute, notice of each annual or special meeting of the stockholders shall be
given to each stockholder of record entitled to vote at such meeting not less
than 10 days or more than 50 days before the day on which the meeting is to be
held by delivering written notice thereof to him personally or by mailing such
notice, postage prepaid, addressed to him at his post-office address last shown
in the records of the Corporation or by
<PAGE> 2
transmitting notice thereof to him at such address by telegraph, cable or any
other available method. Every such notice shall state the time and place of the
meeting and, in case of a special meeting, shall state briefly the purposes
thereof. (b) Notice of any meeting of stockholders shall not be required to be
given to any stockholder who shall attend such meeting in person or by proxy or
who shall, in person or by attorney thereunto authorized, waive such notice in
writing or by telegraph, cable or any other available method either before or
after such meeting. Notice of any adjourned meeting of the stockholders shall
not be required to be given except when expressly required by law.
SECTION 2.05. Quorum. (a) At each meeting of the stockholders, except
where otherwise provided by statute, the Articles of Incorporation or these
Bylaws, the holders of record of a majority of the issued and outstanding shares
of stock of the Corporation entitled to vote at such meeting, present in person
or represented by proxy, shall constitute a quorum for the transaction of
business. (b) In the absence of a quorum a majority in interest of the
stockholders of the Corporation entitled to vote, present in person or
represented by proxy, or, in the absence of all such stockholders, any officer
entitled to preside at, or act as secretary of, such meeting, shall have the
power to adjourn the meeting from time to time, until stockholders holding the
requisite amount of stock shall be present or represented. At any such adjourned
meeting at which a quorum shall be present any business may by transacted which
might have been transacted at the meeting as originally called.
SECTION 2.06. Organization. At each meeting of the stockholders the
Chairman of the Board, the President, any Vice President, or any other officer
designated by the Board of Directors, shall act as chairman, and the Secretary
or an Assistant Secretary of the Corporation, or in the absence of the Secretary
and all Assistant Secretaries, a person whom the chairman of such meeting shall
appoint shall act as secretary of the meeting and keep the minutes thereof.
SECTION 2.07. Voting. (a) Except as otherwise provided by law or by the
Articles of Incorporation or these Bylaws, at every meeting of the stockholders
each stockholder shall be entitled to one vote, in person or by proxy, for each
share of capital stock of the Corporation registered in his name on the books of
the Corporation:
(i) on the date fixed pursuant to Section 9.03 of these Bylaws
as the record date for the determination of stockholders entitled to
vote at such meeting; or
(ii) if no record date shall have been fixed, then the record
date shall be at the close of business on the day next preceding the
day on which notice of such meeting is given.
(b) Persons holding stock in a fiduciary capacity shall be entitled to
vote the shares so held. In the case of stock held jointly by two or more
executors, administrators, guardians, conservators, trustees or other
fiduciaries, such fiduciaries may designate in writing one or more of their
number to represent such stock and vote the shares so held, unless there is a
provision to the contrary in the instrument, if any, defining their powers and
duties. (c) Persons whose stock is pledged shall be entitled to vote thereon
until such stock is transferred on the books of the Corporation to the pledgee,
and thereafter only the pledgee shall be entitled to vote. (d) Any stockholder
entitled to vote may do so in person or by his proxy appointed by an instrument
in writing subscribed by such stockholder or by his attorney thereunto
authorized, or by a telegram, cable or any other available method delivered to
the secretary of the meeting; provided, however, that no proxy shall be voted
after 11 months from its date, unless said proxy provides for a longer period.
(e) At all meetings of the stockholders, all matters (except where other
provision is made by law or by the Articles of Incorporation or these Bylaws)
shall be decided by the vote of a majority in interest of the stockholders
entitled to vote thereon, present in person or by proxy, at
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<PAGE> 3
such meeting, a quorum being present.
SECTION 2.08. Inspectors. The chairman of the meeting may at any time
appoint two or more inspectors to serve at a meeting of the stockholders. Such
inspectors shall decide upon the qualifications of voters, accept and count the
vote for and against the questions presented, report the results of such votes,
and subscribe and deliver to the secretary of the meeting a certificate stating
the number of shares of stock issued and outstanding and entitled to vote
thereon and the number of shares voted for and against the questions presented.
The inspectors need not be stockholders of the Corporation, and any director or
officer of the Corporation may be an inspector on any question other an a vote
for or against his election to any position with the Corporation or on any other
question in which he may be directly interested. Before acting as herein
provided each inspector shall subscribe an oath faithfully to execute the duties
of an inspector with strict impartiality and according to the best of his
ability.
SECTION 2.09. List of Stockholders. (a) It shall be the duty of the
Secretary or other officer of the Corporation who shall have charge of its stock
ledger to prepare and make, or cause to be prepared and made, at least 10 days
before every meeting of the stockholders, a complete list of stockholders
entitled to vote thereat, arranged in alphabetical order and showing the address
of each stockholder and the number of shares registered in the name of the
stockholder. Such list shall be open during ordinary business hours to the
examination of any stockholder for any purpose germane to the meeting for a
period of at least 10 days prior to the election, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting or, if not so specified, at the place where the meeting is
to be held. (b) Such list shall be produced and kept at the time and place of
the meeting during the whole time thereof and may be inspected by any
stockholder who is present. (c) Upon the willful neglect or refusal of the
directors to produce such list at any meeting for the election of directors,
they shall be ineligible for election to any office at such meeting. (d) The
stock ledger shall be conclusive evidence as to who are the stockholders
entitled to examine the stock ledger and the list of stockholders required by
this Section 2.09 on the books of the Corporation or to vote in person or by
proxy at any meeting of stockholders.
SECTION 2.10. Introduction of Business at a Meeting of Stockholders.
(a) At an annual or special meeting of stockholders, only such business shall be
conducted, and only such proposals shall be acted upon, as shall have been
properly brought before an annual or special meeting of stockholders. To be
properly brought before an annual or special meeting of stockholders, business
must be (i) in the case of a special meeting, specified in the notice of the
special meeting (or any supplement thereto) given by the officer of the
Corporation calling such meeting or by or at the direction of the Board, or (ii)
in the case of an annual meeting, properly brought before the meeting by or at
the director of the Board, or otherwise properly brought before the annual
meeting by a stockholder. For business to be properly brought before an annual
meeting of stockholders by a stockholder, the stockholder must have given timely
notice thereof in writing to the Secretary of the Corporation. To be timely, a
stockholder's notice, must be delivered to the Secretary of the Corporation, or
mailed to and received at the principal executive offices of the Corporation, by
the Secretary of the Corporation, not less than 120 calendar days in advance of
the date the Corporation's proxy statement was released to stockholders in
connection with the previous year's annual meeting of stockholders, except that
if no annual meeting was held in the previous year or the date of the annual
meeting has been changed by more than 30 calendar days from the date
contemplated at the time of the previous year's proxy statement, a proposal must
be received by the Corporation a reasonable time before the Corporation's proxy
statement is released to stockholders.
(b) A stockholder's notice to the Secretary shall set forth as to each
matter the stockholder proposes to bring before an annual meeting stockholders
(i) a brief description of the business desired to
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<PAGE> 4
be brought before the annual meeting and the reasons for conducting such
business at the annual meeting, (ii) the name and address, as they appear on the
Corporation's books, of the stockholder proposing such business and any other
stockholders known by such stockholder to be supporting such proposal, (iii) the
class and number of shares of the Corporation which are beneficially owned by
such stockholder on the date of such stockholder's notice and by any other
stockholders known by such stockholder to be supporting such proposal on the
date of such stockholder's notice, and (iv) any material interest of the
stockholder in such proposal.
(c) Notwithstanding anything in the Bylaws to the contrary, no business
shall be conducted at a meeting of stockholders except in accordance with the
procedures set forth in this Section 2.10. The Chairman of the meeting shall, if
the facts warrant, determine and declare to the meeting that the business was
not properly brought before the meeting in accordance with the procedures
prescribed by the Bylaws, and if he should so determine, he shall so declare to
the meeting and any such business not properly brought before the meeting shall
not be transacted.
ARTICLE 3.
BOARD OF DIRECTORS.
SECTION 3.01. General Powers. The business, property and affairs of the
Corporation shall be managed by the Board of Directors.
SECTION 3.02. Number and Qualifications. (a) The number of directors of
the Corporation, which shall constitute the whole Board of Directors, shall be
determined in accordance with the provisions of Article SEVENTH of the Articles
of Incorporation. (b) A director need not be a stockholder. (c) No person shall
be elected a director who has attained the age of 68 and any director who has
attained the age of 68 shall submit his or her resignation to the Chairman
effective on the date of the first meeting of the stockholders of the
Corporation held on or after the date on which such person attains the age of
68; and any person who makes a material change in his or her principal business
or professional activity prior to attaining such age shall submit his or her
resignation to the Chairman; PROVIDED, HOWEVER, any director serving on the
Board as of December 31, 1999 who has attained the age of 68 on or prior to such
date shall be permitted to continue to serve as a director but shall submit his
or her resignation to the Chairman effective on the date of the first meeting of
the stockholders of the Corporation held on or after the date on which such
person attains the age of 70.
SECTION 3.03. Classes, Elections and Term. The Board of Directors shall
be divided into three classes, shall be nominated in accordance with the
provisions of Section 3.15 of this Article 3, and shall be elected and shall
serve terms in accordance with the provisions of Article SEVENTH of the Articles
of Incorporation.
SECTION 3.04. Quorum and Manner of Acting. (a) Except as otherwise
provided by statute or by the Articles of Incorporation, a majority of the
directors at the time in office shall constitute a quorum for the transaction of
business at any meeting and the affirmative action of a majority of the
directors present at any meeting at which a quorum is present shall be required
for the taking of any action by the Board of Directors. (b) In the event the
Secretary is informed that one or more of the directors shall be disqualified to
vote at such meeting, then the required quorum shall be reduced by one for each
such director so absent or disqualified; provided, however, that in no event
shall the quorum as adjusted be less than one-third of the total number of
directors. (c) In the absence of a quorum at any meeting of the Board such
meeting need not be held; or a majority of the directors present thereat or, if
no director be
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present, the Secretary may adjourn such meeting from time to time until a quorum
shall be present. Notice of any adjourned meeting need not be given.
SECTION 3.05. Offices, Place of Meetings and Records. The Board of
Directors may hold meetings, have an office or offices and keep the books and
records of the Corporation at such place or places within or without the State
of Rhode Island as the Board may from time to time determine. The place of
meeting shall be specified or fixed in the respective notices or waivers of
notice thereof, except where otherwise provided by statute by the Articles of
Incorporation or these Bylaws. Meetings of the Board of Directors or any
committee of Directors, including without limitation the Executive Committee,
may be held by means of a telephone conference circuit and connection with such
circuit shall constitute presence at such meetings.
SECTION 3.06. Annual Meeting. The Board of Directors shall meet for the
purpose of organization, the election of officers and the transaction of other
business, as soon as practicable following each annual election of directors.
Such meeting shall be called and held at the place and time specified in the
notice or waiver of notice thereof as in the case of a special meeting of the
Board of Directors.
SECTION 3.07. Regular Meetings. Regular meetings of the Board of
Directors shall be held at such places and at such times as the Board shall from
time to time by resolution determine. If any day fixed for a regular meeting
shall be a legal holiday at the place where the meeting is to be held, then the
meeting which would otherwise be held on that day shall be held at said place at
the same hour on the next succeeding business day. Notice of regular meetings
need not be given.
SECTION 3.08. Special Meetings; Notice. Special meetings of the Board
of Directors shall be held whenever called by the Chairman of the Board or the
President or by any five of the directors. Notice of each said meeting shall be
mailed to each director, addressed to him at his residence or usual place of
business, at least two days before the day on which the meeting is to be held,
or shall be sent to him at his residence or at such place of business by
telegraph, cable or other available means, or shall be delivered personally or
by telephone, not later than one day before the day on which the meeting is to
be held. Each such notice shall state the time and place of the meeting but need
not state the purposes thereof except as otherwise herein expressly provided.
Notice of any such meeting need not be given to any director, however, if waived
by him in writing or by telegraph, cable or otherwise, whether before or after
such meeting shall be held, or if he shall be present at such meeting.
SECTION 3.09. Organization. At each meeting of the Board of Directors,
the Chairman of the Board or, in his absence, the President, or in the absence
of each of them, a director chosen by a majority of the directors present shall
act as chairman. The Secretary or, in his absence, an Assistant Secretary or, in
the absence of the Secretary and all Assistant Secretaries, a person whom the
chairman of such meeting shall appoint shall act as secretary of such meeting
and keep the minutes thereof.
SECTION 3.10. Order of Business. At all meetings of the Board of
Directors business shall be transacted in the order determined by the Board.
SECTION 3.11. Removal of Directors. Any one or more directors of the
Corporation may be removed at any time, but only in accordance with the
provisions of Article SEVENTH of the Articles of Incorporation.
SECTION 3.12. Resignation. Any director of the Corporation may resign
at any time by giving
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<PAGE> 6
written notice of his resignation to the Board of Directors, to the Chairman of
the Board, the President, any Vice President or the Secretary of the
Corporation. Such resignation shall take effect at the date of receipt of such
notice or at any later time specified therein; and, unless otherwise specified
therein, in acceptance of such resignation shall not be necessary to make it
effective.
SECTION 3.13. Vacancies and Newly Created Directorships. Vacancies and
newly created directorships shall be filled only in accordance with the
provisions of Article SEVENTH of the Articles of Incorporation.
SECTION 3.14. Compensation. Each director, in consideration of his
serving as such, shall be entitled to receive from the Corporation such amount
per annum or such fees for attendance at directors' meetings, or both, as the
Board of Directors shall from time to time determine, together with
reimbursement for the reasonable expenses incurred by him in connection with the
performance of his duties; provided that nothing herein contained shall be
construed to preclude any director from serving the Corporation or its
subsidiaries in any other capacity and receiving proper compensation therefor.
SECTION 3.15. Nomination of Directors. (a) Only persons nominated in
accordance with the procedures set forth in this Section shall be eligible for
election as directors. Nominations of persons for election to the Board may be
made at a meeting of stockholders (i) by or at the direction of the Board, or
(ii) by any stockholder of the Corporation entitled to vote for the election of
directors at such meeting who complies with the notice procedures set forth in
this Section 3.15. Such nominations, other than those made by or at the
direction of the Board, shall be made pursuant to timely notice in writing to
the Secretary of the Corporation. To be timely, a stockholder's notice must be
delivered to the Secretary, or mailed to and received at the principal executive
offices of the Corporation by the Secretary, not less than 30 days prior to the
date of a meeting; provided, however, that if fewer than 40 days' notice or
prior public disclosure of the date of the meeting is given or made to
stockholders, notice by the stockholder to be timely must be so delivered or
received not later than the close of business on the 7th day following the
earlier of (i) the day on which such notice of the date of such meeting was
mailed, or (ii) the day on which such public disclosure was made.
(b) A stockholder's notice to the Secretary shall set forth (i) as to
each person whom the stockholder proposes to nominate for election or reelection
as a director (w) the name, age, business address and residence address of such
person, (x) the principal occupation or employment of such person, (y) the class
and number of shares of the Corporation which are beneficially owned by such
person on the date of such stockholder's notice (z) any other information
relating to such person that is required to be disclosed in solicitations of
proxies for election of directors, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended
(including without limitation such person's written consent to being named in
the proxy statement as a nominee and to serving as a director if elected); and
(ii) as to the stockholder giving the notice (x) the name and address, as they
appear on the Corporation's books, of such stockholder and any other
stockholders known by such stockholder to be supporting such nominees and (y)
the class and number of shares of the Corporation which are beneficially owned
by such stockholder on the date of such stockholder's notice and by any other
stockholders known by such stockholder to be supporting such nominees on the
date of such stockholder's notice.
(c) No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth in this
Section 3.15. The Chairman of the meeting shall, if the facts warrant, determine
and declare to the meeting that a nomination was not made in accordance with the
procedures prescribed by the Bylaws, and if he should so determine, he shall so
declare to the
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meeting and the defective nomination shall be disregarded.
ARTICLE 4.
COMMITTEES.
SECTION 4.01. Executive Committee. The Board of Directors may, by
resolution or resolutions passed by a majority of the whole Board, appoint an
Executive Committee to consist of not less than three nor more than ten members
of the Board of Directors, including the Chairman of the Board and the
President, and shall designate one of the members as its chairman.
Notwithstanding any limitation on the size of the Executive Committee, the
Committee may invite members of the Board to attend one at a time at its
meetings. For the purpose of the meeting he so attends, the invited director
shall be entitled to vote on matters considered at such meeting and shall
receive the Executive Committee fee for such attendance. At any time one
additional director may be invited to an Executive Committee meeting in addition
to the rotational invitee and, in such case, such additional invitee shall also
be entitled to vote on matters considered at such meeting and shall receive the
Executive committee fee for such attendance.
Each member of the Executive Committee shall hold office, so long as he
shall remain director, until the first meeting of the Board of Directors held
after the next annual election of directors and until his successor is duly
appointed and qualified. The chairman of the Executive Committee or, in his
absence, a member of the Committee chosen by a majority of the members present
shall preside at meetings of the Executive Committee and the Secretary or an
Assistant Secretary of the Corporation, or such other person as the Executive
Committee shall from time to time determine, shall act as secretary of the
Executive Committee.
The Board of Directors, by action of the majority of the whole Board,
shall fill vacancies in the Executive Committee.
SECTION 4.02. Powers. During the intervals between the meetings of the
Board of Directors, the Executive Committee shall have and may exercise all of
the powers of the Board of Directors in all cases in which specific directions
shall not have been given by the Board of Directors.
SECTION 4.03. Procedure; Meetings; Quorum. The Executive Committee
shall fix its own rules of procedure subject to the approval of the Board of
Directors, and shall meet at such times and at such place or places as may be
provided by such rules. At every meeting of the Executive Committee the presence
of a majority of all the members shall be necessary to constitute a quorum and
the affirmative vote of a majority of the members present shall be necessary for
the adoption by it of any resolution. In the absence of a quorum at any meeting
of the Executive Committee such meeting need not be held; or a majority of the
members present thereat or, if no members be present, the secretary of the
meeting may adjourn such meeting from time to time until a quorum be present.
SECTION 4.04. Compensation. Each member of the Executive Committee
shall be entitled to receive from the Corporation such fee, if any, as shall be
fixed by the Board of Directors, together with reimbursement for the reasonable
expenses incurred by him in connection with the performance of his duties.
SECTION 4.05. Other Board Committees. The Board of Directors may, from
time to time, by resolution passed by a majority of the whole Board, designate
one or more committees in addition to the Executive Committee, each committee to
consist of two or more of the directors of the Corporation. Any
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such committee, to the extent provided in the resolution or in the Bylaws of the
Corporation, shall have and may exercise the powers of the Board of Directors in
the management of the business and affairs of the Corporation.
A majority of all the members of any such committee may determine its
action and fix the time and place of its meetings, unless the Board of Directors
shall otherwise provide. The Board of Directors shall have power to change the
members of any committee at any time, to fill vacancies and to discharge any
such committee, either with or without cause, at any time.
SECTION 4.06. Alternates. The Chairman of the Board or the President
may designate one or more directors as alternate members of any committee who
may act in the place and stead of members who temporarily cannot attend any such
meeting.
SECTION 4.07. Additional Committees. The Board of Directors may from
time to time create such additional committees of directors, officers, employees
or other persons designated by it (or any combination of such persons) for the
purpose of advising the Board, the Executive Committee and the officers and
employees of the Corporation in all such matters as the Board shall deem
advisable and with such functions and duties as the Board shall by resolutions
prescribe.
A majority of all the members of any such committee may determine its
action and fix the time and place of its meetings, unless the Board of Directors
shall otherwise provide. The Board of Directors shall have power to change the
members of any committee at any time, to fill vacancies and to discharge any
such committee, either with or without cause, at any time.
ARTICLE 5.
ACTIONS BY CONSENT.
SECTION 5.01. Consent by Directors. Any action required or permitted to
be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting if prior to such action a written consent thereto
is signed by all members of the Board or of such committee, as the case may be,
and such written consent is filed with the minutes of the proceedings of the
Board of such committee.
SECTION 5.02. Consent by Stockholders. Any action required or permitted
to be taken at any meeting of the stockholders may be taken without a meeting
upon the written consent of the holders of shares of stock entitled to vote who
hold the number of shares which in the aggregate are at least equal to the
percentage of the total vote required by statute or the Articles of
Incorporation or these Bylaws for the proposed corporate action, and provided
that prompt notice of such action shall be given to all stockholders who would
have been entitled to vote upon the action if such meeting were held.
ARTICLE 6.
OFFICERS.
SECTION 6.01. Number. The principal officers of the Corporation shall
be a Chairman of the Board, a President, one or more Vice Presidents (the number
thereof and variations in title to be determined by the Board of Directors), a
Treasurer and a Secretary. In addition, there may be such other or subordinate
officers, agents and employees as may be appointed in accordance with the
provision of
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Section 6.03. Any two or more offices, except those of President and Secretary,
may be held by the same person.
SECTION 6.02. Election, Qualifications and Term of Office. Each officer
of the Corporation, except such officers as may be appointed in accordance with
the provisions of Section 6.03, shall be elected annually by the Board of
Directors and shall hold office until his successor shall have been duly elected
and qualified, or until his death, or until he shall have resigned or shall have
been removed in the manner herein provided. The Chairman of the Board and the
President shall be and remain directors.
SECTION 6.03. Other Officers. The Corporation may have such other
officers, agents and employees as the Board of Directors may deem necessary,
including a Controller, one or more Assistant Controllers, one or more Assistant
Treasurers, and one or more Assistant Secretaries, each of whom shall hold
office for such period, have such authority, and perform such duties as the
Board of Directors or the President may from time to time determine. The Board
of Directors may delegate to any principal officer the power to appoint or
remove any such subordinate officers, agents or employees.
SECTION 6.04. Mandatory Retirement. No officer of the Corporation shall
continue to hold office beyond the first day of the month following or
coinciding with his attaining age of 65, unless the Board of Directors
specifically authorizes such continuance on a year-to-year basis.
SECTION 6.05. Removal. Any officer may be removed, either with or
without cause, by a vote of a majority of the whole Board of Directors or,
except in case of any officer elected by the Board of Directors, by any
committee or officer upon whom the power of removal may be conferred by the
Board of Directors.
SECTION 6.06. Resignation. Any officer may resign at any time by giving
written notice to the Board of Directors, the Chairman of the Board or the
President. Any such resignation shall take effect at the date of receipt of such
notice or at any later time specified therein; and unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.
SECTION 6.07. Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filed for the
unexpired portion of the term in the manner prescribed in these Bylaws for
regular election or appointment to such office.
SECTION 6.08. Chairman of the Board. The Chairman of the Board shall
preside at all meetings of the Board of Directors. Subject to definition by the
Board of Directors, he shall have general executive powers and such specific
powers and duties as from time to time may be conferred upon or assigned to him
by the Board of Directors.
SECTION 6.09. President. The President shall preside at all meetings of
the Board of Directors if there be no Chairman or if the Chairman be absent.
Subject to the definition by the Board of Directors, he shall have general
executive powers and such specific powers and duties as from time to time may be
conferred upon or assigned to him by the Board of Directors.
SECTION 6.10. Vice Presidents. Each Vice President shall have such
powers and perform such duties as the Board of Directors or the Executive
Committee may from time to time prescribe or as shall be assigned to him by the
President.
SECTION 6.11. Treasurer. The Treasurer shall have charge and custody
of, and be responsible
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for, all funds and securities of the Corporation, and shall deposit all such
funds to the credit of the Corporation in such banks, trust companies or other
depositaries as shall be selected in accordance with the provisions of these
Bylaws; he shall disburse the funds of the Corporation as may be ordered by the
Board of Directors or the Executive Committee, making proper vouchers for such
disbursements, and shall render to the Board of Directors or the stockholders,
whenever the Board may require him so to do, a statement of all his transactions
as Treasurer or the financial condition of the Corporation; and, in general, he
shall perform all the duties incident to the office of Treasurer and such other
duties as from time to time may be assigned to him by the Board of Directors,
any committee of the Board designated by it so to act or the President.
SECTION 6.12. Secretary. The Secretary shall record or cause to be
recorded in books provided for the purpose the minutes of the meetings of the
stockholders, the Board of Directors, and all committees of which a secretary
shall not have been appointed; shall see that all notices are duly given in
accordance with the provisions of these Bylaws and as required by law; shall be
custodian of all corporate records (other than financial) and of the seal of the
Corporation and see that the seal is affixed to all documents the execution of
which on behalf of the Corporation under its seal is duly authorized in
accordance with the provisions of these Bylaws; shall keep, or cause to be kept,
the list of stockholders as required by Section 2.09, which include post-office
addresses of the stockholders and the number of shares held by them,
respectively, and shall make or cause to be made, all proper changes therein,
shall see that the books, reports, statements, certificates and all other
documents and records required by law are properly kept and filed; and, in
general, shall perform all duties incident to the office of Secretary and such
other duties as may from time to time be assigned to him by the Board of
Directors, the Executive Committee or the President.
SECTION 6.13. Salaries. The salaries of the principal officers of the
Corporation shall be fixed from time to time by the Board of Directors or a
special committee thereof, and none of such officers shall be prevented from
receiving a salary by reason of the fact that he is a director of the
Corporation.
SECTION 6.14. CEO and Chairman Succession; Board Composition. The Board
of Directors has resolved that Mr. Charles K. Gifford shall be the successor to
Mr. Terrence Murray as the Chief Executive Officer of the Corporation, with such
succession to become effective on the CEO Succession Date (as defined below),
and that Mr. Gifford shall be the successor to Mr. Murray as the Chairman of the
Corporation, with such succession to become effective on the Chairman Succession
Date (as defined below). Until immediately prior to the commencement of the
first annual meeting of stockholders of the Corporation following the Chairman
Succession Date, (i) the ratio of Continuing Fleet Directors to Continuing
BankBoston Directors shall be maintained at 13 to 11 and all vacancies on the
Board of Directors created by the cessation of service of a Continuing Fleet
Director shall be filled by a nominee selected by a majority of the Continuing
Fleet Directors and all vacancies on the Board created by the cessation of
service of a Continuing BankBoston Director shall be filled by a nominee
selected by a majority of the Continuing BankBoston Directors and (ii) the
Continuing Fleet Directors and the Continuing BankBoston Directors shall be
apportioned among the three classes of the Board of Directors such that the
ratio of Continuing Fleet Directors to Continuing BankBoston Directors is 4 to 4
in two of such classes and 5 to 3 in the remaining class. The provisions of this
Section 6.14 may be modified, amended or repealed, and any Bylaw provision
inconsistent with the provisions of this Section 6.14 may only be adopted, by an
affirmative vote of at least 75 percent of the entire Board of Directors then in
office and any action taken by the Board of Directors with respect to the
subject matter of this Section 6.14 may only be taken at a meeting at which
66-2/3% of the directors then in office are in attendance in person or by
telephone. In the event of any inconsistency between any other provision of
these Bylaws and any provision of this Section 6.14, the provisions of this
Section 6.14 shall control. The resolutions
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adopted by the Board of Directors nominating any person for election to the
Board of Directors in accordance with the prior sentences will designate such
person as a "Continuing Director" for purposes of Article Seventh and Article
Ninth of the Corporation's Restated Articles of Incorporation. Until the
Chairman Succession Date, the removal of Mr. Gifford from any of the positions
specifically provided for in this Section 6.14 and in the employment agreement
between the Corporation and Mr. Gifford (the "Employment Agreement"), and any
amendment to or termination of the Employment Agreement shall require the
affirmative vote of at least 75 percent of the entire Board of Directors then in
office.
The "CEO Succession Date" shall mean December 31, 2001 or any such
earlier date as of which Mr. Murray ceases for any reason to serve in the
position of Chief Executive Officer of the Corporation.
The "Chairman Succession Date" shall mean December 31, 2002 or any such
earlier date as of which Mr. Murray ceases for any reason to serve in the
position of Chairman of the Corporation.
"Continuing Fleet Directors" shall mean the directors of Fleet as of
October 1, 1999 who were selected to be directors of Fleet by the Board of
Directors of Fleet prior to the Effective Time of the Merger and any additional
directors of the Corporation who take office after the Effective Time who are
nominated by a majority of the Continuing Fleet Directors.
"Continuing BankBoston Directors" shall mean the directors of Fleet as
of October 1, 1999 who were selected to be directors of Fleet by the Board of
Directors of BankBoston prior to the Effective Time of the Merger and any
additional directors of the Corporation who take office after the Effective Time
who are nominated by a majority of the Continuing BankBoston Directors.
ARTICLE 7.
INDEMNIFICATION.
SECTION 7.01. Right to Indemnification. Each person who was or is made
a party or is threatened to be made a party to or is involved in any action,
suit or proceeding, whether civil, criminal, administrative or investigative
(hereinafter, a "proceeding"), by reason of the fact that such person, or a
person of whom such person is the legal representative, is or was a director,
officer, employee or agent of the Corporation or, while a director, officer,
employee or agent of the Corporation, is or was serving at the request of the
Corporation as a director, officer, employee or agent of any foreign or domestic
corporation, partnership, joint venture, trust, other enterprise or employee
benefit plan, whether the basis of such proceeding is alleged action (or failure
to act) in an official capacity as a director, officer, employee or agent, or in
any other capacity while serving as a director, officer, employee or agent shall
be indemnified and held harmless by the Corporation to the fullest extent
permitted by the Rhode Island General Laws, as the same shall exist from time to
time (but, in the case of an amendment to said General Laws, only to the extent
that such amendment permits the Corporation to provide broader indemnification
rights than said General Laws permitted the Corporation to provide prior to such
amendment) against all expenses, liability and loss (including judgments,
penalties, fines, amounts paid in settlement and reasonable expenses, including
attorney's fees) actually incurred by such person in connection therewith, and
such indemnification shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of such
person's heirs, executors and administrators; provided, however, that the
Corporation shall indemnify any such person seeking indemnity in connection with
a proceeding (or part thereof) initiated by such person only if such proceeding
(or part thereof) was authorized by the Board of Directors of the Corporation.
Such right
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shall be a contract right and shall include the right to be paid by the
Corporation for expenses incurred in defending any such proceeding in advance of
its final disposition; provided, however, that, if the Rhode Island General Laws
so require, the payment of such expenses incurred by a director, officer,
employee or agent in such person's capacity as a director, officer, employee or
agent of the Corporation (and not in any other capacity in which service was or
is rendered by such person while a director, officer, employee or agent,
including, without limitation, service to an employee benefit plan) in advance
of the final disposition of such proceeding, shall be made only upon delivery to
the Corporation by the indemnified party of a written affirmation of such
party's good faith belief that such party has met the applicable standards of
conduct and of an undertaking, by or on behalf of such party, to repay all
amounts so advanced if it shall ultimately be determined that such party is not
entitled to be indemnified under this Section 7.01 or otherwise. Determinations
and authorizations of payment under this Section 7.01 shall be made in the same
manner as the determination that indemnification is permissible.
SECTION 7.02. Right of Claimant to Bring Suit. If a claim under Section
7.01 is not paid in full by the Corporation within 90 days after a written claim
has been received by the Corporation, the claimant may at any time thereafter
bring suit against the Corporation to recover the unpaid amount of the claim
and, if successful in whole or in part, the claimant shall be entitled to be
paid also the expense of prosecuting such claim. It shall be a defense to any
such action (other than an action brought to enforce the claim for expenses
incurred in defending any proceeding in advance of its final disposition where
the required written affirmation and undertaking has been tendered to the
Corporation) that the claimant has not met the standards of conduct which make
it permissible under the Rhode Island General Laws for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense by clear and convincing evidence shall be on the Corporation. Neither
the failure of the Corporation (including its Board of Directors, its
stockholders or independent legal counsel) to have made a determination prior to
the commencement of such action that indemnification of the claimant is proper
in the circumstances, nor an actual determination by the Corporation (including
its Board of Directors, its stockholders or independent legal counsel) that the
claimant has not met such applicable standards of conduct, shall be a defense to
the action or create a presumption that the claimant has not met the applicable
standards of conduct.
SECTION 7.03. Non-Exclusivity of Rights. The rights conferred on any
person by Sections 7.01 and 7.02 of this Article 7 shall not be exclusive of any
other right which such person may have or hereafter acquire under any statute,
provisions of the Articles of Incorporation, Bylaws, agreement, vote of
stockholders or disinterested directors or otherwise.
SECTION 7.04. Insurance. The Corporation may purchase and maintain
insurance, at its expense, to protect itself and any person who is or was a
director, officer, employee or agent of the Corporation, or who, while a
director, officer, employee or agent of the Corporation, is or was serving at
the request of the Corporation as a director, officer, partner, trustee,
employee or agent of any foreign or domestic corporation, partnership, joint
venture, trust, other enterprise or employee benefit plan, against any such
expenses, liability or loss, whether or not the Corporation would have the power
to indemnify such a person against such expenses, liability or loss under the
Rhode Island General Laws.
ARTICLE 8.
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
SECTION 8.01. Execution of Contracts. Unless the Board of Directors or
the Executive Committee shall otherwise determine, the Chairman of the Board,
the President, any Vice President or
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Treasurer and the Secretary or any Assistant Secretary may enter into any
contracts or execute any contract or other instrument, the execution of which is
not otherwise specifically provided for, in the name and on behalf of the
Corporation. The Board of Directors, or any committee designated thereby with
power so to act, except as otherwise provided in these Bylaws, may authorize any
other or additional officer or officers or agent or agents of the Corporation to
enter into any contract or execute and deliver any instrument in the name and on
behalf of the Corporation, and such authorized may be general or confined to
specific instances. Unless authorized so to do by these Bylaws or by the Board
of Directors or by any such committee, no officer, agent or employee shall have
any power or authority to bind the Corporation by any contract or engagement or
to pledge its credit or to render it liable pecuniary for any purpose or to any
amount.
SECTION 8.02. Loans. No loan shall be contracted on behalf of the
Corporation, and no evidence of indebtedness shall be issued, endorsed or
accepted by its name, unless authorized by the Board of Directors or Executive
Committee or other committee designated by the Board so to act. Such authority
may be general or confined to specific instances. When so authorized, the
officer or officers thereunto authorized may effect loans and advances at any
time for the Corporation from any bank, trust company or other institution, or
from any firm, corporation or individual, and for such loans and advances may
make, executive and deliver promissory notes or other evidences of indebtedness
and liabilities of the Corporation, may mortgage, pledge, hypothecate or
transfer any real or personal property at any time owned or held by the
Corporation, and to that end execute instruments of mortgage or pledge or
otherwise transfer such property.
SECTION 8.03. Checks, Drafts, Etc. All checks, drafts, bills of
exchange or other orders for the payment of money, obligations, notes, or other
evidence of indebtedness, bills of lading, warehouse receipts and insurance
certificates of the Corporation, shall be signed or endorsed by such officer or
officers, agent or agents, attorney or attorneys, employee or employees, of the
Corporation as shall from time to time be determined by resolution of the Board
of Directors or Executive Committee or other committee designated by the Board
so to act.
SECTION 8.04. Deposits. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the Corporation
in such banks, trust companies or other depositaries as the Board of Directors
or Executive Committee or other committee designated by the Board so to act may
from time to time designate, or as may be designated by any officer or officers
or agent or agents of the Corporation to whom such power may be delegated by the
Board of Directors or Executive Committee or other committee designated by the
Board so to act and, for the purpose of such deposit and for the purposes of
collection for the account of the Corporation, all checks, drafts and other
orders for the payment of money which are payable to the order of the
Corporation may be endorsed, assigned and delivered by any officer, agent or
employee of the Corporation or in such manner as may from time to time be
designated or determined by resolution of the Board of Directors or Executive
Committee or other committee designated by the Board so to act.
SECTION 8.05. Proxies in Respect of Securities of Other Corporations.
Unless otherwise provided by resolution adopted by the Board of Directors or the
Executive Committee or other committee so designated to act by the Board, the
Chairman of the Board or the President or any Vice President may from time to
time appoint an attorney or attorneys or agent or agents of the Corporation, in
the name and on behalf of the Corporation, to cast votes which the Corporation
may be entitled to cast as the holder of stock or other securities in any other
corporation, association or trust any of whose stock or other securities may be
held by the Corporation, at meetings of the holders of the stock or other
securities of such other corporation, association or trust, or to consent in
writing, in the name of the
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Corporation as such holder to any action by such other corporation, association
or trust, and may instruct the person or persons so appointed as to the manner
of casting such votes or giving such consent, and may execute or cause to be
executed in the name and on behalf of the Corporation and under its corporate
seal, or otherwise, all such written proxies or other instruments as he may deem
necessary or proper in the premises.
ARTICLE 9.
BOOKS AND RECORDS.
SECTION 9.01. Place. The books and records of the Corporation may be
kept at such places within or without the State of Rhode Island as the Board of
Directors from time to time may determine. The stock record books and the blank
stock certificate books shall be kept by the Secretary or by any other officer
or agent designated by the Board of Directors.
SECTION 9.02. Addresses of Stockholders. Each stockholder shall furnish
to the Secretary of the Corporation or to the transfer agent of the Corporation
an address at which notices of meetings and all other corporate notices may be
served upon or mailed to him, and if any stockholder shall fail to designate
such address, corporate notices may be served upon him by mail, postage prepaid,
to him at his post-office address last known to the Secretary or to the transfer
agent of the Corporation or by transmitting a notice thereof to him at such
address by telegraph, cable or other available method.
SECTION 9.03. Record Dates. The Board of Directors may fix in advance a
date, not exceeding 60 days preceding the date of any meeting of stockholders,
or the date for the payment of any dividend, or the date for the allotment of
any rights, or the date when any change or conversion or exchange of capital
stock of the Corporation shall go into effect, or a date in connection with
obtaining such consent, as a record date for the determination of the
stockholders entitled to notice of, and to vote at, any such meeting or any
adjournment thereof, or entitled to receive payment of any such dividend, or to
any such allotment of rights, or to exercise the rights in respect to any
change, conversion or exchange of capital stock of the Corporation, or to give
such consent, and in each case such stockholders of record on the date so fixed
shall be entitled to notice of, or to vote at, such meeting and any adjournment
thereof, or to receive payment of such dividend, or to receive such allotment of
rights, or to exercise such rights or to give such consent, as the case may be,
notwithstanding any transfer of any stock on the books of the Corporation after
any such record date fixed as aforesaid.
SECTION 9.04. Audit of Books and Accounts. The books and accounts of
the Corporation shall be audited at least once in each fiscal year by certified
public accountants of good standing selected by the Board of Directors.
ARTICLE 10.
SHARES AND THEIR TRANSFER.
SECTION 10.01. Certificates of Stock. Every owner of stock of the
Corporation shall be entitled to have a certificate certifying the number of
shares owned by him in the Corporation and designating the class of stock to
which such shares belong, which shall otherwise be in such form as the Board of
Directors shall prescribe. Each such certificate shall be signed by the Chairman
of the Board or the President or a Vice President and the Treasurer or any
Assistant Treasurer or the Secretary or any Assistant Secretary of the
Corporation; provided, however, that where such certificate is signed or
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countersigned by a transfer agent or registrar the signatures of such officers
of the Corporation and the seal of the Corporation may be in facsimile form. In
case any officer or officers who shall have signed, or whose facsimile signature
or signatures shall have been used on, any such certificate or certificates
shall cease to be such officer or officers of the Corporation, whether because
of death, resignation or otherwise, before such certificate or certificates
shall have been delivered by the Corporation, such certificate or certificates
may nevertheless be issued and delivered by the Corporation as though the person
or persons who signed such certificate or whose facsimile signature or
signatures shall have been used thereon had not ceased to be such officer or
officers of the Corporation.
SECTION 10.02. Record. A record shall be kept of the name of the
person, firm or corporation owning the stock represented by each certificate for
stock of the Corporation issued, the number of shares represented by each such
certificate, the date thereof, and, in the case of cancellation, the date of
cancellation. The person in whose name shares of stock stand on the books of the
Corporation shall be deemed the owner thereof for all purposes as regards to the
Corporation.
SECTION 10.03. Transfer of Stock. Transfer of shares of stock of the
Corporation shall be made on the books of the Corporation only by the registered
holder thereof, or by his attorney thereunto authorized, and on the surrender of
the certificate or certificates for such shares properly endorsed.
SECTION 10.04. Transfer Agent and Registrar; Regulations. The
Corporation shall, if and whenever the Board of Directors or Executive Committee
shall so determine, maintain one or more transfer offices or agencies, each in
charge of a transfer agent designated by the Board of Directors, where the
shares of the capital stock of the Corporation shall be directly transferable,
and also if and whenever the Board of Directors shall so determine, maintain one
or more registry offices, each in charge of a registrar designated by the Board
of Directors, where such shares of stock shall be registered. The Board of
Directors may make such rules and regulations as it may deem expedient, not
inconsistent with these Bylaws, concerning the issue, transfer and registration
of certificate for shares of the capital stock of the Corporation.
SECTION 10.05. Lost, Destroyed or Mutilated Certificates. In case of
the alleged loss or destruction or the mutilation of a certificate representing
capital stock of the Corporation, a new certificate may be issued in place
thereof, in the manner and upon such terms as the Board of Directors may
prescribe.
ARTICLE 11.
SEAL.
The Board of Directors shall provide a corporate seal, which shall be
in the form of a circle and shall bear the name of the Corporation and the words
and figures "Incorporated 1970, Rhode Island".
ARTICLE 12.
FISCAL YEAR.
The fiscal year of the Corporation shall be the calendar year.
ARTICLE 13.
15
<PAGE> 16
WAIVER OF NOTICE.
Whenever any notice whatever is required to be given by statute, these
Bylaws or the Articles of Incorporation, a waiver thereof in writing, signed by
the person or persons entitled to said notice, whether before or after the time
state therein, shall be deemed equivalent thereto.
ARTICLE 14.
AMENDMENTS.
These Bylaws may be altered, amended or repeated in whole or in part,
and new Bylaws may be adopted in whole or in part, only by the affirmative vote
of 80% of the Board of Directors and a majority of the Continuing Directors (as
defined in Article SEVENTH of the Articles of Incorporation) or by the
stockholders as provided in the Articles of Incorporation and applicable law. No
amendment may be made unless the Bylaw, as amended, is consistent with the
requirements of law and the Articles of Incorporation.
16
<PAGE> 1
Exhibit 4(t)(i)
FIRST AMENDMENT
TO
CERTIFICATE OF TRUST
OF
FLEET CAPITAL TRUST VI
(TO CERTIFICATE OF TRUST FILED MARCH 16, 1998)
This First Amendment to Certificate of Trust of Fleet Capital Trust VI
dated October 21, 1999, is hereby duly executed and filed by the undersigned, as
trustees of Fleet Capital Trust VI (the "Trust"), for the purpose of amending
the Certificate of Trust of the Trust filed March 16, 1998 (the "Original
Certificate") 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 Trust is "Fleet Capital Trust VI."
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 hereby amended to be The Bank of New
York (Delaware), White Clay Center, Route 273, Newark, Delaware 19711.
3. EFFECTIVE DATE. This First Amendment to 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 First Amendment to Certificate of Trust, have
executed this First Amendment to Certificate of Trust as of the date first above
written.
/s/ Eugene M. McQuade
-------------------------
Name: Eugene M. McQuade
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> 2
THE BANK OF NEW YORK (DELAWARE),
as Trustee
By: /s/ Walter N. Gitlin
--------------------------------
Name:
Title: Authorized Signatory
- 2 -
<PAGE> 1
Exhibit 4(t)(ii)
FIRST AMENDMENT
TO
CERTIFICATE OF TRUST
OF
FLEET CAPITAL TRUST VII
(TO CERTIFICATE OF TRUST FILED MARCH 16, 1998)
This First Amendment to Certificate of Trust of Fleet Capital Trust VII
dated October 21, 1999, is hereby duly executed and filed by the undersigned, as
trustees of Fleet Capital Trust VII (the "Trust"), for the purpose of amending
the Certificate of Trust of the Trust filed March 16, 1998 (the "Original
Certificate") 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 Trust is "Fleet Capital Trust VII."
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 hereby amended to be The Bank of New
York (Delaware), White Clay Center, Route 273, Newark, Delaware 19711.
3. EFFECTIVE DATE. This First Amendment to 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 First Amendment to Certificate of Trust, have
executed this First Amendment to Certificate of Trust as of the date first above
written.
/s/ Eugene M. McQuade
-------------------------
Name: Eugene M. McQuade
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> 2
THE BANK OF NEW YORK (DELAWARE),
as Trustee
By: /s/ Walter N. Gitlin
-----------------------------
Name:
Title: Authorized Signatory
- 2 -
<PAGE> 1
Exhibit 4(t)(iii)
FIRST AMENDMENT
TO
CERTIFICATE OF TRUST
OF
FLEET CAPITAL TRUST VIII
(TO CERTIFICATE OF TRUST FILED MARCH 16, 1998)
This First Amendment to Certificate of Trust of Fleet Capital Trust
VIII dated October 21, 1999, is hereby duly executed and filed by the
undersigned, as trustees of Fleet Capital Trust VIII (the "Trust"), for the
purpose of amending the Certificate of Trust of the Trust filed March 16, 1998
(the "Original Certificate") 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 Trust is "Fleet Capital Trust VIII."
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 hereby amended to be The Bank of New
York (Delaware), White Clay Center, Route 273, Newark, Delaware 19711.
3. EFFECTIVE DATE. This First Amendment to 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 First Amendment to Certificate of Trust, have
executed this First Amendment to Certificate of Trust as of the date first above
written.
/s/ Eugene M. McQuade
-------------------------
Name: Eugene M. McQuade
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> 2
THE BANK OF NEW YORK (DELAWARE),
as Trustee
By: /s/ Walter N. Gitlin
-----------------------------
Name:
Title: Authorized Signatory
- 2 -
<PAGE> 1
Exhibit 4(t)(iv)
FIRST AMENDMENT
TO
CERTIFICATE OF TRUST
OF
FLEET CAPITAL TRUST IX
(TO CERTIFICATE OF TRUST FILED SEPTEMBER 3, 1998)
This First Amendment to Certificate of Trust of Fleet Capital Trust IX
dated October 21, 1999, is hereby duly executed and filed by the undersigned, as
trustees of Fleet Capital Trust IX (the "Trust"), for the purpose of amending
the Certificate of Trust of the Trust filed September 3, 1998 (the "Original
Certificate") 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 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 hereby amended to be The Bank of New
York (Delaware), White Clay Center, Route 273, Newark, Delaware 19711.
3. EFFECTIVE DATE. This First Amendment to 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 Restated Certificate of Trust, have executed this
Restated 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> 2
THE BANK OF NEW YORK (DELAWARE),
as Trustee
By: /s/ William N. Gitlin
-----------------------------
Name:
Title: Authorized Signatory
- 2 -
<PAGE> 1
Exhibit 4(t)(v)
FIRST AMENDMENT
TO
CERTIFICATE OF TRUST
OF
FLEET CAPITAL TRUST X
(TO CERTIFICATE OF TRUST FILED SEPTEMBER 3, 1998)
This First Amendment to Certificate of Trust of Fleet Capital Trust X
dated October 21, 1999, is hereby duly executed and filed by the undersigned, as
trustees of Fleet Capital Trust X (the "Trust"), for the purpose of amending the
Certificate of Trust of the Trust filed September 3, 1998 (the "Original
Certificate") 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 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 hereby amended to be The Bank of New
York (Delaware), White Clay Center, Route 273, Newark, Delaware 19711.
3. EFFECTIVE DATE. This First Amendment to 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 First Amendment to Certificate of Trust, have
executed this First Amendment to 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> 2
THE BANK OF NEW YORK (DELAWARE),
as Trustee
By: /s/ William N. Gitlin
------------------------------
Name:
Title: Authorized Signatory
- 2 -
<PAGE> 1
Exhibit 4(u)(i)
FIRST AMENDMENT TO DECLARATION OF TRUST
OF
FLEET CAPITAL TRUST VI
Dated as of October 21, 1999
<PAGE> 2
FIRST AMENDMENT TO DECLARATION OF TRUST
OF
FLEET CAPITAL TRUST VI
October 21, 1999
THIS FIRST AMENDMENT TO DECLARATION OF TRUST is made as of the 21st day
of October, 1999 by and among Fleet Boston Corporation (the "Sponsor"), The Bank
of New York (Delaware) (the "Delaware Trustee") and Eugene M. McQuade, Douglas
L. Jacobs and John R. Rodehorst (the "Regular Trustees").
W I T N E S S E T H T H A T:
WHEREAS, the Sponsor, the Regular Trustees and First Chicago Delaware
Inc. (the "Original Delaware Trustee") entered into a Declaration of Trust dated
as of March 16, 1998 (the "Original Declaration of Trust") in order 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
in the Original Declaration of Trust) and investing the proceeds thereof in
certain Debentures of the Debenture Issuer (as both terms are defined in the
Original Declaration of Trust) OR (ii) issuing and offering the Preferred
Securities in an Exchange (as defined in the Original Declaration of Trust) and
investing the Parent Shares (as defined in the Original Declaration of Trust)
received in certain Debentures; and
WHEREAS, the Sponsor has appointed the Delaware Trustee to replace the
Original Delaware Trustee; and
WHEREAS, capitalized terms used in this First Amendment but not defined
in the preamble above have the respective meanings assigned to them in the
Original Declaration of Trust; and
NOW, THEREFORE, the Regular Trustees, the Sponsor and the Delaware
Trustee hereby enter into this First Amendment in order to amend the Original
Declaration of Trust as set forth herein.
1. The Original Declaration of Trust is hereby amended as follows:
a. The definition of "Debenture Trustee" set forth in the Original
Declaration of Trust is hereby amended and restated to read in its entirety as
follows:
"'Debenture Trustee' means The Bank of New York, as trustee under the
Indenture until a successor is appointed thereunder, and thereafter means such
successor trustee."
<PAGE> 3
b. The first sentence of Section 3.3 of the Original Declaration of
Trust is hereby amended and restated to read in its entirety as follows:
"The Delaware Trustee shall be The Bank of New York (Delaware)."
2. The Regular Trustees, the Sponsor and the Delaware Trustee have
filed or will file with the Delaware Secretary of State a First Amendment to
Certificate of Trust of the Trust in the form attached hereto as Exhibit A.
3. Except as amended hereby, the Original Declaration of Trust shall
remain in full force and effect and is hereby ratified and confirmed in all
respects.
[Signatures continued on next page]
<PAGE> 4
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
/s/ Eugene M. McQuade
--------------------------
Name: Eugene M. McQuade
Title: Trustee
/s/ Douglas L. Jacobs
--------------------------
Name: Douglas L. Jacobs
Title: Trustee
/s/ John R. Rodehorst
--------------------------
Name: John R. Rodehorst
Title: Trustee
THE BANK OF NEW YORK (DELAWARE),
as Trustee
By: /s/ William N. Gitlin
-----------------------------
Name:
Title: Authorized Signatory
FLEET BOSTON CORPORARION
as Sponsor
By: /s/ Eugene M. McQuade
-----------------------------
Name: Eugene M. McQuade
Title: Vice Chairman and
Chief Financial Officer
<PAGE> 1
Exhibit 4(u)(ii)
FIRST AMENDMENT TO DECLARATION OF TRUST
OF
FLEET CAPITAL TRUST VII
Dated as of October 21, 1999
<PAGE> 2
FIRST AMENDMENT TO DECLARATION OF TRUST
OF
FLEET CAPITAL TRUST VII
October 21, 1999
THIS FIRST AMENDMENT TO DECLARATION OF TRUST is made as of the 21st day
of October, 1999 by and among Fleet Boston Corporation (the "Sponsor"), The Bank
of New York (Delaware) (the "Delaware Trustee") and Eugene M. McQuade, Douglas
L. Jacobs and John R. Rodehorst (the "Regular Trustees").
W I T N E S S E T H T H A T:
WHEREAS, the Sponsor, the Regular Trustees and First Chicago Delaware
Inc. (the "Original Delaware Trustee") entered into a Declaration of Trust dated
as of March 16, 1998 (the "Original Declaration of Trust") in order 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
in the Original Declaration of Trust) and investing the proceeds thereof in
certain Debentures of the Debenture Issuer (as both terms are defined in the
Original Declaration of Trust) OR (ii) issuing and offering the Preferred
Securities in an Exchange (as defined in the Original Declaration of Trust) and
investing the Parent Shares (as defined in the Original Declaration of Trust)
received in certain Debentures; and
WHEREAS, the Sponsor has appointed the Delaware Trustee to replace the
Original Delaware Trustee; and
WHEREAS, capitalized terms used in this First Amendment but not defined
in the preamble above have the respective meanings assigned to them in the
Original Declaration of Trust; and
NOW, THEREFORE, the Regular Trustees, the Sponsor and the Delaware
Trustee hereby enter into this First Amendment in order to amend the Original
Declaration of Trust as set forth herein.
1. The Original Declaration of Trust is hereby amended as follows:
a. The definition of "Debenture Trustee" set forth in the Original
Declaration of Trust is hereby amended and restated to read in its entirety as
follows:
"'Debenture Trustee' means The Bank of New York, as trustee under the
Indenture until a successor is appointed thereunder, and thereafter means such
successor trustee."
<PAGE> 3
b. The first sentence of Section 3.3 of the Original Declaration of
Trust is hereby amended and restated to read in its entirety as follows:
"The Delaware Trustee shall be The Bank of New York (Delaware)."
2. The Regular Trustees, the Sponsor and the Delaware Trustee have
filed or will file with the Delaware Secretary of State a First Amendment to
Certificate of Trust of the Trust in the form attached hereto as Exhibit A.
3. Except as amended hereby, the Original Declaration of Trust shall
remain in full force and effect and is hereby ratified and confirmed in all
respects.
[Signatures continued on next page]
<PAGE> 4
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
/s/ Eugene M. McQuade
--------------------------
Name: Eugene M. McQuade
Title: Trustee
/s/ Douglas L. Jacobs
--------------------------
Name: Douglas L. Jacobs
Title: Trustee
/s/ John R. Rodehorst
--------------------------
Name: John R. Rodehorst
Title: Trustee
THE BANK OF NEW YORK (DELAWARE),
as Trustee
By: /s/ William N. Gitlin
-----------------------------
Name:
Title: Authorized Signatory
FLEET BOSTON CORPORARION
as Sponsor
By: /s/ Eugene M. McQuade
-----------------------------
Name: Eugene M. McQuade
Title: Vice Chairman and
Chief Financial Officer
<PAGE> 1
Exhibit 4(u)(iii)
FIRST AMENDMENT TO DECLARATION OF TRUST
OF
FLEET CAPITAL TRUST VIII
Dated as of October 21, 1999
<PAGE> 2
FIRST AMENDMENT TO DECLARATION OF TRUST
OF
FLEET CAPITAL TRUST VIII
October 21, 1999
THIS FIRST AMENDMENT TO DECLARATION OF TRUST is made as of the 21st day
of October, 1999 by and among Fleet Boston Corporation (the "Sponsor"), The Bank
of New York (Delaware) (the "Delaware Trustee") and Eugene M. McQuade, Douglas
L. Jacobs and John R. Rodehorst (the "Regular Trustees").
W I T N E S S E T H T H A T:
WHEREAS, the Sponsor, the Regular Trustees and First Chicago Delaware
Inc. (the "Original Delaware Trustee") entered into a Declaration of Trust dated
as of March 16, 1998 (the "Original Declaration of Trust") in order 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
in the Original Declaration of Trust) and investing the proceeds thereof in
certain Debentures of the Debenture Issuer (as both terms are defined in the
Original Declaration of Trust) OR (ii) issuing and offering the Preferred
Securities in an Exchange (as defined in the Original Declaration of Trust) and
investing the Parent Shares (as defined in the Original Declaration of Trust)
received in certain Debentures; and
WHEREAS, the Sponsor has appointed the Delaware Trustee to replace the
Original Delaware Trustee; and
WHEREAS, capitalized terms used in this First Amendment but not defined
in the preamble above have the respective meanings assigned to them in the
Original Declaration of Trust; and
NOW, THEREFORE, the Regular Trustees, the Sponsor and the Delaware
Trustee hereby enter into this First Amendment in order to amend the Original
Declaration of Trust as set forth herein.
1. The Original Declaration of Trust is hereby amended as follows:
a. The definition of "Debenture Trustee" set forth in the Original
Declaration of Trust is hereby amended and restated to read in its entirety as
follows:
"'Debenture Trustee' means The Bank of New York, as trustee under the
Indenture until a successor is appointed thereunder, and thereafter means such
successor trustee."
<PAGE> 3
b. The first sentence of Section 3.3 of the Original Declaration of
Trust is hereby amended and restated to read in its entirety as follows:
"The Delaware Trustee shall be The Bank of New York (Delaware)."
2. The Regular Trustees, the Sponsor and the Delaware Trustee have
filed or will file with the Delaware Secretary of State a First Amendment to
Certificate of Trust of the Trust in the form attached hereto as Exhibit A.
3. Except as amended hereby, the Original Declaration of Trust shall
remain in full force and effect and is hereby ratified and confirmed in all
respects.
[Signatures continued on next page]
<PAGE> 4
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
/s/ Eugene M. McQuade
--------------------------
Name: Eugene M. McQuade
Title: Trustee
/s/ Douglas L. Jacobs
--------------------------
Name: Douglas L. Jacobs
Title: Trustee
/s/ John R. Rodehorst
--------------------------
Name: John R. Rodehorst
Title: Trustee
THE BANK OF NEW YORK (DELAWARE),
as Trustee
By: /s/ William N. Gitlin
-----------------------------
Name:
Title: Authorized Signatory
FLEET BOSTON CORPORARION
as Sponsor
By: /s/ Eugene M. McQuade
-----------------------------
Name: Eugene M. McQuade
Title: Vice Chairman and
Chief Financial Officer
<PAGE> 1
Exhibit 4(u)(iv)
FIRST AMENDMENT TO DECLARATION OF TRUST
OF
FLEET CAPITAL TRUST IX
Dated as of October 21, 1999
<PAGE> 2
FIRST AMENDMENT TO DECLARATION OF TRUST
OF
FLEET CAPITAL TRUST IX
October 21, 1999
THIS FIRST AMENDMENT TO DECLARATION OF TRUST is made as of the 21st day
of October, 1999 by and among Fleet Boston Corporation (the "Sponsor"), The Bank
of New York (Delaware) (the "Delaware Trustee") and William C. Mutterperl,
Douglas L. Jacobs and John R. Rodehorst (the "Regular Trustees").
W I T N E S S E T H T H A T:
WHEREAS, the Sponsor, the Regular Trustees and First Chicago Delaware
Inc. (the "Original Delaware Trustee") entered into a Declaration of Trust dated
as of September 3, 1998 (the "Original Declaration of Trust") in order 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 in the Original Declaration of Trust) and investing the proceeds thereof
in certain Debentures of the Debenture Issuer (as both terms are defined in the
Original Declaration of Trust) OR (ii) issuing and offering the Preferred
Securities in an Exchange (as defined in the Original Declaration of Trust) and
investing the Parent Shares (as defined in the Original Declaration of Trust)
received in certain Debentures; and
WHEREAS, the Sponsor has appointed the Delaware Trustee to replace the
Original Delaware Trustee; and
WHEREAS, capitalized terms used in this First Amendment but not defined
in the preamble above have the respective meanings assigned to them in the
Original Declaration of Trust; and
NOW, THEREFORE, the Regular Trustees, the Sponsor and the Delaware
Trustee hereby enter into this First Amendment in order to amend the Original
Declaration of Trust as set forth herein.
1. The Original Declaration of Trust is hereby amended as follows:
a. The definition of "Debenture Trustee" set forth in the Original
Declaration of Trust is hereby amended and restated to read in its entirety as
follows:
"'Debenture Trustee' means The Bank of New York, as trustee under the
Indenture until a successor is appointed thereunder, and thereafter means such
successor trustee."
<PAGE> 3
b. The first sentence of Section 3.3 of the Original Declaration of
Trust is hereby amended and restated to read in its entirety as follows:
"The Delaware Trustee shall be The Bank of New York (Delaware)."
2. The Regular Trustees, the Sponsor and the Delaware Trustee have
filed or will file with the Delaware Secretary of State a First Amendment to
Certificate of Trust of the Trust in the form attached hereto as Exhibit A.
3. Except as amended hereby, the Original Declaration of Trust shall
remain in full force and effect and is hereby ratified and confirmed in all
respects.
[Signatures continued on next page]
<PAGE> 4
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
THE BANK OF NEW YORK (DELAWARE),
as Trustee
By: /s/ William N. Gitlin
-----------------------------
Name:
Title: Authorized Signatory
FLEET BOSTON CORPORARION
as Sponsor
By: /s/ William C. Mutterperl
-----------------------------
Name: William C. Mutterperl
Title: Executive Vice
President, Secretary and
General Counsel
<PAGE> 1
Exhibit 4(u)(v)
FIRST AMENDMENT TO DECLARATION OF TRUST
OF
FLEET CAPITAL TRUST X
Dated as of October 21, 1999
<PAGE> 2
FIRST AMENDMENT TO DECLARATION OF TRUST
OF
FLEET CAPITAL TRUST X
October 21, 1999
THIS FIRST AMENDMENT TO DECLARATION OF TRUST is made as of the 21st day
of October, 1999 by and among Fleet Boston Corporation (the "Sponsor"), The Bank
of New York (Delaware) (the "Delaware Trustee") and William C. Mutterperl,
Douglas L. Jacobs and John R. Rodehorst (the "Regular Trustees").
W I T N E S S E T H T H A T:
WHEREAS, the Sponsor, the Regular Trustees and First Chicago Delaware
Inc. (the "Original Delaware Trustee") entered into a Declaration of Trust dated
as of September 3, 1998 (the "Original Declaration of Trust") in order 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 in the Original Declaration of Trust) and investing the proceeds thereof
in certain Debentures of the Debenture Issuer (as both terms are defined in the
Original Declaration of Trust) OR (ii) issuing and offering the Preferred
Securities in an Exchange (as defined in the Original Declaration of Trust) and
investing the Parent Shares (as defined in the Original Declaration of Trust)
received in certain Debentures; and
WHEREAS, the Sponsor has appointed the Delaware Trustee to replace the
Original Delaware Trustee; and
WHEREAS, capitalized terms used in this First Amendment but not defined
in the preamble above have the respective meanings assigned to them in the
Original Declaration of Trust; and
NOW, THEREFORE, the Regular Trustees, the Sponsor and the Delaware
Trustee hereby enter into this First Amendment in order to amend the Original
Declaration of Trust as set forth herein.
1. The Original Declaration of Trust is hereby amended as follows:
a. The definition of "Debenture Trustee" set forth in the Original
Declaration of Trust is hereby amended and restated to read in its entirety as
follows:
"'Debenture Trustee' means The Bank of New York, as trustee under the
Indenture until a successor is appointed thereunder, and thereafter means such
successor trustee."
<PAGE> 3
b. The first sentence of Section 3.3 of the Original Declaration of
Trust is hereby amended and restated to read in its entirety as follows:
"The Delaware Trustee shall be The Bank of New York (Delaware)."
2. The Regular Trustees, the Sponsor and the Delaware Trustee have
filed or will file with the Delaware Secretary of State a First Amendment to
Certificate of Trust of the Trust in the form attached hereto as Exhibit A.
3. Except as amended hereby, the Original Declaration of Trust shall
remain in full force and effect and is hereby ratified and confirmed in all
respects.
[Signatures continued on next page]
<PAGE> 4
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
THE BANK OF NEW YORK (DELAWARE),
as Trustee
By: /s/ William N. Gitlin
-----------------------------
Name:
Title: Authorized Signatory
FLEET BOSTON CORPORARION
as Sponsor
By: /s/ William C. Mutterperl
-----------------------------
Name: William C. Mutterperl
Title: Executive Vice
President, Secretary and
General Counsel
<PAGE> 1
Exhibit 4(v)
[] AMENDED AND RESTATED
DECLARATION OF TRUST
OF
FLEET CAPITAL TRUST [ ]
Dated as of [ ]
<PAGE> 2
TABLE OF CONTENTS
PAGE
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions 1
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application 6
SECTION 2.2 Lists of Holders of Securities 6
SECTION 2.3 Reports by the Institutional Trustee 7
SECTION 2.4 Periodic Reports to Institutional Trustee 7
SECTION 2.5 Evidence of Compliance with Conditions Precedent 7
SECTION 2.6 Events of Default; Waiver 7
SECTION 2.7 Event of Default; Notice 9
ARTICLE III
ORGANIZATION
SECTION 3.1 Name 9
SECTION 3.2 Office 9
SECTION 3.3 Purpose 9
SECTION 3.4 Authority 10
SECTION 3.5 Title to Property of the Trust 10
SECTION 3.6 Powers and Duties of the Regular Trustees 10
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees 12
SECTION 3.8 Powers and Duties of the Institutional Trustee 13
SECTION 3.9 Certain Duties and Responsibilities of the
Institutional Trustee 14
SECTION 3.10 Certain Rights of the Institutional Trustee 16
SECTION 3.11 Delaware Trustee 17
SECTION 3.12 Execution of Documents 17
SECTION 3.13 Not Responsible for Recitals or Issuance of
Securities 17
SECTION 3.14 Duration of Trust 17
SECTION 3.15 Mergers 18
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities 19
SECTION 4.2 Responsibilities of the Sponsor 19
SECTION 4.3 Right to Proceed 19
SECTION 4.4 Expenses 19
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees 20
SECTION 5.2 Delaware Trustee 21
SECTION 5.3 Institutional Trustee; Eligibility 21
SECTION 5.4 Certain Qualifications of the Regular Trustees
and the Delaware Trustee Generally 22
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SECTION 5.5 Regular Trustees 22
SECTION 5.6 Appointment, Removal and Resignation of Trustees 22
SECTION 5.7 Vacancies among Trustees 23
SECTION 5.8 Effect of Vacancies 23
SECTION 5.9 Meetings 23
SECTION 5.10 Delegation of Power 24
SECTION 5.11 Merger, Conversion, Consolidation or Succession to
Business 24
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions 24
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities 24
SECTION 7.2 Paying Agent 25
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1 Termination of Trust 26
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities 26
SECTION 9.2 Transfer of Certificates 27
SECTION 9.3 Deemed Security Holders 28
SECTION 9.4 Book Entry Interests 28
SECTION 9.5 Notices to Depository Institution 29
SECTION 9.6 Appointment of Successor Depository Institution 29
SECTION 9.7 Definitive Preferred Security Certificates 29
SECTION 9.8 Mutilated, Destroyed, Lost or Stolen Certificates 30
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability 30
SECTION 10.2 Exculpation 30
SECTION 10.3 Fiduciary Duty 31
SECTION 10.4 Indemnification 31
SECTION 10.5 Outside Businesses 33
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year 34
SECTION 11.2 Certain Accounting Matters 34
SECTION 11.3 Banking 34
SECTION 11.4 Withholding 34
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ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments 35
SECTION 12.2 Meetings of the Holders of Securities; Action by
Written Consent 36
ARTICLE XIII
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Institutional
Trustee 37
SECTION 13.2 Representations and Warranties of Delaware Trustee 38
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices 38
SECTION 14.2 Governing Law 39
SECTION 14.3 Intention of the Parties 39
SECTION 14.4 Headings 39
SECTION 14.5 Successors and Assigns 39
SECTION 14.6 Partial Enforceability 39
SECTION 14.7 Counterparts 40
Signatures 41
ANNEX I TERMS OF SECURITIES A-1
EXHIBIT A-1 FORM OF PREFERRED SECURITY CERTIFICATE A1-1
EXHIBIT A-2 FORM OF COMMON SECURITY CERTIFICATE A2-1
EXHIBIT B SPECIMEN OF DEBENTURE B-1
EXHIBIT C PURCHASE AGREEMENT C-1
iii
<PAGE> 5
CROSS-REFERENCE TABLE*
Section of
Trust Indenture Act Section of
of 1939, as Amended Declaration
------------------- -----------
310(a) 5.3(a)
310(b) 5.3(c)
310(c) Inapplicable
311(a) and (b) 5.3(c)
311(c) Inapplicable
312(a) 2.2(a)
312(b) 2.2(b)
313 2.3
314(a) 2.4
314(b) Inapplicable
314(c) 2.5
314(d) Inapplicable
314(e) 310(a)
314(f) Inapplicable
315(a) 3.9(b)
315(b) 2.7(a)
315(c) 3.9(a)
315(d) 3.9(b)
316(a) and (b) 2.6 and Annex I (Sections 5 and 6)
316(c) 3.6(e)
317(a) 3.8(c)
317(b) 3.8(h)
* This Cross-Reference Table does not constitute part of the Declaration
and shall not affect the interpretation of any of its terms or
provisions.
iv
<PAGE> 6
[ ] AMENDED AND RESTATED
DECLARATION OF TRUST
OF
FLEET CAPITAL TRUST [ ]
[ ], 1999
THIS [] AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") is dated
and effective as of [ ] 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 (or their predecessors) and the Sponsor established
Fleet Capital Trust [ ] (the "Trust"), a statutory business trust under the
Business Trust Act (as defined herein), pursuant to a Declaration of Trust dated
as of [ ], as amended to date (the "Original Declaration"), and a Certificate of
Trust filed with the Secretary of State of the State of Delaware on [ ], as
amended to date (the "Certificate of Trust") for the sole purpose of issuing and
selling certain securities representing undivided beneficial interests in the
assets of the Trust and investing the proceeds thereof in certain Debentures of
the Debenture Issuer (both as defined herein); and
WHEREAS, as of the date hereof, no Securities have been issued; and
WHEREAS, all of the Trustees and the Sponsor, by this Declaration, hereby
amend and restate each and every term and provision of the Original Declaration.
NOW, THEREFORE, it being the intention of the parties hereto to continue
the Trust as a business trust under the Business Trust Act and that this
Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the benefit of the Holders, subject to the provisions of this Declaration.
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions.
Unless the context otherwise requires:
(a) capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this Section
1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to this
Declaration as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles, Sections, Annexes and
Exhibits are to Articles and Sections of, and Annexes and Exhibits to, this
Declaration;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Declaration unless otherwise defined in this Declaration or unless
the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Additional Interest" has the meaning set forth in Section 2(d) of Annex I.
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"Affiliate" has the same meaning as given to that term in Rule 405 of the
Securities Act or any successor rule thereunder.
"Agent" means any Paying Agent.
"Authorized Officer" of a Person means any executive officer, president,
vice-president, assistant vice-president, treasurer, assistant treasurer,
secretary, assistant secretary or other officer of such Person generally
authorized to bind such Person.
"Book Entry Interest" means a beneficial interest in a Global Certificate,
ownership and transfers of which shall be maintained and made through book
entries by a Depository Institution as described in Section 9.4.
"Business Day" means any day other than a day on which Federal or State
banking institutions in the Borough of Manhattan, New York, New York are
authorized or obligated by law, executive order or regulation to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12
Del. Code Section 3801 et seq., as it may be amended from time to time, or any
successor legislation.
"Certificate" means a Common Security Certificate or a Preferred Security
Certificate.
"Closing Date" means the "Closing Date" as defined in the Purchase
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, or any successor legislation.
"Commission" means the Securities and Exchange Commission.
"Common Securities" has the meaning set forth in Section 7.1(a).
"Common Securities Guarantee" means the guarantee agreement to be dated as
of [ ], 1999 of the Sponsor in respect of the Common Securities.
"Common Security Certificate" means a definitive certificate in fully
registered form representing a Common Security substantially in the form of
Exhibit A-2.
"Company Indemnified Person" means (a) any Regular Trustee; (b) any
Affiliate of any Regular Trustee; (c) any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Regular Trustee;
or (d) any officer, employee or agent of the Trust or its Affiliates.
"Compound Interest" has the meaning set forth in Section 2(a) of Annex I.
"Corporate Trust Office" means the office of the Institutional Trustee at
which the corporate trust business of the Institutional Trustee shall, at any
particular time, be principally administered, which office at the date of
execution of this Agreement is located at 101 Barclay Street, Floor 21W, New
York, New York 10286.
"Covered Person" means: (a) any officer, director, shareholder, partner,
member, representative, employee or agent of (i) the Trust or (ii) the Trust's
Affiliates; and (b) any Holder of Securities.
"Coupon Rate" has the meaning set forth in Section 2(a) of Annex I.
"Creditor" has the meaning set forth in Section 4.4.
"Debentures" means the [ ]% Junior Subordinated Deferrable Interest
Debentures due [ ] issued by the Debenture Issuer to the Trust.
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"Debenture Issuer" means Fleet Financial Group, Inc., a Rhode Island
corporation, in its capacity as issuer of the Debentures under the Indenture.
"Debt Trustee" means The Bank of New York, as trustee under the Indenture
until a successor is appointed thereunder, and thereafter means such successor
trustee.
"Delaware Trustee" has the meaning set forth in Section 5.2.
"Definitive Preferred Security Certificates" has the meaning set forth in
Section 9.4.
"Depository Institution" shall mean DTC, another clearing agency, or any
successor registered as a clearing agency under the Exchange Act, or other
applicable statute or regulation, which, in each case, shall be designated by
the Debenture Issuer pursuant to either Section 2.03 or 2.11 of the Indenture.
"Depository Institution Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Depository
Institution effects book-entry transfers and pledges of securities deposited
with the Depository Institution.
"Direct Action" has the meaning set forth in Section 3.8(e).
"Distribution" means a distribution payable to Holders of Securities in
accordance with Section 6.1.
"Distribution Payment Date" has the meaning set forth in Section 2(b) of
Annex I.
"DTC" means The Depository Trust Company, the initial Depository
Institution.
"Event of Default" in respect of the Securities means an Event of Default
under the Indenture which has occurred and is continuing in respect of the
Debentures.
"Exchange Act" means the Securities and Exchange Act of 1934, as amended
from time to time, or any successor legislation.
"Extension Period" has the meaning set forth in Section 2(b) of Annex I.
"Federal Reserve Board" means the Board of Governors of the Federal Reserve
System.
"Fiduciary Indemnified Person" has the meaning set forth in Section
10.4(b).
"Global Certificate" has the meaning set forth in Section 9.4.
"Holder" means a Person in whose name a Certificate representing a Security
is registered, such Person being a beneficial owner within the meaning of the
Business Trust Act.
"Indemnified Person" means a Company Indemnified Person or a Fiduciary
Indemnified Person.
"Indenture" means the Indenture dated as of [ ], among the Debenture Issuer
and the Debt Trustee, and any indenture supplemental thereto pursuant to which
the Debentures are to be issued.
"Institutional Trustee" means the Trustee meeting the eligibility
requirements set forth in Section 5.3.
"Institutional Trustee Account" has the meaning set forth in Section
3.8(c).
"Investment Company" means an investment company as defined in the
Investment Company Act.
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"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time, or any successor legislation.
"Legal Action" has the meaning set forth in Section 3.6(g).
"Liquidation" has the meaning set forth in Section 3 of Annex I.
"Liquidation Distribution" has the meaning set forth in Section 3 of Annex
I.
"List of Holders" has the meaning set forth in Section 2.2(a).
"Majority in liquidation amount of the Securities" means, except as
provided in the terms of the Preferred Securities set forth in Annex I hereto or
by the Trust Indenture Act, Holder(s) of outstanding Securities voting together
as a single class or, as the context may require, Holders of outstanding
Preferred Securities or Holders of outstanding Common Securities voting
separately as a class, who are the record owners of more than 50% of the
aggregate liquidation amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid Distributions to
the date upon which the voting percentages are determined) of all outstanding
Securities of the relevant class.
"NYSE" means the New York Stock Exchange, Inc.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by two Authorized Officers of such Person. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Declaration shall include:
(a) a statement that each Authorized Officer signing the Certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each Authorized Officer in rendering the
Certificate;
(c) a statement that each such Authorized Officer has made such examination
or investigation as, in such Authorized Officer's opinion, is necessary to
enable such Authorized Officer to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such Authorized
Officer, such condition or covenant has been complied with.
"Paying Agent" has the meaning set forth in Section 7.2.
"Payment Amount" has the meaning set forth in Section 6.1.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Preferred Guarantee Trustee" means The Bank of New York, as trustee under
the Preferred Securities Guarantee until a successor is appointed thereunder,
and thereafter means such successor trustee.
"Preferred Securities" has the meaning set forth in Section 7.1(a).
"Preferred Securities Guarantee" means the guarantee agreement to be dated
as of [ ] of the Sponsor in respect of the Preferred Securities.
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"Preferred Security Beneficial Owner" means, with respect to a Book Entry
Interest, a Person who is the beneficial owner of such Book Entry Interest, as
reflected on the books of the Depository Institution, or on the books of a
Person maintaining an account with such Depository Institution (directly as a
Depository Institution Participant or as an indirect participant, in each case
in accordance with the rules of such Depository Institution).
"Preferred Security Certificate" means a certificate representing a
Preferred Security substantially in the form of Exhibit A-1.
"Prepayment Price" has the meaning set forth in Section 4(b) of Annex I.
"Pro Rata" has the meaning set forth in Section 8 of Annex I.
"Purchase Agreement" means the Purchase Agreement for the offering and sale
of Preferred Securities in the form of Exhibit C.
"Quorum" means a majority of the Regular Trustees or, if there are only two
Regular Trustees, both of them.
"Redemption/Distribution Notice" has the meaning set forth in Section 4(f)
of Annex I.
"Redemption Price" shall have the meaning set forth in Section 4(a) of
Annex I.
"Regular Trustee" has the meaning set forth in Section 5.1.
"Regulatory Capital Event" has the meaning set forth in Section 4(c) of
Annex I.
"Related Party" means, with respect to the Sponsor, any direct or indirect
wholly owned subsidiary of the Sponsor or any other Person that owns, directly
or indirectly, 100% of the outstanding voting securities of the Sponsor.
"Resignation Request" has the meaning set forth in Section 5.6(c).
"Responsible Officer" means, with respect to the Institutional Trustee, any
officer within the Corporate Trust Office of the Institutional Trustee,
including any vice president, any assistant vice president, any assistant
secretary, any assistant treasurer or other officer of the Corporate Trust
Office of the Institutional Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of that officer's knowledge of and familiarity with
the particular subject.
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act.
"Securities" means the Common Securities and the Preferred Securities.
"Securities Act" means the Securities Act of 1933, as amended from time to
time, or any successor legislation.
"Securities Guarantees" means the Common Securities Guarantee and the
Preferred Securities Guarantee.
"Special Event" has the meaning set forth in Section 4(c) of Annex I.
"Sponsor" means Fleet Financial Group, Inc., a Rhode Island corporation, or
any successor entity in a merger, consolidation or amalgamation, in its capacity
as sponsor of the Trust.
"Stated Maturity" has the meaning set forth in Section 4(a) of Annex I.
"Successor Delaware Trustee" has the meaning set forth in Section
5.6(b)(ii).
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"Successor Entity" has the meaning set forth in Section 3.15(b)(i).
"Successor Institutional Trustee" has the meaning set forth in Section
5.6(b)(i).
"Successor Securities" has the meaning set forth in Section 3.15(b)(i).
"Super Majority" has the meaning set forth in Section 2.6(a)(ii).
"Tax Event" has the meaning set forth in Section 4(c) of Annex I hereto.
"10% in liquidation amount of the Securities" means, except as provided in
the terms of the Preferred Securities set forth in Annex I hereto or by the
Trust Indenture Act, Holder(s) of outstanding Securities voting together as a
single class or, as the context may require, Holders of outstanding Preferred
Securities or Holders of outstanding Common Securities voting separately as a
class, who are the record owners of 10% or more of the aggregate liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the date upon
which the voting percentages are determined) of all outstanding Securities of
the relevant class.
"Transfer Agent" has the meaning set forth in Section 9.2(e).
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
from time to time, or any successor legislation.
"Trustee" or "Trustees" means each Person who has signed this Declaration
as a trustee, so long as such Person shall continue in office in accordance with
the terms hereof, and all other Persons who may from time to time be duly
appointed, qualified and serving as Trustees in accordance with the provisions
hereof, and references herein to a Trustee or the Trustees shall refer to such
Person or Persons solely in their capacity as trustees hereunder.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the Trust Indenture
Act that are required to be part of this Declaration and shall, to the extent
applicable, be governed by such provisions.
(b) The Institutional Trustee shall be the only Trustee which is a trustee
for the purposes of the Trust Indenture Act.
(c) If, and to the extent that, any provision of this Declaration limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, the duties imposed by the Trust Indenture
Act shall control.
(d) The application of the Trust Indenture Act to this Declaration shall
not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
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SECTION 2.2 Lists of Holders of Securities.
(a) Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide the Institutional Trustee (i) within 14 days after each record
date for payment of Distributions, a list, in such form as the Institutional
Trustee may reasonably require, of the names and addresses of the Holders ("List
of Holders") as of such record date, provided that neither the Sponsor nor the
Regular Trustees on behalf of the Trust shall be obligated to provide such List
of Holders at any time the List of Holders does not differ from the most recent
List of Holders given to the Institutional Trustee by the Sponsor and the
Regular Trustees on behalf of the Trust, and (ii) at any other time, within 30
days of receipt by the Trust of a written request for a List of Holders as of a
date no more than 14 days before such List of Holders is given to the
Institutional Trustee. The Institutional Trustee shall preserve, in as current a
form as is reasonably practicable, all information contained in the Lists of
Holders given to it or which it receives in its capacity as Paying Agent (if
acting in such capacity) provided that the Institutional Trustee may destroy any
List of Holders previously given to it on receipt of a new List of Holders.
(b) The Institutional Trustee shall comply with its obligations under
Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Institutional Trustee.
(a) The Institutional Trustee shall transmit to Holders such reports
concerning the Institutional Trustee and its actions under this Indenture as may
be required pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant thereto. If required by Section 313(a) of the Trust Indenture
Act, the Institutional Trustee shall, within sixty days after each August 15
following the date of this Indenture deliver to Holders a brief report, dated as
of such August 15, which complies with the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Institutional Trustee with each stock exchange, if any,
upon which the Securities are listed, with the Commission and with the Trust.
The Trust will promptly notify the Institutional Trustee when the Securities are
listed on any stock exchange and of any delisting thereof.
SECTION 2.4 Periodic Reports to Institutional Trustee.
(a) Each of the Sponsor and the Regular Trustees on behalf of the Trust
covenants and agrees to file with the Institutional Trustee, within 15 days
after the Trust 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 Trust may be required to file with
the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or,
if the Trust is not required to file information, documents or reports pursuant
to either of such sections, then to file with the Institutional 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) Each of the Sponsor and the Regular Trustees on behalf of the Trust
covenants and agrees to file with the Institutional 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 Trust with the conditions and covenants provided for in this
Declaration as may be required from time to time by such rules and regulations.
(c) Each of the Sponsor and the Regular Trustees on behalf of the Trust
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 Institutional Trustee, such summaries of
any information, documents and reports required to be filed by the Trust
pursuant to subsections (a) and (b) of this Section 2.4 as may be required by
rules and regulations prescribed from time to time by the Commission.
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(d) Each of the Sponsor and the Regular Trustees on behalf of the Trust
covenants and agrees to furnish to the Institutional 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.
(e) Delivery of such reports, information and documents to the
Institutional Trustee is for informational purposes only and the Institutional
Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Trust's compliance with any of its covenants hereunder
(as to which the Institutional Trustee is entitled to rely exclusively on
Officers' Certificates).
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Regular Trustees on behalf of the Trust shall
provide to the Institutional Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Declaration that relate to
any of the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) may be given in the form of an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver.
(a) Subject to Section 2.6(c), the Holders of a Majority in liquidation
amount of Preferred Securities may, by vote, on behalf of the Holders of all of
the Preferred Securities, waive any past Event of Default in respect of the
Preferred Securities and its consequences, provided that, if the underlying
Event of Default under the Indenture:
(i) is not waivable under the Indenture, the Event of Default under
the Declaration shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority in
principal amount of the holders of the Debentures (a "Super
Majority") to be waived under the Indenture, then the Event of
Default under the Declaration may only be waived by the vote of
the Holders of at least the proportion in liquidation amount of
the Preferred Securities that the relevant Super Majority
represents of the aggregate principal amount of the Debentures
outstanding; or
(iii) requires the consent or vote of each holder of Debentures to be
waived under the Indenture, then the Event of Default under the
Declaration may only be waived by each Holder of Preferred
Securities.
The foregoing provisions of this Section 2.6(a) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act. Upon such waiver, any such
default shall cease to exist, and any Event of Default with respect to the
Preferred Securities arising therefrom shall be deemed to have been cured, for
every purpose of this Declaration, but no such waiver shall extend to any
subsequent or other default or an Event of Default with respect to the Preferred
Securities or impair any right consequent thereon. Any waiver by the Holders of
the Preferred Securities of an Event of Default with respect to the Preferred
Securities shall also be deemed to constitute a waiver by the Holders of the
Common Securities of any such Event of Default with respect to the Common
Securities for all purposes of this Declaration without any further act, vote,
or consent of the Holders of the Common Securities.
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(b) Subject to Section 2.6(c), the Holders of a Majority in liquidation
amount of the Common Securities may, by vote, on behalf of the Holders of all of
the Common Securities, waive any past Event of Default with respect to the
Common Securities and its consequences, provided that, if the underlying Event
of Default under the Indenture:
(i) is not waivable under the Indenture, except where the Holders
of the Common Securities are deemed to have waived such Event
of Default under the Declaration as provided below in this
Section 2.6(b), then the Event of Default under the Declaration
shall also not be waivable; or
(ii) requires the consent or vote of (A) a Super Majority to be
waived, then the Event of Default under the Declaration may
only be waived by the vote of the Holders of at least the
proportion in liquidation amount of the Common Securities that
the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding or (B) each
holder of Debentures to be waived, then the Event of Default
under the Declaration may only be waived by each Holder of
Preferred Securities, except where the Holders of the Common
Securities are deemed to have waived such Event of Default
under the Declaration as provided below in this Section 2.6(b);
provided further, each Holder of Common Securities will be
deemed to have waived any such Event of Default and all Events
of Default with respect to the Common Securities and its
consequences until all Events of Default with respect to the
Preferred Securities have been cured, waived or otherwise
eliminated, and until such Events of Default have been so
cured, waived or otherwise eliminated, the Institutional
Trustee will be deemed to be acting solely on behalf of the
Holders of the Preferred Securities and only the Holders of the
Preferred Securities will have the right to direct the
Institutional Trustee in accordance with the terms of the
Securities set forth in Annex I hereto. If any Event of Default
with respect to the Preferred Securities is waived by the
Holders of Preferred Securities as provided in this
Declaration, the Holders of Common Securities agree that such
waiver shall also constitute the waiver of such Event of
Default with respect to the Common Securities for all purposes
under this Declaration without any further act, vote or consent
of the Holders of the Common Securities. Subject to the
foregoing provisions of this Section 2.6(b), upon such waiver,
any such default shall cease to exist and any Event of Default
with respect to the Common Securities arising therefrom shall
be deemed to have been cured for every purpose of this
Declaration, but no such waiver shall extend to any subsequent
or other default or Event of Default with respect to the Common
Securities or impair any right consequent thereon. The
foregoing provisions of this Section 2.6(b) shall be in lieu of
Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture
Act and such Sections 316(a)(1)(A) and 316(a)(1)(B) of the
Trust Indenture Act are hereby expressly excluded from this
Declaration and the Securities, as permitted by the Trust
Indenture Act. Subject to the foregoing provisions of this
Section 2.6(b), upon such waiver, any such default shall cease
to exist and any Event of Default with respect to the Common
Securities arising therefrom shall be deemed to have been cured
for every purpose of this Declaration, but no such waiver shall
extend to any subsequent or other default or Event of Default
with respect to the Common Securities or impair any right
consequent thereon.
(c) The right of any Holder to receive payment of Distributions in
accordance with this Declaration and the terms of the Securities set forth in
Annex I on or after the respective payment dates therefor, or to institute suit
for the enforcement of any such payment on or after such payment dates, shall
not be impaired without the consent of each such Holder.
(d) A waiver of an Event of Default under the Indenture by the
Institutional Trustee at the written direction of the Holders of the Preferred
Securities constitutes a waiver of the corresponding Event of Default under this
Declaration. The foregoing provisions of this Section 2.6(d) shall be in lieu of
Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of
the Trust Indenture Act is hereby expressly excluded from this Declaration and
the Securities, as permitted by the Trust Indenture Act.
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SECTION 2.7 Event of Default; Notice.
(a) The Institutional Trustee shall, within 90 days after the occurrence of
an Event of Default, transmit by mail, first class postage prepaid, to the
Holders, notice of all defaults with respect to the Securities actually known to
a Responsible Officer, unless such defaults have been cured before the giving of
such notice (the term "defaults" for the purposes of this Section 2.7(a) being
hereby defined to be an Event of Default as defined in the Indenture, not
including any periods of grace provided for therein and irrespective of the
giving of any notice provided therein); provided that, except for a default in
the payment of principal of, premium, if any, or interest on any of the
Debentures or in the payment of any sinking fund installment established for the
Debentures, the Institutional Trustee shall be protected in withholding such
notice if and so long as a Responsible Officer in good faith determines that the
withholding of such notice is in the interests of the Holders; and provided
further, that in the case of any default of the character specified in Section
5.01(c) of the Indenture, no such notice to Holders shall be given until at
least 60 days after the occurrence thereof but shall be given within 90 days
after such occurrence.
(b) The Institutional Trustee shall not be deemed to have knowledge of any
default except:
(i) a default under Sections 5.01(a), (b), (d), (e) and (f) of the
Indenture; or
(ii) any default as to which the Institutional Trustee shall have
received written notice or of which a Responsible Officer
charged with the administration of the Declaration shall have
actual knowledge.
ARTICLE III
ORGANIZATION
SECTION 3.1 Name.
The Trust continued by this Declaration is named "Fleet Capital Trust [ ],"
as such name may be modified from time to time by the Regular Trustees following
written notice to the Holders. The Trust's activities may be conducted under the
name of the Trust or any other name deemed advisable by the Regular Trustees.
SECTION 3.2 Office.
The address of the principal office of the Trust is c/o Fleet Financial
Group, Inc., One Federal Street, Boston, Massachusetts 02110. Upon ten (10)
Business Days' written notice to the Holders of Securities, the Regular Trustees
may designate another principal office.
SECTION 3.3 Purpose.
The exclusive purposes and functions of the Trust are (i) to issue (a) its
Preferred Securities pursuant to the Purchase Agreement in exchange for cash and
(b) its Common Securities to the Sponsor in exchange for cash, and to use the
aggregate proceeds of the sale of the Securities to purchase the Debentures,
(ii) to enter into such agreements and arrangements as may be necessary in
connection with the issuance and sale of the Securities and to take all actions,
and exercise such discretion, as may be necessary or desirable in connection
with the issuance and sale of the Securities and to file such registration
statements or make such other filings under the Securities Act, the Exchange Act
or State securities or "Blue Sky" laws as may be necessary or desirable in
connection with the Offer and the issuance and sale of the Securities, and (iii)
except as otherwise limited herein, to engage in only those other activities
necessary or incidental thereto. As more specifically provided in Section 3.7,
the Trust shall not borrow money, issue debt or reinvest proceeds derived from
investments, pledge any of its assets, or otherwise undertake (or permit to be
undertaken) any activity that would cause the Trust not to be classified for
United States Federal income tax purposes as a grantor trust.
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SECTION 3.4 Authority.
Subject to the limitations provided in this Declaration and to the specific
duties of the Institutional Trustee, the Regular Trustees shall have exclusive
and complete authority to carry out the purposes of the Trust. Any action taken
by the Regular Trustees in accordance with their powers shall constitute the act
of and serve to bind the Trust and any action taken by the Institutional Trustee
on behalf of the Trust in accordance with its powers shall constitute the act of
and serve to bind the Trust. In dealing with the Trustees acting on behalf of
the Trust, no person shall be required to inquire into the authority of the
Trustees to bind the Trust. Persons dealing with the Trust are entitled to rely
conclusively on the power and authority of the Trustees as set forth in this
Declaration.
SECTION 3.5 Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the Debentures and the
Institutional Trustee Account or as otherwise provided in this Declaration,
legal title to all assets of the Trust shall be vested in the Trust. The Holders
shall not have legal title to any part of the assets of the Trust, but shall
have an undivided beneficial interest in the assets of the Trust.
SECTION 3.6 Powers and Duties of the Regular Trustees.
The Regular Trustees shall have the exclusive power, duty and authority to
cause the Trust to engage in the following activities:
(a) to issue and sell the Securities in accordance with this Declaration;
provided, however, that the Trust may issue no more than one series of 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 Securities shall be limited to a one-time
simultaneous issuance of both Preferred Securities and Common Securities on the
Closing Date;
(b) in connection with the issue 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 prepared by the Sponsor, including any
and all amendments thereto, pertaining 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 exchange;
(iii) execute and file an application, prepared by the Sponsor, to
the NYSE 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) execute and enter into the Purchase Agreement providing for
the sale of the Preferred Securities; and
(vi) execute and deliver letters, documents or instruments with
DTC.
(c) to acquire the Debentures with the proceeds of the sale of the
Preferred Securities and the Common Securities; provided, however, that the
Regular Trustees shall cause legal title to the Debentures to be held of record
in the name of the Institutional Trustee for the benefit of the Holders;
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(d) to give the Sponsor and the Institutional Trustee prompt written notice
of the occurrence of a Special Event;
(e) to establish a record date with respect to all actions to be taken
hereunder that require a record date be established, including and with respect
to, for the purposes of Section 316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue relevant
notices to the Holders of Securities as to such actions and applicable record
dates;
(f) to take all actions and perform such duties as may be required of the
Regular Trustees pursuant to the terms of the Securities set forth in Annex I
hereto;
(g) to bring or defend, pay, collect, compromise, arbitrate, resort to
legal action, or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 3.8(e), the Institutional Trustee
has the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors, and
consultants and pay reasonable compensation for such services;
(i) to cause the Trust to comply with the Trust's obligations under the
Trust Indenture Act;
(j) to give the certificate required by Section 314(a)(4) of the Trust
Indenture Act to the Institutional Trustee, which certificate may be executed by
any Regular Trustee;
(k) to incur expenses that are necessary or incidental to carry out any of
the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar, transfer
agent and paying agent for the Securities;
(m) to give prompt written notice to the Holders of any notice received
from the Debenture Issuer of its election to defer payments of interest on the
Debentures by extending the interest payment period under the Indenture;
(n) to execute all documents or instruments, perform all duties and powers,
and do all things for and on behalf of the Trust in all matters necessary or
incidental to the foregoing;
(o) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders or to enable the Trust
to effect the purposes for which the Trust was created;
(p) to take any action, not inconsistent with this Declaration or with
applicable law, that the Regular Trustees determine in their discretion to be
necessary or desirable in carrying out the activities of the Trust as set out in
this Section 3.6, including, but not limited to:
(i) causing the Trust not to be deemed to be an Investment Company
required to be registered under the Investment Company Act;
(ii) causing the Trust to be classified for United States Federal
income tax purposes as a grantor trust; and
(iii) cooperating with the Debenture Issuer to ensure that the
Debentures will be treated as indebtedness of the Debenture
Issuer for United States Federal income tax purposes,
provided that such actions do not adversely affect the interests of
Holders; and
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(q) to take all action necessary to cause all applicable tax returns and
tax information reports that are required to be filed with respect to the Trust
to be duly prepared and filed by the Regular Trustees, on behalf of the Trust.
The Regular Trustees shall exercise the powers set forth in this Section
3.6 in a manner that is consistent with the purposes and functions of the Trust
set out in Section 3.3, and the Regular Trustees shall not take any action that
is inconsistent with the purposes and functions of the Trust set forth in
Section 3.3.
Subject to this Section 3.6, the Regular Trustees shall have none of the
powers or the authority of the Institutional Trustee set forth in Section 3.8.
Any expenses incurred by the Regular Trustees pursuant to this Section 3.6
shall be reimbursed by the Debenture Issuer.
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees.
(a) The Trust shall not, and the Trustees (including the Institutional
Trustee) shall cause the Trust not to, engage in any activity other than in
connection with the purpose of the Trust or other than as required or authorized
by this Declaration. In particular, the Trust shall not, and the Trustees
(including the Institutional Trustee) shall cause the Trust not to:
(i) invest any proceeds received by the Trust from holding the
Debentures, but shall distribute all such proceeds to Holders
pursuant to the terms of this Declaration and of the
Securities;
(ii) acquire any assets other than as expressly provided herein;
(iii) possess Trust property for other than a Trust purpose;
(iv) make any investments, other than investments represented by
the Debentures;
(v) possess any power or otherwise act in such a way as to vary
the Trust assets or the terms of the Securities in any way
whatsoever;
(vi) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than
the Securities;
(vii) incur any indebtedness for borrowed money; or
(viii) other than as provided in this Declaration or Annex I hereto,
(A) direct the time, method and place of exercising any trust
or power conferred upon the Debt Trustee with respect to the
Debentures, (B) waive any past default that is waivable under
the Indenture, (C) exercise any right to rescind or annul any
declaration that the principal of all the Debentures held in
the Trust shall be due and payable, or (D) consent to any
amendment, modification or termination of the Indenture or the
Debentures if such action would cause the Trust to be
classified for United States Federal income tax purposes as
other than a grantor trust or would cause the Trust to be
deemed an Investment Company required to be registered under
the Investment Company Act.
SECTION 3.8 Powers and Duties of the Institutional Trustee.
(a) The legal title to the Debentures shall be owned by and held of record
in the name of the Institutional Trustee in trust for the benefit of the
Holders. The right, title and interest of the Institutional Trustee to the
Debentures shall vest automatically in each Person who may hereafter be
appointed as Institutional Trustee in accordance with Section 5.6. Such vesting
and cessation of title shall be effective whether or not conveyancing documents
with regard to the Debentures have been executed and delivered.
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(b) The Institutional Trustee shall not transfer its right, title and
interest in the Debentures to the Regular Trustees or to the Delaware Trustee
(if the Institutional Trustee does not also act as Delaware Trustee).
(c) The Institutional Trustee shall:
(i) establish and maintain a segregated non-interest bearing trust
account (the "Institutional Trustee Account") in the name of
and under the exclusive control of the Institutional Trustee
on behalf of the Holders and, upon the receipt of payments of
funds made in respect of the Debentures held by the
Institutional Trustee, deposit such funds into the
Institutional Trustee Account and make payments to the Holders
from the Institutional Trustee Account in accordance with
Section 6.1. Funds in the Institutional Trustee Account shall
be held uninvested until disbursed in accordance with this
Declaration;
(ii) engage in such ministerial activities as shall be necessary or
appropriate to effect the redemption of the Securities to the
extent the Debentures are redeemed or mature; and
(iii) upon written notice of distribution issued by the Regular
Trustees in accordance with the terms of the Securities,
engage in such ministerial activities as shall be necessary or
appropriate to effect the distribution of the Debentures to
Holders in accordance with the provisions of the Indenture.
(d) The Institutional Trustee shall take all actions and perform such
duties as may be specifically required of the Institutional Trustee pursuant to
the terms of the Securities.
(e) The Institutional Trustee shall take any Legal Action which arises out
of or in connection with (i) an Event of Default of which a Responsible Officer
has actual knowledge or (ii) the Institutional Trustee's duties and obligations
under this Declaration or the Trust Indenture Act. If the Institutional Trustee
fails to enforce its rights under the Debentures after a Holder of Preferred
Securities has made a written request, such Holder may institute a legal
proceeding against the Debenture Issuer to enforce the Institutional Trustee's
rights under the Debentures without first instituting any legal proceeding
against the Institutional Trustee or any other person or entity. Notwithstanding
the foregoing, if an Event of Default has occurred and is continuing and such
event is attributable to the failure of the Debenture Issuer to pay interest or
principal on the Debentures on the date such interest or principal is otherwise
payable (or in the case of redemption, on the redemption date), then a Holder of
Preferred Securities may directly institute a proceeding for enforcement of
payment to such Holder of the principal of, or interest on, the Debentures
having a principal amount equal to the aggregate liquidation amount of the
Preferred Securities of such Holder (a "Direct Action") on or after the
respective due date specified in the Debentures. Notwithstanding any payments
made to such Holder of Preferred Securities by the Debenture Issuer in
connection with a Direct Action, the Debenture Issuer shall remain obligated to
pay the principal of or interest on the Debentures held by the Trust or the
Institutional Trustee of the Trust, and the Debenture Issuer shall be subrogated
to the rights of the Holder of such Preferred Securities with respect to
payments on the Preferred Securities. Except as provided in the preceding
sentences and in the Preferred Securities Guarantee, the Holders of Preferred
Securities will not be able to exercise directly any other remedy available to
the holders of the Debentures.
(f) The Institutional Trustee shall not resign as a Trustee unless either:
(i) the Trust has been completely liquidated and the proceeds of
the liquidation distributed to the Holders pursuant to the
terms of the Securities; or
(ii) a Successor Institutional Trustee has been appointed and has
accepted that appointment in accordance with Section 5.6.
(g) The Institutional Trustee shall have the legal power to exercise all of
the rights, powers and privileges of a holder of Debentures under the Indenture
and, if an Event of Default actually known to a Responsible Officer
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occurs and is continuing, the Institutional Trustee shall, for the benefit of
Holders, enforce its rights as holder of the Debentures subject to the rights of
the Holders pursuant to the terms of such Securities.
(h) The Institutional Trustee may authorize one or more Persons (each, a
"Paying Agent") to pay Distributions, redemption payments or liquidation
payments on behalf of the Trust with respect to all securities and any such
Paying Agent shall comply with Section 317(b) of the Trust Indenture Act. Any
Paying Agent may be removed by the Institutional Trustee at any time and a
successor Paying Agent or additional Paying Agents may be appointed at any time
by the Institutional Trustee, in each case without prior notice to the Holders.
The Paying Agent may perform such functions whenever the Institutional Trustee
may do so. Each reference in this Declaration to payment to the Holders by the
Institutional Trustee includes such payment by a Paying Agent. A Paying Agent
has the same rights as the Institutional Trustee to deal with the Sponsor or an
Affiliate, and itself may be the Trust, an Affiliate of the Trust or a Related
Party of the Sponsor. The Institutional Trustee is hereby appointed to initially
act as Paying Agent for the Securities.
(i) The Institutional Trustee shall give prompt written notice to the
Holders of the Securities of any notice received by it from the Debenture Issuer
of the Debenture Issuer's election to defer payments of interest on the
Debentures by extending the interest payment period with respect thereto.
(j) The Institutional Trustee shall notify all Holders of the Preferred
Securities of any notice of default received from the Debt Trustee with respect
to the Debentures. Such notice shall state that such event of default under the
Indenture also constitutes an Event of Default hereunder.
(k) Subject to this Section 3.8, the Institutional Trustee shall have none
of the duties, liabilities, powers or the authority of the Regular Trustees set
forth in Section 3.6.
The Institutional Trustee shall exercise the powers set forth in this
Section 3.8 and in Sections 3.9 and 3.10 in a manner that is consistent with the
purposes and functions of the Trust set out in Section 3.3, and the
Institutional Trustee shall not take any action that is inconsistent with the
purposes and functions of the Trust set out in Section 3.3.
SECTION 3.9 Certain Duties and Responsibilities of the Institutional
Trustee.
(a) The Institutional Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Declaration and no implied covenants shall be read into this Declaration
against the Institutional Trustee. In case an Event of Default has occurred
(that has not been cured or waived pursuant to Section 2.6) of which a
Responsible Officer has actual knowledge, the Institutional Trustee shall
exercise such of the rights and powers vested in it by this Declaration, and use
the same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(b) No provision of this Declaration shall be construed to relieve the
Institutional Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and after the
curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Institutional Trustee shall
be determined solely by the express provisions of this
Declaration and the Institutional Trustee shall not be liable
except for the performance of such duties and obligations as
are specifically set forth in this Declaration, and no implied
covenants or obligations shall be read into this Declaration
against the Institutional Trustee; and
(B) in the absence of bad faith on the part of the Institutional
Trustee, the Institutional Trustee may conclusively rely, as
to the truth of the statements and the correctness of the
opinions expressed
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therein, upon any certificates or opinions furnished to the
Institutional Trustee and conforming to the requirements of
this Declaration; but in the case of any such certificates or
opinions that by any provision hereof are specifically
required to be furnished to the Institutional Trustee, the
Institutional Trustee shall be under a duty to examine the
same to determine whether or not they conform to the
requirements of this Declaration;
(ii) the Institutional Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it shall be proved that the Institutional Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Institutional Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than
a Majority in liquidation amount of the Securities relating to
the time, method and place of conducting any proceeding for
any remedy available to the Institutional Trustee, or
exercising any trust or power conferred upon the Institutional
Trustee under this Declaration;
(iv) no provision of this Declaration shall require the
Institutional Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for
believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Declaration
or adequate indemnity against such risk is not reasonably
assured to it;
(v) the Institutional Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the
Debentures and the Institutional Trustee Account shall be to
deal with such property in a similar manner as the
Institutional Trustee deals with similar property for its own
account, subject to the protections and limitations on
liability afforded to the Institutional Trustee under this
Declaration and the Trust Indenture Act;
(vi) the Institutional Trustee shall have no duty or liability for
or with respect to the value, genuineness, existence or
sufficiency of the Debentures or the payment of any taxes or
assessments levied thereon or in connection therewith;
(vii) the Institutional Trustee shall not be liable for any interest
on any money received by it except as it may otherwise agree
with the Sponsor. Money held by the Institutional Trustee need
not be segregated from other funds held by it except in
relation to the Institutional Trustee Account maintained by
the Institutional Trustee pursuant to Section 3.8(c)(i) and
except to the extent otherwise required by law; and
(viii) the Institutional Trustee shall not be responsible for
monitoring the compliance by the Regular Trustees or the
Sponsor with their respective duties under this Declaration,
nor shall the Institutional Trustee be liable for any default
or misconduct of the Regular Trustees or the Sponsor.
SECTION 3.10 Certain Rights of the Institutional Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Institutional Trustee may conclusively rely and shall be
protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, bond, debenture or
other paper or document believed by it to be genuine and to
have been signed, sent or presented by the proper party or
parties;
(ii) any direction or act of the Sponsor or the Regular Trustees
contemplated by this Declaration shall be sufficiently
evidenced by an Officers' Certificate;
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(iii) whenever in the administration of this Declaration, the
Institutional Trustee shall deem it desirable that a matter be
proved or established before taking, suffering or omitting any
action hereunder, the Institutional Trustee (unless other
evidence is herein specifically prescribed) may, in the
absence of bad faith on its part, request and conclusively
rely upon an Officers' Certificate which, upon receipt of such
request, shall be promptly delivered by the Sponsor or the
Regular Trustees;
(iv) the Institutional Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including
any financing or continuation statement or any filing under
tax or securities laws) or any rerecording, refiling or
registration thereof;
(v) the Institutional Trustee may consult with counsel or other
experts of its selection and the advice or opinion of such
counsel and experts with respect to legal matters or advice
within the scope of such experts' area of expertise shall be
full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good
faith and in accordance with such advice or opinion, which
counsel may be counsel to the Sponsor or any of its
Affiliates, and may include any of its employees. The
Institutional Trustee shall have the right at any time to seek
instructions concerning the administration of this Declaration
from any court of competent jurisdiction;
(vi) the Institutional Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Declaration at the request, order or direction of any Holder,
unless such Holder shall have provided to the Institutional
Trustee security and indemnity satisfactory to the
Institutional Trustee against the costs, expenses (including
attorneys' fees and expenses and the expenses of the
Institutional Trustee's agents, nominees or custodians) and
liabilities that might be incurred by it in complying with
such request or direction, including such reasonable advances
as may be requested by the Institutional Trustee provided,
that, nothing contained in this Section 3.10(a)(vi) shall be
taken to relieve the Institutional Trustee, upon the
occurrence of an Event of Default, of its obligation to
exercise the rights and powers vested in it by this
Declaration;
(vii) the Institutional Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond,
debenture, coupon or other paper or document, but the
Institutional Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as
it may see fit;
(viii) the Institutional Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents, custodians, nominees or
attorneys and the Institutional Trustee shall not be
responsible for any misconduct or negligence on the part of
any agent or attorney appointed with due care by it hereunder;
(ix) any action taken by the Institutional Trustee or its agents
hereunder shall bind the Trust and the Holders; and the
signature of the Institutional Trustee or its agents alone
shall be sufficient and effective to perform any such action
and no third party shall be required to inquire as to the
authority of the Institutional Trustee to so act or as to its
compliance with any of the terms and provisions of this
Declaration, both of which shall be conclusively evidenced by
the Institutional Trustee's or its agent's taking such action;
(x) whenever in the administration of this Declaration the
Institutional Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or
taking any other action hereunder, the Institutional Trustee
(i) may request instructions from the Holders which
instructions may only be given by the Holders of the same
proportion in liquidation amount of the Securities as would be
entitled to direct the Institutional Trustee under the terms
of the Securities in respect of such remedy, right or action,
(ii) may refrain from enforcing such remedy or right or
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taking such other action until such instructions are received,
and (iii) shall be protected in conclusively relying on or
acting in or accordance with such instructions; and
(xi) except as otherwise expressly provided by this Declaration,
the Institutional Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of
this Declaration.
(b) No provision of this Declaration shall be deemed to impose any duty or
obligation on the Institutional Trustee to perform any act or acts or exercise
any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Institutional Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Institutional
Trustee shall be construed to be a duty.
SECTION 3.11 Delaware Trustee.
Notwithstanding any other provision of this Declaration other than Section
5.2, the Delaware Trustee shall not be entitled to exercise any powers, nor
shall the Delaware Trustee have any of the duties and responsibilities of the
Regular Trustees or the Institutional Trustee described in this Declaration.
Except as set forth in Section 5.2, the Delaware Trustee shall be a Trustee for
the sole and limited purpose of fulfilling the requirements of Section 3807 of
the Business Trust Act. Notwithstanding anything herein to the contrary, the
Delaware Trustee shall not be liable for the acts or omissions to act of the
Trust or of the Regular Trustees except such acts as the Delaware Trustee is
expressly obligated or authorized to undertake under this Declaration or the
Business Trust Act and except for the gross negligence or willful misconduct of
the Delaware Trustee.
SECTION 3.12 Execution of Documents.
Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act or applicable law, any one of the
Regular Trustees is authorized to execute on behalf of the Trust any documents
which the Regular Trustees have the power and authority to execute pursuant to
Section 3.6.
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this Declaration and the Securities shall be
taken as the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as to
the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this
Declaration or the Securities.
SECTION 3.14 Duration of Trust.
The Trust, unless terminated pursuant to the provisions of Article VIII
hereof, shall have existence until [ ], 2053.
SECTION 3.15 Mergers.
(a) The Trust may not consolidate, amalgamate, merge with or into, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body, except as
described in Section 3.15(b) and (c).
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(b) The Trust may, with the consent of the Regular Trustees or, if there
are more than two, a majority of the Regular Trustees, and without the consent
of the Holders, the Institutional Trustee or the Delaware Trustee, consolidate,
amalgamate, merge with or into, or be replaced by a trust organized as such
under the laws of any State of the United States; provided that:
(i) if the Trust is not the survivor, such successor entity (the
"Successor Entity") either:
(A) expressly assumes all of the obligations of the Trust under
the Securities; or
(B) substitutes for the Preferred Securities other securities
having substantially the same terms as the Preferred
Securities (the "Successor Securities") so long as the
Successor Securities rank the same as the Preferred Securities
rank with respect to Distributions and payments upon
liquidation, redemption and otherwise;
(ii) the Debenture Issuer expressly acknowledges a trustee of the
Successor Entity that possesses the same powers and duties as
the Institutional Trustee as the holder of the Debentures;
(iii) the 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 (including any Successor Securities) in any
material respect (other than with respect to any dilution of
such Holders' interests in the Successor Entity);
(vi) such Successor Entity has a purpose identical to that of the
Trust;
(vii) prior to such merger, consolidation, amalgamation or
replacement, the Debenture Issuer has received an opinion of a
nationally recognized independent counsel to the Trust
experienced in such matters to the effect that:
(A) such merger, consolidation, amalgamation or replacement does
not adversely affect the rights, preferences and privileges of
the Holders (including any Successor Securities) in any
material respect (other than with respect to any dilution of
the Holders' interest in the Successor Entity); and
(B) following such merger, consolidation, amalgamation or
replacement, neither the Trust nor the Successor Entity will
be required to register as an Investment Company;
(C) following such merger, consolidation, amalgamation or
replacement, the Trust (or the Successor Entity) will be
treated as a grantor trust for United States Federal income
tax purposes; and
(viii) the Sponsor guarantees the obligations of such Successor
Entity under the Successor Securities at least to the extent
provided by the Preferred Securities Guarantee and the Common
Securities Guarantee.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except with the
consent of Holders of 100% in liquidation amount of the Securities, consolidate,
amalgamate, merge with or into, or be replaced by any other entity or permit any
other entity to consolidate, amalgamate, merge with or into, or replace it, if
such consolidation,
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amalgamation, merger or replacement would cause the Trust or Successor Entity to
be classified as other than a grantor trust for United States Federal income tax
purposes.
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities.
On the Closing Date the Sponsor will purchase all of the Common Securities
issued by the Trust, in an amount at least equal to 3% of the total capital of
the Trust, at the same time as the Preferred Securities are issued pursuant to
the Purchase Agreement.
SECTION 4.2 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 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 all or part of the Preferred Securities and to do any and
all such acts, other than actions which must be taken by the Trust, and advise
the Trust of actions it must take, and prepare for execution and filing any
documents to be executed and filed by the Trust, as the Sponsor deems necessary
or advisable in order to comply with the applicable laws of any such states;
(c) if so determined by the Sponsor, to prepare for filing by the Trust an
application to the NYSE or any other national stock exchange or the NASDAQ
National Market for listing or quotation upon notice of issuance of the
Preferred Securities;
(d) if so determined by the Sponsor, to prepare for filing by the Trust
with the Commission a registration statement on Form 8-A relating to the
registration of the Preferred Securities under Section 12(b) of the Exchange
Act, including any amendments thereto; and
(e) to negotiate the terms of the Purchase Agreement providing for the
issuance of the Preferred Securities.
SECTION 4.3 Right to Proceed.
The Sponsor acknowledges the rights of the Holders to institute a Direct
Action as set forth in Section 3.8(e) hereto.
SECTION 4.4 Expenses.
In connection with the offering, sale and issuance of the Debentures to the
Institutional Trustee and in connection with the sale of the Securities by the
Trust, the Debenture Issuer, in its capacity as borrower with respect to the
Debentures, shall:
(a) pay all costs and expenses relating to the offering, sale and issuance
of the Debentures, including commissions to the underwriters payable pursuant to
the Purchase Agreement and compensation, reimbursement and indemnification of
the Trustee under the Indenture in accordance with the provisions of Section
6.06 of the Indenture;
(b) be responsible for and shall pay all debts and obligations (other than
with respect to the Securities) and all costs and expenses of the Trust
(including, but not limited to, costs and expenses relating to the organization,
maintenance and dissolution of the Trust, the offering, sale and issuance of the
Securities (including commissions to
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the underwriters in connection therewith), the fees and expenses (including
reasonable counsel fees and expenses) of the Institutional Trustee, the Delaware
Trustee and the Regular Trustees (including any amounts payable under Article X
of this Declaration), the costs and expenses relating to the operation of the
Trust, including without limitation, costs and expenses of accountants,
attorneys, statistical or bookkeeping services, expenses for printing and
engraving and computing or accounting equipment, paying agent(s), registrar(s),
transfer agent(s), duplicating, travel and telephone and other
telecommunications expenses and costs and expenses incurred in connection with
the acquisition, financing, and disposition of Trust assets and the enforcement
by the Institutional Trustee of the rights of the Holders of the Preferred
Securities);
(c) be primarily liable for any indemnification obligations arising with
respect to this Declaration; and
(d) pay any and all taxes (other than United States withholding taxes
attributable to the Trust or its assets) and all liabilities, costs and expenses
with respect to such taxes of the Trust.
The Debenture Issuer's obligations under this Section 4.4 shall be for the
benefit of, and shall be enforceable by, any person to whom such debts,
obligations, costs, expenses and taxes are owed (a "Creditor") whether or not
such Creditor has received notice hereof. Any such Creditor may enforce the
Debenture Issuer's obligations under this Section 4.4 directly against the
Debenture Issuer and the Debenture Issuer irrevocably waives any right of remedy
to require that any such Creditor take any action against the Trust or any other
Person before proceeding against the Debenture Issuer. The Debenture Issuer
agrees to execute such additional agreements as may be necessary or desirable in
order to give full effect to the provisions of this Section 4.4.
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees.
(a) The number of Trustees initially shall be five. At any time before the
issuance of any Securities, the Sponsor may, by written instrument, increase or
decrease the number of Trustees. After the issuance of any Securities, the
number of Trustees may be increased or decreased by vote of the Holders of a
majority in liquidation amount of the Common Securities voting as a class at a
meeting of the Holders of the Common Securities; provided, however, that, the
number of Trustees shall in no event be less than two; and provided further that
(i) one Trustee, in the case of a natural person, shall be a person who is a
resident of the State of Delaware or that, if not a natural person, is an entity
which has its principal place of business in the State of Delaware (the
"Delaware Trustee"); (ii) there shall be at least one Trustee who is an employee
or officer of, or is affiliated with the Sponsor (a "Regular Trustee"); and
(iii) one Trustee shall be the Institutional Trustee for so long as this
Declaration is required to qualify as an indenture under the Trust Indenture
Act, and such Trustee may also serve as Delaware Trustee if it meets the
applicable requirements.
(b) Any action taken by Holders of Common Securities pursuant to this
Article V shall be taken at a meeting of Holders of Common Securities convened
for such purpose or by written consent of such Holders.
(c) Except as otherwise provided herein, no amendment may be made to this
Section 5.1 which would change any rights with respect to the number, existence
or appointment and removal of Trustees, except with the consent of each Holder
of Common Securities.
SECTION 5.2 Delaware Trustee.
If required by the Business Trust Act, one Trustee (the "Delaware Trustee")
shall be:
(a) a natural person who is a resident of the State of Delaware; or
(b) if not a natural person, an entity which has its principal place of
business in the State of Delaware, and otherwise meets the requirements of
applicable law, provided that, if the Institutional Trustee has its principal
place
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of business in the State of Delaware and otherwise meets the requirements of
applicable law, then the Institutional Trustee shall also be the Delaware
Trustee and Section 3.11 shall have no application.
The initial Delaware Trustee shall be The Bank of New York (Delaware), an
affiliate of the Institutional Trustee, until removed or replaced in accordance
with Section 5.6.
SECTION 5.3 Institutional Trustee; Eligibility.
(a) There shall at all times be one Trustee which shall act as
Institutional Trustee which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under the laws
of the United States of America or any State or Territory
thereof or of the District of Columbia, or a corporation or
Person permitted by the Commission to act as an institutional
trustee under the Trust Indenture Act, authorized under such
laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000 (US), and subject
to supervision or examination by Federal, State, Territorial
or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to
law or to the requirements of the supervising or examining
authority referred to above, then for the purposes of this
Section 5.3(a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Institutional Trustee shall cease to be eligible to
so act under Section 5.3(a), the Institutional Trustee shall immediately resign
in the manner and with the effect set forth in Section 5.6(c).
(c) If the Institutional Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act or
becomes a creditor of the Sponsor during the time periods specified in Section
311 of the Trust Indenture Act, the Institutional Trustee and the Holder of the
Common Securities (as if it were the obligor referred to in Section 310(b) of
the Trust Indenture Act) shall in all respects comply with the provisions of
Section 310(b) and 311 of the Trust Indenture Act, as applicable.
(d) The Preferred Securities Guarantee shall be deemed to be specifically
described in this Declaration for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
(e) The initial Institutional Trustee shall be The Bank of New York until
removed or replaced in accordance with Section 5.6.
SECTION 5.4 Certain Qualifications of the Regular Trustees and the Delaware
Trustee Generally.
Each Regular Trustee and the Delaware Trustee (unless the Institutional
Trustee also acts as Delaware Trustee) shall be either a natural person who is
at least 21 years of age or a legal entity that shall act through one or more
Authorized Officers.
SECTION 5.5 Regular Trustees.
The initial Regular Trustees shall be Eugene M. McQuade, Douglas L. Jacobs
and John R. Rodehorst.
(a) Except as expressly set forth in this Declaration and except if a
meeting of the Regular Trustees is called with respect to any matter over which
the Regular Trustees have power to act, any power of the Regular Trustees may be
exercised by, or with the consent of, any one such Regular Trustee.
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(b) Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act or applicable law, any one of the
Regular Trustees is authorized to execute on behalf of the Trust any documents
which the Regular Trustees have the power and authority to execute pursuant to
Section 3.6; and
(c) a Regular Trustee may, by power of attorney consistent with applicable
law, delegate to any other natural person over the age of 21 his or her power
for the purposes of signing any documents which the Regular Trustees have power
and authority to cause the Trust to execute pursuant to Section 3.6.
SECTION 5.6 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 5.6(b), Trustees may be appointed or removed without
cause at any time:
(i) until the issuance of any Securities, by written instrument
executed by the Sponsor; and
(ii) after the issuance of any Securities, by vote of the Holders
of a Majority in liquidation amount of the Common Securities
voting as a class at a meeting of the Holders of the Common
Securities.
(b) (i) The Trustee that acts as Institutional Trustee shall not be
removed in accordance with Section 5.6(a) until a successor
institutional Trustee possessing the qualifications to act as
Institutional Trustee under Section 5.3(a) (a "Successor
Institutional Trustee") has been appointed and has accepted
such appointment by written instrument executed by such
Successor Institutional Trustee and delivered to the Regular
Trustees, the Sponsor and the Institutional Trustee being
removed; and
(ii) the Trustee that acts as Delaware Trustee shall not be removed
in accordance with this Section 5.6(a) until a successor
Trustee possessing the qualifications to act as Delaware
Trustee under Sections 5.2 and 5.4 (a "Successor Delaware
Trustee") has been appointed and has accepted such appointment
by written instrument executed by such Successor Delaware
Trustee and delivered to the Regular Trustees, the Sponsor and
the Delaware Trustee being removed.
(c) A Trustee appointed to office shall hold office until his successor
shall have been appointed or until his death, removal or resignation. Any
Trustee may resign from office (without need for prior or subsequent accounting)
by an instrument (a "Resignation Request") in writing signed by the Trustee and
delivered to the Sponsor and the Trust, which resignation shall take effect upon
such delivery or upon such later date as is specified therein; provided,
however, that:
(i) no such resignation of the Trustee that acts as the
Institutional Trustee shall be effective:
(A) until a Successor Institutional Trustee has been appointed and
has accepted such appointment by instrument executed by such
Successor Institutional Trustee and delivered to the Trust,
the Sponsor and the resigning Institutional Trustee; or
(B) until the assets of the Trust have been completely liquidated
and the proceeds thereof distributed to the holders of the
Securities; and
(ii) no such resignation of the Trustee that acts as the Delaware
Trustee shall be effective until a Successor Delaware Trustee
has been appointed and has accepted such appointment by
instrument executed by such Successor Delaware Trustee and
delivered to the Trust, the Sponsor and the resigning Delaware
Trustee.
(d) The Holders of the Common Securities shall use their best efforts to
promptly appoint a Successor Institutional Trustee or Successor Delaware Trustee
as the case may be if the Institutional Trustee or the Delaware Trustee delivers
a Resignation Request in accordance with this Section 5.6.
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(e) If no Successor Institutional Trustee or Successor Delaware Trustee
shall have been appointed and accepted appointment as provided in this Section
5.6 within 60 days after delivery of a notice of removal or a Resignation
Request, the Institutional Trustee or Delaware Trustee resigning or being
removed, as applicable, may petition, at the expense of the Sponsor, any court
of competent jurisdiction for appointment of a Successor Institutional Trustee
or Successor Delaware Trustee. Such court may thereupon, after prescribing such
notice, if any, as it may deem proper and prescribe, appoint a Successor
Institutional Trustee or Successor Delaware Trustee, as the case may be.
(f) No Institutional Trustee or Delaware Trustee shall be liable for the
acts or omissions to act of any Successor Institutional Trustee or Successor
Delaware Trustee, as the case may be.
SECTION 5.7 Vacancies among Trustees.
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 5.1, or if the number of Trustees is
increased pursuant to Section 5.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by the Regular Trustees or, if there
are more than two, a majority of the Regular Trustees, shall be conclusive
evidence of the existence of such vacancy. The vacancy shall be filled with a
Trustee appointed in accordance with Section 5.6.
SECTION 5.8 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee shall
not operate to annul the Trust. Whenever a vacancy in the number of Regular
Trustees shall occur, until such vacancy is filled by the appointment of a
Regular Trustee in accordance with Section 5.6, the Regular Trustees in office,
regardless of their number, shall have all the powers granted to the Regular
Trustees and shall discharge all the duties imposed upon the Regular Trustees by
this Declaration.
SECTION 5.9 Meetings.
If there is more than one Regular Trustee, meetings of the Regular Trustees
shall be held from time to time upon the call of any Regular Trustee. Regular
meetings of the Regular Trustees may be held at a time and place fixed by
resolution of the Regular Trustees. Notice of any in-person meetings of the
Regular Trustees shall be hand delivered or otherwise delivered in writing
(including by facsimile, with a hard copy by overnight courier) not less than 48
hours before such meeting. Notice of any telephonic meetings of the Regular
Trustees or any committee thereof shall be hand delivered or otherwise delivered
in writing (including by facsimile, with a hard copy by overnight courier) not
less than 24 hours before a meeting. Notices shall contain a brief statement of
the time, place and anticipated purposes of the meeting. The presence (whether
in person or by telephone) of a Regular Trustee at a meeting shall constitute a
waiver of notice of such meeting except where a Regular Trustee attends a
meeting for the express purpose of objecting to the transaction of any activity
on the ground that the meeting has not been lawfully called or convened. Unless
provided otherwise in this Declaration, any action of the Regular Trustees may
be taken at a meeting by vote of a majority of the Regular Trustees present
(whether in person or by telephone) and eligible to vote with respect to such
matter, provided that a Quorum is present, or without a meeting by the unanimous
written consent of the Regular Trustees. In the event there is only one Regular
Trustee, any and all action of such Regular Trustee shall be evidenced by a
written consent of such Regular Trustee.
SECTION 5.10 Delegation of Power.
The Regular Trustees shall have power to delegate from time to time to such
of their number or to officers of the Trust the doing of such things and the
execution of such instruments either in the name of the Trust or the names of
the Regular Trustees or otherwise as the Regular Trustees may deem expedient, to
the extent such delegation is not prohibited by applicable law or contrary to
the provisions of the Trust, as set forth herein.
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Section 5.11 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Institutional Trustee or the Delaware
Trustee, as the case may be, may be merged or converted or with which either may
be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Institutional Trustee or the Delaware Trustee, as the
case may be, shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Institutional Trustee or
the Delaware Trustee, as the case may be, shall be the successor of the
Institutional Trustee or the Delaware Trustee, as the case may be, hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions.
Holders shall receive Distributions (as defined herein) in accordance with
the applicable terms of the relevant Holder's Securities as set forth in Annex
I. If and to the extent that the Debenture Issuer makes a payment of interest
(including Compound Interest and Additional Interest), premium and/or principal
on the Debentures held by the Institutional Trustee (the amount of any such
payment being a "Payment Amount"), the Institutional Trustee shall and is
directed, to the extent funds are available for that purpose, to make a
distribution (a "Distribution") of the Payment Amount to Holders.
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.
(a) The Regular Trustees shall on behalf of the Trust issue one class of
preferred securities (the "Preferred Securities"), representing undivided
beneficial interests in the assets of the Trust having such terms as are set
forth in Annex I (which terms are incorporated by reference in, and made a part
of, this Declaration as if specifically set forth herein) and one class of
common securities (the "Common Securities"), representing undivided beneficial
interests in the assets of the Trust having such terms as are set forth in Annex
I (which terms are incorporated by reference in, and made a part of, this
Declaration as if specifically set forth herein). The Trust shall issue no
securities or other interests in the assets of the Trust other than the
Preferred Securities and the Common Securities. Each Security shall be dated the
date of its authentication.
(b) The Certificates shall be signed on behalf of the Trust by a Regular
Trustee. Such signature shall be the manual or facsimile signature of any
present or any future Regular Trustee. Typographical and other minor errors or
defects in any such reproduction of any such signature shall not affect the
validity of any Security. In case any Regular Trustee of the Trust who shall
have signed any of the Securities shall cease to be such Regular Trustee before
the Certificates so signed shall be delivered by the Trust, such Certificates
nevertheless may be delivered as though the person who signed such Certificates
had not ceased to be such Regular Trustee; and any Certificate may be signed on
behalf of the Trust by such persons who, at the actual date of execution of such
Security, shall be the Regular Trustees of the Trust, although at the date of
the execution and delivery of the Declaration any such person was not such a
Regular Trustee. Certificates shall be printed, lithographed or engraved or may
be produced in any other manner as is reasonably acceptable to the Regular
Trustees, as evidenced by their execution thereof, and may have such letters,
numbers or other marks of identification or designation and such legends or
endorsements as the Regular Trustees may deem appropriate, or as may be required
to comply with any law or with any rule or regulation of any stock exchange on
which Securities may be listed, or to conform to usage. Pending the preparation
of definitive Preferred Securities, the Regular Trustees on behalf of the Trust
may execute and upon written order of any Regular Trustee, the Institutional
Trustee shall authenticate, temporary Preferred Securities (printed,
lithographed or typewritten), substantially in the form of the definitive
Preferred Securities in lieu of which they are issued, but with such omissions,
insertions and variations as may be appropriate for temporary Preferred
Securities
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all as may be determined by the Regular Trustees on behalf of the Trust upon the
same conditions and in substantially the same manner, and with like effect, as
definitive Preferred Securities. Without unnecessary delay, the Regular Trustees
on behalf of the Trust will execute and furnish and upon written order of any
Regular Trustee the Institutional Trustee shall authenticate, definitive
Preferred Securities and thereupon any or all temporary Preferred Securities may
be surrendered to the transfer agent and registrar in exchange therefor (without
charge to the Holders).
(c) A Security shall not be valid until authenticated by the manual
signature of an authorized signatory of the Institutional Trustee. The signature
shall be conclusive evidence that the Security has been authenticated under this
Declaration.
The Institutional Trustee may appoint an authenticating agent acceptable to
the Trust to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Institutional Trustee may do so. Each reference in this
Declaration to authentication by the Institutional Trustee includes
authentication by such agent. An authenticating agent has the same rights as the
Institutional Trustee to deal with the Sponsor or an Affiliate, and may itself
be an Affiliate of the Trust or a Related Party of the Sponsor. The
Institutional Trustee hereby appoints The Bank of New York to initially act as
authenticating agent for the Securities.
(d) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(e) Upon issuance of the Securities as provided in this Declaration, the
Securities so issued shall be deemed to be validly issued, fully paid and
non-assessable.
(f) Every Person, by virtue of having become a Holder or a Preferred
Security Beneficial Owner in accordance with the terms of this Declaration,
shall be deemed to have expressly assented and agreed to the terms of, and shall
be bound by, this Declaration.
SECTION 7.2 Paying Agent.
In the event that the Preferred Securities are not in book-entry only form,
the Trust shall maintain in the Borough of Manhattan, City of New York, State of
New York, an office or agency where the Preferred Securities may be presented
for payment ("Paying Agent"). The Trust may appoint the Paying Agent and may
appoint one or more additional paying agents in such other locations as it shall
determine. The term "Paying Agent" includes any additional paying agent. The
Trust may change any Paying Agent without prior notice to any Holder. The Trust
shall notify the Institutional Trustee of the name and address of any Agent not
a party to this Declaration. If the Trust fails to appoint or maintain another
entity as Paying Agent, the Institutional Trustee shall act as such. The Trust
or any of its Affiliates may act as Paying Agent. The Bank of New York shall
initially act as Paying Agent for the Preferred Securities and the Common
Securities.
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1 Termination of Trust.
(a) The Declaration and the Trust shall terminate and be of no further
force or effect:
(i) on [ ], the expiration of the term of the Trust;
(ii) upon the bankruptcy of the Sponsor or the Trust;
(iii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor, the filing of a
certificate of cancellation with respect to the Trust after
having obtained the consent of the Holders of at least a
Majority in liquidation amount of the Securities voting
together as a
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single class to file such certificate of cancellation, or the
revocation of the Sponsor's charter and the expiration of 90
days after the date of revocation without a reinstatement
thereof;
(iv) upon the entry of a decree of judicial dissolution of the
Holder of the Common Securities, the Sponsor or the Trust;
(v) when all of the Securities shall have been called for
redemption and the amounts necessary for redemption thereof,
including any Additional Interest or Compound Interest, shall
have been paid to the Holders in accordance with the terms of
the Securities;
(vi) upon the distribution of all of the Debentures to the Holders
in exchange for all of the Securities in accordance with the
terms of the Securities; or
(vii) before the issuance of any Securities, with the consent of all
of the Regular Trustees and the Sponsor.
(b) As soon as is practicable after the occurrence of an event referred to
in Section 8.1(a), the Trustees shall file a certificate of cancellation with
the Secretary of State of the State of Delaware.
(c) The provisions of Section 3.9 and Article X shall survive the
termination of the Trust.
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities.
(a) Securities may only be transferred, in whole or in part, in accordance
with the terms and conditions set forth in this Declaration and in the terms of
the Securities. Any transfer or purported transfer of any Security not made in
accordance with this Declaration shall be null and void.
(b) Subject to this Article IX, Preferred Securities shall be freely
transferable.
(c) The Sponsor may not transfer the Common Securities.
SECTION 9.2 Transfer of Certificates.
(a) GENERAL. The Regular Trustees shall provide for the registration of
Certificates and of transfers of Certificates, which will be effected without
charge but only upon payment (with such indemnity as the Regular Trustees may
require) in respect of any tax or other government charges that may be imposed
in relation to it. Upon surrender for registration of transfer of any
Certificate, the Regular Trustees shall cause one or more new Certificates to be
issued and authenticated by the Institutional Trustee in the name of the
designated transferee or transferees. Every Certificate surrendered for
registration of transfer shall be accompanied by a written instrument of
transfer in form satisfactory to the Regular Trustees duly executed by the
Holder or such Holder's attorney duly authorized in writing. Each Certificate
surrendered for registration of transfer shall be canceled by the Regular
Trustees. A transferee of a Certificate shall be entitled to the rights and
subject to the obligations of a Holder hereunder upon the receipt by such
transferee of a Certificate. By acceptance of a Certificate, each transferee
shall be deemed to have agreed to be bound by this Declaration.
(b) TRANSFER OF A DEFINITIVE PREFERRED SECURITY CERTIFICATE FOR A
BENEFICIAL INTEREST IN A GLOBAL CERTIFICATE. Upon receipt by the Institutional
Trustee of a Definitive Preferred Security Certificate, duly endorsed or
accompanied by appropriate instruments of transfer, in form satisfactory to the
Institutional Trustee, requesting transfer of such Definitive Preferred Security
Certificate for a beneficial interest in a Global Certificate, the Institutional
Trustee shall cancel such Definitive Preferred Security Certificate and cause,
or direct the Depository Institution to cause, the aggregate number of Preferred
Securities represented by the appropriate Global Certificate
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to be increased accordingly. If no Global Certificates are then outstanding, the
Trust shall issue and the Institutional Trustee shall authenticate, upon written
order of any Regular Trustee, an appropriate number of Preferred Securities in
global form.
(c) TRANSFER OF A BENEFICIAL INTEREST IN A GLOBAL CERTIFICATE FOR A
DEFINITIVE PREFERRED SECURITY CERTIFICATE. Upon receipt by the Institutional
Trustee from the Depository Institution or its nominee on behalf of any Person
having a beneficial interest in a Global Certificate of written instructions or
such other form of instructions as is customary for the Depository Institution
or the person designated by the Depository Institution, requesting transfer of a
beneficial interest in a Global Certificate for a Definitive Preferred Security
Certificate, then the Institutional Trustee or the securities custodian, at the
direction of the Institutional Trustee, will cause, in accordance with the
standing instructions and procedures existing between the Depository Institution
and the securities custodian, the aggregate principal amount of the Global
Certificate to be reduced on its books and records and, following such
reduction, the Trust will execute and the Institutional Trustee will
authenticate and deliver to the transferee a Definitive Preferred Security
Certificate.
Definitive Preferred Security Certificates issued in exchange for a
beneficial interest in a Global Certificate shall be registered in such names
and in such authorized denominations as the Depository Institution, pursuant to
instructions from its Depository Institution Participants or indirect
participants or otherwise, shall instruct the Institutional Trustee. The
Institutional Trustee shall deliver such Preferred Securities to the persons in
whose names such Preferred Securities are so registered in accordance with the
instructions of the Depository Institution.
(d) TRANSFER AND EXCHANGE OF GLOBAL CERTIFICATES. Notwithstanding any other
provisions of this Declaration, a Global Certificate may not be transferred as a
whole except by the Depository Institution to a nominee of the Depository
Institution or another nominee of the Depository Institution or by the
Depository Institution or any such nominee to a successor Depository Institution
or a nominee of such successor Depository Institution.
(e) The Institutional Trustee may appoint a transfer agent and registrar
("Transfer Agent") acceptable to the Trust to perform the functions set forth in
this Section 9.2. The Transfer Agent may perform such functions whenever the
Institutional Trustee may do so. Each reference in this Declaration to
registration and transfer of Preferred Securities by the Institutional Trustee
includes such activities by the Transfer Agent. The Transfer Agent has the same
rights as the Institutional Trustee to deal with the Sponsor or an Affiliate,
and itself may be the Trust, an Affiliate of the Trust or a Related Party of the
Sponsor. The Institutional Trustee hereby appoints The Bank of New York to
initially act as Transfer Agent for the Preferred Securities.
SECTION 9.3 Deemed Security Holders.
The Trustees may treat the Person in whose name any Certificate shall be
registered on the books and records of the Trust as the sole holder of such
Certificate and of the Securities represented by such Certificate for purposes
of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such Certificate or in the Securities represented by such
Certificate on the part of any Person, whether or not the Trust shall have
actual or other notice thereof.
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SECTION 9.4 Book-Entry Interests.
Unless otherwise specified in the terms of the Preferred Securities set
forth in Annex I, the Preferred Securities Certificates, on original issuance,
will be executed and issued by the Trust and authenticated by the Institutional
Trustee in the form of one or more, fully-registered, global Preferred Security
Certificates (each a "Global Certificate"), to be delivered to DTC, the initial
Depository Institution, by, or on behalf of, the Trust. Such Global Certificates
shall initially be registered on the books and records of the Trust in the name
of DTC or its nominee, and no Preferred Security Beneficial Owner will receive a
definitive Preferred Security Certificate representing such Preferred Security
Beneficial Owner's interests in such Global Certificates, except as provided in
Section 9.7. Unless and until definitive, fully registered Preferred Security
Certificates (the "Definitive Preferred Security Certificates") have been issued
to the Preferred Security Beneficial Owners pursuant to Section 9.7:
(a) the provisions of this Section 9.4 shall be in full force and
effect;
(b) the Trust and the Trustees shall be entitled to deal with the
Depository Institution, with respect to such Preferred Security
Beneficial Owners, for all purposes of this Declaration (including the
payment of Distributions on the Global Certificates and receiving
approvals, votes or consents hereunder) as the Holder of such Preferred
Securities and the sole holder of the Global Certificates and shall
have no obligation to such Preferred Security Beneficial Owners;
(c) to the extent that the provisions of this Section 9.4 conflict
with any other provisions of this Declaration, the provisions of this
Section 9.4 shall control; and
(d) the rights of such Preferred Security Beneficial Owners shall
be exercised only through the Depository Institution and shall be
limited to those established by law and agreements between such
Preferred Security Beneficial Owners and the Depository Institution
and/or the Depository Institution Participants. The Depository
Institution will make book-entry transfers among the Depository
Institution Participants and receive and transmit payments of
Distributions on the Global Certificates to such Depository Institution
Participants.
Depository Institution Participants shall have no rights under this
Declaration with respect to any Global Certificate held on their behalf by the
Depository Institution or by the Institutional Trustee as the custodian of the
Depository Institution or under such Global Certificate, and the Depository
Institution may be treated by the Trust, the Institutional Trustee and any agent
of the Trust or the Institutional Trustee as the absolute owner of such Global
Certificate for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Trust, the Institutional Trustee or any agent of the
Trust or the Institutional Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depository
Institution or impair, as between the Depository Institution and its Depository
Institution Participants, the operation of customary practices of such
Depository Institution governing the exercise of the rights of a holder of a
beneficial interest in any Global Certificate.
At such time as all beneficial interests in a Global Certificate have
either been exchanged for Definitive Preferred Security Certificates to the
extent permitted by this Declaration or redeemed, repurchased or canceled in
accordance with the terms of this Declaration, such Global Certificate shall be
returned to the Depository Institution for cancellation or retained and canceled
by the Institutional Trustee. At any time prior to such cancellation, if any
beneficial interest in a Global Certificate is exchanged for Definitive
Preferred Security Certificates, or if Definitive Preferred Security
Certificates are exchanged for a beneficial interest in a Global Certificate,
Preferred Securities represented by such Global Certificate shall be reduced or
increased and an adjustment shall be made on the books and records of the
Institutional Trustee (if it is then the securities custodian for such Global
Certificate) with respect to such Global Certificate, by the Institutional
Trustee or the securities custodian, to reflect such reduction or increase.
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SECTION 9.5 Notices to Depository Institution.
Whenever a notice or other communication to the Preferred Security Holders
is required under this Declaration, unless and until Definitive Preferred
Security Certificates shall have been issued to the Preferred Security
Beneficial Owners pursuant to Section 9.7, the Regular Trustees shall give all
such notices and communications specified herein to be given to the Preferred
Security Holders to the Depository Institution, and shall have no notice
obligations to the Preferred Security Beneficial Owners.
SECTION 9.6 Appointment of Successor Depository Institution.
If any Depository Institution elects to discontinue its services as
securities depositary with respect to the Preferred Securities, the Regular
Trustees may, in their sole discretion, appoint a successor Depository
Institution with respect to such Preferred Securities.
SECTION 9.7 Definitive Preferred Security Certificates.
If:
(a) a Depository Institution elects to discontinue its services as
securities depositary with respect to the Preferred Securities and a successor
Depository Institution is not appointed within 90 days after such discontinuance
pursuant to Section 9.6; or
(b) the Regular Trustees elect after consultation with the Sponsor to
terminate the book-entry system through the Depository Institution with respect
to the Preferred Securities; or
(c) there shall have occurred a Declaration Event of Default
then:
(d) Definitive Preferred Security Certificates shall be prepared by the
Regular Trustees on behalf of the Trust with respect to such Preferred
Securities; and
(e) upon surrender of the Global Certificates by the Depository
Institution, accompanied by registration instructions, the Regular Trustees
shall cause Definitive Preferred Security Certificates to be delivered to
Preferred Security Beneficial Owners in accordance with the instructions of the
Depository Institution. Neither the Trustees nor the Trust shall be liable for
any delay in delivery of such instructions and each of them may conclusively
rely on and shall be protected in relying on, said instructions of the
Depository Institution. The Definitive Preferred Security Certificates shall be
printed, lithographed or engraved or may be produced in any other manner as is
reasonably acceptable to the Regular Trustees, as evidenced by their execution
thereof, and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements as the Regular Trustees may deem
appropriate, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which Preferred Securities may be listed, or to conform to usage.
SECTION 9.8 Mutilated, Destroyed, Lost or Stolen Certificates.
If:
(a) any mutilated Certificates should be surrendered to the Regular
Trustees, or if the Regular Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Regular Trustees, the Institutional
Trustee or any authenticating agent such security or indemnity as may be
required by them to keep each of them harmless.
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then, in the absence of notice that such Certificate shall have been acquired by
a bona fide purchaser, any Regular Trustee on behalf of the Trust shall execute
and deliver and the Institutional Trustee shall authenticate, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like denomination. In connection with the issuance of any new
Certificate under this Section 9.8, the Regular Trustees may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection therewith. Any duplicate Certificate issued pursuant to
this Section shall constitute conclusive evidence of an ownership interest in
the relevant Securities, as if originally issued, whether or not the lost,
stolen or destroyed Certificate shall be found at any time.
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability.
(a) Except as expressly set forth in this Declaration, the Securities
Guarantees and the terms of the Securities, the Sponsor shall not be:
(i) personally liable for the return of any portion of the capital
contributions (or any return thereon) of the Holders which
shall be made solely from assets of the Trust; and
(ii) be required to pay to the Trust or to any Holder any deficit
upon dissolution of the Trust or otherwise.
(b) The Debenture Issuer shall be liable for all of the debts and
obligations of the Trust (other than with respect to the Securities) to the
extent not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the Holders
shall be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.
SECTION 10.2 Exculpation.
(a) No Indemnified Person shall be liable, responsible or accountable in
damages or otherwise to the Trust or any Covered Person for any loss, damage or
claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's gross negligence or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in conclusively relying
in good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Trust, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders might properly be paid.
SECTION 10.3 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to any other Covered Person for
its good faith reliance on the provisions of this Declaration. The provisions of
this Declaration, to the extent that they restrict the duties and
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liabilities of an Indemnified Person otherwise existing at law or in equity
(other than the duties imposed on the Institutional Trustee under the Trust
Indenture Act), are agreed by the parties hereto to replace such other duties
and liabilities of such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between an
Indemnified Person and any Covered Persons; or
(ii) whenever this Declaration or any other agreement contemplated
herein or therein provides that an Indemnified Person shall
act in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any Holder,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is permitted or
required to make a decision:
(i) in its "discretion" or under a grant of similar authority, the
Indemnified Person shall be entitled to consider such
interests and factors as it desires, including its own
interests, and shall have no duty or obligation to give any
consideration to any interest of or factors affecting the
Trust or any other Person; or
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and
shall not be subject to any other or different standard
imposed by this Declaration or by applicable law.
SECTION 10.4 Indemnification.
(a)(i) The Debenture Issuer shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is
a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than
an action by or in the right of the Trust) by reason of the
fact that he is or was a Company Indemnified Person against
expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by
him in connection with such action, suit or proceeding if he
acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Trust, and,
with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the Company Indemnified Person did not act in
good faith and in a manner which he reasonably believed to be
in or not opposed to the best interests of the Trust, and,
with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(ii) The Debenture Issuer shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is
a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the
Trust to procure a judgment in its favor by reason of the fact
that he is or was a Company Indemnified Person against
expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense
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or settlement of such action or suit if he acted in good faith
and in a manner he reasonably believed to be in or not opposed
to the best interests of the Trust and except that no such
indemnification shall be made in respect of any claim, issue
or matter as to which such Company Indemnified Person shall
have been adjudged to be liable to the Trust unless and only
to the extent that the Court of Chancery of Delaware or the
court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability
but in view of all the circumstances of the case, such person
is fairly and reasonably entitled to indemnity for such
expenses which such Court of Chancery or such other court
shall deem proper.
(iii) To the extent that a Company Indemnified Person shall be
successful on the merits or otherwise (including dismissal of
an action without prejudice or the settlement of an action
without admission of liability) in defense of any action, suit
or proceeding referred to in paragraphs (i) and (ii) of this
Section 10.4(a), or in defense of any claim, issue or matter
therein, he shall be indemnified, to the full extent permitted
by law, against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii) of this
Section 10.4(a) (unless ordered by a court) shall be made by
the Debenture Issuer only as authorized in the specific case
upon a determination that indemnification of the Company
Indemnified Person is proper in the circumstances because he
has met the applicable standard of conduct set forth in
paragraphs (i) and (ii). Such determination shall be made (1)
by the Regular Trustees by a majority vote of a quorum
consisting of such Regular Trustees who were not parties to
such action, suit or proceeding, (2) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of
disinterested Regular Trustees so directs, by independent
legal counsel in a written opinion, or (3) by the Common
Security Holder of the Trust.
(v) Expenses (including attorneys' fees) incurred by a Company
Indemnified Person in defending a civil, criminal,
administrative or investigative action, suit or proceeding
referred to in paragraphs (i) and (ii) of this Section 10.4(a)
shall be paid by the Debenture Issuer in advance of the final
disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of such Company Indemnified
Person to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the
Debenture Issuer as authorized in this Section 10.4(a).
Notwithstanding the foregoing, no advance shall be made by the
Debenture Issuer if a determination is reasonably and promptly
made (i) by the Regular Trustees by a majority vote of a
quorum of disinterested Regular Trustees, (ii) if such a
quorum is not obtainable, or, even if obtainable, if a quorum
of disinterested Regular Trustees so directs, by independent
legal counsel in a written opinion or (iii) by the Debenture
Issuer, that, based upon the facts known to the Regular
Trustees, counsel or the Debenture Issuer, as the case may be,
at the time such determination is made, such Company
Indemnified Person acted in bad faith or in a manner that such
person did not believe to be in or not opposed to the best
interests of the Trust, or, with respect to any criminal
proceeding, that such Company Indemnified Person believed or
had reasonable cause to believe his conduct was unlawful. In
no event shall any advance be made in instances where the
Regular Trustees, independent legal counsel or Debenture
Issuer reasonably determine that such person deliberately
breached his duty to the Trust or its Holders.
(vi) The indemnification and advancement of expenses provided by,
or granted pursuant to, the other paragraphs of this Section
10.4(a) shall not be deemed exclusive of any other rights to
which those seeking indemnification and advancement of
expenses may be entitled under any agreement, vote of
stockholders or disinterested directors of the Debenture
Issuer or Preferred Security Holders or otherwise, both as to
action in his official capacity and as to action in another
capacity while holding such office. All rights to
indemnification under this Section 10.4(a) shall be deemed to
be provided by a contract between the Debenture Issuer and
each Company Indemnified Person who serves in such capacity at
any time while this Section 10.4(a) is in effect. Any repeal
or modification of this Section 10.4(a) shall not affect any
rights or obligations then existing.
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(vii) The Debenture Issuer or the Trust may purchase and maintain
insurance on behalf of any person who is or was a Company
Indemnified Person against any liability asserted against him
and incurred by him in any such capacity, or arising out of
his status as such, whether or not the Debenture Issuer would
have the power to indemnify him against such liability under
the provisions of this Section 10.4(a).
(viii) For purposes of this Section 10.4(a), references to "the
Trust" shall include, in addition to the resulting or
surviving entity, any constituent entity (including any
constituent of a constituent) absorbed in a consolidation or
merger, so that any person who is or was a director, trustee,
officer or employee of such constituent entity, or is or was
serving at the request of such constituent entity as a
director, trustee, officer, employee or agent of another
entity, shall stand in the same position under the provisions
of this Section 10.4(a) with respect to the resulting or
surviving entity as he would have with respect to such
constituent entity if its separate existence had continued.
(ix) The indemnification and advancement of expenses provided by,
or granted pursuant to, this Section 10.4(a) shall, unless
otherwise provided when authorized or ratified, continue as to
a person who has ceased to be a Company Indemnified Person and
shall inure to the benefit of the heirs, executors and
administrators of such a person.
(b) The Debenture Issuer agrees to indemnify the (i) Institutional Trustee,
(ii) the Delaware Trustee, (iii) any Affiliate of the Institutional Trustee and
the Delaware Trustee, and (iv) any officers, directors, shareholders, members,
partners, employees, representatives, custodians, nominees or agents of the
Institutional Trustee and the Delaware Trustee (each of the Persons in (i)
through (iv) being referred to as a "Fiduciary Indemnified Person") for, and to
hold each Fiduciary Indemnified Person harmless against, any and all loss,
liability, damage, claim or expense (including taxes) 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 (regardless of who has asserted such
claim) or liability in connection with the exercise or performance of any of its
powers or duties hereunder. The obligation to indemnify as set forth in this
Section 10.4(b) shall survive the satisfaction and discharge of this
Declaration.
SECTION 10.5 Outside Businesses.
Any Covered Person, the Sponsor, the Delaware Trustee and the Institutional
Trustee may engage in or possess an interest in other business ventures of any
nature or description, independently or with others, similar or dissimilar to
the business of the Trust, and the Trust and the Holders shall have no rights by
virtue of this Declaration in and to such independent ventures or the income or
profits derived therefrom, and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. No Covered Person, the Sponsor, the Delaware Trustee, or the
Institutional Trustee shall be obligated to present any particular investment or
other opportunity to the Trust even if such opportunity is of a character that,
if presented to the Trust, could be taken by the Trust, and any Covered Person,
the Sponsor, the Delaware Trustee and the Institutional Trustee shall have the
right to take for its own account (individually or as a partner or fiduciary) or
to recommend to others any such particular investment or other opportunity. Any
Covered Person, the Delaware Trustee and the Institutional Trustee may engage or
be interested in any financial or other transaction with the Sponsor or any
Affiliate of the Sponsor, or may act as depositary for, trustee or agent for, or
act on any committee or body of holders of, securities or other obligations of
the Sponsor or its Affiliates.
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ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the calendar year, or
such other year as is required by the Code.
SECTION 11.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the Regular Trustees
shall keep, or cause to be kept, full books of account, records and supporting
documents, which shall reflect in reasonable detail, each transaction of the
Trust. The books of account shall be maintained on the accrual method of
accounting, in accordance with generally accepted accounting principles,
consistently applied. The Trust shall use the accrual method of accounting for
United States Federal income tax purposes. The books of account and the records
of the Trust shall be examined by and reported upon as of the end of each Fiscal
Year of the Trust by a firm of independent certified public accountants selected
by the Regular Trustees. The books and records of the Trust, together with a
copy of the Declaration and a certified copy of the Certificate of Trust, and
any amendment thereto shall at all times be maintained at the principal office
of the Trust and shall be open for inspection for any examination by any Holder
or its duly authorized representative for any purpose reasonably related to its
interest in the Trust during normal business hours.
(b) The Regular Trustees shall cause to be prepared and delivered to each
of the Holders, within 90 days after the end of each Fiscal Year of the Trust,
annual financial statements of the Trust, including a balance sheet of the Trust
as of the end of such Fiscal Year, and the related statements of income or loss;
(c) The Regular Trustees shall cause to be duly prepared and delivered to
each of the Holders, any annual United States Federal income tax information
statement, required by the Code, containing such information with regard to the
Securities held by each Holder as is required by the Code and the Treasury
Regulations. Notwithstanding any right under the Code to deliver any such
statement at a later date, the Regular Trustees shall endeavor to deliver all
such statements within 30 days after the end of each Fiscal Year of the Trust.
(d) The Regular Trustees shall cause to be duly prepared and filed with the
appropriate taxing authority, an annual United States Federal income tax return,
on a Form 1041 or such other form required by United States Federal income tax
law, and any other annual income tax returns required to be filed by the Regular
Trustees on behalf of the Trust with any state or local taxing authority.
SECTION 11.3 Banking.
The Trust shall maintain one or more bank accounts in the name and for the
sole benefit of the Trust; provided, however, that all payments of funds in
respect of the Debentures held by the Institutional Trustee shall be made
directly to the Institutional Trustee Account and no other funds of the Trust
shall be deposited in the Institutional Trustee Account. The sole signatories
for such accounts shall be designated by the Regular Trustees; provided,
however, that the Institutional Trustee shall designate the signatories for the
Institutional Trustee Account.
SECTION 11.4 Withholding.
The Trust and the Regular Trustees shall comply with all withholding
requirements under United States Federal, State and local law. The Trust shall
request, and the Holders shall provide to the Trust, such forms or certificates
as are necessary to establish an exemption from withholding with respect to each
Holder, and any representations and forms as shall reasonably be requested by
the Trust to assist it in determining the extent of, and in fulfilling, its
withholding obligations. The Regular Trustees shall file required forms with
applicable jurisdictions and, unless an exemption from withholding is properly
established by a Holder, shall remit amounts withheld with respect to the Holder
to applicable jurisdictions. To the extent that the Trust is required to
withhold and pay over
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any amounts to any authority with respect to distributions or allocations to any
Holder, the amount withheld shall be deemed to be a distribution in the amount
of the withholding to the Holder. In the event of any claimed over withholding,
Holders shall be limited to an action against the applicable jurisdiction. If
the amount required to be withheld was not withheld from actual Distributions
made, the Trust may reduce subsequent Distributions by the amount of such
withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments.
(a) Except as otherwise provided in this Declaration or by any applicable
terms of the Securities, this Declaration may only be amended by a written
instrument approved and executed by:
(i) the Regular Trustees (or, if there are more than two Regular
Trustees, a majority of the Regular Trustees);
(ii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Institutional Trustee, the
Institutional Trustee; and
(iii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, the
Delaware Trustee;
(b) No amendment shall be made, and any such purported amendment shall be
void and ineffective:
(i) unless, in the case of any proposed amendment, the
Institutional Trustee shall have first received an Officers'
Certificate from each of the Trust and the Sponsor that such
amendment is permitted by, and conforms to, the terms of this
Declaration (including the terms of the Securities);
(ii) unless, in the case of any proposed amendment which affects
the rights, powers, duties, obligations or immunities of the
Institutional Trustee, the Institutional Trustee shall have
first received:
(A) an Officers' Certificate from each of the Trust and the
Sponsor that such amendment is permitted by, and conforms to,
the terms of this Declaration (including the terms of the
Securities); and
(B) an opinion of counsel (who may be counsel to the Sponsor or
the Trust) that such amendment is permitted by, and conforms
to, the terms of this Declaration (including the terms of the
Securities); and
(iii) to the extent the result of such amendment would be to:
(A) cause the trust to fail to continue to be classified for
purposes of United States Federal income taxation as a grantor
trust;
(B) reduce or otherwise adversely affect the powers of the
Institutional Trustee in contravention of the Trust Indenture
Act; or
(C) cause the Trust to be deemed to be an Investment Company
required to be registered under the Investment Company Act;
(c) At such time after the Trust has issued any Securities that remain
outstanding, any amendment that would adversely affect the rights, privileges or
preferences of any Holder may be effected only with such additional requirements
as may be set forth in the terms of such Securities;
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<PAGE> 42
(d) Sections 4.4, 9.1(c) and this Section 12.1 shall not be amended without
the consent of all of the Holders of the Securities;
(e) Article IV shall not be amended without the consent of the Holders of a
Majority in liquidation amount of the Common Securities and;
(f) The rights of the holders of the Common Securities under Article V to
increase or decrease the number of, and appoint and remove Trustees shall not be
amended without the consent of the Holders of a Majority in liquidation amount
of the Common Securities; and
(g) Notwithstanding Section 12.1(c), this Declaration may be amended
without the consent of the Holders to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this Declaration that
may be defective or inconsistent with any other provision of
this Declaration;
(iii) add to the covenants, restrictions or obligations of the
Sponsor;
(iv) conform to any change in Rule 3a-5 or written change in
interpretation or application of Rule 3a-5 by any legislative
body, court, government agency or regulatory authority which
amendment does not have a material adverse effect on the
right, preferences or privileges of the Holders; and
(v) preserve the status of the Trust as a grantor trust for
Federal income tax purposes.
SECTION 12.2 Meetings of the Holders of Securities; Action by Written
Consent.
(a) Meetings of the Holders of any class of Securities may be called at any
time by the Regular Trustees (or as provided in the terms of the Securities) to
consider and act on any matter on which Holders of such class of Securities are
entitled to act under the terms of this Declaration, the terms of the Securities
or the rules of any stock exchange on which the Preferred Securities are listed
or admitted for trading. The Regular Trustees shall call a meeting of the
Holders of such class if directed to do so by the Holders of at least 10% in
liquidation amount of such class of Securities. Such direction shall be given by
delivering to the Regular Trustees one or more calls in a writing stating that
the signing Holders wish to call a meeting and indicating the general or
specific purpose for which the meeting is to be called. Any Holders calling a
meeting shall specify in writing the Certificates held by the Holders exercising
the right to call a meeting and only those Securities specified shall be counted
for purposes of determining whether the required percentage set forth in the
second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the Securities,
the following provisions shall apply to meetings of Holders:
(i) notice of any such meeting shall be given to all the Holders
having a right to vote thereat at least 7 days and not more
than 60 days before the date of such meeting. Whenever a vote,
consent or approval of the Holders is permitted or required
under this Declaration or the rules of any stock exchange on
which the Preferred Securities are listed or admitted for
trading, such vote, consent or approval may be given at a
meeting of the Holders. Any action that may be taken at a
meeting of the Holders may be taken without a meeting if a
consent in writing setting forth the action so taken is signed
by the Holders owning not less than the minimum amount of
Securities in liquidation amount that would be necessary to
authorize or take such action at a meeting at which all
Holders having a right to vote thereon were present and
voting. Prompt notice of the taking of action without a
meeting shall be given to the Holders entitled to vote who
have not consented in writing. The Regular Trustees may
specify that any written ballot submitted to the Holders for
the
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<PAGE> 43
purpose of taking any action without a meeting shall be
returned to the Trust within the time specified by the Regular
Trustees;
(ii) each Holder may authorize any Person to act for it by proxy on
all matters in which a Holder is entitled to participate,
including waiving notice of any meeting, or voting or
participating at a meeting. No proxy shall be valid after the
expiration of 11 months from the date thereof unless otherwise
provided in the proxy. Every proxy shall be revocable at the
pleasure of the Holder executing it. Except as otherwise
provided herein, all matters relating to the giving, voting or
validity of proxies shall be governed by the General
Corporation Law of the State of Delaware relating to proxies,
and judicial interpretations thereunder, as if the Trust were
a Delaware corporation and the Holders were stockholders of a
Delaware corporation;
(iii) each meeting of the Holders shall be conducted by the Regular
Trustees or by such other Person that the Regular Trustees may
designate; and
(iv) unless the Business Trust Act, this Declaration, the terms of
the Securities, the Trust Indenture Act or the listing rules
of any stock exchange on which the Preferred Securities are
then listed or trading, otherwise provides, the Regular
Trustees, in their sole discretion, shall establish all other
provisions relating to meetings of Holders, including notice
of the time, place or purpose of any meeting at which any
matter is to be voted on by any Holders, waiver of any such
notice, action by consent without a meeting, the establishment
of a record date, quorum requirements, voting in person or by
proxy or any other matter with respect to the exercise of any
such right to vote.
ARTICLE XIII
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Institutional Trustee.
The Trustee that acts as initial Institutional Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Institutional Trustee represents and warrants to the Trust and
the Sponsor at the time of the Successor Institutional Trustee's acceptance of
its appointment as Institutional Trustee that:
(a) the Institutional Trustee is a New York banking corporation with trust
powers, duly organized, validly existing and in good standing under the laws of
the State of New York, with trust power and authority to execute and deliver,
and to carry out and perform its obligations under the terms of, this
Declaration;
(b) the execution, delivery and performance by the Institutional Trustee of
this Declaration has been duly authorized by all necessary corporate action on
the part of the Institutional Trustee. This Declaration has been duly executed
and delivered by the Institutional Trustee, and constitutes the legal, valid and
binding obligation of the Institutional Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting creditors' rights
generally and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law);
(c) the execution, delivery and performance of this Declaration by the
Institutional Trustee does not conflict with or constitute a breach of the
charter or By-laws of the Institutional Trustee; and
(d) no consent, approval or authorization of, or registration with or
notice to, any State or Federal banking authority is required for the execution,
delivery or performance by the Institutional Trustee, of this Declaration.
(e) on the Closing Date, the Institutional Trustee will be the record
holder of the Debentures and the Institutional Trustee has not knowingly created
any liens or encumbrances on such Debentures.
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<PAGE> 44
(f) the Institutional Trustee satisfies the qualifications set forth in
Section 5.3.
SECTION 13.2 Representations and Warranties of Delaware Trustee.
The Trustee that acts as initial Delaware Trustee represents and warrants
to the Trust and to the Sponsor at the date of this Declaration, and each
Successor Delaware Trustee represents and warrants to the Trust and the Sponsor
at the time of the Successor Delaware Trustee's acceptance of its appointment as
Delaware Trustee that:
(a) The Delaware Trustee is a Delaware corporation, duly organized, validly
existing and in good standing under the laws of the State of Delaware, with
authority to execute and deliver, and to carry out and perform its obligations
under the terms of, this Declaration.
(b) The Delaware Trustee has been authorized to perform its obligations
under the Certificate of Trust and this Declaration. The Declaration under
Delaware law constitutes a legal, valid and binding obligation of the Delaware
Trustee, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, reorganization, moratorium, insolvency, and other similar
laws affecting creditors' rights generally and to general principles of equity
and the discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law).
(c) No consent, approval or authorization of, or registration with or
notice to, any State or Federal banking authority is required for the execution,
delivery or performance by the Delaware Trustee, of this Declaration.
(d) The Delaware Trustee is a natural person who is a resident of the State
of Delaware or, if not a natural person, an entity which has its principal place
of business in the State of Delaware.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices.
All notices provided for in this Declaration shall be in writing, duly
signed by the party giving such notice, and shall be delivered, telecopied or
mailed by first class mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at the Trust's
mailing address set forth below (or such other address as the Trust may give
notice of to the Holders):
Fleet Capital Trust [ ]
c/o Fleet Financial Group, Inc.
One Federal Street
Boston, Massachusetts 02110
Attention: General Counsel
(b) if given to the Delaware Trustee, at the mailing address set forth
below (or such other address as the Delaware Trustee may give notice of to the
Holders):
The Bank of New York (Delaware)
White Clay Center
Route 273
Newark, Delaware 19711
Attention: Corporate Trust Trustee Administration
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<PAGE> 45
(c) if given to the Institutional Trustee, at the Institutional Trustee's
mailing address set forth below (or such other address as the Institutional
Trustee may give notice of to the Holders):
The Bank of New York
101 Barclay Street, Floor 21W
New York, New York 10286
Attention: Corporate Trust Trustee Administration
(d) if given to the Holder of the Common Securities, at the mailing address
of the Sponsor set forth below (or such other address as the Holder of the
Common Securities may give notice to the Trust):
Fleet Financial Group, Inc.
One Federal Street
Boston, Massachusetts 02110
Attention: General Counsel
(e) if given to any other Holder, at the address set forth on the books and
records of the Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 14.2 Governing Law.
THIS DECLARATION AND THE RIGHTS OF THE PARTIES HEREUNDER SHALL BE GOVERNED
BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE AND ALL
RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO PRINCIPLES
OF CONFLICT OF LAWS.
SECTION 14.3 Intention of the Parties.
It is the intention of the parties hereto that the Trust be classified for
United States Federal income tax purposes as a grantor trust. The provisions of
this Declaration shall be interpreted to further this intention of the parties.
SECTION 14.4 Headings.
Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or any
provision hereof.
SECTION 14.5 Successors and Assigns.
Whenever in this Declaration any of the parties hereto is named or referred
to, the successors and assigns of such party shall be deemed to be included, and
all covenants and agreements in this Declaration by the Sponsor and the Trustees
shall bind and inure to the benefit of their respective successors and assigns,
whether so expressed.
SECTION 14.6 Partial Enforceability.
If any provision of this Declaration, or the application of such provision
to any Person or circumstance, shall be held invalid, the remainder of this
Declaration, or the application of such provision to persons or circumstances
other than those to which it is held invalid, shall not be affected thereby.
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<PAGE> 46
SECTION 14.7 Counterparts.
This Declaration may contain more than one counterpart of the signature
page and this Declaration may be executed by the affixing of the signature of
each of the Trustees to one of such counterpart signature pages. All of such
counterpart signature pages shall be read as though one, and they shall have the
same force and effect as though all of the signers had signed a single signature
page.
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<PAGE> 47
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
________________________________________
Eugene M. McQuade, as Regular Trustee
________________________________________
Douglas L. Jacobs, as Regular Trustee
________________________________________
John R. Rodehorst, as Regular Trustee
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
________________________________________
Name:
Title: Authorized Signatory
THE BANK OF NEW YORK,
as Institutional Trustee
________________________________________
Name: Annette L. Kos
Title: Assistant Vice President
FLEET FINANCIAL GROUP, INC.,
as Sponsor
________________________________________
Name: Eugene M. McQuade
Title: Vice Chairman and
Chief Financial Officer
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<PAGE> 48
ANNEX I
TERMS OF [ ]% PREFERRED SECURITIES
TERMS OF [ ]% COMMON SECURITIES
Pursuant to Section 7.1 of the [] Amended and Restated Declaration of
Trust, dated as of [ ] (as amended from time to time, the "Declaration"), the
designation, rights, privileges, restrictions, preferences and other terms and
provisions of the Securities are set out below (each capitalized term used but
not defined herein has the meaning set forth in the Declaration or, if not
defined in the Declaration, as defined in the Prospectus referred to below):
1. Designation and Number.
(a) Preferred Securities. [ ] Preferred Securities of the Trust with an
aggregate stated liquidation amount with respect to the assets of the Trust of [
] Dollars ($[ ]) and a stated liquidation amount with respect to the assets of
the Trust of $[ ] per preferred security, are hereby designated for the purposes
of identification only as "[ ]% Trust Originated Preferred Securities(SM)"
("TOPrS(SM)") (the "Preferred Securities"). The Preferred Security Certificates
evidencing the Preferred Securities shall be substantially in the form of
Exhibit A-1 to the Declaration, with such changes and additions thereto or
deletions therefrom as may be required by ordinary usage, custom or practice or
to conform to the rules of any stock exchange on which the Preferred Securities
are listed.
(b) Common Securities. [ ] Common Securities of the Trust with an aggregate
stated liquidation amount with respect to the assets of the Trust of [ ] Dollars
($[ ]) and a stated liquidation amount with respect to the assets of the Trust
of $[] per common security, are hereby designated for the purposes of
identification only as "[ ]% Common Securities" (the "Common Securities"). The
Common Security Certificates evidencing the Common Securities shall be
substantially in the form of Exhibit A-2 to the Declaration, with such changes
and additions thereto or deletions therefrom as may be required by ordinary
usage, custom or practice.
(c) The Preferred Securities and the Common Securities represent undivided
beneficial interests in the assets of the Trust.
(d) In connection with the purchase of the Securities, the Sponsor will
deposit in the Trust, and the Trust will purchase, respectively, as trust
assets, Debentures of the Sponsor having an aggregate principal amount equal to
$[], and bearing interest at an annual rate equal to the annual Distribution
rate on the Preferred Securities and Common Securities and having payment and
redemption provisions which correspond to the payment and redemption provisions
of the Preferred Securities and Common Securities.
2. Distributions.
(a) Distributions payable on each Security will be fixed at a rate per
annum of [ ]% (the "Coupon Rate") of the stated liquidation amount of $[ ] per
Security, such rate being the rate of interest payable on the Debentures to be
held by the Institutional Trustee. Distributions in arrears for more than one
quarter will bear interest thereon compounded quarterly at the Coupon Rate
("Compound Interest") (to the extent permitted by applicable law). The term
"Distributions" as used herein includes such cash distributions and any such
interest (including Additional Interest and Compound Interest) payable unless
otherwise stated. A Distribution will be made by the Institutional Trustee only
to the extent that payments are made in respect of the Debentures held by the
Institutional Trustee and to the extent the Trust has funds available in the
Institutional Trustee Account. The amount of Distributions payable for any
period will be computed for any full quarterly Distribution period on the basis
of a 360-day year of twelve 30-day months, and for any period shorter than a
full quarterly Distribution period for which Distributions are computed,
Distributions will be computed on the basis of the actual number of days elapsed
per calendar month (but not to exceed 30 days in any month).
-------------------
(SM) "Trust Originated Preferred Securities" and "TOPrS" are service marks of
Merrill Lynch & Co.
<PAGE> 49
(b) Distributions on the Securities will be cumulative, will accrue from
[ ] and, except as otherwise described below, will be payable quarterly in
arrears, on [ ], [ ], [ ] and [ ] of each year, commencing on [ ] when, as and
if available for payment, except as otherwise described below (a "Distribution
Payment Date"). So long as the Debenture Issuer shall not be in default in the
payment of interest on the Debentures, the Debenture Issuer has the right under
the Indenture to defer payments of interest on the Debentures by extending the
interest payment period from time to time on the Debentures for a period not
exceeding 20 consecutive quarters (each an "Extension Period"), during which
Extension Period no interest shall be due and payable on the Debentures,
provided that no Extension Period shall last beyond the Stated Maturity of the
Debentures. As a consequence of such deferral, Distributions will also be
deferred. Despite such deferral, quarterly Distributions will continue to accrue
with interest thereon (to the extent permitted by applicable law) at the Coupon
Rate compounded quarterly to the extent permitted by law during any such
Extension Period. Prior to the termination of any such Extension Period, the
Debenture Issuer may further extend such Extension Period; provided that such
Extension Period, together with all such previous and further extensions
thereof, may not exceed 20 consecutive quarters or extend beyond the Stated
Maturity of the Debentures. Any interest accrued on the Debentures during an
Extension Period shall be paid Pro Rata to holders of Debentures on the first
payment date following the Extension Period and the Payment Amount shall be paid
Pro Rata to the Holders on the first Distribution Payment Date following the
Extension Period. Upon the termination of any Extension Period and the payment
of all amounts then due, the Debenture Issuer may commence a new Extension
Period, subject to the above requirements. In the event that the Debenture
Issuer exercises this right, then (i) the Debenture Issuer shall not declare or
pay any dividend on, make a distribution with respect to, or redeem, purchase or
acquire, or make a liquidation payment with respect to, any of its capital stock
(other than (a) purchases or acquisitions of shares of its common stock in
connection with the satisfaction by the Debenture Issuer of its obligations
under any employee benefit plans or any other contractual obligation of the
Debenture Issuer (other than a contractual obligation ranking pari passu with or
junior to the Debentures), (b) as a result of a reclassification of the
Debenture Issuer's capital stock or the exchange or conversion of one class or
series of the Debenture Issuer's capital stock for another class or series of
the Debenture Issuer's capital stock or (c) the purchase of fractional interests
in shares of the Debenture Issuer's capital stock pursuant to the conversion or
exchange provisions of such capital stock or the security being converted or
exchanged), (ii) the Debenture Issuer shall not make any payment of interest,
principal or premium, if any, on or repay, repurchase or redeem any debt
securities issued by the Debenture Issuer that rank pari passu with or junior to
such Debentures and (iii) the Debenture Issuer shall not make any guarantee
payments with respect to the foregoing (other than pursuant to the Preferred
Securities Guarantee).
(c) Distributions on the Securities will be payable promptly by the
Institutional Trustee upon receipt of immediately available funds to the Holders
thereof as they appear on the books and records of the Trust on the relevant
record dates, which will be, 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 record dates and
distribution dates shall be the same as the record dates and payment dates on
the Debentures. Distributions payable on any Securities that are not punctually
paid on any Distribution Payment Date, as a result of the Debenture Issuer
having failed to make the corresponding interest payment on the Debentures, will
forthwith cease to be payable to the Person in whose name such Securities are
registered on the relevant record date, and such defaulted Distribution will
instead be payable to the Person in whose name such Securities are registered on
the special record date established by the Regular Trustees, which record date
shall correspond to the special record date or other specified date determined
in accordance with the Indenture; provided, however, that Distributions shall
not be considered payable on any Distribution Payment Date falling within an
Extension Period unless the Debenture Issuer has elected to make a full or
partial payment of interest accrued on the Debentures on such Distribution
Payment Date. Distributions on the Securities will be paid by the Trust. All
Distributions paid with respect to the Securities shall be paid on a Pro Rata
basis to Holders thereof entitled thereto. If any date on which Distributions
are payable on the Securities is not a Business Day, then payment of the
Distribution payable on such date will be made on the next succeeding day that
is a Business Day (and without any interest or other payment in respect of any
such delay) except that, if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such date.
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<PAGE> 50
(d) If at any time while the Institutional Trustee is the Holder of any
Securities, the Trust or the Institutional Trustee is required to pay any taxes,
duties, assessments or governmental charges of whatever nature (other than
withholding taxes) imposed by the United States, or any other taxing authority,
then, in any such case, the Debenture Issuer will pay as additional interest
("Additional Interest") on the Securities held by the Institutional Trustee,
such amounts as shall be required so that the net amounts received and retained
by the Trust and the Institutional Trustee after paying any such taxes, duties,
assessments or other governmental charges will be equal to the amounts the Trust
and the Institutional Trustee would have received had no such taxes, duties,
assessments or other governmental charges been imposed.
(e) In the event that there is any money or other property held by or for
the Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata among the Holders.
3. Liquidation Distribution Upon Dissolution.
In the event of any voluntary or involuntary liquidation, dissolution,
winding-up or termination of the Trust (each a "Liquidation"), the Holders on
the date of the Liquidation will be entitled to receive Pro Rata out of the
assets of the Trust available for distribution to Holders after satisfaction of
liabilities of creditors distributions in an amount equal to the aggregate of
the stated liquidation amount of $[] per Security plus accrued and unpaid
Distributions thereon to the date of payment (such amount being the "Liquidation
Distribution"), unless, in connection with such Liquidation, Debentures in an
aggregate stated principal amount equal to the aggregate stated liquidation
amount of such Securities, with an interest rate equal to the Coupon Rate of,
and bearing accrued and unpaid interest in an amount equal to the accrued and
unpaid Distributions on, such Securities, shall be distributed on a Pro Rata
basis to the Holders in exchange for such Securities.
4. Redemption and Distribution.
(a) Redemption of the Securities will occur simultaneously with any
repayment of the Debentures. The Debentures will mature on [ ] (the "Stated
Maturity"), and are prepayable as set forth in this Section 4. Upon the
repayment of the Debentures in whole or in part, whether at maturity or upon
redemption, the proceeds from such repayment or payment shall be simultaneously
applied to redeem Securities having an aggregate liquidation amount equal to the
aggregate principal amount of the Debentures so repaid or redeemed at the
Redemption Price. Securities redeemed upon maturity of the Debentures will be
redeemed at a redemption price of $[ ] per Security plus an amount equal to
accrued and unpaid Distributions thereon at the date of redemption, payable in
cash (the "Redemption Price"). If fewer than all the outstanding Securities are
to be so redeemed, the Securities will be redeemed Pro Rata and the Preferred
Securities to be redeemed will be as described in Section 4(f)(ii) below. Any
prepayment of the Debentures and related redemption of Preferred Securities
under subsection (b) below may require the prior approval of the Federal Reserve
Board if such approval is then required under applicable law, rules, guidelines
or policies.
(b) The Debentures are prepayable prior to the Stated Maturity at the
option of the Company (i) in whole or in part, from time to time, on or after [
] or (ii) at any time prior to [ ], in whole but not in part, upon the
occurrence and continuation of a Special Event, in either case at a prepayment
price (the "Prepayment Price") equal to 100% of the principal amount thereof,
plus accrued and unpaid interest thereon (including Additional Interest and
Compound Interest, if any) to the date of prepayment.
(c) The following terms used herein shall be defined as follows:
"Regulatory Capital Event" means that the Debenture Issuer shall have
received an opinion of independent bank regulatory counsel experienced in such
matters to the effect that, as a result of (a) any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any rules, guidelines or policies of the
Federal Reserve Board or (b) any official administrative pronouncement or
judicial decision interpreting or applying such laws or regulations, which
amendment or change is effective or such pronouncement or decision is announced
on or after the Issue Date, the Preferred Securities do not constitute, or
A-3
<PAGE> 51
within 90 days of the date thereof, will not constitute, Tier 1 capital (or its
equivalent) for purposes of the Federal Reserve Board's capital guidelines for
bank holding companies; provided, however, that the distribution of the
Debentures in connection with the liquidation of the Trust by the Debenture
Issuer and the treatment thereafter of the Debentures as other than Tier 1
capital shall not in and or itself constitute a Regulatory Capital Event unless
such liquidation shall have occurred in connection with a Tax Event.
"Special Event" means a Tax Event or a Regulatory Capital Event, as the
case may be.
"Tax Event" means that the Regular Trustees shall have received an opinion
of a nationally recognized independent tax counsel experienced in such matters
to the effect that, as a result of (a) any amendment to, or change (including
any announced prospective change) in, the laws or any regulations thereunder of
the United States or any political subdivision or taxing authority thereof or
therein, or (b) any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or such pronouncement or decision is announced on or after the date of
the original issuance of the Securities, there is more than an insubstantial
risk that (i) the Trust is, or will be within 90 days of the date of such
opinion, subject to United States Federal income tax with respect to income
received or accrued on the Debentures, (ii) interest payable on the Debentures
is not, or within 90 days of the date thereof will not be, deductible by the
Company, in whole or in part, for United States Federal income tax purposes, or
(iii) the Trust is, or will be within 90 days of the date thereof, subject to
more than a de minimis amount of other taxes, duties or other governmental
charges.
(d) The Trust may not redeem fewer than all the outstanding Securities
unless all accrued and unpaid Distributions have been paid on all Securities for
all quarterly Distribution periods terminating on or before the date of
redemption.
(e) The Debenture Issuer will have the right at any time to liquidate the
Trust and cause the Debentures to be distributed to the Holders, subject to the
prior approval of the Federal Reserve Board if such approval is then required
under applicable law, rules, guidelines or policies. If the Debentures are
distributed to the Holders and the Preferred Securities are then listed on an
exchange, the Debenture Issuer will use its best efforts to cause the Debentures
to be listed on the NYSE or on such other exchange as the Preferred Securities
are then listed.
On the date fixed for any distribution of Debentures upon dissolution of
the Trust, (i) the Preferred Securities will no longer be deemed to be
outstanding, (ii) the Depository Institution or its nominee, as the record
holder of the Preferred Securities, will receive a registered global certificate
or certificates representing the Debentures to be delivered upon such
distribution, and (iii) any certificates representing Preferred Securities not
held by the Depository Institution or its nominee will be deemed to represent
Debentures having an aggregate principal amount equal to the aggregate stated
liquidation amount of, with an interest rate identical to the distribution rate
of, and accrued and unpaid interest equal to accrued and unpaid distributions
on, such Preferred Securities until such certificates are presented to the
Debenture Issuer or its agent for transfer or reissuance.
(f) Redemption or Distribution Procedures.
(i) Notice of any redemption of the Debentures, or notice of
distribution of Debentures in exchange for the Securities (a
"Redemption/Distribution Notice") will be given by the Trust
by mail to each Holder of Securities to be redeemed or
exchanged not fewer than 30 nor more than 60 days before the
date fixed for redemption or exchange thereof which, in the
case of a redemption, will be the date fixed for redemption of
the Debentures. For purposes of the calculation of the date of
redemption or exchange and the dates on which notices are
given pursuant to this Section 4(f)(i), a
Redemption/Distribution Notice shall be deemed to be given on
the day such notice is first mailed by first-class mail,
postage prepaid, to Holders. Each Redemption/Distribution
Notice shall be addressed to the Holders at the address of
each such Holder appearing in the books and records of the
Trust. No defect in the Redemption/Distribution Notice or in
the mailing of either thereof with respect to any Holder shall
affect the validity of the redemption or exchange proceedings
with respect to any other Holder.
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<PAGE> 52
(ii) In the event that fewer than all the outstanding Securities
are to be redeemed, the Securities to be redeemed shall be
redeemed Pro Rata from each Holder, it being understood that,
in respect of Preferred Securities registered in the name of
and held of record by the Depository Institution or its
nominee, the distribution of the proceeds of such redemption
will be made to each Depository Institution Participant (or
Person on whose behalf such nominee holds such securities) in
accordance with the procedures applied by such agency or
nominee.
(iii) If Securities are to be redeemed and the Trust gives a
Redemption/Distribution Notice, which notice may only be
issued if the Debentures are redeemed as set out in this
Section 4 (which notice will be irrevocable), then by 12:00
noon, New York City time, on the redemption date, the
Debenture Issuer will deposit with one or more paying agents
an amount of money sufficient to redeem on the redemption date
all the Securities so called for redemption at the Redemption
Price. If a Redemption/Distribution Notice shall have been
given and funds deposited as required, if applicable, then
immediately prior to the close of business on the date of such
deposit, or on the redemption date, as applicable,
distributions will cease to accrue on the Securities so called
for redemption and all rights of Holders of such Securities so
called for redemption will cease, except the right of the
Holders of such Securities to receive the Redemption Price,
but without interest on such Redemption Price. On presentation
and surrender of such Securities at a place of payment
specified in said notice, the said Securities or the specified
portions thereof shall be paid and redeemed by the Trust at
the Redemption Price. Neither the Regular Trustees nor the
Trust shall be required to register or cause to be registered
the transfer of any Securities that have been so called for
redemption. If any date fixed for redemption of Securities is
not a Business Day, then payment of the Redemption Price
payable on such date will be made on the next succeeding day
that is a Business Day (and without any interest or other
payment in respect of any such delay) except that, if such
Business Day falls in the next calendar year, such payment
will be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such
date fixed for redemption. If payment of the Redemption Price
in respect of any Securities is improperly withheld or refused
and not paid either by the Institutional Trustee or by the
Sponsor as guarantor pursuant to the relevant Securities
Guarantee, Distributions on such Securities will continue to
accrue from the original redemption date to the actual date of
payment, in which case the actual payment date will be
considered the date fixed for redemption for purposes of
calculating the Redemption Price.
(iv) The Trust shall not be required to (i) issue, or register the
transfer or exchange of, any Securities during a period
beginning at the opening of business 15 days before the
mailing of a notice of redemption of Securities and ending at
the close of business on the day of the mailing of the
relevant notice of redemption and (ii) register the transfer
or exchange of any Securities so selected for redemption, in
whole or in part, except the unredeemed portion of any
Securities being redeemed in part.
(v) Subject to the foregoing and applicable law (including,
without limitation, United States Federal securities laws and
regulations of the Federal Reserve Board), the Sponsor or any
of its subsidiaries may at any time and from time to time
purchase outstanding Preferred Securities by tender, in the
open market or by private agreement.
5. Voting Rights - Preferred Securities.
(a) Except as provided under Sections 5(b) and 7 and as otherwise required
by law and the Declaration, the Holders of the Preferred Securities will have no
voting rights.
(b) Subject to the requirements set forth in the immediately following
paragraph, the Holders of a majority in aggregate liquidation amount of the
Preferred Securities, voting separately as a class, have the right to direct the
time,
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method, and place of conducting any proceeding for any remedy available to the
Institutional Trustee, or to direct the exercise of any trust or power conferred
upon the Institutional Trustee under the Declaration, including the right to
direct the Institutional Trustee, as holder of the Debentures, to (i) exercise
the remedies available to it under the Indenture as holder of the Debentures,
(ii) waive any past Event of Default and its consequences that is waivable under
Section 5.07 of the Indenture, (iii) exercise any right to rescind or annul a
declaration that the principal of all the Debentures shall be due and payable,
or (iv) consent to any amendment, modification or termination of the Indenture
or the Debentures where such consent shall be required; provided, however, that,
where a consent or action under the Indenture would require the consent or act
of a Super Majority, only the Holders of at least such Super Majority in
aggregate liquidation amount of the 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 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. A
waiver of an Indenture Event of Default will constitute a waiver of the
corresponding Declaration Event of Default. The Institutional Trustee shall not
revoke any action previously authorized or approved by a vote of the Holders of
the Preferred Securities. If the Institutional Trustee fails to enforce its
rights under the 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 the Debenture Issuer to enforce
the Institutional Trustee's rights under the Debentures without first
instituting any legal proceeding against the Institutional Trustee or any other
person or entity. Notwithstanding the foregoing, if an Event of Default has
occurred and is continuing and such event is attributable to the failure of the
Debenture Issuer to pay interest or principal on the Debentures on the date such
interest or principal is otherwise payable (or in the case of redemption, on the
redemption date), then a Holder of Preferred Securities may institute a Direct
Action for enforcement of payment to such Holder of the principal of or interest
on the Debentures having a principal amount equal to the aggregate liquidation
amount of the Preferred Securities of such holder on or after the respective due
date specified in the Debentures. Notwithstanding any payments made to such
Holder of Preferred Securities by the Debenture Issuer in connection with a
Direct Action, the Debenture Issuer shall remain obligated to pay the principal
of or interest on the Debentures held by the Trust or the Institutional Trustee
of the Trust, and the Debenture Issuer shall be subrogated to the rights of the
Holder of such Preferred Securities with respect to payments on the Preferred
Securities to the extent of any payments made by the Debenture Issuer to such
Holder in any Direct Action. Except as provided in the preceding sentences, the
Holders of Preferred Securities will not be able to exercise directly any other
remedy available to the holders of the Debentures.
Except with respect to directing the time, method and place of conducting a
proceeding for a remedy, the Institutional Trustee shall not take any of the
actions described in clauses (i), (ii) or (iii) above unless the Institutional
Trustee has obtained an opinion of a nationally-recognized tax counsel
experienced in such matters to the effect that, as a result of such action, the
Trust will not fail to be classified as a grantor trust for United States
Federal income tax purposes.
Any approval or direction of Holders of 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 Securities in the Trust 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 (i) the date of such meeting or the date
by which such action is to be taken, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders are entitled to vote
or of such matter upon which written consent is sought and (iii) instructions
for the delivery of proxies or consents.
No vote or consent of the Holders of the Preferred Securities will be
required for the Trust to redeem and cancel Preferred Securities or to
distribute the Debentures in accordance with the Declaration and the terms of
the Securities.
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 by the Sponsor or any Affiliate of the
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Sponsor shall not be entitled to vote or consent and shall, for purposes of such
vote or consent, be treated as if they were not outstanding.
Holders of the Preferred Securities will have no rights to appoint or
remove the Trustees, who may be appointed, removed or replaced solely by the
Sponsor, as Holder of all of the Common Securities.
6. Voting Rights - Common Securities.
(a)Except as provided under Sections 6(b), (c) and 7 and as otherwise
required by law and the Declaration, the Holders of the Common Securities will
have no voting rights.
(b)The Holders of the Common Securities are entitled, in accordance with
Article V of the Declaration, to vote to appoint, remove or replace any Trustee
or to increase or decrease the number of Trustees.
(c) Subject to Section 2.6 of the Declaration and only after the Event of
Default with respect to the Preferred Securities has been cured, waived, or
otherwise eliminated and subject to the requirements of the second to last
sentence of this paragraph, the Holders of a Majority in liquidation amount of
the Common Securities, voting separately as a class, may direct the time,
method, and place of conducting any proceeding for any remedy available to the
Institutional Trustee, or exercising any trust or power conferred upon the
Institutional Trustee under the Declaration, including (i) directing the time,
method, place of conducting any proceeding for any remedy available to the Debt
Trustee, or exercising any trust or power conferred on the Debt Trustee with
respect to the Debentures, (ii) waive any past default and its consequences that
is waivable under Section 5.07 of the Indenture, or (iii) exercise any right to
rescind or annul a declaration that the principal of all the Debentures shall be
due and payable; provided that, where a consent or action under the Indenture
would require the consent or act of a Super Majority of holders of Debentures
affected thereby the Institutional Trustee may only give such consent or take
such action at the written direction of the Holders of at least the proportion
in liquidation amount of the Common Securities which the relevant Super Majority
represents of the aggregate principal amount of the Debentures outstanding; and
provided further, that where a consent or action under the Indenture would
require the consent or action of each holder of Debentures, each holder of
Preferred Securities must direct the Institutional Trustee to give such consent
or take such action. Pursuant to this Section 6(c), the Institutional Trustee
shall not revoke any action previously authorized or approved by a vote of the
Holders of the Preferred Securities. Except with respect to directing the time,
method and place of conducting a proceeding for a remedy, the Institutional
Trustee shall not take any action in accordance with the directions of the
Holders of the Common Securities under this paragraph unless the Institutional
Trustee has obtained an opinion of a nationally-recognized tax counsel
experienced in such matters to the effect that, as a result of such action, the
Trust will not fail to be classified as a grantor trust for United States
Federal income tax purposes. If the Institutional Trustee fails to enforce its
rights under the Declaration, any Holder of Common Securities may institute a
legal proceeding directly against any Person to enforce the Institutional
Trustee's rights under the Declaration, without first instituting a legal
proceeding against the Institutional Trustee or any other Person.
Any approval or direction of Holders of Common Securities may be given at a
separate meeting of Holders of Common Securities convened for such purpose, at a
meeting of all of the Holders of Securities in the Trust or pursuant to written
consent. The Regular Trustees will cause a notice of any meeting at which
Holders of Common Securities are entitled to vote, or of any matter upon which
action by written consent of such Holders is to be taken, to be mailed to each
Holder of record of Common Securities. Each such notice will include a statement
setting forth (i) the date of such meeting or the date by which such action is
to be taken, (ii) a description of any resolution proposed for adoption at such
meeting on which such Holders are entitled to vote or of such matter upon which
written consent is sought and (iii) instructions for the delivery of proxies or
consents.
No vote or consent of the Holders of the Common Securities will be required
for the Trust to redeem and cancel Common Securities or to distribute the
Debentures in accordance with the Declaration and the terms of the Securities.
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7. Amendments to Declaration and Indenture.
(a) In addition to any requirements under Section 12.1 of the Declaration,
if any proposed amendment to the Declaration provides for, or the Regular
Trustees otherwise propose to effect, (i) any action that would adversely affect
the powers, preferences or special rights of the Securities, whether by way of
amendment to the Declaration or otherwise, or (ii) the dissolution, winding-up
or termination of the Trust, other than as described in Section 8.1 of the
Declaration, then the Holders of outstanding Securities voting together as a
single class will be entitled to vote on such amendment or proposal (but not on
any other amendment or proposal) and such amendment or proposal shall not be
effective except with the approval of the Holders of at least a Majority in
liquidation amount of the Securities affected thereby, provided, that, if any
amendment or proposal referred to in clause (i) above would adversely affect
only the Preferred Securities or only the Common Securities, then only the
affected class will be entitled to vote on such amendment or proposal and such
amendment or proposal shall not be effective except with the approval of a
Majority in liquidation amount of such class of Securities.
(b) In the event the consent of the Institutional Trustee, as the holder of
the Debentures, is required under the Indenture with respect to any amendment,
modification or termination on the Indenture, the Institutional Trustee shall
request the written direction of the Holders of the Securities with respect to
such amendment, modification or termination and shall vote with respect to such
amendment, modification or termination as directed by a Majority in liquidation
amount of the Securities voting together as a single class; provided, however,
that where a consent under the Indenture would require the consent of a Super
Majority, the Institutional Trustee may only give such consent at the direction
of the Holders of at least the proportion in liquidation amount of the
Securities which the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding; and provided, further, that
where a consent or action under the Indenture is only effective against each
holder of Debentures who has consented thereto, such consent or action will only
be effective against a holder of Preferred Securities who directs the
Institutional Trustee to give such consent or take such action; and provided,
further, that the Institutional Trustee shall not take any action in accordance
with the directions of the Holders of the Securities under this Section 7(b)
unless the Institutional Trustee has obtained an opinion of a nationally
recognized tax counsel experienced in such matters to the effect that for the
purposes of United States Federal income tax the Trust will not be classified as
other than a grantor trust on account of such action.
(c) Notwithstanding the foregoing, no amendment or modification may be made
to the Declaration if such amendment or modification would (i) cause the Trust
to be classified for purposes of United States Federal income taxation as other
than a grantor trust, (ii) reduce or otherwise adversely affect the powers of
the Institutional Trustee or (iii) cause the Trust to be deemed an "investment
company" which is required to be registered under the Investment Company Act.
8. Pro Rata.
A reference in these terms of the Securities to any payment, distribution
or treatment as being "Pro Rata" shall mean pro rata to each Holder according to
the aggregate stated liquidation amount of the Securities held by the relevant
Holder in relation to the aggregate stated liquidation amount of all Securities
outstanding unless, in relation to a payment, an Event of Default under the
Declaration has occurred and is continuing, in which case any funds available to
make such payment shall be paid first to each Holder of the Preferred Securities
pro rata according to the aggregate stated liquidation amount of Preferred
Securities held by the relevant Holder relative to the aggregate stated
liquidation amount of all Preferred Securities outstanding, and only after
satisfaction of all amounts owed to the Holders of the Preferred Securities, to
each Holder of Common Securities pro rata according to the aggregate stated
liquidation amount of Common Securities held by the relevant Holder relative to
the aggregate stated liquidation amount of all Common Securities outstanding.
9. Ranking.
The Preferred Securities rank pari passu, and payment thereon shall be made
Pro Rata, with the Common Securities except that, where an Event of Default
occurs and is continuing, the rights of Holders of the Common
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<PAGE> 56
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.
10. Listing.
The Regular Trustees shall use their best efforts to cause the Preferred
Securities to be listed for quotation on the NYSE.
11. Acceptance of Securities Guarantee and Indenture.
Each Holder of Preferred Securities and Common Securities, by the
acceptance thereof, agrees to the provisions of the Preferred Securities
Guarantee and the Common Securities Guarantee, respectively, including the
subordination provisions therein, and to the provisions of the Indenture.
12. No Preemptive Rights.
The Holders shall have no preemptive rights to subscribe for any additional
securities.
13. Miscellaneous.
These terms constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration, the Preferred
Securities Guarantee or the Common Securities Guarantee (as may be appropriate),
and the Indenture to a Holder without charge on written request to the Sponsor
at its principal place of business.
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EXHIBIT A-1
FORM OF PREFERRED SECURITY CERTIFICATE
Certificate Number [ ] Number of Preferred Securities [ ]
CUSIP NO. [ ]
Certificate Evidencing Preferred Securities
of
FLEET CAPITAL TRUST [ ]
[ ]% Trust Originated Preferred SecuritiesSM ("TOPrS(SM)")
(liquidation amount $[ ] per Preferred Security)
FLEET CAPITAL TRUST [ ], a statutory business trust formed under the laws
of the State of Delaware (the "Trust"), hereby certifies that ______________
(the "Holder") is the registered owner of preferred securities of the Trust
representing undivided beneficial interests in the assets of the Trust
designated the [ ]% Trust Originated Preferred Securities(SM) ("TOPrS(SM)")
(liquidation amount $[ ] per Preferred Security) (the "Preferred Securities").
The Preferred Securities are transferable on the books and records of the Trust,
in person or by a duly authorized attorney, upon surrender of this certificate
duly endorsed and in proper form for transfer. The designation, rights,
privileges, restrictions, preferences and other terms and provisions of the
Preferred Securities represented hereby are issued and shall in all respects be
subject to the provisions of the [] Amended and Restated Declaration of Trust of
the Trust dated as of [ ], as the same may be amended from time to time (the
"Declaration"), including the designation of the terms of the Preferred
Securities as set forth in Annex I to the Declaration. Capitalized terms used
herein but not defined shall have the meaning given them in the Declaration. The
Holder is entitled to the benefits of the Preferred Securities Guarantee to the
extent provided therein. The Sponsor will provide a copy of the Declaration, the
Preferred Securities Guarantee and the Indenture to a Holder without charge upon
written request to the Trust at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the Declaration
and is entitled to the benefits thereunder.
In addition, the Holder is deemed to have (i) agreed to the terms of the
Indenture and the Debentures, including that the Debentures are subordinate and
junior in right of payment to all present and future Senior Indebtedness and
Other Financial Obligations (as defined in the Indenture) as and to the extent
provided in the Indenture and (ii) agreed to the terms of the Preferred
Securities Guarantee, including that the Preferred Securities Guarantee is
subordinate and junior in right of payment to all other liabilities of the
Sponsor, including the Debentures, except those made pari passu or subordinate
by their terms, and pari passu with the most senior preferred or preference
stock now or hereafter issued by the Sponsor and with any guarantee now or
hereafter entered into by the Sponsor in respect of any preferred or preference
stock of any Affiliate of the Sponsor.
By acceptance, the Holder agrees to treat, for United States Federal income
tax purposes, the Debentures as indebtedness and the Preferred Securities as
evidence of indirect beneficial ownership in the Debentures.
Unless the Institutional Trustee's Certificate of Authentication hereon has
been properly executed, these Preferred Securities shall not be entitled to any
benefit under the Declaration or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Trust has executed this certificate this ___ day of
____________.
FLEET CAPITAL TRUST [ ]
By:______________________________
Name:
Title: Regular Trustee
(SM) "Trust Originated Preferred Securities" and "TOPrS" are service marks of
Merrill Lynch & Co.
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<PAGE> 58
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Preferred Securities referred to in the
within-mentioned Declaration.
Dated _____________, ________
The Bank of New York,
as Institutional Trustee
By:______________________________
Authorized Signatory
A1-2
<PAGE> 59
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Preferred Security will be fixed at a rate
per annum of [ ]% (the "Coupon Rate") of the stated liquidation amount of $[ ]
per Preferred Security, such rate being the rate of interest payable on the
Debentures to be held by the Institutional Trustee. Distributions in arrears for
more than one quarter will bear interest thereon compounded quarterly at the
Coupon Rate ("Compound Interest") (to the extent permitted by applicable law).
The term "Distributions" as used herein includes such cash distributions and any
such interest (including Additional Interest and Compound Interest) payable
unless otherwise stated. A Distribution will be made by the Institutional
Trustee only to the extent that payments are made in respect of the Debentures
held by the Institutional Trustee and to the extent the Institutional Trustee
has funds available in the Institutional Trustee Account. The amount of
Distributions payable for any period will be computed for any full quarterly
Distribution period on the basis of a 360-day year of twelve 30-day months, and
for any period shorter than a full quarterly Distribution period for which
Distributions are computed, Distributions will be computed on the basis of the
actual number of days elapsed per calendar month (but not to exceed 30 days in
any month).
Except as otherwise described below, Distributions on the Preferred
Securities will be cumulative, will accrue from [ ] and will be payable
quarterly in arrears on [ ], [ ], [ ] and [ ] of each year, commencing on [ ] to
Holders of record 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. Such payment dates shall correspond to the interest payment dates on the
Debentures. The Debenture Issuer has the right under the Indenture to defer
payments of interest by extending the interest payment period from time to time
on the Debentures for a period not exceeding 20 consecutive quarters (each an
"Extension Period"), provided that no Extension Period shall last beyond the
date of the maturity of the Debentures and, as a consequence of such deferral,
quarterly Distributions will also be deferred. Despite such deferral, quarterly
Distributions will continue to accrue with interest thereon (to the extent
permitted by applicable law) at the Coupon Rate compounded quarterly during any
such Extension Period. Prior to the termination of any such Extension Period,
the Debenture Issuer may further extend such Extension Period; provided that
such Extension Period together with all such previous and further extensions
thereof may not exceed 20 consecutive quarters or extend beyond the maturity of
the Debentures. Payments of accrued Distributions will be payable to Holders as
they appear on the books and records of the Trust on the first record date after
the end of the Extension Period. Upon the termination of any Extension Period
and the payment of all amounts then due, the Debenture Issuer may commence a new
Extension Period, subject to the above requirements.
The Preferred Securities shall be redeemable as provided in the
Declaration.
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<PAGE> 60
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security Certificate to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints _______________________________________________________
to transfer this Preferred Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date:________________________________
Signature:___________________________
(Sign exactly as your name appears on
the other side of this Preferred
Security Certificate)
(Signature(s) must be guaranteed by
an "eligible guarantor institution"
meeting the requirements of the
Trustee, which requirements include
membership or participation in STAMP
or such other "signature guaranty
program" as may be determined by the
Trustee in addition to or in
substitution for STAMP, all in
accordance with the Securities
Exchange Act of 1934, as amended.)
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<PAGE> 61
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
Certificate Number [ ] Number of Common Securities [ ]
Certificate Evidencing Common Securities
of
FLEET CAPITAL TRUST [ ]
[ ]% Common Securities
(liquidation amount $[ ] per Common Security)
FLEET CAPITAL TRUST [ ], a statutory business trust formed under the laws
of the State of Delaware (the "Trust"), hereby certifies that _________________
(the "Holder") is the registered owner of common securities of the Trust
representing undivided beneficial interests in the assets of the Trust
designated the [ ]% Common Securities (liquidation amount $[ ] per Common
Security) (the "Common Securities"). The Common Securities are transferable on
the books and records of the Trust, in person or by a duly authorized attorney,
upon surrender of this certificate duly endorsed and in proper form for
transfer. The designation, rights, privileges, restrictions, preferences and
other terms and provisions of the Common Securities represented hereby are
issued and shall in all respects be subject to the provisions of the [] Amended
and Restated Declaration of Trust of the Trust dated as of [ ], as the same may
be amended from time to time (the "Declaration"), including the designation of
the terms of the Common Securities as set forth in Annex I to the Declaration.
Capitalized terms used herein but not defined shall have the meaning given them
in the Declaration. The Holder is entitled to the benefits of the Common
Securities Guarantee to the extent provided therein. The Sponsor will provide a
copy of the Declaration, the Common Securities Guarantee and the Indenture to a
Holder without charge upon written request to the Sponsor at its principal place
of business.
Upon receipt of this certificate, the Sponsor is bound by the Declaration
and is entitled to the benefits thereunder.
In addition, the Holder is deemed to have (i) agreed to the terms of the
Indenture and the Debentures, including that the Debentures are subordinate and
junior in right of payment to all present and future Senior Indebtedness and
Other Financial Obligations (as defined in the Indenture) as and to the extent
provided in the Indenture and (ii) agreed to the terms of the Common Securities
Guarantee, including that the Common Securities Guarantee is subordinate and
junior in right of payment to all other liabilities of the Sponsor, including
the Debentures, except those made pari passu or subordinate by their terms, and
pari passu with the most senior preferred or preference stock now or hereafter
issued by the Sponsor and with any guarantee now or hereafter entered into by
the Sponsor in respect of any preferred or preference stock of any Affiliate of
the Sponsor.
By acceptance, the Holder agrees to treat, for United States Federal income
tax purposes, the Debentures as indebtedness and the Common Securities as
evidence of indirect beneficial ownership in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this ___ day of
__________.
FLEET CAPITAL TRUST [ ]
By:__________________________________
Name:
Title: Regular Trustee
By:__________________________________
Name:
Title: Regular Trustee
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[FORM OF REVERSE OF SECURITY]
Distributions payable on each Common Security will be fixed at a rate per
annum of [ ]% (the "Coupon Rate") of the stated liquidation amount of $[ ] per
Common Security, such rate being the rate of interest payable on the Debentures
to be held by the Institutional Trustee. Distributions in arrears for more than
one quarter will bear interest thereon compounded quarterly at the Coupon Rate
("Compound Interest") (to the extent permitted by applicable law). The term
"Distributions" as used herein includes such cash distributions and any such
interest (including Additional Interest and Compound Interest) payable unless
otherwise stated. A Distribution will be made by the Institutional Trustee only
to the extent that payments are made in respect of the Debentures held by the
Institutional Trustee and to the extent the Institutional Trustee has funds
available in the Institutional Trustee Account. The amount of Distributions
payable for any period will be computed for any full quarterly Distribution
period on the basis of a 360-day year of twelve 30-day months, and for any
period shorter than a full quarterly Distribution period for which Distributions
are computed, Distributions will be computed on the basis of the actual number
of days elapsed per calendar month (but not to exceed 30 days in any month).
Except as otherwise described below, distributions on the Common Securities
will be cumulative, will accrue from [ ] and will be payable quarterly in
arrears, on [ ], [ ], [ ] and [ ] of each year, commencing on [ ] to Holders of
record 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. Such
payment dates shall correspond to the interest payment dates on the Debentures.
The Debenture Issuer has the right under the Indenture to defer payments of
interest by extending the interest payment period from time to time on the
Debentures for a period not exceeding 20 consecutive quarters (each an
"Extension Period"), provided that no Extension Period shall last beyond the
date of the maturity of the Debentures and, as a consequence of such deferral,
quarterly Distributions will also be deferred. Despite such deferral, quarterly
Distributions will continue to accrue with interest thereon (to the extent
permitted by applicable law) at the Coupon Rate compounded quarterly during any
such Extension Period. Prior to the termination of any such Extension Period,
the Debenture Issuer may further extend such Extension Period; provided that
such Extension Period together with all such previous and further extensions
thereof may not exceed 20 consecutive quarters or extend beyond the maturity
date of the Debentures. Payments of accrued Distributions will be payable to
Holders as they appear on the books and records of the Trust on the first record
date after the end of the Extension Period. Upon the termination of any
Extension Period and the payment of all amounts then due, the Debenture Issuer
may commence a new Extension Period, subject to the above requirements.
The Common Securities shall be redeemable as provided in the Declaration.
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<PAGE> 63
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common
Security Certificate to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints__________________________________________ this
Common Security Certificate on the books of the Trust. The agent may substitute
another to act for him or her.
Date:________________________________
Signature:___________________________
(Sign exactly as your name appears on
the other side of this Common
Security Certificate)
(Signature(s) must be guaranteed by
an "eligible guarantor institution"
meeting the requirements of the
Trustee, which requirements include
membership or participation in STAMP
or such other "signature guaranty
program" as may be determined by the
Trustee in addition to or in
substitution for STAMP, all in
accordance with the Securities
Exchange Act of 1934, as amended.)
A2-4
<PAGE> 64
EXHIBIT B
SPECIMEN OF DEBENTURE
B-1
<PAGE> 65
EXHIBIT C
PURCHASE AGREEMENT
B-1
<PAGE> 1
Exhibit 4(w)
FLEET FINANCIAL GROUP, INC.
INDENTURE
DATED AS OF []
THE BANK OF NEW YORK
AS TRUSTEE
JUNIOR SUBORDINATED DEBENTURES
<PAGE> 2
TIE-SHEET
of provisions of the Trust Indenture Act with Indenture dated as of __________,
[] between Fleet Financial Group, Inc. and The Bank of New York, Trustee:
ACT SECTION INDENTURE SECTION
310(a)(1) 6.09
310(a)(2) 6.09
310(a)(3) N/A
310(a)(4) N/A
310(b) 6.08; 6.10(a), (b) and (d)
310(c) N/A
311(a) and (b) 6.13
311(c) N/A
312(a) 4.01; 4.02(a)
312(b) and (c) 4.02(b) and (c)
313(a) 4.04(a)
313(b)(1) N/A
313(b)(2) 4.04(b)
313(c) 4.04(c)
313(d) 4.04(d)
314(a) 4.03
314(b) N/A
314(c)(1) and (2) 13.06
314(c)(3) N/A
314(d) N/A
314(e) 13.06
314(f) N/A
315(a), (c) and (d) 6.01
315(b) 5.08
315(e) 5.09
316(a)(1) 5.01; 5.07
316(a)(2) Omitted
316(a) last sentence 7.04
316(b) 5.04
317(a) 5.02
317(b) 3.04(a)
318(a) 13.08
THIS TIE-SHEET IS NOT PART OF THE INDENTURE AS EXECUTED.
<PAGE> 3
TABLE OF CONTENTS*
PAGE
Parties 1
Recitals 1
Authorization of Indenture 1
Compliance with Legal Requirements 1
Purpose of and Consideration for Indenture 1
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions 1
Additional Provisions 1
Affiliate 1
Authenticating Agent 1
Bankruptcy Law 2
Board of Directors 2
Board Resolution 2
Business Day 2
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
Person 4
Predecessor Security 4
* THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE A PART OF
THE INDENTURE.
i
<PAGE> 4
Preferred Securities 4
Preferred Securities Guarantee 4
Principal office of the Trustee 4
Responsible Officer 4
Security or Securities 5
Security Register 5
Securityholder or 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
SECTION 2.12. CUSIP Numbers
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
ii
<PAGE> 5
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
iii
<PAGE> 6
ARTICLE VIII
SECURITYHOLDERS' MEETINGS
SECTION 8.01. Purposes of Meetings 30
SECTION 8.02. Call of Meetings by Trustee 30
SECTION 8.03. Call of Meetings by Company or Securityholders 31
SECTION 8.04. Qualifications for Voting 31
SECTION 8.05. Regulations 31
SECTION 8.06. Voting 31
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures without Consent of
Securityholders 32
SECTION 9.02. Supplemental Indentures with Consent of Securityholders 33
SECTION 9.03. Compliance with Trust Indenture Act; Effect of
Supplemental Indentures 34
SECTION 9.04. Notation on Securities 34
SECTION 9.05. Evidence of Compliance of Supplemental Indenture to
be Furnished Trustee 34
ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 10.01. Company May Consolidate, etc., on Certain Terms 34
SECTION 10.02. Successor Corporation to be Substituted for Company 35
SECTION 10.03. Opinion of Counsel to be Given Trustee 35
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01. Discharge of Indenture 35
SECTION 11.02. Deposited Moneys and U.S. Government Obligations to be
Held in Trust by Trustee 36
SECTION 11.03. Paying Agent to Repay Moneys Held 36
SECTION 11.04. Return of Unclaimed Moneys 36
SECTION 11.05. Defeasance Upon Deposit of Moneys or U.S. Government
Obligations 36
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. Indenture and Securities Solely Corporate Obligations 37
iv
<PAGE> 7
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. Addresses for Notices, etc. 38
SECTION 13.05. Governing Law 38
SECTION 13.06. Evidence of Compliance with Conditions Precedent 38
SECTION 13.07. Legal Holidays 39
SECTION 13.08. Trust Indenture Act to Control 39
SECTION 13.09. Table of Contents, Headings, etc. 39
SECTION 13.10. Execution in Counterparts 39
SECTION 13.11. Separability 39
SECTION 13.12. Assignment 39
SECTION 13.13. Acknowledgment of Rights 40
ARTICLE XIV
REDEMPTION OF SECURITIES-- MANDATORY AND OPTIONAL SINKING FUND
SECTION 14.01. Applicability of Article 40
SECTION 14.02. Notice of Redemption; Selection of Securities 40
SECTION 14.03. Payment of Securities Called for Redemption 41
SECTION 14.04. Mandatory and Optional Sinking Fund 41
ARTICLE XV
SUBORDINATION OF SECURITIES
SECTION 15.01. Agreement to Subordinate 42
SECTION 15.02. Default on Senior Indebtedness 43
SECTION 15.03. Liquidation; Dissolution; Bankruptcy 43
SECTION 15.04. Subrogation 44
SECTION 15.05. Trustee to Effectuate Subordination 45
SECTION 15.06. Notice by the Company 45
SECTION 15.07. Rights of the Trustee; Holders of Senior Indebtedness
and Other Financial Obligations 46
SECTION 15.08. Subordination May Not Be Impaired 46
Testimonium 47
Signatures 47
Notarizations 48
v
<PAGE> 8
THIS INDENTURE, dated as of [], between Fleet Financial Group, Inc., a
Rhode Island corporation (hereinafter sometimes called the "Company"), and The
Bank of New York, a New York banking corporation, as trustee (hereinafter
sometimes called the "Trustee"),
W I T N E S S E T H :
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. Any reference to the singular includes the plural and vice versa
(unless the context otherwise requires).
"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.
1
<PAGE> 9
"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 are authorized or obligated by law,
executive order or regulation to close.
"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 Preferred 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 Preferred 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 X hereof, shall include
its successors and assigns.
The term "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
governing instrument 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.
"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
2
<PAGE> 10
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 VI, Fleet
Capital Trust VII, Fleet Capital Trust VIII, 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.
The term "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.
The term "mortgage" shall mean and include any mortgage, pledge, lien,
security interest, conditional sale or other title retention agreement or other
similar encumbrance.
"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.
3
<PAGE> 11
"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 XIV provided or provision
satisfactory to the Trustee shall have been made for giving such
notice; and
(c) Securities paid pursuant to Section 2.08 or 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.
"Preferred 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 whether or not designated for the purposes of
identification as preferred securities or capital securities; 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 Preferred
Securities.
"Preferred Securities Guarantee" shall mean any guarantee that the Company
may enter into with The Bank of New York or other Persons that operate directly
or indirectly for the benefit of holders of Preferred Securities of such Fleet
Capital Trust.
The term "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.
4
<PAGE> 12
"Responsible Officer" means, with respect to the Trustee, any officer
within the corporate trust department of the Trustee, including any vice
president, any assistant vice president, any assistant secretary, any assistant
treasurer or other officer of the corporate trust department of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of 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
Preferred Securities or other securities that rank pari passu with, or junior
to, the Preferred 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 VI 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 Preferred Securities of
a Fleet Capital Trust.
5
<PAGE> 13
"U.S. Government Obligations" shall mean securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case under
clauses (i) or (ii) are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such U.S. Government Obligation or a
specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depository
receipt, provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of interest on or principal
of the U.S. Government Obligation evidenced by such depository receipt.
ARTICLE II
SECURITIES
SECTION 2.01. Forms Generally.
The Securities 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 of the Company
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 of the Company 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 Bank of New York
as Trustee
By:_______________________________________
Authorized Signatory
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:
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(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, 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.
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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.
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 in such form 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 as registered Securities without coupons and in
the denominations of $1,000 and any
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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
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.
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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.
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 II 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, 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 of such Security 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.
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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
mailing of a notice of redemption of Securities of such series, 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.
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
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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 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 dispose of cancelled Securities in accordance with its customary
procedures. If the Company shall acquire any of the Securities, however, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation.
SECTION 2.11. Global Securities.
(a) If the Company shall establish pursuant to Section 2.03 that the
Securities of a particular series are to be issued as a Global Security, then
the Company shall execute and the Trustee shall, in accordance with Section
2.04, authenticate and deliver, a Global Security that (i) shall represent, and
shall be denominated in an amount equal to the aggregate principal amount of,
all of the outstanding Securities of such series, (ii) shall be registered in
the name of the Depository Institution or its nominee, (iii) shall be delivered
by the Trustee to the Depository Institution or pursuant to the Depository
Institution's instruction and (iv) shall bear a legend substantially to the
following effect: "Except as otherwise provided in Section 2.11 of the
Indenture, this Security may be transferred, in whole but not in part, only to
another nominee of the Depository Institution or to a successor Depository
Institution or to a nominee of such successor Depository Institution."
(b) Notwithstanding the provisions of Section 2.07, the Global Security of
a series may be transferred, in whole but not in part and in the manner provided
in Section 2.07, only to another nominee of the Depository Institution for such
series or to a successor Depository Institution for such series selected or
approved by the Company or to a nominee of such successor Depository
Institution.
(c) If at any time the Depository Institution for a series of the
Securities notifies the Company that it is unwilling or unable to continue as
Depository Institution for such series or if at any time the Depository
Institution for such series shall no longer be registered or in good standing
under the Exchange Act, or other applicable statute or regulation, and a
successor Depository Institution for such series is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such
condition, as the case may be, this Section 2.11 shall no longer be applicable
to the Securities of such series and the Company will execute, and subject to
Section 2.07, the Trustee will authenticate and deliver, the Securities of such
series in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Security of such series in exchange for such Global
Security. In addition, the Company may at any time determine that the Securities
of any series shall no longer be represented by a Global Security and that the
provisions of this Section 2.11 shall no longer apply to the Securities of such
series. In such event the Company will execute and, subject to Section 2.07, the
Trustee, upon receipt of an Officers' Certificate evidencing such determination
by the Company, will authenticate and deliver the Securities of such series in
definitive registered form without coupons, in authorized denominations, and in
an aggregate principal amount equal to the principal amount of the Global
Security of such series in exchange for such Global Security. Upon the exchange
of the Global Security for such Securities in definitive registered form without
coupons, in authorized denominations, the Global Security shall be cancelled by
the Trustee. Such Securities in definitive registered form issued in exchange
for the Global Security pursuant to this Section 2.11(c) shall be registered in
such names and in such authorized denominations as the Depository Institution,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee. The Trustee shall deliver such Securities to the
Depository Institution for delivery to the Persons in whose names such
Securities are so registered.
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SECTION 2.12. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; PROVIDED that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the "CUSIP" numbers.
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY.
SECTION 3.01. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay or cause to be paid the
principal of, and premium, if any, and interest on, each of the Securities of
that series at the place, at the respective times and in the manner provided in
such Securities. Each installment of interest on the Securities of any series
may be paid by mailing checks for such interest payable to the order of the
holders of Securities entitled thereto as they appear on the Security Register
or by wire transfer to an account appropriately designated by the holders of
Securities entitled thereto.
SECTION 3.02. Offices for Notices and Payments, etc.
So long as any of the Securities remains outstanding, the Company will
maintain in the Borough of Manhattan, The City of New York, an office or agency
where the Securities of each series may be presented for payment, an office or
agency where the Securities of that Series may be presented for registration of
transfer and for exchange as in this Indenture provided, and an office or agency
where notices and demands to or upon the Company in respect of the Securities of
that Series or of this Indenture may be served. The Company will give to the
Trustee written notice of the location of any such office or agency and of any
change of location thereof. Until otherwise designated from time to time by the
Company in a notice to the Trustee, or specified as contemplated by Section
2.03, any such office or agency for all of the above purposes shall be the
office or agency of the Trustee. In case the Company shall fail to maintain any
such office or agency in the Borough of Manhattan, The City of New York, or
shall fail to give such notice of the location or of any change in the location
thereof, presentations and demands may be made and notices may be served at the
principal office of the Trustee.
In addition to any such office or agency, the Company may from time to time
designate one or more offices or agencies outside the Borough of Manhattan, The
City of New York, where the Securities may be presented for registration of
transfer and for exchange in the manner provided in this Indenture, and the
Company may from time to time rescind such designation, as the Company may deem
desirable or expedient; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
any such office or agency in the Borough of Manhattan, The City of New York, for
the purposes above mentioned. The Company will give to the Trustee prompt
written notice of any such designation or rescission thereof.
SECTION 3.03. Appointments to Fill Vacancies in Trustee's Office.
The Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 6.10, a Trustee, so
that there shall at all times be a Trustee hereunder.
SECTION 3.04. Provision as to Paying Agent.
(a) If the Company shall appoint a paying agent other than the Trustee with
respect to the Securities of any series, it will cause such paying agent to
execute and deliver to the Trustee an instrument in which such agent shall agree
with the Trustee, subject to the provision of this Section 3.04:
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(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.
(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 of the issuance of
Securities of any series under this Indenture, so long as Securities of any
series are outstanding hereunder, a 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, all without regard to periods of grace or
notice requirements.
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 X 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
Preferred 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
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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 Preferred 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 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 partnership for United States Federal income tax purposes and
(iii) use its reasonable efforts to cause each holder of Trust Securities to be
treated as owning an individual beneficial interest in the Securities.
SECTION 3.09. Notice of Default.
The Company shall file with the Trustee written notice of the occurrence of
any Event of Default within 5 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.
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(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 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.
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(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.
(e) Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 4.04. Reports by the Trustee.
(a) The Trustee shall transmit to Securityholders such reports concerning
the Trustee and its actions under this Indenture as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided pursuant
thereto. If required by Section 313(a) of the Trust Indenture Act, the Trustee
shall, within sixty days after each August 15 following the date of this
Indenture deliver to Holders a brief report, dated as of such August 15, which
complies with the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such transmission to
Securityholders, be filed by the Trustee with each stock exchange, if any, upon
which the Securities are listed, with the Commission and with the Company. The
Company will promptly notify the Trustee when the Securities are listed on any
stock exchange and of any delisting thereof.
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
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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" 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
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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 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
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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
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 XV hereof;
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 indemnity satisfactory to the Trustee 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
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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 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.
The Company and the Trustee acknowledge that pursuant to each Amended and
Restated Declaration, the holders of Preferred Securities are entitled, in the
circumstances and subject to the limitations set forth therein, to commence a
Direct Action (as defined therein) with respect to any Event of Default under
this Indenture.
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 V to the Trustee or to the
Securityholders shall, to the extent permitted by law, be deemed cumulative and
not exclusive of any other powers and remedies available to the Trustee or the
holders of the Securities, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in this
Indenture or otherwise established with respect to 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 V or by
law to the Trustee or to the Securityholders may be exercised from time to time,
and as often as shall be deemed expedient, by the Trustee or by the
Securityholders.
SECTION 5.07. Direction of Proceedings and 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
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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 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 90 days after the Trustee has notified the
Company of 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 and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section 5.09 shall not apply to any suit instituted by
the Trustee, to any suit instituted by any Securityholder, or group of
Securityholders 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
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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 person would exercise or use under the circumstances in the conduct of
his or her 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 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.
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SECTION 6.02. Reliance on Documents, Opinions, etc.
Except as otherwise provided in Section 6.01:
(a) the Trustee may conclusively rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, bond, note, debenture or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(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 of its selection and any advice or
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request, order or direction of
any of the Securityholders, pursuant to the provisions of this Indenture, unless
such Securityholders shall have offered to the Trustee security or indemnity
satisfactory to the Trustee 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
indemnity satisfactory to the Trustee against such expense or liability as a
condition to so proceeding;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents (including
any Authenticating Agent), 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;
(h) the Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture;
(i) the Trustee shall not be deemed to have notice of any Default or Event
of Default unless a Responsible Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact such a default is
received by the Trustee at the principal office of the Trustee, and such notice
references the Securities and this Indenture; and
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(j) the rights, privileges, protections, immunities and benefits given to
the Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and to each agent, custodian and other Person employed to act
hereunder.
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 in writing with the Company.
So long as no Event of Default shall have occurred and be continuing, all
interest allowed on any such moneys shall be paid from time to time upon the
written order of the Company, signed by the Chairman of the Board of Directors,
the President, any Vice President, the Treasurer or any Assistant Treasurer of
the Company.
SECTION 6.06. Compensation and Expenses of Trustee.
The Company covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, such compensation as shall be agreed in
writing between the Company and the Trustee (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust), and the Company will pay or reimburse the Trustee upon its request for
all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any of the provisions of this Indenture (including
the reasonable compensation and the expenses and disbursements of its counsel
and of all persons not regularly in its employ 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 each of the Trustee and any predecessor
Trustee (and its officers, agents, directors and employees) for, and to hold it
harmless against, any and all loss, liability, damages, claim or expense,
including taxes (other than taxes based on the income of the Trustee) incurred
without negligence or bad faith on the part of the Trustee and arising out of or
in connection with the acceptance or administration of this trust, including the
costs and expenses of defending itself against any claim (whether asserted by
the Company, a holder of Securities or any other Person) 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.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 5.01(d) or Section 5.01(e), the expenses
(including the reasonable charges and expenses of its counsel) and
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the compensation for the services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 6.07. Officers' Certificate as Evidence.
Except as otherwise provided in Sections 6.01 and 6.02, whenever in the
administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or
omitting any action hereunder, such matter (unless other evidence in respect
thereof 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 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, at the expense of the Company, 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.
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(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, at the expense of the
Company, 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 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
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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.
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 (US) 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
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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 all or substantially all of
the corporate trust business of any Authenticating Agent, shall be the successor
of such Authenticating Agent hereunder, if such successor corporation is
otherwise eligible under this Section 6.14 without the execution or filing of
any paper or any further act on the part of the parties hereto or such
Authenticating Agent.
Any Authenticating Agent may at any time resign 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 Company agrees to pay to any Authenticating Agent from time to time
reasonable compensation for its services. Any Authenticating Agent shall have no
responsibility or liability for any action taken by it as such in accordance
with the directions of the Trustee.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Action by Securityholders.
Whenever in this Indenture it is provided that the holders of a specified
percentage in aggregate principal amount of the Securities 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 VIII hereof, or (c) by a combination of such instrument or instruments
and any such record of such a meeting of such Securityholders.
If the Company shall solicit from the Securityholders of any series any
request, demand, authorization, direction, notice, consent, waiver or other
action, the Company may, at its option, as evidenced by an Officers'
Certificate, fix in advance a record date for such series for the determination
of Securityholders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other action, but the Company shall have
no obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action may be given
before or after the record date, but only the Securityholders of record at the
close of business on the record date shall be deemed to be Securityholders for
the purposes of determining whether Securityholders of the requisite proportion
of outstanding Securities of that series have authorized or agreed or consented
to such request, demand, authorization, direction, notice, consent, waiver or
other action, and for that purpose the outstanding Securities of that series
shall be computed as of the record date; provided, however, that no
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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 a Responsible Officer
of the Trustee actually knows are so owned shall be so disregarded. Securities
so owned which have been pledged in good faith may be regarded as outstanding
for the purposes of this Section 7.04 if the pledgee shall establish to the
satisfaction of the Trustee the pledgee's right to vote such Securities and that
the pledgee is not the Company or any such other obligor or person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or any such other obligor. In the case of a dispute as
to such right, any decision by the Trustee taken upon the advice of counsel
shall be full protection to the Trustee.
SECTION 7.05. Revocation of Consents; Future Holders Bound.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 7.01, of the taking of any action by the holders of the
percentage in aggregate principal amount of the 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.
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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 VIII for any of
the following purposes:
(a) to give any notice to the Company or to the Trustee, or to give any
directions to the Trustee, or to consent to the waiving of any default hereunder
and its consequences, or to take any other action authorized to be taken by
Securityholders pursuant to any of the provisions of Article V hereof;
(b) to remove the Trustee and nominate a successor trustee pursuant to the
provisions of Article VI hereof;
(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.
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
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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
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 X
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
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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 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 Preferred
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
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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 Preferred 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 Preferred 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.
SECTION 9.03. Compliance with Trust Indenture Act; Effect of Supplemental
Indentures.
Any supplemental indenture executed pursuant to the provisions of this
Article IX shall comply with the Trust Indenture Act, as then in effect. Upon
the execution of any supplemental indenture pursuant to the provisions of this
Article IX, this Indenture shall be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Company and the holders of Securities 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.
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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 IX may bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental indenture. If the Company or the
Trustee shall so determine, new Securities 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 IX.
ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE.
SECTION 10.01. Company May Consolidate, etc., on Certain Terms.
Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Company with or into any other
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.
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
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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 X complies with the provisions of this Article X.
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE.
SECTION 11.01. Discharge of Indenture.
When (a) the Company shall deliver to the Trustee for cancellation all
Securities theretofore authenticated (other than any Securities which shall have
been destroyed, lost or stolen and which shall have been replaced or paid as
provided in Section 2.08) and not theretofore cancelled, or (b) all the
Securities not theretofore cancelled or delivered to the Trustee for
cancellation shall have become due and payable, or are by their terms to become
due and payable within one year or are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving of notice of
redemption, and the Company shall deposit with the Trustee, in trust, funds
sufficient to pay 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 6.06 and 11.04 shall survive, and the
Trustee, on demand of the Company accompanied by any Officers' Certificate and
an Opinion of Counsel and at the cost and expense of the Company, shall execute
proper instruments acknowledging satisfaction of and discharging this Indenture,
the Company, however, hereby agreeing to reimburse the Trustee for any costs or
expenses thereafter reasonably and properly incurred by the Trustee in
connection with this Indenture or the Securities.
SECTION 11.02. Deposited Moneys and U.S. Government Obligations to be Held
in Trust by Trustee.
Subject to the provisions of Section 11.04, all moneys and U.S. Government
Obligations deposited with the Trustee pursuant to Sections 11.01 or 11.05 shall
be held in trust and applied by it to the payment, either directly or through
any paying agent (including the Company if acting as its own paying agent), to
the holders of the particular Securities for the payment of which such moneys or
U.S. Government Obligations have been deposited with the Trustee, of all sums
due and to become due thereon for principal, premium, if any, and interest.
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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 two 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 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
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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.
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.
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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 first class 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, The Bank of New York, 101 Barclay Street, Floor 21W,
New York, New York 10286, Attention: Corporate Trust Trustee 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 on 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 a legal holiday or a day on which banking institutions are authorized by
law to close, with the same force and effect as if made on the date of payment
and no interest shall accrue for the period from and after such date.
SECTION 13.08. Trust Indenture Act to Control.
(a) If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with another provision included in this Indenture which
is required to be included in this Indenture by any of Sections 310 to 317,
inclusive, of the Trust Indenture Act, such required provision shall control.
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(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 Preferred 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 Preferred 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 Preferred 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 identify the Securities to be redeemed
(including CUSIP numbers) 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 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, in
the case of a partial redemption, 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
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shall be paid and redeemed by the Company at the applicable redemption price,
together with interest accrued thereon to the date fixed for redemption.
Upon presentation of any Security of any series redeemed in part only, the
Company shall execute and the Trustee shall authenticate and deliver to the
holder thereof, at the expense of the Company, a new Security or Securities of
such series of authorized denominations, in principal amount equal to the
unredeemed portion of the Security so presented.
SECTION 14.04. Mandatory and Optional Sinking Fund.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment". The last date on which any such payment may be made is herein
referred to as a "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any Securities of a series in cash, the Company may at its
option (a) deliver to the Trustee Securities of that series theretofore
purchased by the Company and (b) may apply as a credit Securities of that series
which have been redeemed either at the election of the Company pursuant to the
terms of such Securities or through the application of optional sinking fund
payments pursuant to the next succeeding paragraph, in each case in satisfaction
of all or any part of any mandatory sinking fund payment, provided that such
Securities have not been previously so credited. Each such Security so delivered
or applied as a credit shall be credited at the sinking fund redemption price
for such Securities and the amount of any mandatory sinking fund shall be
reduced accordingly. If the Company intends so to deliver or credit such
Securities with respect to any mandatory sinking fund payment it shall deliver
to the Trustee at least 60 days prior to the next succeeding sinking fund
payment date for such series (a) a certificate signed by any Vice President, the
Treasurer or any Assistant Treasurer of the Company specifying the portion of
such sinking fund payment, if any, to be satisfied by payment of cash and the
portion of such sinking fund payment, if any, which is to be satisfied by
delivering and crediting such Securities and (b) any Securities to be so
delivered. All Securities so delivered to the Trustee shall be cancelled by the
Trustee and no Securities shall be authenticated in lieu thereof. If the Company
fails to deliver such certificate and Securities at or before the time provided
above, the Company shall not be permitted to satisfy any portion of such
mandatory sinking fund payment by delivery or credit of Securities.
At its option the Company may pay into the sinking fund for the retirement
of Securities of any particular series, on or before each sinking fund payment
date for such series, any additional sum in cash as specified by the terms of
such series of Securities. If the Company intends to exercise its right to make
any such optional sinking 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
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that the Securities of such series are being redeemed for the sinking fund. Any
sinking fund moneys not so applied or allocated by the Trustee or any paying
agent to the redemption of Securities of that series shall be added to the next
cash sinking fund payment received by the Trustee or such paying agent and,
together with such payment, shall be applied in accordance with the provisions
of this Section 14.04. Any and all sinking fund moneys held by the Trustee or
any paying agent on the maturity date of the Securities of any particular
series, and not held for the payment or redemption of particular Securities of
such series, shall be applied by the Trustee or such paying agent, together with
other moneys, if necessary, to be deposited sufficient for the purpose, to the
payment of the principal of the Securities of that series at maturity.
On or before each sinking fund payment date, the Company shall pay to the
Trustee or to one or more paying agents in cash a sum equal to all interest
accrued to the date fixed for redemption on Securities to be redeemed on the
next following sinking fund payment date pursuant to this Section.
Neither the Trustee nor any paying agent shall redeem any Securities of a
series with sinking fund moneys, and the Trustee shall not mail any notice of
redemption of Securities for such series by operation of the sinking fund,
during the continuance of a default in payment of interest on such Securities or
of any Event of Default (other than an Event of Default occurring as a
consequence of this paragraph), except that if the notice of redemption of any
Securities shall theretofore have been mailed in accordance with the provisions
hereof, the Trustee or any paying agent shall redeem such Securities if cash
sufficient for that purpose shall be deposited with the Trustee or such paying
agent for that purpose in accordance with the terms of this Article XIV. 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 XV; and each holder of a Security,
whether upon original issue or upon transfer or assignment thereof, accepts and
agrees to be bound by such provisions.
The payment by the Company of the principal of, 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 XV 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
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the Securities or any redemption, retirement, purchase or other acquisition of
any of the Securities, permitting the holders of such Senior Indebtedness (or a
trustee on behalf of the holders thereof) to accelerate the maturity thereof.
In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee when such payment is prohibited by the preceding
paragraph of this Section 15.02, such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of Senior
Indebtedness and Other Financial Obligations or their respective
representatives, or to the trustee or trustees under any indenture pursuant to
which any of such Senior Indebtedness and Other Financial Obligations may have
been issued, as their respective interests may appear, but only to the extent
that the holders of the Senior Indebtedness and Other Financial Obligations (or
their representative or representatives or a trustee) notify the Trustee in
writing within 90 days of such payment of the amounts then due and owing on the
Senior Indebtedness and Other Financial Obligations and only the amounts
specified in such notice to the Trustee shall be paid to the holders of Senior
Indebtedness and Other Financial Obligations.
SECTION 15.03. Liquidation; Dissolution; Bankruptcy.
Upon any payment by the Company or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, to creditors
upon any dissolution, winding-up, liquidation or reorganization of the Company,
whether voluntary or involuntary or in bankruptcy, insolvency, receivership or
other proceedings, all amounts due upon all Senior Indebtedness and Other
Financial Obligations of the Company shall first be paid in full, or payment
thereof provided for in money in accordance with their terms, before any payment
is made by the Company on account of the principal (and premium, if any) or
interest on the Securities; and upon any such dissolution or winding-up or
liquidation or reorganization, any payment by the Company, or distribution of
assets of the Company of any kind or character, whether in cash, property or
securities, to which the Securityholders or the Trustee would be entitled to
receive from the Company, except under the provisions of this Article XV, shall
be paid by the Company or by any receiver, trustee in bankruptcy, liquidating
trustee, agent or other Person making such payment or distribution, or by the
Securityholders or by the Trustee under the Indenture if received by them or it,
directly to the holders of Senior Indebtedness 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 XV, the words "cash, property or securities"
shall not be deemed to include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other corporation provided for
by a plan of reorganization or readjustment, the payment of which is
subordinated at least to the extent provided in this Article XV with respect to
the Securities to the payment of all Senior Indebtedness and Other Financial
Obligations of the Company, as the case may be, that may at the time be
outstanding, provided that
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(i) such Senior Indebtedness and Other Financial Obligations is assumed by the
new corporation, if any, resulting from any such reorganization or readjustment,
and (ii) the rights of the holders of such Senior Indebtedness and Other
Financial Obligations are not, without the consent of such holders, altered by
such reorganization or readjustment. The consolidation of the Company with, or
the merger of the Company into, another corporation or the liquidation or
dissolution of the Company following the conveyance or transfer of its property
as an entirety, or substantially as an entirety, to another corporation upon the
terms and conditions provided for in Article X of this Indenture shall not be
deemed a dissolution, winding-up, liquidation or reorganization for the purposes
of this Section 15.03 if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions stated
in Article X of this Indenture. Nothing in Section 15.02 or in this Section
15.03 shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 6.06 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 XV, and no payment over pursuant to the provisions of this Article
XV 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 XV are and are intended solely for the purposes of
defining the relative rights of the holders of the Securities, on the one hand,
and the holders of such Senior Indebtedness and Other Financial Obligations, on
the other hand.
Nothing contained in this Article XV 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 XV 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 XV, the Trustee, subject to the provisions of Article VI of this
Indenture, and the Securityholders shall be entitled to conclusively rely upon
any order or decree made by any court of competent jurisdiction in which such
dissolution, winding-up, liquidation or reorganization proceedings are pending,
or a certificate of the receiver, trustee in bankruptcy, liquidation trustee,
agent or other Person making such payment or distribution, delivered to the
Trustee or to the Securityholders, for the purposes of ascertaining the Persons
entitled to participate in such distribution, the holders of Senior
Indebtedness, 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 XV.
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SECTION 15.05. Trustee to Effectuate Subordination.
Each Securityholder by such Securityholder's acceptance thereof authorizes
and directs the Trustee on such Securityholder's behalf to take such action as
may be necessary or appropriate to effectuate the subordination provided in this
Article XV and appoints the Trustee such Securityholder's attorney-in-fact for
any and all such purposes.
SECTION 15.06. Notice by the Company.
The Company shall give prompt written notice to a Responsible Officer of
any fact known to the Company that would prohibit the making of any payment of
monies to or by the Trustee in respect of the Securities pursuant to the
provisions of this Article XV. Notwithstanding the provisions of this Article XV
or any other provision of this Indenture 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 XV, 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 VI of this
Indenture, shall be entitled in all respects to assume that no such facts exist;
provided, however, that if the Trustee shall not have received the notice
provided for in this Section 15.06 at least two Business Days prior to the date
upon which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of (or premium, if
any) or interest on any Security), then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purposes for which they were
received, and shall not be affected by any notice to the contrary that may be
received by it within two Business Days prior to such date.
The Trustee, subject to the provisions of Article VI of this Indenture,
shall be entitled to conclusively rely on the delivery to it of a written notice
by a Person representing himself to be a holder of Senior Indebtedness 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 XV, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of such Senior Indebtedness 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 XV, and, if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
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 XV 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.
Nothing in this Article XV shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.06.
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 XV, 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 VI of this Indenture, the Trustee shall not be liable to any
46
<PAGE> 54
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 XV or otherwise.
SECTION 15.08. Subordination May Not Be Impaired.
No right of any present or future holder of any Senior Indebtedness or
Other Financial Obligations of the Company to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Company, as the case may be, or by any act or
failure to act, in good faith, by any such holder, or by any noncompliance by
the Company, as the case may be, with the terms, provisions and covenants of
this Indenture, regardless of any knowledge thereof that any such holder may
have or otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Indebtedness or Other Financial Obligations of the Company
may, at any time and from time to time, without the consent of or notice to the
Trustee or the Securityholders, without incurring responsibility to the
Securityholders and without impairing or releasing the subordination provided in
this Article XV 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]
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<PAGE> 55
The Bank of New York hereby accepts the trusts in this Indenture declared
and provided, upon the terms and conditions hereinabove set forth.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed by their respective officers thereunto duly authorized, all as of
the day and year first above written.
[Seal] FLEET FINANCIAL GROUP, INC.
Attest:
______________________________________ By___________________________________
William C. Mutterperl Eugene M. McQuade
Secretary Vice Chairman and
Chief Financial Officer
THE BANK OF NEW YORK,
as Trustee
By___________________________________
Annette L. Kos
Assistant Vice President
<PAGE> 56
STATE OF RHODE ISLAND )
COUNTY OF PROVIDENCE ) ss.:
On the ____ day of ___________, ____ before me personally came Eugene M.
McQuade, to me known, who, being by me duly sworn, did depose and say that he
resides at 50 Downing Street, East Greenwich, Rhode Island; that he is Vice
Chairman and Chief Financial Officer of Fleet Financial Group, Inc., one of the
corporations described in and which executed the above instrument; that he knows
the corporate seal of said corporation; that the seal affixed to the said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation; and that he signed his name thereto by
like authority.
_________________________________
NOTARY PUBLIC
[seal] Commission expires:
<PAGE> 1
EXHIBIT 4(x)
[ ] SUPPLEMENTAL INDENTURE
between
FLEET BOSTON CORPORATION
and
THE BANK OF NEW YORK
Dated as of [ ]
<PAGE> 2
TABLE OF CONTENTS*
PAGE
ARTICLE I
DEFINITIONS
SECTION 1.1 Definition of Terms 1
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1 Designation and Principal Amount 3
SECTION 2.2 Maturity 3
SECTION 2.3 Form and Payment 3
SECTION 2.4 Global Debenture 3
SECTION 2.5 Interest 4
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1 Optional Redemption 5
SECTION 3.2 Redemption Procedures 5
SECTION 3.3 No Sinking Fund 5
SECTION 3.4 Required Approval 5
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1 Extension of Interest Payment Period 5
SECTION 4.2 Notice of Extension 6
SECTION 4.3 Limitation of Transactions 6
ARTICLE V
EXPENSES
SECTION 5.1 Payment of Expenses 7
SECTION 5.2 Payment Upon Resignation or Removal 7
ARTICLE VI
COVENANT TO LIST ON EXCHANGE
SECTION 6.1 Listing on an Exchange 8
ARTICLE VII
FORM OF DEBENTURE
SECTION 7.1 Form of Debenture 8
*THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE A PART OF
THIS [ ]SUPPLEMENTAL INDENTURE.
i
<PAGE> 3
ARTICLE VIII
ORIGINAL ISSUE OF DEBENTURES
SECTION 8.1 Original Issue of Debentures 12
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Ratification of Indenture 12
SECTION 9.2 Trustee Not Responsible for Recitals 12
SECTION 9.3 Governing Law 13
SECTION 9.4 Separability 13
SECTION 9.5 Counterparts 13
ii
<PAGE> 4
[ ] SUPPLEMENTAL INDENTURE, dated as of [ ] (the "[ ] Supplemental
Indenture"), between Fleet Financial Group, Inc., a Rhode Island corporation
(the "Company"), and The Bank of New York, a New York banking corporation, as
trustee (the "Trustee") under the Indenture dated as of [ ] between the Company
and the Trustee (the "Indenture").
WHEREAS, the Company executed and delivered the Indenture to the Trustee to
provide for the future issuance of the Company's unsecured junior subordinated
debt securities to be issued from time to time in one or more series as might be
determined by the Company under the Indenture, in an unlimited aggregate
principal amount which may be authenticated and delivered as provided in the
Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company desires to
provide for the establishment of a new series of such securities to be known as
its [ ]% Junior Subordinated Deferrable Interest Debentures due [ ] (the
"Debentures"), the form and substance of such Debentures and the terms,
provisions and conditions thereof to be set forth as provided in the Indenture
and this [ ] Supplemental Indenture;
WHEREAS, the Company and Fleet Capital Trust [ ] a Delaware statutory
business trust (the "Trust"), has offered to the public $[ ] aggregate
liquidation amount of its [ ]% Trust Originated Preferred Securities(SM)
("TOPrS(SM)") (the "Preferred Securities"), representing preferred undivided
beneficial interests in the assets of the Trust, and proposes to invest the
proceeds from such offering, together with the proceeds of the issuance and sale
by the Trust to the Company of $[ ] aggregate liquidation amount of its [ ]%
Common Securities (the "Common Securities"), in $[ ] aggregate principal amount
of the Debentures; and
WHEREAS, the Company has requested that the Trustee execute and deliver
this [ ] Supplemental Indenture and all requirements necessary to make this [ ]
Supplemental Indenture a valid instrument in accordance with its terms, and to
make the Debentures, when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company, have been
performed, and the execution and delivery of this [ ] Supplemental Indenture has
been duly authorized in all respects.
NOW THEREFORE, in consideration of the purchase and acceptance of the
Debentures by the Holders thereof, and for the purpose of setting forth, as
provided in the Indenture, the form and substance of the Debentures and the
terms, provisions and conditions thereof, the Company covenants and agrees with
the Trustee as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used in this
[ ] Supplemental Indenture;
(b) a term defined anywhere in this [ ] Supplemental Indenture has the same
meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or Article of this
[ ] Supplemental Indenture;
(e) headings are for convenience of reference only and do not affect
interpretation;
- ----------------------
(SM) "Trust Originated Preferred Securities and "TOPrS" are service marks of
Merrill Lynch & Co.
1
<PAGE> 5
(f) the following terms have the meanings given to them in the Declaration:
(i) Purchase Agreement; (ii) Delaware Trustee; (iii) Distributions; (iv)
Institutional Trustee; (v) Preferred Securities Guarantee; (vi) Preferred
Security Certificate; and (vii) Regular Trustee.
(g) the following terms have the meanings given to them in this Section
1.1(g):
"Additional Interest" shall have the meaning set forth in Section 2.5(c).
"Compound Interest" shall have the meaning set forth in Section 4.1.
"Coupon Rate" shall have the meaning set forth in Section 2.5(a).
"Creditor" shall have the meaning set forth in Section 5.1.
"Declaration" means the [ ] Amended and Restated Declaration of Trust of
Fleet Capital Trust [ ], a Delaware statutory business trust, dated as of [ ].
"Deferred Interest" shall have the meaning set forth in Section 4.1.
"Dissolution Event" means the dissolution of the Trust and distribution of
the Debentures held by the Institutional Trustee pro rata to the holders of the
Trust Securities in accordance with the Declaration, such event to occur at the
option of the Company at any time.
"Extended Interest Payment Period" shall have the meaning set forth in
Section 4.1.
"Federal Reserve Board" means the Board of Governors of the Federal Reserve
System.
"Global Debenture" shall have the meaning set forth in Section 2.4(a).
"Holder" means any person in whose name at the time a Debenture is
registered on the Security Register.
"Interest Payment Date" shall have the meaning set forth in Section 2.5(a).
"Non Book-Entry Preferred Securities" shall have the meaning set forth in
Section 2.4(a).
"Prepayment Price" shall have the meaning set forth in Section 3.1.
"Regulatory Capital Event" means that the Company shall have received an
opinion of independent bank regulatory counsel experienced in such matters to
the effect that, as a result of (a) any amendment to, or change (including any
announced prospective change) in, the laws (or any regulations thereunder) of
the United States or any rules, guidelines or policies of the Federal Reserve
Board or (b) any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or such pronouncement or decision is announced on or after the date of
original issuance of the Preferred Securities, the Preferred Securities do not
constitute, or within 90 days of the date thereof, will not constitute, Tier 1
capital (or its equivalent) for purposes of the Federal Reserve Board's capital
guidelines for bank holding companies; provided, however, that the distribution
of the Debentures in connection with the liquidation of the Trust by the Company
and the treatment thereafter of the Debentures as other than Tier 1 capital
shall not in and of itself constitute a Regulatory Capital Event unless such
liquidation shall have occurred in connection with a Tax Event.
"Special Event" means a Tax Event or a Regulatory Capital Event, as the
case may be.
"Stated Maturity" means the date on which the Debentures mature and on
which the principal shall be due and payable, together with all accrued and
unpaid interest thereon including Compound Interest and Additional Interest, if
any, which date shall be [ ].
2
<PAGE> 6
"Tax Event" means that the Regular Trustees shall have received an opinion
of a nationally recognized independent tax counsel experienced in such matters
to the effect that, as a result of (a) any amendment to, or change (including
any announced prospective change) in, the laws or any regulations thereunder of
the United States or any political subdivision or taxing authority thereof or
therein, or (b) any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or such pronouncement or decision is announced on or after the date of
the original issuance of the Debentures, there is more than an insubstantial
risk that (i) the Trust is, or will be within 90 days of the date of such
opinion, subject to United States federal income tax with respect to income
received or accrued on the Debentures, (ii) interest payable by the Company on
the Debentures is not, or within 90 days of the date thereof will not be,
deductible by the Company, in whole or in part, for United States federal income
tax purposes, or (iii) the Trust is, or will be within 90 days of the date of
such opinion, subject to more than a de minimis amount of other taxes, duties or
other governmental charges.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1. Designation and Principal Amount.
There is hereby authorized a series of Securities designated the "[ ]%
Junior Subordinated Deferrable Interest Debentures due [ ]", limited in
aggregate principal amount to $[ ] which amount shall be as set forth in any
written order of the Company for the authentication and delivery of Debentures
pursuant to Section 2.04 of the Indenture.
SECTION 2.2. Maturity. The Debentures shall mature on [ ] (the "Stated
Maturity").
SECTION 2.3. Form and Payment.
Except as provided in Section 2.4, the Debentures shall be issued in fully
registered certificated form without interest coupons. Principal and interest on
the Debentures issued in certificated form will be payable, the transfer of such
Debentures will be registrable and such Debentures will be exchangeable for
Debentures bearing identical terms and provisions at the office or agency of the
Trustee in New York, New York; provided, however, that payment of interest may
be made at the option of the Company by check mailed to the Holder entitled
thereto at such address as shall appear in the Security Register or by wire
transfer to an account appropriately designated by the Holder, entitled thereto.
Notwithstanding the foregoing, so long as the Holder of any Debentures is the
Institutional Trustee, the payment of the principal of and interest (including
Compound Interest and Additional Interest, if any) on such Debentures held by
the Institutional Trustee will be made at such place and to such account as may
be designated by the Institutional Trustee.
SECTION 2.4. Global Debenture.
(a) In connection with a Dissolution Event,
(i) the Debentures in certificated form may be presented to
the Trustee by the Institutional Trustee in exchange for a global
Debenture in an aggregate principal amount equal to the aggregate
principal amount of all outstanding Debentures (a "Global Debenture"),
to be registered in the name of the Depository Institution, or its
nominee, and delivered by the Trustee to the Depository Institution for
crediting to the accounts of its participants pursuant to the
instructions of the Regular Trustees. The Company upon any such
presentation shall execute a Global Debenture in such aggregate
principal amount and deliver the same to the Trustee for authentication
and delivery in accordance with the Indenture and this [ ] Supplemental
Indenture. Payments on the Debentures issued as a Global Debenture will
be made to the Depository Institution; and
(ii) if any Preferred Securities are held in non book-entry
certificated form, the Debentures in certificated form may be presented
to the Trustee by the Institutional Trustee and any Preferred Security
Certificate which represents Preferred Securities other than Preferred
Securities held by the Depository
3
<PAGE> 7
Institution or its nominee ("Non Book-Entry Preferred Securities") will
be deemed to represent beneficial interests in Debentures presented to
the Trustee by the Institutional Trustee having an aggregate principal
amount equal to the aggregate liquidation amount of the Non Book-Entry
Preferred Securities until such Preferred Security Certificates are
presented to the Security registrar for transfer or reissuance, at
which time such Preferred Security Certificates will be canceled and a
Debenture, registered in the name of the holder of the Preferred
Security Certificate or the transferee of the holder of such Preferred
Security Certificate, as the case may be, with an aggregate principal
amount equal to the aggregate liquidation amount of the Preferred
Security Certificate canceled, will be executed by the Company and
delivered to the Trustee for authentication and delivery in accordance
with the Indenture and this [ ] Supplemental Indenture. On issue of
such Debentures, Debentures with an equivalent aggregate principal
amount that were presented by the Institutional Trustee to the Trustee
will be deemed to have been canceled.
(b) A Global Debenture may be transferred, in whole but not in part, only
to another nominee of the Depository Institution, or to a successor Depository
Institution selected or approved by the Company or to a nominee of such
successor Depository Institution.
(c) If (i) at any time the Depository Institution notifies the Company that
it is unwilling or unable to continue as Depository Institution or if at any
time the Depository Institution for such series shall no longer be registered or
in good standing under the Securities Exchange Act of 1934, as amended, or other
applicable statute or regulation, and a successor Depository Institution for
such series is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such condition, as the case may be,
(ii) the Company at any time determines that the Debentures shall no longer be
solely represented by a Global Debenture or (iii) there shall have occurred an
Event of Default, then the Company shall execute, and, subject to Article II of
the Indenture, the Trustee, upon written notice from the Company, shall
authenticate and deliver the Debentures in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount equal
to the principal amount of the Global Debenture in exchange for such Global
Debenture. In such event the Company shall execute, and, subject to Section 2.07
of the Indenture, the Trustee, upon receipt of an Officers' Certificate
evidencing such determination by the Company, shall authenticate and deliver the
Debentures in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Debenture in exchange for such Global Debenture. Upon the
exchange of the Global Debenture for such Debentures in definitive registered
form without coupons, in authorized denominations, the Global Debenture shall be
canceled by the Trustee. Such Debentures in definitive registered form issued in
exchange for the Global Debenture shall be registered in such names and in such
authorized denominations as the Depository Institution, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Securities to the Depository Institution
for delivery to the Persons in whose names such Securities are so registered.
SECTION 2.5. Interest.
(a) Each Debenture will bear interest at the rate of [ ]% per annum (the
"Coupon Rate") from the original date of issuance until the principal thereof
becomes due and payable, and on any overdue principal and, to the extent that
payment of such interest is enforceable under applicable law, on any overdue
installment of interest at the Coupon Rate, compounded quarterly, payable
quarterly in arrears on [ ], [ ], [ ] and [ ] of each year (each, an "Interest
Payment Date"), commencing on [ ], to the Person in whose name such Debenture or
any predecessor Debenture is registered at the close of business on the relevant
record date, which will be, as long as the Preferred Securities remain in
book-entry form (or if no Preferred Securities remain outstanding, as long as
the Debentures remain in book entry form), one Business Day prior to the
relevant Interest Payment Date and, in the event the Preferred Securities are
not in book-entry form (or if no Preferred Securities remain outstanding, in the
event the Debentures are not in book entry form), the 15th day of the month in
which the relevant Interest Payment Date date occurs, except as otherwise
provided pursuant to the provisions of Article IV hereof.
(b) The amount of interest payable for any period will be computed on the
basis of a 360-day year of twelve 30-day months. Except as provided in the
following sentence, the amount of interest payable for any period shorter than a
full quarterly period for which interest is computed, will be computed on the
basis of the actual number of days elapsed per calendar month (but not to exceed
30 days in any month). In the event that any date on which
4
<PAGE> 8
interest is payable on the Debentures is not a Business Day, then payment of
interest payable on such date will be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect of any such
delay), except that, if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on the date that such
interest otherwise would have been payable.
(c) If, at any time while the Institutional Trustee is the holder of any
Junior Subordinated Debentures, the Trust or the Institutional Trustee is
required to pay any taxes, duties, assessments or governmental charges of
whatever nature (other than withholding taxes) imposed by the United States, or
any other taxing authority, then, in any such case, the Company will pay as
additional interest ("Additional Interest") on the Debentures held by the
Institutional Trustee, such additional amounts as shall be required so that the
net amounts received and retained by the Trust and by the Institutional Trustee
after paying such taxes, duties, assessments or other governmental charges will
be equal to the amounts the Trust and the Institutional Trustee would have
received had no such taxes, duties, assessments or other governmental charges
been imposed.
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1 Optional Redemption
The Junior Subordinated Debentures are prepayable prior to the Stated
Maturity at the option of the Company (i) in whole or in part, from time to
time, on or after [ ] or (ii) at any time prior to [ ], in whole but not in
part, upon the occurrence and continuation of a Special Event, in either case at
a prepayment price (the "Prepayment Price") equal to 100% of the principal
amount thereof, plus accrued and unpaid interest thereon (including Additional
Interest and Compound Interest, if any) to the date of prepayment.
SECTION 3.2 Redemption Procedures
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each Holder of Debentures to be prepaid at
its registered address. Unless the Company defaults in payment of the prepayment
price, on and after the redemption date interest shall cease to accrue on such
Debentures called for redemption. If the Debentures are only partially redeemed
pursuant to Section 3.1, the Debentures will be redeemed pro rata or by lot or
by any other method utilized by the Trustee; provided, that if at the time of
redemption the Debentures are registered as a Global Debenture, the Depository
Institution shall determine, in accordance with its procedures, the principal
amount of such Debentures held by each Depository Institution participant to be
redeemed. The Prepayment Price shall be paid prior to 12:00 noon, New York time,
on the date of such prepayment or at such earlier time as the Company
determines; provided that the Company shall deposit with the Trustee an amount
sufficient to pay the Prepayment Price by 10:00 a.m., New York time, on the date
such prepayment price is to be paid.
SECTION 3.3. No Sinking Fund.
The Debentures are not entitled to the benefit of any sinking fund.
SECTION 3.4. Required Approval.
Any redemption of the Debentures in accordance with the foregoing Sections
may require the prior approval of the Federal Reserve Board if such approval is
then required under applicable law, rules, guidelines or policies.
5
<PAGE> 9
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period.
So long as the Company shall not be in default in the payment of interest
on the Debentures, the Company shall have the right, at any time and from time
to time during the term of the Debentures, to defer payments of interest by
extending the interest payment period of such Debentures for a period not
exceeding 20 consecutive quarters (the "Extended Interest Payment Period"),
during which Extended Interest Payment Period no interest shall be due and
payable; provided that no Extended Interest Payment Period may extend beyond the
Stated Maturity. To the extent permitted by applicable law, interest, the
payment of which has been deferred because of the extension of the interest
payment period pursuant to this Section 4.1, will bear interest thereon at the
Coupon Rate compounded quarterly for each quarter of the Extended Interest
Payment Period ("Compound Interest"). At the end of the Extended Interest
Payment Period, the Company shall pay all interest accrued and unpaid on the
Debentures, including any Additional Interest and Compound Interest (together,
"Deferred Interest") that shall be payable to the Holders in whose names the
Debentures are registered in the Security Register on the record date for the
first Interest Payment Date after the end of the Extended Interest Payment
Period. Before the termination of any Extended Interest Payment Period, the
Company may further extend such period, provided that such period together with
all such further extensions thereof shall not exceed 20 consecutive quarters, or
extend beyond the Stated Maturity of the Debentures. Upon the termination of any
Extended Interest Payment Period and upon the payment of all Deferred Interest
then due, the Company may commence a new Extended Interest Payment Period,
subject to the foregoing requirements. No interest shall be due and payable
during an Extended Interest Payment Period, except at the end thereof, but the
Company may prepay at any time all or any portion of the interest accrued during
an Extended Interest Payment Period.
SECTION 4.2. Notice of Extension.
(a) If the Institutional Trustee is the only registered Holder at the time
the Company selects an Extended Interest Payment Period, the Company shall give
written notice to the Regular Trustees, the Institutional Trustee and the
Trustee of its selection of such Extended Interest Payment Period one Business
Day before the earlier of (i) the next succeeding date on which Distributions on
the Trust Securities issued by the Trust are payable, or (ii) the date the Trust
is required to give notice of the record date, or the date such Distributions
are payable, to the New York Stock Exchange or other applicable self-regulatory
organization or to holders of the Preferred Securities issued by the Trust, but
in any event at least one Business Day before such record date.
(b) If the Institutional Trustee is not the only Holder at the time the
Company selects an Extended Interest Payment Period, the Company shall give the
Holders of the Debentures and the Trustee written notice of its selection of
such Extended Interest Payment Period at least ten Business Days before the
earlier of (i) the next succeeding Interest Payment Date, or (ii) the date the
Company is required to give notice of the record date or the Interest Payment
Date to the New York Stock Exchange or other applicable self-regulatory
organization or to Holders of the Debentures.
(c) The quarter in which any notice is given pursuant to paragraphs (a) or
(b) of this Section 4.2 shall be counted as one of the 20 quarters permitted in
the maximum Extended Interest Payment Period permitted under Section 4.1.
SECTION 4.3. Limitation of Transactions.
If (i) the Company shall exercise its right to defer payment of interest as
provided in Section 4.1 and the Extended Interest Payment Period is continuing,
or (ii) there shall have occurred any Event of Default, as defined in the
Indenture, or (iii) there shall have occurred any Event of Default, as defined
in the Preferred Securities Guarantee, then (a) the Company shall not declare or
pay any dividend on, make any distribution with respect to, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of its capital stock
(other than (1) purchases or acquisitions of shares of its common stock in
connection with the satisfaction by the Company of its obligations under any
employee benefit plans or any other contractual obligation of the Company (other
than a
6
<PAGE> 10
contractual obligation ranking pari passu with or junior to the Debentures), (2)
as a result of a reclassification of the Company's capital stock or the exchange
or conversion of one class or series of the Company's capital stock for another
class or series of the Company's capital stock or (3) the purchase of fractional
interests in shares of the Company's capital stock pursuant to the conversion or
exchange provisions of such capital stock or the security being converted or
exchanged), (b) the Company shall not make any payment of interest, principal or
premium, if any, on or repay, repurchase or redeem any debt securities issued by
the Company that rank pari passu with or junior to the Debentures and (c) the
Company shall not make any guarantee payments with respect to the foregoing
(other than pursuant to the Preferred Securities Guarantee).
ARTICLE V
EXPENSES
SECTION 5.1. Payment of Expenses.
In connection with the offering, sale and issuance of the Debentures to the
Institutional Trustee and in connection with the sale of the Trust Securities by
the Trust, the Company, in its capacity as borrower with respect to the
Debentures, shall:
(a).pay all costs and expenses relating to the offering, sale and issuance
of the Debentures, including commissions to the underwriter payable pursuant to
the Purchase Agreement and compensation of the Trustee under the Indenture in
accordance with the provisions of Section 6.06 of the Indenture;
(b).be responsible for and shall pay all debts and obligations (other than
with respect to the Trust Securities) and all costs and expenses of the Trust
(including, but not limited to, costs and expenses relating to the organization,
maintenance and dissolution of the Trust, the offering, sale and issuance of the
Trust Securities (including commissions to the underwriters in connection
therewith), the fees and expenses (including reasonable counsel fees and
expenses) of the Institutional Trustee, the Delaware Trustee and the Regular
Trustees (including any amounts payable under Article 10 of the Declaration),
the costs and expenses relating to the operation of the Trust, including without
limitation, costs and expenses of accountants, attorneys, statistical or
bookkeeping services, expenses for printing and engraving and computing or
accounting equipment, paying agent(s), registrar(s), transfer agent(s),
duplicating, travel and telephone and other telecommunications expenses and
costs and expenses incurred in connection with the acquisition, financing, and
disposition of Trust assets and the enforcement by the Institutional Trustee of
the rights of the holders of the Preferred Securities);
(c) be liable for any indemnification obligations arising with respect to
the Declaration; and
(d) pay any and all taxes (other than United States withholding taxes
attributable to the Trust or its assets) and all liabilities, costs and expenses
with respect to such taxes of the Trust.
The Company's obligations under this Section 5.1 shall be for the benefit
of, and shall be enforceable by, any Person to whom such debts, obligations,
costs, expenses and taxes are owed (a "Creditor") whether or not such Creditor
has received notice hereof. Any such Creditor may enforce the Company's
obligations under this Section 5.1 directly against the Company and the Company
irrevocably waives any right of remedy to require that any such Creditor take
any action against the Trust or any other Person before proceeding against the
Company. The Company agrees to execute such additional agreements as may be
necessary or desirable in order to give full effect to the provisions of this
Section 5.1.
The provisions of this Section shall survive the termination of this
Supplemental Indenture.
SECTION 5.2. Payment Upon Resignation or Removal.
Upon termination of this [ ] Supplemental Indenture or the Indenture or the
removal or resignation of the Trustee, unless otherwise stated, the Company
shall pay to the Trustee all amounts accrued to the date of such termination,
removal or resignation that are payable pursuant to Section 6.06 of the
Indenture. Upon termination of
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<PAGE> 11
the Declaration or the removal or resignation of the Delaware Trustee or the
Institutional Trustee, as the case may be, pursuant to Section 5.6 of the
Declaration, the Company shall pay to the Delaware Trustee or the Institutional
Trustee, as the case may be, all amounts accrued to the date of such
termination, removal or resignation.
ARTICLE VI
COVENANT TO LIST ON EXCHANGE
SECTION 6.1. Listing on an Exchange.
If the Debentures are distributed to the holders of the Securities issued
by the Trust, and the Preferred Securities are then so listed, the Company will
use its best efforts to list such Debentures on the New York Stock Exchange,
Inc. or on such other exchange as the Preferred Securities are then listed.
ARTICLE VII
FORM OF DEBENTURE
SECTION 7.1. Form of Debenture.
The Debentures and the Trustee's Certificate of Authentication to be
endorsed thereon are to be substantially in the following forms:
(FORM OF FACE OF DEBENTURE)
IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT - This Debenture is a
Global Debenture within the meaning of the Indenture hereinafter referred to and
is registered in the name of a Depositary or a nominee of a Depositary. This
Debenture is exchangeable for Debentures registered in the name of a person
other than the Depositary or its nominee only in the limited circumstances
described in the Indenture, and no transfer of this Debenture (other than a
transfer of this Debenture as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary) may be registered except in limited circumstances.
Unless this Debenture is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York, New York) to the issuer or
its agent for registration of transfer, exchange or payment, and any Debenture
issued is registered in the name of Cede & Co. or such other name as requested
by an authorized representative of The Depository Trust Company and any payment
hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner hereof, Cede &
Co., has an interest herein.
No. 1
FLEET FINANCIAL GROUP, INC.
[ ] JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE
DUE [ ]
$_______________ CUSIP#__________
FLEET FINANCIAL GROUP, INC., a Rhode Island corporation (the "Company", which
term includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to The Bank of New York, as
Institutional Trustee of Fleet Capital Trust [ ] under that certain Amended and
Restated Declaration of Trust dated as of [ ], or registered assigns, the
principal sum of [ ] ($[ ]) on [ ], (the "Stated Maturity"), and to pay interest
on said principal sum from [ ], or from the most recent interest payment date
(each such date, an "Interest Payment Date") to which interest has been paid or
duly provided for, quarterly (subject to
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<PAGE> 12
deferral as set forth herein) in arrears on [ ], [ ], [ ] and [ ] of each year
commencing [ ], at the rate of [ ]% per annum (the "Coupon Rate") until the
principal hereof shall have become due and payable, and on any overdue principal
and premium, and (without duplication and to the extent that payment of such
interest is enforceable under applicable law) on any overdue installment of
interest at the same rate per annum compounded quarterly. The amount of interest
payable on any Interest Payment Date shall be computed on the basis of a 360-day
year of twelve 30-day months and, except as provided in the following sentences,
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 calendar month (but not to exceed 30 days in
any month). In the event that any date on which interest is payable on this
Debenture is not a Business Day, then payment of interest payable on such date
will be made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay), except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on the date such payment otherwise would have been payable.
The interest installment so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in the Indenture, be paid to the
person in whose name this Debenture (or one or more Predecessor Securities, as
defined in said Indenture) is registered at the close of business on the
relevant record dates, which will be, as long as this Debenture remains in
book-entry form, one Business Day prior to the relevant Interest Payment Date
and, in the event this Debenture is not in book-entry form, the 15th day of the
month in which the relevant Interest Payment Date occurs. Payments of interest
may be deferred by the Company pursuant to the provisions of Article IV of the [
] Supplemental Indenture to the Indenture (as defined herein). Any such interest
installment not punctually paid or duly provided for shall forthwith cease to be
payable to the registered Holders on such regular record date and may be paid to
the Person in whose name this Debenture (or one or more Predecessor Securities)
is registered at the close of business on a special record date to be fixed by
the Trustee for the payment of such defaulted interest, notice whereof shall be
given to the registered Holders of this series of Debentures not less than 10
days prior to such special record date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Debentures may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in the Indenture. The principal of
(and premium, if any) and the interest on this Debenture shall be payable at the
office or agency of the Trustee maintained for that purpose in any coin or
currency of the United States of America that at the time of payment is legal
tender for payment of public and private debts; provided, however, that payment
of interest may be made at the option of the Company by check mailed to the
registered Holder at such address as shall appear in the Security Register.
Notwithstanding the foregoing, so long as the Holder of this Debenture is the
Institutional Trustee, the payment of the principal of (and premium, if any) and
interest on this Debenture will be made at such place and to such account as may
be designated by the Institutional Trustee.
The indebtedness evidenced by this Debenture is, to the extent provided in
the Indenture, subordinate and junior in right of payment to the prior payment
in full of all Senior Indebtedness and Other Financial Obligations (each as
defined in the Indenture) and this Debenture is issued subject to the provisions
of the Indenture with respect thereto. Each Holder of this Debenture, by
accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his or her behalf to take such action as
may be necessary or appropriate to acknowledge or effectuate the subordination
so provided and (c) appoints the Trustee his or her attorney-in-fact for any and
all such purposes. Each Holder hereof, by his or her acceptance hereof, hereby
waives all notice of the acceptance of the subordination provisions contained
herein and in the Indenture by each holder of Senior Indebtedness and Other
Financial Obligations, whether now outstanding or hereafter incurred, and waives
reliance by each such holder upon said provisions.
This Debenture shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until the
Certificate of Authentication hereon shall have been signed by or on behalf of
the Trustee.
The provisions of this Debenture are continued on the reverse side hereof
and such continued provisions shall for all purposes have the same effect as
though fully set forth at this place.
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<PAGE> 13
IN WITNESS WHEREOF, the Company has caused this instrument to be executed.
FLEET FINANCIAL GROUP, INC.
By:____________________________________
Name: Douglas L. Jacobs
Title: Treasurer
Attest:
By:___________________________________
Name: John R. Rodehorst
Title: Assistant Treasurer
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
DATED: [ ]
This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
The Bank of New York
as Trustee
By:_______________________________________
Authorized Signatory
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of Debentures of the
Company (herein sometimes referred to as the "Debentures"), specified in the
Indenture, all issued or to be issued in one or more series under and pursuant
to an Indenture dated as of [ ],duly executed and delivered between the Company
and The Bank of New York as Trustee (the "Trustee"), as supplemented by the [ ]
Supplemental Indenture dated as of [ ] between the Company and the Trustee (the
Indenture as so supplemented, the "Indenture"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities thereunder
of the Trustee, the Company and the Holders of the Debentures. By the terms of
the Indenture, the Debentures are issuable in series that may vary as to amount,
date of maturity, rate of interest and in other respects as provided in the
Indenture. This series of Debentures is limited in aggregate principal amount as
specified in said [ ] Supplemental Indenture.
The Debenture is redeemable by the Company (i) in whole but not in part at
any time prior to [ ] upon the occurrence and continuation of a Special Event
(as defined in the Indenture) or (ii) in whole or in part on or after [ ]. Any
redemption pursuant to this paragraph will be made upon not less than 30 days
nor more than 60 days notice, at a redemption price equal to 100% of the
principal amount plus any accrued but unpaid interest thereon (including
Additional Interest and Compound Interest, if any) to the date of such
redemption (the "Prepayment Price"). The Prepayment Price shall be paid prior to
12:00 noon, New York time, on the date of such redemption or at such earlier
time as the Company determines. If the Debentures are only partially redeemed by
the Company pursuant to an Optional Redemption, the Debentures will be redeemed
pro rata or by lot or by any other method utilized by the Trustee; provided that
if, at the time of redemption, the Debentures are registered as a Global
Debenture, the
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<PAGE> 14
Depositary shall determine the principal amount of such Debentures held by each
Debenture holder to be redeemed in accordance with its procedures.
In the event of redemption of this Debenture in part only, a new Debenture
or Debentures of this series for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Debentures may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the Holders of not less than a majority in aggregate
principal amount of the Debentures of each series affected at the time
outstanding, as defined in the Indenture, to execute supplemental indentures for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of the Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Debentures; provided,
however, that no such supplemental indenture shall (i) extend the fixed maturity
of any Debentures of any series, or reduce the principal amount thereof or any
premium thereon, or reduce the rate or extend the time of payment of interest
thereon, or reduce any amount payable on redemption thereof or make the
principal thereon or any interest or premium thereon payable in any coin or
currency other than that provided in this Debenture, or impair or affect the
right of any Holder of a Debenture to institute suit for payment thereof or the
right of repayment, if any, at the option of the Holder, without the consent of
the Holder of each Debenture so affected, or (ii) reduce the aforesaid
percentage of Debentures, the Holders of which are required to consent to any
such supplemental indenture, without the consent of the Holders of each
Debenture then outstanding and affected thereby. The Indenture also contains
provisions permitting the Holders of a majority in aggregate principal amount of
the Debentures of any series at the time outstanding affected thereby, on behalf
of all of the Holders of the Debentures of such series, to waive any past
default in the performance of any of the covenants contained in the Indenture,
or established pursuant to the Indenture with respect to such series, and its
consequences, except a default in the payment of the principal of or premium, if
any, or interest on any of the Debentures of such series. Any such consent or
waiver by the registered Holder of this Debenture (unless revoked as provided in
the Indenture) shall be conclusive and binding upon such Holder and upon all
future Holders and owners of this Debenture and of any Debenture issued in
exchange hereof or in place hereof (whether by registration of transfer or
otherwise), irrespective of whether or not any notation of such consent or
waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this Debenture or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Debenture at the time and place and at the rate and in the
money herein prescribed.
The Company shall have the right at any time during the term of the
Debentures and from time to time to extend the interest payment period of such
Debentures for up to 20 consecutive quarters (an "Extended Interest Payment
Period"), at the end of which period the Company shall pay all interest then
accrued and unpaid (together with interest thereon at the rate specified for the
Debentures to the extent that payment of such interest is enforceable under
applicable law); provided that no Extended Interest Payment Period may last
beyond the Stated Maturity of the Debentures. Before the termination of any such
Extended Interest Payment Period, the Company may further extend such Extended
Interest Payment Period, provided that such Extended Interest Payment Period
together with all such further extensions thereof shall not exceed 20
consecutive quarters or last beyond the Stated Maturity date of the Debentures.
At the termination of any such Extended Interest Payment Period and upon the
payment of all accrued and unpaid interest, including any Additional Interest
and Compound Interest, the Company may commence a new Extended Interest Payment
Period.
As provided in the Indenture and subject to certain limitations therein set
forth, this Debenture is transferable by the registered Holder hereof on the
Security Register, upon surrender of this Debenture for registration of transfer
at the office or agency of the Trustee in the City and State of New York,
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company or the Trustee duly executed by the registered
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Debentures of authorized denominations and for the same aggregate
principal amount and series will be issued to the designated transferee or
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<PAGE> 15
transferees. No service charge will be made for any such transfer, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Debenture,
the Company, the Trustee, any paying agent, any transfer agent and any security
registrar may deem and treat the registered holder hereof as the absolute owner
hereof (whether or not this Debenture shall be overdue and notwithstanding any
notice of ownership or writing hereon made by anyone other than a security
registrar) for the purpose of receiving payment of or on account of the
principal hereof and premium, if any, and interest due hereon and for all other
purposes, and none of the Company, the Trustee, any paying agent, any transfer
agent or any security registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
The Debentures of this series are issuable only in registered form without
coupons in denominations of $[ ] and any integral multiple thereof. As provided
in the Indenture and subject to certain limitations herein and therein set
forth, Debentures of this series so issued are exchangeable for a like aggregate
principal amount of Debentures of this series of a different authorized
denomination, as requested by the Holder surrendering the same.
All terms used in this Debenture that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
This Debenture shall be governed by the internal laws of the State of New
York, and for all purposes shall be construed in accordance with the laws of
said State.
ARTICLE VIII
ORIGINAL ISSUE OF DEBENTURES
SECTION 8.1. Original Issue of Debentures.
Debentures in the aggregate principal amount of $[ ], may, upon execution
of this [ ] Supplemental Indenture or upon any written order of the Company
setting forth the amount therefor, be executed by the Company and delivered to
the Trustee for authentication, and the Trustee shall thereupon authenticate and
deliver said Debentures to or upon the written order of the Company, signed by
its Chairman, its President, or any Vice President and its Treasurer, its
Secretary, any Assistant Treasurer, or any Assistant Secretary, without any
further action by the Company.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Ratification of Indenture.
The Indenture, as supplemented by this [ ] Supplemental Indenture, is in
all respects ratified and confirmed, and this [ ] Supplemental Indenture shall
be deemed part of the Indenture in the manner and to the extent herein and
therein provided.
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<PAGE> 16
SECTION 9.2. Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and not by the
Trustee, and the Trustee assumes no responsibility for the correctness thereof.
The Trustee makes no representation as to the validity or sufficiency of this [
] Supplemental Indenture.
SECTION 9.3. Governing Law.
This [ ] Supplemental Indenture and each Debenture shall be deemed to be a
contract made under the internal laws of the State of New York, and for all
purposes shall be construed in accordance with the laws of said State.
SECTION 9.4. Separability.
In case any one or more of the provisions contained in this [ ]
Supplemental Indenture or in the Debentures shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this [ ] Supplemental
Indenture or of the Debentures, but this [ ] Supplemental Indenture and the
Debentures shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
SECTION 9.5. Counterparts.
This [ ] Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
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<PAGE> 17
IN WITNESS WHEREOF, the parties hereto have caused this [ ] Supplemental
Indenture to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
[Seal] FLEET FINANCIAL GROUP, INC.
Attest:
By:__________________________________ By:____________________________________
William C. Mutterperl Douglas L. Jacobs
Secretary Senior Vice President and Treasurer
THE BANK OF NEW YORK,
as Trustee
By:____________________________________
Annette L. Kos
Assistant Vice President
<PAGE> 18
STATE OF RHODE ISLAND )
COUNTY OF PROVIDENCE ) ss.:
On the ____ day of ______ before me personally came Douglas L. Jacobs, to
me known, who, being by me duly sworn, did depose and say that he resides in
Providence, Rhode Island; that he is Senior Vice President and Treasurer 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:
<PAGE> 1
Exhibit 4(aa)
PREFERRED SECURITIES GUARANTEE AGREEMENT
Fleet Capital Trust [ ]
Dated as of [ ]
<PAGE> 2
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND INTERPRETATIONS
SECTION 1.1 Definitions and Interpretation 1
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application 4
SECTION 2.2 Lists of Holders of Securities 4
SECTION 2.3 Reports by the Preferred Guarantee Trustee 4
SECTION 2.4 Periodic Reports to Preferred Guarantee Trustee 4
SECTION 2.5 Evidence of Compliance with Conditions Precedent 4
SECTION 2.6 Events of Default; Waiver 5
SECTION 2.7 Event of Default; Notice 5
SECTION 2.8 Conflicting Interests 5
ARTICLE III
POWERS, DUTIES AND RIGHTS OF PREFERRED GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Preferred Guarantee Trustee 5
SECTION 3.2 Certain Rights of Preferred Guarantee Trustee 7
SECTION 3.3 Not Responsible for Recitals or Issuance of Preferred
Securities Guarantee 8
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 Preferred Guarantee Trustee; Eligibility 8
SECTION 4.2 Appointment, Removal and Resignation of Preferred
Guarantee Trustee 9
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee 9
SECTION 5.2 Waiver of Notice and Demand 10
SECTION 5.3 Obligations Not Affected 10
SECTION 5.4 Enforcement of Guarantee; Rights of Holders 10
SECTION 5.5 Guarantee of Payment 11
SECTION 5.6 Subrogation 11
SECTION 5.7 Independent Obligations 11
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions 11
SECTION 6.2 Ranking 12
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<PAGE> 3
ARTICLE VII
TERMINATION
SECTION 7.1 Termination 12
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation 12
SECTION 8.2 Indemnification 13
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns 13
SECTION 9.2 Amendments 13
SECTION 9.3 Notices 13
SECTION 9.4 Benefit 14
SECTION 9.5 Governing Law 14
SECTION 9.6 Genders 14
SECTION 9.7 Counterparts 14
ii
<PAGE> 4
PREFERRED SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Preferred Securities Guarantee"), dated as
of [ ], is executed and delivered by Fleet Financial Group, Inc., a Rhode Island
corporation (the "Guarantor"), and The Bank of New York, as trustee (the
"Preferred Guarantee Trustee"), for the benefit of the Holders (as defined
herein) of Fleet Capital Trust [ ], a Delaware statutory business trust (the
"Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of [ ], among the trustees of the Issuer named therein,
the Guarantor, as sponsor, and the holders from time to time of undivided
beneficial interests in the assets of the Issuer, the Issuer is issuing on the
date hereof [ ] preferred securities, having an aggregate liquidation amount of
$[ ], designated the [ ]% Trust Originated Preferred Securities(SM)
("TOPrS(SM)") (the "Preferred Securities"); and
WHEREAS, as incentive for the Holders to purchase the Preferred Securities,
the Guarantor desires irrevocably and unconditionally to agree, to the extent
set forth in this Preferred Securities Guarantee, to pay to the Holders the
Guarantee Payments (as defined herein) and to make certain other payments on the
terms and conditions set forth herein.
WHEREAS, the Guarantor is also executing and delivering a guarantee
agreement (the "Common Securities Guarantee") in substantially identical terms
to this Preferred Securities Guarantee for the benefit of the holders of the
Common Securities (as defined herein), except that if an Event of Default (as
defined in the Indenture), has occurred and is continuing, the rights of holders
of the Common Securities to receive Guarantee Payments under the Common
Securities Guarantee are subordinated to the rights of Holders to receive
Guarantee Payments under this Preferred Securities Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder, which
purchase the Guarantor hereby agrees shall benefit the Guarantor, the Guarantor
executes and delivers this Preferred Securities Guarantee for the benefit of the
Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
In this Preferred Securities Guarantee, unless the context otherwise
requires:
(a) capitalized terms used in this Preferred Securities Guarantee but
not defined in the preamble above have the respective meanings assigned to them
in this Section 1.1;
(b) any capitalized term not defined in either the preamble above or
this Section 1.1 shall have the respective meanings assigned to them in the
Declaration in effect as of the date hereof;
(c) a term defined anywhere in this Preferred Securities Guarantee has
the same meaning throughout;
(d) all references to "the Preferred Securities Guarantee" or "this
Preferred Securities Guarantee" are to this Preferred Securities Guarantee as
modified, supplemented or amended from time to time;
- --------------------
SM "Trust Originated Preferred Securities" and "TOPrS" are service marks of
Merrill Lynch & Co.
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<PAGE> 5
(e) all references in this Preferred Securities Guarantee to Articles
and Sections are to Articles and Sections of this Preferred Securities
Guarantee, unless otherwise specified;
(f) a term defined in the Trust Indenture Act has the same meaning when
used in this Preferred Securities Guarantee, unless otherwise defined in this
Preferred Securities Guarantee or unless the context otherwise requires; and
(g) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of the
Securities Act of 1933, as amended, or any successor rule thereunder.
"Authorized Officer" of a Person means any executive officer, president,
vice-president, assistant vice-president, treasurer, assistant treasurer,
secretary, assistant secretary or other officer of such Person generally
authorized to bind such Person.
"Business Day" means any day other than a day on which federal or state
banking institutions in the Borough of Manhattan, The City of New York are
authorized or obligated by any law, executive order or regulation to close.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer.
"Corporate Trust Office" means the office of the Preferred Guarantee
Trustee at which the corporate trust business of the Preferred Guarantee Trustee
shall, at any particular time, be principally administered, which office at the
date of execution of this Preferred Securities Guarantee is located at 101
Barclay Street, Floor 21W, New York, New York 10286.
"Covered Person" means any Holder or beneficial owner of Preferred
Securities.
"Debentures" means the [ ]% Junior Subordinated Deferrable Interest
Debentures due [ ] issued by the Guarantor to the Issuer.
"Event of Default" means a default by the Guarantor on any of its payment
or other obligations under this Preferred Securities Guarantee.
"Guarantee Payments" means the following payments or distributions, without
duplication, with respect to the Preferred Securities, to the extent not paid or
made by the Issuer: (i) any accrued and unpaid Distributions (as defined in the
Declaration) that are required to be paid on such Preferred Securities, to the
extent the Issuer shall have funds available therefor, (ii) the redemption
price, including all accrued and unpaid Distributions to the date of redemption
(the "Redemption Price"), to the extent the Issuer has funds available therefor,
with respect to any Preferred Securities called for redemption by the Issuer,
and (iii) upon a voluntary or involuntary dissolution, winding-up or termination
of the Issuer (other than in connection with the distribution of Debentures to
the Holders or the redemption of all of the Preferred Securities as provided in
the Declaration), the lesser of (a) the aggregate of the liquidation amount and
all accrued and unpaid Distributions on the Preferred Securities to the date of
payment, to the extent the Issuer shall have funds available therefor, and (b)
the amount of assets of the Issuer remaining available for distribution to
Holders in liquidation of the Issuer (in either case, the "Liquidation
Distribution"). If an event of default under the Indenture has occurred and is
continuing, the rights of holders of the Common Securities to receive payments
under the Common Securities Guarantee Agreement are subordinated to the rights
of Holders to receive Guarantee Payments.
"Holder" means any holder, as registered on the books and records of the
Issuer, of any Preferred Securities; provided, however, that, in determining
whether the holders of the requisite percentage of Preferred Securities have
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given any request, notice, consent or waiver hereunder, "Holder" shall not
include the Guarantor or any Affiliate of the Guarantor, but only to the extent
that the Issuer has actual knowledge of such ownership.
"Indemnified Person" means the Preferred Guarantee Trustee, any Affiliate
of the Preferred Guarantee Trustee, or any officers, directors, shareholders,
members, partners, employees, representatives, nominees, custodians or agents of
the Preferred Guarantee Trustee.
"Indenture" means the Indenture dated as of [ ], between the Guarantor (the
"Debenture Issuer") and The Bank of New York, as trustee, and any indenture
supplemental thereto pursuant to which certain subordinated debt securities of
the Debenture Issuer are to be issued to the Institutional Trustee of the
Issuer.
"Majority in liquidation amount of the Preferred Securities" means, except
as provided by the Trust Indenture Act, a vote by Holder(s), voting separately
as a class, of more than 50% of the liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus accrued
and unpaid Distributions to the date upon which the voting percentages are
determined) of all outstanding Preferred Securities.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by two Authorized Officers of such Person. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Preferred Securities Guarantee shall include:
(a) a statement that each Authorized Officer signing the Officers'
Certificate has read the covenant or condition and the definition relating
thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each Authorized Officer in rendering the Officers'
Certificate;
(c) a statement that each such Authorized Officer has made such
examination or investigation as, in such Authorized Officer's opinion, is
necessary to enable such Authorized Officer to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such Authorized
Officer, such condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Preferred Guarantee Trustee" means The Bank of New York, until a Successor
Preferred Guarantee Trustee has been appointed and has accepted such appointment
pursuant to the terms of this Preferred Securities Guarantee and thereafter
means each such Successor Preferred Guarantee Trustee.
"Resignation Request" has the meaning set forth in Section 4.2(c).
"Responsible Officer" means, with respect to the Preferred Guarantee
Trustee, any officer within the Corporate Trust Office of the Preferred
Guarantee Trustee, including any vice president, any assistant vice president,
any assistant secretary, any assistant treasurer or other officer of the
Corporate Trust Office of the Preferred Guarantee Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer's knowledge of
and familiarity with the particular subject.
"Successor Preferred Guarantee Trustee" means a successor Preferred
Guarantee Trustee possessing the qualifications to act as Preferred Guarantee
Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
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ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application
(a) This Preferred Securities Guarantee is subject to the provisions of
the Trust Indenture Act that are required to be part of this Preferred
Securities Guarantee and shall, to the extent applicable, be governed by such
provisions.
(b) If and to the extent that any provision of this Preferred
Securities Guarantee limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
(c) The application of the Trust Indenture Act to this Preferred
Securities Guarantee shall not affect the nature of the Preferred Securities as
equity securities representing undivided beneficial interests in the assets of
the Issuer.
SECTION 2.2 Lists of Holders of Securities
(a) The Guarantor shall provide the Preferred Guarantee Trustee with a
list, in such form as the Preferred Guarantee Trustee may reasonably require, of
the names and addresses of the Holders ("List of Holders") as of such date, (i)
within one Business Day after January 1 and June 30 of each year, and (ii) at
any other time within 30 days of receipt by the Guarantor of a written request
for a List of Holders. Such list shall be as of a date no more than 14 days
before such List of Holders is given to the Preferred Guarantee Trustee. The
Guarantor shall not be obligated to provide such List of Holders if at any time
the List of Holders does not differ from the most recent List of Holders given
to the Preferred Guarantee Trustee by the Guarantor. The Preferred Guarantee
Trustee may destroy any List of Holders previously given to it on receipt of a
new List of Holders.
(b) The Preferred Guarantee Trustee shall comply with its obligations
under Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Preferred Guarantee Trustee
(a) The Preferred Guarantee Trustee shall transmit to Holders such reports
concerning the Preferred Guarantee Trustee and its actions under this Preferred
Securities Guarantee as may be required pursuant to the Trust Indenture Act at
the times and in the manner provided pursuant thereto. If required by Section
313(a) of the Trust Indenture Act, the Preferred Guarantee Trustee shall, within
sixty days after each August 15 following the date of this Preferred Securities
Guarantee deliver to Holders a brief report, dated as of such August 15, which
complies with the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Preferred Guarantee Trustee with each stock exchange,
if any, upon which the Securities are listed, with the Commission and with the
Company. The Company will promptly notify the Preferred Guarantee Trustee when
the Securities are listed on any stock exchange and of any delisting thereof.
SECTION 2.4 Periodic Reports to Preferred Guarantee Trustee
(a) The Guarantor shall provide to the Preferred Guarantee Trustee and to
the Securities and Exchange Commission such documents, reports and information
as required by Section 314 (if any) and the compliance
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certificate required by Section 314 of the Trust Indenture Act in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act.
(b) Delivery of such reports, information and documents to the Preferred
Guarantee Trustee is for informational purposes only and the Preferred Guarantee
Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Guarantor's compliance with any of its covenants
hereunder (as to which the Preferred Guarantee Trustee is entitled to rely
exclusively on Officers' Certificates).
SECTION 2.5 Evidence of Compliance with Conditions Precedent
The Guarantor shall provide to the Preferred Guarantee Trustee such
evidence of compliance with any conditions precedent, if any, provided for in
this Preferred Securities Guarantee that relate to any of the matters set forth
in Section 314(c) of the Trust Indenture Act. Any certificate or opinion
required to be given by an officer pursuant to Section 314(c)(1) may be given in
the form of an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver
(a) The Holders of a Majority in liquidation amount of Preferred
Securities may, by vote, on behalf of all of the Holders waive any past Event of
Default and its consequences. Upon such waiver, any such Event of Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured, for every purpose of this Preferred Securities Guarantee, but
no such waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent thereon.
(b) Notwithstanding the provisions of subsection (a) of this Section
2.6, the right of any Holder of Preferred Securities to receive payment of the
Guarantee Payments in accordance with this Preferred Securities Guarantee, or to
institute suit for the enforcement of any such payment, shall not be impaired
without the consent of each such Holder.
SECTION 2.7 Event of Default; Notice
(a) The Preferred Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders, notices of all Events of Default actually known to a
Responsible Officer of the Preferred Guarantee Trustee, unless such defaults
have been cured before the giving of such notice, provided, that, the Preferred
Guarantee Trustee shall be protected in withholding such notice if and so long
as a Responsible Officer in good faith determines that the withholding of such
notice is in the interests of the Holders of the Preferred Securities.
(b) The Preferred Guarantee Trustee shall not be deemed to have actual
knowledge of any Event of Default unless the Preferred Guarantee Trustee shall
have received written notice, or of which a Responsible Officer charged with the
administration of this Preferred Securities Guarantee shall have obtained actual
knowledge.
SECTION 2.8 Conflicting Interests
The Declaration shall be deemed to be specifically described in this
Preferred Securities Guarantee for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
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ARTICLE III
POWERS, DUTIES AND RIGHTS OF PREFERRED
GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Preferred Guarantee Trustee
(a) This Preferred Securities Guarantee shall be held by the Preferred
Guarantee Trustee in trust for the benefit of the Holders, and the Preferred
Guarantee Trustee shall not transfer its right, title and interest in this
Preferred Securities Guarantee to any Person except a Holder exercising his or
her rights pursuant to Section 5.4(d) or to a Successor Preferred Guarantee
Trustee on acceptance by such Successor Preferred Guarantee Trustee of its
appointment to act as Successor Preferred Guarantee Trustee. The right, title
and interest of the Preferred Guarantee Trustee shall automatically vest in any
Successor Preferred Guarantee Trustee, and such vesting and cessation of title
shall be effective whether or not conveyancing documents have been executed and
delivered pursuant to the appointment of such Successor Preferred Guarantee
Trustee.
(b) If an Event of Default actually known to a Responsible Officer has
occurred and is continuing, the Preferred Guarantee Trustee shall enforce this
Preferred Securities Guarantee for the benefit of the Holders.
(c) This Preferred Securities Guarantee and all moneys received by the
Preferred Guarantee Trustee hereunder in respect of the Guarantee Payments will
not be subject to any right, charge, security interest, lien or claim of any
kind in favor of, or for the benefit of, the Preferred Guarantee Trustee or its
agents or their creditors.
(d) The Preferred Guarantee Trustee, before the occurrence of any Event
of Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Preferred Securities Guarantee, and no implied covenants shall be read into
this Preferred Securities Guarantee against the Preferred Guarantee Trustee. In
case an Event of Default has occurred (that has not been cured or waived
pursuant to Section 2.6) and is actually known to a Responsible Officer of the
Preferred Guarantee Trustee, the Preferred Guarantee Trustee shall exercise such
of the rights and powers vested in it by this Preferred Securities Guarantee,
and use the same degree of care and skill in its exercise thereof, as a prudent
person would exercise or use under the circumstances in the conduct of his or
her own affairs.
(e) No provision of this Preferred Securities Guarantee shall be
construed to relieve the Preferred Guarantee Trustee from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Preferred
Guarantee Trustee shall be determined solely by the express provisions
of this Preferred Securities Guarantee, and the Preferred Guarantee
Trustee shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this Preferred
Securities Guarantee, and no implied covenants or obligations shall be
read into this Preferred Securities Guarantee against the Preferred
Guarantee Trustee; and
(B) in the absence of bad faith on the part of the
Preferred Guarantee Trustee, the Preferred Guarantee Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Preferred Guarantee Trustee and conforming to
the requirements of this Preferred Securities Guarantee; but in the
case of any such certificates or opinions that by any provision hereof
are specifically required to be furnished to the Preferred Guarantee
Trustee, the Preferred Guarantee Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Preferred Securities Guarantee;
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(ii) the Preferred Guarantee Trustee shall not be liable for
any error of judgment made in good faith by a Responsible Officer, unless
it shall be proved that the Preferred Guarantee Trustee was negligent in
ascertaining the pertinent facts upon which such judgment was made;
(iii) the Preferred Guarantee Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a Majority in
liquidation amount of the Preferred Securities relating to the time, method
and place of conducting any proceeding for any remedy available to the
Preferred Guarantee Trustee, or exercising any trust or power conferred
upon the Preferred Guarantee Trustee under this Preferred Securities
Guarantee; and
(iv) no provision of this Preferred Securities Guarantee shall
require the Preferred Guarantee Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers, if the
Preferred Guarantee Trustee shall have reasonable grounds for believing
that the repayment of such funds or liability is not reasonably assured to
it under the terms of this Preferred Securities Guarantee or indemnity,
reasonably satisfactory to the Preferred Guarantee Trustee, against such
risk or liability is not reasonably assured to it.
SECTION 3.2 Certain Rights of Preferred Guarantee Trustee
Subject to the provisions of Section 3.1:
(a) the Preferred Guarantee Trustee may conclusively rely and shall be
protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order, bond,
note, debenture or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Guarantor mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless other
evidence in respect thereof be herein specifically prescribed);
(c) the Preferred Guarantee Trustee may consult with counsel of its
selection and any advice or opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in accordance with such advice or opinion of
counsel;
(d) the Preferred Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Preferred Securities
Guarantee at the request, order or direction of any of the Holders, pursuant to
the provisions of this Preferred Securities Guarantee, unless such Holders shall
have offered to the Preferred Guarantee Trustee security or indemnity
satisfactory to the Preferred Guarantee Trustee against the costs, expenses and
liabilities which may be incurred therein or thereby;
(e) the Preferred Guarantee 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 Preferred
Securities Guarantee; nothing contained herein shall, however, relieve the
Preferred Guarantee Trustee of the obligation, upon the occurrence of an Event
of Default which has not been cured or waived to exercise such of the rights and
powers vested in it by this Preferred Securities Guarantee, 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 Preferred Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents, custodians, nominees or attorneys, and the Preferred Guarantee
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;
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(g) the Preferred Guarantee Trustee shall not be liable for any action
taken, suffered, or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or powers
conferred upon it by this Preferred Securities Guarantee;
(h) the Preferred Guarantee Trustee shall not be deemed to have notice
of any Event of Default unless a Responsible Officer of the Preferred Guarantee
Trustee has actual knowledge thereof or unless written notice of any event which
is in fact such a default is received by the Preferred Guarantee Trustee at the
principal office of the Preferred Guarantee Trustee, and such notice references
this Preferred Securities Guarantee; and
(i) the rights, privileges, protections, immunities and benefits given
to the Preferred Guarantee Trustee, including, without limitation, its right to
be indemnified, are extended to, and shall be enforceable by, the Preferred
Guarantee Trustee in each of its capacities hereunder, and to each agent,
custodian and other Person employed to act hereunder.
SECTION 3.3. Not Responsible for Recitals or Issuance of Preferred
Securities Guarantee
The recitals contained in this Preferred Securities Guarantee shall be
taken as the statements of the Guarantor, and the Preferred Guarantee Trustee
does not assume any responsibility for their correctness. The Preferred
Guarantee Trustee makes no representation as to the validity or sufficiency of
this Preferred Securities Guarantee.
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 Preferred Guarantee Trustee; Eligibility
(a) There shall at all times be a Preferred Guarantee Trustee which
shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any state or territory thereof or
of the District of Columbia, or a corporation or Person permitted by the
Securities and Exchange Commission to act as an institutional trustee under
the Trust Indenture Act, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least 50 million
U.S. dollars ($50,000,000), and subject to supervision or examination by
federal, state, territorial or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of the supervising or examining authority
referred to above, then, for the purposes of this Section 4.1(a)(ii), the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published.
(b) If at any time the Preferred Guarantee Trustee shall cease to be
eligible to so act under Section 4.1(a), the Preferred Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.2(c).
(c) If the Preferred Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Preferred Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
SECTION 4.2 Appointment, Removal and Resignation of Preferred Guarantee
Trustee
(a) Subject to Section 4.2(b), the Preferred Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor.
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(b) The Preferred Guarantee Trustee shall not be removed in accordance
with Section 4.2(a) until a Successor Preferred Guarantee Trustee has been
appointed and has accepted such appointment by written instrument executed by
such Successor Preferred Guarantee Trustee and delivered to the Guarantor and to
the Preferred Guarantee Trustee being removed.
(c) The Preferred Guarantee Trustee appointed to office shall hold
office until a Successor Preferred Guarantee Trustee shall have been appointed
or until its removal or resignation. The Preferred Guarantee Trustee may resign
from office (without need for prior or subsequent accounting) by an instrument
(a "Resignation Request") in writing executed by the Preferred Guarantee Trustee
and delivered to the Guarantor which resignation shall take effect upon such
delivery or upon such later date as is specified therein; provided, however,
that no such resignation of the Preferred Guarantee Trustee shall be effective
until a Successor Preferred Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such Successor
Preferred Guarantee Trustee and delivered to the Guarantor and the resigning
Preferred Guarantee Trustee.
(d) If no Successor Preferred Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.2 within 60
days after delivery to the Guarantor of a Resignation Request, the resigning
Preferred Guarantee Trustee may petition at the expense of the Company any court
of competent jurisdiction for appointment of a Successor Preferred Guarantee
Trustee. Such court may thereupon, after prescribing such notice, if any, as it
may deem proper, appoint a Successor Preferred Guarantee Trustee.
(e) No Preferred Guarantee Trustee shall be liable for the acts or
omissions to act of any Successor Preferred Guarantee Trustee.
(f) Upon termination of this Preferred Securities Guarantee or removal
or resignation of the Preferred Guarantee Trustee pursuant to this Section 4.2,
the Guarantor shall pay to the Preferred Guarantee Trustee all amounts accrued
to the date of such termination, removal or resignation.
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in full to the
Holders the Guarantee Payments (without duplication of amounts theretofore paid
by the Issuer), as and when due, regardless of any defense, right of set-off or
counterclaim that the Issuer may have or assert. The Guarantor's obligation to
make a Guarantee Payment may be satisfied by direct payment of the required
amounts by the Guarantor to the Holders or by causing the Issuer to pay such
amounts to the Holders.
SECTION 5.2 Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this Preferred
Securities Guarantee and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first against
the Issuer or any other Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
SECTION 5.3 Obligations Not Affected
The obligations, covenants, agreements and duties of the Guarantor under
this Preferred Securities Guarantee shall in no way be affected or impaired by
reason of the happening from time to time of any of the following:
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(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be performed
or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Preferred Securities or the extension
of time for the performance of any other obligation under, arising out of, or in
connection with, the Preferred Securities (other than an extension of time for
payment of Distributions, Redemption Price, Liquidation Distribution or other
sum payable that results from the extension of any interest payment period on
the Debentures or any extension of the maturity date of the Debentures permitted
by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Preferred Securities, or
any action on the part of the Issuer granting indulgence or extension of any
kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the benefit
of creditors, reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Issuer or any of the assets of
the Issuer;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute
a legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain
consent of, the Guarantor with respect to the happening of any of the foregoing.
SECTION 5.4 Enforcement of Guarantee; Rights of Holders
The Guarantor and the Preferred Guarantee Trustee expressly acknowledge
that:
(a) this Preferred Securities Guarantee will be deposited with the
Preferred Guarantee Trustee to be held for the benefit of the Holders;
(b) the Preferred Guarantee Trustee has the right to enforce this
Preferred Securities Guarantee on behalf of the Holders;
(c) the Holders of a Majority in liquidation amount of the Securities
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Preferred Guarantee Trustee in respect of this
Preferred Securities Guarantee or exercising any trust or power conferred upon
the Preferred Guarantee Trustee under this Preferred Securities Guarantee; and
(d) any Holder may institute a legal proceeding directly against the
Guarantor to enforce the Preferred Guarantee Trustee's rights and the
obligations of the Guarantor under this Preferred Securities Guarantee, without
first instituting a legal proceeding against the Issuer, the Preferred Guarantee
Trustee or any other person or entity, and the Guarantor waives any right or
remedy to require that any action be brought first against the Issuer or any
other person or entity before proceeding directly against the Guarantor.
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SECTION 5.5 Guarantee of Payment
This Preferred Securities Guarantee creates a guarantee of payment and not
of collection. This Preferred Securities Guarantee will not be discharged except
by payment of the Guarantee Payments in full (without duplication of amounts
therefor paid by the Issuer).
SECTION 5.6 Subrogation
The Guarantor shall be subrogated to all (if any) rights of the Holders
against the Issuer in respect of any amounts paid to such Holders by the
Guarantor under this Preferred Securities Guarantee; provided, however, that the
Guarantor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any right that it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as
a result of payment under this Preferred Securities Guarantee, if, at the time
of any such payment, any amounts are due and unpaid under this Preferred
Securities Guarantee. If any amount shall be paid to the Guarantor in violation
of the preceding sentence, the Guarantor agrees to hold such amount in trust for
the Holders and to pay over such amount to the Holders.
SECTION 5.7 Independent Obligations
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Issuer with respect to the Preferred Securities, and
that the Guarantor shall be liable as principal and as debtor hereunder to make
Guarantee Payments pursuant to the terms of this Preferred Securities Guarantee
notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions
So long as any Preferred Securities remain outstanding, if (a) there shall
have occurred an Event of Default, (b) there shall have occurred an Event of
Default (as defined by the Indenture) or (c) the Guarantor has exercised its
option to defer interest payments on the Debentures by extending the interest
payment period, as provided in Article IV of the [ ] Supplemental Indenture to
the Indenture, and such period or extension thereof shall be continuing, then
(i) the Guarantor shall not declare or pay any dividend on, make any
distribution with respect to, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of its capital stock (other than (A)
purchases or acquisitions of shares of Guarantor's common stock in connection
with the satisfaction by the Guarantor of its obligations under any employee
benefit plans or any other contractual obligation of the Guarantor (other than a
contractual obligation ranking pari passu with or junior to the Debentures), (B)
as a result of a reclassification of the Guarantor's capital stock or the
exchange or conversion of one class or series of the Guarantor's capital stock
for another class or series of the Guarantor's capital stock or (C) the purchase
of fractional interests in shares of the Guarantor's capital stock pursuant to
the conversion or exchange provisions of such capital stock or the security
being converted or exchanged), (ii) the Guarantor shall not make any payment of
interest, principal or premium, if any, on or repay, repurchase or redeem any
debt securities issued by the Guarantor that rank pari passu with or junior to
the Debentures and (iii) the Guarantor shall not make any guarantee payments
with respect to the foregoing (other than pursuant to this Preferred Securities
Guarantee).
In addition, so long as any Preferred Securities remain outstanding, the
Guarantor (i) will remain the sole direct or indirect owner of all of the
outstanding Common Securities; provided that any permitted successor of the
Guarantor under the Indenture may succeed to the Guarantor's ownership of the
Common Securities and (ii) will not take any action which would cause the Issuer
to cease to be treated as a grantor trust for United States federal income tax
purposes except in connection with a distribution of Debentures as provided in
the Declaration.
11
<PAGE> 15
SECTION 6.2 Ranking
This Preferred Securities Guarantee will constitute an unsecured obligation
of the Guarantor and will rank (i) subordinate and junior in right of payment to
all other liabilities of the Guarantor, except those made pari passu or
subordinate by their terms, (ii) pari passu with the most senior preferred or
preference stock now or hereafter issued by the Guarantor and with any guarantee
now or hereafter entered into by the Guarantor in respect of any preferred or
preference stock of any Affiliate of the Guarantor, and (iii) senior to the
Guarantor's common stock.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination
This Preferred Securities Guarantee shall terminate and be of no further
force and effect upon (i) full payment of the Redemption Price of all Preferred
Securities, (ii) upon the distribution of the Debentures to all of the Holders
or (iii) upon full payment of the amounts payable in accordance with the
Declaration upon liquidation of the Issuer. Notwithstanding the foregoing, this
Preferred Securities Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder must restore payment
of any sums paid under the Preferred Securities or under this Preferred
Securities Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Guarantor or any Covered Person for any loss,
damage or claim incurred by reason of any act or omission performed or omitted
by such Indemnified Person in good faith in accordance with this Preferred
Securities Guarantee and in a manner that such Indemnified Person reasonably
believed to be within the scope of the authority conferred on such Indemnified
Person by this Preferred Securities Guarantee or by law, except that an
Indemnified Person shall be liable for any such loss, damage or claim incurred
by reason of such Indemnified Person's negligence or willful misconduct with
respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Guarantor and upon such information, opinions,
reports or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Guarantor, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders might properly be paid.
SECTION 8.2 Indemnification
To the fullest extent permitted by applicable law, the Guarantor agrees to
indemnify each Indemnified Person for, and to hold each Indemnified Person
harmless against, any loss, liability or expense incurred by such Indemnified
Person by reason of any act or omission performed or omitted by such Indemnified
Person without 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
12
<PAGE> 16
itself against, or investigating, any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The obligation
to indemnify as set forth in this Section 8.2 shall survive the resignation or
removal of the Preferred Guarantee Trustee and the termination of this Preferred
Securities Guarantee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns
All guarantees and agreements contained in this Preferred Securities
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Preferred Securities then outstanding. Except in connection with any
merger or consolidation of the Guarantor with or into another entity or any
sale, transfer or lease of the Guarantor's assets to another entity, each as
permitted by the Indenture, the Guarantor may not assign its rights or delegate
its obligations under this Preferred Securities Guarantee without the prior
approval of the Holders of at least a Majority in liquidation amount of the
Preferred Securities then outstanding.
SECTION 9.2 Amendments
Except with respect to any changes that do not adversely affect the rights
of Holders (in which case no consent of Holders will be required), this
Preferred Securities Guarantee may only be amended with the prior approval of
the Holders of at least a Majority in liquidation amount of all the outstanding
Preferred Securities. The provisions of Section 12.2 of the Declaration with
respect to meetings of Holders apply to the giving of such approval.
SECTION 9.3 Notices
All notices provided for in this Preferred Securities Guarantee shall be in
writing, duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by first class mail, as follows:
(a) If given to the Preferred Guarantee Trustee, at the Preferred
Guarantee Trustee's mailing address set forth below (or such other address as
the Preferred Guarantee Trustee may give notice of to the Holders):
The Bank of New York
101 Barclay Street
Floor 21W
New York, New York 10286
Attention: Corporate Trust Trustee Administration
(b) If given to the Guarantor, at the Guarantor's mailing address set
forth below (or such other address as the Guarantor may give notice of to the
Holders):
Fleet Financial Group, Inc.
One Federal Street
Boston, Massachusetts 02110
Attention: General Counsel
(c) If given to any Holder, at the address set forth on the books and
records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery
13
<PAGE> 17
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
SECTION 9.4 Benefit
This Preferred Securities Guarantee is solely for the benefit of the
Holders and, subject to Section 3.1(a), is not separately transferable from the
Preferred Securities.
SECTION 9.5 Governing Law
THIS PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK AND ALL RIGHTS
AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAWS.
SECTION 9.6 Genders
The masculine, feminine and neuter genders used herein shall include the
masculine, feminine and neuter genders.
SECTION 9.7 Counterparts
This Preferred Securities Guarantee may be executed in counterparts, each
of which shall be an original, but such counterparts shall together constitute
one and the same instrument.
14
<PAGE> 18
THIS PREFERRED SECURITIES GUARANTEE is executed as of the day and year
first above written.
FLEET FINANCIAL GROUP, INC., as Guarantor
By:______________________________________
Douglas L. Jacobs
Treasurer
THE BANK OF NEW YORK,
as Preferred Guarantee Trustee
By:______________________________________
Annette L. Kos
Assistant Vice President
15
<PAGE> 1
Exhibit 5(a)
December 9, 1999
Fleet Boston Corporation
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 Boston Corporation (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) warrants to
purchase or sell securities of an entity unaffiliated with the Company, a basket
of such securities, an index or indices of such securities, currencies or
commodities (the "Universal Warrants"); (v) 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
(vi) warrants to purchase Debt Securities (the "Debt Warrants", together with
Common Stock Warrants, Preferred Stock Warrants and the Universal 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 $2,351,868,750 (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:
<PAGE> 2
Fleet Boston Corporation
December 9, 1999
(1) The Restated Articles of Incorporation of the Company; as amended
to date
(2) The By-Laws of the Company, as amended to date;
(3) The Senior Indenture dated as of December 6, 1999 between the
Company and The Bank of New York, as Senior Trustee, under which Senior Debt
Securities will be issued;
(4) The Subordinated Indenture dated as of December 6, 1999 between
the Company and The Bank of New York, 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> 3
Fleet Boston Corporation
December 9, 1999
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 similar 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 Bank (RI), National Association, a subsidiary of the Company, and
beneficially owns 9,856 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. 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.
Very truly yours,
/s/ Edwards & Angell, LLP
-----------------------------------
Edwards & Angell, LLP
-3-
<PAGE> 1
Exhibit 5(b)
December 9, 1999
Fleet Boston Corporation
One Federal Street
Boston, MA 02110
Fleet Capital Trust VI,
Fleet Capital Trust VII,
Fleet Capital Trust VIII,
Fleet Capital Trust IX, and
Fleet Capital Trust X
c/o Fleet Boston Corporation
One Federal Street
Boston, Massachusetts 02110
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-3 filed by
Fleet Boston Corporation, a Rhode Island corporation ("Fleet"), 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 Bank of New York, 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:
(1) The Registration Statement, including the prospectus (the
"Prospectus") and prospectus supplement (the "Prospectus Supplement") contained
therein and all Exhibits filed thereto;
<PAGE> 2
Fleet Boston Corporation
December 9, 1999
(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 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-
<PAGE> 3
Fleet Boston Corporation
December 9, 1999
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 Bank (RI), National Association, a subsidiary of Fleet, and
beneficially owns 9,856 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. 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.
Very truly yours,
/s/ Edwards & Angell, LLP
Edwards & Angell, LLP
-3-
<PAGE> 1
EXHIBIT 5(C)
[SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP]
December 9, 1999
Fleet Boston Corporation
Fleet Capital Trust VI
Fleet Capital Trust VII
Fleet Capital Trust VIII
Fleet Capital Trust IX
Fleet Capital Trust X
c/o Fleet Boston Corporation
One Federal Street
Boston, Massachusetts 02110
Re: Fleet Financial Boston Corporation
Fleet Capital Trust VI, VII, VIII,
IX and X; Registration Statement on
Form S-3
-----------------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel to (1) 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 Boston Corporation, a corporation
organized under the laws of the State of Rhode Island (the "Company"), in
connection with the prepara-
<PAGE> 2
Fleet Capital Trust VI, VII, VIII, IX and X
Fleet Boston Corporation
December 9, 1999
Page 2
tion of a Registration Statement on Form S-3 (Registration No. 333-86829), filed
by the Company and the Fleet Capital Trusts with the Securities and Exchange
Commission (the "Commission") on September 10, 1999 under the Securities Act of
1933, as amended (the "Act"), and Amendment No. 1 thereto, filed with the
Commission on December 9, 1999 (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.
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, The Bank of New York
(Delaware), as Delaware trustee (the "Delaware Trustee"), The Bank of New York,
as institutional trustee (the "Institutional Trustee"), and, in the case of
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, in each case 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
<PAGE> 3
Fleet Capital Trust VI, VII, VIII, IX and X
Fleet Boston Corporation
December 9, 1999
Page 3
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 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 (b) 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
First Amendment to each Certificate of Trust filed with the Secretary of State
of the State of Delaware on October 21, 1999; (iii) the form of the
Declaration of each of the Fleet Capital Trusts; (iv) the form of the Trust
Preferred Securities of each of the Fleet Capital Trusts and (v) 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
<PAGE> 4
Fleet Capital Trust VI, VII, VIII, IX and X
Fleet Boston Corporation
December 9, 1999
Page 4
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 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
<PAGE> 5
Fleet Capital Trust VI, VII, VIII, IX and X
Fleet Boston Corporation
December 9, 1999
Page 5
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 giving this consent,
we do not thereby admit that we are within the category of persons whose consent
is required under
<PAGE> 6
Fleet Capital Trust VI, VII, VIII, IX and X
Fleet Boston Corporation
December 9, 1999
Page 6
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
<PAGE> 1
Exhibit 8
December 9, 1999
Fleet Boston Corporation
One Federal Street
Boston, Massachusetts 02110
Fleet Capital Trust VI,
Fleet Capital Trust VII,
Fleet Capital Trust VIII,
Fleet Capital Trust IX, and
Fleet Capital Trust X
c/o Fleet Boston Corporation
One Federal Street
Boston, Massachusetts 02110
Re: Registration Statement on Form S-3
Registration No. 333-86829
----------------------------------
Ladies and Gentlemen:
We have acted as counsel to Fleet Boston Corporation, a Rhode Island
corporation (the "Company"), and each of 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
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
<PAGE> 2
Fleet Boston Corporation
December 9, 1999
Page 2
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
<PAGE> 1
EXHIBIT 23(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated November 22, 1999 relating to the
supplemental financial statements of Fleet Boston Corporation, which appears in
the Current Report on Form 8-K of Fleet Boston Corporation filed November 22,
1999. We also consent to the reference to us under heading "Experts" in such
Registration Statement.
/s/ PricewaterhouseCoopers
Boston, Massachusetts
December 8, 1999
