EXHIBIT 4(e)
SECOND SUPPLEMENTAL INDENTURE
between
FLEET FINANCIAL GROUP, INC.
and
THE FIRST NATIONAL BANK OF CHICAGO
Dated as of ________ __, 1997
TABLE OF CONTENTS*
Page
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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 Special Event Redemption 5
SECTION 3.2 Optional Redemption by Company 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 6
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 SECOND SUPPLEMENTAL INDENTURE.
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
SECOND SUPPLEMENTAL INDENTURE, dated as of ____________, 1997 (the "Second
Supplemental Indenture"), between Fleet Financial Group, Inc., a Rhode Island
corporation (the "Company"), and The First National Bank of Chicago, as trustee
(the "Trustee") under the Indenture dated as of December 11, 1996 between the
Company and the Trustee (the "Indenture").
WHEREAS, the Company executed and delivered the Indenture to the Trustee to
provide for the future issuance of the Company's unsecured junior subordinated
debt securities to be issued from time to time in one or more series as might be
determined by the Company under the Indenture, in an unlimited aggregate
principal amount which may be authenticated and delivered as provided in the
Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company desires to
provide for the establishment of a new series of such securities to be known as
its ___% Junior Subordinated Deferrable Interest Debentures due 2027 (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 Second Supplemental Indenture;
WHEREAS, the Company and Fleet Capital Trust I, a Delaware statutory business
trust (the "Trust"), has made an offer to exchange (the "Offer") its ____%
Trust Originated Preferred Securities (the "Preferred Securities"), representing
preferred undivided beneficial interests in the assets of the Trust, for any and
all of the Company's depositary shares (the "Depositary Shares"), each
representing a 1/10 interest in a share of Series V 7.25% Perpetual Preferred
Stock, $1.00 par value, of the Company (the "Preferred Stock") not owned by the
Company;
WHEREAS, concurrently with the issuance of the Preferred Securities in
exchange for Depositary Shares validly tendered in the Offer, (a) the Trust will
issue and sell to the Company _____% Trust Originated Common Securities (the
"Common Securities") in an aggregate stated liquidation amount equal to at least
3% of the total capital of the Trust and (b) the Company will deposit in the
Trust as trust assets the Debentures having an aggregate principal amount equal
to the aggregate stated liquidation amount of the Preferred Securities and the
Common Securities so issued; and
WHEREAS, the Company has requested that the Trustee execute and deliver this
Second Supplemental Indenture and all requirements necessary to make this Second
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 Second 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
Second Supplemental Indenture;
(b) a term defined anywhere in this Second 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
Second Supplemental Indenture;
(e) headings are for convenience of reference only and do not affect
interpretation;
(f) the following terms have the meanings given to them in the
Declaration: (i) Dealer Manager 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 I, a Delaware statutory business trust, dated as of _________,
1997.
"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).
"Redemption 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 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 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 _______, 2027, unless shortened to a date not earlier than
_____, 2002, or extended to a date not later than _____, 2046, as more fully
described in Section 2.2.
"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 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
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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 2027", limited in aggregate
principal amount to the aggregate stated liquidation amount of the Preferred
Securities and Common Securities to be issued by the Trust, which amount shall
be as set forth in any written order of the Company for the authentication and
delivery of Debentures pursuant to Section 2.04 of the Indenture.
SECTION 2.2. Maturity.
(a) The Debentures shall mature on ______, 2027. The Company has the
right at any time to shorten the maturity of the Debentures to a date not
earlier than ______, 2002. The exercise of such right is subject to the prior
approval of the Federal Reserve Board if such approval is then required under
applicable law, rules, guidelines or policies. The Company also has the right
to extend the maturity of the Debentures to a date no later than ______, 2046,
so long as at the time such election is made and at the time such extension
commences (i) the Company is not in bankruptcy, otherwise insolvent or in
liquidation, (ii) the Company is not in default in the payment of any interest
or principal on the Debentures, (iii) the Trust is not in arrears on payments of
distributions on the Preferred Securities and no deferred distributions on the
Preferred Securities are accumulated and (iv) the Debentures or, if the
Preferred Securities are so rated, the Preferred Securities are rated at least
BBB- by Standard & Poor's Ratings Services, at least Baa3 by ▇▇▇▇▇'▇ Investors
Service, Inc. or at least the equivalent by any other nationally recognized
statistical rating organization
(b) In the event that the Company elects to shorten or extend the maturity
date of the Debentures, it shall give notice to the Trustee, and the Trustee
shall give notice of such shortening or extension to the holders of the
Debentures no more than 90 and no less than 30 days prior to the effectiveness
thereof.
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
Second
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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 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 cancelled 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 cancelled, will be executed by the Company and
delivered to the Trustee for authentication and delivery in accordance with
the Indenture and this Second Supplemental Indenture. On issue of such
Debentures, Debentures with an equivalent aggregate principal amount that
were presented by the Institutional Trustee to the Trustee will be deemed
to have been cancelled.
(b) A Global Debenture may be transferred, in whole but not in part, only
to another nominee of the Depository Institution, or to a successor Depository
Institution selected or approved by the Company or to a nominee of such
successor Depository Institution.
(c) If (i) at any time the Depository Institution notifies the Company
that it is unwilling or unable to continue as Depository Institution or if at
any time the Depository Institution for such series shall no longer be
registered or in good standing under the Securities Exchange Act of 1934, as
amended, or other applicable statute or regulation, and a successor Depository
Institution for such series is not appointed by the Company within 90 days after
the Company receives such notice or becomes aware of such condition, as the case
may be, (ii) the Company at any time determines that the Debentures shall no
longer be represented by a Global Debenture or (iii) there shall have occurred
an Event of Default, then the Company will execute, and, subject to Article II
of the Indenture, the Trustee, upon written notice from the Company, will
authenticate and deliver the Debentures in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount equal
to the principal amount of the Global Debenture in exchange for such Global
Debenture. In such event the Company will execute, and subject to Section 2.07
of the Indenture, the Trustee, upon receipt of an Officers' Certificate
evidencing such determination by the Company, will authenticate and deliver the
Debentures in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Debenture in exchange for such Global Debenture. Upon the
exchange of the Global Debenture for such Debentures in definitive registered
form without coupons, in authorized denominations, the Global Debenture shall be
cancelled by the Trustee. Such Debentures in definitive registered form issued
in exchange for the Global Debenture shall be registered in such names and in
such authorized denominations as the Depository Institution, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the
Depository Institution for delivery to the Persons in whose names such
Securities are so registered.
SECTION 2.5. Interest.
(a) Each Debenture will bear interest at the rate of ___% 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 March 31, June 30, September 30 and December 31 of each
year (each, an "Interest Payment Date"), commencing on _________ __, 1997, to
the Person in whose name such Debenture or any predecessor Debenture is
registered, at the close of business on the March 15, June 15, September 15 and
December 15 prior to the applicable Interest Payment Date, except as otherwise
provided herein. Payments of interest may be deferred by the Company pursuant
to the provisions of Article IV hereof. The Debentures will also accrue
interest at the rate of ______% per annum of the principal amount thereof from
______ through ______, 1997, the expiration date of the Offer, payable on
______, 1997 to holders of the Debentures on the record
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date for such distribution ("Pre-Issuance Interest"). No deferral of interest
will be permitted with respect to interest accruing from ______ through ______,
1997.
(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. In the event that any date on which
interest is payable on the Debentures is not a Business Day, then payment of
interest payable on such date will be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect of any such
delay), except that, if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such date.
(c) If, at any time while the Institutional Trustee is the holder of any
Junior Subordinated Debentures, the Trust or the Institutional Trustee is
required to pay any taxes, duties, assessments or governmental charges of
whatever nature (other than withholding taxes) imposed by the United States, or
any other taxing authority, then, in any such case, the Company will pay as
additional interest ("Additional Interest") on the Debentures held by the
Institutional Trustee, such additional amounts as shall be required so that the
net amounts received and retained by the Trust and the Institutional Trustee
after paying such taxes, duties, assessments or other governmental charges will
be equal to the amounts the Trust would have received had no such taxes, duties,
assessments or other governmental charges been imposed.
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1. Special Event Redemption.
If a Special Event has occurred and is continuing prior to _______, 2002,
the Company shall have the right, upon not less than 30 days and no more than
60 days notice to the Holders, to redeem the Debentures, in whole (but not in
part), for cash within 90 days following the occurrence of such Special Event
(the "90 Day Period") at a redemption price equal to 100% of the principal
amount to be redeemed plus any accrued and unpaid interest thereon to the date
of such redemption (the "Redemption Price"). The Redemption Price shall be paid
prior to 12:00 noon, New York time, on the date of such redemption or such
earlier time as the Company determines; provided that the Company shall deposit
with the Trustee an amount sufficient to pay the Redemption Price by 10:00
a.m., New York time, on the date such Redemption Price is to be paid.
SECTION 3.2. Optional Redemption by Company.
Subject to the provisions of Article XIV of the Indenture, except as
otherwise may be specified in this Second Supplemental Indenture, the Company
shall have the right, upon not less than 30 days and no more than 60 days notice
to the Holder, to redeem the Debentures, in whole or in part, from time to time,
on or after _________, 2002, for cash at the Redemption Price. If the
Debentures are only partially redeemed pursuant to this Section 3.2, the
Debentures will be redeemed pro rata or by lot or by any other method utilized
by the Trustee; provided, that if at the time of redemption the Debentures are
registered as a Global Debenture, the Depository Institution shall determine, in
accordance with its procedures, the principal amount of such Debentures held by
each Holder to be redeemed. The Redemption Price shall be paid prior to 12:00
noon, New York time, on the date of such redemption or at such earlier time as
the Company determines; provided that the Company shall deposit with the Trustee
an amount sufficient to pay the Redemption Price by 10:00 a.m., New York time,
on the date such Redemption 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.
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ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period.
With the exception of Pre-Issuance Interest, 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 first
record date after the end of the Extended Interest Payment Period. Before the
termination of any Extended Interest Payment Period, the Company may further
extend such period, provided that such period together with all such further
extensions thereof shall not exceed 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 or payment date of such
interest payment to the New York Stock Exchange or other applicable self-
regulatory organization or to Holders of the Debentures.
(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, 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
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the Company (other than a contractual obligation ranking pari passu with or
junior to the Debentures), (2) as a result of a reclassification of the
Company's capital stock or the exchange or conversion of one class or series of
the Company's capital stock for another class or series of the Company's capital
stock or (3) the purchase of fractional interests in shares of the Company's
capital stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged), (b) the Company shall not
make any payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities issued by the Company that rank pari
passu with or junior to the Debentures and (c) the Company shall not make any
guarantee payments with respect to the foregoing (other than pursuant to the
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 fees to the dealer manager payable pursuant to the
Dealer Manager 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 payments of principal, interest and premium, if any, with respect to the
Trust Securities) and 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 fees to the dealer managers 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 primarily liable for any indemnification obligations arising with
respect to the Declaration; and
(d) pay any and all taxes (other than United States withholding taxes
attributable to the Trust or its assets) and all liabilities, costs and expenses
with respect to such taxes of the Trust.
The Company's obligations under this Section 5.1 shall be for the benefit of,
and shall be enforceable by, any person to whom such debts, obligations, costs,
expenses and taxes are owed (a "Creditor") whether or not such Creditor has
received notice hereof. Any such Creditor may enforce the Company's obligations
under this Section 5.1 directly against the Company and the Company irrevocably
waives any right of remedy to require that any such Creditor take any action
against the Trust or any other Person before proceeding against the Company.
The Company agrees to execute such additional agreements as may be necessary or
desirable in order to give full effect to the provisions of this Section 5.1.
SECTION 5.2. Payment Upon Resignation or Removal.
Upon termination of this Second Supplemental Indenture or the Indenture or
the removal or resignation of the Trustee, unless otherwise stated, the Company
shall pay to the Trustee all amounts accrued to the date of such termination,
removal or resignation. Upon termination of the Declaration or the removal or
resignation of the Delaware Trustee or the Institutional Trustee, as the case
may be, pursuant to Section 5.6 of the Declaration, the Company shall pay to the
Delaware Trustee or the Institutional Trustee, as the case may be, all amounts
accrued to the date of such termination, removal or resignation.
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ARTICLE VI
COVENANT TO LIST ON EXCHANGE
SECTION 6.1. Listing on an Exchange.
If the Debentures are distributed to the holders of the Preferred 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 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) 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. ______________________________
FLEET FINANCIAL GROUP, INC.
___% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE
DUE 2027
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 ______________ or registered
assigns, the principal sum of _____________ Dollars ($___________) on _________,
2027 (such date, as it may be shortened or extended as provided below, the
"Stated Maturity"), and to pay interest on said principal sum from ____________,
1997, or from the most recent interest payment date (each such date, an
"Interest Payment Date") to which interest has been paid or duly provided for,
quarterly (subject to deferral as set forth herein) in arrears on March 31, June
30, September 30 and December 31 of each year commencing _________, 1997, at the
rate of ___% per annum until the principal hereof shall have become due and
payable, and on any overdue principal and premium, if any, and (without
duplication and to the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at the same rate per
annum compounded 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. In the event that any date on which interest is payable on this
Debenture is not a Business Day, then
8
payment of interest payable on such date will be made on the next succeeding day
that is a Business Day (and without any interest or other payment in respect of
any such delay), except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such date. The
interest installment so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Indenture, be paid to the
person in whose name this Debenture (or one or more Predecessor Securities, as
defined in said Indenture) is registered at the close of business on the March
15, June 15, September 15 and December 15 prior to the applicable Interest
Payment Date. Payments of interest may be deferred by the Company pursuant to
the provisions of Article IV hereof. The Debentures will also accrue interest
at the rate of ______% per annum of the principal amount thereof from _____
through ______, 1997, payable on _______, 1997 to holders of the Debentures on
the record date for such distribution. No deferral of interest will be
permitted with respect to interest accruing from _______ through _______, 1997.
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 Company has the right at any time to shorten the maturity of the
Debentures to a date not earlier than ______, 2002. The exercise of such right
is subject to the prior approval of the Federal Reserve Board if such approval
is then required under applicable law, rules, guidelines or policies. The
Company also has the right to extend the maturity of the Debentures to a date no
later than ______, 2046, so long as at the time such election is made and at the
time such extension commences (i) the Company is not in bankruptcy, otherwise
insolvent or in liquidation, (ii) the Company is not in default in the payment
of any interest or principal on the Debentures, (iii) the Trust is not in
arrears on payments of distributions on the Preferred Securities and no deferred
distributions on the Preferred Securities are accumulated and (iv) the
Debentures or, if the Preferred Securities are so rated, the Preferred
Securities are rated at least BBB- by Standard & Poor's Ratings Services, at
least Baa3 by ▇▇▇▇▇'▇ Investors Service, Inc. or at least the equivalent by any
other nationally recognized statistical rating organization.
The indebtedness evidenced by this Debenture is, to the extent provided in
the Indenture, subordinate and junior in right of payment to the prior payment
in full of all Senior Indebtedness and Other Financial Obligations, and this
Debenture is issued subject to the provisions of the Indenture with respect
thereto. Each Holder of this Debenture, by accepting the same, (a) agrees to and
shall be bound by such provisions, (b) authorizes and directs the Trustee on his
or her behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination so provided and (c) appoints the
Trustee his or her attorney-in-fact for any and all such purposes. Each Holder
hereof, by his or her acceptance hereof, hereby waives all notice of the
acceptance of the subordination provisions contained herein and in the Indenture
by each holder of Senior Indebtedness and Other Financial Obligations, whether
now outstanding or hereafter incurred, and waives reliance by each such holder
upon said provisions.
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.
9
IN WITNESS WHEREOF, the Company has caused this instrument to be executed.
Dated
-----
FLEET FINANCIAL GROUP, INC.
By:_____________________________
Name
Title
Attest:
By:______________________________________
Name:
Title:
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred to in
the within-mentioned Indenture.
The First National Bank of Chicago
as Trustee
By _______________________________________
Authorized Officer
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of Debentures of the
Company (herein sometimes referred to as the "Debentures"), specified in the
Indenture, all issued or to be issued in one or more series under and pursuant
to an Indenture dated as of December 11, 1996, duly executed and delivered
between the Company and The First National Bank of Chicago as Trustee (the
"Trustee"), as supplemented by the Second Supplemental Indenture dated as of
_______, 1997, 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 Second Supplemental Indenture.
The Debenture is redeemable by the Company, in whole or in part, from time to
time, on or after _______, 2002 (an "Optional Redemption"), or in whole but not
in part, prior to _______, 2002, upon the occurrence of a Special Event. Any
redemption pursuant to this paragraph will be made upon not less than 30 days
nor more than 60 days notice, at a redemption price equal to 100% of the
principal amount plus any accrued but unpaid interest, to the date of such
redemption (the "Redemption Price"). The Redemption Price shall be paid prior
to 12:00 noon, New York time, on the date of such redemption or at such earlier
time as the Company determines. If the Debentures are only partially redeemed
by the Company pursuant to an Optional Redemption, the Debentures will be
redeemed pro rata or by lot or by any other method utilized by the Trustee;
provided that if, at the time of redemption, the Debentures are registered as a
Global Debenture, the Depositary shall determine the principal amount of such
Debentures held by each Debenture holder to be redeemed in accordance with its
procedures.
10
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 and any additional amounts then due,
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 of the Company, upon surrender of this Debenture for
registration of transfer at the office or agency of the Trustee in the City and
State of New York accompanied by a written instrument or instruments of transfer
in form satisfactory to the Company or the Trustee duly executed by the
registered Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Debentures of authorized denominations and for the
same aggregate principal amount and series will be issued to the designated
transferee or transferees. No service charge will be made for any such transfer,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in relation thereto.
11
Prior to due presentment for registration of transfer of this Debenture, the
Company, the Trustee, any paying agent and the Security registrar may deem and
treat the registered holder hereof as the absolute owner hereof (whether or not
this Debenture shall be overdue and notwithstanding any notice of ownership or
writing hereon made by anyone other than the Security registrar) for the purpose
of receiving payment of or on account of the principal hereof and premium, if
any, and interest due hereon and for all other purposes, and neither the Company
nor the Trustee nor any paying agent nor any Security registrar shall be
affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or the interest
on this Debenture, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture, against any incorporator,
stockholder, officer or director, past, present or future, as such, of the
Company or of any predecessor or successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issuance hereof, expressly waived and
released.
The Debentures of this series are issuable only in registered form without
coupons in denominations of $25 and any integral multiple thereof. As provided
in the Indenture and subject to certain limitations herein and therein set
forth, Debentures of this series so issued are exchangeable for a like aggregate
principal amount of Debentures of this series of a different authorized
denomination, as requested by the Holder surrendering the same.
All terms used in this Debenture that are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
ARTICLE VIII
ORIGINAL ISSUE OF DEBENTURES
SECTION 8.1. Original Issue of Debentures.
Debentures in the aggregate principal amount of the aggregate stated
liquidation amount of the Preferred Securities and Common Securities to be
issued by the Trust, may, upon execution of this Second Supplemental Indenture
or 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 Second Supplemental Indenture, is in
all respects ratified and confirmed, and this Second Supplemental Indenture
shall be deemed part of the Indenture in the manner and to the extent herein and
therein provided.
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 Second
Supplemental Indenture.
12
SECTION 9.3. Governing Law.
This Second 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 Second
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 Second
Supplemental Indenture or of the Debentures, but this Second 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 Second 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.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
FLEET FINANCIAL GROUP, INC.
By____________________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
By____________________________________
Name:
Title:
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ )
COUNTY OF PROVIDENCE ) ss.:
On the ____ day of __________, 1997 before me personally came
_______________________, to me known, who, being by me duly sworn, did depose
and say that he resides at ____________________________________________; that he
is ___________________________________ of Fleet Financial Group, Inc., one of
the corporations described in and which executed the above instrument; that he
knows the corporate seal of said corporation; that the seal affixed to the said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation; and that he signed his name thereto by
like authority.
_____________________________
NOTARY PUBLIC
[seal] Commission expires:
STATE OF )
COUNTY OF ) ss.:
On the _____ day of ________________, 1997, before me personally came
__________________________, to me known, who, being by me duly sworn, did depose
and say that he resides at ___________________; that he is ___________________
of The First National Bank of Chicago, one of the corporations described in and
which executed the above instrument; that he knows the corporate seal of said
corporation; that the seal affixed to the said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
_____________________________
NOTARY PUBLIC
[seal] Commission expires:
14