EXHIBIT 2.7
THIRD SUPPLEMENTAL INDENTURE
between
FLEETBOSTON FINANCIAL CORPORATION
and
THE BANK OF NEW YORK
Dated as of March 8, 2002
Table of Contents*
Page
ARTICLE I
DEFINITIONS
SECTION 1.1 Definition of Terms..........................................2
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1 Designation and Principal Amount.............................4
SECTION 2.2 Maturity.....................................................4
SECTION 2.3 Form and Payment.............................................4
SECTION 2.4 Global Debenture.............................................5
SECTION 2.5 Interest.....................................................6
SECTION 2.6 Denomination.................................................7
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1 Optional Redemption..........................................7
SECTION 3.2 Redemption Procedures........................................7
SECTION 3.3 No Sinking Fund..............................................8
SECTION 3.4 Required Approval............................................8
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1 Extension of Interest Payment Period.........................8
SECTION 4.2 Notice of Extension..........................................8
SECTION 4.3 Limitation of Transactions...................................9
ARTICLE V
EXPENSES
SECTION 5.1 Payment of Expenses..........................................9
SECTION 5.2 Payment Upon Resignation or Removal.........................10
ARTICLE VI
COVENANT TO LIST ON EXCHANGE
SECTION 6.1 Listing on an Exchange......................................11
ARTICLE VII
FORM OF DEBENTURE
SECTION 7.1 Form of Debenture...........................................11
ARTICLE VIII
ORIGINAL ISSUE OF DEBENTURES
SECTION 8.1 Original Issue of Debentures................................17
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Trustee Not Responsible for Recitals........................18
SECTION 9.2 Governing Law...............................................18
SECTION 9.3 Separability................................................18
SECTION 9.4 Counterparts................................................18
* THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE A PART OF
THIS THIRD SUPPLEMENTAL INDENTURE.
THIRD SUPPLEMENTAL INDENTURE, dated as of March 8, 2002 (the "Third
Supplemental Indenture"), between FleetBoston Financial Corporation, 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 June 30,
2000 between the Company and the Trustee, as supplemented by the First
Supplemental Indenture between the Company and the Trustee, dated June 30, 2000,
and the Second Supplemental Indenture between the Company and the Trustee, dated
September 17, 2001 (the "Indenture").
WHEREAS, the Company executed and delivered the Indenture to the
Trustee to provide for the future issuance of the Company's unsecured junior
subordinated debt securities to be issued from time to time in one or more
series as might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered as
provided in the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company desires to
provide for the establishment of a new series of such securities to be known as
its 7.20% Junior Subordinated Debentures due 2032 (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 Third Supplemental
Indenture;
WHEREAS, the Company and Fleet Capital Trust VIII, a Delaware statutory
business trust (the "Trust"), has offered to the public up to $575,000,000
aggregate liquidation amount of its 7.20% Preferred Securities (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 up to $17,783,525 aggregate liquidation amount of its 7.20% Common Securities
(the "Common Securities"), in up to $592,783,525 aggregate principal amount of
the Debentures; and
WHEREAS, the Company has requested that the Trustee execute and deliver
this Third Supplemental Indenture and all requirements necessary to make this
Third 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 Third 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 Third Supplemental Indenture;
(b) a term defined anywhere in this Third 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 Third 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) Purchase Agreement; (ii) Delaware Trustee; (iii) Distributions;
(iv) Institutional Trustee; (v) Preferred Securities Guarantee; (vi) Preferred
Security Certificate; and (vii) Regular Trustee; and
(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 VIII, a Delaware statutory business trust, dated as of March
8, 2002.
"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 March 15, 2032 unless extended to a date not later than
March 15, 2051 or accelerated to an earlier date, in either case in accordance
with Section 2.2 hereof.
"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 as the
"7.20% Junior Subordinated Debentures due 2032", in aggregate principal amount
of $592,783,525.
SECTION 2.2 Maturity.
(a) The Debentures shall mature on March 15, 2032; provided, however,
that the Company may accelerate or extend the Stated Maturity subject to the
conditions specified below.
(b) If a Tax Event occurs, then the Company will have the right prior
to the termination of the Trust, to accelerate the Stated Maturity of the
Debentures to the minimum extent required in order to allow for the payments of
interest (including Additional Interest) in respect of the Debentures to
continue to be tax deductible for the Company for United States federal income
tax purposes, but in no event shall the resulting Stated Maturity of the
Debentures be less than 15 years from the date of original issuance thereof. The
Stated Maturity may be accelerated only if, (a) in the opinion of counsel to the
Company, experienced in such matters, (i) after advancing the Stated Maturity,
interest paid on the Debentures will be deductible for United States federal
income tax purposes and (ii) accelerating the Stated Maturity will not result in
a taxable event to the holders of the Preferred Securities, and (b) the Company
has received the prior approval of the Federal Reserve Board to accelerate the
Stated Maturity of the Debentures if such approval is then required under
applicable law, rules, guidelines and policies.
If there is an acceleration of the Stated Maturity of the Debentures,
the Company shall give notice of the acceleration to the Trustee. The Trustee
shall then give notice to the Holders of the Debentures between 30 and 60 days
before the effectiveness of the acceleration.
(c) The Company may extend the Stated Maturity of the Debentures to a
date no later than March 15, 2051 so long as at the time such election is made
and at the time such extension commences (x) no Event of Default has occurred
and is continuing; (y) the Trust is not in arrears on payments of distributions
on its Preferred Securities and no deferred distributions have accumulated on
its Preferred Securities and (z) the Debentures are, and after such extension
will be, 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.
If the Company elects to extend the Stated Maturity of the Debentures,
the Company shall give notice of the extension to the Trustee. The Trustee shall
then give notice to the Holders of the Debentures not more than 90 days and less
than 30 days prior to the effectiveness of the extension.
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 Third
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 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 Third 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 7.20% per annum
(the "Coupon Rate") from March 8, 2002 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 15, June 15, September 15 and December 15 of each year (each, an
"Interest Payment Date"), commencing on June 15, 2002, 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 1st
day of the month in which the relevant Interest Payment 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 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.
SECTION 2.6 Denomination.
The Debentures shall be issued in denominations of $25 and integral
multiples thereof.
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1 Optional Redemption.
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
March 8, 2007 or (ii) at any time prior March 8, 2007, 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.
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) repurchases, redemptions or other acquisitions
of shares of its capital stock in connection with the satisfaction by the
Company of its obligations under any employee benefit plans or any other
contractual obligation of the Company (other than a contractual obligation
ranking pari passu with or junior to the Debentures), (2) as a result of a
reclassification of the Company's capital stock or the exchange or conversion of
one class or series of the Company's capital stock for another class or series
of the Company's capital stock or (3) the purchase of fractional interests in
shares of the Company's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or exchanged),
(b) the Company shall not make any payment of interest on or principal of 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 Trust and in connection with the sale of the Trust Securities by the Trust,
the Company, in its capacity as borrower with respect to the 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
Third Supplemental Indenture.
SECTION 5.2 Payment Upon Resignation or Removal.
Upon termination of this Third 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 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 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) 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
FLEETBOSTON FINANCIAL CORPORATION
7.20% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE
DUE 2032
$_______________ CUSIP#__________
FLEETBOSTON FINANCIAL CORPORATION, a Rhode Island corporation (the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to The Bank
of New York, as Institutional Trustee of Fleet Capital Trust VIII under that
certain Amended and Restated Declaration of Trust dated as of March 8, 2002, or
registered assigns, the principal sum of [ ] ($__________) on March 15, 2032;
provided, that the Company may accelerate or extend the Stated Maturity of this
Debenture subject to the conditions specified herein. The Company further
promises to pay interest on said principal sum from March 8, 2002, 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 15, June 15, September 15 and
December 15 of each year commencing June 15, 2002, at the rate of 7.20% per
annum (the "Coupon Rate") until the principal hereof shall have become due and
payable, and on any overdue principal, 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 1st 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
Third 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 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 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.
If a Tax Event occurs, then the Company will have the right prior to
the termination of Fleet Capital Trust VIII, to accelerate the Stated Maturity
of this Debenture to the minimum extent required in order to allow for the
payments of interest (including Additional Interest) in respect of this
Debenture to continue to be tax deductible for the Company for United States
federal income tax purposes, but in no event shall the resulting Stated Maturity
of this Debenture be less than 15 years from the date of original issuance
hereof. The Stated Maturity may be accelerated only if, (a) in the opinion of
counsel to the Company, experienced in such matters, (i) after advancing the
Stated Maturity, interest paid on this Debenture will be deductible for United
States federal income tax purposes and (ii) accelerating the Stated Maturity
will not result in a taxable event to the holders of the Preferred Securities,
and (b) the Company has received the prior approval of the Federal Reserve Board
to accelerate the Stated Maturity of this Debenture if such approval is then
required under applicable law, rules, guidelines and policies.
The Company may extend the Stated Maturity of this Debenture to a date
no later than March 15, 2051 so long as at the time such election is made and at
the time such extension commences (x) no Event of Default has occurred and is
continuing; (y) Fleet Capital Trust VIII is not in arrears on payments of
distributions on its Preferred Securities and no deferred distributions have
accumulated on its Preferred Securities and (z) this Debenture is, and after
such extension will be, 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.
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.
THIS DEBENTURE IS NOT A SAVINGS OR DEPOSIT ACCOUNT OR OTHER OBLIGATION
OF A BANK AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY
OTHER GOVERNMENTAL AGENCY.
The provisions of this Debenture are continued on the reverse side
hereof and such continued provisions shall for all purposes have the same effect
as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
FLEETBOSTON FINANCIAL CORPORATION
By:____________________________________
Name:
Title:
Attest:
By:______________________________________
Name:
Title:
(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 June 30, 2000, duly executed and delivered between
the Company and The Bank of New York, as trustee (the "Trustee"), as
supplemented by the First Supplemental Indenture dated as of June 30, 2000, the
Second Supplemental Indenture dated as of September 17, 2001 and the Third
Supplemental Indenture dated as of March 8, 2002, each 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 Third Supplemental Indenture.
The Debenture is redeemable by the Company (i) in whole but not in part
at any time prior to March 8, 2007 upon the occurrence and continuation of a
Special Event (as defined in the Indenture) or (ii) in whole or in part on or
after March 8, 2007. 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
(in integral multiples of $25); provided that if, at the time of redemption, the
Debentures are registered as a Global Debenture, the Depositary shall determine
the principal amount of such Debentures held by each Debenture holder to be
redeemed in accordance with its procedures.
In the event of redemption of this Debenture in part only, a new
Debenture or Debentures of this series for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Debentures may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Debentures of each series affected at the time
outstanding, as defined in the Indenture, to execute supplemental indentures for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of the Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Debentures; provided,
however, that no such supplemental indenture shall (i) extend the fixed maturity
of any Debentures of any series, or reduce the principal amount thereof, or
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 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 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 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 redemption date or 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 redemption
date or 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
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 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 $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.
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 up to $592,783,525 may,
upon execution of this Third 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 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
Third Supplemental Indenture.
SECTION 9.2 Governing Law.
This Third 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 such State.
SECTION 9.3 Separability.
In case any one or more of the provisions contained in this Third
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 Third
Supplemental Indenture or of the Debentures, but this Third 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 9.4 Counterparts.
This Third 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 Third
Supplemental Indenture to be duly executed by their respective officers
thereunto duly authorized as of the day and year first above written.
[Seal] FLEETBOSTON FINANCIAL CORPORATION
Attest:
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------- -----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Treasurer Title: Executive Vice President
and Treasurer
THE BANK OF NEW YORK,
as Trustee
By: /s/ Authorized Signatory
------------------------------------
Name:
Title:
STATE OF RHODE ISLAND )
CITY OF PROVIDENCE ) ss.:
On the 8th day of March, 2002 before me personally came ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, 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
FleetBoston Financial Corporation, 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.
/s/ Notary Public
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Notary Public
[seal] Commission expires: