Exhibit 2.8
FOURTH SUPPLEMENTAL INDENTURE
between
FLEETBOSTON FINANCIAL CORPORATION
and
THE BANK OF NEW YORK
Dated as of July 31, 2003
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 FOURTH SUPPLEMENTAL INDENTURE.
FOURTH SUPPLEMENTAL INDENTURE, dated as of July 31, 2003 (the "Fourth
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,
the Second Supplemental Indenture, dated September 17, 2001, between the Company
and the Trustee and the Third Supplemental Indenture, dated March 8, 2002,
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 6.000% Junior Subordinated Deferrable Interest Debentures due 2033 (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 Fourth Supplemental Indenture;
WHEREAS, the Company and Fleet Capital Trust IX, a Delaware statutory trust
(the "Trust"), has initially offered to the public $175,000,000 in aggregate
liquidation amount (or up to $201,250,000 if the underwriters (set forth in
Schedule A to the Purchase Agreement) exercise their overallotment option ) of
its 6.000% 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 $5,412,375 in aggregate
liquidation amount (or up to $6,224,250 if the underwriters of the Preferred
Securities exercise their overallotment option) of its 6.000% Common Securities
(the "Common Securities"), in $180,412,375 aggregate principal amount (or up to
$207,474,250 if the underwriters of the Preferred Securities exercise their
overallotment option) of the Debentures; and
WHEREAS, the Company has requested that the Trustee execute and deliver
this Fourth Supplemental Indenture and all requirements necessary to make this
Fourth 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 Fourth 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
Fourth Supplemental Indenture;
(b) a term defined anywhere in this Fourth 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
Fourth 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 IX, a Delaware statutory trust, dated as of July 31, 2003.
"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).
"Investment Company Event" shall mean that the Trust shall have received an
opinion of independent counsel experienced in such matters to the effect that,
as a result of any amendment to, or change, including any announced prospective
change, in the applicable laws, regulations or interpretations of the United
States or any political subdivision or other governmental agency or regulatory
authority, there is more than an insubstantial risk that the Trust is or will be
considered an "investment company" that is required to be registered under the
Investment Company Act of 1940, as amended, which change in laws, regulations or
interpretations becomes effective on or after the date of original issuance of
the Preferred Securities.
"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 those 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, there is more than an
insubstantial risk that the Preferred Securities will no longer constitute, or
within 90 days of the date thereof, will not constitute, Tier 1 capital (or its
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.
For the avoidance of doubt, an amendment or change referred to in clause
(a) above or an official administrative pronouncement or judicial decision
referred to in clause (b) above shall include, but not be limited to, an
amendment or change or official administrative pronouncement or judicial
decision which results from changes affecting the criteria for consolidation of
variable interest entities (as described in Financial Accounting Standards Board
("FASB") Interpretation No. 46) or the appropriate financial reporting balance
sheet classification of trust preferred securities (as described in FASB's
Statement of Financial Accounting Standards No. 150).
"Special Event" means a Tax Event, a Regulatory Capital Event or an
Investment Company 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 August 1, 2033.
"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 "6.000%
Junior Subordinated Deferrable Interest Debentures due 2033", in an aggregate
principal amount of $180,412,375 (or up to $207,474,250 if the underwriters of
the Preferred Securities exercise their overallotment option).
SECTION 2.2 Maturity.
The Debentures shall mature on August 1, 2033.
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
Fourth 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 Fourth 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 6.000% per annum (the
"Coupon Rate") from July 31, 2003 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 February 1, May 1, August 1 and November 1 of each year (each, an "Interest
Payment Date"), commencing on November 1, 2003, to the Person in whose name such
Debenture or any predecessor Debenture is registered at the close of business on
the relevant record date, which will be, as long as the Preferred Securities
remain in book-entry form (or if no Preferred Securities remain outstanding, as
long as the Debentures remain in book entry form), one Business Day prior to the
relevant Interest Payment Date and, in the event the Preferred Securities are
not in book-entry form (or if no Preferred Securities remain outstanding, in the
event the Debentures are not in book entry form), the 15th day of the month
immediately preceding 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 July 31,
2008 or (ii) at any time prior July 31, 2008, 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 Fourth Supplemental Indenture. SECTION 5.2 Payment Upon Resignation or
Removal.
Upon termination of this Fourth 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 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) 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.
Certificate No. 1
FLEETBOSTON FINANCIAL CORPORATION
6.000% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE DUE 2033
$_______________ CUSIP#__________
FLEETBOSTON FINANCIAL CORPORATION, a Rhode Island corporation (the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to The Bank
of New York, as Institutional Trustee of Fleet Capital Trust IX under that
certain Amended and Restated Declaration of Trust dated as of July 31, 2003 or
registered assigns, the principal sum of [ ] ($__________) on August 1, 2033.
The Company further promises to pay interest on said principal sum from July 31,
2003 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 February 1, May 1,
August 1 and November 1 each year commencing November 1, 2003 at the rate of
6.000% 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 15th day of the
month immediately preceding 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 Fourth 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.
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, the Third
Supplemental Indenture dated as of March 8, 2002, and the Fourth Supplemental
Indenture, dated July 31, 2003, 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 Fourth Supplemental Indenture.
The Debenture is redeemable by the Company (i) in whole but not in part at
any time prior to July 31, 2008 upon the occurrence and continuation of a
Special Event (as defined in the Fourth Supplemental Indenture) or (ii) in whole
or in part on or after July 31, 2008. 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 $180,412,375 (or up to
$207,474,250 if the underwriters of the Preferred Securities exercise their
overallotment option ) may, upon execution of this Fourth 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
Fourth Supplemental Indenture.
SECTION 9.2 Governing Law.
This Fourth 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 Fourth
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 Fourth
Supplemental Indenture or of the Debentures, but this Fourth 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 Fourth 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 Fourth 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: By:
---------------------------- ------------------------------------------
Name: Name:
Title: Title:
THE BANK OF NEW YORK,
as Trustee
By:
-----------------------------------------
Name:
Title:
STATE OF MASSACHUSETTS )
COUNTY OF SUFFOLK ) ss.:
On the 31st day of July, 2003 before me personally came Xxxxxxx X. Xxxxxx,
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 Treasuer 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.
----------------------------
Notary Public
[seal] Commission expires:
