1
Exhibit 2.6
SECOND SUPPLEMENTAL INDENTURE
between
FLEETBOSTON FINANCIAL CORPORATION
and
THE BANK OF NEW YORK
Dated as of September 17, 2001
2
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............................................ 5
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......................................... 9
SECTION 4.3 Limitation of Transactions.................................. 9
ARTICLE V
EXPENSES
SECTION 5.1 Payment of Expenses......................................... 10
SECTION 5.2 Payment Upon Resignation or Removal......................... 11
ARTICLE VI
COVENANT TO LIST ON EXCHANGE
SECTION 6.1 Listing on an Exchange...................................... 11
i
3
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 Amendment and Ratification of Indenture..................... 18
SECTION 9.2 Trustee Not Responsible for Recitals........................ 20
SECTION 9.3 Governing Law............................................... 20
SECTION 9.4 Separability................................................ 20
SECTION 9.5 Counterparts................................................ 20
* THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE A PART OF
THIS SECOND SUPPLEMENTAL INDENTURE.
ii
4
SECOND SUPPLEMENTAL INDENTURE, dated as of September 17, 2001 (the "Second
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 "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 Deferrable Interest Debentures due 2031 (the
"Debentures"), the form and substance of such Debentures and the terms,
provisions and conditions thereof to be set forth as provided in the Indenture
and this Second Supplemental Indenture;
WHEREAS, the Company and Fleet Capital Trust VII, a Delaware statutory
business trust (the "Trust"), has offered to the public $500,000,000 aggregate
liquidation amount of its 7.20% Capital 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 $15,463,925
aggregate liquidation amount of its 7.20% Common Securities (the "Common
Securities"), in $515,463,925 aggregate principal amount of the Debentures; and
WHEREAS, the Company has requested that the Trustee execute and deliver
this Second Supplemental Indenture and all requirements necessary to make this
Second Supplemental Indenture a valid instrument in accordance with its terms,
and to make the Debentures, when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company, have been
performed, and the execution and delivery of this Second Supplemental Indenture
has been duly authorized in all respects.
NOW THEREFORE, in consideration of the purchase and acceptance of the
Debentures by the Holders thereof, and for the purpose of setting forth, as
provided in the Indenture, the form and substance of the Debentures and the
terms, provisions and conditions thereof, the Company covenants and agrees with
the Trustee as follows:
5
ARTICLE I
DEFINITIONS
SECTION 1.1 Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used in this
Second Supplemental Indenture;
(b) a term defined anywhere in this Second Supplemental Indenture has the
same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or Article of this
Second Supplemental Indenture;
(e) headings are for convenience of reference only and do not affect
interpretation;
(f) the following terms have the meanings given to them in the
Declaration: (i) 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 VII, a Delaware statutory business trust, dated as of September
17, 2001.
"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).
2
6
"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 December 15, 2031 unless extended to a date not later
than December 15, 2050 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.
3
7
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 Deferrable Interest Debentures due 2031", in aggregate
principal amount of $515,463,925.
SECTION 2.2 Maturity.
(a) The Debentures shall mature on December 15, 2031; 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 December 15, 2050 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
Moody's 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.
4
8
SECTION 2.3 Form and Payment.
Except as provided in Section 2.4, the Debentures shall be issued in fully
registered certificated form without interest coupons. Principal and interest on
the Debentures issued in certificated form will be payable, the transfer of such
Debentures will be registrable and such Debentures will be exchangeable for
Debentures bearing identical terms and provisions at the office or agency of the
Trustee in New York, New York; provided, however, that payment of interest may
be made at the option of the Company by check mailed to the Holder entitled
thereto at such address as shall appear in the Security Register or by wire
transfer to an account appropriately designated by the Holder, entitled thereto.
Notwithstanding the foregoing, so long as the Holder of any Debentures is the
Institutional Trustee, the payment of the principal of and interest (including
Compound Interest and Additional Interest, if any) on such Debentures held by
the Institutional Trustee will be made at such place and to such account as may
be designated by the Institutional Trustee.
SECTION 2.4 Global Debenture.
(a) In connection with a Dissolution Event,
(i) the Debentures in certificated form may be presented to the
Trustee by the Institutional Trustee in exchange for a global Debenture in
an aggregate principal amount equal to the aggregate principal amount of
all outstanding Debentures (a "Global Debenture"), to be registered in the
name of the Depository Institution, or its nominee, and delivered by the
Trustee to the Depository Institution for crediting to the accounts of its
participants pursuant to the instructions of the Regular Trustees. The
Company upon any such presentation shall execute a Global Debenture in
such aggregate principal amount and deliver the same to the Trustee for
authentication and delivery in accordance with the Indenture and this
Second 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 Second Supplemental Indenture. On
issue of such Debentures, Debentures with an equivalent aggregate
principal amount that were presented by the Institutional Trustee to the
Trustee will be deemed to have been canceled.
5
9
(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 September 17, 2001 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 December 15, 2001, 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.
6
10
(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 September
17, 2006 or (ii) at any time prior September 17, 2006, 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,
7
11
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.
8
12
SECTION 4.2 Notice of Extension.
(a) If the Institutional Trustee is the only registered Holder at the time
the Company selects an Extended Interest Payment Period, the Company shall give
written notice to the Regular Trustees, the Institutional Trustee and the
Trustee of its selection of such Extended Interest Payment Period one Business
Day before the earlier of (i) the next succeeding date on which Distributions on
the Trust Securities issued by the Trust are payable, or (ii) the date the Trust
is required to give notice of the record date, or the date such Distributions
are payable, to the New York Stock Exchange or other applicable self-regulatory
organization or to holders of the Preferred Securities issued by the Trust, but
in any event at least one Business Day before such record date.
(b) If the Institutional Trustee is not the only Holder at the time the
Company selects an Extended Interest Payment Period, the Company shall give the
Holders of the Debentures and the Trustee written notice of its selection of
such Extended Interest Payment Period at least ten Business Days before the
earlier of (i) the next succeeding Interest Payment Date, or (ii) the date the
Company is required to give notice of the record date or the Interest Payment
Date to the New York Stock Exchange or other applicable self-regulatory
organization or to Holders of the Debentures.
(c) The quarter in which any notice is given pursuant to paragraphs (a) or
(b) of this Section 4.2 shall be counted as one of the 20 quarters permitted in
the maximum Extended Interest Payment Period permitted under Section 4.1.
SECTION 4.3 Limitation of Transactions.
If (i) the Company shall exercise its right to defer payment of interest
as provided in Section 4.1 and the Extended Interest Payment Period is
continuing, or (ii) there shall have occurred any Event of Default, as defined
in the Indenture, or (iii) there shall have occurred any Event of Default, as
defined in the Preferred Securities Guarantee, then (a) the Company shall not
declare or pay any dividend on, make any distribution with respect to, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
its capital stock (other than (1) purchases or acquisitions of shares of its
common stock in connection with the satisfaction by the Company of its
obligations under any employee benefit plans or any other contractual obligation
of the Company (other than a contractual obligation ranking pari passu with or
junior to the Debentures), (2) as a result of a reclassification of the
Company's capital stock or the exchange or conversion of one class or series of
the Company's capital stock for another class or series of the Company's capital
stock or (3) the purchase of fractional interests in shares of the Company's
capital stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged), (b) the Company shall not
make any payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities issued by the Company that rank pari
passu with or junior to the Debentures and (c) the Company shall not make any
guarantee payments with respect to the foregoing (other than pursuant to the
Preferred Securities Guarantee).
9
13
ARTICLE V
EXPENSES
SECTION 5.1 Payment of Expenses.
In connection with the offering, sale and issuance of the Debentures to
the Institutional Trustee and in connection with the sale of the Trust
Securities by the Trust, the Company, in its capacity as borrower with respect
to the Debentures, shall:
(a) pay all costs and expenses relating to the offering, sale and issuance
of the Debentures, including commissions to the underwriter payable pursuant to
the Purchase Agreement and compensation of the Trustee under the Indenture in
accordance with the provisions of Section 6.06 of the Indenture;
(b) be responsible for and shall pay all debts and obligations (other than
with respect to the Trust Securities) and all costs and expenses of the Trust
(including, but not limited to, costs and expenses relating to the organization,
maintenance and dissolution of the Trust, the offering, sale and issuance of the
Trust Securities (including commissions to the underwriters in connection
therewith), the fees and expenses (including reasonable counsel fees and
expenses) of the Institutional Trustee, the Delaware Trustee and the Regular
Trustees (including any amounts payable under Article 10 of the Declaration),
the costs and expenses relating to the operation of the Trust, including without
limitation, costs and expenses of accountants, attorneys, statistical or
bookkeeping services, expenses for printing and engraving and computing or
accounting equipment, paying agent(s), registrar(s), transfer agent(s),
duplicating, travel and telephone and other telecommunications expenses and
costs and expenses incurred in connection with the acquisition, financing, and
disposition of Trust assets and the enforcement by the Institutional Trustee of
the rights of the holders of the Preferred Securities);
(c) be liable for any indemnification obligations arising with respect to
the Declaration; and
(d) pay any and all taxes (other than United States withholding taxes
attributable to the Trust or its assets) and all liabilities, costs and expenses
with respect to such taxes of the Trust.
The Company's obligations under this Section 5.1 shall be for the benefit
of, and shall be enforceable by, any Person to whom such debts, obligations,
costs, expenses and taxes are owed (a "Creditor") whether or not such Creditor
has received notice hereof. Any such Creditor may enforce the Company's
obligations under this Section 5.1 directly against the Company and the Company
irrevocably waives any right of remedy to require that any such Creditor take
any action against the Trust or any other Person before proceeding against the
Company. The Company agrees to execute such additional agreements as may be
necessary or desirable in order to give full effect to the provisions of this
Section 5.1.
The provisions of this Section shall survive the termination of this
Second Supplemental Indenture.
10
14
SECTION 5.2 Payment Upon Resignation or Removal.
Upon termination of this Second Supplemental Indenture or the Indenture or
the removal or resignation of the Trustee, unless otherwise stated, the Company
shall pay to the Trustee all amounts accrued to the date of such termination,
removal or resignation 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 Water Street, New York, New York) to the issuer or
its agent for registration of transfer, exchange or payment, and any Debenture
issued is registered in the name of Cede & Co. or such other name as requested
by an authorized representative of The Depository Trust Company and any payment
hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner hereof, Cede &
Co., has an interest herein.
11
15
No. 1
FLEETBOSTON FINANCIAL CORPORATION
7.20% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE
DUE 2031
$_______________ CUSIP#__________
FLEETBOSTON FINANCIAL CORPORATION, a Rhode Island corporation (the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to The Bank
of New York, as Institutional Trustee of Fleet Capital Trust VII under that
certain Amended and Restated Declaration of Trust dated as of September 17,
2001, or registered assigns, the principal sum of [ ] ($__________) on December
15, 2031; 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 September
17, 2001, 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 December 15, 2001, 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 premium, and
(without duplication and to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at the
same rate per annum compounded quarterly. The amount of interest payable on any
Interest Payment Date shall be computed on the basis of a 360-day year of twelve
30-day months and, except as provided in the following sentences, the amount of
interest payable for any period shorter than a full quarterly period for which
interest is computed, will be computed on the basis of the actual number of days
elapsed per calendar month (but not to exceed 30 days in any month). In the
event that any date on which interest is payable on this Debenture is not a
Business Day, then payment of interest payable on such date will be made on the
next succeeding day that is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on the date such payment otherwise would have been payable. The interest
installment so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the person
in whose name this Debenture (or one or more Predecessor Securities, as defined
in said Indenture) is registered at the close of business on the relevant record
dates, which will be, as long as this Debenture remains in book-entry form, one
Business Day prior to the relevant Interest Payment Date and, in the event this
Debenture is not in book-entry form, the 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 Second 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
12
16
which the Debentures may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture. The principal of
(and premium, if any) and the interest on this Debenture shall be payable at the
office or agency of the Trustee maintained for that purpose in any coin or
currency of the United States of America that at the time of payment is legal
tender for payment of public and private debts; provided, however, that payment
of interest may be made at the option of the Company by check mailed to the
registered Holder at such address as shall appear in the Security Register.
Notwithstanding the foregoing, so long as the Holder of this Debenture is the
Institutional Trustee, the payment of the principal of (and premium, if any) and
interest on this Debenture will be made at such place and to such account as may
be designated by the Institutional Trustee.
The indebtedness evidenced by this Debenture is, to the extent provided in
the Indenture, subordinate and junior in right of payment to the prior payment
in full of all Senior Indebtedness and Other Financial Obligations (each as
defined in the Indenture) and this Debenture is issued subject to the provisions
of the Indenture with respect thereto. Each Holder of this Debenture, by
accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his or her behalf to take such action as
may be necessary or appropriate to acknowledge or effectuate the subordination
so provided and (c) appoints the Trustee his or her attorney-in-fact for any and
all such purposes. Each Holder hereof, by his or her acceptance hereof, hereby
waives all notice of the acceptance of the subordination provisions contained
herein and in the Indenture by each holder of Senior Indebtedness and Other
Financial Obligations, whether now outstanding or hereafter incurred, and waives
reliance by each such holder upon said provisions.
If a Tax Event occurs, then the Company will have the right prior to the
termination of Fleet Capital Trust VII, 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 December 15, 2050 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 VII 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 Debentures is, and after
such extension will be, rated at least BBB- by Standard & Poor's Ratings
Services, at least Baa3 by Moody's Investors Service, Inc. or at least the
equivalent by any other nationally recognized statistical rating organization.
13
17
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
14
18
(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 and
the Second Supplemental Indenture dated as of September 17, 2001, 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 Second Supplemental Indenture.
The Debenture is redeemable by the Company (i) in whole but not in part at
any time prior to September 17, 2006 upon the occurrence and continuation of a
Special Event (as defined in the Indenture) or (ii) in whole or in part on or
after September 17, 2006. 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
15
19
such supplemental indenture shall (i) extend the fixed maturity of any
Debentures of any series, or reduce the principal amount thereof or any premium
thereon, or reduce the rate or extend the time of payment of interest thereon,
or reduce any amount payable on redemption thereof or make the principal thereon
or any interest or premium thereon payable in any coin or currency other than
that provided in this Debenture, or impair or affect the right of any Holder of
a Debenture to institute suit for payment thereof or the right of repayment, if
any, at the option of the Holder, without the consent of the Holder of each
Debenture so affected, or (ii) reduce the aforesaid percentage of Debentures,
the Holders of which are required to consent to any such supplemental indenture,
without the consent of the Holders of each Debenture then outstanding and
affected thereby. The Indenture also contains provisions permitting the Holders
of a majority in aggregate principal amount of the Debentures of any series at
the time outstanding affected thereby, on behalf of all of the Holders of the
Debentures of such series, to waive any past default in the performance of any
of the covenants contained in the Indenture, or established pursuant to the
Indenture with respect to such series, and its consequences, except a default in
the payment of the principal of or premium, if any, or interest on any of the
Debentures of such series. Any such consent or waiver by the registered Holder
of this Debenture (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such Holder and upon all future Holders and owners
of this Debenture and of any Debenture issued in exchange hereof or in place
hereof (whether by registration of transfer or otherwise), irrespective of
whether or not any notation of such consent or waiver is made upon this
Debenture.
No reference herein to the Indenture and no provision of this Debenture or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Debenture at the time and place and at the rate and in the
money herein prescribed.
The Company shall have the right at any time during the term of the
Debentures and from time to time to extend the interest payment period of such
Debentures for up to 20 consecutive quarters (an "Extended Interest Payment
Period"), at the end of which period the Company shall pay all interest then
accrued and unpaid (together with interest thereon at the rate specified for the
Debentures to the extent that payment of such interest is enforceable under
applicable law); provided that no Extended Interest Payment Period may last
beyond the Stated Maturity of the Debentures. Before the termination of any such
Extended Interest Payment Period, the Company may further extend such Extended
Interest Payment Period, provided that such Extended Interest Payment Period
together with all such further extensions thereof shall not exceed 20
consecutive quarters or last beyond the Stated Maturity date of the Debentures.
At the termination of any such Extended Interest Payment Period and upon the
payment of all accrued and unpaid interest, including any Additional Interest
and Compound Interest, the Company may commence a new Extended Interest Payment
Period.
As provided in the Indenture and subject to certain limitations therein
set forth, this Debenture is transferable by the registered Holder hereof on the
Security Register, upon surrender of this Debenture for registration of transfer
at the office or agency of the Trustee in the City and State of New York,
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company or the Trustee duly executed by the registered
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Debentures of authorized denominations and for the same aggregate
principal amount and series will be issued
16
20
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 premium, if any, and interest due hereon and for all other
purposes, and none of the Company, the Trustee, any paying agent, any transfer
agent or any security registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
The Debentures of this series are issuable only in registered form without
coupons in denominations of $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 $515,463,925 may, upon
execution of this Second 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.
17
21
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Amendment and Ratification of Indenture.
(a) Section 5.01 of the Indenture is hereby deleted in its entirety and
replaced with the following:
"SECTION 5.01. Events of Default.
In case one or more of the following Events of Default with respect to
Securities of any series or such other events as may be established with respect
to the Securities of that series as contemplated by Section 2.03 hereof shall
have occurred and be continuing:
(a) default in the payment of any interest upon any Securities of that
series when it becomes due and payable, and continuance of such default for a
period of 30 days; provided, however, that a valid extension of an interest
payment period by the Company in accordance with the terms of any particular
series of Securities established as contemplated in this Indenture, shall not
constitute a default in the payment of interest for this purpose; or
(b) default in the payment of all or any part of the principal of, or
premium, if any, on, any Securities of that series as and when the same shall
become due and payable either at maturity, upon redemption (including redemption
for a sinking fund, if any), by declaration or otherwise; provided, however,
that a valid extension of the maturity of such Securities in accordance with the
terms of any particular series of Securities established as contemplated in this
Indenture, shall not constitute a default in the payment of principal or
premium, if any, for this purpose; or
(c) default in the performance, or breach, of any covenant or warranty of
the Company in this Indenture (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this Section specifically
dealt with and other than those set forth exclusively in terms of any particular
series of Securities established as contemplated in this Indenture), and
continuance of such default or breach for a period of 90 days after there has
been given, by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the holders of at least 25% in principal amount
of the outstanding Securities, a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(d) a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Company in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Company or for any substantial part of
its property, or ordering the winding-up or liquidation of its affairs and such
decree or order shall remain unstayed and in effect for a period of 90
consecutive days; or
(e) the Company shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, shall
consent to the entry of an order for relief in an involuntary case under any
such law, or shall consent to the appointment of or
18
22
taking possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or other similar official) of the Company or of any substantial
part of its property, or shall make any general assignment for the benefit of
creditors, or shall fail generally to pay its debts as they become due; or
(f) in the event Securities are issued to a Fleet Capital Trust or a
trustee of such trust in connection with the issuance of Trust Securities by
such Fleet Capital Trust, such Fleet Capital Trust shall have voluntarily or
involuntarily dissolved, wound-up its business or otherwise terminated its
existence except in connection with (i) the distribution of Securities to
holders of Trust Securities in liquidation of their interests in such Fleet
Capital Trust, (ii) the redemption of all of the outstanding Trust Securities of
such Fleet Capital Trust or (iii) certain mergers, consolidations or
amalgamations, each as permitted by the Declaration of such Fleet Capital Trust;
then, and in each and every such case, unless the principal of all of the
Securities of such series shall have already become due and payable, either the
Trustee or the holders of not less than 25% in aggregate principal amount of the
Securities of that series then outstanding hereunder, by notice in writing to
the Company (and to the Trustee if given by Securityholders), may declare the
entire principal of all Securities of that series and the interest accrued
thereon, if any, to be due and payable immediately, and upon any such
declaration the same shall become immediately due and payable.
The foregoing provisions, however, are subject to the condition that if,
at any time after the principal of the Securities of any series (or of all the
Securities, as the case may be) shall have been so declared due and payable, and
before any judgment or decree for the payment of the moneys due shall have been
obtained or entered as hereinafter provided, the Company shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest upon all the Securities of such series (or of all the Securities, as
the case may be) and the principal of and premium, if any, on any and all
Securities of such series (or of all the Securities, as the case may be) which
shall have become due otherwise than by acceleration (with interest upon such
principal and premium, if any, and, to the extent that payment of such interest
is enforceable under applicable law, on overdue installments of interest, at the
same rate as the rate of interest specified in the Securities of such series (or
at the respective rates of interest of all the Securities, as the case may be),
to the date of such payment or deposit) and such amount as shall be sufficient
to cover reasonable compensation to the Trustee and each predecessor Trustee,
their respective agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Trustee and each predecessor
Trustee except as a result of negligence or bad faith, and if any and all Events
of Default under the Indenture, other than the non-payment of the principal of
or premium, if any, on Securities which shall have become due by acceleration,
shall have been cured, waived or otherwise remedied as provided in this
Indenture, then and in every such case the holders of a majority in aggregate
principal amount of the Securities of such series (or of all the Securities, as
the case may be) then outstanding, by written notice to the Company and to the
Trustee, may waive all defaults with respect to that series (or with respect to
all Securities, as the case may be, in such case, treated as a single class) and
rescind and annul such declaration and its consequences, but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent default
or shall impair any right consequent thereon.
19
23
In case the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the Company,
the Trustee and the holders of the Securities shall be restored respectively to
their several positions and rights hereunder, and all rights, remedies and
powers of the Company, the Trustee and the holders of the Securities shall
continue as though no such proceeding had been taken."
(b) The Indenture, as amended and supplemented by the First Supplemental
Indenture and this Second Supplemental Indenture, is in all respects ratified
and confirmed, and this Second Supplemental Indenture shall be deemed part of
the Indenture in the manner and to the extent herein and therein provided.
SECTION 9.2 Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and not by the
Trustee, and the Trustee assumes no responsibility for the correctness thereof.
The Trustee makes no representation as to the validity or sufficiency of this
Second Supplemental Indenture.
SECTION 9.3 Governing Law.
This Second Supplemental Indenture and each Debenture shall be deemed to
be a contract made under the internal laws of the State of New York, and for all
purposes shall be construed in accordance with the laws of such State.
SECTION 9.4 Separability.
In case any one or more of the provisions contained in this Second
Supplemental Indenture or in the Debentures shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Second
Supplemental Indenture or of the Debentures, but this Second Supplemental
Indenture and the Debentures shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
SECTION 9.5 Counterparts.
This Second Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
20
24
IN WITNESS WHEREOF, the parties hereto have caused this Second
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/ JANICE B. LIVA By: /s/ DOUGLAS L. JACOBS
--------------------------------- -------------------------------------
Name: Janice B. Liva Name: Douglas L. Jacobs
Title: Assistant Secretary Title:Senior Vice President and
Treasurer
THE BANK OF NEW YORK,
as Trustee
By: /s/ MARIE E. TRIMBOLI
-------------------------------------
Name: Marie E. Trimboli
Title: Assistant Vice President
21
25
STATE OF MASSACHUSETTS )
COUNTY OF SUFFOLK ) ss.:
On the 17th day of September, 2001 before me personally came Douglas L. Jacobs,
to me known, who, being by me duly sworn, did depose and say that he resides in
Providence, Rhode Island; that he is Senior Vice President and Treasurer of
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/ LINDA D. ELFMAN
---------------------------
Notary Public
[seal] Commission expires: 11-23-01
22