<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 8, 1994
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
BANK OF BOSTON CORPORATION
(Exact name of Registrant as specified in its charter)
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<TABLE>
<S> <C> <C>
MASSACHUSETTS 04-2471221
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
</TABLE>
100 FEDERAL STREET, BOSTON, MASSACHUSETTS 02110 (617) 434-2200
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
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<TABLE>
<S> <C>
GARY A. SPIESS, ESQ. JANICE B. LIVA, ESQ.
General Counsel and Clerk Assistant General Counsel and Assistant Clerk
BANK OF BOSTON CORPORATION BANK OF BOSTON CORPORATION
100 Federal Street 100 Federal Street
Boston, Massachusetts 02110 Boston, Massachusetts 02110
(617) 434-2870 (617) 434-8630
</TABLE>
(Names, addresses, including zip codes, and telephone numbers, including area
codes, of agents for service)
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement.
------------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
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<S> <C> <C> <C> <C>
Proposed Proposed
Maximum Maximum
Amount Offering Aggregate Amount of
Title of Each Class of to be Price Offering Registration
Securities to be Registered Registered(1) Per Unit(1)(2) Price(1)(2) Fee
<CAPTION>
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<S> <C> <C> <C> <C>
Debt Securities(3)(4)............
Preferred Stock(5)...............
Depositary Shares(5)(6)..........
Debt Warrants(7).................
Preferred Stock Warrants(7)...... $1,500,000,000 100% $1,500,000,000 $517,245
Common Stock Warrants(7).........
Common Stock, par value $2.25 per
share(5)(8)(9)..................
Capital Securities(10)...........
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</TABLE>
(Footnotes on following page)
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE> 2
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(1) Not specified as to each class of securities to be registered pursuant to
General Instruction II.D of Form S-3. In no event will the aggregate
initial offering price of the Debt Securities, Preferred Stock, Depositary
Shares, Debt Warrants, Preferred Stock Warrants, Common Stock and Common
Stock Warrants issued under this registration statement exceed
$1,500,000,000 or the equivalent thereof in one or more foreign currencies
or composite currencies, including European currency units. Securities
registered hereby may be sold separately, together or in units with other
securities registered hereunder.
(2) Estimated solely for the purpose of computing the registration fee pursuant
to Rule 457(o). The proposed maximum offering price per unit will be
determined from time to time by the Registrant in connection with the
issuance by the Registrant of the securities registered hereunder.
(3) If any Debt Securities are issued at an original issue discount, then such
greater amount as may result in the initial offering prices for Debt
Securities and Debt Warrants.
(4) In addition to any Debt Securities that may be issued directly under the
registration statement, there are being registered hereunder an
indeterminate amount of Debt Securities as may be issued upon exchange of
Preferred Stock, for which no separate consideration will be received.
(5) In addition to any Preferred Stock, Depositary Shares or Common Stock that
may be issued directly under this registration statement, there are being
registered hereunder an indeterminate number of Preferred Stock, Depositary
Shares or Common Stock as may be issued upon conversion or exchange of Debt
Securities, Preferred Stock or Depositary Shares, as the case may be, for
which no separate consideration will be received.
(6) Such indeterminate number of Depositary Shares to be evidenced by
Depositary Receipts issued pursuant to a Deposit Agreement. In the event
the Registrant elects to offer to the public fractional interests in shares
of the Preferred Stock registered hereunder, Depositary Receipts will be
distributed to those persons purchasing such fractional interests and the
shares of Preferred Stock will be issued to the Depositary under the
Deposit Agreement.
(7) Debt Warrants, Preferred Stock Warrants and Common Stock Warrants
(collectively, "Securities Warrants") entitling the holder to purchase Debt
Securities, Preferred Stock and Common Stock, respectively, may be sold
separately or as units with Debt Securities, Preferred Stock or Common
Stock. The Securities Warrants will represent rights to purchase only Debt
Securities, Preferred Stock and Common Stock covered by this Registration
Statement.
(8) Includes Preferred Stock Purchase Rights. Prior to the occurrences of
certain events, the Rights will not be exercisable or evidenced separately
from the Common Stock.
(9) The aggregate amount of Common Stock registered hereunder is limited to
that which is permissible under Rule 415(a)(4) of the Securities Act of
1933, as amended.
(10) Such indeterminate amount of Capital Securities, which may consist of
common stock, perpetual preferred stock or other securities acceptable to
the Registrant's primary federal banking regulator as may be issued in
exchange for, or upon conversion of, Debt Securities or Preferred Stock
issued under this Registration Statement.
<PAGE> 3
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities
may not be sold nor may offers to buy be accepted prior to the time the
registration statement becomes effective. This prospectus shall not
constitute an offer to sell or the solicitation of an offer to buy nor
shall there be any sale of these securities in any jurisdiction in which
such offer, solicitation or sale would be unlawful prior to registration or
qualification under the securities laws of any such jurisdiction.
SUBJECT TO COMPLETION -- DATED MARCH 8, 1994
PROSPECTUS
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(INSERT EAGLE LOGO)
BANK OF BOSTON CORPORATION
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
WARRANTS
------------------------
Bank of Boston Corporation (the "Corporation") intends to issue from time
to time in one or more series up to $1,500,000,000 in aggregate initial offering
price of (i) debt securities, which may be either senior (the "Senior
Securities") or subordinated (the "Subordinated Securities"; and collectively
with the Senior Securities, the "Debt Securities") and warrants to purchase the
Debt Securities (the "Debt Warrants"), (ii) shares of preferred stock (the
"Preferred Stock"), which may be issued in the form of depositary shares
evidenced by depositary receipts (the "Depositary Shares"), and warrants to
purchase shares of the Preferred Stock (the "Preferred Stock Warrants"), and
(iii) shares of common stock, par value $2.25 per share (the "Common Stock") and
warrants to purchase shares of the Common Stock (the "Common Stock Warrants").
The Debt Securities, Preferred Stock, Depositary Shares, Common Stock, Debt
Warrants, Preferred Stock Warrants and Common Stock Warrants (such Debt
Warrants, Preferred Stock Warrants and Common Stock Warrants being referred to
collectively as the "Securities Warrants") offered hereby (collectively, the
"Securities") may be offered, separately or together, in separate series in
amounts, at prices and on terms to be determined at the time of sale and to be
set forth in a supplement to this Prospectus (a "Prospectus Supplement").
------------------------
The Debt Securities of any series may be issued with Securities Warrants,
and, in the case of the Subordinated Securities, may be convertible into or
exchangeable for Capital Securities of the Corporation (as defined herein). The
Senior Securities will rank equally with all other unsubordinated and unsecured
indebtedness of the Corporation. The Subordinated Securities will be subordinate
to all existing and future Senior Indebtedness of the Corporation (as defined
herein). The holders of Subordinated Securities of any series may be obligated
at any time or at maturity to exchange such Subordinated Securities for Capital
Securities. Unless otherwise indicated in the applicable Prospectus Supplement,
the maturity of the Subordinated Securities will be subject to acceleration only
in the event of certain events of bankruptcy, insolvency or reorganization of
the Corporation or the receivership of The First National Bank of Boston. The
specific terms of the Securities in respect of which this Prospectus is being
delivered, such as, where applicable, (i) in the case of Debt Securities, the
specific designation, aggregate principal amount, currency, denomination,
maturity, priority, rate of interest (which may be variable or fixed), time of
payment of interest, terms for optional redemption or repayment by the
Corporation or any holder or for sinking fund payments, terms for conversion or
exchange into Capital Securities (in the case of Subordinated Securities), the
initial public offering price, any stock exchange listings, any special
provisions related to Debt Securities denominated in a foreign currency or
issued as medium-term notes, original issue discount securities or other special
terms, and the designation of the Trustee, Security Registrar and Paying Agent,
(ii) in the case of Preferred Stock, the specific title and stated value, number
of shares or fractional interests therein, any dividend, liquidation,
redemption, voting and other rights, the terms for conversion into Capital
Securities or other preferred stock or for exchange for Capital Securities or
other debt securities, any stock exchange listings, and the initial public
offering price, (iii) in the case of the common stock, the aggregate number of
shares offered, and the initial public offering price and (iv) in the case of
Securities Warrants, where applicable, the duration, offering price, exercise
price and detachability, will be as set forth in the accompanying Prospectus
Supplement. The Prospectus Supplement will also contain information, where
applicable, about certain United States federal income tax considerations
relating to the Securities covered by the Prospectus Supplement.
------------------------
The Securities may be sold to underwriters for public offering pursuant to
terms of offering established at the time of sale. In addition, the Securities
may be sold by the Corporation directly or through dealers or agents designated
from time to time, which agents may be affiliates of the Corporation. The
Prospectus Supplement will also set forth with respect to the sale of the
Securities in respect of which this Prospectus is being delivered the names of
the underwriters, dealers or agents, if any, any applicable commissions or
discounts, the net proceeds to the Corporation from such sale and any other
terms of the offering. Any underwriters, dealers or agents participating in the
offering may be deemed "underwriters" within the meaning of the Securities Act
of 1933, as amended (the "Securities Act").
This Prospectus may not be used to consummate sales of Securities unless
accompanied by a Prospectus Supplement.
------------------------
THE SECURITIES WILL BE UNSECURED OBLIGATIONS OF THE CORPORATION AND WILL
NOT BE SAVINGS ACCOUNTS, DEPOSITS OR OTHER OBLIGATIONS OF ANY BANK OR NONBANK
SUBSIDIARY OF THE CORPORATION AND ARE NOT INSURED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION, (THE "FDIC"), BANK INSURANCE FUND OR ANY OTHER GOVERNMENT
AGENCY.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR THE COMMISSIONER OF INSURANCE OF THE STATE OF NORTH
CAROLINA (THE "COMMISSIONER") OR ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION, THE COMMISSIONER, OR ANY
STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS OR THE ACCOMPANYING PROSPECTUS SUPPLEMENT.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
The date of this Prospectus is , 1994.
<PAGE> 4
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS OR
THE PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
CORPORATION OR ANY UNDERWRITER OR AGENT. THE DELIVERY OF THIS PROSPECTUS OR THE
PROSPECTUS SUPPLEMENT AT ANY TIME DOES NOT IMPLY THAT THE INFORMATION HEREIN OR
THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE OF SUCH INFORMATION.
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN
OFFER TO BUY ANY OF THE SECURITIES IN ANY JURISDICTION TO ANY PERSON TO WHOM IT
IS UNLAWFUL TO MAKE SUCH OFFER IN SUCH JURISDICTION.
UNLESS OTHERWISE INDICATED, CURRENCY AMOUNTS IN THIS PROSPECTUS AND ANY
PROSPECTUS SUPPLEMENT ARE STATED IN U.S. DOLLARS ("$," "DOLLARS," "U.S.
DOLLARS," OR "U.S. $").
AVAILABLE INFORMATION
The Corporation is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and in
accordance therewith files reports, proxy statements, and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Corporation can be inspected and
copied at the public reference facilities maintained by the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549 and at the Commission's regional
offices at Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511, and 7 World Trade Center, 13th Floor, New York, New York
10048. Copies of such material can be obtained by mail from the Public Reference
Section of the Commission, 450 Fifth Street, N.W., Room 1024, Washington, D.C.
20549 at prescribed rates. Certain securities of the Corporation are listed on
the New York Stock Exchange ("NYSE") and the Boston Stock Exchange ("BSE"), and
such reports, proxy statements and other information concerning the Corporation
also may be inspected at the offices of the New York Stock Exchange, Inc., 20
Broad Street, New York, New York 10005, and the Boston Stock Exchange
Incorporated, One Boston Place, Boston, Massachusetts 02108.
This Prospectus does not contain all of the information set forth in the
Registration Statement on Form S-3 (and exhibits thereto, as amended) which the
Corporation has filed with the Commission under the Securities Act and to which
reference is hereby made. The Registration Statement (and exhibits thereto) may
be inspected at the Public Reference Section of the Commission, at the address
noted above, and copies thereof may be obtained from the Commission at
prescribed rates.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
There are hereby incorporated by reference in this Prospectus the following
documents and information heretofore filed with the Commission pursuant to
Sections 12 or 13 of the Exchange Act:
1. The Corporation's Annual Report on Form 10-K for the year ended
December 31, 1993.
2. The description of the Corporation's Common Stock, Preferred Stock
and Preferred Stock Purchase Rights contained in the Corporation's
registration statements filed under Section 12 of the Exchange
Act, including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Corporation pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of the
offering of the Securities offered hereby shall be deemed to be incorporated by
reference into this Prospectus and to be a part hereof from the date of filing
of such documents. Any statement contained herein or in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Prospectus to the extent that a statement
contained herein or in the accompanying Prospectus Supplement, or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein, modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
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THE CORPORATION WILL PROVIDE UPON REQUEST AND WITHOUT CHARGE TO EACH PERSON
TO WHOM THIS PROSPECTUS IS DELIVERED A COPY OF ANY OR ALL OF THE FOREGOING
DOCUMENTS INCORPORATED HEREIN BY REFERENCE (OTHER THAN EXHIBITS TO SUCH
DOCUMENTS WHICH ARE NOT SPECIFICALLY INCORPORATED THEREIN BY REFERENCE). WRITTEN
REQUESTS SHOULD BE DIRECTED TO INVESTOR RELATIONS, THE FIRST NATIONAL BANK OF
BOSTON, P.O. BOX 2016, 01-16-10, BOSTON, MASSACHUSETTS 02106-2016. TELEPHONE
REQUESTS MAY BE DIRECTED TO INVESTOR RELATIONS AT (617) 434-7858.
THE CORPORATION
The Corporation is a registered bank holding company, organized in 1970
under Massachusetts law, which, through its subsidiaries, is engaged in
providing a wide variety of financial services to individuals, corporate and
institutional customers, governments, and other financial institutions. These
services include retail banking, consumer finance, mortgage origination and
servicing, domestic corporate and investment banking, leasing, international
banking, commercial real estate lending, private banking, trust, correspondent
banking, and securities and payments processing. The Corporation's principal
subsidiary is The First National Bank of Boston (the "Bank"), a national banking
association. Other major banking subsidiaries of the Corporation are Casco
Northern Bank, N.A. ("Casco") in Maine, Bank of Boston Connecticut ("BKB
Connecticut"), Rhode Island Hospital Trust National Bank ("Hospital Trust"),
Bank of Vermont and, in Massachusetts, Multibank West, Mechanics Bank and South
Shore Bank. As of December 31, 1993, approximately 78% of the Corporation's
total loan volume consisted of domestic loans and leases, with the balance
overseas. The Corporation's banking subsidiaries maintain approximately 320
branches in Massachusetts, Rhode Island, Connecticut, Maine and Vermont. The
Corporation, through its subsidiaries, has a presence in approximately 33 states
of the United States and in approximately 23 foreign countries. As of December
31, 1993, the Corporation's subsidiaries employed in the aggregate approximately
18,600 full-time equivalent employees in their domestic and foreign operations.
The executive office of the Corporation and the head office of the Bank are
located at 100 Federal Street, Boston, Massachusetts 02110 (Telephone
617-434-2200).
------------------------
The Corporation's business is generally focused in the areas of retail
banking, corporate banking and international banking. In October of 1993, the
Corporation announced certain organizational and management changes, including
the creation of a new Chairman's Office and the establishment of a twenty-nine
member Corporate Working Committee. The Chairman's Office consists of Chairman
and Chief Executive Officer Ira Stepanian, President and Chief Operating Officer
Charles K. Gifford, Vice Chairman, Chief Financial Officer and Treasurer William
J. Shea and Vice Chairman Edward A. O'Neal. The Corporation's businesses were
previously organized into five major groups and a number of other major
centralized functions. This group structure was replaced by fifteen core
business and ten corporate-wide support areas, each led by an executive with
authority to operate and manage his or her respective area. These twenty-five
executives and the members of the Chairman's Office comprise the Corporate
Working Committee. These core business and corporate-wide support executives
work closely with one another and each is linked to one of the members of the
Chairman's Office.
------------------------
COMPETITION AND INDUSTRY CONSOLIDATION
The Corporation's subsidiaries compete with other major financial
institutions, including commercial banks, investment banks, mutual savings
banks, savings and loan associations, credit unions, consumer finance companies,
money market funds and other non-banking institutions, such as insurance
companies, major retailers, brokerage firms, and investment companies in New
England, throughout the United States, and internationally. One of the principal
methods of competing effectively in the financial services industry is to
improve customer service through the quality and range of services available,
easing access to facilities and pricing.
One outgrowth of the competitive environment discussed above has been a
significant number of consolidations in the banking industry both on a national
and regional level. The Corporation engages on an
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ongoing basis in reviewing and discussing possible acquisitions of financial
institutions, as well as banking and other assets in order to expand its
business incident to the implementation of its business strategy. The
Corporation intends to continue to explore acquisition opportunities as they
arise in order to take advantage of the continuing consolidation in the banking
industry.
Banks and bank holding companies are extensively regulated under both
federal and state law. Activities in which the Corporation and its subsidiaries
are presently engaged or which they may undertake in the future are subject to
certain statutory and regulatory restrictions. There are also various legal
limitations upon the extent to which banking subsidiaries of the Corporation can
finance or otherwise supply funds to the Corporation or certain of its
affiliates. In addition, there are certain regulatory limitations on the payment
of dividends to the Corporation by certain of its banking subsidiaries. See also
"Supervision and Regulation."
------------------------
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES AND COMBINED
FIXED CHARGES AND PREFERRED STOCK DIVIDEND REQUIREMENTS
The Corporation's ratio of earnings to fixed charges and earnings to
combined fixed charges and preferred stock dividend requirements are set forth
below for the periods indicated:
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
-------------------------------------------
1993 1992 1991 1990 1989
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<S> <C> <C> <C> <C> <C>
Earnings to Fixed Charges:
Excluding Interest on Deposits.................. 1.28 x 1.34x .72x .60x 1.11x
Including Interest on Deposits.................. 1.09 1.09 .95 .89 1.04
Earnings to Combined Fixed Charges and Preferred
Stock Dividend Requirements:
Excluding Interest on Deposits.................. 1.24 1.30 .71 .59 1.10
Including Interest on Deposits.................. 1.08 1.08 .94 .88 1.04
</TABLE>
For the years ended December 31, 1991 and 1990, earnings were insufficient
to cover both fixed charges and combined fixed charges and preferred stock
dividend requirements, both excluding and including interest on deposits.
Additional earnings necessary for the years ended December 31, 1991 and 1990 to
bring the ratios of earnings to fixed charges to one-to-one on both an excluding
and including interest on deposits basis are $178.9 million and $509.3 million,
respectively. Additional earnings necessary for the years ended December 31,
1991 and 1990 to bring the ratios of earnings to combined fixed charges and
preferred stock dividend requirements to one-to-one on both an excluding and
including interest on deposits basis are $192.2 million and $523.1 million,
respectively.
For purposes of computing both the ratios of earnings to fixed charges and
earnings to combined fixed charges and preferred stock dividend requirements,
earnings represent net income (loss) before extraordinary items and cumulative
effect of changes in accounting principles plus applicable income taxes and
fixed charges. Fixed charges, excluding interest on deposits, include interest
expense (other than on deposits) and the proportion deemed representative of the
interest factor of rent expense, net of income from subleases. Fixed charges,
including interest on deposits, include all interest expense and the proportion
deemed representative of the interest factor of rent expense, net of income from
subleases. Pretax earnings required for preferred stock dividends were computed
using tax rates for the applicable year. No tax adjustments were made in loss
years.
SUPERVISION AND REGULATION
The Corporation is subject to the supervision of, and to regular inspection
by, the Federal Reserve Bank of Boston. The Corporation's banking subsidiaries
that are organized as national banking associations, the Bank, Casco and
Hospital Trust are subject to regulation by the Office of the Comptroller of the
Currency (the "OCC") and the FDIC. The Corporation's state chartered banking
subsidiaries, BKB Connecticut, Bank of Vermont, Multibank West, Mechanics Bank
and South Shore Bank, are subject to regulation by the FDIC
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<PAGE> 7
as well as by their respective state regulators. A summary of certain of these
regulatory provisions is set forth in the Corporation's Annual Report on Form
10-K for the year ended December 31, 1993.
In addition to extensive existing government regulation, federal and state
statutes and regulations can change in unpredictable ways, often with
significant effects on the way in which banks may conduct business. Legislation
which has been enacted in recent years has substantially increased the level of
competition among commercial banks, thrift institutions and non-banking
institutions, including insurance companies, brokerage firms, mutual funds,
investment banks and major retailers. The enactment of banking legislation such
as the Financial Institutions Reform, Recovery, and Enforcement Act of 1989
("FIRREA") and the Federal Deposit Insurance Corporation Improvement Act of 1991
("FDICIA") have affected the banking industry by, among other things, broadening
the regulatory powers of the federal banking agencies in a number of areas.
Under FIRREA, an FDIC-insured bank can be held liable for any loss incurred by,
or reasonably expected to be incurred by, the FDIC in connection with (i) the
default of a commonly controlled FDIC-insured bank or (ii) any assistance
provided by the FDIC to a commonly controlled FDIC-insured bank in danger of
default. "Default" is defined generally as the appointment of a conservator or
receiver and "in danger of default" is defined generally as the existence of
certain conditions indicating that a "default" is likely to occur in the absence
of regulatory assistance. In addition, FIRREA broadened the enforcement powers
of the federal banking agencies, including the power to impose fines and
penalties, over all financial institutions. Further, under FIRREA the failure to
meet capital guidelines could subject a financial institution to a variety of
regulatory actions, including the termination of deposit insurance by the FDIC.
FDICIA also provides for expanded regulation of financial institutions.
Among other things, FDICIA establishes five capital categories for insured
depository institutions, which include "well capitalized," "adequately
capitalized," "undercapitalized," "significantly undercapitalized" and
"critically undercapitalized," and imposes significant restrictions on the
operations of a bank that is not adequately capitalized. Under FDICIA, an
undercapitalized bank must submit a capital restoration plan guaranteed by its
parent company. The liability of the parent company under any such guarantee is
limited to the lesser of 5% of the bank's assets at the time it became
undercapitalized, or the amount needed to comply with the plan. FDICIA imposes
progressively more restrictive constraints on the operations, management and
capital distributions of undercapitalized, significantly undercapitalized and
critically undercapitalized institutions. In addition, a bank's primary federal
banking agency is authorized to downgrade the bank's capital category to the
next lower category upon a determination that the bank is in an unsafe or
unsound condition or is engaged in an unsafe or unsound practice. An unsafe or
unsound practice can include receipt by the institution of a rating on its most
recent examination of three or worse (on a scale of 1 (best) to 5(worst)), with
respect to its asset quality, management, earnings or liquidity.
As required by FDICIA, the federal banking agencies have adopted
regulations that set specific capital ratio levels for FDICIA's five capital
categories. Pursuant to the regulations, an institution is well capitalized if
it has a total risk-based capital ratio of at least 10%, a Tier 1 risk-based
capital ratio of at least 6% and a leverage capital ratio of at least 5%. An
institution is adequately capitalized if it has a total risk-based capital ratio
of at least 8%, a Tier 1 risk-based capital ratio of at least 4% and a leverage
capital ratio of at least 4%. Under the regulations, in order to qualify as well
capitalized an institution also is required to be free from any agreement,
order, capital directive or prompt corrective action directive that requires it
to meet and maintain a higher level of capital. Under these regulations, at
December 31, 1993, the Bank would be deemed to be well capitalized, and the
Corporation's other banking subsidiaries would be deemed to be adequately
capitalized or well capitalized. The capital categories of the Corporation's
banking subsidiaries are determined solely for purposes of applying FDICIA's
prompt corrective action provisions and, accordingly, such capital categories
may not constitute an accurate representation of the overall financial condition
or prospects of any of the Corporation's banking subsidiaries.
FDICIA and the regulations issued thereunder also have (i) limited the use
of brokered deposits to well capitalized banks, and adequately capitalized banks
that have received waivers from the FDIC; (ii) established restrictions on the
permissible investments and activities of FDIC-insured state chartered banks and
their subsidiaries; (iii) implemented uniform real estate lending rules; (iv)
prescribed standards to limit the risks posed by credit exposure between banks;
(v) revised risk-based capital rules to include components
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<PAGE> 8
for measuring the risk posed by interest rate changes; (vi) amended various
consumer banking laws; (vii) increased restrictions on loans to a bank's
insiders; (viii) established standards in a number of areas to assure bank
safety and soundness; (ix) implemented additional requirements for institutions
that have $500 million or more in total assets with respect to annual
independent audits, audit committees, and management reports related to
financial statements, internal controls and compliance with designated laws and
regulations; and (x) replaced the FDIC's flat-rate deposit insurance assessment
system with a risk-based system under which a bank is placed in one of nine risk
categories, principally on the basis of its capital level and an evaluation of
the bank's risk to the Bank Insurance Fund, and its premiums are based on the
probability of loss to the FDIC.
The Corporation continues to analyze the effect of, and address its ongoing
compliance with, the various regulations issued under FDICIA. It is anticipated
that FDICIA, and the regulations enacted thereunder, will continue to result in
more limitations on banking activities generally, and increased costs for the
Corporation and the banking industry because of higher FDIC assessments and
higher costs of compliance, documentation and record keeping.
USE OF PROCEEDS
The Corporation intends to use the net proceeds from the sale of the
Securities for general corporate purposes which may include one or more of the
following: investments in and advances to the Corporation's subsidiaries;
financing future acquisitions of financial institutions, as well as banking and
other assets; and the redemption of certain of the Corporation's outstanding
debt securities. The precise amounts and timing of the application of proceeds
used for such corporate purposes will depend upon funding requirements and the
availability of other funds to the Corporation and its subsidiaries.
DESCRIPTION OF DEBT SECURITIES
GENERAL
The following sets forth certain general terms and provisions of the Debt
Securities to which any Prospectus Supplement may relate. The particular terms
of any Debt Securities and the extent, if any, to which such general provisions
may apply to such Debt Securities will be described in the Prospectus Supplement
relating to such Debt Securities.
The Senior Securities offered hereby are to be issued under an Indenture,
dated as of June 15, 1992, between the Corporation and Norwest Bank Minnesota,
National Association ("Norwest" or the "Trustee"), as Trustee (the "Senior
Indenture") and the Subordinated Securities offered hereby are to be issued
under an Indenture, dated as of June 15, 1992, between the Corporation and
Norwest, as Trustee, as amended by the First Supplemental Indenture dated as of
June 24, 1993 (the "Subordinated Indenture"; and collectively with the Senior
Indenture, the "Indentures"), copies of which are filed as exhibits to the
Registration Statement. The following summaries of certain provisions of the
Indentures do not purport to be complete and such summaries are qualified in
their entirety by reference to all of the provisions of the Indentures,
including the definitions therein of certain terms. Whenever particular
sections, articles or defined terms of the Indentures are referred to, such
provisions or definitions are incorporated herein by reference.
Because the Corporation is a holding company, its rights and the rights of
its creditors, including the Holders of the Debt Securities, to participate in
the assets of any subsidiary, including the Bank, upon the subsidiary's
liquidation or reorganization or otherwise would be subject to the prior claims
of the subsidiary's creditors, except to the extent that the Corporation may
itself be a creditor with recognized claims against the subsidiary. There is no
restriction in the Debt Securities or either Indenture against the incurring of
indebtedness by the Corporation, the Bank or any other subsidiary of the
Corporation.
The Indentures do not limit the aggregate principal amount of Debt
Securities which may be issued thereunder and Debt Securities may be issued
thereunder in series up to the aggregate principal amount which may be
authorized from time to time by the Corporation. The Debt Securities will be
unsecured obligations of the Corporation. The Senior Securities will rank on a
parity with all other unsecured and unsubordinated indebtedness of the
Corporation. The Subordinated Securities will be subordinate in right of payment
as
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described below under "Subordination." Unless otherwise set forth in the
Prospectus Supplement, neither the Indentures nor the Debt Securities contain
provisions which would afford Holders of Debt Securities protection in the event
of a takeover, recapitalization or similar restructuring of the Corporation,
which could adversely affect the Debt Securities.
The Debt Securities may be issued in one or more separate series of Senior
Securities and/or one or more separate series of Subordinated Securities.
Reference is made to the Prospectus Supplement relating to the particular series
of Debt Securities offered thereby for the terms of such Debt Securities,
including, where applicable:
(1) the title of such Debt Securities (which shall distinguish such
Debt Securities from all other series of Debt Securities), which may
include medium-term notes;
(2) any limit on the aggregate principal amount or aggregate initial
offering price of the Debt Securities;
(3) the date or dates, or the method by which such date or dates will
be determined or extended, on which the principal of such Debt Securities
will be payable;
(4) the rate or rates at which the Debt Securities will bear
interest, if any, which rate may be zero in the case of certain Debt
Securities issued at an issue price representing a discount from the
principal amount payable at maturity, or the method by which such rate or
rates will be determined, and the date or dates from which such interest,
if any, will accrue or the method by which such date or dates will be
determined;
(5) the date or dates on which such interest, if any, on the Debt
Securities will be payable and the regular record date, if any, for such
Interest Payment Dates or the method by which such date or dates will be
determined;
(6) the place or places where (i) the principal of and premium, if
any, and any interest on the Debt Securities will be payable, (ii)
Registered Debt Securities may be surrendered for registration of transfer,
and (iii) Debt Securities may be surrendered for exchange;
(7) any sinking fund or analogous provisions;
(8) the period or periods within which, the price or prices at which
and the Currency in which, the Debt Securities may, pursuant to any
redemption provision, be redeemed, in whole or in part, and the other
detailed terms and provisions of any such redemption provisions;
(9) if other than denominations of $1,000 and any integral multiples
thereof, the denominations in which any Registered Debt Securities will be
issuable and, if other than a denomination of $5,000, the denominations in
which any Bearer Debt Securities will be issuable;
(10) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent, and the designation of the initial Exchange
Rate Agent, if any;
(11) if other than the principal amount, the portion of the principal
amount (or the method by which such portion will be determined) of Debt
Securities that will be payable upon declaration of acceleration of the
Maturity thereof;
(12) if other than United States dollars, the currency of payment,
including composite currencies, of principal and premium, if any, and
interest, if any, on such Debt Securities, (which may be different for
principal, premium, if any, and interest, if any);
(13) any index, formula or other method used to determine the amount
of payments of principal of and premium, if any, and interest, if any, on
the Debt Securities;
(14) whether the principal of and premium, if any, and interest, if
any, on the Debt Securities are to be payable, at the election of the
Corporation or the Holder, in a Currency other than the Currency in which
the Debt Securities are denominated or stated to be payable and the period
or periods within which
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and the terms, conditions and manner of making such election and
determining the applicable exchange rate;
(15) any terms upon which any Subordinated Securities will be
convertible into or exchangeable for Capital Securities of the Corporation;
(16) whether such Debt Securities are Senior Securities or
Subordinated Securities, or include both;
(17) whether provisions relating to defeasance and covenant defeasance
will be applicable to such series of Debt Securities;
(18) any provisions granting special rights to Holders of Debt
Securities upon the occurrence of specified events;
(19) any modifications, deletions or additions to the Events of
Default, Defaults (in the case of Subordinated Securities) or covenants of
the Corporation with respect to the Debt Securities;
(20) whether the Debt Securities are issuable as Registered Debt
Securities, Bearer Debt Securities (with or without coupons) or both, any
restrictions on the offer, sale or delivery of Bearer Debt Securities, and
whether Bearer or Registered Debt Securities may be exchanged for
Registered or Bearer Debt Securities, respectively, and the circumstances
and place or places where such exchanges may be made;
(21) whether any Debt Securities are issuable initially in temporary
or permanent global form (with or without coupons) and, if so (i) whether
(and the circumstances under which) beneficial owners of interests in
permanent global Debt Securities may exchange their interests for Debt
Securities of like tenor of any authorized form and denomination, and (ii)
the identity of any initial depository for such global Debt Securities;
(22) the date as of which any Bearer Debt Securities and any temporary
global Debt Security will be dated if other than the original issuance date
of the first Debt Security of that series to be issued;
(23) the Person to whom any interest on any Registered Debt Securities
will be payable, if other than the registered Holder, the Person to whom
any interest on any Bearer Debt Securities will be payable if other than
upon presentation and surrender of the coupons appertaining thereto, and
the extent to which and manner that any interest payable on a temporary
global Debt Security will be paid if other than as specified in the
Indentures;
(24) the form and/or terms of certificates, documents or conditions,
if any, for Debt Securities to be issuable in definitive form (whether upon
original issue or upon exchange of a temporary Debt Security of such
Series);
(25) if Debt Securities are to be issued upon the exercise of
warrants, the time, manner and place for such Debt Securities to be
authenticated and delivered;
(26) whether and under what circumstances the Corporation will pay
Additional Amounts regarding any tax, assessment or government charge as
contemplated by the applicable Indenture to any Holder who is not a United
States person and, if so, whether and under what terms the Corporation will
have the option to redeem such Debt Securities in lieu of paying such
Additional Amounts (and the terms of such option); and
(27) any other terms, conditions, rights and preferences (or
limitations on such rights or preferences) relating to the Debt Securities
(which terms shall not be inconsistent with the provisions of the
applicable Indenture and the Trust Indenture Act).
The Debt Securities may be issued as Original Issue Discount Debt
Securities to be sold at a substantial discount below their principal amount.
Special U.S. federal income tax and other considerations applicable thereto will
be described in the Prospectus Supplement relating thereto.
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The Debt Securities may also be issued under the Indentures upon exercise
of Debt Warrants issued by the Corporation. See "Description of Securities
Warrants."
REGISTRATION AND TRANSFER
Unless otherwise provided in the Prospectus Supplement, each series of Debt
Securities will be issued only as Registered Securities. If so provided with
respect to a series of Debt Securities, however, Debt Securities of such series
will be issued only as Bearer Securities, or in a combination of both Registered
Securities and Bearer Securities. Debt Securities issued as Bearer Securities
shall have interest coupons attached unless issued as zero coupon securities.
(Sections 201, 301. All Section references herein are to the applicable
Indenture or Indentures.) If Bearer Securities are issued, the United States
federal income tax consequences and other special considerations, procedures and
limitations applicable to such Bearer Securities will be described in the
Prospectus Supplement.
Unless otherwise provided in the Prospectus Supplement, Registered
Securities may be presented for transfer (duly endorsed or accompanied by a
written instrument of transfer, if so required by the Corporation or the
Security Registrar) or exchanged for other Debt Securities of the same series at
the office of BancBoston Trust Company of New York in New York City or the
principal office of the Bank in Boston. Such transfer or exchange shall be made
without service charge, but the Corporation may require payment of any tax or
other governmental charge as described in the applicable Indenture. Any
provisions relating to the exchange of Bearer Securities for other Debt
Securities of the same series (including, if applicable, Registered Securities)
will be described in the Prospectus Supplement. Unless otherwise specified in
the Prospectus Supplement, Registered Securities will not be exchangeable for
Bearer Securities. (Sections 301, 305, 1002.)
Unless otherwise indicated in the Prospectus Supplement, Registered
Securities, other than Registered Securities issued in global form which may be
of any denomination, will be issued without coupons and in denominations of
$1,000 or integral multiples thereof, and Bearer Securities, other than Bearer
Securities issued in global form which may be of any denomination, will be
issued in a denomination of $5,000. (Sections 301, 302.)
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more global securities ("Global Securities") that will be
deposited with, or on behalf of, a depositary or common depositary (the "Common
Depositary") identified in the Prospectus Supplement. Global Securities may be
issued in either registered or bearer form and in either temporary or permanent
form. Unless and until it is exchanged in whole or in part for the individual
Debt Securities represented thereby, a Global Security may not be transferred
except as a whole by the Common Depositary for such Global Security to its
nominee or another nominee or by a nominee to the Common Depositary or another
nominee or by the Common Depositary or any nominee to a successor Common
Depositary or any nominee of such successor. (Sections 203, 303, 304.)
The specific terms of the depository arrangement with respect to a series
of Debt Securities and certain limitations and restrictions, including special
U.S. federal income tax consequences, relating to a series of Bearer Securities
in the form of one or more Global Securities, will be described in the
Prospectus Supplement.
Principal and interest payments on the Global Securities registered in the
name of the Common Depositary or its nominee will be made to the Common
Depositary or its nominee, as the case may be, as the registered owner of such
Global Securities. Under the terms of the Indentures, the Corporation and the
Paying Agents will treat the persons in whose names the Global Securities are
registered as the owners of such Global Securities for the purpose of receiving
payment of principal and interest on such Global Securities and for all other
purposes whatsoever. Therefore, neither the Corporation nor the Paying Agents
has any direct responsibility or liability for the payment of principal of or
interest on the Global Securities to owners of beneficial interests in the
Global Securities.
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PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the Prospectus Supplement, payment of
principal of and premium, if any, and interest, if any, on Registered Securities
will be made at the office of BancBoston Trust Company of New York in New York
City or at the principal office of the Bank in Boston, except that, at the
option of the Corporation, interest may be paid by mailing a check to the
address of the person entitled thereto as such address appears in the Security
Register. (Sections 301, 307, 1002.)
Unless otherwise indicated in the Prospectus Supplement, payment of
principal of and premium, if any, and interest, if any, on Bearer Securities
will be made, subject to any applicable laws and regulations, at such office
outside the United States as specified in the Prospectus Supplement and as the
Corporation may designate from time to time or by transfer to an account
maintained by the payee with a bank located outside the United States. Unless
otherwise indicated in the Prospectus Supplement, payment of interest on Bearer
Securities will be made only against surrender of the coupon relating to such
Interest Payment Date. No payment with respect to any Bearer Security will be
made at any office or agency of the Corporation in the United States or by check
mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States. (Sections 301, 307.)
RESTRICTION ON CERTAIN DISTRIBUTIONS
The Corporation has agreed in the Senior Indenture that it will not make
any payment or other distribution in shares of capital stock of the Bank or its
successor, unless the Bank or its successor unconditionally guarantees payment
when due of the principal of and premium, if any, and interest, if any, on the
Senior Securities issued pursuant to the Senior Indenture. (Section 1008.)
RESTRICTIONS ON LIENS
The Senior Indenture also prohibits the Corporation from, directly or
indirectly, creating, assuming, incurring or suffering to exist any Lien upon
any shares of capital stock of the Bank (other than directors' qualifying
shares) or any shares of capital stock of a Subsidiary which owns capital stock
of the Bank, except liens for taxes, assessments, judgments or other
governmental charges or levies that are not yet due or are payable without
penalty or of which the amount, applicability or validity is being contested in
good faith by appropriate proceedings and for which the Corporation shall set
aside on its books adequate reserves with respect thereto. (Section 1009.)
CONSOLIDATION, MERGER AND SALE OF ASSETS
Under each Indenture, the Corporation, without the consent of the Holders
of any of the Outstanding Debt Securities under the applicable Indenture, may
consolidate with or merge into any other corporation or convey, transfer or
lease its properties and assets substantially as an entirety to any Person
provided that: (i) the successor is a corporation organized and existing under
the laws of the United States, any state thereof or the District of Columbia;
(ii) the successor corporation expressly assumes, by an indenture supplemental
to the applicable Indenture, the Corporation's obligation for the due and
punctual payment of the principal of and premium, if any, and interest, if any,
on all of the Debt Securities under the applicable Indenture and the performance
of every covenant of the applicable Indenture; (iii) after giving effect to the
transaction, no Event of Default under the Senior Indenture and no Default under
the Subordinated Indenture, and no event which, after notice or lapse of time,
or both, would become an Event of Default or a Default, as the case may be,
shall have happened and be continuing; and (iv) certain other conditions are
met. (Section 801.)
MODIFICATION AND WAIVER
Each Indenture provides that modification or amendments of the Indentures
may be made by the Corporation and the Trustee, with the consent of the Holders
of 66 2/3 percent in principal amount of the Outstanding Debt Securities of each
series affected by such modification or amendment; provided, however, that no
such modification or amendment may, without the consent of the Holder of each
Outstanding Debt Security affected thereby: (a) change the Stated Maturity of
the principal of, or any installment of interest on, any Debt Security; (b)
reduce the principal amount of, or rate of interest, if any, on, or any premium
payable
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upon the redemption or (in the case of Subordinated Securities) exchange of any
Debt Security; (c) change any obligation of the Corporation to pay Additional
Amounts; (d) reduce the amount of principal of any Original Issue Discount
Security that would be due and payable upon a declaration of acceleration of the
Maturity thereof or the amount provable in bankruptcy; (e) adversely affect any
right of repayment at the option of any Holder of any Debt Security; (f) change
the place or Currency of, or (in the case of Subordinated Securities) class of
Capital Securities for, payment of principal of, or any premium or interest on,
any Debt Security; (g) impair the right to institute suit for the enforcement of
any payment on or with respect to any Debt Security on or after the Stated
Maturity thereof (or, in the case of redemption, exchange (in the case of
Subordinated Securities) or repayment at the option of the Holder, on or after
the Redemption Date, Exchange Date (in the case of Subordinated Securities) or
Repayment Date); (h) adversely affect the right to convert any Convertible
Security (in the case of Subordinated Securities); (i) reduce the percentage of
principal amount of Outstanding Debt Securities of any series, the consent of
whose Holders is required for modification or amendment of the Indentures, or
for waiver of compliance with certain provisions of the Indentures or for waiver
of certain defaults and their consequences, or reduce the requirements for
quorum or voting by the Holders; or (j) modify certain provisions of the
Indentures except to increase the percentage of Holders required to consent
thereon to amendment or modification thereof or to provide that certain other
Indenture provisions cannot be modified or waived without the consent of the
Holder of each Outstanding Debt Security affected thereby. (Section 902.)
The Holders of 66 2/3 percent in principal amount of the Outstanding Debt
Securities of each series may, on behalf of all Holders of Debt Securities of
that series, waive, insofar as that series is concerned, compliance by the
Corporation with certain terms, conditions, or provisions of the Indentures.
(Section 1011.) The Holders of not less than a majority in principal amount of
the Outstanding Debt Securities of any series may, on behalf of all Holders of
Debt Securities of that series, waive any past default under the applicable
Indentures with respect to Debt Securities of that series and its consequences,
except a default in the payment of principal (including, in the case of
Subordinated Securities, principal to be paid by delivery of Capital Securities)
or premium, if any, or interest, if any, or in respect of a covenant or
provision which under Article 9 of each Indenture cannot be modified or amended
without the consent of the Holder of each Outstanding Debt Security of such
series affected. (Section 513.)
Each Indenture provides that, in determining whether the Holders of the
requisite principal amount of the Outstanding Debt Securities have given any
request, demand, authorization, direction, notice, consent or waiver thereunder
or are present at a meeting of Holders for quorum purposes, and for making
calculations required under Section 313 of the Trust Indenture Act: (i) the
principal amount of an Original Issue Discount Security that may be counted in
making such determination or calculation and that shall be deemed to be
Outstanding shall be the amount of principal thereof that would be due and
payable as of the time of such determination upon acceleration of the Maturity
thereof; (ii) the principal amount of any Debt Security denominated in a Foreign
Currency that may be counted in making such determination or calculation and
that shall be deemed to be Outstanding for such purpose shall be the Dollar
equivalent, determined as of the date of original issuance of such Debt
Security, of the principal amount of such Debt Security (or, in the case of an
Original Issue Discount Security, the Dollar equivalent, determined as of the
date of original issuance of such Debt Security, of the amount determined as
provided in (i) above); and (iii) the principal amount of any Indexed Debt
Security that may be counted in making such determination or calculation and
that shall be deemed Outstanding for such purpose shall be equal to the
principal face amount of such Indexed Debt Security at original issuance, unless
otherwise provided with respect to such Debt Security. (Section 101.)
DEFEASANCE AND COVENANT DEFEASANCE
The Indentures provide that the Corporation may elect (1) to defease and be
discharged from its obligations with respect to any Debt Securities of or within
a series and any related coupons (except the obligations to pay any Additional
Amounts; to register the transfer of or exchange such Debt Securities and any
related coupons; to replace temporary or mutilated, destroyed, lost or stolen
Debt Securities and any related coupons; to maintain an office or agency in
respect of such Debt Securities and any related coupons; and to hold moneys for
payment in trust) ("defeasance") or (2) with respect to the Senior Indenture, to
be
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released from its obligations with respect to such Debt Securities and any
related coupons under Section 1009 of the Senior Indenture (the restriction
described above under "Restrictions on Liens") or, if provided pursuant to
Section 301 of the applicable Indenture, its obligations with respect to any
other covenant, and any omission to comply with such obligations shall not
constitute a default or an Event of Default under the Senior Indenture or a
Default under the Subordinated Indenture with respect to such Debt Securities
and any related coupons ("covenant defeasance"), in either case by (a)
depositing irrevocably with the Trustee as trust funds in trust (i) an amount in
such Currency or, with respect to the Subordinated Securities, a sum (including
Capital Securities, if any) in such Currency (or class of Capital Securities),
in which such Debt Securities and any related coupons are payable at Stated
Maturity, or (ii) Government Obligations (as defined below), in each case in an
amount which through the scheduled payment of principal of and premium, if any,
and interest, if any, in respect thereof in accordance with their terms will
provide, not later than one business day before the due date of any payment,
money in an amount or (iii) a combination of such Currency and Government
Obligations, sufficient to pay the principal (including in the case of
Subordinated Securities, principal to be paid by the delivery of Capital
Securities) of and premium, if any, and interest, if any, on the Debt Securities
of such series and any related coupons on the Stated Maturity of such principal
or installment of principal or interest and any mandatory sinking fund or
similar payments applicable to such Debt Securities and (b) satisfying certain
other conditions precedent specified in the Indentures. Such deposit and
termination is conditioned among other things upon the Corporation's delivery of
an Opinion of Counsel that the Holders of the Debt Securities of such series and
any related coupons will have no U.S. federal income tax consequences as a
result of such deposit and termination. (Senior Indenture, Article 14;
Subordinated Indenture, Article 15.)
If the Corporation exercises its covenant defeasance option with respect to
any series of Debt Securities and any related coupons and such Debt Securities
and related coupons are declared due and payable because of the occurrence of
any Event of Default other than with respect to a covenant as to which there has
been covenant defeasance described above, the money and Government Obligations
on deposit with the Trustee will be sufficient to pay amounts due on such Debt
Securities at their Stated Maturity but may not be sufficient to pay amounts due
on such Debt Securities and any related coupons at the time of acceleration
relating to such Event of Default. However, the Corporation would remain liable
to make payment of such amounts due at the time of acceleration.
The Prospectus Supplement may further describe the provisions, if any,
permitting such defeasance or covenant defeasance, including any modifications
to the provisions described above, with respect to the Debt Securities of or
within any particular series and any related coupons.
Unless otherwise specified in the Prospectus Supplement, "Government
Obligations" means securities that are (i) direct obligations of the government
which issued the Currency in which the Debt Securities of a particular series
are payable or (ii) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the government which issued the
Currency in which the Debt Securities of a particular series are payable, the
payment of which is unconditionally guaranteed by such government, which, in
either case, are full faith and credit obligations of such government payable in
such Currency and are not callable or redeemable at the option of the issuer
thereof, and also includes a depositary receipt issued by a bank or trust
company as custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of any such Government Obligation
held by such custodian for the account of the holder of a depositary receipt;
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depositary
receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest or principal of the Government
Obligation evidenced by such depositary receipt. (Section 101.)
REGARDING THE TRUSTEE
Norwest, the Trustee under the Indentures, has its principal corporate
trust office at Sixth Street and Marquette Avenue, Minneapolis, Minnesota 55479.
The Corporation and its banking subsidiaries maintain banking relationships with
the Trustee.
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SENIOR SECURITIES
The Senior Securities will be direct unsecured obligations of the
Corporation and will constitute Senior Indebtedness (as defined below under
"Subordinated Securities -- Subordination") ranking on a parity with the other
Senior Indebtedness of the Corporation.
EVENTS OF DEFAULT
The following will be Events of Default under the Senior Indenture with
respect to Senior Securities of any series: (a) failure to pay principal or
premium, if any, on any Senior Security of that series at Maturity; (b) failure
to pay any interest on any Senior Security of that series when due and payable,
continued for 30 days; (c) failure to deposit any sinking fund payment, when
due, in respect of any Senior Security of that series; (d) failure to perform
any covenant or warranty of the Corporation in the Senior Indenture (other than
a covenant or warranty included in the Senior Indenture solely for the benefit
of series of Senior Securities other than that series), continued for 60 days
after written notice as provided in the Senior Indenture; (e) default under any
bond, debenture, note, mortgage, indenture, other instrument or other evidence
of Indebtedness for Money Borrowed in an aggregate principal amount exceeding
$3,000,000 by the Corporation or the Bank or its successors (including a default
with respect to Senior Securities of another series) under the terms of the
instrument or instruments by or under which such indebtedness is evidenced,
issued or secured, which default results in the acceleration of such
indebtedness, if such acceleration is not rescinded or annulled, or such
indebtedness is not discharged, within ten days after written notice as provided
in the Senior Indenture; (f) certain events in bankruptcy, insolvency or
reorganization of the Corporation or the Bank; and (g) any other Event of
Default provided with respect to Senior Securities of that series. (Senior
Indenture, Section 501.)
If an Event of Default with respect to Senior Securities of any series at
the time Outstanding occurs and is continuing, either the Trustee or the Holders
of at least 25 percent in aggregate principal amount of the Outstanding Senior
Securities of that series may declare the principal amount (or, if the
Securities of that series are Original Issue Discount Senior Securities or
Indexed Securities, such portion of the principal amount of such Senior
Securities as may be specified in the terms thereof) of all the Senior
Securities of that series to be due and payable immediately, by a written notice
to the Corporation (and to the Trustee, if given by Holders), and upon any such
declaration such principal amount (or specified amount) shall become immediately
due and payable. At any time after a declaration of acceleration with respect to
Senior Securities of any series has been made, but before a judgment or decree
for payment of the money due has been obtained, the Holders of a majority in
principal amount of Outstanding Senior Securities of that series may, under
certain circumstances, rescind and annul such declaration and its consequences,
if all Events of Default have been cured, or if permitted, waived, and all
payments due (other than those due as a result of acceleration) have been made
or provided for. (Senior Indenture, Section 502.)
The Senior Indenture provides that, subject to the duty of the Trustee
during default to act with the required standard of care, the Trustee will be
under no obligation to exercise any of its rights or powers under the Senior
Indenture at the request or direction of any of the Holders of Senior Debt
Securities of any series or any related coupons, unless such Holders shall have
offered to the Trustee reasonable indemnity or security against the costs,
expenses and liabilities which may be incurred. (Senior Indenture, Section 602.)
Subject to certain provisions, the Holders of a majority in aggregate principal
amount of the Outstanding Senior Securities of any series will have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Senior Securities of that series. (Senior
Indenture, Section 512.)
The Corporation is required to deliver to the Trustee annually an Officers'
Certificate as to its performance and observance of any of the terms, provisions
and conditions with respect to certain provisions in the Senior Indenture and as
to the absence of default. (Senior Indenture, Section 1010.)
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SUBORDINATED SECURITIES
The Subordinated Securities will be direct, unsecured obligations of the
Corporation. The obligations of the Corporation pursuant to the Subordinated
Securities will be subordinate in right of payment to all Senior Indebtedness as
defined below under "Subordination."
Unless otherwise indicated in the applicable Prospectus Supplement, the
maturity of the Subordinated Securities will be subject to acceleration only in
the event of certain events of bankruptcy, insolvency or reorganization of the
Corporation or the receivership of the Bank. See "Events of Default; Defaults"
below.
SUBORDINATION
The obligation of the Corporation to make any payment on account of the
principal of or premium, if any, and interest, if any, on the Subordinated
Securities will be subordinate and junior in right of payment to the
Corporation's obligations to the Holders of Senior Indebtedness of the
Corporation to the extent described in the next paragraph. (Subordinated
Indenture, Section 1301.) "Senior Indebtedness" of the Corporation is defined in
the Subordinated Indenture to mean Indebtedness for Money Borrowed of the
Corporation and all Additional Senior Obligations, whether outstanding on the
date of execution of the Subordinated Indenture or thereafter created, assumed
or incurred, except "Indebtedness Ranking on a Parity with the Securities" or
"Indebtedness Ranking Junior to the Securities" and any deferrals, renewals or
extensions of such Senior Indebtedness. "Indebtedness for Money Borrowed" of the
Corporation is defined in the Subordinated Indenture as any obligation of, or
any obligation guaranteed by, the Corporation for the repayment of borrowed
money, whether or not evidenced by bonds, debentures, notes or other written
instruments, and any deferred obligations for the payment of the purchase price
of property or assets, except Additional Senior Obligations. "Additional Senior
Obligations" of the Corporation are defined in the Subordinated Indenture to
mean, unless otherwise determined with respect to any series of Subordinated
Securities, all obligations of the Corporation associated with derivative
products such as interest rate and foreign exchange rate contracts, commodity
contracts and similar arrangements, except Indebtedness for Money Borrowed.
"Indebtedness Ranking on a Parity with the Securities" is defined in the
Subordinated Indenture to mean Indebtedness for Money Borrowed of the
Corporation, whether outstanding on the date of execution of the Subordinated
Indenture or thereafter created, assumed or incurred, which specifically by its
terms ranks equally with and not prior to the Subordinated Securities in the
right of payment upon the happening of any event of the kind specified in the
next paragraph. The indentures of the Corporation governing the subordinated
indebtedness issued by the Corporation listed in items (i) through (v) in the
immediately succeeding sentence do not include Additional Senior Obligations in
the definition of Senior Indebtedness of the Corporation. Additional Senior
Obligations was added to the definition of Senior Indebtedness of the
Corporation in the Subordinated Indenture by the First Supplemental Indenture.
Indebtedness Ranking on a parity with the Securities includes the Corporation's
(i) 10.30% Subordinated Notes due September 1, 2000, issued under an indenture,
dated as of July 15, 1988, between the Corporation and Chemical Bank as Trustee;
(ii) Subordinated Floating Rate Notes Due 2001, issued under a Fiscal and Paying
Agency Agreement, dated as of February 10, 1986, between the Corporation and
Bankers Trust Company, as fiscal agent; (iii) 9 1/2% Subordinated Capital Notes
Due 1997, issued under an indenture, dated as of June 15, 1987, between the
Corporation and The Philadelphia National Bank, as Trustee; (iv) Floating Rate
Subordinated Notes Due 1998, issued pursuant to a Fiscal and Paying Agency
Agreement, dated as of August 26, 1986, between the Corporation and Morgan
Guaranty Trust Company of New York, as fiscal agent; (v) 7 3/4% Convertible
Subordinated Debentures Due 2011, issued pursuant to an indenture, dated as of
January 15, 1986, between the Corporation and Manufacturers Hanover Trust
Company, as successor Trustee; (vi) 6 7/8% Subordinated Notes Due 2003, issued
under the Subordinated Indenture on June 30, 1993; (vii) 6 5/8% Subordinated
Notes Due 2005, issued under the Subordinated Indenture on November 22, 1993;
and (viii) 6 5/8% Subordinated Notes Due 2004, issued under the Subordinated
Indenture on January 12, 1994. "Indebtedness Ranking Junior to the Securities"
is defined in the Subordinated Indenture to mean any Indebtedness for Money
Borrowed of the Corporation, whether outstanding on the date of execution of the
Subordinated Indenture or thereafter created, assumed or incurred, which
specifically by its terms ranks junior to and not equally with or prior to the
Subordinated Securities (and any other Indebtedness Ranking on a Parity with the
Subordinated Securities) in right of payment upon the happening of any event of
the kind specified in the next paragraph. (Subordinated Indenture, Section 101.)
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In the case of any bankruptcy, insolvency, receivership, conservatorship,
reorganization, readjustment of debt, marshalling of assets and liabilities or
similar proceedings or any liquidation or winding up of or relating to the
Corporation as a whole, whether voluntary or involuntary, all obligations of the
Corporation to Holders of Senior Indebtedness of the Corporation (other than
Additional Senior Obligations) shall be entitled to be paid in full before any
payment shall be made on account of the principal (including principal to be
paid by delivery of Capital Securities) of, or premium, if any, or interest, if
any, on the Subordinated Securities of any series. In the event of any such
proceeding, after payment in full of all sums owing with respect to Senior
Indebtedness of the Corporation (other than Additional Senior Obligations), the
Holders of the Subordinated Securities of any series, together with the Holders
of any Indebtedness Ranking on a Parity with the Subordinated Securities, shall
be entitled, ratably, to be paid from the remaining assets of the Corporation
the amounts at the time due and owing on account of unpaid principal (including
principal to be paid by delivery of Capital Securities) of, and premium, if any,
and interest, if any, on the Subordinated Securities of such series and on any
indebtedness Ranking on a Parity with the Subordinated Securities before any
payment or other distribution, whether in cash, property or otherwise, shall be
made on account of any capital stock or any Indebtedness Ranking Junior to the
Securities; provided, however, that if after payment in full of all sums owing
with respect to Senior Indebtedness of the Corporation (other than Additional
Senior Obligations) any amount of cash, property or securities remains available
for payment or distribution in respect of the Subordinated Securities ("Excess
Proceeds") and creditors in respect of Additional Senior Obligations have not
received payment in full of amounts due or to become due thereon or payments of
such amounts have not been provided for, then such Excess Proceeds shall be
applied to payment in full of the Additional Senior Obligations before any
payment is made on the Subordinated Securities. (Subordinated Indenture, Section
1301.) In the event and during the continuation of any default in the payment of
principal (including principal to be paid by delivery of Capital Securities) of,
or premium, if any, or interest, if any, on, any Senior Indebtedness (other than
Additional Senior Obligations) beyond any applicable grace period, or in the
event that any event of default with respect to any Senior Indebtedness (other
than Additional Senior Obligations) shall have occurred and be continuing, or
would occur as a result of certain payments, permitting the holders of such
Senior Indebtedness (or a trustee on behalf of the holders thereof) to
accelerate the maturity thereof, then, unless and until such default or event of
default shall have been cured or waived or shall have ceased to exist, no
payment of principal (including principal to be paid by delivery of Capital
Securities) of, or premium, if any, or interest, if any, on the Subordinated
Securities, or in respect of any redemption, exchange, retirement, purchase or
other acquisition of any of the Subordinated Securities, shall be made by the
Corporation. (Subordinated Indenture, Section 1303.)
By reason of such subordination in favor of the Holders of Senior
Indebtedness of the Corporation (including to the extent set forth above,
Additional Senior Obligations), in the event of the insolvency of the
Corporation, Holders of Senior Indebtedness of the Corporation may receive more,
ratably, and Holders of the Subordinated Securities having a claim pursuant to
the Subordinated Securities may receive less, ratably, than the other creditors
of the Corporation.
EVENTS OF DEFAULT; DEFAULTS
The following will be Events of Default under the Subordinated Indenture
with respect to Subordinated Securities of any series: (a) certain events in
bankruptcy, insolvency or reorganization of the Corporation or the receivership
of the Bank; and (b) any other Event of Default provided with respect to
Subordinated Securities of that series. (Subordinated Indenture, Section 501.)
If an Event of Default with respect to Subordinated Securities of any
series at the time Outstanding occurs and is continuing, the Trustee or the
Holders of at least 25 percent in aggregate principal amount of the Outstanding
Subordinated Securities of that series may declare the principal amount (or, if
any of the Subordinated Securities of that series are Original Issue Discount
Subordinated Securities or Indexed Securities, such portion of the principal
amount of such Subordinated Securities as may be specified in the terms thereof)
of all the Subordinated Securities of that series to be due and payable
immediately, by a written notice to the Corporation (and to the Trustee, if
given by Holders), and upon any such declaration such principal amount (or
specified amount) shall become immediately due and payable. (Subordinated
Indenture, Section 502.) The foregoing provision would, in the event of the
bankruptcy or insolvency of the
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Corporation, be subject as to enforcement to the broad equity powers of a
Federal bankruptcy court and to the determination by that court of the nature
and status of the payment claims of the Holders of the Subordinated Securities.
At any time after a declaration of acceleration with respect to the Subordinated
Securities of any series has been made, but before a judgment or decree for
payment of the money due has been obtained, the Holders of a majority in
principal amount of Outstanding Subordinated Securities of that series may,
under certain circumstances, rescind and annul such acceleration but only if all
Defaults have been remedied, or if permitted, waived and if certain other
conditions have been satisfied. (Subordinated Indenture, Section 502.)
The following events will be Defaults under the Subordinated Indenture with
respect to Subordinated Securities of any series: (a) an Event of Default with
respect to such series of Subordinated Securities; (b) failure to pay principal
(including the delivery of any Capital Securities in exchange for or upon the
conversion of Subordinated Securities) or premium, if any, on any Subordinated
Security of that series at Maturity; (c) failure to pay any interest, if any, on
any Subordinated Security of that series when due and payable, continued for 30
days; (d) failure to deposit any sinking fund payment, when due, in respect of
any Subordinated Security of that series; (e) failure to perform any covenant or
warranty of the Corporation in the Subordinated Indenture (other than a covenant
or warranty included in the Subordinated Indenture solely for the benefit of
series of Subordinated Securities other than that series), continued for 60 days
after written notice as provided in the Subordinated Indenture; (f) default
under any bond, debenture, note, mortgage, indenture, other instruments or other
evidence of Indebtedness for Money Borrowed (including a default with respect to
Subordinated Securities of another series) in an aggregate principal amount
exceeding $3,000,000 by the Corporation or the Bank or its successors under the
terms of the instrument or instruments by or under which such indebtedness is
evidenced, issued or secured, which default results in the acceleration of such
indebtedness, if such acceleration is not rescinded or annulled, or such
indebtedness is not discharged, within ten days after written notice as provided
in the Subordinated Indenture; and (g) any other default provided with respect
to Subordinated Securities of that series. (Subordinated Indenture, Section
507.)
Unless otherwise provided in the terms of a series of Subordinated
Securities, there will be no right of acceleration of the payment of principal
of the Subordinated Securities of such series upon a default in the payment
(including any obligation to exchange Capital Securities for Subordinated
Securities of such series) of principal of or premium, if any, or interest, if
any, or a default in the performance of any covenant or agreement in the
Subordinated Securities or the Subordinated Indenture. If a Default with respect
to the Subordinated Securities of any series occurs and is continuing, the
Trustee may, subject to certain limitations and conditions, seek to enforce its
rights and the rights of the Holders of Subordinated Securities of such series
or the performance of any covenant or agreement in the Subordinated Indenture.
(Subordinated Indenture, Section 503.)
The Subordinated Indenture provides that, subject to the duty of the
Trustee upon the occurrence of a Default to act with the required standard of
care, the Trustee will be under no obligation to exercise any of its rights or
powers under the Subordinated Indenture at the request or direction of any of
the Holders of Subordinated Securities of any series or any related coupons
unless such Holders shall have offered to the Trustee reasonable indemnity or
security against the costs, expenses and liabilities which may be incurred.
(Subordinated Indenture, Section 602.) Subject to certain provisions, the
Holders of a majority in aggregate principal amount of the Outstanding
Subordinated Securities of any series will have the right to direct the time,
method, and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee, with respect
to the Subordinated Securities of that series. (Subordinated Indenture, Section
512.)
The Corporation is required to furnish to the Trustee annually an Officer's
Certificate as to the performance and observance by the Corporation of certain
of the terms, provisions and conditions under the Subordinated Indenture and as
to the absence of default. (Subordinated Indenture, Section 1010.)
CONVERSION
The Holders of Subordinated Securities of a specified series that are
convertible into Capital Securities ("Subordinated Convertible Securities") will
be entitled at certain times specified in the Prospectus Supplement relating to
such Subordinated Convertible Securities, subject to prior redemption, exchange,
repayment or repurchase, to convert any Subordinated Convertible Securities of
such series into Capital
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Securities, at the conversion price set forth in such Prospectus Supplement,
subject to adjustment and to such other terms as are set forth in such
Prospectus Supplement.
EXCHANGEABILITY
The Holders of Subordinated Securities of any series may be obligated at
any time or at Maturity to exchange them for Capital Securities of the
Corporation. The terms of any such exchange and any such Capital Securities will
be described in the Prospectus Supplement relating to such series of
Subordinated Securities. The Common Stock, Preferred Stock, and Capital
Securities of the Corporation are described below under "Description of Common
Stock," "Description of Preferred Stock," and "Description of Capital
Securities," respectively.
DESCRIPTION OF PREFERRED STOCK
The following summary contains a description of certain general terms of
the Corporation's Preferred Stock to which any Prospectus Supplement may relate.
Certain terms of any series of the Preferred Stock offered by any Prospectus
Supplement will be described in the Prospectus Supplement relating thereto. If
so indicated in the Prospectus Supplement, the terms of any series may differ
from the terms set forth below. The description of certain provisions of the
Preferred Stock does not purport to be complete and is subject to and qualified
in its entirety by reference to the provisions of the Corporation's Restated
Articles of Organization (the "Articles"), and the Certificate of Vote of
Directors Establishing a Series of a Class of Stock (the "Certificate") relating
to each particular series of the Preferred Stock, which will be filed with the
Commission at or prior to the time of the sale of such Preferred Stock.
GENERAL
Under the Corporation's Articles, the Board of Directors of the Corporation
is authorized, without further stockholder action, to provide for the issuance
of up to 10,000,000 shares of preferred stock, without par value, in one or more
series, with such designations or titles; dividend rates; special or relative
rights in the event of liquidation, distribution or sale of assets or
dissolution or winding up of the Corporation; any sinking fund provisions; any
redemption or purchase account provisions; any conversion provisions; and any
voting rights thereof, as shall be set forth as and when established by the
Board of Directors of the Corporation. The shares of any series of Preferred
Stock will be, when issued, fully paid and non-assessable and holders thereof
shall have no preemptive rights in connection therewith.
The liquidation preference of any series of the Preferred Stock is not
necessarily indicative of the price at which shares of such series of Preferred
Stock will actually trade at or after the time of their issuance. The market
price of any series of Preferred Stock can be expected to fluctuate with changes
in market and economic conditions, the financial condition and prospects of the
Corporation and other factors that generally influence the market prices of
securities.
The shares of outstanding Preferred Stock are fully paid and
non-assessable. Section 45 of Chapter 156B of the Massachusetts General Laws
("MGL") provides that stockholders to whom a corporation makes any distribution,
whether by way of dividend, repurchase or redemption of stock or otherwise
(other than a distribution of stock of the corporation) if the corporation is,
or is thereby rendered, insolvent shall be liable to the corporation for the
amount of such distribution made, or for the amount of such distribution which
exceeds that which could have been made without rendering the corporation
insolvent, but in either event, only to the extent of the amount paid or
distributed to such stockholders, respectively.
RANK
Any series of the Preferred Stock will, with respect to dividend rights and
rights on liquidation, winding up and dissolution, rank (i) senior to all
classes of common stock and the Junior Participating Preferred Stock, Series D,
of the Corporation and with all equity securities issued by the Corporation, the
terms of which specifically provide that such equity securities will rank junior
to the Preferred Stock (collectively referred to as the "Junior Securities");
(ii) on a parity with all equity securities issued by the Corporation, the terms
of
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which specifically provide that such equity securities will rank on a parity
with the Preferred Stock, including the Corporation's five series outstanding:
Adjustable Rate Cumulative Preferred Stock, Series A, B and C, 8.60% Cumulative
Preferred Stock, Series E, and 7 7/8% Cumulative Preferred Stock, Series F
(collectively referred to as the "Parity Securities"); and (iii) junior to all
equity securities issued by the Corporation, the terms of which specifically
provide that such equity securities will rank senior to the Preferred Stock
(collectively referred to as the "Senior Securities"). As used in any
Certificate for these purposes, the term "equity securities" will not include
debt securities convertible into or exchangeable for equity securities.
DIVIDENDS
Holders of each series of Preferred Stock will be entitled to receive,
when, as and if declared by the Board of Directors of the Corporation, out of
funds legally available therefor, cash dividends at such rates and on such dates
as are set forth in the Prospectus Supplement relating to such series of the
Preferred Stock. Dividends will be payable to holders of record of the Preferred
Stock as they appear on the books of the Corporation (or, if applicable, the
records of the Depositary referred to below under "Depositary Shares") on such
record dates, as shall be fixed by the Board of Directors. Dividends on any
series of Preferred Stock may be cumulative or non-cumulative.
No full dividends may be declared or paid or funds set apart for the
payment of dividends on any Parity Securities unless dividends shall have been
paid or set apart for such payment on the Preferred Stock. If full dividends are
not so paid, the Preferred Stock shall share dividends pro rata with the Parity
Securities. If dividends are cumulative, any accumulated unpaid dividends will
not bear interest.
CONVERSION
The Prospectus Supplement for any series of the Preferred Stock will state
the terms, if any, on which shares of that series are convertible into shares of
another series of Preferred Stock or Capital Securities.
For any series of Preferred Stock which is convertible, the Corporation
shall at all times reserve and keep available, free from preemptive rights, out
of the aggregate of its authorized but unissued Preferred Stock or Capital
Securities or shares held in its treasury or both, for the purpose of effecting
the conversion of the shares of such series of Preferred Stock, the full number
of shares of Preferred Stock or Capital Securities then deliverable upon the
conversion of all outstanding shares of such series.
No fractional shares or scrip representing fractional shares of Preferred
Stock or Capital Securities will be issued upon the conversion of shares of any
series of convertible Preferred Stock. Each holder to whom fractional shares
would otherwise be issued will instead be entitled to receive, at the
Corporation's election, either (a) a cash payment equal to the current market
price of such holder's fractional interest or (b) a cash payment equal to such
holder's proportionate interest in the net proceeds (following the deduction of
applicable transaction costs) from the sale promptly by an agent, on behalf of
such holders, of shares of Preferred Stock or Capital Securities representing
the aggregate of such fractional shares.
The holders of any series of shares of Preferred Stock at the close of
business on a dividend payment record date will be entitled to receive the
dividend payable on such shares (except that holders of shares called for
redemption on a redemption date occurring between such record date and the
dividend payment date shall not be entitled to receive such dividend on such
dividend payment date but instead will receive accrued and unpaid dividends to
such redemption date) on the corresponding dividend payment date notwithstanding
the conversion thereof or the Corporation's default in payment of the dividend
due. Except as provided above, the Corporation will make no payment or allowance
for unpaid dividends, whether or not in arrears, on converted shares or for
dividends on the shares of Preferred Stock or Capital Securities issued upon
conversion.
EXCHANGEABILITY
The holders of shares of Preferred Stock of any series may be obligated at
any time or at maturity to exchange such shares for Capital Securities or other
debt securities of the Corporation. The terms of any such exchange and any such
Capital Securities or other debt securities will be described in the Prospectus
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Supplement relating to such series of Preferred Stock. The Capital Securities of
the Corporation are described below under "Description of Capital Securities."
REDEMPTION
A series of Preferred Stock may be redeemable at any time, in whole or in
part, at the option of the Corporation or the holder thereof upon terms and at
the redemption prices set forth in the Prospectus Supplement relating to such
series.
In the event of partial redemptions of Preferred Stock, whether by
mandatory or optional redemption, the shares to be redeemed will be determined
by lot or pro rata, as may be determined by the Board of Directors of the
Corporation or by any other method determined to be equitable by the Board of
Directors.
On and after a redemption date, unless the Corporation defaults in the
payment of the redemption price, dividends will cease to accrue on shares of
Preferred Stock called for redemption and all rights of holders of such shares
will terminate except for the right to receive the redemption price.
Under current regulations, bank holding companies may not exercise any
option to redeem shares of preferred stock without the prior approval of the
Board of Governors. Ordinarily, the Board of Governors would not permit such a
redemption unless (1) the shares are redeemed with the proceeds of a sale by the
bank holding company of common stock or perpetual preferred stock or (2) the
Board of Governors determines that a bank holding company's capital position
after such redemption would clearly be adequate and that its condition and
circumstances warrant the reduction of a source of permanent capital.
LIQUIDATION PREFERENCE
Upon any voluntary or involuntary liquidation, dissolution or winding up of
the Corporation, holders of each series of Preferred Stock that ranks senior to
the Junior Securities will be entitled to receive out of assets of the
Corporation available for distribution to stockholders, before any distribution
is made on any Junior Securities, including Common Stock, distributions upon
liquidation in the amount set forth in the Prospectus Supplement relating to
such series of Preferred Stock, plus an amount equal to any accrued and unpaid
dividends. If upon any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the amounts payable with respect to the Preferred
Stock of any series and any other Parity Securities are not paid in full, the
holders of the Preferred Stock of such series and the Parity Securities will
share ratably in any such distribution of assets of the Corporation in
proportion to the full liquidation preferences to which each is entitled. After
payment of the full amount of the liquidation preference to which they are
entitled, the holders of such series of Preferred Stock will not be entitled to
any further participation in any distribution of assets of the Corporation.
However, neither (i) the merger or consolidation of the Corporation with or into
one or more corporations pursuant to any statute which provides in effect that
the stockholders of the Corporation shall continue as stockholders of the
continuing or combined corporation nor (ii) the acquisition by the Corporation
of assets or stock of another corporation shall be deemed to be a voluntary or
involuntary liquidation, dissolution or winding up of the Corporation.
VOTING RIGHTS
Except as indicated below or in the Prospectus Supplement relating to a
particular series of Preferred Stock, or except as expressly required by
applicable law, the holders of the Preferred Stock will have no voting rights.
Under Massachusetts law, a corporation may not amend its articles of
organization so as to adversely affect the rights of any class or series of its
stock without the affirmative vote of at least two-thirds (or a lesser
proportion, but not less than a majority, if so provided in the corporation's
articles of organization) of the shares of such class or series, with all series
of a class of stock which are adversely affected in the same manner voting
together as one class and any other series, which is adversely affected in a
manner different from other series of the same class, voting as a separate
class.
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Under regulations adopted by the Board of Governors, if the holders of
shares of any series of Preferred Stock of the Corporation became entitled to
vote for the election of directors, such series may then be deemed a "class of
voting securities" and a holder of 25% or more of such series (or a holder of 5%
if it otherwise exercises a "controlling influence" over the Corporation) may
then be subject to regulation as a bank holding company in accordance with the
Bank Holding Company Act of 1956, as amended. In addition, at such time as such
series is deemed a class of voting securities, (i) any other bank holding
company may be required to obtain the approval of the Board of Governors to
acquire or retain 5% or more of such series, and (ii) any person other than a
bank holding company may be required to obtain the approval of the Board of
Governors under the Change in Bank Control Act to acquire or retain 10% or more
of such series.
PREFERRED STOCK OUTSTANDING
The Corporation has issued and outstanding five series of Preferred Stock:
Adjustable Rate Cumulative Preferred Stock (Series A, Series B and Series C),
8.60% Cumulative Preferred Stock, Series E, and 7 7/8% Cumulative Preferred
Stock, Series F. The Series A, B and C Preferred Stock are issued as whole
shares, and the Series E and Series F Preferred Stock are issued as fractional
shares represented by depositary shares ("Depositary Shares"). Each Depositary
Share represents a one-tenth interest in a share of Series E or Series F
Preferred Stock. The shares of Series E and Series F Preferred Stock underlying
the Depositary Shares are deposited with the Bank, as Depositary (the
"Depositary"), under Deposit Agreements (the "Deposit Agreement"), among the
Corporation, the Depositary and the holders from time to time of the depositary
receipts issued by the Depositary thereunder (the "Depositary Receipts"). The
Depositary Receipts evidence the Depositary Shares. Subject to the terms of the
Deposit Agreement, each owner of a Depositary Share is entitled through the
Depositary, in proportion to the one-tenth interest in a share of Series E or
Series F Preferred Stock underlying such Depositary Share, to all rights and
preferences of a share of Series E or Series F Preferred Stock (including
dividend, voting, redemption and liquidation rights).
As of December 31, 1993, 4,593,941 shares of Preferred Stock were issued
and outstanding with an aggregate liquidation preference of $508.4 million.
Holders of the outstanding Preferred Stock (or, Depositary Shares, in the case
of the Series E and Series F Preferred Stock) have no preemptive rights with
respect to shares of any other series of Preferred Stock or with respect to
shares of the Corporation's Common Stock. The outstanding Preferred Stock, and
in the case of the Series E and Series F Preferred Stock, the Depositary Shares,
are listed on the NYSE and BSE. The Bank is the registrar, transfer agent and
dividend disbursing agent for the outstanding Preferred Stock and the Depositary
Shares.
The shares of outstanding Preferred Stock are fully paid and
non-assessable, subject to the provisions of Section 45 of the MGL. See
"DESCRIPTION OF PREFERRED STOCK -- General."
DIVIDENDS. Holders of shares (or Depositary Shares, in the case of Series
E and Series F Preferred Stock) of each series of outstanding Preferred Stock
are entitled to cumulative dividends, when, as and if declared by the
Corporation's Board of Directors. Dividends on the existing Preferred Stock must
be paid or set apart for payment before any dividends can be paid to holders of
equity securities which by their terms rank junior to the Preferred Stock,
including the Corporation's Common Stock. Dividends on the outstanding Preferred
Stock are payable in arrears on the 15th day of March, June, September and
December in each year in which the Preferred Stock is outstanding.
LIQUIDATION AND REDEMPTION. In the event of any voluntary or involuntary
liquidation, distribution or sale of assets, dissolution or winding up of the
Corporation, the holders of each share of outstanding Preferred Stock shall be
entitled to receive, prior to any payment upon the Corporation's Common Stock,
cash in the amount of $50 in the case of the Series A and Series B Preferred
Stock, cash in the amount of $100 in the case of the Series C Preferred Stock
and cash in the amount of $250 in the case of the Series E and Series F
Preferred Stock (equivalent to $25 per Depositary Share). The outstanding
Preferred Stock is subject to partial or complete redemption at the option of
the Corporation, with the prior approval of the Federal Reserve Board (if such
approval is required at the time of redemption), except that the Series E and
Series F Preferred Stock are not redeemable prior to September 15, 1997 and July
15, 1998, respectively.
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VOTING. Holders of outstanding Preferred Stock have no general voting
rights. However, during any period in which dividends on a series of outstanding
Preferred Stock are cumulatively in arrears in the amount of six or more full
quarterly dividends, the holders of shares of such series, shall be entitled (by
series, voting as a single class) to elect one director who shall serve until
such time as the arrearage in the payment of dividends has been cured.
DEPOSITARY SHARES
GENERAL. The Corporation may, at its option, elect to offer fractional
shares of Preferred Stock, rather than full shares of Preferred Stock. In the
event such option is exercised, the Corporation will issue receipts for
Depositary Shares, each of which will represent a fraction (to be set forth in
the Prospectus Supplement relating to a particular series of Preferred Stock) of
a share of a particular series of Preferred Stock as described below.
The shares of any series of Preferred Stock represented by Depositary
Shares will be deposited under a Deposit Agreement (the "Deposit Agreement")
between the Corporation and a bank or trust company selected by the Corporation
having its principal office in the United States and having a combined capital
and surplus of at least $50,000,000 (the "Depositary"). Subject to the terms of
the Deposit Agreement, each owner of a Depositary Share will be entitled, in
proportion to the applicable fraction of a share of Preferred Stock represented
by such Depositary Share, to all the rights and preferences of the Preferred
Stock represented thereby (including dividend, voting, redemption, conversion
and liquidation rights).
The Depositary Shares will be evidenced by depositary receipts issued
pursuant to the Deposit Agreement ("Depositary Receipts"). Depositary Receipts
will be distributed to those persons purchasing the fractional shares of
Preferred Stock in accordance with the terms of the offering. The forms of
Deposit Agreement and Depositary Receipt are filed as exhibits to the
Registration Statement, and the following summary is qualified in its entirety
by reference to such exhibits.
Pending the preparation of definitive Depositary Receipts, the Depositary
may, upon the written order of the Corporation or any holder of Preferred Stock,
execute and deliver temporary Depositary Receipts which are substantially
identical to, and entitle the holders thereof to all the rights pertaining to,
the definitive Depositary Receipts. Definitive Depositary Receipts will be
prepared thereafter without unreasonable delay, and temporary Depositary
Receipts will be exchangeable for definitive Depositary Receipts at the
Corporation's expense.
DIVIDENDS AND OTHER DISTRIBUTIONS. The Depositary will distribute cash
dividends or other cash distributions received in respect of the Preferred Stock
to the record holders of Depositary Shares relating to such Preferred Stock in
proportion to the numbers of such Depositary Shares owned by such holders.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Shares
entitled thereto. If the Depositary determines that it is not feasible to make
such distribution, it may, with the approval of the Corporation, sell such
property and distribute the net proceeds from such sale to such holders.
REDEMPTION OR EXCHANGE OF STOCK. If a series of Preferred Stock
represented by Depositary Shares is to be redeemed or exchanged, the Depositary
Shares will be redeemed from the proceeds received by the Depositary resulting
from the redemption, in whole or in part, of such series of Preferred Stock held
by the Depositary, or exchanged for the Capital Securities or other debt
securities to be issued in exchange for the Preferred Stock (as the case may be,
in accordance with the terms of such series of Preferred Stock). The Depositary
Shares will be redeemed or exchanged by the Depositary at a price per Depositary
Share equal to the applicable fraction of the redemption price per share or
market value of Capital Securities or other debt securities per Depositary Share
paid in respect of the shares of Preferred Stock so redeemed or exchanged.
Whenever the Corporation redeems or exchanges shares of Preferred Stock held by
the Depositary, the Depositary will redeem or exchange as of the same date the
number of Depositary Shares representing shares of Preferred Stock so redeemed
or exchanged. If fewer than all the Depositary Shares are to be redeemed or
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<PAGE> 24
exchanged, the Depositary Shares to be redeemed or exchanged will be selected by
the Depositary by lot or pro rata or by any other equitable method as may be
determined by the Corporation.
WITHDRAWAL OF STOCK. Any holder of Depositary Shares may, upon surrender
of the Depositary Receipts therefor to the Depositary, receive the number of
whole shares of the related series of Preferred Stock and any money or other
property represented by such Depositary Receipts. Holders of Depositary Shares
making such withdrawals will be entitled to receive whole shares of Preferred
Stock on the basis set forth in the related Prospectus Supplement for such
series of Preferred Stock, but holders of such whole shares of Preferred Stock
will not thereafter be entitled to deposit such Preferred Stock under the
Deposit Agreement or to receive Depositary Receipts therefor. If the Depositary
Shares surrendered by the holder in connection with such withdrawal exceed the
number of Depositary Shares that represent the number of whole shares of
Preferred Stock to be withdrawn, the Depositary will deliver to such holder at
the same time a new Depositary Receipt evidencing such excess number of
Depositary Shares.
VOTING THE PREFERRED STOCK. Upon receipt of notice of any meeting at which
the holders of the Preferred Stock are entitled to vote, the Depositary will
mail the information contained in such notice of meeting to the record holders
of the Depositary Shares relating to such Preferred Stock. Each record holder of
such Depositary Shares on the record date (which will be the same date as the
record date of the Preferred Stock) will be entitled to instruct the Depositary
as to the exercise of the voting rights pertaining to the amount of the
Preferred Stock represented by such holder's Depositary Shares. The Depositary
will endeavor, insofar as practicable, to vote the amount of the Preferred Stock
represented by such Depositary Shares in accordance with such instructions, and
the Corporation will agree to take all reasonable actions which may be deemed
necessary by the Depositary in order to enable the Depositary to do so. The
Depositary will abstain from voting shares of the Preferred Stock to the extent
it does not receive specific instructions from the holder of Depositary Shares
representing such Preferred Stock.
CONVERSION RIGHTS. Any holder of Depositary Shares, upon surrender of the
Depositary Receipts therefor and delivery of instructions to the Depositary, may
cause the Corporation to convert any specified number of whole or fractional
shares of Preferred Stock represented by the Depositary Shares into the number
of whole shares of Capital Securities or other preferred stock (as the case may
be, in accordance with the terms of such series of the Preferred Stock) of the
Corporation obtained by dividing the aggregate liquidation preference of such
Depositary Shares by the Conversion Price (as such term is defined in the
Certificate) then in effect, as such Conversion Price may be adjusted by the
Corporation from time to time as provided in the Certificate. In the event that
a holder delivers Depositary Receipts to the Depositary for conversion which in
the aggregate are convertible either into less than one whole share of such
Capital Securities or other preferred stock or into any number of whole shares
of such Capital Securities or other preferred stock plus an excess constituting
less than one whole share of such Capital Securities or other preferred stock,
the holder shall receive payment in lieu of such fractional shares.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT. The form of Depositary
Receipt evidencing the Depositary Shares and any provision of the Deposit
Agreement may at any time be amended by agreement between the Corporation and
the Depositary. However, any amendment which materially and adversely alters the
rights of the holders of Depositary Shares will not be effective unless such
amendment has been approved by the holders of at least a majority of the
Depositary Shares then outstanding. The Deposit Agreement automatically
terminates if (i) all outstanding Depositary Shares have been redeemed; or (ii)
each share of Preferred Stock has been converted into Capital Securities or
other preferred stock or has been exchanged for Capital Securities or other debt
securities; or (iii) there has been a final distribution in respect of the
Preferred Stock in connection with any liquidation, dissolution or winding up of
the Corporation and such distribution has been distributed to the holders of
Depositary Shares. The Deposit Agreement also may be terminated by the
Corporation at any time upon 60 days prior written notice to the Depositary, in
which case the Depositary will deliver to the record holders, upon surrender of
the Depositary Receipts, such number of whole or fractional shares of Preferred
Stock represented by such Depositary Receipts.
CHARGES OF DEPOSITARY. The Corporation will pay all transfer and other
taxes and governmental charges arising solely from the existence of the
depositary arrangements. The Corporation will pay all charges of the
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<PAGE> 25
Depositary in connection with the initial deposit of the Preferred Stock and the
initial issuance of the Depositary Shares, all withdrawals of shares of
Preferred Stock by owners of Depositary Shares, and any redemption or exchange
of the Preferred Stock. Holders of Depositary Shares will pay other transfer and
other taxes and governmental charges and such other charges or expenses as are
expressly provided in the Deposit Agreement to be for their accounts.
MISCELLANEOUS. The Depositary will forward all reports and communications
from the Corporation which are delivered to the Depositary and which the
Corporation is required to furnish to the holders of the Preferred Stock.
Neither the Depositary nor the Corporation will be liable if it is
prevented or delayed by law or any circumstance beyond its control in performing
its obligations under the Deposit Agreement. The obligations of the Corporation
and the Depositary under the Deposit Agreement will be limited to performance in
good faith of their duties thereunder and they will not be obligated to
prosecute or defend any legal proceeding in respect of any Depositary Shares of
Preferred Stock unless satisfactory indemnity is furnished. They may rely upon
written advice of counsel or accountants, or upon information provided by
persons presenting Preferred Stock for deposit, holders of Depositary Receipts
or other persons believed to be competent and on documents believed to be
genuine.
RESIGNATION AND REMOVAL OF DEPOSITARY. The Depositary may resign at any
time by delivering to the Corporation notice of its election to do so, and the
Corporation may at any time remove the Depositary, any such resignation or
removal to take effect upon the appointment of a successor Depositary and its
acceptance of such appointment. Such successor Depositary must be appointed
within 60 days after delivery of the notice of resignation or removal and must
be a bank or trust company having its principal office in the United States and
having a combined capital and surplus of at least $50,000,000.
DESCRIPTION OF COMMON STOCK
GENERAL
The Corporation's Common Stock as of February 25, 1994 consisted of
200,000,000 authorized shares, par value $2.25 per share, of which there were
106,357,915 shares outstanding. The Common Stock is traded on the NYSE and the
BSE. The transfer agent and registrar for the Common Stock is the Bank.
Shares of Common Stock may be issued from time to time, in such amounts and
proportion and for such consideration as may be fixed by the Board of Directors
of the Corporation. No holder of Common Stock has any preemptive or preferential
rights to purchase or to subscribe for any shares of capital stock or other
securities which may be issued by the Corporation. The Common Stock has no
redemption or sinking fund provisions applicable thereto. The Common Stock does
not have any conversion rights.
The Corporation issues authorized but unissued shares of its Common Stock
in connection with several employee benefit and stock option and incentive plans
maintained by the Corporation or its subsidiaries, and the Corporation's
Automatic Dividend Reinvestment and Common Stock Purchase Plan. In addition,
holders of the Corporation's 7 3/4% Convertible Subordinated Debentures Due 2011
(the "Debentures") are entitled to convert their Debentures into Common Stock at
any time on or before June 15, 2011, unless previously redeemed, at a conversion
price of $23.42 per share, subject to adjustment in certain events. As of
February 25, 1994 $94,396,000 in principal amount of the Debentures was
outstanding. The Debentures are redeemable at the option of the Corporation, in
whole or in part, at prices ranging from 101.55% of the principal amount plus
accrued interest in 1994 to 100% of the principal amount plus accrued interest
in 1995.
The shares of the Common Stock are fully paid and non-assessable. Section
45 of Chapter 156B of the MGL provides that stockholders to whom a corporation
makes any distribution, whether by way of dividend, repurchase or redemption of
stock or otherwise (other than a distribution of stock of the corporation) if
the corporation is, or is thereby rendered, insolvent shall be liable to the
corporation for the amount of such distribution made, or for the amount of such
distribution which exceeds that which could have been made without rendering the
corporation insolvent, but in either event, only to the extent of the amount
paid or distributed to such stockholders, respectively.
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LIQUIDATION
In the event of any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, the holders of the Common Stock
are entitled to receive, on a share for share basis, any assets or funds of the
Corporation which are distributable to its holders of Common Stock upon such
events, subject to the prior rights of creditors of the Corporation and holders
of the Corporation's outstanding Preferred Stock.
VOTING
Holders of Common Stock are entitled to one vote for each share on all
matters voted upon by the stockholders. The shares of Common Stock have
non-cumulative voting rights, which means that the holders of more than 50% of
the shares voting for the election of directors can elect 100% of the directors
if they choose to do so, and in such event, the holders of the remaining shares
voting for the election of directors will not be able to elect any person or
persons to the Board of Directors of the Corporation.
DIVIDENDS
When, as and if dividends, payable in cash, stock or other property, are
declared by the Board of Directors of the Corporation out of funds legally
available therefor, the holders of Common Stock are entitled to share equally,
share for share, in such dividends. The payment of dividends on the Common Stock
is subject to the prior payment of dividends on the Preferred Stock.
STOCKHOLDER RIGHTS PLAN
On June 28, 1990, the Board of Directors of the Corporation adopted a
stockholder rights plan providing for a dividend of one Preferred Stock Purchase
Right for each outstanding share of Common Stock of the Corporation (the
"Rights"). The dividend was distributed on July 12, 1990 to stockholders of
record on that date. Holders of shares of Common Stock issued subsequent to that
date receive the Rights with their shares. The Rights trade automatically with
shares of Common Stock and become exercisable only under certain circumstances
as described below. The Rights are designed to protect the interests of the
Corporation and its stockholders against coercive takeover tactics. The purpose
of the Rights is to encourage potential acquirors to negotiate with the
Corporation's Board of Directors prior to attempting a takeover and to provide
the Board with leverage in negotiating on behalf of all stockholders the terms
of any proposed takeover. The Rights may have certain anti-takeover effects. The
Rights should not, however, interfere with any merger or other business
combination approved by the Board of Directors.
Until a Right is exercised, the holder of a Right, as such, will have no
rights as a stockholder of the Corporation including, without limitation, the
right to vote or receive dividends. Upon becoming exercisable, each Right will
entitle the holder thereof to purchase from the Corporation a unit equal to one
one-thousandth of a share of Junior Participating Preferred Stock, Series D at a
purchase price of $50 per unit, subject to adjustment. In general, the Rights
will become exercisable upon the earlier of (i) ten days following a public
announcement by the Corporation that a person or group has acquired beneficial
ownership of 15% or more of the Corporation's Common Stock or voting securities
representing 15% or more of the total voting power of the Corporation (the
"Stock Acquisition Date") or (ii) ten business days (or such later date as the
Board of Directors may determine) after the commencement of a tender offer or
exchange offer that would result in a person or group beneficially owning 15% or
more of the Corporation's outstanding Common Stock or voting securities
representing 15% or more of the total voting power of the Corporation.
Generally, in the event that a person or group becomes the beneficial owner
of 15% or more of the Corporation's outstanding Common Stock or voting
securities representing 15% or more of the total voting power of the Corporation
(other than pursuant to an offer for all outstanding shares of Common Stock and
other voting securities which the Board of Directors determines to be fair to
stockholders and otherwise in the best interests of the Corporation) (a "Flip-In
Event"), each Right, other than Rights owned by the acquiror, will thereafter
entitle the holder to receive, upon exercise of the Right, Common Stock having a
value equal to two times the exercise price of the Right. In addition, at any
time after a Flip-In Event, the Board of Directors may exchange the then
exercisable Rights (other than Rights held by the acquiror) for Common Stock at
an exchange ratio of one share of Common Stock for each Right. In the event
that, at any time after the Stock
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<PAGE> 27
Acquisition Date, the Corporation is acquired in a merger or other business
combination transaction or more than 50% of the Corporation's assets, cash flow
or earning power is sold or transferred (a "Flip-Over Event"), each Right, other
than Rights owned by the acquiror, will thereafter entitle the holder thereof to
receive, upon the exercise of the Right, common stock of the acquiror having a
value equal to two times the exercise price of the Right.
The Rights are redeemable by the Corporation at $.01 per Right at any time
prior to ten days after the Stock Acquisition Date (which period may be extended
at any time while the Rights are still redeemable). The Rights will expire at
the close of business on July 12, 2000, unless earlier redeemed or exchanged.
The foregoing description of the Rights does not purport to be complete and
is qualified in its entirety by the description of the Rights contained in the
Rights Agreement, dated as of June 28, 1990, between the Corporation and the
Bank, as Rights Agent, which is incorporated herein by reference to Exhibit 1 to
the Corporation's Registration Statement on Form 8-A dated July 2, 1990.
DESCRIPTION OF CAPITAL SECURITIES
GENERAL
A Prospectus Supplement may provide that Capital Securities will be
issuable in exchange for or upon conversion of Subordinated Securities or
Preferred Stock of any series. "Capital Securities" may consist of common stock,
perpetual preferred stock or, if permitted by the Corporation's primary federal
banking regulator (currently the Board of Governors), other securities of the
Corporation. The Prospectus Supplement relating to a series of Subordinated Debt
Securities or Preferred Stock which are exchangeable for or convertible into
Capital Securities will contain a description of the Capital Securities.
TENDER OFFER RULES
Rules 13e-4 and 14e-1 of the Commission's rules and regulations relating to
tender offers by issuers, as currently in effect and interpreted, may be
applicable to exchanges or conversions such as that of Capital Securities for
Subordinated Securities or Preferred Stock of any series. If, at the time of any
such exchange or conversion, Rule 13e-4 or Rule 14e-1 (or any successor rule or
rules) applies to such transactions, the Corporation will comply with such rule
(or any successor rule or rules) and will afford holders of such Subordinated
Securities or Preferred Stock all rights and will make all filings required by
such rule (or successor rule or rules).
DESCRIPTION OF SECURITIES WARRANTS
The Corporation may issue, together with any Debt Securities or Preferred
Stock or Common Stock offered by any Prospectus Supplement or separately,
Securities Warrants for the purchase of other Debt Securities or Preferred Stock
or Common Stock. The Securities Warrants are to be issued under warrant
agreements (each a "Securities Warrant Agreement") to be entered into between
the Corporation and a bank or trust company, as warrant agent ("Securities
Warrant Agent"), all as set forth in the Prospectus Supplement relating to the
particular issue of Securities Warrants. The form of Securities Warrant
Agreement, including the form of certificates representing the Securities
Warrants ("Securities Warrant Certificates"), reflecting the alternative
provisions to be included in the Securities Warrant Agreements that will be
entered into with respect to particular offerings of Securities Warrants, is
filed as an exhibit to the Registration Statement. The following summaries of
certain provisions of the Securities Warrant Agreement and the Securities
Warrant Certificates do not purport to be complete and are subject to, and are
qualified in their entirety by reference to, all the provisions of the
Securities Warrant Agreement and the Securities Warrant Certificates,
respectively, including the definitions therein of certain terms. Wherever
defined terms of the Securities Warrant Agreement are referred to, it is
intended that such defined terms shall be incorporated herein by reference.
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GENERAL
The Prospectus Supplement relating to the particular issue of Securities
Warrants offered thereby will describe the terms of the offered Securities
Warrants, the Securities Warrant Agreement relating to the offered Securities
Warrants and the Securities Warrant Certificates representing the offered
Securities Warrants, including the following: (1) if the Securities Warrants are
offered for separate consideration, the offering price and the Currency for
which Securities Warrants may be purchased; (2) the designation, aggregate
principal amount, Currency and terms of the series of Debt Securities
purchasable upon exercise of the offered Securities Warrants; (3) the
designation, number, stated value and terms (including, without limitation,
liquidation, dividend, conversion and voting rights) of the series of Preferred
Stock purchasable upon exercise of Preferred Stock Warrants and the price at
which such number of shares of Preferred Stock of such series may be purchased
upon such exercise; (4) the number of shares of Common Stock purchasable upon
exercise of Common Stock Warrants and the price at which such number of shares
of Common Stock may be purchased upon such exercise; (5) the date, if any, on
and after which the offered Securities Warrants and the related Debt Securities
and/or Preferred Stock and/or Common Stock will be separately transferable; (6)
the date on which the right to exercise the offered Securities Warrants shall
commence and the date ("Expiration Date") on which such right shall expire; (7)
a discussion of the specific U.S. federal income tax, accounting and other
considerations applicable to the Securities Warrants; (8) whether the offered
Securities Warrants represented by the Securities Warrant Certificates will be
issued in registered or bearer form, and if registered, where they may be
transferred and registered; and (9) any other terms of the offered Securities
Warrants.
Securities Warrant Certificates will be exchangeable on the terms specified
in the Prospectus Supplement for new Securities Warrant Certificates of
different denominations and Securities Warrants may be exercised at the
corporate trust office of the Securities Warrant Agent or any other office
indicated in the Prospectus Supplement relating thereto. Prior to the exercise
of their Securities Warrants, holders of Securities Warrants will not have any
of the rights of holders of the Debt Securities or Preferred Stock or Common
Stock purchasable upon such exercise, including the right in the case of Debt
Warrants to payments of principal of or any premium or interest, if any, on the
Debt Securities purchasable upon such exercise, or to enforce covenants in the
Indentures and in the case of Preferred Stock Warrants and Common Stock
Warrants, the right to receive payments of dividends or distributions of any
kind, if any, on the Preferred Stock and Common Stock, respectively, purchasable
upon exercise or to exercise any applicable right to vote.
EXERCISE OF WARRANTS
Each Securities Warrant will entitle the holder to purchase such principal
amount of Debt Securities or such number of shares of Preferred Stock or Common
Stock, as the case may be, at such exercise price as shall in each case be set
forth in, or be determinable from, the Prospectus Supplement relating to the
Securities Warrants, by payment of such exercise price in full in the Currency
and in the manner specified in the Prospectus Supplement. Securities Warrants
may be exercised at any time up to the close of business on the Expiration Date
(or such later date to which such Expiration Date may be extended by the
Corporation); unexercised Securities Warrants will become void.
Upon receipt at the corporate trust office of the Securities Warrant Agent
or any other office indicated in the Prospectus Supplement of (i) payment of the
exercise price and (ii) the Securities Warrant Certificate properly completed
and duly executed, the Corporation will, as soon as practicable, forward the
Debt Securities or Preferred Stock or Common Stock purchasable upon such
exercise. If less than all of the Securities Warrants represented by such
Warrant Certificate are exercised, a new Securities Warrant Certificate will be
issued for the remaining number of Securities Warrants.
PLAN OF DISTRIBUTION
The Corporation may sell Securities to one or more underwriters for public
offering and sale by them or may sell Securities to investors directly or
through agents (which agents may be affiliates of the Corporation) that solicit
or receive offers on behalf of the Corporation or through dealers or through a
combination of any
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such method of sale. Any such underwriter, dealer or agent involved in the offer
and sale of the Securities is named in the Prospectus Supplement.
The Securities may be distributed in one or more transactions from time to
time at a fixed price or prices, which may be changed, from time to time at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. The Corporation also may, from
time to time, authorize agents of the Corporation acting on a best efforts or
other basis to solicit or receive offers to purchase the Securities upon the
terms and conditions as are set forth in the Prospectus Supplement. In
connection with the sale of Securities, underwriters may be deemed to have
received compensation from the Corporation in the form of underwriting discounts
or commissions and may also receive commissions from purchasers of Securities
for whom they may act as agent. Underwriters may sell Securities to or through
dealers, and such dealers may receive compensation in the form of discounts,
concessions or commissions from the underwriters and/or commissions from the
purchasers for whom they may act as agent.
Any underwriting compensation paid by the Corporation to underwriters or
agents in connection with the offering of the Securities, and any discounts,
concessions or commissions allowed by underwriters to participating dealers,
will be set forth in the Prospectus Supplement. Underwriters, dealers and agents
participating in the distribution of the Securities (including agents only
soliciting or receiving offers to purchase Securities on behalf of the
Corporation) may be deemed to be underwriters, and any discounts and commissions
received by them and any profit realized by them on resale of the Securities may
be deemed to be underwriting discounts and commissions, under the Securities
Act. Underwriters, dealers and agents may be entitled, under agreements entered
into with the Corporation, to indemnification against and contribution toward
certain civil liabilities, including liabilities under the Securities Act.
Certain of the underwriters and their associates may be customers of,
engage in transactions with and perform services for the Corporation in the
ordinary course of business.
LEGAL OPINIONS
The validity of the Securities offered hereby will be passed upon for the
Corporation by Gary A. Spiess, General Counsel of the Corporation and for the
Underwriters by Brown & Wood, New York, New York. Brown & Wood will rely as to
all matters of Massachusetts law on the opinion of Mr. Spiess. As of March 7,
1994, Mr. Spiess had a direct or indirect interest in shares of the
Corporation's Common Stock and had options to purchase an additional
shares, of which options to purchase shares will be exercisable within 60
days after March 7, 1994.
EXPERTS
The financial statements contained in and incorporated by reference into
the Corporation's Annual Report on Form 10-K for the fiscal year ended December
31, 1993, have been incorporated herein by reference in reliance upon the
report, set forth therein of Coopers & Lybrand, independent accountants, and
upon the authority of said firm as experts in accounting and auditing. The
report, referred to above, includes an explanatory paragraph related to the
Corporation's adoption of Statement of Financial Accounting Standards No. 106,
"Employers' Accounting for Postretirement Benefits Other Than Pensions,"
Statement of Financial Accounting Standards No. 109, "Accounting for Income
Taxes," and change in its method of accounting for purchased mortgage servicing
rights, effective January 1, 1993; and its adoption of Statement of Financial
Accounting Standards No. 115, "Accounting for Certain Investments in Debt and
Equity Securities," effective December 31, 1993.
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<PAGE> 30
such method of sale. Any such underwriter, dealer or agent involved in the offer
and sale of the Securities is named in the Prospectus Supplement.
The Securities may be distributed in one or more transactions from time to
time at a fixed price or prices, which may be changed, from time to time at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. The Corporation also may, from
time to time, authorize agents of the Corporation acting on a best efforts or
other basis to solicit or receive offers to purchase the Securities upon the
terms and conditions as are set forth in the Prospectus Supplement. In
connection with the sale of Securities, underwriters may be deemed to have
received compensation from the Corporation in the form of underwriting discounts
or commissions and may also receive commissions from purchasers of Securities
for whom they may act as agent. Underwriters may sell Securities to or through
dealers, and such dealers may receive compensation in the form of discounts,
concessions or commissions from the underwriters and/or commissions from the
purchasers for whom they may act as agent.
Any underwriting compensation paid by the Corporation to underwriters or
agents in connection with the offering of the Securities, and any discounts,
concessions or commissions allowed by underwriters to participating dealers,
will be set forth in the Prospectus Supplement. Underwriters, dealers and agents
participating in the distribution of the Securities (including agents only
soliciting or receiving offers to purchase Securities on behalf of the
Corporation) may be deemed to be underwriters, and any discounts and commissions
received by them and any profit realized by them on resale of the Securities may
be deemed to be underwriting discounts and commissions, under the Securities
Act. Underwriters, dealers and agents may be entitled, under agreements entered
into with the Corporation, to indemnification against and contribution toward
certain civil liabilities, including liabilities under the Securities Act.
Certain of the underwriters and their associates may be customers of,
engage in transactions with and perform services for the Corporation in the
ordinary course of business.
LEGAL OPINIONS
The validity of the Securities offered hereby will be passed upon for the
Corporation by Gary A. Spiess, General Counsel of the Corporation and for the
Underwriters by Brown & Wood, New York, New York. Brown & Wood will rely as to
all matters of Massachusetts law on the opinion of Mr. Spiess. As of March 7,
1994, Mr. Spiess had a direct or indirect interest in 22,254 shares of the
Corporation's Common Stock and had options to purchase an additional 55,239
shares, of which options to purchase 50,239 shares will be exercisable within 60
days after March 7, 1994.
EXPERTS
The financial statements contained in and incorporated by reference into
the Corporation's Annual Report on Form 10-K for the fiscal year ended December
31, 1993, have been incorporated herein by reference in reliance upon the
report, set forth therein of Coopers & Lybrand, independent accountants, and
upon the authority of said firm as experts in accounting and auditing. The
report, referred to above, includes an explanatory paragraph related to the
Corporation's adoption of Statement of Financial Accounting Standards No. 106,
"Employers' Accounting for Postretirement Benefits Other Than Pensions,"
Statement of Financial Accounting Standards No. 109, "Accounting for Income
Taxes," and change in its method of accounting for purchased mortgage servicing
rights, effective January 1, 1993; and its adoption of Statement of Financial
Accounting Standards No. 115, "Accounting for Certain Investments in Debt and
Equity Securities," effective December 31, 1993.
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PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Estimated expenses in connection with the issuance and distribution of the
securities being registered other than underwriting compensation are as follows:
<TABLE>
<S> <C>
SEC registration fee.............................................. $ 517,245
Rating agency fees................................................ 400,000
Printing and engraving expenses................................... 160,000
Accountants' fees and expenses.................................... 230,000
Trustees' fees and expenses....................................... 20,000
Blue sky fees and expenses........................................ 35,000
Listing fees...................................................... 100,000
Miscellaneous..................................................... 12,755
---------
Total................................................... $1,475,000
---------
---------
</TABLE>
- ---------------
All the above amounts except the SEC registration fee are estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 67 of Chapter 156B of the Massachusetts General Laws authorizes a
corporation to indemnify any director, officer, employee or other agent of the
corporation to whatever extent specified in or authorized by (i) the articles of
organization, (ii) a by-law adopted by the stockholders or (iii) a vote adopted
by the holders of a majority of the shares of stock entitled to vote on the
election of directors.
The Registrant's By-laws provide indemnity to the Registrant's Directors
and Officers in such capacity or as directors or officers of a wholly-owned
subsidiary of the Registrant for liability resulting from judgments, fines,
expenses or settlement amounts incurred in connection with any action, including
an action by or in the right of the Registrant, brought against such person in
such capacity. Under Massachusetts law and the By-laws, no indemnification may
be provided for any person with respect to any matter as to which he or she
shall have been adjudicated in any proceeding not to have acted in good faith in
the reasonable belief that his or her action was in the best interest of the
Registrant. The By-laws also provide that, with respect to any matter disposed
of by a compromise payment by such Director or Officer pursuant to a consent
decree or otherwise, no indemnification shall be provided unless such compromise
shall be ordered by a court or shall be approved as being in the best interest
of the Registrant, after notice that it involves such indemnification: (a) by a
disinterested majority of the Directors then in office or (b) by a majority of
the disinterested Directors then in office, provided that there has been
obtained an opinion in writing of independent counsel to the effect that such
person does not appear not to have acted in good faith in the reasonable belief
that his or her action was in the best interests of the Registrant or (c) by the
holders of a majority of the outstanding stock at the time entitled to vote for
Directors. Under Massachusetts law, a court may uphold indemnification in
connection with a suit in which there is a recovery by or in the right of a
corporation.
The By-laws also provide for indemnification for all other directors and
officers of the Registrant's wholly-owned subsidiaries to the extent authorized
by the Board of Directors on the same statutory standard set forth in the
preceding paragraph. Where such a person is wholly successful in defending the
claim, he or she shall be entitled to indemnification. Directors and officers of
other subsidiaries and employees and agents of the Registrant and any
subsidiaries may be indemnified as determined by the Board from time to time.
II-1
<PAGE> 32
ITEM 16. EXHIBITS.
<TABLE>
<S> <C>
(1)(a) -- Form of Underwriting Agreement relating to the Securities.
(4)(a) -- Restated Articles of Organization of the Corporation, as amended through
November 24, 1993, incorporated herein by reference to Exhibit 3(a) to the
Corporation's Annual Report on Form 10-K for the year ended December 31, 1993
(File No. 1-6522).
(4)(b) -- By-Laws of the Corporation, as amended through October 28, 1993, incorporated
herein by reference to Exhibit 3(b) to the Corporation's Annual Report on Form
10-K for the year ended December 31, 1993 (File No. 1-6522).
(4)(c) -- Senior Indenture, between the Corporation and Norwest Bank Minnesota, National
Association ("Norwest"), as Trustee, dated as of June 15, 1992, incorporated
herein by reference to Exhibit 4(c) to the Corporation's Registration Statement
on Form S-3 (Registration Number 33-48418).
(4)(d) -- Subordinated Indenture between the Corporation and Norwest, as Trustee, dated
as of June 15, 1992, incorporated herein by reference to Exhibit 4(d) to the
Corporation's Registration Statement on Form S-3 (Registration Number
33-48418).
(4)(e) -- First Supplemental Indenture between the Corporation and Norwest, as Trustee
dated as of June 24, 1993, incorporated herein by reference to Exhibit 4(e) to
the Corporation's Current Report on Form 8-K dated June 24, 1993 (File No.
1-6522).
(4)(f) -- Form of Securities Warrant Agreement.
(4)(g) -- Form of Certificates representing the Debt Warrants, Preferred Stock Warrants
and Common Stock Warrants (included in Exhibit (4)(f)).
(4)(h) -- Form of Deposit Agreement.
(4)(i) -- Form of Depositary Receipt (included in Exhibit (4)(h)).
(4)(j) -- Rights Agreement, dated as of June 28, 1990, between the Corporation and the
Bank, as Rights Agent, and the description of the Rights, incorporated herein
by reference to the Corporation's registration statement on Form 8-A relating
to the Rights and to Exhibit 1 of such registration statement (File No.
1-6522).
(5) -- Opinion of Gary A. Spiess, Esq.
(12)(a) -- Computation of the Corporation's Consolidated Ratio of Earnings to Fixed
Charges (excluding interest on deposits), incorporated herein by reference to
Exhibit 12(a) to the Corporation's Annual Report on Form 10-K for the year
ended December 31, 1993 (File No. 1-6522).
(12)(b) -- Computation of the Corporation's Consolidated Ratio of Earnings to Fixed
Charges (including interest on deposits).
(12)(c) -- Computation of the Corporation's Consolidated Ratio of Earnings to Combined
Fixed Charges and Preferred Stock Dividend Requirements (excluding interest on
deposits), incorporated herein by reference to Exhibit 12(c) to the
Corporation's Annual Report on Form 10-K for the year ended December 31, 1993
(File No. 1-6522).
(12)(d) -- Computation of the Corporation's Consolidated Ratio of Earnings to Combined
Fixed Charges and Preferred Stock Dividend Requirements (including interest on
deposits).
(23)(a) -- Consent of Coopers & Lybrand.
(23)(b) -- Consent of Gary A. Spiess, Esq. (included in Exhibit 5).
(24) -- Power of Attorney of certain officers and directors (included on page II-4).
(25) -- Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of
Norwest, as Trustee.
</TABLE>
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section
II-2
<PAGE> 33
13(d) of the Securities Exchange Act of 1934 that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described in Item 15 above, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer, or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes that: (1) for purposes of
determining any liability under the Securities Act of 1933, the information
omitted from the form of prospectus filed as part of this registration statement
in reliance upon Rule 430A and contained in a form of prospectus filed by the
Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act
shall be deemed to be part of this registration statement as of the time it was
declared effective; and (2) for the purpose of determining any liability under
the Securities Act of 1933, each post-effective amendment that contains a form
of prospectus shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
II-3
<PAGE> 34
SIGNATURES
Pursuant to the requirements of Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Boston, and Commonwealth of Massachusetts, on the 8th
day of March, 1994.
BANK OF BOSTON CORPORATION
/s/ IRA STEPANIAN
By
(IRA STEPANIAN)
(CHIEF EXECUTIVE OFFICER)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. By so signing, each of the undersigned,
in his or her capacity as a director or officer, or both, as the case may be, of
the Registrant, does hereby appoint Ira Stepanian, Charles K. Gifford, William
J. Shea, Bradford H. Warner, Robert T. Jefferson, and Gary A. Spiess, and each
of them severally, or if more than one acts, a majority of them, his or her true
and lawful attorneys or attorney to execute in his or her name, place and stead,
in his or her capacity as a director or officer or both, as the case may be, of
the Registrant, any and all amendments to said Registration Statement and all
instruments necessary or incidental in connection therewith, and to file the
same with the Securities and Exchange Commission. Each of said attorneys shall
have full power and authority to do and perform in the name and on behalf of
each of the undersigned, in any and all capacities, every act whatsoever
requisite or necessary to be done in the premises as fully and to all intents
and purposes as each of the undersigned might or could do in person, hereby
ratifying and approving the acts of said attorneys and each of them.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------ --------------------------------- ------------------
<C> <S> <C>
/s/ IRA STEPANIAN Chairman of the Board of March 8, 1994
........................................ Directors and Chief Executive
(IRA STEPANIAN) Officer and Director
(Chief Executive Officer)
/s/ CHARLES K. GIFFORD President, Chief Operating March 8, 1994
........................................ Officer and Director
(CHARLES K. GIFFORD)
/s/ WILLIAM J. SHEA Vice Chairman, Chief Financial March 8, 1994
........................................ Officer and Treasurer
(WILLIAM J. SHEA) (Chief Financial Officer)
/s/ ROBERT T. JEFFERSON Comptroller March 8, 1994
........................................ (Chief Accounting Officer)
(ROBERT T. JEFFERSON)
/s/ WAYNE A. BUDD Director March 8, 1994
........................................
(WAYNE A. BUDD)
/s/ JOHN J. CAREY Director March 8, 1994
........................................
(JOHN J. CAREY)
</TABLE>
II-4
<PAGE> 35
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------ --------------------------------- ------------------
<C> <S> <C>
/s/ WILLIAM F. CONNELL Director March 8, 1994
........................................
(WILLIAM F. CONNELL)
/s/ GARY L. COUNTRYMAN Director March 8, 1994
........................................
(GARY L. COUNTRYMAN)
/s/ ALICE F. EMERSON Director March 8, 1994
........................................
(ALICE F. EMERSON)
/s/ DONALD F. MCHENRY Director March 8, 1994
........................................
(DONALD F. MCHENRY)
/s/ J. DONALD MONAN Director March 8, 1994
........................................
(J. DONALD MONAN)
/s/ PAUL C. O'BRIEN Director March 8, 1994
........................................
(PAUL C. O'BRIEN)
/s/ JOHN W. ROWE Director March 8, 1994
........................................
(JOHN W. ROWE)
Director , 1994
........................................
(RICHARD A. SMITH)
/s/ WILLIAM C. VAN FAASEN Director March 8, 1994
........................................
(WILLIAM C. VAN FAASEN)
/s/ THOMAS B. WHEELER Director March 8, 1994
........................................
(THOMAS B. WHEELER)
/s/ ALFRED M. ZEIEN Director March 8, 1994
........................................
(ALFRED M. ZEIEN)
/s/ CHARLES A. ZRAKET Director March 8, 1994
........................................
(CHARLES A. ZRAKET)
</TABLE>
II-5
<PAGE> 1
EXHIBIT 1.A
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
BANK OF BOSTON CORPORATION
(a Massachusetts corporation)
Senior Debt Securities, Subordinated Debt
Securities, Preferred Stock,
Depositary Shares Representing Preferred Stock,
Common Stock and Warrants to Purchase Debt
Securities, Preferred Stock or Common Stock
UNDERWRITING AGREEMENT
Dated: ____________, 199_
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
1
<PAGE> 2
BANK OF BOSTON CORPORATION
(a Massachusetts corporation)
Senior Debt Securities, Subordinated Debt
Securities, Preferred Stock,
Depositary Shares representing Preferred Stock,
Common Stock and Warrants to Purchase Debt
Securities, Preferred Stock or Common Stock
UNDERWRITING AGREEMENT
----------------------
___________, 199_
To the [Underwriter[s]
named in Exhibit A]
[Representative[s] named
in Exhibit A of the
Underwriters named in
Exhibit A]
Dear Sirs:
Bank of Boston Corporation, a Massachusetts corporation (the "Company"),
proposes to issue and sell from time to time, either together or separately,
certain of its (i) senior debt securities (the "Senior Debt Securities") and/or
(ii) subordinated debt securities (the "Subordinated Debt Securities", and
together with the Senior Debt Securities, the "Debt Securities"), and/or (iii)
preferred stock (the "Preferred Shares"), and/or (iv) depositary shares which
represent fractional interests in the Preferred Shares (the "Depositary
Shares") and/or (v) common stock, par value $2.25 per share ("Common Stock"),
and/or (vi) warrants (the Warrants") to purchase Debt Securities, Preferred
Shares or Common Stock in one or more offerings on terms determined at the time
of sale and set forth in a terms agreement in the form of Exhibit A hereto (the
"Terms Agreement"). The Subordinated Debt Securities may be convertible into
or exchangeable for Capital Securities of the Company (as defined below) and
the Preferred Shares may be convertible into Capital Securities or other
preferred stock of the Company or exchangeable for Capital Securities or Debt
Securities, in each case as set forth in the applicable Terms Agreement
relating thereto. As used herein, "Capital Securities" means any securities
issued by the Company which consist of (i) Common Stock, (ii) perpetual
preferred stock or ( iii) other capital securities of the Company acceptable to
the Company's primary federal regulation. Capital Securities may have such
terms, rights and preferences as may be determined by the Company.
2
<PAGE> 3
The Senior Debt Securities are to be issued under an Indenture dated as of
June 15, 1992, as amended or supplemented (the "Senior Indenture"), between the
Company and Norwest Bank Minnesota, National Association ("Norwest"), as
trustee (the "Senior Trustee"). The Subordinated Debt Securities are to be
issued under an Indenture dated as of June 15, 1992, as amended or supplemented
(the "Subordinated Indenture"), between the Company and Norwest, as trustee
(the "Subordinated Trustee", and together with the Senior Trustee, the
"Trustees"). The Senior Indenture and the Subordinated Indenture are
collectively referred to herein as the ("Indentures"). The Senior Debt
Securities and the Subordinated Debt Securities may have varying designations,
maturities, rates and times of payment of interest, if any, selling prices,
redemption terms, if any, exchange terms, if any, conversion terms and other
specific terms as set forth in the applicable Terms Agreement relating thereto.
The warrants are to be issued under warrant agreements (each a "Warrant
Agreement"), between the Company and a bank or trust company, as warrant agent
(the "Warrant Agent"). The Warrants may have varying designations, expiration
dates, selling prices, redemption terms, if any, exchange terms, if any,
conversion terms and other specific terms as set forth in the applicable Terms
Agreement relating thereto.
Each issue of Preferred Shares may vary as to the specific number of
shares, title, stated value and liquidation preference, issuance price,
dividend rate or rates (or method of calculation), dividend payment dates
redemption or sinking fund requirements, conversion and exchange provisions and
any other variable terms as set forth in the applicable Terms Agreement
relating to such Preferred Shares. If the Preferred Shares are to be offered
in the form of Depositary Shares, the Preferred Shares will, when issued, be
deposited by the Company against delivery of depositary receipts (the
"Depositary Receipts") to be issued under a deposit agreement (the "Deposit
Agreement"), to be entered into among the Company, a depositary institution
(the "Depositary") and the holders from time to time of the Depositary Receipts
issued thereunder. The Depositary Receipts will evidence the Depositary Shares
and each Depositary Share will represent a fraction of a Preferred Share. The
Preferred Shares, together, if applicable, with the Depositary Shares are
hereinafter referred to as the "Shares".
Each issue of Common Stock may vary as to the specific number of shares,
the initial public offering price, the purchase price and other specific terms
as set forth in the applicable Terms Agreement relating thereto.
The Debt Securities, Warrants, Shares and Common Stock, to be issued and
sold as specified in the applicable Terms Agreement, shall collectively be
referred to herein as the "Offered Securities". As used herein, unless the
context otherwise requires, the term "Underwriters" shall mean the firm or
firms specified as Underwriter or Underwriters in the applicable Terms
Agreement relating to the Offered Securities and the term "you" shall mean the
Underwriter or Underwriters, if no underwriting syndicate is purchasing the
Offered Securities, or the representative or representatives of the
Underwriters, if an underwriting syndicate is purchasing the Offered
Securities, as specified in the applicable Terms Agreement.
Whenever the Company determines to make an offering of Offered Securities,
the Company will enter into a Terms Agreement providing for the sale of the
applicable Offered Securities to, and the purchase and offering thereof by, the
Underwriters. The Terms Agreement relating to the Offered Securities shall
specify the type of Offered Securities to be issued, the names of the
3
<PAGE> 4
Underwriters participating in such offering (subject to substitution as
provided in Section 10 hereof), the number of Offered Securities which each
such Underwriter severally agrees to purchase, the price at which the Offered
Securities are to be purchased by the Underwriters from the Company, the
initial public offering price, the time and place of delivery and payment and
other specific terms. In addition, each Terms Agreement shall specify whether
the Company has agreed to grant to the Underwriters an option to purchase
additional Offered Securities to cover over-allotments, if any, and the amount
of Offered Securities subject to such option (the "Option Securities"). As
used herein, the term "Offered Securities" shall include the Option Securities,
if any. The Terms Agreement may take the form of an exchange of any standard
form of written telecommunication between you and the Company. Each offering
of Offered Securities will be governed by this Agreement, as supplemented by
the applicable Terms Agreement, and this Agreement and such Terms Agreement
shall inure to the benefit of and be binding upon the Company and each
Underwriter participating in the offering of such Offered Securities.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (File No.
33- ), including a prospectus, relating to the Offered Securities and the
offering thereof from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "1933 Act"). Such registration
statement has been declared effective by the Commission. As provided in
Section 3(a), a prospectus supplement reflecting the terms of the Offered
Securities, the terms of the offering thereof and the other matters set forth
therein has been prepared and will be filed pursuant to Rule 424 under the 1933
Act. Such prospectus supplement, in the form first filed after the date of the
applicable Terms Agreement pursuant to Rule 424, is herein referred to as the
"Prospectus Supplement". Such registration statement, as amended at the date
of the applicable Terms Agreement, including the exhibits thereto and the
documents incorporated by reference therein, is herein called the "Registration
Statement", and the basic prospectus included therein relating to all offerings
of securities under the Registration Statement, as supplemented by the
Prospectus Supplement, is herein called the "Prospectus", except that, if such
basic prospectus is amended or supplemented on or prior to the date on which
the Prospectus Supplement is first filed pursuant to Rule 424, the term
"Prospectus" shall refer to the basic prospectus as so amended or supplemented
and as supplemented by the Prospectus Supplement, in either case including the
documents filed by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "1934 Act"), that are incorporated by
reference therein.
Section 1. REPRESENTATIONS AND WARRANTIES. (a) The Company represents
and warrants to and agrees with each of the Underwriters that:
(i) The Company meets the requirements for use of Form S-3 under
the 1933 Act and as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus Supplement and any amendment thereto, (A)
the Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the requirements of
the 1933 Act and the rules and regulations of the Commission thereunder
(the "1933 Act Regulations"), the Trust Indenture Act of 1939, as amended
(the "1939 Act"), and the rules and regulations of the Commission under
the 1939 Act (the "1939 Act Regulations"); (B) neither the Registration
Statement nor any amendment or supplement thereto contained or will
contain an untrue statement of a material fact or omitted or will omit to
state a material fact required to be stated therein or necessary to make
the statements therein
4
<PAGE> 5
not misleading; and (C) neither the Prospectus nor any amendment or
supplement thereto included or will include an untrue statement of a
material fact or omitted or will omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that this
representation and warranty does not apply to statements or omissions made
in reliance upon and in conformity with information furnished in writing
to the Company by or on behalf of any Underwriter through you expressly
for use in the Registration Statement or the Prospectus. At the Closing
Time, the Indentures will comply in all material respects with the
requirements of the 1939 Act and the 1939 Act Regulations.
(ii) The documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3 under the 1933 Act, at the time they were
filed with the Commission, complied in all material respects with the
requirements of the 1934 Act, and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations") and, when read together
and with the other information in the Prospectus, as of the applicable
effective date of the Registration Statement and any amendment thereto,
did not and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary
in order to make the statements therein not misleading.
(iii) This Agreement has been duly authorized, executed and delivered
by the Company; and upon execution and delivery of each Terms Agreement by
the Company, such Terms Agreement shall have been duly authorized,
executed and delivered by the Company.
(iv) The consolidated financial statements included or incorporated
by reference in the Registration Statement present fairly the consolidated
financial position of the Company and its subsidiaries as of the dates
indicated and the consolidated results of operations and cash flows of the
Company and its subsidiaries for the periods specified. Such financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the
periods involved, except as disclosed in the notes to such financial
statements. The financial statement schedules, if any, included in the
Registration Statement present fairly the information required to be
stated therein. The selected financial data included in the Prospectus
present fairly the information shown therein and have been compiled on a
basis consistent with that of the audited consolidated financial
statements included or incorporated by reference in the Registration
Statement.
(v) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the Commonwealth of Massachusetts
with corporate power and authority under such laws to own, lease and
operate its properties and conduct its business as described in the
Prospectus; the Company is duly registered as a bank holding company under
the Bank Holding Company Act of 1956, as amended; each of The First
National Bank of Boston, N.A. ("FNBB"), Casco Northern Bank, N.A.
("Casco"), and Rhode Island Hospital Trust National Bank ("Hospital
Trust") is a duly organized and validly existing national banking
association under the laws of the United States, continues to hold a valid
certificate to do business as such and has full power and authority to
5
<PAGE> 6
conduct its business as such; Bank of Boston Connecticut is a duly
organized and validly existing state-chartered banking association under
the laws of the State of Connecticut, continues to hold a valid
certificate to do business as such and has full power and authority to
conduct its business as such; Bank of Vermont is a duly organized and
validly existing state-chartered banking association under the laws of the
State of Vermont, continues to hold a valid certificate to do business as
such and has full power and authority to conduct its business as such;
each of Multibank West, Mechanics Bank and South Shore Bank is a duly
organized and validly existing state-chartered banking association under
the laws of the State of Massachusetts, continues to hold a valid
certificate to do business as such and has full power and authority to
conduct its business as such (FNBB, Casco, Hospital Trust, Bank of Boston
Connecticut, Bank of Vermont, Multibank West, Mechanics Bank and South
Shore Bank are referred to collectively as the "Significant
Subsidiaries"); each Significant Subsidiary has the authority under its
jurisdiction of organization to own, lease and operate its properties and
to conduct its business.
(vi) The Company is duly qualified as a foreign corporation, and
each of the Significant Subsidiaries is duly authorized, to transact
business and is in good standing in each jurisdiction in which it owns or
leases property of a nature, or transacts business of a type, that would
make such qualification necessary, except to the extent that the failure
to so qualify or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, considered as one enterprise.
(vii) The Company does not have any subsidiaries which are material
to its business, except to the extent that one or more of the Significant
Subsidiaries may be deemed to be so material.
(viii) The Offered Securities conform in all material respects to the
summary descriptions thereof contained or incorporated by reference in the
Prospectus and such summary descriptions conform to the rights set forth
in the instruments defining the same.
(ix) If the Prospectus contains a description of the capitalization
of the Company, (a) the Company had at the date indicated a duly
authorized and outstanding capitalization as set forth in the Prospectus,
(b) all of the outstanding shares of Capital Securities of the Company
have been duly authorized and validly issued and are fully paid and
non-assessable, and (c) none of the outstanding shares of Capital
Securities was issued in violation of the preemptive rights of any
stockholder of the Company.
(x) If the Offered Securities include Preferred Shares, such Preferred
Shares shall, on the date of the Terms Agreement relating to such Offered
Securities, be duly authorized and, when such Preferred Shares are duly
executed and delivered and issued and paid for in accordance with this
Agreement and the applicable Terms Agreement, such Preferred Shares will
have been validly issued, fully paid and non-assessable; subject to the
provisions of Massachusetts General Laws, Chapter 156B, Section 45, no
holder thereof will be subject to personal liability by reason of being
such a holder; such Preferred Shares will not be subject to the.preemptive
rights of any stockholder of the Company; and all corporate action
required to be taken for the authorization, issue and sale of such
Preferred Shares has been, or at the Closing Time will be, validly and
sufficiently taken; and, if the Offered Securities include Preferred
Shares that are to be represented by Depositary Shares, then, upon deposit
by the Company of such Preferred Shares with the Depositary pursuant to
the Deposit Agreement and the execution by the Depositary of the
6
<PAGE> 7
Depositary Receipts evidencing the Depositary Shares, such Depositary
Shares shall represent legal and valid interests in such Preferred Shares;
and, if the Offered Securities include Preferred Shares that are
convertible into Capital Securities or other preferred stock or
exchangeable for Capital Securities or Debt Securities, then such
Preferred Shares shall be convertible into Capital Securities or other
preferred stock or exchangeable for Capital Securities or Debt Securities
in accordance with their terms and the terms of the Certificate of Vote of
Directors establishing a Series of a Class of Stock relating to such
Preferred Shares (the "Certificate of Vote").
(xi) If the Offered Securities include Common Stock, such Common
Stock shall, on the date of the Terms Agreement relating to such Offered
Securities, be duly authorized and, when such Common Stock is duly
executed and delivered and issued and paid for in accordance with this
Agreement and the applicable Terms Agreement, such Common Stock will have
been validly issued, fully paid and non-assessable; subject to the
provisions of Massachusetts General Laws, Chapter 156B, Section 45, no
holder thereof will be subject to personal liability by reason of being
such a holder; such Common Stock will not be subject to the preemptive
rights of any stockholder of the Company; and all corporate action
required to be taken for the authorization, issue and sale of such Common
Stock has been, or at the Closing Time will be, validly and sufficiently
taken.
(xii) If the Offered Securities include Debt Securities, such Debt
Securities shall, on the date of the Terms Agreement relating to such
Offered Securities, be duly authorized and, when such Debt Securities are
duly executed, authenticated and delivered in the manner provided for in
the applicable Indenture and issued and paid for in accordance with this
Agreement and the applicable Terms Agreement, such Debt Securities will
constitute valid and binding obligations of the Company entitled to the
benefits of the applicable Indenture and enforceable against the Company
in accordance with their terms, except as enforcement thereof may be
limited by the receivership, conservatorship and supervisory powers of
bank regulatory agencies generally as well as to bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject
to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law) and the availability of
suitable remedies; and, if the Offered Securities include Subordinated
Debt Securities that are convertible into or exchangeable for Capital
Securities, then such Subordinated Debt Securities shall be convertible
into or exchangeable for Capital Securities in accordance with their terms
and the terms of the Subordinated Indenture.
(xiii) If the Offered Securities include Warrants, such Warrants
shall, on the date of the Terms Agreement relating to such Offered
Securities, be duly authorized and, when such Warrants are duly executed,
countersigned and delivered in the manner provided for in the Warrant
Agreement and issued and paid for in accordance with this Agreement and
the applicable Terms Agreement, such Warrants will constitute valid and
binding obligations of the Company entitled to the benefits of the Warrant
Agreement and enforceable against the Company in accordance with their
terms, except as
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enforcement thereof may be limited by the receivership, conservatorship
and supervisory powers of bank regulatory agencies generally as well as to
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at law)
and the availability of equitable remedies; and the Warrants shall be
exercisable for Debt Securities, Preferred Shares or Common Stock in
accordance with their terms and the terms of the Warrant Agreement.
(xiv) If the Offered Securities include Preferred Shares convertible
into Capital Securities or other preferred stock or exchangeable for
Capital Securities and/or Subordinated Debt Securities convertible into or
exchangeable for Capital Securities, the Capital Securities or preferred
stock issuable upon conversion or exchange, as the case may be, of the
Preferred Shares pursuant to their terms and the terms of the Certificate
of Vote and/or the Capital Securities issuable upon conversion or exchange
of the Subordinated Debt Securities pursuant to their terms and the terms
of the Subordinated Indenture, on the date of the Terms Agreement relating
to such Offered Securities, shall be duly authorized and validly reserved
for issuance upon such conversion or exchange by all necessary corporate
action and such Capital Securities or other preferred stock, when issued
upon such conversion or exchange, as the case may be, will be validly
issued, fully paid and nonassessable; subject to the provisions of
Massachusetts General Laws, Chapter 156B, Section 45, no holder thereof
will be subject to personal liability by reason of being such a holder;
and the issuance of such Capital Securities or other preferred stock upon
such conversion or exchange, as the case may be, will not be subject to
preemptive rights.
(xv) If the Offered Securities include Debt Securities or Preferred
Shares exchangeable for Debt Securities, the Indentures have been duly
authorized by the Company, will be substantially in the forms filed as
exhibits to the Registration Statement and, when duly executed and
delivered by the Company and the Trustees, will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as enforcement thereof may be limited
by the receivership, conservatorship and supervisory powers of bank
regulatory agencies generally as well as bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject
to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law) and the availability of
equitable remedies; and the summary descriptions of the Indentures set
forth in the Prospectus conform in all material respects to the provisions
contained in the Indentures.
(xvi) If the Offered Securities include Depositary Shares, the
Deposit Agreement has been duly authorized by the Company, will be
substantially in the form filed as an exhibit to the Registration
Statement and, when duly executed and delivered by the Company and the
Depositary, will constitute a valid and binding obligation of the Company
enforceable in accordance with its terms, except as enforcement thereof
may be limited by the receivership, conservatorship and supervisory powers
of bank regulatory agencies generally as well as bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject
to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law) and the availability of
equitable remedies; and the
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summary description of the Deposit Agreement set forth in the
Prospectus conforms in all material respects to the provisions contained
in the Deposit Agreement.
(xvii) If the Offered Securities include Warrants, the Warrant
Agreement has been duly authorized by the Company, will be substantially
in the form filed as an exhibit to the Registration Statement and, when
duly executed and delivered by the Company and the Warrant Agent, will
constitute a valid and binding obligation of the Company enforceable in
accordance with its terms, except as enforcement thereof may be limited by
the receivership, conservatorship and supervisory powers of bank
regulatory agencies generally as well as to bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject
to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law) and the availability of
equitable remedies; and the summary description of the Warrant Agreement
conforms in all material respects to the provisions contained in the
Warrant Agreement.
(xviii) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein or contemplated thereby and, except for normal recurring dividends
on the Common Stock and the Preferred Shares of the Company, there has not
been (A) any material adverse change in the condition (financial or
otherwise), earnings, business affairs or business prospects of the
Company and its subsidiaries, considered as one enterprise, whether or not
arising in the ordinary course of business, (B) any transaction entered
into by the Company or any subsidiary, other than in the ordinary course
of business, that is material to the Company and its subsidiaries,
considered as one enterprise, or (C) any dividend or distribution of any
kind declared, paid or made by the Company on its capital stock.
(xix) Neither the Company nor any Significant Subsidiary is in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which it is a
party or by which it may be bound or to which any of its properties may be
subject, except for such defaults that would not have a material adverse
effect on the condition (financial obligations), earnings, business
affairs or business prospects of the Company and its subsidiaries,
considered as one enterprise. The execution and delivery of this
Agreement, the applicable Terms Agreement, the Indentures, the Warrant
Agreement, any Certificate of Vote and the Deposit Agreement by the
Company, the issuance and delivery of the Offered Securities, the
consummation by the Company of the transactions contemplated in this
Agreement, the applicable Terms Agreement and in the Registration
Statement, and compliance by the Company with the terms of this Agreement,
the applicable Terms Agreement, the Indentures, the Warrant Agreement, any
Certificate of Vote and the Deposit Agreement have been duly authorized by
all necessary corporate action on the part of the Company and do not and
will not result in any violation of the charter or by-laws of the Company
of any Significant Subsidiary, and do not and will not conflict with, or
result in a breach of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien, charge
or encumbrance upon any property of assets of the Company or any
Significant Subsidiary under (A) any indenture, mortgage, loan agreement,
note, lease or other agreement or instrument to which the Company or any
Significant Subsidiary is a party or by which it may be found or to which
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<PAGE> 10
any of its properties may be subject except for such conflicts, breaches
or defaults or liens, charges or encumbrances that would not have a
material adverse effect on the condition (financial or otherwise),
earnings, business affairs or business prospects of the Company and its
subsidiaries, considered as one enterprises or (B) any existing applicable
law, rule, regulation, judgment, order or decree of any government,
governmental instrumentality or court, domestic or foreign having
jurisdiction over the Company or any Significant Subsidiary or any of its
properties.
(xx) Each authorization, approval, consent or license of any
government, governmental instrumentality or court, domestic or foreign
(other than under the 1933 Act, the 1939 Act and the securities or blue
sky laws of the various states), which is required for (A) the valid
authorization, issuance, sale and delivery of the Offered Securities or
(B) the execution, delivery of performance of this Agreement, the
applicable Terms Agreement, the Indentures, the Warrant Agreement, any
Certificate of Vote or the Deposit Agreement by the Company has been
received.
(xxi) Except as disclosed in the Prospectus, there is no action, suit
or proceeding before or by any government, governmental instrumentality or
court, domestic or foreign, now pending or, to the knowledge of the
Company, threatened against or affecting the Company or any Significant
Subsidiary that is required to be disclosed in the Prospectus or that, in
the final outcome, could, in the judgment of the Company, result in any
material adverse change in the condition (financial or otherwise),
earnings, business affairs or business prospects of the Company and its
subsidiaries, considered as one enterprise, or that could materially and
adversely affect the properties or assets of the Company and its
subsidiaries, considered as one enterprise, or that could adversely affect
the consummation of the transactions contemplated in this Agreement; the
aggregate liability or loss, if any, resulting from the final outcome of
all pending legal or governmental proceedings to which the Company or any
Significant Subsidiary is a party or which affect any of its properties
that are not described in the Prospectus, including ordinary routine
litigation incidental to its business, would not have a material adverse
effect on the condition (financial or otherwise), earnings, business
affairs or business prospects of the Company and its subsidiaries,
considered as one enterprise.
(xxii) There are no contracts or documents of a character required to
be described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement that are not described and
filed as required.
(xxiii) The Company and the Significant Subsidiaries each has good and
marketable title to all properties and assets described in the Prospectus
as owned by it, free and clear of all liens, charges, encumbrances or
restrictions, except such as (A) are described in the Prospectus or (B)
are neither material in amount nor materially significant in relation to
the business of the Company and its subsidiaries, considered as one
enterprise; all of the leases and subleases material to the business of
the Company and its subsidiaries, considered as one enterprise, and under
which the Company or any Significant Subsidiary holds properties described
in the Prospectus, are in full force and effect, and neither the Company
nor any Significant Subsidiary has any notice of any material claim of any
sort that has been asserted by anyone adverse to the rights of the Company
or any Significant Subsidiary under any of the leases or subleases
mentioned above, or affecting
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or questioning the rights of such corporation to the continued possession
of the leased or subleased premises under any such lease or sublease.
(xxiv) The Company and the Significant Subsidiaries each owns,
possesses or has obtained all material governmental licenses, permits,
certificates, consents, orders, approvals and other authorizations
necessary to own or lease, as the case may be, and to operate its
properties and to carry on its business as presently conducted, and
neither the Company nor any Significant Subsidiary has received any notice
of proceedings relating to revocation or modification of any such
licenses, permits, certificates, consents, orders, approvals or
authorizations that, in the aggregate, if the subject of an unfavorable
decision, ruling or finding, could materially adversely affect the
condition (financial or otherwise), earnings, business affairs or business
prospects of the Company and its subsidiaries, considered as one
enterprise.
(xxv) The Company and the Significant Subsidiaries each owns or
possesses, or can acquire on reasonable terms, adequate patents, patent
licenses, trademarks, service marks and trade names necessary to carry on
their businesses as presently conducted, and neither the Company nor any
of the Significant Subsidiaries has received any notice of infringement of
or conflict with asserted rights of others with respect to any patents,
patent licenses, trademarks, service marks or trade names that, in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
could materially adversely affect the condition (financial or otherwise),
earnings, business affairs or business prospects of the Company and its
subsidiaries, considered as one enterprise.
(xxvi) To the best knowledge of the Company, no labor problem exists
with its employees or with employees of the Significant Subsidiaries or is
imminent that could adversely affect the Company and its subsidiaries,
considered as one enterprise, and the Company is not aware of any existing
or imminent labor disturbance by the employees of any of its or the
Significant Subsidiaries' principal suppliers, contractors or customers
that could be expected to materially adversely affect the condition
(financial or otherwise), earnings, business affairs or business prospects
of the Company and its subsidiaries, considered as one enterprise.
(xxvii) The Company has not taken and will not take, directly or
indirectly, any action designed to, or that might be reasonably expected
to, cause or result in stabilization or manipulation of the price of the
Offered Securities or the Capital Securities.
(b) Any certificate signed by any duly authorized officer of the Company
or any Significant Subsidiary and delivered to you or to counsel for the
Underwriters shall be deemed a representation and warranty by the Company to
each Underwriter as to the matters covered thereby.
Section 2. PURCHASE AND SALE. (a) The several commitments of the
Underwriters to purchase Offered Securities pursuant to any Terms Agreement
shall be deemed to have been made on the basis of the representations and
warranties herein contained and shall be subject to the terms and conditions
herein set forth.
(b) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company may grant, if so provided in
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the Terms Agreement applicable to any Offered Securities, an option to the
Underwriters named in such Terms Agreement, severally and not jointly, to
purchase up to the amount of Option Securities set forth therein at the same
price per security (less, in the case of Common Stock, an amount per share
equal to any dividends declared by the Company and payable on the Offered
Securities but not payable on the Option Securities) as is applicable to the
Offered Securities. Such option, if granted, will expire 30 days after the
date of the Terms Agreement applicable to the Offered Securities, and may be
exercised in whole or in part from time to time only for the purpose of
covering over-allotments which may be made in connection with the offering and
distribution of the Offered Securities upon notice by you to the Company
setting forth the number of Option Securities as to which the several
Underwriters are then exercising the option and the time and date of payment
and delivery for such Option Securities. Any such time and date of delivery (a
"Date of Delivery") shall be determined by you, but shall not be later than
seven full business days and not earlier than two full business days after the
exercise of said option, nor in any event prior to the Closing Time, as
hereinafter defined, unless otherwise agreed upon by you and the Company. If
the option is exercised as to all or any portion of the Option Securities, each
of the Underwriters, acting severally and not jointly, will purchase that
proportion of the total number of Option Securities then being purchased which
the number of Offered Securities each such Underwriter has agreed to purchase,
as set forth in the applicable Terms Agreement, bears to the total number of
Offered Securities, subject to such adjustments as you in your discretion shall
make to eliminate any sales or purchases of fractional shares.
(c) Payment of the purchase price for, and delivery of, any Offered
Securities to be purchased by the Underwriters pursuant to the applicable Terms
Agreement shall be made at the office of The First National Bank of Boston, 100
Federal Street, Boston, Massachusetts 02110 or at such other place as shall be
agreed upon by you and the Company in the applicable Terms Agreement, at 10:00
A.M., New York City time, on the fifth business day (unless postponed in
accordance with the provisions of Section 10) following the date of the
applicable Terms Agreement or at such other time as shall be agreed upon by you
and the Company (each such time and date being referred to as a "Closing
Time"). In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates representing such Option Securities, shall be made at the
above-mentioned offices of The First National Bank of Boston, or at such other
place as shall be agreed upon by you and the Company, on each Date of Delivery
as specified in the notice from you to the Company. Payment shall be made to
the Company by certified or official bank check or checks in New York Clearing
House or similar next day funds payable to the order of the Company against
delivery to you for the respective accounts of the Underwriters of the Offered
Securities to be purchased by them. Such Offered Securities, certificates for
such Offered Securities or Depositary Receipts evidencing the Depositary
Shares, as applicable, shall be in such denominations and registered in such
names as you may request in writing at least two full business days prior to
the applicable Closing Time or Date of Delivery, as the case may be. Such
Offered Securities, certificates or Depositary Receipts, as applicable, will be
made available for examination and packaging by you not later than 10:00 A.M.
on the business day prior to Closing Time or Date of Delivery, as the case may
be.
Section 3. CERTAIN COVENANTS OF THE COMPANY. The Company covenants with
each Underwriter as follows:
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(a) (i) If reasonably requested by you in connection with the offering of
the Offered Securities, the Company will prepare a preliminary prospectus
supplement containing such information concerning the Offered Securities as you
and the Company deem appropriate and (ii) immediately following the execution
of each Terms Agreement, the Company will prepare a Prospectus Supplement that
complies with the 1933 Act and the 1933 Act Regulations and that sets forth the
number or principal amount of Offered Securities covered thereby, the names of
the Underwriters participating in the offering and the number or principal
amount of Offered Securities which each severally has agreed to purchase, the
name of each Underwriter, if any, acting as representative in connection with
the offering, the price at which the Offered Securities are to be purchased by
the Underwriters from the Company, the initial public offering price, the
selling concession and reallowance, if any, and such other information
concerning the Offered Securities as you and the Company deem appropriate in
connection with the offering of the Offered Securities. The Company will
promptly transmit copies of the Prospectus Supplement to the Commission for
filing pursuant to Rule 424 under the 1933 Act and will furnish to the
Underwriters named therein as many copies of any preliminary prospectus
supplement, the Prospectus and the Prospectus Supplement as you
shall reasonably request.
(b) If at any time when the Prospectus is required by the 1933 Act to be
delivered in connection with sales of the Offered Securities any event shall
occur or condition exist as a result of which it is necessary, in the opinion
of counsel for the Underwriters or counsel for the Company, to amend the
Registration Statement or amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of either
such counsel, at any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, the Company will promptly prepare and file
with the Commission, subject to Section 3(d), such amendment or supplement as
may be necessary to correct such untrue statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements.
(c) During the period when the Prospectus is required by the 1933 Act to
be delivered in connection with sales of the Offered Securities, the Company
will, subject to Section 3(d), file promptly all documents required to be filed
with the Commission pursuant to Section 13, 14 or 15(d) of the 1934 Act.
(d) During the period between the date of the applicable Terms Agreement
and the Closing Time, the Company will inform you of its intention to file any
amendment to the Registration Statement, any supplement to the Prospectus or
any document that would as a result thereof be incorporated by reference in the
Prospectus, will furnish you with copies of any such amendment, supplement or
other document and will not file any such amendment, supplement or other
document in a form to which you or your counsel shall reasonably object.
(e) During the period when the Prospectus is required by the 1933 Act to
be delivered in connection with sales of the Offered Securities, the Company
will notify you immediately, and confirm the notice in writing, (i) of the
effectiveness of any amendment to the Registration Statement, (ii) of the
mailing or the delivery to the Commission for filing of any supplement to the
Prospectus or any document that would as a result thereof be incorporated by
reference in the
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Prospectus, (iii) of the receipt of any comments from the Commission with
respect to the Registration Statement, the Prospectus or the Prospectus
Supplement, (iv) of any request by the Commission for any amendment to the
Registration Statement or any supplement to the Prospectus or for additional
information relating thereto or to any document incorporated by reference in
the Prospectus and (v) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement, of the suspension
of the qualification of the Offered Securities for offering or sale in any
jurisdiction, or of the institution or threatening of any proceeding for any of
such purposes. The Company will use every reasonable effort to prevent the
issuance of any such stop order or of any order suspending such qualification
and, if any such order is issued, to obtain the lifting thereof at the earliest
possible moment.
(f) The Company has furnished or will furnish to you as many copies of
the Registration Statement as originally filed and of all amendments thereto,
whether filed before or after the Registration Statement becomes effective,
copies of all exhibits and documents filed therewith (including documents
incorporated by reference into the Prospectus pursuant to Item 12 of Form S-3
under the 1933 Act) and copies of all consents and certificates of experts as
you may reasonably request, and has furnished or will furnish to you, for each
other Underwriter, one copy of the Registration Statement as originally filed
and of each amendment thereto (including documents incorporated by reference
into the Prospectus but without exhibits).
(g) The Company will use its best efforts, in cooperation with the
Underwriters, to qualify the Offered Securities and, if applicable, Capital
Securities into or for which the Subordinated Debt Securities are convertible
or exchangeable and the Capital Securities, other preferred stock or Debt
Securities into which the Preferred Shares are convertible or exchangeable, as
the case may be, for offering and sale under the applicable securities laws of
such states and other jurisdictions as you may designate and to maintain such
qualifications in effect for a period of not less than one year from the
effective date of the Terms Agreement applicable to such Offered Securities;
provided, however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation or as a
dealer in securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject. The Company will file such statements
and reports as may be required by the laws of each jurisdiction in which the
Offered Securities have been qualified as above provided.
(h) The Company will make generally available to its security holders as
soon as practicable, but not later than 90 days after the close of the period
covered thereby, an earnings statement of the Company (in form complying with
the provisions of Rule 158 of the 1933 Act Regulations) covering (i) a period
of 12 months beginning after the effective date of the Registration Statement
but not later than the first day of the Company's fiscal quarter next following
such effective date and (ii) a period of 12 months beginning after the date of
the applicable Terms Agreement but not later than the first day of the
Company's fiscal quarter next following the date of the applicable Terms
Agreement.
(i) If and to the extent specified in the applicable Terms Agreement, the
Company will use its best efforts to effect the listing of the Offered
Securities and, if applicable, the Capital Securities, other preferred stock or
Debt Securities issuable upon conversion of or exchange for, as the case may
be, Preferred Shares and/or Capital Securities issuable upon
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<PAGE> 15
conversion of or exchange for Subordinated Debt Securities, on the New
York Stock Exchange and the Boston Stock Exchange by the Closing Time with
respect to the applicable Terms Agreement.
(j) For a period of five years after the Closing Time, the Company will
furnish to you copies of all annual reports, quarterly reports and current
reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other
similar forms as may be designated by the Commission, and such other documents,
reports and information as shall be furnished by the Company to its
stockholders generally.
(k) Between the date of the applicable Terms Agreement and the Closing
Time or such other date as is set forth in such Terms Agreement, the Company
will not, without your prior written consent, directly or indirectly, sell,
offer to sell, grant any option for the sale of, or otherwise dispose of, the
securities set forth in such Terms Agreement, other than as set forth in such
Terms Agreement.
Section 4. PAYMENT OF EXPENSES. The Company will pay and bear all costs
and expenses incident to the performance of its obligations under this
Agreement and any applicable Terms Agreement, including (a) the preparation,
printing and filing of the Registration Statement (including financial
statements and exhibits), as originally filed and as amended, any preliminary
prospectus supplements and the Prospectus and any amendments or supplements
thereto, and the cost of furnishing copies thereof to the Underwriters, (b) the
preparation, printing and distribution of this Agreement, each Terms Agreement,
the Indentures, the Deposit Agreement, the Warrant Agreement, any Certificate
of Vote, the Offered Securities, any certificates for the Offered Securities
and Depositary Receipts, (c) the issuance and delivery of the Offered
Securities to the Underwriters, (d) the fees and disbursements of the Company's
counsel and accountants, (e) the qualification of the Offered Securities under
the applicable securities laws in accordance with Section 3(g) and any filing
for review of the offering with the National Association of Securities Dealers,
Inc., including filing fees and fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the Blue Sky Survey
and the Legal Investment Survey, (f) any fees charged by rating agencies for
rating any of the Offered Securities and (g) the fees and expenses incurred in
connection with the listing of the applicable Offered Securities and the
Capital Securities, other preferred stock or Debt Securities issuable upon
conversion or exchange thereof.
If a Terms Agreement is terminated by you in accordance with the
provisions of Section 5 or Section 9(i) hereof, the Company shall reimburse the
Underwriters named in such Terms Agreement for all of their out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for such
Underwriters.
Section 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. Except as otherwise
provided in the applicable Terms Agreement, the obligations of the Underwriters
to purchase and pay for the Offered Securities pursuant to any Terms Agreement
are subject to the accuracy of the representations and warranties of the
Company contained herein at and as of the date hereof, the date of any such
Terms Agreement, and the Closing Time or contained in certificates of any
officer of the Company or any Significant Subsidiary delivered pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder, and to the following further conditions:
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(a) At the Closing Time, no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act and no
proceedings for that purpose shall have been instituted or shall be pending or,
to your knowledge or the knowledge of the Company, shall be contemplated by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel for the Underwriters.
(b) At the applicable Closing Time, you shall have received a signed
opinion of Gary A. Spiess, General Counsel for the Company, dated as of the
Closing Time, together with signed or reproduced copies of such opinion for
each of the other Underwriters, in form and substance satisfactory to you or
your counsel, to the effect that:
(i) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the Commonwealth of Massachusetts
with corporate power and authority under such laws to own, lease and
operate its properties and conduct its business as described in the
Prospectus.
(ii) The Company is duly qualified to transact business as a foreign
corporation and is in good standing in each other jurisdiction in which it
owns or leases property of a nature, or transacts business of a type, that
would make such qualification necessary, except to the extent that the
failure to so qualify or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, considered as one
enterprise.
(iii) Each of FNBB, Casco and Hospital Trust is a duly organized and
validly existing national banking association under the laws of the United
States, continues to hold a valid certificate to do business as such and
has full power and authority to conduct its business as such; Bank of
Boston Connecticut is a duly organized and validly existing
state-chartered banking association under the laws of the State of
Connecticut, continues to hold a valid certificate to do business as such
and has full power and authority to conduct its business as such; Bank of
Vermont is a duly organized and validly existing state-chartered banking
association under the laws of the State of Vermont, continues to hold a
valid certificate to do business as such and has full power and authority
to conduct its business as such; each of Multibank West, Mechanics Bank
and South Shore Bank is a duly organized and validly existing
state-chartered banking association under the laws of the State of
Massachusetts, continues to hold a valid certificate to do business as
such and has full power and authority to conduct its business as such; and
each Significant Subsidiary has the authority under its jurisdiction of
organization to own, lease and operate its properties and to conduct its
business.
(iv) Each Significant Subsidiary is duly authorized to transact
business and is in good standing in each jurisdiction in which it owns or
leases property of a nature, or transacts business of a type, that would
make such qualification necessary, except to the extent that the failure
to so qualify or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, considered as one enterprise.
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(v) The Company is duly registered under the Bank Holding Company
Act of l956, as amended; and each Significant Subsidiary is duly
authorized to conduct such banking business in each jurisdiction in which
its banking business is conducted.
(vi) If the Prospectus contains a description of the capitalization
of the Company, (a) the Company had at the date indicated a duly
authorized and outstanding capitalization as set forth in the Prospectus,
(b) all of the outstanding shares of Capital Securities of the Company
have been duly authorized and validly issued and are fully paid and
non-assessable, and (c) none of the outstanding shares of Capital
Securities was issued in violation of the preemptive rights of any
stockholder of the Company.
(vii) The Offered Securities conform in all material respects as to
legal matters to the description thereof contained or incorporated by
reference in the Prospectus and such description conforms in all material
respects to the rights set forth in the instruments defining the same.
(viii) All of the outstanding shares of capital stock of each
Significant Subsidiary have been duly authorized and validly issued and
are fully paid and non-assessable; except for directors' qualifying
shares, all of such shares are owned by the Company, directly or through
one or more subsidiaries, free and clear of any pledge, lien, security
interest, charge, claim, equity or encumbrance of any kind; and none of
such shares was issued in violation of the preemptive rights of any
stockholder of the Significant Subsidiaries.
(ix) If the Offered Securities include Preferred Shares, such
Preferred Shares have been duly authorized and, when such Preferred Shares
are duly executed and delivered and issued and paid for in accordance with
this Agreement and the applicable Terms Agreement, such Preferred Shares
will have been validly issued, fully paid and non- assessable; subject to
the provisions of Massachusetts General Laws, Chapter 156B, Section 45, no
holder thereof will be subject to personal liability by reason of being
such a holder; such Preferred Shares will not be subject to the preemptive
rights of any stockholder of the Company; and all corporate action
required to be taken for the authorization, issue and sale of such
Preferred Shares has been validly and sufficiently taken; and, if the
Offered Securities include Preferred Shares that are to be represented by
Depositary Shares, then, upon deposit by the Company of such Preferred
Shares with the Depositary pursuant to the Deposit Agreement and the
execution by the Depositary of the Depositary Receipts evidencing the
Depositary Shares, such Depositary Shares shall represent legal and valid
interests in such Preferred Shares; and, if the Offered Securities include
Preferred Shares that are convertible into Capital Securities or other
preferred stock or exchangeable for Capital Securities or Debt Securities,
then such Preferred Shares are convertible into Capital Securities or
other preferred stock or exchangeable for Capital Securities or Debt
Securities in accordance with their terms and the terms of the Certificate
of Vote.
(x) If the Offered Securities include Common Stock, such Common
Stock shall, on the date of the Terms Agreement relating to such Offered
Securities, be duly authorized and, when such Common Stock is duly
executed and delivered and issued and paid for in accordance with this
Agreement and the applicable Terms Agreement, such Common Stock will
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<PAGE> 18
have been validly issued, fully paid and non-assessable; subject to
the provisions of Massachusetts General Laws, Chapter 156B, Section 45, no
holder thereof will be subject to personal liability by reason of being
such a holder; such Common Stock will not be subject to the preemptive
of any stockholder of the Company; and all corporate action rights
required to be taken for the authorization, issue and sale of such Common
Stock has been, or at the Closing Time will be, validly and sufficiently
taken.
(xi) If the Offered Securities include Debt Securities, such Debt
Securities have been duly authorized and, when such Debt Securities are
duly executed, authenticated and delivered in the manner provided for in
the applicable Indenture and issued and paid for in accordance with this
Agreement and the applicable Terms Agreement, such Debt Securities will
constitute valid and binding obligations of the Company entitled to the
benefits of the applicable Indenture and enforceable against the Company
in accordance with their terms, except as enforcement thereof may be
limited by the receivership, conservatorship and supervisory powers of
bank regulatory agencies generally as well as bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject
to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law) and the availability of
equitable remedies; and, if the Offered Securities include Subordinated
Debt Securities that are convertible into of exchangeable for Capital
Securities, then such Subordinated Debt Securities are convertible into or
exchangeable for Capital Securities in accordance with their terms and the
terms of the Subordinated Indenture.
(xii) If the Offered Securities include Warrants, such Warrants have
been duly authorized and, when such Warrants are duly executed,
authenticated and delivered in the manner provided for in the Warrant
Agreement and issued and paid for in accordance with this Agreement and
the applicable Terms Agreement, such Warrants will constitute valid and
binding obligations of the Company entitled to the benefits of the Warrant
Agreement and enforceable against the Company in accordance with their
terms, except as enforcement thereof may be limited by the receivership,
conservatorship and supervisory powers of bank regulatory agencies
generally as well as to bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting enforcement of creditors' rights generally
and except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a proceeding in
equity or at law) and the availability of equitable remedies; and the
Warrants are exercisable for Debt Securities, Preferred Shares or Common
Stock in accordance with their terms and the terms of the Warrant
Agreement.
(xiii) If the Offered Securities include Preferred Shares convertible
into Capital Securities or other preferred stock or exchangeable for
Capital Securities and/or Subordinated Debt Securities convertible into or
exchangeable for Capital Securities, the Capital Securities or other
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<PAGE> 19
preferred stock issuable upon conversion or exchange, as the case may be,
of the Preferred Shares pursuant to their terms and the terms of the
Certificate of Vote and/or the Capital Securities issuable upon conversion
of or exchange for the Subordinated Debt Securities pursuant to their
terms and the terms of the Subordinated Indenture, have been duly
authorized and validly reserved for issuance upon such conversion by all
necessary corporate action and such Capital Securities or other preferred
stock, when issued upon such conversion, will be validly issued, fully
paid and nonassessable; subject to provisions of Massachusetts General
Laws, Chapter 156B, Section 45, no holder thereof will be subject to
personal liability by reason of being such a holder; and the issuance of
such Capital Securities or other preferred stock upon such conversion or
exchange, as the case may be, will not be subject to preemptive rights.
(xiv) If the Offered Securities include Debt Securities or Preferred
Shares exchangeable for Debt Securities, the applicable Indenture has been
duly authorized, executed and delivered by the Company and, assuming due
authorization, execution and delivery thereof by the applicable Trustee,
constitutes a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as enforcement
thereof may be limited by the receivership, conservatorship and
supervisory powers of bank regulatory agencies generally as well as
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at law)
and the availability of equitable remedies; and the Indenture has been
duly qualified under the 1939 Act.
(xv) If the Offered Securities include Depositary Shares, the Deposit
Agreement has been duly authorized, executed and delivered by the Company
and, assuming due authorization, execution and delivery thereof by the
Depositary, constitutes a valid and binding obligation of the Company
enforceable in accordance with its terms, except as enforcement thereof
may be limited by the receivership, conservatorship and supervisory powers
of bank regulatory agencies generally as well as bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting
enforcement of creditors' rights or by general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity
or at law) and the availability of equitable remedies.
(xvi) If the Offered Securities include Warrants, the Warrant
Agreement has been duly authorized, executed and delivered by the Company
and, assuming due authorization, execution and delivery thereof by the
Warrant Agent, constitutes a valid and binding obligation of the Company
enforceable in accordance with its terms, except as enforcement thereof
may be limited by the receivership, conservatorship and supervisory powers
of bank regulatory agencies generally as well as to bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law) and the
availability of equitable remedies.
(xvii) This Agreement and the applicable Terms Agreement have been
duly authorized, executed and delivered by the Company.
(xviii) Each authorization, approval, consent or license of any
government, governmental instrumentality or court, domestic or foreign
(other than under the 1933 Act, the 1939 Act and the securities or blue
sky laws of the various states), which is required for (A) the valid
authorization, issuance, sale and delivery of the Offered Securities or
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<PAGE> 20
(B) the execution, delivery or performance of this Agreement, the
applicable Terms Agreement, the applicable Indenture, the Warrant
Agreement, any Certificate of Vote or the Deposit Agreement, as
applicable, by the Company has been received.
(xix) Such counsel does not know of any statutes or regulations, or
any pending or threatened legal or governmental proceedings, required to be
described in the Prospectus that are not described as required, nor of any
contracts or documents of a character required to be described or referred
to in the Prospectus or to be filed as exhibits to the Registration
Statement that are not described, referred to or filed as required.
(xx) The descriptions in the Prospectus of the statutes, regulations,
legal or governmental proceedings, contracts and other documents therein
described are accurate and fairly discuss in all material respects the
information required to be shown.
(xxi) Except with respect to undertakings or agreements with bank
regulatory authorities, the disclosure with respect to which is addressed
in clause (xxv) below, to the knowledge of such counsel, no default exists
in the performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, loan
agreement, note, lease or other agreement or instrument that is described
or referred to in the Prospectus or filed as an exhibit to the
Registration Statement.
(xxii) The execution and delivery of this Agreement, the applicable
Terms Agreement, the applicable Indenture, the Warrant Agreement, any
Certificate of Vote and the Deposit Agreement, as applicable, by the
Company, the issuance and delivery of the Offered Securities and the
consummation by the Company of the transactions contemplated in this
Agreement, the applicable Terms Agreement and in the Registration
Statement and compliance by the Company with the terms of this Agreement,
the applicable Terms Agreement, the applicable Indenture, the Warrant
Agreement, any Certificate of Vote and the Deposit Agreement, as
applicable, do not and will not result in any violation of the charter or
by-laws of the Company or any Significant Subsidiary, and do not and will
not conflict with, or result in a breach of any of the terms or provisions
of, or constitute a default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the
Company or any Significant Subsidiary under (A) any indenture, mortgage or
loan agreement, or any other agreement or instrument known to such
counsel, to which the Company or any Significant Subsidiary is a party or
by which it may be bound or to which any of its properties may be subject
(except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a material adverse effect on the
condition (financial or otherwise), earnings, business affairs or business
prospects of the Company and its subsidiaries, considered as one
enterprise), (B) any existing applicable law, rule or regulation (other
than the securities or blue sky laws of the various states, as to which
such counsel need express no opinion), or (C) any judgment, order or
decree of any government, governmental instrumentality or court, domestic
or foreign, having jurisdiction over the Company or any Significant
Subsidiary or any of its properties.
(xxiii) The Registration Statement is effective under the 1933 Act,
and to the best of the knowledge of such counsel, no stop order suspending
the effectiveness of the
20
<PAGE> 21
Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or are contemplated under the
1933 Act.
(xxiv) The Registration Statement and the Prospectus, excluding the
documents incorporated by reference therein, and each amendment or
supplement thereto (except for the financial statements and other
financial or statistical data included therein or omitted therefrom, as to
which such counsel need express no opinion), as of their respective
effective or issue dates and as of the date of the applicable Terms
Agreement, appear on their face to have been appropriately responsive in
all material respects to the requirements of the 1933 Act and the 1933 Act
Regulations.
(xxv) The documents incorporated by reference in the Prospectus
(except for the financial statements and other financial or statistical
data included therein or omitted therefrom, as to which such counsel need
express no opinion, and except to the extent that any statement therein is
modified or superseded in the Prospectus), as of the dates they were filed
with the Commission and as of the date of the applicable Terms Agreement,
appear on their face to have been appropriately responsive in all material
respects to the requirements of the 1934 Act and the 1934 Act Regulations.
(xxvi) Such counsel has participated in the preparation of the
Registration Statement and the Prospectus and is familiar with or has
participated in the preparation of the documents incorporated by reference
therein and no facts have come to the attention of such counsel to lead
him to believe (A) that the Registration Statement or any amendment
thereto (except for the financial statements and other financial or
statistical data included therein or omitted therefrom, as to which such
counsel need express no opinion), on the original effective date of the
Registration Statement, on the effective date of the most recent
post-effective amendment thereto, if any, on the date of the filing of any
annual report on Form 10-K after the filing of the Registration Statement,
on the date of this Agreement, on the date of the applicable Terms
Agreement, on the date any such amendment became effective after the date
of this Agreement or the date of the applicable Terms Agreement, contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, or (B) that the Prospectus or any amendment or supplement
thereto (except for the financial statements and other financial or
statistical data included therein or omitted therefrom, as to which such
counsel need express no opinion), at the time the Prospectus Supplement
was issued, at the time any such amended or supplemented Prospectus was
issued or at the Closing Time, included or includes an untrue statement of
a material fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or (C) that the documents
incorporated by reference in the Prospectus (except for the financial
statements and other financial or statistical data included therein or
omitted therefrom, as to which such counsel need express no opinion, and
except to the extent that any statement therein is modified or superseded
in the Prospectus), as of the dates they were filed with the Commission,
contained an untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading.
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<PAGE> 22
Such opinion shall be to such further effect with respect to other legal
matters relating to this Agreement, the Terms Agreement and the sale of the
Offered Securities pursuant to this Agreement as counsel for the Underwriters
may reasonably request. Such opinion shall be limited to Massachusetts and
federal law. In giving such opinion, such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the law of the Commonwealth of
Massachusetts and the federal law of the United States, upon opinions of other
counsel, who shall be counsel satisfactory to counsel for the Underwriters, in
which case the opinion shall state that such counsel is entitled to so rely.
Such counsel may also state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem proper, upon certificates of
officers of the Company and the Significant Subsidiaries and certificates of
public officials.
(c) At the applicable Closing Time, you shall have received the favorable
opinion of Brown & Wood, counsel for the Underwriters, dated as of the Closing
Time, together with signed or reproduced copies of such opinion for each of the
other Underwriters, to the effect that the opinion delivered pursuant to
Section 5(b) appears on its face to be appropriately responsive to the
requirements of this Agreement and the applicable Terms Agreement except,
specifying the same, to the extent waived by you, and with respect to the
incorporation and legal existence of the Company, the Offered Securities, this
Agreement, the Registration Statement, the Prospectus and such other related
matters as you may require. In giving such opinion, such counsel may rely, as
to all matters governed by the laws of jurisdictions other than the law of the
State of New York and the federal law of the United States, upon the opinions
of counsel satisfactory to you. Such counsel may also state that, insofar as
such opinion involves factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the Company and the Significant
Subsidiaries and certificates of public officials.
(d) At the applicable Closing Time there shall not have been, since the
date of the applicable Terms Agreement or since the respective dates as of
which information is given in the Registration Statement, any material adverse
change in the condition (financial or otherwise) or in the earnings, business
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business, and
you shall have received a certificate of the Chairman, the President or a Vice
President, and the Treasurer, the Department Executive, Treasury or the
Comptroller of the Company, dated as of such Closing Time, to the effect that
(i) there has been no such material adverse change, (ii) the representations
and warranties of the Company contained in Section 1 hereof are true and
correct with the same force and effect as though expressly made at and as of
such Closing Time, (iii) the Company has complied with all agreements and
satisfied all conditions on its part to be complied with or satisfied at or
prior to such Closing Time, and (iv) to the best knowledge of such person, no
stop order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been initiated or threatened by
the Commission.
(e) Coopers & Lybrand shall have furnished to you a letter or letters (in
each case in form and.substance satisfactory to you), together with signed or
reproduced copies of such letter or letters for each of the other Underwriters,
if any, making the statements contained in paragraphs (1) and (2) as follows:
(1) At the date of the applicable Terms Agreement, a letter relating
to the Company (the "Terms Agreement Letter"), to the effect that:
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<PAGE> 23
(a) They are independent public accountants with respect to the
Company within the meaning of the 1933 Act and the applicable
published 1933 Act Regulations.
(b) In their opinion, the audited financial statements and the
related financial statement schedules included or incorporated by
reference in the Company's most recently filed annual report on Form
10-K comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations
with respect to Registration Statements on Form S-3 and the 1934 Act
and the 1934 Act Regulations with respect to annual reports on Form
10-K.
(c) On the basis of procedures (but not an examination in
accordance with generally accepted auditing standards) consisting of
a reading of the minutes of all meetings of the stockholders and
directors of the Company and of FNBB and the minutes of meetings of
the Executive, Audit and Compensation and Nominating Committees of
the Board of Directors of the Company from the date of the latest
audited consolidated financial statements of the Company, a reading
of the unaudited consolidated financial statements of the Company and
its subsidiaries included or incorporated by reference in each of the
Company's quarterly reports on Form 10-Q filed prior to the date of
the applicable Terms Agreement and subsequent to the Form 10-K
described in (b) above, a reading of the most recent consolidated
financial statement of the Company, and inquiries of certain
officials of the Company and its subsidiaries responsible for
financial and accounting matters, all such inquiries and procedures
being carried out to a specified date not more than five business
days prior to the date of the Terms Agreement Letter, nothing came to
their attention that caused them to believe that:
(i) the unaudited consolidated financial statements
included or incorporated by reference in each quarterly report
on Form 10-Q do not comply as to form in all material respects
with the applicable accounting requirements of the 1934 Act and
the 1934 Act Regulations with respect to Form 10-Q; or
(ii) such unaudited consolidated financial statements are
not in conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of audited
consolidated financial statements referred to above, except as
disclosed in the notes to such unaudited consolidated financial
statements or as otherwise described in such Terms Agreement
Letter; or
(iii) there was any increase at the specified date in the
consolidated notes payable of the Company and its consolidated
subsidiaries or any increase in the number of shares of Capital
Securities outstanding of the Company, or any decrease in the
stockholder's equity of the Company, in each case as compared
with the most recent balance sheet included; or
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<PAGE> 24
incorporated by reference in the Registration Statement, except
in each case for changes, decreases or increases that the
Registration Statement discloses have occurred or may occur, or
which are disclosed in the Terms Agreement Letter; or
(iv) for the period from the date of the latest consolidated
balance sheet of the Company and its subsidiaries included or
incorporated by reference in the Prospectus to such specified
date, there was any decrease in the net interest revenue or net
income, in each case as compared with the comparable period in
the preceding year, except in each case for any decreases that
the Registration Statement discloses have occurred or may occur,
or which are disclosed in the Terms Agreement Letter.
(d) Such letter shall further state that, in addition to their
examinations, inspections, inquiries and other procedures referred to
therein, they have performed such other procedures, specified by you,
not constituting an audit, as they have agreed to perform and report
on with respect to certain amounts, percentages, numerical data and
other financial information in the most recently filed Form 10-K,
each Form 10-Q incorporated by reference in the Registration
Statement, the Registration Statement, the Prospectus and the
exhibits to the Registration Statement or in other documents
incorporated by reference in the Prospectus, and have compared
certain of such amounts, percentages, numerical data and financial
information with, and have found such items to be in agreement with
or derived from, the detailed accounting and financial records of the
Company and its subsidiaries.
(2) At the Closing Time, a letter dated the Closing Time (the
"Closing Letter"), to the effect that they reaffirm as of the date of
the Closing Letter (and as though made on the date of the Closing
Letter) all statements made in the Terms Agreement Letter, except
that the inquiries and procedures specified therein shall have been
carried out to a specified date not more than five days prior to the
date of the Closing Letter.
(e) Between the date of the applicable Terms Agreement and the
Closing Time, (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities or preferred stock by any
"nationally recognized statistical rating organization," as that
term is defined by the Commission for purposes of Rule 436(g)(2) under the
1933 Act and (ii) no such organization shall have given any notice of any
intended or potential downgrading or of any surveillance or review, with
possible negative implications, of its rating of any of the Company's debt
securities or preferred stock.
(f) On or prior to the Closing Time, the Offered Securities shall
have been duly authorized for listing on such exchange, if any, as is
specified in the applicable Terms Agreement.
(g) At the Closing Time, counsel for the Underwriters shall have
been furnished with all such documents, certificates and opinions as they
may require for the purpose of
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<PAGE> 25
enabling them to pass upon the issuance and sale of the Offered
Securities as herein contemplated and related proceedings, or in order to
evidence the accuracy and completeness of any of the representations,
warranties or statements of the Company, the performance of any of the
covenants of the Company, or the fulfillment of any of the conditions
herein contained; and all proceedings taken by the Company at or prior to
the Closing Time in connection with the authorization, issuance and sale
of the Offered Securities as herein contemplated shall be satisfactory in
form and substance to you and counsel for the Underwriters.
(h) In the event the Underwriters exercise their option provided in
a Terms Agreement as set forth in Section 2(b) hereof to purchase all or
any portion of the Option Securities, the representations and warranties
of the Company contained herein and the statements in any certificates
furnished by the Company hereunder shall be true and correct as of each
Date of Delivery, and you shall have received:
(1) A certificate, dated such Date of Delivery, of the
Chairman, the President or a Vice President, and the Treasurer, the
Department Executive, Treasury or the Comptroller of the Company, in
their capacities as such, confirming that the certificate delivered
at Closing Time pursuant to Section 5(d) hereof remains true and
correct as of such Date of Delivery.
(2) The favorable opinion of Gary A. Spiess, General Counsel
for the Company, in form and substance satisfactory to counsel for
the Underwriters, dated such Date of Delivery, relating to the Option
Securities and otherwise substantially to the same effect as the
opinion required by; Section 5(b) hereof.
(3) The favorable opinion of Brown & Wood, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities and otherwise to the same effect as the opinion required
by Section 5(c) hereof.
(4) A letter from Coopers & Lybrand in form and substance
satisfactory to you and dated such Date of Delivery, substantially
the same in scope and substance as the Closing Letter furnished to
you pursuant to Section 5(e)(2) hereof, except that the "specified
date" in the letter shall be a date not more than five days prior to
such Date of Delivery.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, the applicable Terms Agreement may be
terminated by you by notice to the Company at any time at or prior to the
applicable Closing Time, and such termination shall be without liability of any
party to any other party except as provided in Section 4 hereof.
Notwithstanding any such termination, the provisions of Sections 6, 7 and 8
shall remain in effect.
Section 6. INDEMNIFICATION. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act as follows:
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(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of an untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), and all documents incorporated
therein by reference, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of an untrue statement or
alleged untrue statement of a material fact contained in any preliminary
prospectus, or any preliminary prospectus supplement, or the Prospectus
(or any amendment or supplement thereto) or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including
fees and disbursements of counsel chosen by you), reasonably incurred in
investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission,
to the extent that any such expense is not paid under subparagraph (i) or
(ii) above;
PROVIDED, HOWEVER, that this indemnity agreement does not apply to any loss,
liability, claim, damage or expense to the extent arising out of an untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through you expressly for use in the Registration Statement (or any
amendment thereto) or any preliminary prospectus, or any preliminary prospectus
supplement, or the Prospectus (or any amendment or supplement thereto).
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act, against any and all loss, liability, claim,
damage and expense described in the indemnity contained in Section 6(a), as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or any preliminary prospectus, or any preliminary prospectus
supplement or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through you expressly for use in the Registration
Statement (or any amendment thereto) or any preliminary prospectus, or any
preliminary prospectus supplement or the Prospectus (or any amendment or
supplement thereto).
(c) Each indemnified party shall give prompt notice to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. An indemnifying party may participate at
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its own expense in the defense of such action. In no event shall the
indemnifying parties be liable for the fees and expenses of more than one
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances.
Section 7. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances under which the indemnity provided for in Section
6 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company and the
Underwriters shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by such indemnity agreement
incurred by the Company and one or more of the Underwriters, as incurred, in
such proportions that (a) the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount appearing on the
cover page of the Prospectus bears to the initial public offering price
appearing thereon and (b) the Company is responsible for the balance; PROVIDED,
HOWEVER, that (i) in no case shall any Underwriter be liable or responsible for
any amount in excess of the underwriting discount applicable to the Offered
Securities purchased by such Underwriter hereunder and under the applicable
Terms Agreement and (ii) no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act shall
have the same rights to contribution as such Underwriter, and each director of
the Company, each officer of the Company who signed the Registration Statement,
and each person, if any, who controls the Company within the meaning of Section
15 of the 1933 Act shall have the same rights to contribution as the Company.
Section 8. REPRESENTATIONS WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
The representations, warranties, indemnities, agreements and other statements
of the Company or its officers set forth in or made pursuant to this Agreement
and any Terms Agreement shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of the Company or any
Underwriter or controlling person and shall survive delivery of and payment
therefor for the Offered Securities.
Section 9. TERMINATION OF AGREEMENT.
(a) This Agreement may be terminated for any reason at any time by either
the Company or you upon the giving of thirty days' written notice of such
termination to the other party hereto. You may also terminate a Terms
Agreement, immediately upon notice to the Company, at any time at or prior to
the applicable Closing Time (i) if there shall have been, since the date of
such Terms Agreement or since the respective dates as of which information is
given in the Registration Statement, any material adverse change in the
condition (financial or otherwise), earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business or (ii) if there
shall have occurred any outbreak or escalation of existing hostilities or other
national or international calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in your
reasonable judgment, impracticable to market the Offered Securities or to
enforce contracts for the sale of the Offered Securities or (iii) if trading in
any securities of the Company has been suspended by the Commission or the
National Association of Securities Dealers, Inc., or if trading generally on
the New York Stock Exchange, the Boston
27
<PAGE> 28
Stock Exchange or in the over-the-counter market has been suspended, or
minimum or maximum prices for trading shall have been fixed, or maximum ranges
for prices for securities have been required, by such exchanges or by order of
the Commission, any exchange on which such securities are listed or any other
governmental authority with appropriate jurisdiction over such matters or (iv)
if a banking moratorium has been declared by either federal or New York
authorities.
(b) If this Agreement or any Terms Agreement is terminated pursuant to
this Section, such termination shall be without liability of any party to any
other party, except to the extent provided in Section 4. Notwithstanding any
such termination (i) the covenants set forth in Section 3(b), (c) and (e) with
respect to any offering of Offered Securities shall remain in effect so long as
any Underwriter owns any such Offered Securities purchased from the Company
pursuant to the applicable Terms Agreement and during the period when the
Prospectus is required to be delivered in connection with sales of the Offered
Securities and (ii) the - covenants set forth in Section 3(g), (h), (j) and, if
applicable, (k), the provisions of Section 4, the indemnity agreement set forth
in Section 6, the contribution provisions set forth in Section 7 and the
provisions of Sections 8 and 13 shall remain in effect.
Section 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more
of the Underwriters participating in an offering of Offered Securities shall
fail at the applicable Closing Time to purchase the Offered Securities which it
or they are obligated to purchase hereunder and under the applicable Terms
Agreement (the "Defaulted Securities"), you shall have the right, within 36
hours thereafter, to make arrangements for one or more of the nondefaulting
Underwriters, or any other underwriters, to purchase all, but not less than
all, of the Defaulted Securities in such amounts as may be agreed upon and upon
the terms herein set forth; if, however, you have not completed such
arrangements within such 36-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of Offered Securities to be purchased pursuant to such Terms
Agreement, the nondefaulting Underwriters named in such Terms Agreement
shall be obligated to purchase the full amount thereof in the proportions
that their respective underwriting obligations bear to the underwriting
obligations of all nondefaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the Offered
Securities to be purchased pursuant to such Terms Agreement, the
applicable Terms Agreement shall terminate without liability on the part
of any nondefaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default under this Agreement and
the applicable Terms Agreement.
In the event of any such default that does not result in the termination
of the applicable Terms Agreement, either you or the Company shall have the
right to postpone the applicable Closing Time for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 10.
Section 11. NOTICES. All notices and other communications under this
Agreement and any Terms Agreement shall be in writing and shall be deemed to
have been duly given if delivered, mailed or transmitted by any standard form
of telecommunication. Notices to the Underwriters
28
<PAGE> 29
shall be directed to _______, or in respect of any Terms Agreement, to such
other person and place as may be specified therein; notices to the Company
shall be directed to it at Bank of Boston Corporation, 100 Federal Street,
01-24-07, Boston, Massachusetts 02110, attention of Gary A. Spiess, General
Counsel.
Section 12. PARTIES. This Agreement herein set forth and any Terms
Agreement is made solely for the benefit of any Underwriter which becomes a
party to a Terms Agreement, the Company and, to the extent expressed, any
person controlling the Company or any such Underwriter, and the directors of
the Company, its officers who have signed the Registration Statement, and their
respective executors, administrators, successors and assigns and, subject to
the provisions of Section 10, no other person shall acquire or have any right
under or by virtue of this Agreement. The term "successors and assigns" shall
not include any purchaser, as such purchaser, from any Underwriter of the
Offered Securities. All of the obligations of any Underwriters hereunder and
under any Terms Agreement are several and not joint.
Section 13. GOVERNING LAW AND TIME. This Agreement and each Terms
Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed in said
State. Specified times of day refer to New York City time.
Section 14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and when a counterpart has been executed by each party, all such
counterparts taken together shall constitute one and the same agreement.
------------------------
29
<PAGE> 30
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company and each
Underwriter in accordance with its terms.
Very truly yours,
BANK OF BOSTON CORPORATION
By _____________________
Name and Title:
Confirmed and accepted as of
the date first above written:
30
<PAGE> 31
EXHIBIT A
BANK OF BOSTON CORPORATION
[Title of Securities]
TERMS AGREEMENT
Dated: , 199_
To: Bank of Boston Corporation
100 Federal Street
Boston, Massachusetts 02110
Re: Underwriting Agreement dated , 199_.
Dear Sirs:
<TABLE>
We (the "Representative[s]") understand that Bank of Boston Corporation, a
Massachusetts corporation (the "Company"), proposes to issue and sell [[$
aggregate principal amount] of its [senior debt securities] [and] [subordinated
[convertible or exchangeable] debt securities] (the "Debt Securities")] [and]
[_______ shares of its [convertible] [exchangeable] preferred stock (the
"Preferred Shares")] [_____ depositary shares (the "Depositary Shares") each
representing ____ of a share of ____ preferred stock] [and] [____ shares of
its common stock, par value $2.25 per sahre ("Common Stock")]. This Agreement
is the Terms Agreement referred to in the underwriting agreement dated
____________, 199_ (the "Underwriting Agreement"). Subject to the terms and
conditions set forth herein or incorporated by reference herein, the
Underwriters named below (the "Underwriters") offer to purchase, severally and
not jointly, the respective [amounts of [Debt Securities] [and] [Preferred
Shares] [Depositary Shares]] [numbers of shares of Common Stock] set forth
below.
<CAPTION>
Principal Principal Principal Number
Amount of Amount of Amount of of Shares
Name of Debt Preferred Depositary of Common
Underwriter Securities Shares Shares Stock
---------- --------- ---------- ---------
<S> <C> <C> <C> <C>
__________ __________ _________ __________
Total $_________ $_________ $________ _________
</TABLE>
<PAGE> 32
Debt Securities
---------------
Title of Debt Securities:
Principal amount to be issued: $
Senior or Subordinated:
Currency:
Current ratings:
Interest rate or formula: %
Interest payment dates:
Date of maturity:
Redemption provisions:
Sinking fund requirements:
Initial public offering price: % of the principal amount,
plus accrued interest, if any, [or amortized original issue discount, if
any,] from , 19 .
Purchase price: % of the principal amount, plus accrued
interest, if any, [or amortized original issue discount, if any,] from
, 19 (payable in next day funds).
Listing requirement: [None] [NYSE] [BSE]
Convertible:
Conversion provisions:
Exchangeable:
Exchange provisions:
Closing date and location:
Additional representations, if any:
Redemption provisions:
Lock-up provisions:
Sinking fund requirements:
Number of Option Securities, if any:
Other terms and conditions:
<PAGE> 33
Preferred Shares
----------------
Title of Preferred Shares:
Principal amount to be issued: $
Currency:
Annual cash dividend rate: % Payable:
Liquidation preference per Share:
Initial public offering price: %, plus accrued interest or
amortized original issue discount, if any, from __________, 19__
Purchase Price: %, plus accrued interest or amortized
original issue discount, if any, from _____________, 19__ (payable in next
day funds).
Listing Requirement: [None] [NYSE] [BSE]
Convertible:
Initial Conversion price: $____ per share of [Common Stock]
[Preferred Stock] [Capital Securities].
Other conversion provisions:
Exchangeable:
Exchange Provisions:
Closing date and location:
Additional representations, if any:
Redemption provisions:
Lock-up provisions:
Sinking fund requirements:
Number of Option Securities, if any:
Other terms and conditions:
Depositary Shares
-----------------
Title of Depositary Shares:
Principal amount to be issued: $
Currency:
<PAGE> 34
Fractional amount of Preferred Shares represented
by each Depositary Share:
Initial public offering price per Depositary Share: % of
the principal amount, plus accrued interest [or amortized original issue
discount], if
any, from ____________, 19__.
Purchase price per Depository Share:
(amount equal to the initial public offering price set forth above, less
$________ per Depositary Share).
Annual cash dividend amount: $ Payable:
Closing date and location:
Additional representations, if any:
Redemption provisions:
Lock-up provisions:
Sinking fund requirements:
Number of Option Securities, if any:
Other terms and conditions:
Common Stock
------------
Initial public offering price per share:
Purchase Price per share:
Listing Requirement: [NYSE] [BSE]
Closing date and location:
Additional representations, if any:
Lock-up provisions:
Number of Option Securities, if any:
Purchase Price per Option Security:
Other terms and conditions:
Warrants
--------
Title of Warrants:
<PAGE> 35
Number to be issued:
Currency:
Initial public offering price per Warrant: $
Purchase price per Warrant: $
Listing requirement: [None] [NYSE] [BSE]
Exercisable for:
Exercise price:
Exercise provisions:
Closing date and location:
Additional representations, if any:
Redemption provisions:
Lock-up provisions:
Other terms and conditions:
Each Underwriter severally agrees, subject to the terms and provisions of
the above referenced Underwriting Agreement, which is incorporated herein in
its entirety and made a part hereof, to purchase the [principal amount] [number
of shares] of Offered Securities set forth opposite its name and a
proportionate share of Option Securities to the extent any are purchased.
This Agreement shall be governed by the laws of the State of New York
applicable to agreements made and to be performed in said State.
If the foregoing is in accordance with your understanding of the agreement
between you and the Company, please sign and return to the Company a
counterpart hereof, whereupon this instrument, along with all counterparts and
together with the Underwriting Agreement, shall be a binding agreement between
the Underwriters named herein and the Company in accordance with its terms and
the terms of the Underwriting Agreement.
Very truly yours,
[Representatives[s]]
By _________________________
Acting on behalf of themselves and the other
named Underwriters
Confirmed and accepted as of
the date first above written:
<PAGE> 36
BANK OF BOSTON CORPORATION
By: ______________________
Name and Title:
<PAGE> 1
Exhibit 4.F
__________________________________________________________
BANK OF BOSTON CORPORATION
and
________________________________________________________
As Warrant Agent
________________________________________________________
Warrant Agreement
Dated as of ____________, 199_
1
<PAGE> 2
<TABLE>
Table of Contents*
------------------
<CAPTION>
PAGE
----
<S> <C> <C>
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION
AND DELIVERY OF WARRANT CERTIFICATES............ 2
SECTION 1.01. Issuance of Warrants............................ 2
SECTION 1.02. Execution and Delivery of Warrant Certificates.. 2
SECTION 1.03. Issuance of Warrant Certificates................ 4
ARTICLE II.
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS.5
SECTION 2.01. Warrant Price................................... 5
SECTION 2.02. Duration of Warrants............................ 5
SECTION 2.03. Exercise of Warrants............................ 5
ARTICLE III.
OTHER PROVISIONS RELATING TO RIGHTS OF
HOLDERS OF WARRANT CERTIFICATES................. 7
SECTION 3.01. No Rights as Warrant Securityholders
Conferred by Warrants or Warrant
Certificates............................... 7
SECTION 3.02. Lost, Stolen, Mutilated or Destroyed Warrant
Certificates............................... 7
SECTION 3.03. Holder of Warrant Certificate May Enforce
Rights..................................... 8
ARTICLE IV.
EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES... 8
SECTION 4.01. Exchange and Transfer of Warrant
Certificates............................... 8
SECTION 4.02. Treatment of Holders of Warrant
Certificates............................... 9
SECTION 4.03. Cancellation of Warrant Certificates............ 9
<FN>
_______________________
* The Table of Contents is not part of the Warrant Agreement.
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
ARTICLE V.
CONCERNING THE WARRANT AGENT................... 10
SECTION 5.01. Warrant Agent.................................. 10
SECTION 5.02. Conditions of Warrant Agent's Obligations...... 10
SECTION 5.03. Resignation and Appointment of Successor....... 12
SECTION 5.04. Payment of Taxes............................... 13
ARTICLE VI.
MISCELLANEOUS.................................. 14
SECTION 6.01. Amendment...................................... 14
SECTION 6.02. Notices and Demands to the Company
and Warrant Agent......................... 14
SECTION 6.03. Addresses...................................... 14
SECTION 6.04. Applicable Law................................. 14
SECTION 6.05. Delivery of Prospectus......................... 14
SECTION 6.06. Obtaining of Governmental Approvals............ 14
SECTION 6.07. Persons Having Rights under Warrant
Agreement................................. 15
SECTION 6.08. Headings....................................... 15
SECTION 6.09. Counterparts................................... 15
SECTION 6.10. Inspection of Agreement........................ 15
[SECTION 6.11. Adjustment of Number of [Preferred Shares]
[Shares of Common Stock]; Notices......... 15
SECTION 6.12. Fractional Shares.............................. 22
</TABLE>
ii
<PAGE> 4
THIS WARRANT AGREEMENT dated as of _____________, 199_ between Bank of
Boston Corporation, a corporation duly organized and existing under the laws of
the Commonwealth of Massachusetts (herein called the "Company") and
_____________, a ______________ organized and existing under the laws of
_________________, as Warrant Agent (hereinafter called the "Warrant Agent").
WHEREAS, the Company proposes to issue and sell from time to time,
either jointly or separately, certain of its (i) senior debt securities (the
"Senior Debt Securities"), and/or (ii) subordinated debt securities (the
"Subordinated Debt Securities", and, together with the Senior Debt Securities,
the "Debt Securities"), and/or (iii) preferred stock (the "Preferred Shares"),
and/or (iv) depositary shares which represent fractional interest in the
Preferred Shares (the "Depositary Shares"), and/or (v) common stock, par value
$2.25 per share ("Common Stock"), and/or, (vi) warrants (the "Warrants") to
purchase Debt Securities, Preferred Shares or Common Stock in one or more
offerings on terms determined at the time of sale; and
WHEREAS, the Company has prepared and filed with the Securities and
Exchange Commission a registration statement on Form S-3 (File No. 33- ),
including a prospectus, relating to the securities described above and the
offering thereof from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "1933 Act"); and
[IF DEBT SECURITIES - WHEREAS, the Company has entered into an indenture
dated as of June 15, 1992 (the "Indenture"), with Norwest Bank Minnesota,
National Association, as trustee (such trustee, and any successor to such
trustee, to be herein called the "Trustee"), providing for the issuance from
time to time of its [Senior] [Subordinated] Debt Securities to be issued in one
or more series as provided in the Indenture; and]
[IF PREFERRED SHARES - WHEREAS, the Company has established a series of
Preferred Shares in accordance with the terms of the Certificate of Vote of
Directors Establishing a Series of a Class of Stock relating to such Preferred
Shares (the "Certificate of Vote"); and]
[IF WARRANTS ATTACHED - WHEREAS, the Company proposes to sell the [Debt
Securities] [Preferred Shares] [Common Stock] now being offered (the "Offered
Securities" ) with warrant certificates evidencing one or more warrants (the
"Warrants" or, individually, a "Warrant") representing the right to purchase the
[Debt Securities] [Preferred Shares] [Common Stock] purchasable through exercise
of the Warrants (the "Warrant Securities"), such warrant certificates and other
warrant certificates issued pursuant to this Agreement being herein called the
"Warrant Certificates"; and]
[IF WARRANTS ALONE - WHEREAS, the Company proposes to sell warrant
certificates evidencing one or more warrants (the "Warrants" or, individually, a
"Warrant") representing the right to purchase the [Debt Securities][Preferred
Shares][Common Stock] purchasable through exercise of Warrants] (the "Warrant
Securities"), such warrant certificates and other warrant certificates issued
pursuant to this Agreement being herein called the "Warrant Certificates"; and]
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act, in connection with the
issuance, exchange, exercise and replacement of the Warrant Certificates, and in
this Warrant Agreement wishes to set forth, among other things, the form and
provisions of the Warrant Certificates and the terms and conditions on which
they may be issued, exchanged, exercised and replaced;
1
<PAGE> 5
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION
AND DELIVERY OF WARRANT CERTIFICATES.
SECTION 1.01. ISSUANCE OF WARRANTS. [IF OFFERED SECURITIES WITH
WARRANTS ATTACHED] - Warrants shall be [initially] issued in connection with the
issuance of the Offered Securities [but shall be separately transferable on and
after _____, 199_ (the "Detachable Date")][and shall not be separately
transferable]. Warrant Certificates shall be [initially] issued in units with
the Offered Securities and each Warrant Certificate included in such a unit
shall evidence ________ Warrants for each [share of Offered Securities]
[$________ principal amount of Offered Securities or its equivalent in a foreign
currency or composite currency] included in such unit.] [IF WARRANTS ALONE -
Upon issuance each Warrant Certificate shall evidence one or more Warrants.]
Each Warrant evidenced thereby shall represent the right, subject to the
provisions contained herein and therein, to purchase [________ shares of Warrant
Securities] [a Warrant Security in the principal amount of $_________ or its
equivalent in a foreign currency or composite currency].
SECTION 1.02. EXECUTION AND DELIVERY OF WARRANT CERTIFICATES. Each
Warrant Certificate, whenever issued, shall be in [bearer] [registered] form
substantially in the form set forth in Exhibit A hereto, shall be dated as of
its issue date and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the officers of the Company executing the
same may approve (execution thereof to be conclusive evidence of such approval)
and as are not inconsistent with the provisions of this Agreement, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which the
Warrant Certificates may be listed or authorized for trading, or to conform to
usage. The Warrant Certificates shall be signed on behalf of the Company by its
Chairman of the Board, President, Treasurer, Department Executive, Treasury or
Comptroller, and attested by its Clerk or any of its Assistant Clerks, under its
corporate seal. Such signatures may be manual or facsimile signatures of such
authorized officers and may be imprinted or otherwise reproduced on the Warrant
Certificates. The seal of the Company may be in the form of a facsimile thereof
and may be impressed, affixed, imprinted or otherwise reproduced on the Warrant
Certificates.
No Warrant Certificate shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the Warrant Agent. Such signature by the Warrant Agent upon any
Warrant Certificate executed by the Company shall be conclusive evidence that
the Warrant Certificate so countersigned has been duly issued hereunder.
2
<PAGE> 6
In case any officer of the Company who shall have signed any of the
Warrant Certificates either manually or by facsimile signature shall cease to be
such officer before the Warrant Certificates so signed shall have been
countersigned and delivered by the Warrant Agent, such Warrant Certificates
nevertheless may be countersigned and delivered as though the person who signed
such Warrant Certificates had not ceased to be such officer of the Company, and
any Warrant Certificate may be signed on behalf of the Company by such persons
as, at the actual date of the execution of such Warrant Certificate, shall be
the proper officers of the Company, although at the date of the execution of
this Agreement any such person was not such officer.
Pending the preparation of definitive Warrant Certificates, the Company
may execute, and upon the order of the Company the Warrant Agent shall
authenticate and deliver, temporary Warrant Certificates which are printed,
lithographed, typewritten, mimeographed or otherwise produced substantially of
the tenor of the definitive Warrant Certificates in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Warrant Certificates may determine, as
evidenced by their execution of such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company will cause
definitive Warrant Certificates to be prepared without unreasonable delay.
After the preparation of definitive Warrant Certificates, the temporary Warrant
Certificates shall be exchangeable for definitive Warrant Certificates upon
surrender of the temporary Warrant Certificates at the corporate trust office of
the Warrant Agent [or _________], without charge to the holder. Upon surrender
for cancellation of any one or more temporary Warrant Certificates, the Company
shall execute and the Warrant Agent shall authenticate and deliver in exchange
therefor definitive Warrant Certificates representing the same aggregate number
of Warrants. Until so exchanged, the temporary Warrant Certificates shall in
all respects be entitled to the same benefits under this Agreement as definitive
Warrant Certificates.
[IF BEARER WARRANTS - The term "holder" or "holder of a Warrant
Certificate" as used herein shall mean [IF OFFERED SECURITIES WITH WARRANTS
WHICH ARE NOT IMMEDIATELY DETACHABLE - , prior to the Detachable Date, the
[bearer] [registered owner] of the Offered Security to which such Warrant
Certificate was initially attached, and after such Detachable Date] the bearer
of such Warrant Certificate.]
[IF REGISTERED WARRANTS - The term "holder" or "holder of a Warrant
Certificate" as used herein shall mean any person in whose name at the time any
Warrant Certificate shall be registered upon the books to be maintained by the
Warrant Agent for that purpose [IF OFFERED SECURITIES WITH WARRANTS WHICH ARE
NOT IMMEDIATELY DETACHABLE - or upon the register of the Offered Securities
prior to the Detachable Date.] The Company will, or will cause the registrar of
the Offered Securities to, make available at all times to the Warrant Agent such
information as to holders of the Offered Securities with Warrants as may be
necessary to keep the Warrant Agent's records up to date.]
SECTION 1.03. ISSUANCE OF WARRANT CERTIFICATES. Warrant Certificates
evidencing the right to purchase [___ shares] [an aggregate principal amount not
exceeding $_________] of Warrant Securities or its equivalent in a foreign
currency or composite currency (except as provided in Sections 2.03(c), 3.02 and
4.01) may be executed by the Company and delivered to the Warrant Agent upon the
execution of this
3
<PAGE> 7
Warrant Agreement or from time to time thereafter. The Warrant Agent shall,
upon receipt of Warrant Certificates duly executed on behalf of the Company,
countersign Warrant Certificates evidencing Warrants representing the right to
purchase [____ shares] [up to $___________ aggregate principal amount] of
Warrant Securities or its equivalent in a foreign currency or composite
currency and shall deliver such Warrant Certificates to or upon the order of
the Company. Subsequent to such original issuance of the Warrant
Certificates, the Warrant Agent shall countersign a Warrant Certificate only if
the Warrant Certificate is issued in exchange or substitution for one or more
previously countersigned Warrant Certificates [IF REGISTERED WARRANTS - or in
connection with their transfer], as hereinafter provided.
ARTICLE II.
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS.
SECTION 2.01. WARRANT PRICE. [On__________, 199_] the exercise price of
each Warrant is [$]___________. [During the period from __________, 199_
through and including _________, 199_, the exercise price of each Warrant will
be [$]________ plus [accreted original issue discount] [accrued interest] from
______, 199_. On _______, 199_ the exercise price of each Warrant will be
[$]_________. During the period from ____________, 199_ through and including
__________, 199_, the exercise price of each Warrant will be [$]_______________
plus [accreted original issue discount] [accrued interest] from ___________,
199_; [in each case the original issue discount will be accreted at a __% annual
rate, computed on a [semiannual] [annual] basis using a 360-day year consisting
of twelve 30-day months;] [in each case accrued interest will be computed at a
rate equal to __%]]. Such purchase price of Warrant Securities may be
denominated in U.S. dollars or its equivalent in a foreign currency or composite
currency and may be determined in reference to an index and is referred to in
this Agreement as the "Warrant Price." [The original issue discount for each
$1,000 principal amount of Warrant Securities (or its equivalent thereof in a
foreign currency or composite currency) is [$]_____________.]
SECTION 2.02. DURATION OF WARRANTS. Each Warrant evidenced by a Warrant
Certificate may be exercised in whole at any time, as specified herein, on or
after [the date thereof] [_____________, 19__] and at or before the close of
business on _____________, 19__ (the "Expiration Date"). Each Warrant not
exercised at or before the close of business on the Expiration Date shall become
void, and all rights of the holder of the Warrant Certificate evidencing such
Warrant and under this Agreement shall cease.
SECTION 2.03. EXERCISE OF WARRANTS. (a) During the period specified in
Section 2.02, any whole number of Warrants, if the Warrant Certificate
evidencing the same shall have been countersigned by the Warrant Agent, may be
exercised by providing certain information set forth on the reverse side of the
Warrant Certificate and by paying in full, [in cash or by certified check or
official bank check or by bank wire transfer, in each case,] [by bank wire
transfer] in immediately available funds, the
4
<PAGE> 8
Warrant Price for each Warrant exercised, to the Warrant Agent at its corporate
trust office, ____________________ [or at ________________________], provided
that such exercise is subject to receipt within five Business Days (as defined
in Section 6.11(f) hereof) of such [payment] [wire transfer] by the Warrant
Agent of the Warrant Certificate with the form of election to purchase
Warrant Securities set forth on the reverse side of the Warrant Certificate
properly completed and duly executed. The date on which payment in full of the
Warrant Price is received by the Warrant Agent shall, subject to receipt of the
Warrant Certificate as aforesaid, be deemed to be the date on which the Warrant
is exercised. The Warrant Agent shall deposit all funds received by it in
payment of the Warrant Price in the account of the Company maintained with it
for such purpose and shall advise the Company by telephone at the end of each
day on which a [payment] [wire transfer] for the exercise of Warrants is
received of the amount so deposited to its account. The Warrant Agent shall
promptly confirm such telephonic advice to the Company in writing.
(b) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company [and the Trustee under the Indenture] of (i) the
number of Warrants exercised in accordance with the terms and conditions of this
Agreement and the Warrant Certificates, (ii) the instructions of each holder of
the Warrant Certificates evidencing such Warrants with respect to delivery of
the Warrant Securities to which such holder is entitled upon such exercise,
(iii) delivery of Warrant Certificates evidencing the balance, if any, of the
Warrants remaining after such exercise, and (iv) such other information as the
Company [or the Trustee] shall reasonably require.
(c) As soon as practicable after the exercise of any Warrant or
Warrants, the Company shall issue[, pursuant to the Indenture, in authorized
denominations to or upon the order of the holder of the Warrant Certificate
evidencing such Warrant or Warrants,] the Warrant Security or Warrant Securities
to which such holder is entitled, in fully registered form, registered in such
name or names as may be directed by such holder; and, if fewer than all of the
Warrants evidenced by such Warrant Certificate were exercised, the Company shall
execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver to or upon the order of such holder, a new Warrant
Certificate evidencing the number of Warrants remaining unexercised.
(d) The Company shall not be required to pay any stamp or other tax or
other governmental charge required to be paid in connection with any transfer
involved in the issue of the Warrant Securities; and in the event that any such
transfer is involved, the Company shall not be required to issue or deliver any
Warrant Securities until such tax or other charge shall have been paid or it has
been established to the Company's satisfaction that no such tax or other charge
is due.
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ARTICLE III.
OTHER PROVISIONS RELATING TO RIGHTS OF
HOLDERS OF WARRANT CERTIFICATES.
SECTION 3.01. NO RIGHTS AS WARRANT SECURITYHOLDERS CONFERRED BY
WARRANTS OR WARRANT CERTIFICATES. No Warrant Certificate or Warrant evidenced
thereby shall entitle the holder thereof to any of the rights of a holder of the
Warrant Securities, including, without limitation, the right [to vote or] to
receive payments of [dividends or distributions of any kind] [principal of (and
premium, if any,) or interest, if any, on the Warrant Securities or to enforce
any of the covenants in the Indenture].
SECTION 3.02. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT
CERTIFICATES. Upon receipt by the Company and the Warrant Agent of evidence
reasonably satisfactory to them of the ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate and of indemnity reasonably
satisfactory to them and, in the case of mutilation, upon surrender thereof to
the Warrant Agent for cancellation, then, in the absence of notice to the
Company or the Warrant Agent that such Warrant Certificate has been acquired by
a bona fide purchaser, the Company shall execute, and an authorized officer of
the Warrant Agent shall manually countersign and deliver, in exchange for or in
lieu of the lost, stolen, destroyed or mutilated Warrant Certificate, a new
Warrant Certificate of the same tenor and evidencing a like number of Warrants.
Upon the issuance of any new Warrant Certificate under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Warrant Agent) in connection
therewith. Every substitute Warrant Certificate executed and delivered pursuant
to this Section in lieu of any lost, stolen or destroyed Warrant Certificate
shall represent an additional contractual obligation of the Company, whether or
not the lost, stolen or destroyed Warrant Certificate shall be at any time
enforceable by anyone, and shall be entitled to the benefits of this Warrant
Agreement equally and proportionately with any and all other Warrant
Certificates duly executed and delivered hereunder. The provisions of this
Section are exclusive and shall preclude (to the extent lawful) all other rights
and remedies with respect to the replacement of mutilated, lost, stolen or
destroyed Warrant Certificates.
SECTION 3.03. HOLDER OF WARRANT CERTIFICATE MAY ENFORCE RIGHTS.
Notwithstanding any of the provisions of this Warrant Agreement, any holder of a
Warrant Certificate, without the consent of the Warrant Agent, [the Trustee,]
the holder of any Warrant Securities or the holder of any other Warrant
Certificate, may, in his own behalf and for his own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the Company
suitable to enforce, or otherwise in respect of, his right to exercise the
Warrant or Warrants evidenced by his Warrant Certificate in the manner provided
in his Warrant Certificate and in this Warrant Agreement.
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ARTICLE IV.
EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES
SECTION 4.01. EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES. [IF
OFFERED SECURITIES WITH WARRANTS WHICH ARE IMMEDIATELY DETACHABLE OR WARRANTS
ALONE - Upon] [IF OFFERED SECURITIES WITH WARRANTS WHICH ARE NOT IMMEDIATELY
DETACHABLE - Prior to the Detachable Date a Warrant Certificate may be exchanged
or transferred only together with the Offered Security to which the Warrant
Certificate was initially attached, and only for the purposes of effecting or in
conjunction with an exchange or transfer of such Offered Security. On or prior
to the Detachable Date, each transfer of the Offered Security on the register of
the Offered Securities shall operate also to transfer the related Warrant
Certificates. After the Detachable Date upon] surrender at the corporate trust
office of the Warrant Agent or [__________], Warrant Certificates may be
exchanged for other Warrant Certificates in denominations evidencing Warrants,
each Warrant entitling the holder thereof to purchase [_____ shares]
[$_____________ principal amount of Warrant Securities or its equivalent in a
foreign currency or composite currency] at the Warrant Price [IF REGISTERED
WARRANTS - or may be transferred in whole or in part] [IF BEARER OR REGISTERED
WARRANTS - provided that such other Warrant Certificates evidence the same
aggregate number of Warrants as the Warrant Certificates so surrendered.] [IF
REGISTERED WARRANTS - The Warrant Agent shall keep, at its corporate trust
office [or at __________], books in which, subject to such reasonable
regulations as it may prescribe, it shall register Warrant Certificates in
accordance with Section 1.02 and transfers of outstanding Warrant Certificates,
upon surrender of the Warrant Certificates to the Warrant Agent at its corporate
trust office [or at ______] for transfer, properly endorsed or accompanied by
appropriate instruments of transfer and written instructions for transfer, all
in form satisfactory to the Company and the Warrant Agent.] No service charge
shall be made for any exchange or transfer of Warrant Certificates, but the
Company may require payment of a sum sufficient to cover any stamp or other tax
or other governmental charge that may be imposed in connection with any such
exchange or transfer. Whenever any Warrant Certificates are so surrendered for
exchange or transfer an authorized officer of the Warrant Agent shall
countersign and deliver to the person or persons entitled thereto a Warrant
Certificate or Warrant Certificates duly authorized and executed by the Company,
as so requested. The Warrant Agent shall not be required to effect any exchange
or transfer which will result in the issuance of a Warrant Certificate
evidencing a fraction of a Warrant or a number of full Warrants and a fraction
of a Warrant. All Warrant Certificates issued upon any exchange or transfer of
Warrant Certificates shall be the valid obligations of the Company, evidencing
the same obligations, and entitled to the same benefits under this Warrant
Agreement, as the Warrant Certificates surrendered for such exchange or
transfer.
SECTION 4.02. TREATMENT OF HOLDERS OF WARRANT CERTIFICATES. [IF OFFERED
SECURITIES WITH BEARER WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE - Subject
to Section 4.01, each] [IF OFFERED SECURITIES WITH BEARER WARRANTS WHICH ARE
IMMEDIATELY DETACHABLE OR BEARER WARRANTS ALONE - Each] Warrant Certificate
shall be transferable by delivery and shall be deemed negotiable and the bearer
of each Warrant Certificate may be treated by the Company, the Warrant Agent and
all other persons
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dealing with such bearer as the absolute owner thereof for any purpose and as
the person entitled to exercise the rights represented by the Warrants evidenced
thereby, any notice to the contrary notwithstanding.] [IF REGISTERED WARRANTS
ALONE OR REGISTERED WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE - Every
holder of a Warrant Certificate, by accepting the same, consents and agrees with
the Company, the Warrant Agent and with every subsequent holder of such Warrant
Certificate that until the Warrant Certificate is transferred on the books of
the Warrant Agent [or the register of the Offered Securities prior to the
Detachable Date], the Company and the Warrant Agent may treat the registered
holder as the absolute owner thereof for any purpose and as the person entitled
to exercise the rights represented by the Warrants evidenced thereby, any notice
to the contrary notwithstanding.]
SECTION 4.03. CANCELLATION OF WARRANT CERTIFICATES. Any Warrant
Certificate surrendered for exchange, transfer or exercise of the Warrants
evidenced thereby shall, if surrendered to the Company, be delivered to the
Warrant Agent, and all Warrant Certificates surrendered or so delivered to the
Warrant Agent shall be promptly cancelled by the Warrant Agent and shall not be
reissued and, except as expressly permitted by this Warrant Agreement, no
Warrant Certificate shall be issued hereunder in exchange or in lieu thereof.
The Warrant Agent shall deliver to the Company from time to time or otherwise
dispose of cancelled Warrant Certificates in a manner satisfactory to the
Company.
ARTICLE V.
CONCERNING THE WARRANT AGENT.
SECTION 5.01. WARRANT AGENT The Company hereby appoints ____________
as Warrant Agent of the Company in respect of the Warrants and the Warrant
Certificates upon the terms and subject to the conditions herein set forth; and
____________ hereby accepts such appointment. The Warrant Agent shall have the
powers and authority granted to and conferred upon it in the Warrant
Certificates and hereby and such further powers and authority to act on behalf
of the Company as the Company may hereafter grant to or confer upon it. All of
the terms and provisions with respect to such powers and authority contained in
the Warrant Certificates are subject to and governed by the terms and provisions
hereof.
SECTION 5.02. CONDITIONS OF WARRANT AGENT'S OBLIGATIONS. The Warrant
Agent accepts its obligations herein set forth upon the terms and conditions
hereof, including the following, to all of which the Company agrees and to all
of which the rights hereunder of the holders from time to time of the Warrant
Certificates shall be subject:
(a) COMPENSATION AND INDEMNIFICATION. The Company agrees to pay the
Warrant Agent promptly the compensation to be agreed upon with the Company for
all services rendered by the Warrant Agent and to reimburse the Warrant Agent
for reasonable out-of-pocket expenses (including reasonable counsel fees)
incurred by the Warrant Agent in connection with the services rendered hereunder
by the Warrant Agent. The Company also agrees to indemnify the Warrant Agent
for, and to hold it harmless against, any loss, liability, or expense incurred
without negligence or bad
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faith on the part of the Warrant Agent, arising out of or in connection with its
acting as such Warrant Agent hereunder, as well as the costs and expenses of
defending against any claim or liability in the premises.
(b) AGENT FOR THE COMPANY. In acting under this Warrant Agreement and
in connection with the Warrants, the Warrant Agent is acting solely as agent of
the Company and does not assume any obligation or relationship of agency or
trust with any of the owners or holders of the Warrants.
(c) DOCUMENTS. The Warrant Agent shall be protected and shall incur no
liability for or in respect of any action taken or thing suffered by it in
reliance upon any Warrant Certificates, notice, direction, consent, certificate,
affidavit, statement or other paper or document reasonably believed by it to be
genuine and to have been presented or signed by the proper parties.
(d) CERTAIN TRANSACTIONS. The Warrant Agent, and its officers,
directors and employees, may become the owner of, or acquire any interest in,
any Warrants, with the same rights that it or they would have if it were not the
Warrant Agent hereunder, and, to the extent permitted by applicable law, it or
they may engage or be interested in any financial or other transaction with the
Company and may act on, or as depositary, trustee or agent for, any committee or
body of holders of Warrant Securities or other obligations of the Company as
freely as if it were not the Warrant Agent hereunder. [Nothing in this Warrant
Agreement shall be deemed to prevent the Warrant Agent from acting as Trustee
under the Indenture.]
(e) NO LIABILITY FOR INTEREST. The Warrant Agent shall not be under
any liability for interest on any monies at any time received by it pursuant to
any of the provisions of this Warrant Agreement or of the Warrants.
(f) NO LIABILITY FOR INVALIDITY. The Warrant Agent shall not incur any
liability with respect to the validity of any of the Warrants.
(g) NO RESPONSIBILITY FOR REPRESENTATIONS. The Warrant Agent shall not
be responsible for any of the recitals or representations herein or in the
Warrant Certificates contained (except as to the Warrant Agent's
countersignature thereon), all of which are made solely by the Company.
(h) NO IMPLIED OBLIGATIONS. The Warrant Agent shall be obligated to
perform such duties as are herein and in the Warrant Certificates specifically
set forth and no implied duties or obligations shall be read into this Agreement
or the Warrant Certificates against the Warrant Agent. The Warrant Agent shall
not be under any obligation to take any action hereunder which may tend to
involve it in any expense or liability, the payment of which within a reasonable
time is not, in its reasonable opinion, assured to it. The Warrant Agent shall
not be accountable or under any duty or responsibility for the use by the
Company of any of the Warrant Certificates authenticated by the Warrant Agent
and delivered by it to the Company pursuant to this Agreement or for the
application by the Company of the proceeds of the Warrant Certificates. The
Warrant Agent shall have no duty or responsibility in case of any default by the
Company in the performance of its covenants or agreements contained herein or in
the Warrant Certificates or in the case of the receipt of any written demand
from a holder of a Warrant Certificate with respect to such default, including,
without limiting the generality of the foregoing, any duty or
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responsibility to initiate or attempt to initiate any proceedings at law or
otherwise or, except as provided in Section 6.02 hereof, to make any
demand upon the Company.
SECTION 5.03. RESIGNATION AND APPOINTMENT OF SUCCESSOR. (a) The Company
agrees, for the benefit of the holders from time to time of the Warrant
Certificates, that there shall at all times be a Warrant Agent hereunder until
all the Warrant Certificates are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to the Company of such intention on its part, specifying the date
on which its desired resignation will become effective; provided that such date
shall not be less than three months after the date on which such notice is given
unless the Company agrees to accept less notice. The Warrant Agent hereunder
may be removed at any time by the filing with it of an instrument in writing
signed by or on behalf of the Company and specifying such removal and the date
when it shall become effective. Such resignation or removal shall take effect
upon the appointment by the Company, as hereinafter provided, of a successor
Warrant Agent (which shall be a bank or trust company authorized under the laws
of the jurisdiction of its organization to exercise corporate trust powers) and
the acceptance of such appointment by such successor Warrant Agent. The
obligations of the Company under Section 5.02(a) shall continue to the extent
set forth therein notwithstanding the resignation or removal of the Warrant
Agent.
(c) In case at any time the Warrant Agent shall become incapable of
acting, or shall be adjudged a bankrupt or insolvent, or shall file a petition
seeking relief under Title 11 of the United States Code, as now constituted or
hereafter amended, or under any other applicable Federal or State bankruptcy law
or similar law or make an assignment for the benefit of its creditors or consent
to the appointment of a receiver or custodian of all or any substantial part of
its property or assets, or shall admit in writing its inability to pay or meet
its debts as they mature, or if a receiver or custodian of it or of all or any
substantial part of its property or assets shall be appointed, or if an order of
any court shall be entered for relief against it under the provisions of Title
11 of the United States Code, as now constituted or hereafter amended, or under
any other applicable Federal or State bankruptcy or similar law, or if any
public officer shall have taken charge or control of the Warrant Agent or of its
property or affairs, for the purpose of rehabilitation, conservation or
liquidation, it shall be disqualified from serving as Warrant Agent and a
successor Warrant Agent, qualified as aforesaid, shall be appointed by the
Company by an instrument in writing, filed with the successor Warrant Agent.
Upon the appointment as aforesaid of a successor Warrant Agent and acceptance by
the successor Warrant Agent of such appointment, the Warrant Agent so
disqualified shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without further act, deed or conveyance, shall become vested with all
authority, rights, powers, trusts, immunities, duties and obligations of such
predecessor with like effect as if originally named as Warrant Agent hereunder,
and such predecessor, upon payment of its charges and disbursements then unpaid,
shall thereupon become obligated to transfer, deliver and pay over, and such
successor Warrant Agent shall be entitled to receive, all monies, securities and
other property on deposit with or held by such predecessor, as Warrant Agent
hereunder.
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(e) Any corporation into which the Warrant Agent hereunder may be
merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation to
which the Warrant Agent shall sell or otherwise transfer all or substantially
all the assets and business of the Warrant Agent, provided that it shall be
qualified as aforesaid, shall be the successor Warrant Agent under this Warrant
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
SECTION 5.04. PAYMENT OF TAXES. The Company will pay all stamp and
other duties, if any, to which, under the laws of the United States of America,
this Warrant Agreement or the original issuance of the Warrant Certificates may
be subject.
ARTICLE VI.
MISCELLANEOUS.
SECTION 6.01. AMENDMENT. This Warrant Agreement may be amended by the
parties hereto, without the consent of the holder of any Warrant Certificate,
for the purpose of curing any ambiguity, or of curing, correcting or
supplementing any defective provision contained herein, or making any other
provisions with respect to matters or questions arising under this Warrant
Agreement as the Company and the Warrant Agent may deem necessary or desirable;
provided that such action shall not adversely affect the interests of the
holders of the Warrant Certificates.
SECTION 6.02. NOTICES AND DEMANDS TO THE COMPANY AND WARRANT AGENT. If
the Warrant Agent shall receive any notice or demand addressed to the Company by
the holder of a Warrant Certificate pursuant to the provisions of the Warrant
Certificates, the Warrant Agent shall promptly forward such notice of demand to
the Company.
SECTION 6.03. ADDRESSES. Any communications from the Company to the
Warrant Agent with respect to this Warrant Agreement shall be addressed to
_____________, Attention: ____________, and any communications from the Warrant
Agent to the Company with respect to this Warrant Agreement shall be addressed
to Bank of Boston Corporation, 100 Federal Street, 01-24-07, Boston,
Massachusetts 02110, Attention: General Counsel (or such other address as shall
be specified in writing by the Warrant Agent or by the Company).
SECTION 6.04. APPLICABLE LAW The validity, interpretation and
performance of this Warrant Agreement and each Warrant Certificate issued
hereunder and of the respective terms and provisions thereof shall be governed
by the laws of The Commonwealth of Massachusetts.
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SECTION 6.05. DELIVERY OF PROSPECTUS.The Company will furnish to the
Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of Warrants (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
will deliver to the holder of the Warrant Certificate evidencing such Warrant,
prior to or concurrently with the delivery of the Warrant Securities issued upon
such exercise, a Prospectus.
SECTION 6.06. OBTAINING OF GOVERNMENTAL APPROVALS. The Company will
from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities acts filings under United States Federal and
State laws (including, without limitation, maintenance of the effectiveness of a
registration statement in respect of the Warrants and Warrant Securities under
the Securities Act of 1933), which may be or become requisite in connection with
the issuance, sale, transfer, and delivery of the Warrant Certificates, the
exercise of the Warrants, the issuance, sale, transfer and delivery of the
Warrant Securities issued upon exercise of the Warrants or upon the expiration
of the period during which the Warrants are exercisable.
SECTION 6.07. PERSONS HAVING RIGHTS UNDER WARRANT AGREEMENT. Nothing
in this Warrant Agreement expressed or implied and nothing that may be inferred
from any of the provisions hereof is intended, or shall be construed, to confer
upon, or give to, any person or corporation other than the Company, the Warrant
Agent and the holders of the Warrant Certificates any right, remedy or claim
under or by reason of this Warrant Agreement or of any covenant, condition,
stipulation, promise or agreement hereof; and all covenants, conditions,
stipulations, promises and agreements in this Warrant Agreement contained shall
be for the sole and exclusive benefit of the Company and the Warrant Agent and
their successors and of the holders of the Warrant Certificates.
SECTION 6.08. HEADINGS. The descriptive headings of the several
Articles and Sections of this Warrant Agreement are inserted for convenience
only and shall not control or affect the meaning or construction of any of the
provisions hereof.
SECTION 6.09. COUNTERPARTS. This Warrant Agreement may be executed in
any number of counterparts, each of which so executed shall be deemed to be an
original; but such counterparts shall together constitute but one and the same
instrument.
SECTION 6.10. INSPECTION OF AGREEMENT. A copy of this Warrant
Agreement shall be available at all reasonable times at the principal corporate
trust office of the Warrant Agent for inspection by the holder of any Warrant
Certificate. The Warrant Agent may require such holder to submit his Warrant
Certificate for inspection by it.
[SECTION 6.11. ADJUSTMENT OF NUMBER OF [PREFERRED SHARES] [SHARES OF
COMMON STOCK]; NOTICES. The number of [Preferred Shares] [shares of Common
Stock] purchasable upon the exercise of each Warrant (the "Exercise Rate") is
subject to adjustment from time to time as provided in this Section.
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(a) DIVIDENDS OR DISTRIBUTIONS IN [PREFERRED SHARES] [SHARES OF COMMON
STOCK]. In case the Company shall pay or make a dividend or other distribution
on [any class or series of Preferred Shares for which Warrants may be exercised]
[its Common Stock] in [such Preferred Shares] [shares of its Common Stock], the
Exercise Rate in effect at the opening of business on the day following the date
fixed for the determination of stockholders entitled to receive such dividend or
other distribution shall be increased by dividing such Exercise Rate by a
fraction of which the numerator shall be the number of shares of [such Preferred
Shares] [Common Stock] outstanding at the close of business on the date fixed
for such determination and the denominator shall be the sum of such number of
shares and the total number of shares constituting such dividend or other
distribution, such increase to become effective immediately after the opening of
business on the day following the date fixed for such determination. For the
purposes of this paragraph (a), the number of shares of [Preferred Shares]
[Common Stock] at any time outstanding shall not include shares held in the
treasury of the Company. The Company will not pay any dividend or make any
distribution on shares of [Preferred Shares] [Common Stock] held in the treasury
of the Company.
(b) RIGHTS OR WARRANTS. In case the Company shall issue rights or
warrants to all holders of [a class or series of its Preferred Shares for which
Warrants may be exercised] [shares of its Common Stock] entitling them to
subscribe for or purchase shares of [such Preferred Shares] [Common Stock] at a
price per share less than the current market price per share (determined as
provided in paragraph (f) of this Section) of [such Preferred Shares] [Common
Stock] on the date fixed for the determination of stockholders entitled to
receive such rights or warrants, the Exercise Rate in effect at the opening of
business on the day following the date fixed for such determination shall be
increased by dividing such Exercise Rate by a fraction of which the numerator
shall be the number of shares of [such Preferred Shares] [Common Stock]
outstanding at the close of business on the date fixed for such determination
plus the number of shares of [such Preferred Shares] [Common Stock] which the
aggregate of the offering price of the total number of shares of [such Preferred
Shares] [Common Stock] so offered for subscription or purchase would purchase at
such current market price and the denominator shall be the number of shares of
[such Preferred Shares] [Common Stock] outstanding at the close of business on
the date fixed for such determination plus the number of shares of [such
Preferred Shares] [Common Stock] so offered for subscription or purchase, such
increase to become effective immediately after the opening of business on the
day following the date fixed for such determination. For the purposes of this
paragraph (b), the number of shares of [Preferred Shares] [Common Stock] at any
time outstanding shall not include shares held in the treasury of the Company
but shall include shares issuable in respect of scrip certificates issued in
lieu of fractions of shares of [Preferred Shares] [Common Stock]. The Company
will not issue any rights or warrants in respect of shares of [Preferred Shares]
[Common Stock] held in the treasury of the Company.
(c) SUBDIVISION OR COMBINATION. In case outstanding shares of [a class
or series of its Preferred Shares for which Warrants are exercisable] [Common
Stock] shall be subdivided into a greater number of shares of [such Preferred
Shares] [Common Stock], the Exercise Rate in effect at the opening of business
on the day following the day upon which such subdivision becomes effective shall
be proportionately increased, and, conversely, in case outstanding shares of [a
class or series of its Preferred Shares for which Warrants are exercisable]
[Common Stock] shall each be combined into a smaller number of shares of [such
Preferred Shares] [Common Stock], the
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Exercise Rate in effect at the opening of business on the day following the day
upon which such combination becomes effective shall be proportionately reduced,
such increase or reduction, as the case may be, to become effective immediately
after the opening of business on the day following the day upon which such
subdivision or combination becomes effective.
(d) DIVIDEND OR DISTRIBUTION OF ASSETS. In case the Company shall, by
dividend or otherwise, distribute to all holders of [a class or series of its
Preferred Shares for which Warrants are exercisable] [shares of its Common
Stock] evidences of its indebtedness or assets (including securities, but
excluding any rights or warrants referred to in paragraph (b) of this Section,
any dividend or distribution paid in cash out of the retained earnings of the
Company and any dividend or distribution referred to in paragraph (a) of this
Section), the Exercise Rate shall be adjusted so that the same shall equal the
price determined by dividing the Exercise Rate in effect immediately prior to
the close of business on the date fixed for the determination of stockholders
entitled to receive such distribution by a fraction of which the numerator shall
be the current market price per share (determined as provided in paragraph (f)
of this Section) of [such Preferred Shares] [Common Stock] on the date fixed for
such determination less the then fair-market value (as determined by the Board
of Directors, whose determination shall be conclusive and described in a Board
Resolution filed with the Warrant Agent and any other Registrar) of the portion
of the assets or evidences of indebtedness so distributed applicable to one
share of [such Preferred Shares] [Common Stock] and the denominator shall be
such current market price per share of [such Preferred Shares] [Common Stock],
such adjustment to become effective immediately prior to the opening of business
on the day following the date fixed for the determination of stockholders
entitled to receive such distribution.
(e) RECLASSIFICATION. The reclassification of [a class or series of
its Preferred Shares for which Warrants are exercisable] [the Company's Common
Stock] into securities other than such [Preferred Shares] [Common Stock] (other
than any reclassification upon a consolidation or merger to which paragraph (1)
of this Section applies) shall be deemed to involve (i) a distribution of such
securities other than such [Preferred Shares] [Common Stock] to all holders of
[such Preferred Shares] [Common Stock] (and the effective date of such
reclassification shall be deemed to be "the date fixed for the determination of
stockholders entitled to receive such distribution" and "the date fixed for such
determination" within the meaning of paragraph (d) of this Section), and (ii) a
subdivision or combination, as the case may be, of the number of shares of [such
Preferred Shares] [Common Stock] outstanding immediately prior to such
reclassification into the number of shares of [such Preferred Shares] [Common
Stock] outstanding immediately thereafter (and the effective date of such
reclassification shall be deemed to be "The day upon which such subdivision
becomes effective" or "The day upon which such combination becomes effective",
as the case may be, and "the day upon which such subdivision or combination
becomes effective" within the meaning of paragraph (c) of this Section).
(f) CURRENT MARKET PRICE. For the purpose of any computation under
paragraphs (b) and (d) of this Section, the current market price per share of
[Preferred Shares] [Common Stock] on any date shall be deemed to be the average
of the daily closing prices for the 15 consecutive Business Days selected by the
Company commencing not less than 20 nor more than 30 Business Days before the
day in question. The closing price for each day shall be the last reported
sales price regular way or, in case no such reported sale takes place on such
day, the average of the reported closing bid and asked prices regular way, in
either case on the New York Stock Exchange or, if such [Preferred Shares are]
[Common Stock is] not listed or admitted to trading on such
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Exchange, on the principal national securities exchange on which such [Preferred
Shares are] [Common Stock is] listed or admitted to trading or, if not listed or
admitted to trading on any national securities exchange, on the National
Association of Securities Dealers Automated Quotations National Market System
or, if such [Preferred Shares are] [Common Stock is] not listed or admitted to
trading on any national securities exchange or quoted on such National Market
System, the average of the closing bid and asked prices in the over-the-counter
market as furnished by any New York Stock Exchange member firm selected from
time to time by the Company for the purpose. In the event that no such market
trading exists, the current market price will be determined by three independent
nationally reorganized investment banking firms selected by the Company in such
manner as the Board of Directors deems appropriate. "Business Day" means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions where Warrants may be surrendered for exercise are
authorized or obligated by law or executive order to close.
(g) ADJUSTMENTS FOR TAX PURPOSES. The Company may make such
adjustments in the Exercise Rate, in addition to those required by paragraphs
(a), (b), (c) and (d) of this Section, as it considers to be advisable in order
that any event treated for federal income tax purposes as a dividend of stock or
stock rights shall not be taxable to the recipients.
(h) NO ADJUSTMENT BELOW PAR VALUE. Notwithstanding the provisions of
this Section, the Exercise Rate shall not be increased such that the price paid
per share would be less than the par value thereof as a result of any adjustment
made hereunder unless, under applicable law then in effect, Warrants may be
exercised, at such lower Exercise Rate, for legally issued, fully paid and
nonassessable shares of [Preferred Shares] [Common Stock].
(i) PERMITTED DISTRIBUTIONS. The granting of the right to purchase
shares of [Preferred Shares] [Common Stock] (whether from treasury shares or
otherwise), pursuant to (i) any dividend or interest reinvestment plan or
[Preferred Shares] [Common Stock] purchase plan providing for the reinvestment
of dividends or interest payable on securities of the Company and/or the
investment of periodic optional payments; and (ii) any stock option plans and/or
employee benefit or similar plans shall not be deemed to constitute an issue of
rights or warrants by the Company.
(j) NO ADJUSTMENTS NECESSARY. No adjustment in the Exercise Rate shall
be required unless such adjustment would require an increase or decrease of at
least one percent in such Exercise Rate, PROVIDED, HOWEVER, that any adjustment
which by reason of this paragraph (j) is not required to be made shall be
carried forward and taken into account in any subsequent adjustment. All
calculations under this Section shall be made to the nearest cent or to the
nearest 1/100 of a share, as the case may be.
(k) NOTICE OF ADJUSTMENT. Whenever the Exercise Rate is adjusted as
herein provided, the Company shall forthwith (i) compute the adjusted Exercise
Rate in accordance herewith and prepare a certificate signed by an officer of
the Company setting forth the adjusted Exercise Rate and showing in reasonable
detail the facts upon which such adjustment is based, and such certificate shall
forthwith be filed with the Warrant Agent and any other Registrar and (ii) cause
a notice stating that such adjustment has been effected and the adjusted
Exercise Rate to be mailed to the holders of Warrants at their last addresses as
they shall appear on the Warrant Register.
15
<PAGE> 19
(l) SUCCESSOR COMPANY. In case of any reclassification or change of
outstanding shares of [the class or series of Preferred Shares issuable upon
exercise of the Warrants] [Common Stock] (other than a change in par value, or
from par value to no par value, or from no par value to par value, or as a
result of a subdivision or combination), or in case of any merger or
consolidation of the Company with one or more other corporations (other than a
merger or consolidation in which the Company is the continuing corporation and
which does not result in any reclassification or change of outstanding shares of
[the class or series of Preferred Shares issuable upon exercise of the Warrants]
[Common Stock]), or in case of the merger of the Company into another
corporation, or in case of any sale or conveyance to another corporation of the
property of the Company as an entirety or substantially as an entirety, the
holder of Warrants of each series then outstanding shall have the right to
exercise such Warrant for the kind and amount of shares of capital stock or
other securities and property, including cash, receivable upon reclassification,
change, consolidation, merger, sale or conveyance by a holder of the number of
shares of [such class or series of Preferred Shares] [Common Stock] for which
such Warrant might have been exercised immediately prior to such
reclassification, change consolidation, merger, sale or conveyance. In any such
case, the Company, or such successor or purchasing corporation, as the case may
be, shall execute and deliver to the Warrant Agent a supplemental Warrant
Agreement containing provisions to the effect set forth above and providing
further for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section. The above
provisions shall similarly apply to successive reclassifications, changes,
consolidation, mergers, sales and conveyances.
(m) COMPANY TO RESERVE CAPITAL SECURITIES. The Company shall at all
times reserve and keep available out of the aggregate of its authorized but
unissued shares or its issued shares held in its treasury, or both, for the
purpose of effecting the exercise of the Warrants, such full number of its duly
authorized shares of [Preferred Shares] [Common Stock] as shall from time to
time be sufficient to effect the exercise of all outstanding Warrants.
If any shares of [Preferred Shares] [Common Stock] reserved or to be
reserved for the purpose of exercise of Warrants hereunder require registration
with or approval of any governmental authority under any Federal or State law
before such shares may be validly delivered upon exercise, then the Company
covenants that it will in good faith and as expeditiously as possible endeavor
to secure registration or approval, as the case may be.
The Company covenants that all shares of [Preferred Shares] [Common
Stock] which may be delivered upon exercise of Warrants shall upon delivery be
fully paid and nonassessable by the Company, subject to Massachusetts General
Laws Chapter 156B, Section 45, and, except for taxes in connection with the
exercise of the Warrants, free from all taxes, liens and charges with respect to
the issue or delivery thereof.
(n) COMPANY TO GIVE NOTICE OF CERTAIN EVENTS. In the event
(1) that the Company shall pay any dividend or make any
distribution to the holders of shares of [Preferred Shares issuable
upon exercise of the Warrants] [Common Stock] otherwise than in cash
charged against consolidated net earnings or retained earnings of the
Company and its consolidated subsidiaries or in [such Preferred Shares]
[shares of Common Stock]; or
16
<PAGE> 20
(2) that the Company shall offer for subscription or purchase,
pro rata, to the holders of [Preferred Shares issuable upon exercise of
the Warrants] [Common Stock] any additional shares of stock of any
class or any securities exercisable for or exchangeable for stock of
any class; or
(3) of any reclassification or change of outstanding shares of
[the class or series of Preferred Shares issuable upon the exercise of
the Warrants] [Common Stock] (other than a change in par value, or from
par value to no par value, or from no par combination), or of any
merger of consolidation of the Company with, or merger of the Company
into, another corporation (other than a merger or consolidation in
which the Company is the continuing corporation and which does not
result in reclassification or change of outstanding shares of
[Preferred Shares issuable upon exercise of the Warrants] [Common
Stock]), or of any sale or conveyance to another corporation of the
property of the Company as an entirety or substantially as an entirety;
or
(4) of the voluntary or involuntary dissolution, liquidation
or winding-up of the Company;
then, and in any one or more of such events, the Company will file with the
Warrant Agent and any other Registrar written notice thereof at least twenty
days (or ten days in any case specified in clause (1) or (2) above) prior to (i)
the record date fixed with respect to any of the events specified in (1) and (2)
above and (ii) the effective date of any of the events specified in (3) above;
and shall mail promptly after providing such notice to the Warrant Agent or such
other Registrar a copy of such notice to the holders thereof at their last
addresses as they shall appear upon the Warrant Register. Failure to give such
notice, or any defect therein, shall not affect the legality or validity of such
dividend, distribution, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up.
(o) COMPANY DETERMINATION FINAL. Any determination that the Company or
the Board of Directors must make pursuant to this Section is conclusive.
(p) WARRANT AGENT'S ADJUSTMENT DISCLAIMER. The Warrant Agent has no
duty to determine when an adjustment under this Section should be made, how it
should be made or what it should be. The Warrant Agent has no duty to determine
whether a supplemental warrant agreement under paragraph (l) need be entered
into or whether any provisions of any supplemental warrant agreement are
correct. The Warrant Agent shall not be accountable for and makes no
representation as to the validity or value of any securities or assets issued
upon exercise of Warrants. The Warrant Agent shall not be responsible for the
Company's failure to comply with this Section.
(q) ADJUSTMENTS AND WARRANT CERTIFICATES. Irrespective of any
adjustments in the number or kind of shares purchasable upon the exercise of the
Warrants, Warrant Certificates theretofore or thereafter issued may continue to
express the same number and kind of shares per Warrant as are stated on the
Warrant Certificates initially issuable pursuant to this Agreement.
17
<PAGE> 21
(r) SUBSEQUENT EVENT. After an adjustment to the Exercise Rate under
this Section, any subsequent event requiring an adjustment under this Section
shall cause an adjustment to the Exercise Rate as so adjusted.
SECTION 6.12. FRACTIONAL SHARES. The Company shall not be required to
deliver fractions of shares of [Preferred Shares] [Common Stock] upon exercises
of Warrants. If more than one Warrant shall be surrendered for exercise at one
time by the same holder, the number of full shares which shall be deliverable
upon exercise thereof shall be computed on the basis of the aggregate of the
Warrants so surrendered instead of any fractional share of [Preferred Shares]
[Common Stock] which would otherwise be issuable upon exercise of any Warrant or
Warrants (or specified portions thereof). The Company shall pay a cash
adjustment in respect of such fraction in an amount equal to the same fraction
of the market price per share of [Preferred Shares] [Common Stock] (as
determined in accordance with Section 6.11(f) or in any other manner prescribed
by the Board of Directors) at the close of business on the last Business Day
prior to the Date of Exercise.]
18
<PAGE> 22
IN WITNESS WHEREOF, Bank of Boston Corporation has caused this Warrant
Agreement to be signed by one of its duly authorized officers, and its corporate
seal to be affixed hereunto, and the same to be attested by its Clerk or one of
its Assistant Clerks; and ___________________ has caused this Warrant Agreement
to be signed by one of its duly authorized officers, and its corporate seal to
be affixed hereunto, and the same to be attested by its Secretary or one of its
Assistant Secretaries, all as of the day and year first above written.
BANK OF BOSTON CORPORATION
By _______________________
Attest:
_________________________
[Warrant Agent]
By _______________________
Attest:
_________________________
19
<PAGE> 23
EXHIBIT A
(Form of Warrant Certificate)
[Front Face of Warrant Certificate]
[Form of Legend if Prior to ______ this
Offered Securities Warrant cannot be
with Warrants which transferred or exchanged
are not immediately unless attached to a detachable:
[Title of Offered
Securities].]
[Form of Legend if Prior to ________ this
Warrants are not Warrant cannot be immediately
exercised in whole or in exercisable:
part.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN.
BANK OF BOSTON CORPORATION
PURCHASE WARRANT
FOR [Title of Warrant Securities]
VOID AFTER THE CLOSE OF BUSINESS IN BOSTON, MASSACHUSETTS ON ___________, 199_.
[No.] Warrants
This certifies that [the bearer is the] [__________ or registered
assigns is the registered] owner of the above indicated number of Warrants, each
Warrant entitling such [bearer] [owner] to purchase, at any time [after the
close of business on ___________, 199_ and] on or before the close of business
on ____________, 199_, [$]__________ [principal amount] [shares] of [Title of
Warrant Securities] (the "Warrant Securities") of Bank of Boston Corporation
(the "Company"), issued and to be issued [under the Indenture (as hereinafter
defined)] [by the Company], on the following basis: [on __________, 199_,] the
exercise price of each Warrant is [$]_______________, [during the period from
_________, 199_, through and including ___________, 199_, the exercise price of
each Warrant will be [$]___________ plus [accreted original issue discount]
[accrued interest] from __________, 199_, on ______________, 199_, the exercise
price of each Warrant will be [$]__________, during the period from __________,
199_, through and including _____________, 199_, the exercise price of each
Warrant will be [$]________ plus [accreted original issue discount] [accrued
interest] from __________, 199_, [in each case, the original issue discount will
be accreted at a _ % annual rate, computed on a [semiannual] [annual] basis,
using a 360-day year consisting of twelve 30-day months;] [in each case accrued
interest will be computed at a rate equal to __%]] (the "Warrant Price")]. [The
original issue discount for each [$]_________ principal amount of Warrant
Securities is [$]__________]. The [bearer] [owner] may exercise the Warrants
evidenced hereby by providing certain information set forth on the back hereof
and by paying in full, in lawful money of _______, [in cash or by certified
check or official bank check or by bank wire transfer, in each case,] [by bank
wire transfer] in immediately available funds, the Warrant Price for each
Warrant exercised to the Warrant Agent (as hereinafter defined) and by
surrendering this Warrant Certificate, with the purchase form on the back hereof
duly executed, at the corporate trust office of [name of Warrant
<PAGE> 24
Agent] or its successor as warrant agent (the "Warrant Agent"), currently at the
address specified on the reverse hereof [or __________,] and upon
compliance with and subject to the conditions set forth herein and in the
Warrant Agreement (as hereinafter defined).
Any whole number of Warrants evidenced by this Warrant Certificate may
be exercised to purchase Warrant Securities in registered form in [denominations
of [$]___________ and any integral multiples thereof] [any number of whole
shares]. Upon any exercise of fewer than all of the Warrants evidenced by this
Warrant Certificate, there shall be issued to the [registered owner] [bearer]
hereof a new Warrant Certificate evidencing the number of Warrants remaining
unexercised.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of _____________, 19 _ (the "Warrant Agreement"),
between the Company and the Warrant Agent and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions the [registered owner] [bearer] of this Warrant Certificate consents
by acceptance hereof. Copies of the Warrant Agreement are on file at the
above-mentioned office of the Warrant Agent [and at _________________].
[The Warrant Securities to be issued and delivered upon the exercise of
the Warrants evidenced by this Warrant Certificate will be issued [by the
Company pursuant to the Certificate of Vote applicable to such Warrant
Securities] [under and in accordance with an Indenture dated as of June 15, 1992
(the "Indenture"), between the Company and Norwest Bank Minnesota, National
Association, as trustee (such trustee, and any successor to such trustee, to be
herein called the "Trustee") and will be subject to the terms and provisions
contained in the Indenture. Copies of the Indenture, including the form of the
Warrant Securities, are on file at the corporate trust office of the Trustee
[and at ________________]].]
[IF OFFERED SECURITIES WITH BEARER WARRANTS WHICH ARE NOT IMMEDIATELY
DETACHABLE - Prior to ________, 19__ this Warrant Certificate may be exchanged
or transferred only together with the [Title of Offered Securities] ("Offered
Securities") to which this Warrant Certificate was initially attached, and only
for the purpose of effecting, or in conjunction with, an exchange or transfer of
such Offered Security. After such date, this Warrant Certificate, and all rights
hereunder, may be transferred by delivery and the Company and the Warrant Agent
may treat the bearer hereof as the owner for all purposes.]
[IF OFFERED SECURITIES WITH BEARER WARRANTS WHICH ARE IMMEDIATELY
DETACHABLE OR BEARER WARRANTS ALONE - This Warrant Certificate, and all rights
hereunder, may be transferred by delivery and the Company and the Warrant Agent
may treat the bearer hereof as the owner for all purposes.
[IF OFFERED SECURITIES WITH REGISTERED WARRANTS WHICH ARE NOT
IMMEDIATELY DETACHABLE - Prior to __________, 19__ this Warrant Certificate may
be exchanged or transferred only together with the [Title of Offered Securities]
("Offered Securities") to which this Warrant Certificate was initially attached,
and only for the purpose of effecting, or in conjunction with, an exchange or
transfer of such Offered Security. After such date, this [IF OFFERED SECURITIES
WITH REGISTERED WARRANTS WHICH ARE IMMEDIATELY DETACHABLE OR REGISTERED WARRANTS
ALONE - This] Warrant Certificate may be transferred when surrendered at the
corporate trust office of the Warrant Agent [or ____________] by the registered
owner or his assigns, in person or by an attorney duly authorized in writing, in
the manner and subject to the limitations provided in the Warrant Agreement.]
[IF OFFERED SECURITIES WITH WARRANTS WHICH ARE NOT IMMEDIATELY
DETACHABLE - Except as provided in the immediately preceding paragraph, after]
[IF OFFERED SECURITIES WITH WARRANTS WHICH ARE IMMEDIATELY DETACHABLE OR
WARRANTS ALONE - After] countersignature by the Warrant Agent
<PAGE> 25
and prior to the expiration of this Warrant Certificate, this Warrant
Certificate may be exchanged at the corporate trust office of the Warrant Agent
for Warrant Certificates representing the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the [registered owner]
[bearer] hereof to any of the rights of a registered owner of the Warrant
Securities, including, without limitation, the right [to vote or] to receive
payments of [dividends or distributions of any kind] [principal of (and premium,
if any) or interest, if any, on the Warrant Securities or to enforce any of the
covenants of the Indenture.]
This Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
Dated as of __________, 19__
BANK OF BOSTON CORPORATION
By _______________________
Attest:
__________________________
Countersigned:
__________________________
As Warrant Agent:
By _______________________
AUTHORIZED SIGNATURE
--------------------
<PAGE> 1
================================================================================
BANK OF BOSTON CORPORATION,
________________________, As Depositary
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
_________________
DEPOSIT AGREEMENT
Dated as of ____________ , ___199_
================================================================================
1
<PAGE> 2
<TABLE>
TABLE OF CONTENTS
<CAPTION>
Page
<S> <C> <C>
ARTICLE I
Definitions ..................................................... 1
ARTICLE II
Form of Receipts, Deposit of Stock,
Execution and Delivery, Transfer,
Surrender and Redemption of Receipts
SECTION 2.01. Form and Transfer of Receipts .................... 3
SECTION 2.02. Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof ................. 4
SECTION 2.03. Registration of Transfer of Receipts ............. 5
SECTION 2.04. Split-ups and Combinations of Receipts;
Surrender of Receipts and
Withdrawal of Stock ........................ 5
SECTION 2.05. Limitations on Execution and Delivery,
Transfer, Surrender and Exchange
of Receipts ................................ 7
SECTION 2.06. Lost Receipts, etc .............................. 7
SECTION 2.07. Cancellation and Destruction of
Surrendered Receipts ....................... 7
SECTION 2.08. Conversion Rights ................................. 7
SECTION 2.09. Redemption or Exchange of Stock .................. 10
ARTICLE III
Certain Obligations of
Holders of Receipts and the Company
SECTION 3.01. Filing Proofs, Certificates and Other
Information ................................. 12
SECTION 3.02. Payment of Taxes or Other Governmental
Charges ..................................... 12
SECTION 3.03. Warranty as to Stock ............................. 13
SECTION 3.04. Warranty as to Receipts .......................... 13
SECTION 3.05. Warranty as to Capital Securities or
Other Preferred Stock ....................... 13
SECTION 3.06. Warrant as to Debt Securities .................... 13
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
Page
<S> <C> <C>
ARTICLE IV
The Deposited Securities; Notices
SECTION 4.01. Cash Distributions ................................. 14
SECTION 4.02. Distributions Other than Cash, Rights,
Preferences or Privileges ..................... 14
SECTION 4.03. Subscription Rights, Preferences
or Privileges ................................. 15
SECTION 4.04. Notice of Dividends, etc.; Fixing
Record Date for Holders of Receipts ........... 16
SECTION 4.05. Voting Rights ...................................... 17
SECTION 4.06. Changes Affecting Deposited Securities
and Reclassifications,
Recapitalizations, etc ........................ 17
SECTION 4.07. Delivery of Reports ................................ 18
SECTION 4.08. Lists of Receipt Holders ........................... 18
ARTICLE V
The Depositary, the Depositary's
Agents, the Registrar and the Company
SECTION 5.01. Maintenance of Offices, Agencies and
Transfer Books by the Depositary;
Registrar ..................................... 18
SECTION 5.02. Prevention of or Delay in Performance
by the Depositary, the Depositary's
Agents, the Registrar or the Company .......... 19
SECTION 5.03. Obligations of the Depositary, the
Depositary's Agents, the Registrar
and the Company ............................... 20
SECTION 5.04. Resignation and Removal of the Depositary;
Appointment of Successor Depositary ........... 21
SECTION 5.05. Corporate Notices and Reports ...................... 22
SECTION 5.06. Indemnification by the Company ..................... 22
SECTION 5.07. Charges and Expenses ............................... 22
ARTICLE VI
Amendment and Termination
SECTION 6.01. Amendment .......................................... 23
SECTION 6.02. Termination ........................................ 23
</TABLE>
ii
<PAGE> 4
<TABLE>
<CAPTION>
Page
ARTICLE VII
Miscellaneous
<S> <C> <C>
SECTION 7.01. Counterparts ........................................ 24
SECTION 7.02. Exclusive Benefit of Parties ........................ 24
SECTION 7.03. Invalidity of Provisions ............................ 24
SECTION 7.04. Notices ............................................. 24
SECTION 7.05. Depositary's Agents ................................. 25
SECTION 7.06. Holders of Receipts Are Parties ..................... 25
SECTION 7.07. Governing Law ....................................... 25
SECTION 7.08. Inspection of Deposit Agreement ..................... 26
SECTION 7.09. Headings ............................................ 26
Form of Depositary Shares
Form of Face of Receipt ............................................ A-1
Form of Reverse of Receipt.......................................... A-2
</TABLE>
iii
<PAGE> 5
DEPOSIT AGREEMENT dated as of ________________ ___, 199_, among BANK
OF BOSTON CORPORATION, a Massachusetts corporation (the "Company"),
_______________________, a _________________ _____________________, and the
holders from time to time of the Receipts described herein.
WHEREAS, it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of shares of [specify designation of series
of preferred stock], of BANK OF BOSTON CORPORATION with the Depositary for the
purposes set forth in this Deposit Agreement and for the issuance hereunder of
Receipts evidencing Depositary Shares in respect of the Stock so deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit
A annexed hereto, with appropriate insertions, modifications and omissions, as
hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
ARTICLE I
Definitions
-----------
The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement:
"Capital Securities" means any securities issued by the Company which
consist of any one of the following: (i) Common Stock, (ii) Perpetual Preferred
Stock, or (iii) other capital securities of the Company acceptable to the
Company's Primary Federal Regulator. Capital Securities may have such terms,
rights and preferences as may be determined by the Company.
"Certificate" shall mean the Certificate of Vote of Directors
Establishing a Series of a Class of Stock filed with the Secretary of State of
the Commonwealth of Massachusetts establishing the Stock as a series of
preferred stock of the Company.
"Common Stock" shall mean the common stock, par value $2.25 per
share, of the Company or any security into which the Common Stock may have been
changed.
"Company" shall mean Bank of Boston Corporation, a Massachusetts
corporation, and its successors.
"Debt Securities" shall mean the senior or subordinated debt
securities of the Company issued in one or more series pursuant to the
Indentures.
1
<PAGE> 6
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time.
"Depositary" shall mean ______________________, and any successor as
Depositary hereunder.
"Depositary Shares" shall mean Depositary shares, each representing
[specify fraction] of a share of Stock and evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 7.05.
"Depositary's Office" shall mean the principal office of the
Depositary, at which at any particular time its depositary receipt business
shall be administered.
"Indentures" shall mean the Indentures relating to the Debt
Securities of the Company, each dated as of June 15, 1992 and each between the
Company and Norwest Bank Minnesota, National Association, as trustee.
"Perpetual Preferred Stock" means any stock of any class or series of
the Company which has a preference over Common Stock in respect of dividends or
of amounts payable in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Company and which is not mandatorily
redeemable or repayable by the Company, or redeemable or repayable as the
option of the holder of such stock, otherwise than in shares of Common Stock or
Perpetual Preferred Stock of another class of series or with the proceeds of
the sale of Common Stock or Perpetual Preferred Stock.
"Primary Federal Regulator" means the Company's primary federal
banking regulator (which at the date of this Agreement is the Board of
Governors of the Federal Reserve System), or any successor body or institution
performing substantially the same regulatory function with respect to the
Company and the adequacy of its capital as said Board of Governors performs on
the date hereof.
"Receipt" shall mean one of the Depositary Receipts, substantially in
the form set forth as Exhibit A hereto, issued hereunder, whether in definitive
or temporary form and evidencing the number of Depositary Shares held of record
by the record holder of such Depositary Shares.
"record holder" or "holder" as applied to a Receipt shall mean the
person in whose name a Receipt is registered on the books of the Depositary
maintained for such purpose.
"Registrar" shall mean the Depositary or such other bank or trust
company which shall be appointed to register ownership and transfers of
Receipts as herein provided.
"Securities Act" shall mean the Securities Act of 1933, as amended.
2
<PAGE> 7
"Stock" shall mean shares of the Company's __________ Preferred
Stock, Series ____, $_______ liquidation preference per share.
ARTICLE II
Form of Receipts, Deposit of Stock,
Execution and Delivery, Transfer,
Surrender and Redemption of Receipts
------------------------------------
SECTION 2.01. FORM AND TRANSFER OF RECEIPTS. Definitive Receipts
shall be engraved or printed or lithographed on steel-engraved borders, with
appropriate insertions, modifications and omissions, as hereinafter provided.
Pending the preparation of definitive Receipts, the Depositary, upon the
written order of the Company or any holder of Stock, as the case may be,
delivered in compliance with Section 2.02, shall execute and deliver temporary
Receipts which are printed, lithographed, typewritten, mimeographed or
otherwise substantially of the tenor of the definitive Receipts in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the persons executing such Receipts may
determine, as evidenced by their execution of such Receipts. If temporary
Receipts are issued, the Company and the Depositary will cause definitive
Receipts to be prepared without unreasonable delay. After the preparation of
definitive Receipts, the temporary Receipts shall be exchangeable for
definitive Receipts upon surrender of the temporary Receipts at an office
described in the penultimate paragraph of Section 2.02, without charge to the
holder. Upon surrender for cancellation of any one or more temporary Receipts,
the Depositary shall execute and deliver in exchange therefor definitive
Receipts representing the same number of Depositary Shares as represented by
the surrendered temporary Receipt or Receipts. Such exchange shall be made at
the Company's expense and without any charge therefor. Until so exchanged, the
temporary Receipts shall in all respects be entitled to the same benefits under
this Agreement, and with respect to the Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature
of a duly authorized officer of the Depositary; provided, that such signature
may be a facsimile if a Registrar for the Receipts (other than the Depositary)
shall have been appointed and such Receipts are countersigned by a duly
authorized officer of the Registrar. No Receipt shall be entitled to any
benefits under this Deposit Agreement or be valid or obligatory for any purpose
unless it shall have been executed manually by a duly authorized officer of the
Depositary or, if a Registrar for the Receipts (other than the Depositary)
shall have been appointed, by manual or facsimile signature of a duly
authorized officer of the Depositary and countersigned by a duly authorized
officer of such Registrar. The Depositary shall record on its books each
Receipt so signed and delivered as hereinafter provided.
3
<PAGE> 8
Receipts shall be in denominations of any number of whole Depositary
Shares.
Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with the
provisions of this Deposit Agreement as may be required by the Depositary or
required to comply with any applicable law or any regulation thereunder or with
the rules and regulations of any securities exchange upon which the Stock, the
Depositary Shares or the Receipts may be listed or to conform with any usage
with respect thereto, or to indicate any special limitations or restrictions to
which any particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt which is properly
endorsed or accompanied by a properly executed instrument of transfer, shall be
transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until transfer of a Receipt shall be
registered on the books of the Depositary as provided in Section 2.03, the
Depositary may, notwithstanding any notice to the contrary, treat the record
holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of dividends or other
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes.
SECTION 2.02 DEPOSIT OF STOCK; EXECUTION AND DELIVERY OF RECEIPTS
IN RESPECT THEREOF. Subject to the terms and conditions of this Deposit
Agreement, the Company or any holder of Stock may from time to time deposit
shares of the Stock under this Deposit Agreement by delivery to the Depositary
of a certificate or certificates for the Stock to be deposited, properly
endorsed or accompanied, if required by the Depositary, by a duly executed
instrument of transfer or endorsement, in form satisfactory to the Depositary,
together with all such certifications as may be required by the Depositary in
accordance with the provisions of this Deposit Agreement, and together with a
written order of the Company or such holder, as the case may be, directing the
Depositary to execute and deliver to, or upon the written order of, the person
or persons stated in such order a Receipt or Receipts for the number of
Depositary Shares representing such deposited Stock.
Deposited Stock shall be held by the Depositary at the Depositary's
office or at such other place or places as the Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates for
Stock deposited in accordance with the provisions of this Section, together
with the other documents required as above specified, and upon recordation of
the Stock on the books of the Company in the name of the Depositary or its
nominee, the Depositary, subject to the terms and conditions of this Deposit
Agreement, shall execute and deliver, to or upon the order of the person or
persons named in the written order delivered to the Depositary referred to in
the first paragraph of this Section, a Receipt or Receipts for the number of
Depositary Shares representing the Stock so deposited and registered in such
name or names as may be requested by such person or persons. The Depositary
shall execute and deliver such Receipt or Receipts at the Depositary's Office
or such other offices, if any, as the Depositary may designate. Delivery at
other offices shall be at the risk and expense of the person requesting such
delivery.
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SECTION 2.03. REGISTRATION OF TRANSFER OF RECEIPTS. Subject to the
terms and conditions of this Deposit Agreement, the Depositary shall register
on its books from time to time transfers of Receipts upon any surrender thereof
by the holder in person or by duly authorized attorney, properly endorsed or
accompanied by a properly executed instrument of transfer. Thereupon, the
Depositary shall execute a new Receipt or Receipts evidencing the same
aggregate number of Depositary Shares as those evidenced by the Receipt or
Receipts surrendered and deliver such new Receipt or Receipts to or upon the
order of the person entitled thereto.
SECTION 2.04. SPLIT-UPS AND COMBINATIONS OF RECEIPTS; SURRENDER OF
RECEIPTS AND WITHDRAWAL OF STOCK. Upon surrender of a Receipt or Receipts at
the Depositary's Office or at such other offices as it may designate for the
purpose of effecting a split-up or combination of such Receipt or Receipts, and
subject to the terms and conditions of this Deposit Agreement, the Depositary
shall execute and deliver a new Receipt or Receipts in the authorized
denomination or denominations requested, evidencing the aggregate number of
Depositary Shares evidenced by the Receipt or Receipts surrendered.
Any holder of a Receipt or Receipts representing any number of whole
shares of Stock may withdraw the Stock and all money and other property, if
any, represented thereby by surrendering such Receipt or Receipts, at the
Depositary's Office or at such other offices as the Depositary may designate
for such withdrawals. Thereafter, without unreasonable delay, the Depositary
shall deliver to such holder or to the person or persons designated by such
holder as hereinafter provided, the number of whole shares of Stock and all
money and other property, if any, represented by the Receipt or Receipts so
surrendered for withdrawal, but holders of such whole shares of Stock will not
thereafter be entitled to deposit such Stock hereunder or to receive Depositary
Shares therefor. If a Receipt delivered by the holder to the Depositary in
connection with such withdrawal shall evidence a number of Depositary Shares in
excess of the number of Depositary Shares representing the number of whole
shares of Stock to be so withdrawn, the Depositary shall at the same time, in
addition to such number of whole shares of Stock and such money and other
property, if any, to be so withdrawn, deliver to such holder, or upon his
order, a new Receipt evidencing such excess number of Depositary Shares.
Delivery of the Stock and money and other property being withdrawn may be made
by the delivery of such certificates, documents of title and other instruments
as the Depositary may deem appropriate.
If the Stock and the money and other property being withdrawn are to
be delivered to a person or persons other than the record holder of the Receipt
or Receipts being surrendered for withdrawal of Stock, such holders shall
execute and deliver to the Depositary a written order so directing the
Depositary and the Depositary may require that the Receipt or Receipts
surrendered by such holder for withdrawal of such shares of Stock be properly
endorsed in blank or accompanied by a properly executed instrument of transfer
in blank.
Delivery of the Stock and the money and other property, if any,
represented by Receipts surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk and
expense of the holder surrendering such Receipt or Receipts
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and for the account of the holder thereof, such delivery may be made at such
other place as may be designated by such holder.
SECTION 2.05. LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND EXCHANGE OF RECEIPTS. As a condition precedent to the execution
and delivery, registration of transfer, split-up, combination, surrender or
exchange of any Receipt, the Depositary, any of the Depositary's Agents or the
Company may require payment to it of a sum sufficient for the payment (or, in
the event that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any charges or expenses payable by the holder of a
Receipt pursuant to Section 5.07, may require the production of evidence
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with such regulations, if any, as the Depositary or the
Company may establish consistent with the provisions of this Deposit Agreement.
The deposit of Stock may be refused, the delivery of Receipts against
Stock may be suspended, the registration of transfer of Receipts may be refused
and the registration of transfer, surrender or exchange of outstanding Receipts
may be suspended (i) during any period when the register of stockholders of the
Company is closed or (ii) if any such action is deemed necessary or advisable
by the Depositary, any of the Depositary's Agents or the Company at any time or
from time to time because of any requirement of law or of any government or
governmental body or commission or under any provision of this Deposit
Agreement.
SECTION 2.06. LOST RECEIPTS, ETC. In case any receipt shall be
mutilated, destroyed, lost or stolen, the Depositary in its discretion may
execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt, or in lieu of and in substitution for
such destroyed, lost or stolen Receipt, upon (i) the filing by the holder
thereof with the Depositary of evidence satisfactory to the Depositary of such
destruction or loss or theft of such Receipt, of the authenticity thereof and
of his or her ownership thereof and (ii) the furnishing of the Depositary with
reasonable indemnification satisfactory to it.
SECTION 2.07. CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS.
All Receipts surrendered to the Depositary or any Depositary's Agent shall be
cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so cancelled.
SECTION 2.08. CONVERSION RIGHTS. Receipts may be surrendered with
written instructions to the Depositary to instruct the Company to cause the
conversion of any specified number of whole or fractional shares of Stock
represented by the Depositary Shares evidenced by such Receipts into the number
of whole shares of Capital Securities or other preferred stock obtained by
dividing the aggregate liquidation preference of such Depositary Shares by the
Conversion Price (as such term is defined in the Certificate) then in effect,
as such Conversion Price may be adjusted by the Company from time to time as
provided in the Certificate. Subject to the terms and conditions of this
Deposit
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Agreement and the fractional shares of Stock may surrender such Receipt
or Receipts to the Depositary at the Depositary's Office or to such office or
to such Depositary's Agents as the Depositary may designate for such purpose,
together with (i) a notice of conversion thereof duly completed and executed (a
"Notice of Conversion"), and (ii) any payment in respect of dividends required
by the fourth paragraph of this Section 2.08, thereby directing the Depositary
to instruct the Company to cause the conversion of the number of shares or
fractions thereof of underlying Stock specified in such Notice of Conversion
into whole shares of Capital Securities or other preferred stock. In the event
that a holder delivers to the Depositary for conversion a Receipt or Receipts
which in the aggregate are convertible into less than one whole share of
Capital Securities or other preferred stock or any number of whole shares of
Capital Securities or other preferred stock plus an excess constituting less
than one whole share of Capital Securities or other preferred stock, the holder
shall receive payment in lieu of such fractional shares of Capital Securities
or other preferred stock otherwise issuable in accordance with the last
paragraph of this Section 2.08. If more than one Receipt shall be delivered
for conversion at one time by the same holder, the number of whole shares of
Capital Securities or other preferred stock issuable upon conversion thereof
shall be computed on the basis of the aggregate number of Receipts so
delivered.
Upon receipt by the Depositary of a Receipt or Receipts, together
with a Notice of Conversion, duly completed and executed, directing the
Depositary to instruct the Company to cause the conversion of a specified
number of shares or fractions thereof of Stock, the Depositary shall, on the
date of receipt of such Notice of Conversion, instruct the Company (i) to cause
the conversion of the Depositary Shares evidenced by the Receipts so
surrendered for conversion as specified in the written Notice of Conversion to
the Depositary and (ii) to cause the delivery to the holder or holders of such
Receipts of a certificate or certificates evidencing the number of whole shares
of Capital Securities or other preferred stock, and the amount of money, if
any, to be delivered to the holders of Receipts surrendered for conversion in
payment of any fractional shares of Capital Securities or other preferred stock
otherwise issuable. The Company shall, as promptly as practicable after
receipt thereof, cause the delivery to such holder or holders of (i) a
certificate or certificates evidencing the number of whole shares of Capital
Securities or other preferred stock into which the Stock represented by the
Depositary Shares evidenced by such Receipt or Receipts has been converted, and
(ii) any money or other property to which the holder or holders are entitled.
The person or persons in whose name or names any certificate or certificates
for shares of Capital Securities or other preferred stock shall be issuable
upon such conversion shall be deemed to have become the holder or holders of
record of the shares represented thereby at the close of business on the date
such Receipt or Receipts shall have been surrendered to and a Notice of
Conversion received by the Depositary, unless the stock transfer books of the
Company shall be closed on that date, in which event such person or persons
shall be deemed to have become such holder or holders of record on the next
succeeding day on which such stock transfer books are open. Upon such
conversion, the Depositary (i) shall deliver to the holder a Receipt evidencing
the number of Depositary Shares, if any, which such holder has elected not to
convert in excess of the number of Depositary Shares representing Stock which
has been so converted, (ii) shall cancel the Depositary Shares evidenced by
Receipts surrendered for conversion and (iii) shall deliver for cancellation to
the transfer
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agent for the Stock the shares represented by the Depositary Shares evidenced
by the Receipts so surrendered and so converted.
If any Stock shall be called by the Company for redemption or
exchange, the Depositary Shares representing such Stock may be converted into
Capital Securities or other preferred stock as provided in this Deposit
Agreement until and including, but not after, the close of business on the
Redemption Date or the Exchange Date (each as defined below) unless the Company
shall default in making payment of the amount payable upon such redemption.
Upon receipt by the Depositary of a Receipt or Receipts representing any Stock
called for redemption or exchange, together with a properly completed and
executed Notice of Conversion, the shares of Stock held by the Depositary
represented by such Depositary Shares for which conversion is requested shall
be deemed to have been received by the Company for conversion.
Upon any conversion of the Stock underlying the Depositary Shares, no
allowance, adjustment or payment shall be made with respect to accrued
dividends upon such Stock except that if any holder of a Receipt surrenders
such Receipt with instructions to the Depositary for conversion of the
underlying Stock evidenced thereby during the period between the opening of
business on any dividend record date and the close of business on the
corresponding dividend payment date (except shares called for redemption or
exchange on a Redemption Date or Exchange Date during such period), such
Receipt must be accompanied by a payment equal to the dividend thereon, if any,
which the holder of record of such Receipt is entitled to receive on such
dividend payment date in respect of the underlying Stock to be converted.
Upon the conversion of any shares of Stock for which a Notice of
Conversion has been received by the Depositary, all dividends in respect of
such Depositary Shares shall cease to accrue, such Depositary Shares shall be
deemed no longer outstanding, all rights of the holder of the Receipt with
respect to such Depositary Shares (except the right to receive the Capital
Securities or other preferred stock, any cash payable with respect to any
fractional shares of Capital Securities or other preferred stock as provided
herein and any cash payable on account of accrued dividends in respect of the
Stock so converted and any Receipts evidencing Depositary Shares not so
converted) shall terminate, and the Receipt evidencing such Depositary Shares
shall be cancelled in accordance with Section 2.07 hereof.
No fractional shares of Capital Securities or other preferred stock
shall be issuable upon conversion of Stock underlying the Depositary Shares.
If, except for the provisions of this Section 2.08 and the Certificate, any
holder of Receipts surrendered with instructions to the Depositary for
conversion of the underlying Stock would be entitled to a fractional share of
Capital Securities or other preferred stock upon such conversion, the Company
shall cause to be delivered to such holder an amount in cash for such
fractional share determined in accordance with the Certificate.]
SECTION 2.09. REDEMPTION OR EXCHANGE OF STOCK. Whenever the Company
shall be permitted and shall elect to redeem or exchange shares of Stock in
accordance with the provisions of the Certificate, it shall (unless otherwise
agreed to in writing with the Depositary) give or cause to be given to the
Depositary not less than 10 days' and not more than 60 days' notice of the date
of such proposed redemption
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or exchange of Stock and of the number of such shares held by the Depositary to
be so redeemed or exchanged and (i) the applicable redemption price or (ii) the
class and stated value or tenor and aggregate principal amount of Capital
Securities or Debt Securities to be issued in exchange, as set forth in the
Certificate, which notice shall be accompanied by a certificate from the
Company stating that such redemption or exchange of Stock is in accordance with
the provisions of the Certificate. On the date of such redemption or exchange,
provided that the Company shall then have paid or caused to be paid in full to
the Depositary the redemption price of the Stock to be redeemed or the Capital
Securities or Debt Securities to be issued in exchange for stock to be
exchanged, plus an amount equal to any accrued and unpaid dividends thereon to
the date fixed for redemption or exchange, in accordance with the provisions of
the Certificate, the Depositary shall redeem the number of Depositary Shares
representing such Stock. The Depositary shall mail notice of the Company's
redemption or exchange of Stock and the proposed simultaneous redemption or
exchange of the number of Depositary Shares representing the Stock to be
redeemed or exchanged by first-class mail, postage prepaid, not less than 10
and not more than 60 days prior to the date fixed for redemption or exchange of
such Stock and Depositary Shares (the "Redemption Date" or the "Exchange Date",
respectively), to the record holders of the Receipts evidencing the Depositary
Shares to be so redeemed or exchanged, at the addresses of such holders as they
appear on the records of the Depositary; but neither failure to mail any such
notice of redemption or exchange of Depositary Shares to one or more such
holders nor any defect in any notice of redemption or exchange of Depositary
Shares to one or more such holders shall affect the sufficiency of the
proceedings for redemption or exchange as to the other holders. Each such
notice shall state: (i) the Redemption Date or Exchange Date; (ii) the number
of Depositary Shares to be redeemed or exchanged and, if less than all the
Depositary Shares held by any such holder are to be redeemed or exchanged, the
number of such Depositary Shares held by such holder to be so redeemed or
exchanged; (iii) (a) the redemption price or (b) the class and stated value or
tenor and aggregate principal amount of Capital Securities or Debt Securities
to be issued in exchange; (iv) the place or places where Receipts evidencing
Depositary Shares are to be surrendered for payment of the redemption price;
(v) the then current conversion price; and (vi) that dividends in respect of
the Stock represented by the Depositary Shares to be redeemed or exchanged
will cease to accrue on such Redemption Date or Exchange Rate. In case less
than all the outstanding Depositary Shares are to be redeemed or exchanged, the
Depositary Shares to be so redeemed or exchanged shall be selected by the
Depositary by lot or pro rata (as nearly as may be) or by any other method, in
each case, as determined by the Company in its sole discretion to be equitable.
Notice having been mailed by the Depositary as aforesaid, from and
after the Redemption Date (unless the Company shall have failed to provide the
funds or Capital Securities or Debt Securities necessary to redeem or exchange
the Stock evidenced by the Depositary Shares called for redemption or exchange)
(i) dividends on the shares of Stock so called for Redemption or exchange shall
cease to accrue from and after such date, (ii) the Depositary Shares being
redeemed or exchanged from such proceeds shall be deemed no longer to be
outstanding, (iii) all rights of the Holders of Receipts evidencing such
Depositary Shares (except the right to receive the Redemption Price) shall, to
the extent of such Depositary Shares, cease and terminate, and (iv) upon
surrender in accordance with such redemption or exchange notice of the Receipts
evidencing any such Depositary Shares called for redemption or exchange
(properly endorsed or assigned for transfer, in the Depositary or applicable
law shall so require), such Depositary
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Shares shall be redeemed or exchanged by the Depositary at a redemption price
per Depositary Share equal to [specify fraction] of the redemption price per
share or market value of Capital Securities or Debt Securities per Depositary
Share paid in respect of the shares of Stock so redeemed or exchanged plus all
money and other property, if any, represented by such Depositary Shares,
including all amounts paid by the Company in respect of dividends which on the
Redemption Date or Exchange Date have accumulated on the shares of Stock to be
so redeemed or exchanged and have not therefore been paid.
If fewer than all of the Depositary Shares evidenced by a Receipt are
called for redemption or exchange, the Depositary will deliver to the holder of
such Receipt upon its surrender to the Depositary, together with the redemption
payment or Capital Securities or Debt Securities issued upon exchange, a new
Receipt evidencing the Depositary Shares evidenced by such prior receipt and
not called for redemption or exchange.
ARTICLE III
Certain Obligations of
Holders of Receipts and the Company
-----------------------------------
SECTION 3.01. FILING PROOFS, CERTIFICATES AND OTHER INFORMATION.
Any holder of a Receipt may be required from time to time to file such proof of
residence, or other matters or other information, to execute such certificates
and to make such representations and warranties as the Depositary or the
Company may reasonably deem necessary or proper. The Depositary or the Company
may withhold the delivery, or delay the registration of transfer, redemption or
exchange, of any Receipt or the withdrawal or conversion of the Stock
represented by the Depositary Shares evidenced by any Receipt or the
distribution of any dividend or other distribution or the sale of any rights or
of the proceeds thereof until such proof or other information is filed or such
certificates are executed or such representations and warranties are made.
SECTION 3.02. PAYMENT OF TAXES OR OTHER GOVERNMENTAL CHARGES.
Holders of Receipts shall be obligated to make payments to the Depositary of
certain charges and expenses, as provided in Section 5.07. Registration of
transfer of any Receipt or any withdrawal of Stock and all money or other
property, if any, represented by the Depositary Shares evidenced by such
Receipt may be refused until any such payment due is made, and any dividends,
interest payments or other distributions may be withheld or any part of or all
the Stock or other property represented by the Depositary Shares evidenced by
such Receipt and not theretofore sold may be sold for the account of the holder
thereof (after attempting by reasonable means to notify such holder prior to
such sale), and such dividends, interest payments or other distributions or
the proceeds of any such sale may be applied to any
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payment of such charges or expenses, holder of such Receipt remaining liable
for any deficiency.
SECTION 3.03. WARRANTY AS TO STOCK. The Company hereby represents
and warrants that the Stock, when issued, will be duly authorized, validly
issued, fully paid and nonassessable, subject to Massachusetts General Laws,
Chapter 156B, Section 45. Such representation and warranty shall survive the
deposit of the Stock and the issuance of Receipts.
SECTION 3.04. WARRANTY AS TO RECEIPTS. The Company hereby
represents and warrants that the Receipts, when issued, will represent legal
and valid interests in the Stock. Such representation and warranty shall
survive the deposit of the Stock and the issuance of Receipts.
SECTION 3.05. WARRANTY AS TO CAPITAL SECURITIES OR OTHER PREFERRED
STOCK. The Company hereby represents and warrants that the Capital Securities
or other preferred stock issued upon conversion of the Stock, when issued, will
be duly authorized, validly issued, fully paid and nonassessable, subject to
Massachusetts General Laws, Chapter 156B, Section 45. Such representation and
warranty shall survive the conversion of the Stock into such Capital Securities
or other preferred stock.
SECTION 3.06. WARRANT AS TO DEBT SECURITIES. The Company hereby
represents and warrants that (i) Debt Securities issued upon exchange of the
Stock, when issued, will be duly authorized and, when such Debt Securities are
duly executed, authenticated and delivered in the manner provided for in the
applicable Indenture, such Debt Securities will constitute valid and binding
obligations of the Company entitled to the benefits of the applicable Indenture
and enforceable against the Company in accordance with their terms, and (ii)
the applicable Indenture has been duly authorized by the Company and
constitutes a valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, except in each case as enforcement
thereof may be limited by the receivership, conservatorship and supervisory
powers of bank regulatory agencies generally as well as bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is considered
in a proceeding in equity or at law) and the availability of equitable
remedies. Such representation and warranty shall survive the exchange of the
Stock for such Debt Securities.
ARTICLE IV
The Deposited Securities; Notices
---------------------------------
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SECTION 4.01. CASH DISTRIBUTIONS. Whenever the Depositary shall
receive any cash dividend or other cash distribution on Stock, the Depositary
shall, subject to Sections 3.01 and 3.02, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.04 such amounts of such
dividend or distribution as are, as nearly as practicable, in proportion to the
respective numbers of Depositary Shares evidenced by the Receipts held by such
holders; PROVIDED, HOWEVER, that in case the Company or the Depositary shall be
required to withhold and shall withhold from any cash dividend or other cash
distribution in respect of the Stocks an amount on account of taxes, the amount
made available for distribution or distributed in respect of Depositary Shares
shall be reduced accordingly. The Depositary shall distribute or make
available for distribution, as the case may be, only such amount, however, as
can be distributed without attributing to any holder of Depositary Shares a
fraction of one cent, and any balance not so distributable shall be held by the
Depositary (without liability for interest thereon) and shall be added to and
be treated as part of the next sum received by the Depositary for distribution
to record holders of Receipts then outstanding.
SECTION 4.02. DISTRIBUTIONS OTHER THAN CASH, RIGHTS, PREFERENCES OR
PRIVILEGES. Whenever the Depositary shall receive any distribution other than
cash, rights, preferences or privileges upon Stock, the Depositary shall,
subject to Sections 3.01 and 3.02, distribute to record holders of Receipts on
the record date fixed pursuant to Section 4.04 such amounts of the securities
or property received by it as are, as nearly as practicable, in proportion to
the respective numbers of Depositary Shares evidenced by the Receipts held by
such holders, in any manner that the Depositary may deem equitable and
practicable for accomplishing such distribution. If in the opinion of the
Depositary such distribution cannot be made proportionately among such record
holders, or if for any other reason (including any requirement that the Company
or the Depositary withhold an amount on account of taxes) the Depositary deems,
after consultation with the Company, such distribution not to be feasible, the
Depositary may, with the approval of the Company, adopt such method as it deems
equitable and practicable for the purpose of effecting such distribution,
including the sale (at public or private sale) of the securities or property
thus received, or any part thereof, at such place or places and upon such terms
as it may deem proper. The net proceeds of any such sale shall, subject to
Sections 3.01 and 3.02, be distributed or made available for distribution, as
the case may be, by the Depositary to record holders of Receipts as provided by
Section 4.01 in the case of a distribution received in cash. The Company shall
not make any distribution of such securities or property to the Depositary and
the Depositary shall not make any distribution of such securities or property
to the holders of Receipts unless the Company shall have provided an opinion of
counsel stating that such securities or property have been registered under the
Securities Act or do not need to be registered in connection with such
distributions.
SECTION 4.03. SUBSCRIPTION RIGHTS, PREFERENCES OR PRIVILEGES. If
the Company shall at any time offer or cause to be offered to the persons in
whose names Stock is recorded on the books of the Company any rights,
preferences or privileges to subscribe for or to purchase any securities or any
rights, preferences or privileges of any other nature, such rights, preferences
or privileges shall in each such instance be made available by the Depositary
to the record holder of Receipts
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in such manner as the Depositary may determine, either by the issue to such
record holders of warrants representing such rights, preferences or privileges
or by such other method as may be approved by the Depositary in its discretion
with the approval of the Company; provided, however, that (i) if at the time of
issue or offer of any such rights, preferences or privileges the Depositary
determines that it is not lawful or (after consultation with the Company) not
feasible to make such rights, preferences or privileges available to holders of
Receipts by the issue of warrants or otherwise, or (ii) if and to the extent so
instructed by holders of Receipts who do not desire to exercise such rights,
preferences or privileges, then the Depositary, in its discretion (with
approval of the Company, in any case where the Depositary has determined that
it is not feasible to make such rights, preferences or privileges available),
may, if applicable laws or the terms of such rights, preferences or privileges
permit such transfer, sell such rights, preferences or privileges at public or
private sale, at such place or places and upon such terms as it may deem
proper. The net proceeds of any such sale shall, subject to Sections 3.01 and
3.02, be distributed by the Depositary to the record holders of Receipts
entitled thereto as provided by Section 4.01 in the case of a distribution
received in cash.
If registration under the Securities Act of the securities to which
any rights, preferences or privileges relate is required in order for holders
of Receipts to be offered or sold the securities to which such rights,
preferences or privileges relate, the Company agrees with the Depositary that
it will file promptly a registration statement pursuant to such Act with
respect to such rights, preferences or privileges and securities and use its
best efforts and take all steps available to it to cause such registration
statement to become effective sufficiently in advance of the expiration of such
rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges. In no event shall the Depositary make
available to the holders of Receipts any right, preference or privilege to
subscribe for or to purchase any securities unless and until such registration
statement shall have become effective, or unless the offering and sale of such
securities to such holders are exempt from registration under the provisions of
the Securities Act, and the Company shall have provided to the Depositary an
opinion of counsel to such effect.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to
holders of Receipts, the Company agrees with the Depositary that the Company
will use its reasonable best efforts to take such action or obtain such
authorization, consent or permit sufficiently in advance of the expiration of
such rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges.
SECTION 4.04. NOTICE OF DIVIDENDS, ETC.; FIXING RECORD DATE FOR
HOLDERS OF RECEIPTS. Whenever any cash dividend or other cash distribution
shall become payable or any distribution other than cash shall be made, or if
rights, preferences or privileges shall at any time be offered, with respect to
Stock, or whenever the Depositary shall receive notice of any meeting at which
holders of Stock are entitled to vote or of which holders of Stock are entitled
to notice, or whenever the Depositary and the Company shall decide it is
appropriate, the Depositary shall in each such instance fix a record date
(which shall be the same date as the
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record date fixed by the Company with respect to or otherwise in accordance
with the terms of the Stock) for the determination of the holders of Receipts
who shall be entitled to receive such dividend, distribution, rights,
preferences or privileges or the net proceeds of the sale thereof, or to give
instructions for the exercise of voting rights at any such meeting, or who
shall be entitled to notice of such meeting or for any other appropriate
reasons.
SECTION 4.05. VOTING RIGHTS. Upon receipt of notice of any meeting
at which the holders of Stock are entitled to vote, the Depositary shall, as
soon as practicable thereafter, mail to the record holders of Receipts a notice
which shall contain (i) such information as is contained in such notice of
meeting and (ii) a statement that the holders may, subject to any applicable
restrictions, instruct the Depositary as to the exercise of the voting rights
pertaining to the amount of Stock represented by their respective Depositary
Shares (including an express indication that instructions may be given to the
Depositary to give a discretionary proxy to a person designated by the Company)
and a brief statement as to the manner in which such instructions may be given.
Upon the written request of the holders of Receipts on the relevant record
date, the Depositary shall endeavor insofar as practicable to vote or cause to
be voted, in accordance with the instructions set forth in such requests, the
maximum number of whole shares of Stock represented by the Depositary Shares
evidenced by all Receipts as to which any particular voting instructions are
received. The Company hereby agrees to take all reasonable action which may be
deemed necessary by the Depositary in order to enable the Depositary to vote
such Stock or cause such Stock to be voted. In the absence of specific
instructions from the holder of a Receipt, the Depositary will not vote (but,
at its discretion, may appear at any meeting with respect to such Stock unless
directed to the contrary by the holders of all the Receipts) to the extent of
the Stock represented by the Depositary Shares evidenced by such Receipt.
SECTION 4.06. CHANGES AFFECTING DEPOSITED SECURITIES AND
RECLASSIFICATIONS, RECAPITALIZATIONS, ETC. Upon any change in par or stated
value, split-up, combination or any other reclassification of the Stock, or
upon any recapitalization, reorganization, merger or consolidation affecting
the Company or to which it is a party, the Depositary may in its discretion
with the approval of, and shall upon the instructions of, the Company, and (in
either case) in such manner as the Depositary may deem equitable, (i) make such
adjustments as are certified by the Company in the fraction of an interest
represented by one Depositary Share in one share of Stock as may be necessary
fully to reflect the effects of such change in par or stated value, split-up,
combination or other reclassification of Stock, or of such recapitalization,
reorganization, merger or consolidation and (ii) treat any securities which
shall be received by the Depositary in exchange for or upon conversion of or in
respect of the Stock as new deposited securities so received in exchange for or
upon conversion or in respect of such Stock. In any such case the Depositary
may in its discretion, with the approval of the Company, execute and deliver
additional Receipts or may call for the surrender of all outstanding Receipts
to be exchanged for new Receipts specifically describing such new deposited
securities. Anything to the contrary herein notwithstanding, holders of
Receipts shall have the right from and after the effective date of any such
change in par or stated value, split-up, combination or other reclassification
of the Stock or any such recapitalization, reorganization, merger or
consolidation to surrender such Receipts to the Depositary with instructions to
14
<PAGE> 19
convert,exchange or surrender the Stock represented thereby only into or for,
as the case may be, the kind and amount of shares of stock and other securities
and property and cash into which the Stock represented by such Receipts
might have been converted or for which such Stock might have been exchanged or
surrendered immediately prior to the effective date of such transaction.
SECTION 4.07. DELIVERY OF REPORTS. The Depositary shall furnish to
holders of Receipts any reports and communications received from the Company
which are received by the Depositary as the holder of Stock.
SECTION 4.08. LISTS OF RECEIPT HOLDERS. Promptly upon request from
time to time by the Company, the Depositary shall furnish to it a list, as of
the most recent practicable date, of the names, addresses and holdings of
Depositary Shares of all record holders of Receipts.
ARTICLE V
The Depositary, the Depositary's
Agents, the Registrar and the Company
-------------------------------------
SECTION 5.01. MAINTENANCE OF OFFICES, AGENCIES AND TRANSFER BOOKS BY
THE DEPOSITARY; REGISTRAR. Upon execution of this Deposit Agreement, the
Depositary shall maintain at the Depositary's Office, facilities for the
execution and delivery, registration and registration of transfer, surrender
and exchange of Receipts, and at the offices of the Depositary's Agents, if
any, facilities for the delivery, registration of transfer, surrender and
exchange of Receipts, all in accordance with the provisions of this Deposit
Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration and registration of transfer of Receipts, which books at all
reasonable times shall be open for inspection by the record holders of
Receipts; PROVIDED that any such holder requesting to exercise such right shall
certify to the Depositary that such inspection shall be for a proper purpose
reasonably related to such person's interest as an owner of Depositary Shares
evidenced by the Receipts.
The Depositary may close such books, at any time or from time to
time, when deemed expedient by it in connection with the performance of its
duties hereunder.
The Depositary may, with the approval of the Company, appoint a
Registrar for registration of the Receipts or the Depositary Shares evidenced
thereby. If the Receipts or the Depositary Shares evidenced thereby or the
Stock represented by such Depositary Shares shall be listed on one or more
national stock exchanges, the Depositary will appoint a Registrar
15
<PAGE> 20
(acceptable to the Comapny) for registration of such Receipts or Depositary
Shares in accordance with any requirements of such exchange. Such Registrar
(which may be the Depositary if so permitted by the requirements of any such
exchange) may be removed and a substitute registrar appointed by the Depositary
upon the request or with the approval of the Company. If the Receipts, such
Depositary Shares or such stock are listed on one or more other stock
exchanges, the Depositary will, at the request of the Company, arrange such
facilities for the delivery, registration, registration of transfer, surrender
and exchange of such Receipts, such Depositary Shares or such stock as may
be required by law or applicable stock exchange regulation.
SECTION 5.02. PREVENTION OF OR DELAY IN PERFORMANCE BY THE
DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR OR THE COMPANY. Neither the
Depositary nor any Depositary's Agent nor any Registrar nor the Company shall
incur any liability to any holder of any Receipt if by reason of any provision
of any present or future law, or regulation thereunder, of the United States of
America or of any other governmental authority or, in the case of the
Depositary, the Depositary's Agent or the Registrar, by reason of any
provision, present or future, of the Company's Articles of Organization, as
amended (including the Certificate) or by reason of any act of God or war or
other circumstance beyond the control of the relevant party, the Depositary,
the Depositary's Agent, the Registrar or the Company shall be prevented or
forbidden from, or subjected to any penalty on account of, doing or performing
any act or thing which the terms of this Deposit Agreement provide shall be
done or performed; nor shall the Depositary, any Depositary's Agent, any
Registrar or the Company incur liability to any holder of a Receipt (i) by
reason of any nonperformance or delay, caused as aforesaid, in the performance
of any act or thing which the terms of this Deposit Agreement shall provide
shall or may be done or performed, or (ii) by reason of any exercise of, or
failure to exercise, any discretion provided for in this Deposit Agreement
except, in the case of any such exercise or failure to exercise discretion not
caused as aforesaid, if caused by the negligence or willful misconduct of the
party charged with such exercise or failure to exercise.
SECTION 5.03. OBLIGATIONS OF THE DEPOSITARY, THE DEPOSITARY'S
AGENTS, THE REGISTRAR AND THE COMPANY. Neither the Depositary nor any
Depositary's Agent nor any Registrar nor the Company assumes any obligation or
shall be subject to any liability under this Deposit Agreement to holders of
Receipts other than for its negligence, willful misconduct or bad faith.
Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the Company shall be under, any obligation to appear in, prosecute or
defend any action, suit or other proceeding in respect of the Stock, the
Depositary Shares or the Receipts which in its opinion may involve it in
expense or liability unless indemnity satisfactory to it against all expense
and liability be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the Company shall be liable for any action or any failure to act by it in
reliance upon the written advice of legal counsel or accountants, or
information from any person presenting Stock for deposit, any holder of a
Receipt or any other person believed by it in good faith to be competent
16
<PAGE> 21
to give such information. The Depositary, any Depositary's Agent, any Registrar
and the Company may each rely and shall each be protected in acting upon any
written notice, request, direction or other document believed by it to be
genuine and to have been signed or presented by the proper party or parties.
The Depositary shall not be responsible for any failure to carry out
any instruction to vote any of the shares of stock or for the manner or effect
of any such vote made, as long as any such action or non-action is in good
faith. The Depositary undertakes, and any Registrar shall be required to
undertake, to perform such duties and only such duties as are specifically set
forth in this Agreement, and no implied covenants or obligations shall be read
into this Agreement against the Depositary or any Registrar. The Depositary
will indemnify the Company and hold it harmless from any loss, liability or
expense (including the reasonable costs and expenses of defending itself) which
may arise out of acts performed or omitted by the Depositary or the
Depositary's Agents in connection with this Agreement due to its or their
negligence, willful misconduct or bad faith. The indemnification obligations
of the Depositary set forth in this Section 5.03 shall survive any termination
of this Agreement and any succession of any Depositary. The Depositary, the
Depositary's Agents, and any Registrar may own and deal in any class of
securities of the Company and its affiliates and in Receipts. The Depositary
may also act as transfer agent or registrar of any of the securities of the
Company and its affiliates.
SECTION 5.04. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT
OF SUCCESSOR DEPOSITARY. The Depositary may at any time resign as Depositary
hereunder by delivering notice of its election to do so to the Company, such
resignation to take effect upon the appointment of a successor Depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of
such removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor Depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or
be removed, the Company shall, within 60 days after the delivery of the notice
of resignation or removal, as the case may be, appoint a successor Depositary,
which shall be a bank or trust company having its principal office in the
United States of America and having a combined capital and surplus of at least
$50,000,000. If no successor Depositary shall have been so appointed and have
accepted appointment within 60 days after delivery of such notice, the
resigning or removed Depositary may petition any court of competent
jurisdiction for the appointment of a successor Depositary. Every successor
Depositary shall execute and deliver to its predecessor and to the Company an
instrument in writing accepting its appointment hereunder, and thereupon such
successor Depositary, without any further act or deed, shall become fully
vested with all the rights, powers, duties and obligations of its predecessor
and for all purposes shall be the Depositary under this Deposit Agreement, and
such predecessor, upon payment of all sums due it and on the written request of
the Company, shall execute and deliver an instrument transferring to such
successor all rights and powers of such predecessor hereunder, shall duly
assign, transfer and
17
<PAGE> 22
deliver all right, title and interest in the Stock and any moneys or property
held hereunder to such successor, and deliver to such successor a list of the
record holders of all outstanding Receipts and such records, books and other
information in its possession relating thereto. Any successor Depositary
shall promptly mail notice of its appointment to the record holders of
Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act, and notice thereof
shall not be required hereunder. Such successor Depositary may authenticate
the Receipts in the name of the predecessor Depositary or in the name of the
successor Depositary.
SECTION 5.05. CORPORATE NOTICES AND REPORTS. The Company agrees
that it will transmit to the record holders of Receipts, in each case at the
addresses furnished to it pursuant to Section 4.08, all notices and reports
(including without limitation financial statements) required by law or by the
rules of any national securities exchange upon which the Stock, the Depositary
Shares or the Receipts are listed, to be furnished to the record holders of
Receipts. Such transmission will be at the Company's expense.
SECTION 5.06. INDEMNIFICATION BY THE COMPANY. The Company shall
indemnify the Depositary, any Depositary's Agent and any Registrar against, and
hold each of them harmless from, any loss, liability or expense (including the
reasonable costs and expenses of defending itself) which may arise out of acts
performed or omitted in connection with this Agreement and the Receipts by the
Depositary, any Registrar or any of their respective agents (including any
Depositary's Agent), except for any liability arising out of negligence,
willful misconduct or bad faith on the respective parts of any such person or
persons. The obligations of the Company set forth in this Section 5.06 shall
survive any succession of any Depositary, Registrar or Depositary's Agent.
SECTION 5.07. CHARGES AND EXPENSES. The Company shall pay all
transfer and other taxes and governmental charges arising solely from the
existence of the depositary arrangements. The Company shall pay all charges of
the Depositary in connection with the initial deposit of the Stock and the
initial issuance of the Depositary Shares, all withdrawals of shares of the
Stock by owners of Depositary Shares, and any redemption or exchange of the
Stock at the option of the Company. All other transfer and other taxes and
governmental charges shall be at the expense of holders of Depositary Shares.
If, at the request of a holder of Receipts, the Depositary incurs charges or
expenses for which it is not otherwise liable hereunder, such holder will be
liable for such charges and expenses. All other charges and expenses of the
Depositary and any Depositary's Agent hereunder and of any Registrar
(including, in each case, reasonable fees and expenses of counsel) incident to
the performance of their respective obligations hereunder will be paid upon
consultation and agreement between the Depositary and the Company as to the
amount and nature of such charges and expenses. The Depositary shall present
its statement for charges and expenses to the Company at such intervals as the
Company and the Depositary may agree.
18
<PAGE> 23
ARTICLE VI
Amendment and Termination
-------------------------
SECTION 6.01. AMENDMENT. The form of the Receipts and any
provisions of this Deposit Agreement may at any time and from time to time be
amended by agreement between the Company and the Depositary in any respect
which they may deem necessary or desirable; provided, however, that no such
amendment (other than any change in the fees of any Depositary, Registrar or
Transfer Agent, which shall go into effect not sooner than three months after
notice thereof to the holders of the Receipts) which shall materially and
adversely alter the rights of the holders of Receipts shall be effective unless
such amendment shall have been approved by the holders of at least a majority
of the Depositary Shares then outstanding. Every holder of an outstanding
Receipt at the time any such amendment becomes effective shall be deemed, by
continuing to hold such receipt, to consent and agree to such amendment and to
be bound by the Depositary Agreement as amended thereby.
SECTION 6.02. TERMINATION. This Agreement may be terminated by the
Company at any time upon not less than 60 days prior written notice to the
Depositary, in which case, upon a day that is not later than 30 days after the
date of such notice, the Depositary shall deliver or make available for
delivery to such record holder, upon surrender of the Receipt or Receipts held
by such record holder, such number of whole or fractional shares of stock
represented by such Receipt or Receipts. If the record holder of any Receipt
or Receipts shall not have so surrendered such Receipt or Receipts in exchange
for whole or fractional shares of Stock on or prior to the effective date of
termination of this Agreement, such record holder shall for all purposes,
including the payment of dividends, be deemed to be a record holder of the
appropriate number of whole or fractional shares of Stock previously
represented by such Receipt or Receipts and shall thereafter surrender to the
Company such Receipt or Receipts in exchange for whole or fractional shares of
Stock.
This Agreement shall automatically terminate after [(i) all
outstanding Depositary Shares have been redeemed pursuant to Section 2.09, (ii)
each share of Stock shall have been converted into or exchanged for, as the
case may be, shares of Capital Securities, other preferred stock or Debt
securities and (iii)] there shall have been made a final distribution in
respect of the Stock in connection with any liquidation, dissolution or winding
up of the Company and such distribution shall have been distributed to the
holders of Depositary Shares pursuant to Section 4.01 or 4.02, as applicable.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agent and any Registrar under
Sections 5.06 and 5.07.
ARTICLE VII
19
<PAGE> 24
Miscellaneous
-------------
SECTION 7.01. COUNTERPARTS. This Deposit Agreement may be executed
in any number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall
constitute one and the same instrument.
SECTION 7.02. EXCLUSIVE BENEFIT OF PARTIES. This Deposit Agreement
is for the exclusive benefit of the parties hereto, and their respective
successors hereunder, and shall not be deemed to give any legal or equitable
right, remedy or claim to any other person whatsoever.
SECTION 7.03. INVALIDITY OF PROVISIONS. In case any one or more of
the provisions contained in this Deposit Agreement or in the Receipts should be
or become invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein or
therein shall in no way be affected, prejudiced or disturbed thereby.
SECTION 7.04. NOTICES. Any and all notices to be given to the
Company hereunder or under the Receipts shall be in writing and shall be deemed
to have been duly given if personally delivered or sent by mail, or by telegram
or facsimile transmission confirmed by letter, addressed to the Company at
Bank of Boston Corporation
100 Federal Street, Mail Stop 01-24-07
Boston, Massachusetts 02110
Attention: Clerk
Facsimile No.: (617) 434-7980
or at any other address of which the Company shall have notified the Depositary
in writing.
Any and all notices to be given to the Depositary hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram or facsimile transmission
confirmed by letter, addressed to the Depositary at the Depositary's Office,
at_______________________, or at any other address of which the Depositary
shall have notified the Company in writing.
Any and all notices to be given to any record holder of a Receipt
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail, or by telegram or
facsimile transmission confirmed by letter, addressed to such record holder at
the address of such record holder as it appears on the books of the Depositary,
or if such holder shall have filed with the Depositary a written request that
20
<PAGE> 25
notices intended for such holder be mailed to some other address, at the
address designated in such request.
Delivery of a notice sent by mail or by telegram or facsimile
transmission shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a telegram
or facsimile transmission) is deposited, postage prepaid, in a post office
letter box. The Depositary or the Company may, however, act upon any telegram
or facsimile transmission received by it from the other or from any holder of a
Receipt, notwithstanding that such telegram or facsimile transmission shall not
subsequently be confirmed by letter or as aforesaid.
SECTION 7.05. DEPOSITARY'S AGENTS. The Depositary may from time to
time appoint Depositary's Agents to act in any respect for the Depositary for
the purposes of this Deposit Agreement and may at any time appoint additional
Depositary's Agents and vary or terminate the appointment of such Depositary's
Agents. The Depositary will notify the Company of any such action.
The Company hereby also appoints the Depositary as Registrar and
Transfer Agent in respect of the Receipts and the Depositary hereby accepts
such appointments.
SECTION 7.06. HOLDERS OF RECEIPTS ARE PARTIES. The holders of
Receipts from time to time shall be parties to this Deposit Agreement and shall
be bound by all of the terms and conditions hereof and of the Receipts by
acceptance of delivery thereof.
SECTION 7.07. GOVERNING LAW. This Deposit Agreement and the
Receipts and all rights hereunder and thereunder and provisions hereof and
thereof shall be governed by, and construed in accordance with, the laws of the
Commonwealth of Massachusetts.
SECTION 7.08. INSPECTION OF DEPOSIT AGREEMENT. Copies of this
Deposit Agreement shall be filed with the Depositary and the Depositary's
Agents and shall be open to inspection during business hours at the
Depositary's Office and the respective offices of the Depositary's Agents, if
any, by any holder of a Receipt.
SECTION 7.09. HEADINGS. The headings of articles and sections in
this Deposit Agreement and in the form of the Receipt set forth in Exhibit A
hereto have been inserted for convenience only and are not to be regarded as a
part of this Deposit Agreement or the Receipts or to have any bearing upon the
meaning or interpretation of any provision contained herein or in the Receipts.
IN WITNESS WHEREOF, the Company and the Depositary have duly executed
this Agreement as of the day and year first above set forth, and all holders of
Receipts shall become parties hereto by and upon acceptance by them of delivery
of Receipts issued in accordance with the terms hereof.
21
<PAGE> 26
BANK OF BOSTON CORPORATION
Attested by
_____________________________ by______________________
[SEAL]
Attested by[Name of Depositary]
______________________________ by______________________
[SEAL]
22
<PAGE> 27
EXHIBIT A
[FORM OF FACE OF RECEIPT]
NUMBER
DEPOSITARY SHARES
CERTIFICATE FOR ____________ DEPOSITARY SHARES
TDR
DEPOSITORY RECEIPT FOR DEPOSITARY SHARES,
REPRESENTING [TITLE OF] PREFERRED STOCK OF
BANK OF BOSTON CORPORATION
CUSIP _________
INCORPORATED UNDER THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS
SEE REVERSE FOR CERTAIN DEFINITIONS
______________________, as Depositary (the "Depositary"), hereby certifies that
is the registered owner of DEPOSITARY SHARES
("Depositary Shares"), each Depositary Share representing [specify fraction] of
one share of _______ Preferred Stock (the "Stock"), of Bank of Boston
Corporation, a Massachusetts corporation (the "Corporation"), on deposit with
the Depositary, subject to the terms and entitled to the benefits of the
Deposit Agreement dated as of ______________, 199__ (the "Deposit Agreement"),
between the Corporation and the Depositary. By accepting this Depositary
Receipt, the holder hereof becomes a party to and agrees to be bound by all the
terms and conditions of the Deposit Agreement. This Depositary Receipt shall
not be valid or obligatory for any purpose or entitled to any benefits under
the Deposit Agreement unless it shall have been executed by the Depositary by
the manual signature of a duly authorized officer or, if executed in facsimile
by the Depositary, countersigned by a Registrar in respect of the Depositary
Receipts by a duly authorized officer thereof.
Dated: [Countersigned:
_______________ ______________________
Depositary Registrar
By By
Authorized Officer Authorized Officer]
A-1
<PAGE> 28
[FORM OF REVERSE OF RECEIPT]
BANK OF BOSTON CORPORATION
BANK OF BOSTON CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH
RECEIPTHOLDER WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A COPY OR
SUMMARY OF THE CERTIFICATE OF VOTE OF DIRECTORS ESTABLISHING A SERIES OF A
CLASS OF STOCK OF THE [TITLE OF] PREFERRED STOCK OF BANK OF BOSTON CORPORATION.
ANY SUCH REQUEST IS TO BE ADDRESSED TO THE DEPOSITARY NAMED ON THE FACE OF THIS
RECEIPT.
_____________________
For value received, ____________________ hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_________________________________________________________________
_________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL
ZIP CODE OF ASSIGNEE
_________________________________________________________________
________________________________________________Depositary Shares represented
by the within Receipt, and do(es) hereby irrevocably constitute and appoint
______________________ Attorney to transfer the said Depositary Shares on the
books of the within named Depositary with full power of substitution in the
premises.
Dated________________
__________________________________
NOTICE: The signature to the assignment must
correspond with the name as written upon the face
of this Receipt in every particular, without
alteration or enlargement or any change whatever.
SIGNATURE GUARANTEED
_____________________
Return this form and job to the Coordinator on duty.
<PAGE> 1
EXHIBIT 5
March 8, 1994
Bank of Boston Corporation
100 Federal Street
Boston, Massachusetts 02110
Re: BANK OF BOSTON CORPORATION - REGISTRATION STATEMENT ON FORM S-3
RELATING TO $1,500,000,000 OF DEBT AND EQUITY SECURITIES, INCLUDING
SENIOR AND SUBORDINATED DEBT SECURITIES, PREFERRED STOCK, COMMON
STOCK, WARRANTS TO PURCHASE DEBT SECURITIES, PREFERRED STOCK AND COMMON
STOCK, AND CAPITAL SECURITIES
Ladies and Gentlemen:
This opinion is rendered to you in connection with the filing today by
Bank of Boston Corporation, a Massachusetts corporation, (the "Corporation") of
its Registration Statement on Form S-3 (the "Registration Statement") with the
Securities and Exchange Commission relating to the registration of
$1,500,000,000 in the aggregate of debt and equity securities, including
(i) debt securities which may be either senior (the "Senior Securities") or
subordinated (the "Subordinated Securities"; and collectively with the
Senior Securities, the "Debt Securities") and warrants to purchase the Debt
Securities (the "Debt Warrants");
(ii) shares of preferred stock (the "Preferred Stock"), which may be issued
in the form of depositary shares evidenced by depositary receipts (the
"Depositary Shares"), and warrants to purchase shares of the Preferred Stock
(the "Preferred Stock Warrants");
(iii) shares of common stock, par value $2.25 per share (the "Common Stock")
and warrants to purchase the Common Stock (the "Common Stock Warrants") (the
Debt Securities, Preferred Stock, Depositary Shares, Common Stock, Debt
Warrants, Preferred Stock Warrants and Common Stock Warrants being
collectively referred to herein as the "Securities"), and
(iv) an indeterminate number of (a) shares of Preferred Stock (the
"Additional Preferred Stock") as may be issuable upon conversion of the
Preferred Stock, (b) shares of common stock, perpetual Preferred Stock
or other capital securities of the Corporation acceptable to the
Corporation's primary federal banking regualtor (collectively, the "Capital
Securities") as may be issuable in exchange for or upon conversion of the
Preferred Stock or the Subordinated Securities, (c) Debt Securities (the
"Additional Debt Securities") as may be issuable in exchange for the
Preferred Stock and (d) shares of Common Stock (the "Additional Common
Stock") which may be issuable upon conversion or exchange of the Preferred
Stock or Debt Securities,
for one or more offerings to be made on a continuous or delayed basis pursuant
to the provisions of Rule 415. In connection with the filing of such
Registration Statement, I have been asked to give my opinion, in my capacity as
General Counsel of the Corporation, as to the legality of the Securities, the
Additional Preferred Stock, the Capital Securities, the Additional Debt
Securities and the Additional Common Stock being registered (collectively, the
"Registered Securities").
<PAGE> 2
Bank of Boston Corporation -2- March 8, 1994
100 Federal Street
Boston, Massachusetts 02110
In rendering this opinion as General Counsel of the Corporation, I and
attorneys in my office acting under my direction have participated with the
Corporation and its officers in the preparation, review and filing of the
Registration Statement and the related prospectus (the "Prospectus"), have
examined the indenture dated as of June 15, 1992 between the Corporation and
Norwest Bank Minnesota, National Association ("Norwest") relating to the Senior
Securities (the "Senior Indenture") and the indenture dated as of June 15, 1992
between the Corporation and Norwest relating to the Subordinated Securities, as
amended by the First Supplemental Indenture dated June 24, 1993 (together the
"Subordinated Indenture"; and collectively with the Senior Indenture, the
"Indentures"), have examined the other exhibits to the Reigistration Statement,
have examined other corporate documents and records, have made such examination
of law, and have discussed with the officers and directors of the Corporation,
its subsidiaries and Norwest such questions of fact as we have deemed necessary
or appropriate. We have also relied upon the certificates and statements of
such officers and directors and of Norwest as to factual matters and have
assumed the genuiness of all signatures not known to us as well as the
authenticity of all documents submitted to us as copies.
Based upon and subject to the foregoing and subject to certain proposed
additional proceedings being taken as now contemplated prior to the issuance of
the Registered Securities, and subject to the terms of the Registered
Securities being otherwise in compliance with then applicable law, it is my
opinion that:
(i) The Preferred Stock, Depositary Shares and Common Stock to be
issuable under the Registration Statement will have been duly authorized
and reserved and upon their issuance and sale in the manner referred to in
the Registration Statement will be duly issued, fully paid and
non-assessable, except as provided by Section 45 of Chapter 156B of the
Massachusetts General Laws ("MGL C.156B [par.] 45");
(ii) The Debt Securities, Debt Warrants, Preferred Stock Warrants and Common
Stock Warrants, upon their issuance and sale in the manner referred to
in the Registration Statement, will be duly executed, authenticated,
issued and delivered and will constitute valid and legally binding
obligations of the Corporation enforceable in accordance with their terms,
subject to bank regulatory, bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws of general applicability
relating to or affecting creditors rights or to general equity principles
(regardless of whether such matters are considered in a proceeding in
equity or at law) (collectively the "Limitations on Enforceability");
<PAGE> 3
Bank of Boston Corporation -3- March 8, 1994
100 Federal Street
Boston, Massachusetts 02110
(iii) To the extent provided in the applicable Prospectus Supplement (the
"Prospectus Supplement"), the Preferred Stock may be convertible into
Additional Preferred Stock or exchangeable for Additional Debt
Securities or Additional Common Stock, in accordance with the terms
thereof and of the applicable Certificate of Vote of Directors
Establishing a Series of a Class of Stock ("Certificate of Vote") and the
Debt Securities may be convertible into or exchangeable for Additional
Preferred Stock or Additional Common Stock; and
(a) any Additional Preferred Stock or Additional Common Stock initially
issuable upon conversion or exchange of the Preferred Stock or Debt
Securities will have been duly authorized and reserved and when
issued upon such conversion, will be duly issued, fully paid an
non-assessable, except as provided by MGL C.156B [par.] 45;
(b) any Additional Debt Securities initially issuable in exchange for
the Preferred Stock, when issued upon such exchange, will be duly
executed, authenticated, issued and delivered and will constitute
valid and legally binding obligations of the Corporation enforceable
in accordance with their terms, subject to the Limitations on
Enforceability; and
(iv) To the extent provided in the applicable Prospectus Supplement, the
Subordinated Securities and the Preferred Stock may be convertible into or
exchangeable for Capital Securities, in accordance with the terms thereof,
and the terms of the Subordinated Indenture or the Certificate of Vote, as
applicable; and any Capital Securities initially issuable upon conversion
of, or exchange for, the Subordinated Securities or the Preferred Stock,
(a) to the extent such Capital Securities consist of common stock,
perpetual preferred stock or other equity securities of the
Corporation, will have been duly authorized and reserved and when
issued upon such coversion or exchange, will be duly issued, fully
paid and non-assessable, except as provided by MGL C. 156B 45; and
(b) to the extent such Capital Securities consist of debt securties of
the Corporation, will have been duly executed, authenticated, issued
and delivered and, when issued upon such conversion or exchange, will
constitute valid and legally binding obligations of the Corporation
enforceable in accordance with their terms, subject to the
Limitation on Enforceability.
I hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the use of my name in the Registration Statement,
the related Prospectus and any Prospectus Supplement relating thereto.
Very truly yours,
/s/ GARY A. SPIESS
Gary A. Spiess
General Counsel
<PAGE> 1
EXHIBIT 12(b)
<TABLE>
BANK OF BOSTON CORPORATION
COMPUTATION OF CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
(Including Interest on Deposits)
The Corporation's ratios of earnings to fixed charges (including interest on
deposits) for the five years ended December 31, 1993 were as follows:
<CAPTION>
Years Ended December 31,
----------------------------------------------------------------------------
(Dollars in thousands)
1993 1992 1991 1990 1989
---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C>
Net income (loss) $ 299,026 $ 278,881 $ (113,155) $ (468,248) $ 138,114
Extraordinary items, net of tax (72,968) (7,758) (43,649)
Cumulative effect of changes in
accounting principles, net of tax (24,203)
Income tax expense (benefit) 214,683 152,781 (57,990) 2,579 84,951
---------- ---------- ---------- ---------- ----------
Pretax earnings (loss) 489,506 358,694 (178,903) (509,318) 223,065
---------- ---------- ---------- ---------- ----------
Fixed charges:
Portion of rental expense
(net of sublease rental income)
which approximates the interest
factor 27,063 28,159 30,370 38,747 35,482
Interest on borrowed funds 1,719,111 1,029,054 608,552 1,229,816 1,953,723
Interest on deposits 3,586,025 2,771,873 2,731,559 3,236,691 3,357,336
---------- ---------- ---------- ---------- ----------
Total fixed charges 5,332,199 3,829,086 3,370,481 4,505,254 5,346,541
---------- ---------- ---------- ---------- ----------
Earnings (for ratio calculation) $ 5,821,705 $ 4,187,780 $ 3,191,578 $ 3,995,936 $ 5,569,606
========== ========== ========== ========== ==========
Total fixed charges $ 5,332,199 $ 3,829,086 $ 3,370,481 $ 4,505,254 $ 5,346,541
========== ========== ========== ========== ==========
Ratio of earnings to fixed charges 1.09 1.09 .95 .89 1.04
========== ========== ========== ========== ==========
</TABLE>
For purposes of computing the consolidated ratio of earnings to fixed charges
"earnings" represent income (loss) before extraordinary items and cumulative
effect of changes in accounting principles plus applicable income taxes and
fixed charges. "Fixed charges" include gross interest expense (including
interest on deposits) and the proportion deemed representative of the interest
factor of rent expense, net of income from subleases.
<PAGE> 1
<TABLE>
EXHIBIT 12(d)
BANK OF BOSTON CORPORATION
COMPUTATION OF CONSOLIDATED RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND
PREFERRED STOCK DIVIDEND REQUIREMENTS
(Including Interest on Deposits)
The Corporation's ratios of earnings to combined fixed charges and preferred
stock dividend requirements (including interest on deposits) for the five years
ended December 31, 1993 were as follows:
<CAPTION>
Years Ended December 31,
----------------------------------------------------------------------------
(Dollars in thousands)
1993 1992 1991 1990 1989
---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C>
Net income (loss) $ 299,026 $ 278,881 $ (113,155) $ (468,248) $ 138,114
Extraordinary items, net of tax (72,968) (7,758) (43,649)
Cumulative effect of changes
in accounting principles, net of tax (24,203)
Income tax expense (benefit) 214,683 152,781 (57,990) 2,579 84,951
---------- ---------- ---------- ---------- ----------
Pretax earnings (loss) $ 489,506 $ 358,694 $ (178,903) $ (509,318) $ 223,065
========== ========== ========== ========== ==========
Fixed charges:
Portion of rental expense
(net of sublease rental income)
which approximates the interest
factor $ 27,063 $ 28,159 $ 30,370 $ 38,747 $ 35,482
Interest on borrowed funds 1,719,111 1,029,054 608,552 1,229,816 1,953,723
Interest on deposits 3,586,025 2,771,873 2,731,559 3,236,691 3,357,336
---------- ---------- ---------- ---------- ----------
Total fixed charges 5,332,199 3,829,086 3,370,481 4,505,254 5,346,541
Preferred stock dividend
requirements 61,377 33,186 13,255 13,748 22,568
---------- ---------- ---------- ---------- ----------
Total combined fixed charges
and preferred stock dividend
requirements $ 5,393,576 $ 3,862,272 $ 3,383,736 $ 4,519,002 $ 5,369,109
========== ========== ========== ========== ==========
Earnings (for ratio calculation)
(Pretax earnings (loss)
plus total fixed charges) $ 5,821,705 $ 4,187,780 $ 3,191,578 $ 3,995,936 $ 5,569,606
========== ========== ========== ========== ==========
Ratio of earnings to combined
fixed charges and preferred
stock dividend requirements 1.08 1.08 .94 .88 1.04
========== ========== ========== ========== ==========
</TABLE>
For purposes of computing the consolidated ratio of earnings to combined fixed
charges and preferred stock dividend requirements "earnings" represent income
(loss) before extraordinary items and cumulative effect of changes in
accounting principles plus applicable income taxes and fixed charges. "Fixed
charges" include gross interest expense (including interest on deposits) and
the proportion deemed representative of the interest factor of rent expense,
net of income from subleases. Pretax earnings required for preferred stock
dividends were computed using tax rates for the applicable year. No tax
adjustments were made in loss years.
<PAGE> 1
EXHIBIT 23
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
Bank of Boston Corporation
We consent to the incorporation, by reference, in the registration statement of
Bank of Boston Corporation ("Corporation") on Form S-3, of our report, dated
January 20, 1994, on our audits of the consolidated financial statements of
Bank of Boston Corporation and Subsidiaries as of December 31, 1993, and 1992,
and for each of the three years in the period ended December 31, 1993, included
in the Corporation's 1993 Annual Report to Stockholders and in Exhibit 13 to
the Corporation's Annual Report on Form 10-K. Our report, referred to above
includes an explanatory paragraph related to the Corporation's adoption of
Statement of Financial Accounting Standards No. 106, "Employers' Accounting for
Postretirement Benefits Other Than Pensions," Statement of Financial Accounting
Standards No. 109, "Accounting for Income Taxes," and change in its method of
accounting for purchased mortgage servicing rights, effective January 1, 1993;
and its adoption of Statement of Financial Accounting Standards No. 115,
"Accounting for Certain Investments in Debt and Equity Securities," effective
December 31, 1993. We also consent to the reference to our firm under the
caption "Experts."
COOPERS & LYBRAND
Boston, Massachusetts
March 8, 1994
<PAGE> 1
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
------------------------------
___CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b) (2)
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
A NATIONAL BANKING ASSOCIATION 41-1592157
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national Identification No.)
bank)
SIXTH STREET AND MARQUETTE AVENUE
Minneapolis, Minnesota 55479
(Address of principal executive offices) (Zip code)
------------------------------
BANK OF BOSTON CORPORATION
(Exact name of obligor as specified in its charter)
MASSACHUSETTS 04-2471221
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
100 FEDERAL STREET
BOSTON, MASSACHUSETTS 02110
(Zip code)
------------------------------
DEBT SECURITIES
(Title of the indenture securities)
===============================================================================
<PAGE> 2
Item 1. GENERAL INFORMATION. Furnish the following information as to the
trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of the Currency
Treasury Department
Washington, D.C.
Federal Deposit Insurance Corporation
Washington, D.C.
The Board of Governors of the Federal Reserve System
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. AFFILIATIONS WITH OBLIGOR. If the obligor is an affiliate of the
trustee, describe each such affiliation.
None with respect to the trustee.
No responses are included for Items 3-15 of this Form T-1 because the obligor
is not in default as provided under Item 13.
Item 16. LIST OF EXHIBITS. List below all exhibits filed as a part of this
Statement of Eligibility. Norwest Bank incorporates by reference into
this Form T-1 the exhibits attached hereto.
Exhibit 1. a. A copy of Articles of
Association of the trustee now in effect.*
Exhibit 2. a. A copy of the certificate of authority of the trustee
to commence business issued June 28, 1872, by the Comptroller of the
Currency to The Northwestern National Bank of Minneapolis.*
b. A copy of the certificate of the Comptroller of
the Currency dated January 2, 1934, approving the consolidation of the
Northwestern National Bank of Minneapolis and the Minnesota Loan and
Trust Company of Minneapolis.*
c. A copy of the certificate of the Acting Comptroller of
the Currency dated January 12, 1943, as to change of corporate title of
Northwestern National Bank and Trust Company of Minneapolis to
Northwestern National Bank of Minneapolis.*
d. A copy of the certificate of the Comptroller of the
Currency dated May 1, 1983, authorizing Norwest Bank Minneapolis,
National Association, to act as fiduciary.*
<PAGE> 3
Exhibit 3. A copy of the authorization of the trustee to exercise
corporate trust powers issued January 2, 1934, by the Federal
Reserve Board.*
Exhibit 4. Copy of By-laws of the trustee as now in effect.*
Exhibit 5. Not applicable.
Exhibit 6. The consent of the trustee required by Section 321(b) of
the Act.*
Exhibit 7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
Exhibit 8. A copy of the certificate dated May 10, 1983 of name
change from Northwestern National Bank Minneapolis to Norwest
Bank Minneapolis, National Association.*
Exhibit 9. A copy of the certificate dated January 11, 1988, of
name change from Norwest Bank Minneapolis, National Association
to Norwest Bank Minnesota, National Association.*
* Incorporated by reference to the exhibit of the same number
filed with the registration statement number 33-66086.
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended,
the trustee, Norwest Bank Minnesota, National Association, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of
Minneapolis and State of Minnesota on the 2nd day of February 1994.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
/s/ RAYMOND S. HAVERSTOCK
___________________________
Raymond S. Haverstock
Assistant Vice President
<PAGE> 5
<TABLE>
<S> <C>
Board of Governors of the Federal Reserve System
OMB Number: 7100-0036
Federal Deposit Insurance Corporation
OMB Number: 3064-0052
Office of the Comptroller of the Currency
OMB Number: 1557-0081
FEDERAL FINANCIAL INSTITUTIONS EXAMINATION COUNCIL Expires February 28, 1995
</TABLE>
<TABLE>
<S> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
[LOGO] Please refer to page i, [ 1 ]
Table of Contents, for
the required disclosure
of estimated burden.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
CONSOLIDATED REPORTS OF CONDITION AND INCOME FOR
A BANK WITH DOMESTIC AND FOREIGN OFFICES--FFIEC 031
(931231)
REPORT AT THE CLOSE OF BUSINESS DECEMBER 31, 1993 --------
(RCRI 9099)
<TABLE>
<S> <C>
This report is required by law; 12 U.S.C. Section 324 (State This report form is to filed by banks with branches and
member banks); 12 U.S.C. Section 1817 (State nonmember banks); consolidated subsidiaries in U.S. territories and possessions,
and 12 U.S.C. Section 161 (National banks). Edge or Agreement subsidiaries, foreign branches, consolidated
foreign subsidiaries, or International Banking Facilities.
- ------------------------------------------------------------------------------------------------------------------------------------
NOTE: The Reports of Condition and Income must be signed by The Reports of Condition and Income are to be prepared in
an authorized officer and the Report of Condition must be accordance with Federal regulatory authority instructions.
attested to by not less than two directors (trustees) for NOTE: These instructions may in some cases differ from
State nonmember banks and three directors for State member and generally accepted accounting principles.
National banks.
We, the undersigned directors (trustees), attest to the
I, /s/ Mark P. Wagener, Director, Bank & Service Accounting correctness of this Report of Condition (including the
---------------------------------------------------- supporting schedules) and declare that it has been examined by
Name and Title of Officer Authorized to Sign Report us and to the best of our knowledge and belief has been
prepared in conformance with the instructions issued by the
of the named bank do hereby declare that these Reports of appropriate Federal regulatory authority and is true and
Condition and Income (including the supporting schedules) have correct.
been prepared in conformance with the instructions issued by
the appropriate Federal regulatory authority and are true to /s/
the best of my knowledge and belief. --------------------------------------------------------------
Director (Trustee)
/s/ Mark P. Wagener /s/
- ------------------------------------------------------- --------------------------------------------------------------
Signature of Officer Authorized to Sign Report Director (Trustee)
/s/ 1/28/94
- ------------------------------------------------------- /s/
Date of Signature --------------------------------------------------------------
Director (Trustee)
- ------------------------------------------------------------------------------------------------------------------------------------
FOR BANKS SUBMITTING HARD COPY REPORT FORMS:
NATIONAL BANKS: Return the original only in the special
STATE MEMBER BANKS: Return the original and one copy to the return address envelope provided. If express mail is used in
appropriate Federal Reserve District Bank. lieu of the special return address envelope, return the
original only to the FDIC, c/o Quality Data Systems, 2139
STATE NONMEMBER BANKS: Return the original only in the Espey Court, Crofton, MD 21114.
special return address envelope provided. If express mail is
used in lieu of the special return address envelope, return
the original only to the FDIC, c/o Quality Data Systems, 2139
Espey Court, Crofton, MD 21114.
</TABLE>
<TABLE>
<S> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
FDIC Certificate Number 0 5 2 0 8
---------
(RCRI 9050)
CALL NO. 166 31 12-31-93
CERT: 05208 00017 STBK 27-4095
</TABLE>
NORWEST BANK MINNESOTA, NATIONAL ASS
SIXTH STREET AND MARQUETTE AVENUE
MINNEAPOLIS, MN 55479-0016
Board of Governors of the Federal Reserve System, Federal Deposit Insurance
Corporation, Office of the Comptroller of the Currency
<PAGE> 6
FFIEC 031
Page i
[ 2 ]
CONSOLIDATED REPORTS OF CONDITION AND INCOME FOR
A BANK WITH DOMESTIC AND FOREIGN OFFICES
<TABLE>
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
TABLE OF CONTENTS
SIGNATURE PAGE COVER REPORT OF CONDITION
REPORT OF INCOME Schedule RC--Balance Sheet . . . . . . . . . . . . . RC-1, 2
Schedule RI--Income Statement . . . . . . . . . . . RI-1, 2, 3 Schedule RC-A--Cash and Balances Due
From Depository Institutions . . . . . . . . . . RC-3
Schedule RI-A--Changes in Equity Capital . . . . . . . . RI-3
Schedule RC-B--Securities . . . . . . . . . . . . . . RC-4, 5
Schedule RI-B--Charge-offs and Recoveries and
Changes in Allowances for Loan and Lease Schedule RC-C--Loans and Lease Financing
Losses . . . . . . . . . . . . . . . . . . RI-4, 5 Receivables:
Part I. Loans and Leases . . . . . . RC-6, 7
Schedule RI-C--Applicable Income Taxes by Part II. Loans to Small Businesses and
Taxing Authority . . . . . . . . . . . . . . . . RI-5 Small Farms (included in the forms for
June 30 only) . . . . . . . . . . RC-7a, 7b
Schedule RI-D--Income from
International Operations . . . . . . . . . . . . RI-6 Schedule RC-D--Assets Held in Trading Accounts
in Domestic Offices Only (to be completed only
Schedule RI-E--Explanations . . . . . . . . . . . . . RI-7, 8 by banks with $1 billion or more in total assets) RC-8
Schedule RC-E--Deposit Liabilities . . . . . . . . . RC-9, 10
Schedule RC-F--Other Assets . . . . . . . . . . . . . . RC-11
Schedule RC-G--Other Liabilities . . . . . . . . . . . RC-11
Schedule RC-H--Selected Balance Sheet Items for
DISCLOSURE OF ESTIMATED BURDEN Domestic Offices . . . . . . . . . . . . . . . RC-12
THE ESTIMATED AVERAGE BURDEN ASSOCIATED WITH THIS INFORMATION Schedule RC-I--Selected Assets and Liabilities
COLLECTION IS 29.2 HOURS PER RESPONDENT AND IS ESTIMATED TO of IBFs . . . . . . . . . . . . . . . . . . . RC-12
VARY FROM 14.6 TO 150 HOURS PER RESPONSE, DEPENDING ON
INDIVIDUAL CIRCUMSTANCES. BURDEN ESTIMATES INCLUDES THE TIME Schedule RC-K--Quarterly Averages . . . . . . . . . . . RC-13
FOR REVIEWING INSTRUCTIONS, GATHERING AND MAINTAINING DATA IN
THE REQUIRED FORM, AND COMPLETING THE INFORMATION COLLECTION, Schedule RC-L--Off-Balance Sheet Items . . . . . . RC-14, 15
BUT EXCLUDE THE TIME FOR COMPILING AND MAINTAINING BUSINESS
RECORDS IN THE NORMAL COURSE OF A RESPONDENT'S ACTIVITIES. Schedule RC-M--Memoranda . . . . . . . . . . . . . RC-16, 17
COMMENTS CONCERNING THE ACCURACY OF THIS BURDEN ESTIMATE AND
SUGGESTIONS FOR REDUCING THIS BURDEN SHOULD BE DIRECTED TO THE Schedule RC-N--Past Due and Nonaccrual Loans,
OFFICE OF INFORMATION AND REGULATORY AFFAIRS, OFFICE OF Leases, and Other Assets . . . . . . . . . RC-18, 19
MANAGEMENT AND BUDGET, WASHINGTON, D.C. 20503, AND TO ONE OF
THE FOLLOWING: Schedule RC-O--Other Data for Deposit
Insurance Assessments . . . . . . . . . . RC-19, 20
SECRETARY
BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM Schedule RC-R--Risk-Based Capital . . . . . . . . . RC-21, 22
WASHINGTON, D.C. 20551
Optional Narrative Statement Concerning the
LEGISLATIVE AND REGULATORY ANALYSIS DIVISION Amounts Reported in the Reports of
OFFICE OF THE COMPTROLLER OF THE CURRENCY Condition and Income . . . . . . . . . . . . . RC-23
WASHINGTON, D.C. 20219
Special Report (to be completed by all banks)
ASSISTANT EXECUTIVE SECRETARY
FEDERAL DEPOSIT INSURANCE CORPORATION Schedule RC-J--Repricing Opportunities (sent only to
WASHINGTON, D.C. 20429 and to be completed only by savings banks)
</TABLE>
For information or assistance, national and state nonmember banks should
contact the FDIC's Call Reports Analysis Unit, 550 17th Street, NW, Washington,
D.C. 20429, toll free on (800) 688-FDIC (3342), Monday through Friday between
8:00 a.m. and 5:00 p.m., Eastern time. State member banks should contact their
Federal Reserve District Bank.
<PAGE> 7
3
CONSOLIDATED REPORT OF INCOME
FOR THE PERIOD JANUARY 1, 1993 - DECEMBER 31, 1993
ALL REPORT OF INCOME SCHEDULES ARE TO BE REPORTED ON A CALENDAR YEAR-TO-DATE
BASIS IN THOUSANDS OF DOLLARS.
SCHEDULE RI - INCOME STATEMENT
<TABLE>
<CAPTION>
I480 <-
Dollar Amounts in Thousands
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Interest income:
a. Interest and fee income on loans:
(1) In domestic offices:
(a) Loans secured by real estate . . . . . . . . . . . . . . . . . . . . . . . . . 4011. . 427,147 1.a.1a
(b) Loans to depository institutions . . . . . . . . . . . . . . . . . . . . . . . 4019. . 58 1.a.1b
(c) Loans to finance agricultural production and other loans to farmers . . . . . 4024. . 315 1.a.1c
(d) Commercial and industrial loans . . . . . . . . . . . . . . . . . . . . . . . 4012. . 179,309 1.a.1d
(e) Acceptances of other banks . . . . . . . . . . . . . . . . . . . . . . . . . . 4026. . 309 1.a.1e
(f) Loans to individuals for household, family, and other personal expenditures:
(1) Credit cards and related plans . . . . . . . . . . . . . . . . . . . . . . 4054. . 14,887 1.a.1f1
(2) Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4055. . 52,406 1.a.1f2
(g) Loans to foreign governments and official institutions . . . . . . . . . . . . 4056. . 0 1.a.1g
(h) Obligations (other than securities and leases) of states and political
subdivisions in the U.S.:
(1) Taxable obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . 4503. . 5 1.a.1h1
(2) Tax-exempt obligations . . . . . . . . . . . . . . . . . . . . . . . . . . 4504. . 1,644 1.a.1h2
(i) All other loans in domestic offices . . . . . . . . . . . . . . . . . . . . . 4058. . 3,644 1.a.1i
(2) In foreign offices, Edge and Agreement subsidiaries, and IBFs . . . . . . . . . . 4059. . 4,290 1.a.2
b. Income from lease financing receivables:
(1) Taxable leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4505. . 32,215 1.b.1
(2) Tax-exempt leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4307. . 0 1.b.2
c. Interest income on balances due from depository institutions:(1)
(1) In domestic offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4105. . 41 1.c.1
(2) In foreign offices, Edge and Agreement subsidiaries, and IBFs . . . . . . . . . . 4106. . 949 1.c.2
d. Interest and dividend income on securities:
(1) U.S. Treasury securities and U.S. Government agency and corporation
obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4027. . 89,653 1.d.1
(2) Securities issued by states and political subdivisions in the U.S.:
(a) Taxable securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4506. . 0 1.d.2a
(b) Tax-exempt securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4507. . 5,329 1.d.2b
(3) Other domestic debt securities . . . . . . . . . . . . . . . . . . . . . . . . . . 3657. . 8,945 1.d.3
(4) Foreign debt securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3658. . 0 1.d.4
(5) Equity securities (including investments in mutual funds) . . . . . . . . . . . . 3659. . 9,144 1.d.5
e. Interest income from assets held in trading accounts . . . . . . . . . . . . . . . . . 4069. . 3,907 1.e
</TABLE>
- ------------------
(1) Includes interest income on time certificates of deposit not held in
trading accounts.
<PAGE> 8
4
SCHEDULE RI - CONTINUED
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
RIAD Year-to-date
1. Interest income (continued) ----
f. under agreements to resell in domestic offices of the bank. . . . . 4020. . 44,718 . . . . . . . . . . 1f.
g. Total interest income (sum of items 1.a through 1.f) . . . . . . . 4107. . 878,915 . . . . . . . . . . 1.g
2. Interest expense:
a. Interest on deposits:
(1) Interest on depostis in domestic offices:
(a) Transaction accounts (NOW accounts, ATS accounts, and
telephone and preauthorized transfer accounts) . . . . . . 4508. . 12,242 . . . . . . . . . . 2.a1a
(b) Nontransaction accounts:
(1) Money market deposit accounts (MMDAs) . . . . . . . . 4509. . 38,738 . . . . . . . . . . 2.a1b
(2) Other savings deposits . . . . . . . . . . . . . . . . 4511. . 8,342 . . . . . . . . . . 2.a1b
(3) Time certificates of deposit of $100,000 or more . . . 4174. . 15,108 . . . . . . . . . . 2.a1b
(4) All other time deposits . . . . . . . . . . . . . . . 4512. . 93,597 . . . . . . . . . . 2.a1b
(2) Interest on deposits in foreign offices, Edge and
Agreement subsidiaries, and IBFs . . . . . . . . . . . . . . . 4172. . 22,514 . . . . . . . . . . 2.a2
b. Expense of federal funds purchased and securities sold under
agreements to repurchase in domestic offices of the bank and
of its Edge and Agreement subsidiaries, and in IBFs . . . . . . . 4180. . 92,030 . . . . . . . . . . 2.b
c. Interest on demand notes issued to the U.S. Treasury and on
other borrowed money . . . . . . . . . . . . . . . . . . . . . . . 4185. . 64,684 . . . . . . . . . . 2.c
d. Interest on mortgage indebtedness and obligations under
capitalized leases . . . . . . . . . . . . . . . . . . . . . . . . 4072. . 122 . . . . . . . . . . 2.d
e. Interest on subordinated notes and debentures . . . . . . . . . . 4200. . 6,469 . . . . . . . . . . 2.e
f. Total interest expense (sum of items 2.a through 2.e) . . . . . . 4073. . 353,846 . . . . . . . . . . 2.f
3. Net interest income (item 1.g minus 2.f) . . . . . . . . . . . . . . . 4074. . 525,069 . . . . . . . . . . 3.
4. Provisions:
a. Provision for loan and lease losses . . . . . . . . . . . . . . . 4230. . 16,480 . . . . . . . . . . 4.a
b. Provision for allocated transfer risk . . . . . . . . . . . . . . 4243. . 0 . . . . . . . . . . 4.b
5. Noninterest income:
a. Income from fiduciary activities . . . . . . . . . . . . . . . . . 4070. . 92,025 . . . . . . . . . . 5.a
b. Service charges on deposit accounts in domestic offices . . . . . 4080. . 63,366 . . . . . . . . . . 5.b
c. Trading gains (losses) and fees from foreign exchange
transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . 4075. . 6,781 . . . . . . . . . . 5.c
d. Other foreign transaction gains (losses) . . . . . . . . . . . . . 4076. . 2,403 . . . . . . . . . . 5.d
e. Gains (losses) and fees from assets held in trading accounts . . . 4077. . 5,082 . . . . . . . . . . 5.e
f. Other noninterest income:
(1) Other fee income . . . . . . . . . . . . . . . . . . . . . . . 5407. . 134,840 . . . . . . . . . . 5.f.1
(2) All other noninterest income * . . . . . . . . . . . . . . . . 5408. . 74,300 . . . . . . . . . . 5.f.2
g. Total noninterest income (sum of items 5.a. through 5.f) . . . . . 4079. . 378,797 . . . . . . . . . . 5.g
6. Gains (losses) on securities not held in trading accounts . . . . . . 4091. . 24,577 . . . . . . . . . . 6.
7. Noninterest expenses:
a. Salaries and employee benefits . . . . . . . . . . . . . . . . . . 4135. . 240,974 . . . . . . . . . . 7.a
b. Expenses of premises and fixed assets (net of rental income)
(excluding salaries and employee benefits and mortgage
interest) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4217. . 67,796 . . . . . . . . . . 7.b
c. Other noninterest expense * . . . . . . . . . . . . . . . . . . . 4092. . 190,469 . . . . . . . . . . 7.c
d. Total noninterest expense (sum of items 7.a through 7.c) . . . . . 4093. . 499,239 . . . . . . . . . . 7.d
8. Income (loss) before income taxes and extraordinary items and
other adjustments (item 3 plus or minus items 4.a, 4.b, 5.g, 6,
and 7.d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4301. . 412,724 . . . . . . . . . . 8.
9. Applicable income taxes (on item 8) . . . . . . . . . . . . . . . . . 4302. . 150,783 . . . . . . . . . . 9.
10. Income (loss) before extraordinary items and other adjustments
(item 8 minus 9) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4300. . 261,941 . . . . . . . . . . 10.
</TABLE>
- ----------------
* Describe on Schedule RI-E - Explanations.
w
<PAGE> 9
5
SCHEDULE RI - CONTINUED
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
11. Extraordinary items and other adjustments: RIAD Year-to-date
a. Extraordinary items and other adjustments, gross of income ----
taxes * . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4310. . 0 . . . . . . . . . . 11.a
b. Applicable income taxes (on item 11.a) * . . . . . . . . . . . . . 4315. . 0 . . . . . . . . . . 11.b
c. Extraordinary items and other adjustments, net of
income taxes (item 11.a minus 11.b) . . . . . . . . . . . . . . . 4320. . 0 . . . . . . . . . . 11.c
12. Net income (loss) (sum of items 10 and 11.c) . . . . . . . . . . . . . 4340. . 261,941 . . . . . . . . . . 12.
</TABLE>
MEMORANDA
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1. Interest expense incurred to carry tax-exempt securities, loans, and leases acquired RIAD Year-to-date
after August 7, 1986, that is not deductible for federal income tax purposes . . . . . 4513. . 38 M.1
2. Not applicable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3. Estimated foreign tax credit included in applicable income taxes, items 9 and 11.b
above . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4309. . 0 M.3
4. To be completed only by banks with $1 billion or more in total assets:
Taxable equivalent adjustment to "Income (loss) before income taxes and extraordinary
items and other adjustments" (item 8 above) . . . . . . . . . . . . . . . . . . . . . 1244. . 6,276 M.4
5. Number of full-time equivalent employees on payroll at end of current period (round to Number
------
nearest whole number . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4150. . 4,735 M.5
</TABLE>
SCHEDULE RI-A - CHANGES IN EQUITY CAPITAL
INDICATE DECREASES AND LOSSES IN PARENTHESES.
<TABLE>
<CAPTION>
I483 <-
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Total equity capital originally reported in the December 31, 1992, Reports of RIAD
Condition and Income . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3215. . 886,118 1.
2. Equity capital adjustments from amended Reports of Income, net * . . . . . . . . . . . 3216. . 0 2.
3. Amended balance end of previous calendar year (sum of items 1 and 2) . . . . . . . . . 3217. . 886,118 3.
4. Net income (loss) (must equal Schedule RI, item 12) . . . . . . . . . . . . . . . . . 4340. . 261,941 4.
5. Sale, conversion, acquisition, or retirement of capital stock, net . . . . . . . . . . 4346. . 0 5.
6. Changes incident to business combinations, net . . . . . . . . . . . . . . . . . . . . 4356. . 5,817 6.
7. LESS: Cash dividends declared on preferred stock . . . . . . . . . . . . . . . . . . 4470. . 0 7.
8. LESS: Cash dividends declared on common stock . . . . . . . . . . . . . . . . . . . . 4460. . 105,000 8.
9. Cumulative effect of changes in accounting principles from prior years * (see
instructions for this schedule) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4411. . 0 9.
10. Corrections of material accounting errors from prior years * (see instructions for
this schedule) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4412. . 0 10.
11. Change in net unrealized loss on marketable equity securities . . . . . . . . . . . . 4413. . 12,007 11.
12. Foreign currency translation adjustments . . . . . . . . . . . . . . . . . . . . . . . 4414. . (111) 12.
13. Other transactions with parent holding company * (not included in items 5, 7, or
8 above) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4415. . 22,227 13.
14. Total equity capital end of current period (sum of items 3 through 13) (must equal
Schedule RC, item 28) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3210. . 1,082,999 14.
</TABLE>
- -----------------
* Describe on Schedule RI-E - Explanations.
<PAGE> 10
6
SCHEDULE RI-B - CHARGE-OFFS AND RECOVERIES AND CHANGES IN ALLOWANCE
FOR LOAN AND LEASE LOSSES
Part I. Charge-offs and Recoveries on Loans and Leases
PART I EXCLUDES CHARGE-OFFS AND RECOVERIES THROUGH THE ALLOCATED TRANSFER RISK
RESERVE.
<TABLE>
<CAPTION>
I486 <-
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
----------------calendar year-to-date----------------
(Column A) (Column B)
Charge-offs Recoveries
------------------------- -------------------------
<S> <C> <C> <C> <C> <C>
1. Loans secured by real estate: RIAD RIAD
---- ----
a. To U.S. addressees (domicile) . . . . . . . . . . . . . . 4651. . 11,825 4461. . 17,834 1.a
b. To non-U.S. addressees (domicile) . . . . . . . . . . . . 4652. . 0 4662. . 0 1.b
2. Loans to depository institutions and acceptances of
other banks:
a. To U.S. banks and other U.S. depository
institutions . . . . . . . . . . . . . . . . . . . . . . . 4653. . 0 4663. . 0 2.a
b. To foreign banks . . . . . . . . . . . . . . . . . . . . . 4654. . 0 4664. . 0 2.b
3. Loans to finance agricultural production and other
loans to farmers . . . . . . . . . . . . . . . . . . . . . . . 4655. . 0 4665. . 0 3.
4. Commercial and industrial loans:
a. To U.S. addressees (domicile) . . . . . . . . . . . . . . 4645. . 12,927 4617. . 11,842 4.a
b. To non-U.S. addressees (domicile) . . . . . . . . . . . . 4646. . 0 4618. . 248 4.b
5. Loans to individuals for household, family, and other
personal expenditures:
a. Credit cards and related plans . . . . . . . . . . . . . . 4656. . 2,256 4666. . 374 5.a
b. Other (includes single payment, installment, and
all student loans) . . . . . . . . . . . . . . . . . . . . 4657. . 6,386 4667. . 2,876 5.b
6. Loans to foreign governments and official institutions . . . . 4643. . 0 4627. . 867 6.
7. All other loans . . . . . . . . . . . . . . . . . . . . . . . 4644. . 2,394 4628. . 745 7.
8. Lease financing receivables:
a. Of U.S. addressees (domicile) . . . . . . . . . . . . . . 4658. . 2,002 4668. . 184 8.a
b. Of non-U.S. addressees (domicile) . . . . . . . . . . . . 4659. . 0 4669. . 0 8.b
9. Total (sum of items 1 through 8) . . . . . . . . . . . . . . . 4635. . 37,790 4605. . 34,970 9.
</TABLE>
<TABLE>
<CAPTION>
MEMORANDA
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
To be completed by national banks only. ----Cumulative Charge-offs---- ----Cumulative Recoveries----
1. Charge-offs and recoveries of Special-Category Loans, Jan 1 1986 through Dec 31 1989 Jan 1 1986 through Report Date
<S> <C> <C> <C> <C>
as defined for this Call Report by the Comptroller of RIAD RIAD
---- ----
the Currency ________________________________________ 4784. . 9,159 M.1
</TABLE>
<TABLE>
<CAPTION>
---------------calendar year-to-date-----------------
MEMORANDUM ITEMS 2 AND 3 ARE TO BE COMPLETED (Column A) (Column B)
BY ALL BANKS Charge-offs Recoveries
------------------------- -------------------------
<S> <C> <C> <C> <C> <C>
2. Loans to finance commercial real estate, construction, RIAD RIAD
---- ----
and land development activities (not secured by real
estate) included in Schedule RI-B, part I,
items 4 and 7, above . . . . . . . . . . . . . . . . . . . . . 5409. . 0 5410. . 0 M.2
3. Loans secured by real estate in domestic offices
(included in Schedule RI-B, part I, item 1, above):
a. Construction and land development . . . . . . . . . . . . 3582. . 0 3583. . 3,261 M.3.a
b. Secured by farmland . . . . . . . . . . . . . . . . . . . 3584. . 0 3585. . 0 M.3.b
c. Secured by 1-4 family residential properties:
(1) Revolving, open-end loans secured by 1-4
family residential properties and extended
under lines of credit . . . . . . . . . . . . . . . . 5411. . 0 5412. . 0
M.3.c1
(2) All other loans secured by 1-4 family
residential properties . . . . . . . . . . . . . . . . 5413. . 2,975 5414. . 262
M.3.c2
d. Secured by multifamily (5 or more) residential . . . . . . 3588. . 0 3589. . 0 M.3.d
e. Secured by nonfarm nonresidential properties . . . . . . . 3590. . 8,850 3591. . 14,311 M.3.e
</TABLE>
<PAGE> 11
7
SCHEDULE RI-B - CONTINUED
<TABLE>
<CAPTION>
PART II. Changes in Allowances for Loan and Lease Losses
and in Allocated Transfer Risk Reserve Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
(Column A) (Column B)
Allowance for Loan and Lease Allocated Transfer Risk Losses
Reserve
----------------------------- ------------------------------
<S> <C> <C> <C> <C> <C>
RIAD RIAD
1. Balance originally reported in the December 31, 1992, ---- ----
Reports of Condition and Income . . . . . . . . . . . 3124. . 163,425 3131. . 0 1.
2. Recoveries (column A must equal part I, item 9,
column B above) . . . . . . . . . . . . . . . . . . . 4605. . 34,970 3132. . 0 2.
3. LESS: Charge-offs (column A must equal part I, item 9,
column A above) . . . . . . . . . . . . . . . . . . . 4635. . 37,790 3133. . 0 3.
4. Provisions (column A must equal Schedule RI, item 4.a;
column B must equal schedule RI, item 4.b) . . . . . . 4230. . 16,480 4243. . 0 4.
5. Adjustments * (see instructions for this schedule) . . 4815. . 1,750 3134. . 0 5.
6. Balance end of current period (sum of items 1 through
5) (column A must equal Schedule RC, item 4.b; column B
must equal Schedule RC, item 4.c . . . . . . . . . . . 3123. . 178,835 3128. . 0 6.
</TABLE>
- -----------------
* Describe on Schedule RI-E - Explanations.
SCHEDULE RI-C - APPLICABLE INCOME TAXES BY TAXING AUTHORITY
<TABLE>
<CAPTION> I489 <-
Schedule RI-C is to be reported with the December Report of Income. Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
RAID
----
1. Federal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4780. . 134,970 1.
2. State and local . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4790. . 15,262 2.
3. Foreign . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4795. . 551 3.
4. Total (sum of items 1 through 3) (must equal sum of Schedule RI, items 9 and 11.b) . . . . . 4770. . 150,783 4.
RIAD
----
5. Deferred portion of item 4 . . . . . . . . . . . 4772. . 17,093 . . . . . . 5.
</TABLE>
<PAGE> 12
8
SCHEDULE RI-D - INCOME FROM INTERNATIONAL OPERATIONS
FOR ALL BANKS WITH FOREIGN OFFICES, EDGE OR AGREEMENT SUBSIDIARIES, OR IBFS
WHERE INTERNATIONAL OPERATIONS ACCOUNT FOR MORE THAN 10 PERCENT OF TOTAL
REVENUES, TOTAL ASSETS, OR NET INCOME.
PART I. ESTIMATED INCOME FROM INTERNATIONAL OPERATIONS
<TABLE>
<CAPTION> I492 <-
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1. Interest income and expense booked at foreign offices, Edge and Agreement
subsidiaries, and IBFs: RIAD Year-to-date
----
a. Interest income booked . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4837. . 8,339 1.a
b. Interest expense booked. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4838. . 3,508 1.b
c. Net interest income booked at foreign offices, Edge and Agreement subsidiaries,
and IBFs (item 1.a minus 1.b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4839. . 4,831 1.c
2. Adjustments for booking location of international operations:
a. Net interest income attributable to international operations booked at domestic
offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4840. . 2,340 2.a
b. Net interest income attributable to domestic business booked at foreign
offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4841. . N/A 2.b
c. Net booking location adjustment (item 2.a minus 2.b) . . . . . . . . . . . . . . . . . 4842. . 2,340 2.c
3. Noninterest income and expense attributable to international operations:
a. Noninterest income attributable to international operations . . . . . . . . . . . . . 4097. . 15,973 3.a
b. Provision for loan and lease losses attributable to international operations . . . . . 4235. . (1,374) 3.b
c. Other noninterest expense attributable to international operations . . . . . . . . . . 4239. . 23,798 3.c
d. Net noninterest income (expense) attributable to international operations (item 3.a
minus 3.b and 3.c . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4843. . (6,451) 3.d
4. Estimated pretax income attributable to international operations before capital
allocation adjustment (sum of items 1.c, 2.c, and 3.d). . . . . . . . . . . . . . . . . . 4844. . 720 4.
5. Adjustment to pretax income for internal allocations to international operations
to reflect the effects of equity capital on overall bank funding costs. . . . . . . . . . 4845. . N/A 5.
6. Estimated pretax income attributable to international operations after capital
allocation adjustment (sum of items 4 and 5). . . . . . . . . . . . . . . . . . . . . . . 4846. . 720 6.
7. Income taxes attributable to income from international operations as estimated in
item 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4797. . 213 7.
8. Estimated net income attributable to international operations (item 6 minus 7). . . . . . 4341. . 507 8.
</TABLE>
MEMORANDA
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
---------------------------
<S> <C> <C> <C>
1. Intracompany interest income included in item 1.a above . . . . . . . . . . . . . . . . . 4847. . 2,973 M.1
2. Intracompany interest expense included in item 1.b above. . . . . . . . . . . . . . . . . 4848. . 5 M.2
</TABLE>
PART II. SUPPLEMENTARY DETAILS ON INCOME FROM INTERNATIONAL OPERATIONS
REQUIRED BY THE DEPARTMENTS OF COMMERCE AND TREASURY FOR PURPOSES OF THE U.S.
INTERNATIONAL ACCOUNTS AND THE U.S. NATIONAL INCOME AND PRODUCT ACCOUNTS
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
---------------------------
RIAD Year-to-date
----
<S> <C> <C> <C>
1. Interest income booked at IBFs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4849. . 0 1.
2. Interest expense booked at IBFs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4850. . 0 2.
3. Noninterest income attributable to international operations booked at domestic
offices (excluding IBFs):
a. Gains (losses) and extraordinary items. . . . . . . . . . . . . . . . . . . . . . . . .5491. . 361 3.a
b. Fees and other noninterest income . . . . . . . . . . . . . . . . . . . . . . . . . . .5492. . 6,845 3.b
4. Provision for loan and lease losses attributable to international operations booked at
domestic offices (excluding IBFs). . . . . . . . . . . . . . . . . . . . . . . . . . . . .4852. . (1,357) 4.
5. Other noninterest expense attributable to international operations booked at domestic
offices (excluding IBFs) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4853. . 12,231 5.
</TABLE>
<PAGE> 13
9
SCHEDULE RI-E - EXPLANATIONS
SCHEDULE RI-E - IS TO BE COMPLETED EACH QUARTER ON A CALENDAR YEAR-TO-DATE
BASIS.
Detail all adjustments in Schedule RI-A and RI-B, all extraordinary items and
other adjustments in Schedule RI, and all significant items of other
noninterest income and other noninterest expense in Schedule RI. (See
instructions for details.)
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. All other noninterest income (from Schedule RI, item 5.f.(2)) RIAD Year-to-date
Report amounts that exceed 10% of Schedule RI, item 5.f.(2): ----
a. Net gains on other real estate owned . . . . . . . . . . . . . . . . . . . . . . . . . 5415. . N/A 1.a
b. Net gains on sales of loans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5416. . N/A 1.b
c. Net gains on sales of premises and fixed assets 5417. . N/A 1.c
Itemize and describe the three largest other amounts that exceed 10% of
Schedule RI, item 5.f.(2):
TEXT RIAD
---- ----
d. 4461: PROCESSING FEES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4461. . 28,937 1.d
e. 4462: UNREALIZED GAINS ON CAPS, FLOORS, SWAPS. . . . . . . . . . . . . . . . . . . . . 4462. . 13,714 1.e
f. 4463: SECURITIZATION CLEAN-UP CALL GAIN. . . . . . . . . . . . . . . . . . . . . . . . 4463. . 9,626 1.f
2. Other nonintrest expense (from Schedule RI, item 7.c):
a. Amortization expense of intangible assets. . . . . . . . . . . . . . . . . . . . . . . 4531. . 11,059 2.a
Report amounts that exceed 10% of Schedule RI, item 7.c:
b. Net losses on other real estate owned. . . . . . . . . . . . . . . . . . . . . . . . . 5418. . N/A 2.b
c. Net losses on sales of loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5419. . N/A 2.c
d. Net losses on sales of premises and fixed assets 5420. . N/A 2.d
Itemize and describe the threee largest other amounts that exceed 10% of
Schedule RI, item 7.c:
TEXT RIAD
---- ----
e. 4464: PROCESSING EXPENSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4464. . 44,987 2.e
f. 4467:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4467. . N/A 2.f
g. 4468:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4468. . N/A 2.g
3. Extraordinary items and other adjustments (from Schedule RI, item 11.a) and applicable
income tax effect (from Schedule RI, item 11.b) (itemize and describe all extraordinary
items and other adjustments):
TEXT RIAD
---- ----
a. (1) 6440: Effect of adopting FASB Statement No. 109, "Accounting for Income Taxes" . . 6440. . 0 3.a.1
(2) Applicable income tax effect 4486. . 0 . . . . . . . . 3.a.2
b. (1) 4487:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4487. . 0 3.b.1
(2) Applicable income tax effect 4488. . 0 . . . . . . . . 3.b.2
c. (1) 4489:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4489. . 0 3.c.1
(2) Applicable income tax effect 4491. . 0 . . . . . . . . 3.c.2
4. Equity capital adjustments from amended Reports of Income (from Schedule RI-A,
item 2) (itemize and describe all adjustments):
TEXT RIAD
---- ----
a. 4492:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4492. . N/A 4.a
b. 4493:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4493. . N/A 4.b
5. Cumulative effect of changes in accounting principles from prior years (from Schedule
RI-A, item 9) (itemize and describe all changes in accounting principles):
TEXT RIAD
---- ----
a. 4494:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4494. . N/A 5.a
b. 4495:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4495. . N/A 5.b
6. Corrections of material accounting errors from prior years (from Schedule RI-A, item
10) (itemize and describe all corrections):
TEXT RIAD
---- ----
a. 4496:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4496. . N/A 6.a
b. 4497:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4497. . N/A 6.b
</TABLE>
<PAGE> 14
10
SCHEDULE RI-E - CONTINUED
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
7. Other transactions with parent holding company (from Schedule RI-A, item 13) (itemize
and describe all such transactions):
TEXT RIAD
---- ----
a. 4498: CAPITAL INFUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4498. . 22,227 7.a
b. 4499: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4499. . N/A 7.b
8. Adjustments to allowance for loan and lease losses (from Schedule RI-B, part II,
item 5) (itemize and describe all adjustments):
TEXT RIAD
---- ----
a. 4521: CREDIT CARD LN POOL PARTICIPATION. . . . . . . . . . . . . . . . . . . . . . . . 4521. . 910 8.a
b. 4522: PURCHASED ALLOWANCE (NET). . . . . . . . . . . . . . . . . . . . . . . . . . . . 4522. . 840 8.b
I498 I499 <-
</TABLE>
9. Other explanations (the space below is provided for the bank to briefly
describe, at its option, any other significant items affecting the Report
of Income):
No comment: X (RIAD 4769)
Other explanations (please type or print clearly):
(TEXT 4769)
<PAGE> 15
11
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL AND
STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1993
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC -- BALANCE SHEET
<TABLE>
<CAPTION> C400 <--
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
ASSETS
<S> <C> <C> <C>
RCFD
1. Cash and balances due from depository institutions (from Schedule RC-A): ----
a. Noninterest-bearing balances and currency and coin (1) . . . . . . . . . . . . . . . 0081 . . 770,961 1.a
b. Interest-bearing balances (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 0071 . . 37,486 1.b
2. Securities (from Schedule RC-B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0390 . . 1,823,588 2.
3. Federal funds sold and securities purchased under agreements to resell in domestic
offices of the bank and of its Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds sold . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0276 . . 1,402,112 3.a
b. Securities purchased under agreements to resell . . . . . . . . . . . . . . . . . . 0277 . . 150,719 3.b
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income . . . . . . . . . . . RCFD
----
(from Schedule RC-C) . . . . . . . . . . . . . . . . . . . . . 2122 . . 10,764,757 . . . . . . 4.a
b. LESS: Allowance for loan and lease losses . . . . . . . . . . 3123 . . 178,835 . . . . . . 4.b
c. LESS: Allocated transfer risk reserve . . . . . . . . . . . . 3128 . . 0 . . . . . . 4.c
d. Loans and leases, net of unearned income,
allowance, and reserve (item 4.a minus 4.b and 4.c) . . . . . . . . . . . . . . . . 2125 . . 10,585,922 4.d
5. Assets held in trading accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2146 . . 109,922 5.
6. Premises and fixed assets (including capitalized leases) . . . . . . . . . . . . . . . . 2145 . . 110,447 6.
7. Other real estate owned (from Schedule RC-M) . . . . . . . . . . . . . . . . . . . . . 2150 . . 17,938 7.
8. Investments in unconsolidated subsidiaries and associated companies (from
Schedule RC-M) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2130 . . 2,698 8.
9. Customers' liability to this bank on acceptances outstanding . . . . . . . . . . . . . . 2155 . . 32,335 9.
10. Intangible assets (from Schedule RC-M) . . . . . . . . . . . . . . . . . . . . . . . . . 2143 . . 40,342 10.
11. Other assets (from Schedule RC-F) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2160 . . 210,224 11.
12. Total assets (sum of items 1 through 11) . . . . . . . . . . . . . . . . . . . . . . . . 2170 . . 15,294,694 12.
</TABLE>
______________
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
<PAGE> 16
12
SCHEDULE RC - CONTINUED
<TABLE>
<CAPTION> Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
LIABILITIES
<S> <C> <C> <C> <C>
13.Deposits RCON
----
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, Part I) . . . . . . . . . . . . . . . . . 2200 . . . . . . . 7,923,922 13.a
(1) Noninterest-bearing (1) . . . . . . . . . . . . . . . . . 6631 . . 2,469,017 . . . . . . 13.a.1
(2) Interest-bearing . . . . . . . . . . . . . . . . . . . . . 6636 . . 5,454,905 . . . . . . 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
----
IBFs (from Schedule RC-E, part II) . . . . . . . . . . . . . . 2200 . . . . . . 804,867 13.b
(1) Noninterest-bearing . . . . . . . . . . . . . . . . . . . 6631 . . 738,551 . . . . . . 13.b.1
(2) Interest-bearing . . . . . . . . . . . . . . . . . . . . . 6636 . . 66,316 . . . . . . 13.b.2
14.Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of its Edge
and Agreement subsidiaries, and in IBFs: RCFD
----
a. Federal funds purchased . . . . . . . . . . . . . . . . . . . 0278 . . . . . . 1,711,846 14.a
b. Securities sold under agreements to repurchase . . . . . . . . 0279 . . . . . . 863,941 14.b
15.Demand notes issued to the RCON
----
U.S. Treasury 2840 . . . . . . 199,558 15.
16.Other borrowed RCFD
----
money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2850 . . . . . . 2,206,217 16.
17.Mortgage indebtedness and obligations under capitalized
leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2910 . . . . . . 1,335 17.
18.Bank's liability on acceptances executed and outstanding . . . . . 2920 . . . . . . 32,335 18.
19.Subordinated notes and debentures . . . . . . . . . . . . . . . . 3200 . . . . . . 161,718 19.
20.Other liabilities (from Schedule RC-G) . . . . . . . . . . . . . . 2930 . . . . . . 305,956 20.
21.Total liabilities (sum of items 13 through 20) . . . . . . . . . . 2948 . . . . . . 14,211,695 21.
22.Limited-life preferred stock and related surplus . . . . . . . . . 3282 . . . . . . 0 22.
EQUITY CAPITAL
23.Perpetual preferred stock and related surplus . . . . . . . . . . 3838 . . . . . . 0 23.
24.Common stock . . . . . . . . . . . . . . . . . . . . . . . . . . . 3230 . . . . . . 100,000 24.
25.Surplus (exclude all surplus related to preferred stock) . . . . 3839 . . . . . . 537,762 25.
26.a. Undivided profits and capital reserves . . . . . . . . . . . . 3632 . . . . . . 433,341 26.a
b. LESS: Net unrealized loss on marketable equity securities . . . 0297 . . . . . . ( 12,007) 26.b
27.Cumulative foreign currency translation adjustments . . . . . . . 3284 . . . . . . ( 111) 27.
28.Total equity capital (sum of items 23 through 27) . . . . . . . . 3210 . . . . . . 1,082,999 28.
29.Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28) . . . . . . . . . . . . . . 3300 . . . . . . 15,294,694 29.
MEMORANDUM
TO BE REPORTED ONLY WITH THE MARCH REPORT OF CONDITION.
1. Indicate in the box at the right the number of the
statement below that best describes the most
comprehensive level of auditing work performed for the bank RCFD Number
by independent external auditors as ---- ------
of any date during 1992 . . . . . . . . . . . . . . . . . . . . . 6724 . . . N/A . . . . . . M.1
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified
public accounting firm which submits a report on the consolidated holding
company (but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
</TABLE>
____________
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits
<PAGE> 17
13
SCHEDULE RC-A - CASH AND BALANCES DUE FROM DEPOSITORY INSTITUTIONS
Exclude assets held in trading accounts.
<TABLE>
<CAPTION> C405 <-
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
(Column A) (Column B)
Consolidated Bank Domestic Offices
------------------------ -----------------------
<S> <C> <C> <C> <C> <C>
1. Cash items in process of collection, unposted RCFD RCON
---- ----
debits, and currency and coin . . . . . . . . . . . . . . . . . . 0022. . 521,394 . . . . . . 1.
a. Cash items in process of collection and unposted
debits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0020. . 456,317 1.a
b. Currency and coin . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0080. . 64,933 1.b
2. Balances due from depository institutions in the U.S. . . . . . . . . . . . . 0082. . 36,993 2.
a. U.S. branches and agencies of foreign banks
(including their IBFs) . . . . . . . . . . . . . . . . . . . . 0083. . 0 . . . . . . 2.a
b. Other commercial banks in the U.S. and other
depository institutions in the U.S. (including
their IBFs) . . . . . . . . . . . . . . . . . . . . . . . . . 0085. . 40,064 . . . . . . 2.b
3. Balances due from banks in foreign countries and
foreign central banks . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0070. . 4,807 3.
a. Foreign branches of other U.S. banks . . . . . . . . . . . . . 0073. . 4,807 . . . . . . 3.a
b. Other banks in foreign countries and foreign
central banks . . . . . . . . . . . . . . . . . . . . . . . . 0074. . 36,057 . . . . . . 3.b
4. Balances due from Federal Reserve Banks . . . . . . . . . . . . . 0090. . 206,125 0090. . 205,290 4.
5. Total (sum of items 1 through 4) (total of column A
must equal Schedule RC, item 1) . . . . . . . . . . . . . . . . . 0010. . 808,447 0010. . 768,340 5.
MEMORANDUM
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
RCON
1. Noninterest-bearing balances due from commercial banks in the U.S. ----
(including in item 2, column 8 above) . . . . . . . . . . . . . . . . . . . . . . . 0050. . 36,048 M.1
</TABLE>
<PAGE> 18
14
SCHEDULE RC-B - SECURITIES
<TABLE>
<CAPTION>
C410 <-
Exclude assets held in trading accounts. Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
-------------Consolidated Bank-------------- --Domestic Offices--
(Column A) (Column B) (Column C)
Book Value Market Value (1) Book Value
-------------------- --------------------- --------------------
RCFD RCFD RCON
---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
1. U.S. Treasury securities . . . . . . . . . . . . . . 0400.. 56,109 0401.. 56,109 0400.. 56,109 1.
2. U.S. Government agency and corporation
obligations:
a. All holdings of U.S. Government-issued or
guaranteed certificates of participation
in pools of residential mortgages:
(1) Issued by FNMA and FHLMC . . . . . . . . . . . 3760.. 1,327,924 3761.. 1,327,924 3760.. 1,327,924 2.a1
(2) Guaranteed by GNMA (exclude FNMA
and FHLMC issues) . . . . . . . . . . . . . . 3762.. 129,521 3763.. 129,521 3762.. 129,521 2.a2
b. All other . . . . . . . . . . . . . . . . . . . . 0604.. 74,434 0605.. 74,434 . . . . . . 2.b
(1) Collateralized mortgage obligations
issued by FNMA and FHLMC (include
REMICs) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3764.. 66,039 2.b1
(2) All other U.S. Government-sponsored
agency obligations (2) . . . . . . . . . . . . . . . . . . . . . . . . 3765.. 8,395 2.b2
(3) All other U.S. Government agency
obligations (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3766.. 0 2.b3
3. Securities issued by states and political
subdivisions in the U.S. . . . . . . . . . . . . . . 0402.. 69,969 0403.. 74,339 . . . . . . 3.
a. General obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . 3767.. 21,530 3.a
b. Revenue obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . 3768.. 48,389 3.b
c. Industrial development and similar
obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3769.. 50 3.c
4. Other domestic debt securities:
a. All holdings of private (i.e., non-
government-issued or -guaranteed)
certificates of participation in pools
of residential mortgages . . . . . . . . . . . . . 0408.. 467 0409.. 467 0408.. 467 4.a
b. All other domestic debt securities:
(1) Privately-issued collaterized
mortgage obligations (include
REMICs) . . . . . . . . . . . . . . . . . . . 5361.. 37,725 5362.. 37,725 5361.. 37,725 4.b1
(2) All other . . . . . . . . . . . . . . . . . . 5363.. 2,953 5364.. 2,953 5363.. 2,953 4.b2
5. Foreign debt securities . . . . . . . . . . . . . . . 3635.. 1,865 3636.. 1,865 3635.. 0 5.
6. Equity securities:
a. Marketable equity securities:
(1) Investments in mutual funds . . . . . . . . . 3637.. 0 3638.. 0 3637.. 0 6.a1
(2) Other marketable equity securities . . . . . . 3639.. 17 3640.. 17 3639.. 17 6.a2
(3) LESS: Net unrealized loss on
marketable equity securities . . . . . . . . 3641.. 0 . . . . . . 3641.. 0 6.a3
b. Other equity securities (includes
Federal Reserve stock) . . . . . . . . . . . . . . 3642.. 122,604 3643.. 122,604 3642.. 122,604 6.b
7. Total (sum of items 1 through 6) (total of
column A must equal Schedule RC, item 2) . . . . . . 0390.. 1,823,588 0391.. 1,827,958 0390.. 1,821,723 7.
</TABLE>
__________
(1) See discussion in Glossary entry for "market value of securities."
(2) Includes obligations (other than certificates of participation in pools
of residential mortgages, CMOs, and REMICs) issued by the Farm Credit
System, the Federal Home Loan Bank System, the Federal Home Loan Mortgage
Corporation, the Federal National Mortgage Association, the Financing
Corporation, Resolution Funding Corporation, the Student Loan Marketing
Association, and the Tennessee Valley Authority.
(3) Includes Small Business Administration "Guaranteed Loan Pool
Certificates," U.S. Maritime Administration obligations, and Export-Import
Bank participation certificates.
<PAGE> 19
15
SCHEDULE RC-B - CONTINUED
MEMORANDA
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
----- Consolidated Bank -----
Book Value
----------------------------
<S> <C> <C> <C>
RCFD
----
1. Pledged securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0416. . 1,684,807 M.1
2. Maturity and repricing data for debt securities (1,2) (excluding those in monaccural
status):
a. Fixed rate debt securities with a remaining maturity of:
(1) Three months or less . . . . . . . . . . . . . . . . . . . . . . . . . . . 0343. . 26,456 M.2.a1
(2) Over three months through 12 months . . . . . . . . . . . . . . . . . . . . 0344. . 34,096 M.2.a2
(3) Over one year through five years . . . . . . . . . . . . . . . . . . . . . 0345. . 47,531 M.2.a3
(4) Over five years . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0346. . 913,004 M.2.a4
(5) Total fixed rate debt securities (sum of Memorandum items 2.a.(1)
through 2.a.(4)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0347. . 1,021,087 M.2.a5
b. Floating rate debt securities with a repricing frequency of:
(1) Quarterly or more frequently . . . . . . . . . . . . . . . . . . . . . . . 4544. . 556,657 M.2.b1
(2) Annually or more frequently, but less frequently than quarterly . . . . . . 4545. . 122,534 M.2.b2
(3) Every five years or more frequently, but less frequently than annually . . 4551. . 222 M.2.b3
(4) Less frequently than every 5 years . . . . . . . . . . . . . . . . . . . . 4552. . 0 M.2.b4
(5) Total floating rate debt securities (sum of Memorandum items 2.b.(1)
through 2.b.(4)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4553. . 679,413 M.2.b5
c. Total debt securities (sum of Memorandum items 2.a.(5) and 2.b.(5)) (must equal
total debt securities from Schedule RC-B, sum of items 1 through 5, column A,
minus nonaccural debt securities included in Schedule RC-N, item 9, column C) . 0393. . 1,700,500 M.2.c
3. Taxable securities issued by states and political subdivisions in the U.S.
(included in Schedule RC-B, item 3, column A, above) . . . . . . . . . . . . . . . 0301. . 0 M.3
4. Debt securities restructured and in compliance with modified terms (included in
Schedule RC-B, items 3 through 5, column A, above) . . . . . . . . . . . . . . . . 5365. . 0 M.4
5. Debt securities held for sale (included in Schedule RC-8, items 1 through 5,
column A, above . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5366. . 1,629,261 M.5
6. Floating rate debt securities with a remaining maturity of one year or less (included
in Memorandum item 2.b.(5) above) . . . . . . . . . . . . . . . . . . . . . . . . . 5519. . 0 M.6
</TABLE>
___________
(1) Exclude equity securities, e.g., investments in mutual funds, Federal
Reserve stock, common stock, and preferred stock.
(2) Memorandum item 2 is not applicable to savings banks that must complete
supplemental Schedule RC-J.
<PAGE> 20
16
SCHEDULE RC-C - LOANS AND LEASE FINANCING RECEIVABLES
PART I. LOANS AND LEASES
Do not deduct the allowance for loan and lease losses from amounts reported in
this schedule. Report total loans and leases, net of unearned income. Exclude
assets held in trading accounts.
<TABLE>
<CAPTION>
C415 <-
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
(Column A) (Column B)
RCFD Consolidated Bank RCON Domestic Offices
---- ----------------- ---- ----------------
<S> <C> <C> <C> <C> <C>
1. Loans secured by real estate . . . . . . . . . . . . . . . . 1410. . 6,445,216 . . . . . . 1.
a. Construction and land development . . . . . . . . . . . . . . . . . . 1415. . 92,095 1.a
b. Secured by farmland (including farm residential and
other improvements) . . . . . . . . . . . . . . . . . . . . . . . . . 1420. . 3,237 1.b
c. Secured by 1-4 family residential properties:
(1) Revolving, open-end loans secured by 1-4 family
residential properties and extended under lines
of credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1797. . 101,713 1.c1
(2) All other loans secured by 1-4 family
residential properties:
(a) Secured by first liens . . . . . . . . . . . . . . . . . . . . 5367. . 5,455,047 1.c2a
(b) Secured by junior lines . . . . . . . . . . . . . . . . . . . 5368. . 337,846 1.c2b
d. Secured by multifamily (5 or more) residential
properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1460. . 60,023 1.d
e. Secured by nonfarm nonresidential properties . . . . . . . . . . . . . 1480. . 395,143 1.e
2. Loans to depository institutions:
a. To commercial banks in the U.S. . . . . . . . . . . . . . . . . . . . 1505. . 28,563 2.a
(1) To U.S. branches and agencies of foreign banks . . . . 1506. . 6,748 . . . . . . 2.a1
(2) To other commercial banks in the U.S. . . . . . . . . 1507. . 25,140 . . . . . . 2.a2
b. To other depository institutions in the U.S. . . . . . . . 1517. . 660 1517. . 660 2.b
c. To banks in foreign countries . . . . . . . . . . . . . . . . . . . . 1510. . 530 2.c
(1) To foreign branches of other U.S. banks . . . . . . . 1513. . 634 . . . . . . 2.c1
(2) To other banks in foreign countries . . . . . . . . . 1516. . 64,553 . . . . . . 2.c2
3. Loans to finance agricultural production and other
loans to farmers . . . . . . . . . . . . . . . . . . . . . . 1590. . 3,628 1590. . 3,628 3.
4. Commercial and industrial loans:
a. To U.S. addressees (domicile) . . . . . . . . . . . . . . 1763. . 2,365,754 1763. . 2,360,952 4.a
b. To non-U.S. addressees (domicile) . . . . . . . . . . . . 1764. . 11,203 1764. . 10,715 4.b
5. Acceptance of other banks:
a. Of U.S. banks . . . . . . . . . . . . . . . . . . . . . . 1756. . 0 1756. . 0 5.a
b. Of foreign banks . . . . . . . . . . . . . . . . . . . . . 1757. . 0 1757. . 0 5.b
6. Loans to individuals for household, family, and other
personal expenditures (i.e., consumer loans) (includes
purchased paper) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1975. . 875,090 6.
a. Credit cards and related plans (includes check
credit and other revolving credit plans) . . . . . . . . . 2008. . 154,039 . . . . . . 6.a
b. Other (includes single payment, installment, and all
student loans) . . . . . . . . . . . . . . . . . . . . . . 2011. . 721,051 . . . . . . 6.b
7. Loans to foreign governments and official institutions
(including foreign central banks) . . . . . . . . . . . . . . 2081. . 12,623 2081. . 4,250 7.
8. Obligations (other than securities and leases) of
states and political subdivisions in the U.S. (includes
nonrated industrial development obligations):
a. Taxable obligations . . . . . . . . . . . . . . . . . . . 2033. . 248 2033. . 248 8.a
b. Tax-exempt obligations . . . . . . . . . . . . . . . . . . 2079. . 22,323 2079. . 22,323 8.b
9. Other loans . . . . . . . . . . . . . . . . . . . . . . . . . 1563. . 433,611 . . . . . . 9.
a. Loans for purchasing or carrying securities (secured
and unsecured) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1545. . 30,001 9.a
b. All other loans (exclude consumer loans) . . . . . . . . . . . . . . . 1564. . 398,806 9.b
10. Lease financing receivables (net of unearned income) . . . . . . . . . 2165. . 508,614 10.
a. Of U.S. addressees (domicile) . . . . . . . . . . . . . . 2182. . 508,614 . . . . . . 10.a
b. Of non-U.S. addressees (domicile) . . . . . . . . . . . . 2183. . 0 . . . . . . 10.b
11.LESS: Any unearned income on loans reflected in items
1-9 above . . . . . . . . . . . . . . . . . . . . . . . . . . 2123. . 11,288 2123. . 11,253 11.
12.Total loans and leases, net of unearned income (sum of
items 1 through 10 minus item 11) (total of column A
must equal Schedule RC, item 4.a) . . . . . . . . . . . . . . 2122. . 10,764,757 2122. . 10,678,231 12.
</TABLE>
<PAGE> 21
17
SCHEDULE RC-C - CONTINUED
PART I CONTINUED
<TABLE>
<CAPTION>
MEMORANDA Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
(Column A) (Column B)
Consolidated Bank Domestic Offices
----------------------- --------------------
RCFD RCON
---- ----
<S> <C> <C> <C> <C> <C>
1. Commercial paper included in Schedule RC-C, part I,
above . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1496. . 0 1496. . 0 M.1
2. Loans and leases restructured and in compliance with
modified terms (included in Schedule RC-C, part I,
above):
a. Loans secured by real estate:
(1) To U.S. addressees (domicile) . . . . . . . . . . . . 1687. . 0 M.2.a1
(2) To non-U.S. adressees (domicile) . . . . . . . . . . . 1689. . 0 M.2.a2
b. Loans to fiance agricultural production and other
Loans to farmers . . . . . . . . . . . . . . . . . . . . . 1613. . 0 M.2.b
c. Commercial and industrial loans:
(1) of U.S. addressees (domicile) . . . . . . . . . . . . 1758. . 0 M.2.c1
(2) of non-U.S. adressees (domicile) . . . . . . . . . . . 1759. . 0 M.2.c2
d. All other loans (exclude loans to individuals for
household, family, and other personal expenditures) . . . 1615. . 0 M.2.d
e. Lease financing receivables:
(1) To U.S. addressees (domicile) . . . . . . . . . . . . 1789. . 0 M.2.e1
(2) To non U.S. adressees (domicile) . . . . . . . . . . . 1790. . 0 M.2.e2
f. Total (sum of Memorandum items 2.a through 2.e . . . . . . 1616. . 0 M.2.f
3. Maturity and repricing data for loans and leases (1)
(excluding those in nonaccrual status):
a. Fixed rate loans and leases with a remaining maturity
of:
(1) Three months or less . . . . . . . . . . . . . . . . . 0348. . 5,096,437 M.3.a1
(2) Over three months through 12 months . . . . . . . . . 0349. . 413,619 M.3.a2
(3) Over one year through five years . . . . . . . . . . . 0356. . 1,899,402 M.3.a3
(4) Over five years . . . . . . . . . . . . . . . . . . . 0357. . 809,306 M.3.a4
(5) Total fixed rate loans (sum of Memorandum
items 3.a.(1) through 3.a.(4)) . . . . . . . . . . . . 0358. . 8,218,764 m.3.a5
b. Floating rate loans with a repricing frequency of:
(1) Quarterly or more frequently . . . . . . . . . . . . . 4554. . 2,422,031 M3.b1
(2) Annually or more frequently, but less frequently
than quarterly . . . . . . . . . . . . . . . . . . . . 4555. . 74,235 M.3.b2
(3) Every five years or more frequently, but less
frequently than annually . . . . . . . . . . . . . . . 4561. . 2,788 M.3.b3
(4) Less frequently than every five years . . . . . . . . 4564. . 0 M.3.b4
(5) Total floating rate loans (sum of Memorandum
items 3.b.(1) through 3.b.(4)) . . . . . . . . . . . . 4567. . 2,499,054 M.3.b5
c. Total loans and leases (sum of Memorandum items
3.a.(5) and 3.b.(5)) (must equal the sum of total
loans and leases; net, from Schedule RC-C,
part I, item 12, plus unearned income from Schedule RC-C,
part I, item 11, minus total nonaccrual loans and
leases from Schedule RC-N, sum of items 1 though 8,
column C) . . . . . . . . . . . . . . . . . . . . . . . . 1479. . 10,717,818 M.3.c
4. Loans to finance commercial real estate, construction,
and land development activities (not secured by real
estate) included in Schedule RC-C, part I, items 4 and
9, column A, page RC-6 (2) . . . . . . . . . . . . . . . . . 2746. . 0 M.4
5. Loans and leases held for sale (included in
Schedule RC-C, part I, above) . . . . . . . . . . . . . . . . 5369. . 3,937,748 M.5
6. Adjustable rate closed-end loans secured by first liens
on 1-4 family residential properties (included in
Schedule RC-C, part I, item 1.c.(2)(a), column B,
page RC-6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5370. . 924,596 M.6
- ------------
</TABLE>
(1) Memorandum item 3 is not applicable to savings banks that must complete
supplemental Schedule RC-J.
(2) Exclude loans secured by real estate that
are included in Schedule RC-C, part I, item 1, column A.
<PAGE> 22
18
SCHEDULE RC-D IS TO BE COMPLETED ONLY BY BANKS WITH $1 BILLION OR MORE IN TOTAL
ASSETS.
SCHEDULE RC-D - ASSETS HELD IN TRADING ACCOUNTS IN
DOMESTIC OFFICES ONLY
<TABLE>
<CAPTION>
C420<-
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
RCON
----
<S> <C> <C> <C>
1. U.S. Treasury securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010. . N/A 1.
2. U.S. Government agency and corporation obligations . . . . . . . . . . . . . . . . . . . . 1020. . 109,922 2.
3. Securities issued by states and political subdivisions in the U.S. . . . . . . . . . . . . 1025. . N/A 3.
4. Other bonds, notes, and debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045. . N/A 4.
5. Certificates of deposit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1026. . N/A 5.
6. Commercial paper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1027. . N/A 6.
7. Bankers acceptance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1028. . N/A 7.
8. Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1029. . N/A 8.
9. Total (sum of items 1 through 8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2146. . 109,922 9.
</TABLE>
<PAGE> 23
19
SCHEDULE RC-E - DEPOSIT LIABILITIES
PART I. DEPOSITS IN DOMESTIC OFFICES
<TABLE>
<CAPTION>
C425 <-
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
----------------Transaction Accounts-------------- --Nontransaction Accounts--
(Column A) (Column B) (Column C)
Total transaction Memo: Total demand
accounts (including total deposits (included in Total nontransaction
demand deposits) column A) accounts (including MMDAs)
- ------------------------------------------------ ----------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Deposits of: RCON RCON RCON
---- ---- ----
1. Individuals, partnerships and corporations . 2201. . 3,116,314 2240. . 2,061,496 2346. . 4,354,311 1.
2. U.S. Government . . . . . . . . . . . . . . 2202. . 45,106 2280. . 45,106 2520. . 0 2.
3. States and political subdivisions in
the U.S. . . . . . . . . . . . . . . . . . . 2203. . 30,618 2290. . 23,556 2530. . 26,357 3.
4. Commercial banks in the U.S. . . . . . . . . 2206. . 288,406 2310. . 288,406 . . . . . . 4.
a. U.S. branches and agencies of foreign
banks . . . . . . . . . . . . . . . . . . . . . . . . . . . 2347. . 0 4a
b. Other commercial banks in the U.S. . . . . . . . . . . . . . 2348. . 10,857 4b
5. Other depository institutions in the U.S. . 2207. . 9,502 2312. . 9,502 2349. . 0 5.
6. Banks in foreign countries . . . . . . . . . 2213. . 7,496 2320. . 7,496 . . . . . . 6.
a. Foreign branches of other U.S. banks . . . . . . . . . . . . 2367. . 0 6a
b. Other banks in foreign countries . . . . . . . . . . . . . . 2373. . 1,500 6b
7. Foreign governments and official institu-
tions (including foreign central banks) . . 2216. . 0 2300. . 0 2377. . 0 7.
8. Certified and official checks . . . . . . . 2330. . 33,455 2330. . 33,455 . . . . . . 8.
9. Total (sum of items 1 through 8) (sum of
columns A and C must equal Schedule RC,
item 13.a) . . . . . . . . . . . . . . . . . 2215. . 3,530,897 2210. . 2,469,017 2385. . . . . . . . 9.
</TABLE>
MEMORANDA
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Selected components of total deposits (i.e., sum of item 9, columns A and C):
a. Total Individual Retirement Accounts (IRAs) and Keogh Plan accounts . . . . . . 6835. . 632,493 M.1.a
b. Total brokered deposits . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2365. . 1,000 M.1.b
c. Fully insured brokered deposits (included in Memorandum item 1.b above):
(1) Issued in denominations of less than $ 100,000 . . . . . . . . . . . . . . . 2343. . 0 M.1.c1
(2) Issued either in denominations of $ 100,000 or in denominations greater than
$ 100,000 and participated out by the broker in shares of $ 100,000 or less 2344. . 0 M.1.c2
d. Total deposits denominated in foreign currencies . . . . . . . . . . . . . . . . 3776. . 5,494 M.1.d
e. Preferred deposits (deposits of states and political subdivisions in the U.S.
reported in item 3, above which are secured or collateralized) . . . . . . . . . 5590. . 56,975 M.1.e
2. Components of total nontransaction accounts (sum of Memoranda items 2.a through 2.d must
equal item 9, column C above):
a. Savings deposits:
(1) Money market deposit accounts (MMDAs) . . . . . . . . . . . . . . . . . . . 6810. . 1,769,912 M.2.a1
(2) Other savings deposits (excludes MMDAs) . . . . . . . . . . . . . . . . . . 0352. . 437,229 M.2.a2
b. Total time deposts of less than $ 100,000 . . . . . . . . . . . . . . . . . . . 6648. . 1,828,058 M.2.b
c. Time certificates of deposit of $ 100,000 or more . . . . . . . . . . . . . . . 6645. . 256,753 M.2.c
d. Open-account time deposits of $ 100,000 or more . . . . . . . . . . . . . . . . 6646. . 101,073 M.2.d
3. All NOW accounts (included in column A above) . . . . . . . . . . . . . . . . . . . . 2398. . 1,061,880 M.3
</TABLE>
<PAGE> 24
20
SCHEDULE RC-E - CONTINUED
PART I. CONTINUED
MEMORANDA (CONTINUED)
DEPOSIT TOTALS FOR FDIC INSURANCE ASSESSMENTS (1)
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
RCON
4. Total deposits in domestic offices (sum of item 9, column A and item 9, column C) ----
(must equal Schedule RC, item 13.a) . . . . . . . . . . . . . . . . . . . . . . . . 2200. . 7,923,922 M.4
a. Total demand deposits (must equal item 9, column B). . . . . . . . . . . . . . . 2210. . 2,469,017 M.4.a
b. Total time and savings deposits (2) (must equal item 9, column A plus item 9,
column C minus item 9, column B) . . . . . . . . . . . . . . . . . . . . . . . . 2350. . 5,454,905 M.4.b
</TABLE>
(1) An amended Certified Statement should be submitted to the FDIC if the
deposit totals reported in this item are amended after the semiannual
Certified Statement originally covering this report date has been filed
with the FDIC.
(2) For FDIC insurance assessment purposes, "total time and savings deposits"
consists of nontransaction accounts and all transaction accounts other than
demand deposits.
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
5. Time deposits of less than $ 100,000 and open-account time deposits of $ 100,000 or
more (included in Memorandum items 2.b and 2.d above) with a remaining maturity or
repricing frequency of: (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCON
a. Three months or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0359. . 430,022 M.5.a
b. Over three months through 12 months (but not over 12 months) . . . . . . . . . . . . . 3644. . 732,117 M.5.b
6. Maturity and repricing data for time certificates of deposit of $ 100,000 or more: (1)
a. Fixed rate time certificates of deposit of $ 100,000 or more with a remaining
maturity of:
(1) Three months or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2761. . 75,413 M.6.a1
(2) Over three months through 12 months. . . . . . . . . . . . . . . . . . . . . . . . 2762. . 89,453 M.6.a2
(3) Over one year through five years . . . . . . . . . . . . . . . . . . . . . . . . . 2763. . 89,286 M.6.a3
(4) Over five years . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2765. . 2,601 M.6.a5
(5) Total fixed rate time certificates of deposit of $ 100,000 or more (sum of
Memorandum items 6.a.(1) through 6.a.(4)). . . . . . . . . . . . . . . . . . . . . 2767. . 256,753 M.6.a5
b. Floating rate time certificates of deposit of $ 100,000 or more with a repricing
frequency of:
(1) Quarterly or more frequently . . . . . . . . . . . . . . . . . . . . . . . . . . . 4568. . 0 M.6.b1
(2) Annually or more frequently, but less frequently than quarterly. . . . . . . . . . 4569. . 0 M.6.b2
(3) Every five years or more frequently, but less frequently than annually . . . . . . 4571. . 0 M.6.b3
(4) Less frequently than every five years. . . . . . . . . . . . . . . . . . . . . . . 4572. . 0 M.6.b4
(5) Total floating rate time certificates of deposit of $ 100,000 or more (sum of
Memorandum items 6.b.(1) through 6.b.(4)). . . . . . . . . . . . . . . . . . . . . 4573. . 0 M.6.b.5
c. Total time certificates of deposit of $ 100,000 or more (sum of Memorandum items
6.a.(5) and 6.b.(5)) (must equal Memorandum item 2.c above). . . . . . . . . . . . . . 6645. . 256,753 M.6.c
</TABLE>
(1) Memorandum items 5 and 6 are not applicable to savings banks that must
complete supplemental Schedule RC-J.
<PAGE> 25
21
SCHEDULE RC-E - CONTINUED
PART II. DEPOSITS IN FOREIGN OFICES (INCLUDING EDGE AND
AGREEMENT SUBSIDIARIES AND IBFS)
<TABLE>
<CAPTION>
Dollar Amounts is Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
Deposits of: RCFN
----
<S> <C> <C> <C>
1. Individuals, partnerships, and corporations . . . . . . . . . . . . . . . . . . . . . . . . . 2621 . 156,034 1.
2. U.S. banks (including IBFs and foreign branches of U.S. banks) . . . . . . . . . . . . . . . . 2623 . 603,346 2.
3. Foreign banks (including U.S. branchjes and agenciesof foreign banks,
including their IBFs) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2625 . 43,750 3.
4. Foreign governments and official institutions (including foreign central banks) . . . . . . . 2650 . 0 4.
5. Certified and official checks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2330 . 651 5.
6. Al other deposits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2668 . 1,086 6.
7. Total (sum of items 1 through 6) (must equal Schedule RC, item 13.b) . . . . . . . . . . . . . 2200 . 804,867 7.
</TABLE>
SCHEDULE RC-F - OTHER ASSETS
C430 <-
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
RCFD
----
<S> <C> <C> <C>
1. Income earned, not collected on loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2164 . 38,942 1.
2. Net deferred tax assets (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2148 . 0 2.
3. Excess residential mortgage servicing fees receivable . . . . . . . . . . . . . . . . . . . . 5371 . 0 3.
4. Other (itemize and describe amounts that exceed 25% of this item) . . . . . . . . . . . . . . 2168 . 171,282 4.
TEXT RCFD
---- ----
a. 3549: . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3549 N/A . . . . . 4.a
b. 3550: . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3550 N/A . . . . . 4.b
c. 3551: . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3551 N/A . . . . . 4.c
5. Total (sum of items 1 through 4) (must equal Schedule RC, item 11) . . . . . . . . . . . . . . 2160 . 210,224 5.
</TABLE>
MEMORANDUM
<TABLE>
<CAPTION> C430<-
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
RCFD
----
<S> <C> <C> <C>
1. Deferred tax assets disallowed for regulatory capital purposes . . . . . . . . . . . . . . . . 5610 . 0 M.1
</TABLE>
SCHEDULE RC-G - OTHER LIABILITIES
<TABLE>
<CAPTION>
C435 <-
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
RCON
----
<S> <C> <C> <C>
1. a. Interest accrued and unpaid on deposits in domestic offices (2) . . . . . . . . . . . . . 3665 . 31,204 1.a
b. Other expenses accrued and unpaid (includes accrued
income taxes payable) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3644 . 205,275 1.b
2. Net deferred tax liabilities (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3049 . 62,851 2.
3. Minority interest in consolidated subsidiares . . . . . . . . . . . . . . . . . . . . . . . . 3000 . 1,026 3.
4. Other (itemize and describe amounts that exceed 25% of this item) . . . . . . . . . . . . . . 2938 . 5,600 4.
TEXT RCFD
---- ----
a. 3552: UNEARNED INCOME . . . . . . . . . . . . . . . . . . . . 3552 4,720 . . . . . 4.a
b. 3553: . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3553 N/A . . . . . 4.b
c. 3554: . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3554 N/A . . . . . 4.c
5. Total (sum of items 1 through 4) must equal Schedule RC, item 20) . . . . . . . . . . . . . . 2930 . 305,956 5.
</TABLE>
- ---------------
(1) See discussion of deferred income taxes in Glossary entry on "income
taxes."
(2) For savings banks, include "dividends" accrued and unpaid on deposits.
<PAGE> 26
22
SCHEDULE RC-H - SELECTED BALANCE SHEET ITEMS FOR DOMESTIC OFFICES
<TABLE>
<CAPTION>
C440 <-
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
Domestic Offices
----------------------------
RCON
<S> <C> <C> <C> <C>
1. Customers' liability to this bank on acceptances outstanding . . . . . . . . . . . . . . . . . 2155. . 25,395 1.
2. Bank's liability on acceptances executed and outstanding. . . . . . . . . . . . . . . . . . . . 2920. . 25,395 2.
3. Federal funds sold and securities purchased under agreements to resell . . . . . . . . . . . . 1350. . 1,552,831 3.
4. Federal funds purchased and securities sold under agreements to repurchase . . . . . . . . . . 2800. . 2,575,787 4.
5. Other borrowed money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2850. . 2,206,217 5.
EITHER
6. Net due from own foreign offices, Edge and Agreement subsdiaries, and IBFs . . . . . . . . . . 2163. . N/A 6.
OR
7. Net due to own foreign offices, Edge and Agreement subsdiaries, and IBFs . . . . . . . . . . . 2941. . 676,617 7.
8. Total assets (excludes net due from foreign offices, Edge and Agreemnet
subsidiaries, and IBFs) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2192. . 15,153,221 8.
9. Total liabilities (excludes not due to foreign offices, Edge and Agreement
subsidiaries, and IBFs) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3129. . 13,393,605 9.
</TABLE>
MEMORANDUM (to be completed only by banks with IBFs and other "foreign" offices)
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
EITHER
1. Net due from the IBF of the domestic offices of the reporting bank . . . . . . . . . . . . . . 3051. . N/A M.1
OR
2. Net due to the IBF of the domestic offices of the reporting bank . . . . . . . . . . . . . . . 3059. . 0 M.2
</TABLE>
SCHEDULE RC-I - SELECTED ASSETS AND LIABILITIES OF IBFS
TO BE COMPLETED ONLY BY BANKS WITH IBFS AND OTHER "FOREIGN" OFFICES.
<TABLE>
<CAPTION>
C445 <-
Dollars Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
RCFN
----
<S> <C> <C> <C>
1. Total IBF assets of the consolidated bank (component of Schedule RC, item 12) . . . . . . . . 2133. . N/A 1.
2. Total IBF loans and lease financing receivables (component of Schedule RC-C, part I,
item 12, column A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2076. . N/A 2.
3. IBF commercial and industrial loans (component of Schedule RC-C, part I, item 4, column A) . . 2077. . N/A 3.
4. Total IBF liabilities (component of Schedule RC, item 21) . . . . . . . . . . . . . . . . . . 2898. . N/A 4.
5. IBF deposit liabilities due to banks, including other IBFs (component of Schedule
RC-E, part II, item 2 and 3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2379. . N/A 5.
6. Other IBF deposit liabilities (component of Schedule RC-E, part II, items 1, 4, 5, and 6) . . 2381. . N/A 6.
</TABLE>
<PAGE> 27
23
SCHEDULE RC-K - QUARTERLY AVERAGES (1)
<TABLE>
<CAPTION> C455 <-
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
ASSETS RDFD
----
1. Interest-bearing balances due from depository institutions . . . . . . . . . . . . . . . . . . 3381 . 35,820 1.
2. U.S. Treasury securities and U.S. Governemnt agency and corporation obligations . . . . . . . 3382 . 1,472,512 2.
3. Securities issued by states and political subdivisions in the U.S. . . . . . . . . . . . . . . 3383 . 73,014 3.
4. a. Other debt securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3647 . 143,644 4.a
b. Equity securities (includes investments in mutual funds and Federal Reserve stocks) . . . 3648 . 122,691 4.b
5. Federal funds sold and securities purchased under agreements to resell in domestic
offices of the bank and of its Edge and Agreement subsidiaries, and in IBFs . . . . . . . . . 3365 . 1,823,055 5.
6. Loans:
a. Loans in domestic offices: RCON
----
(1) Total loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3360 . 10,737,582 6.a.1
(2) Loans secured by real estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3385 . 6,606,729 6.a.2
(3) Loans to finance agricultural production and other loans to farmers . . . . . . . . . 3386 . 4,517 6.a.3
(4) Commercial and industrial loans . . . . . . . . . . . . . . . . . . . . . . . . . . . 3387 . 2,744,516 6.a.4
(5) Loans to individuals for household, family, andother personal expenditures . . . . . 3388 . 889,259 6.a.5
(6) Obligations (other than securities and leases) of states and political
subdivisions in the U.S. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3389 . 23,536 6.a.6
b. Total loans in foreign offices, Edge and Agreement subsidiaries, RCFN
----
and IBFs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3360 . 101,726 6.b
7. Assets held in trading RCFN
----
accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3401 . 84,532 7.
8. Lease financing receivables (net of unearned income) . . . . . . . . . . . . . . . . . . . . . 3484 . 468,538 8.
9. Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3368 . 15,845,877 9.
LIABILITIES
10. Interest-bearing transaction accounts in domestic offices (NOW accounts, ATS
accounts, and telephone and preauthorized transfer accounts) (exclude demand RCON
----
deposits) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3485 . 977,714 10.
11. Nontransaction accounts in domestic offices:
a. Money market deposit accoutns (MMDAs) . . . . . . . . . . . . . . . . . . . . . . . . . . 3486 . 1,750,021 11.a
b. Other savings deposits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3487 . 425,202 11.b
c. Time certificates of deposit of $ 100,000 or more . . . . . . . . . . . . . . . . . . . . 3345 . 288,950 11.c
d. All other time deposits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3469 . 1,936,196 11.d
12. Interest-bearing deposits in foreign offices, Edge and Agreement RCFN
----
subsidiaries, and IBFs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3404 . 1,430,020 12.
13. Federal funds pruchased and securities sold under agreements to repurchase in RCFD
----
domestic offices of the bank and of its Edge and Agreement subsidiaries, and in IBFs . . . . . 3353 . 2,503,604 13.
14. Other borrowed money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3355 . 2,460,743 14.
</TABLE>
- ----------------
(1) For all items, banks have the option of reporting either (1) an average of
daily figures for the quarter, or (2) an average of weekly figures (i.e.,
the Wednesday of each week of the quarter).
<PAGE> 28
24
SCHEDULE RC-L - OFF-BALANCE SHEET ITEMS
Please read carefully the instructions for the preparation of Schedule RC-L.
Some of the amounts reported in Schedule RC-L are regarded as volume
indicators and not necessarily as measures of risk.
<TABLE>
<CAPTION> C460 <-
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Unused comitments:
a. Revolving, open-end lines secured by 1-4 family residential properties, RCFD
----
e.g., home equity lines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3814 . 111,419 1.a
b. Credit card lines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3815 . 0 1.b
c. Commercial real estates, construction, and land development:
(1) Commitments to fund loans secured by real estate . . . . . . . . . . . . . . . . . . . 3816 . 10,367 1.c.1
(2) Commitments to fund loans not secured by real estate . . . . . . . . . . . . . . . . . 6550 . 0 1.c.2
d. Securities underwriting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3817 . 0 1.d
e. Other unused commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3818 . 2,842,102 1.e
2. Financial standby letters of credit and foreign office guarantees . . . . . . . . . . . . . . 3819 . 666,193 2
a. Amount of performance standby letters of credit RCFD
----
conveyed to others . . . . . . . . . . . . . . . . . . . . . . 3820 . . 256,255 . . . . . 2.a
3. Performance standby letters of credit and foreign office guarantees . . . . . . . . . . . . . 3821 . 50,861 3.
a. Amount of performance standby letters of credit RCFD
----
conveyed to others . . . . . . . . . . . . . . . . . . . . . . 3822 . . 13,653 . . . . . 3.a
4. Commercial and similar letters of credit . . . . . . . . . . . . . . . . . . . . . . . . . . . 3411 . 387,297 4.
5. Participations in acceptances (as described in the instructions) conveyed to others
by the reporting bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3428 . 0 5.
6. Participations in acceptances (as described in the instructions) acquired by the
reporting (nonaccepting) bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3429 . 0 6.
7. Securities borrowed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3432 . 1,918,647 7.
8. Securities lent (including customers' securities lent where the customer is
indemnified against loss by the reporting bank) . . . . . . . . . . . . . . . . . . . . . . . 3433 . 139,112 8.
9. Mortgages transferred (i.e., sold or swapped) with recourse that have been treated
as sold for Call Report purposes:
a. FNMA and FHLMC residential mortgage loan pools:
(1) Outstnading principal balance of mortgages transferred as of the
report date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3650 . 41,564 9.a.1
(2) Amount of resourse exposure on these mortgages as of the report date . . . . . . . . . 3651 . 41,564 9.a.2
b. Private (nongovernment-issued or-guaranteed) residential mortgage loan pools:
(1) Outstanding principal balance of mortgages transferred as of the report date . . . . . 3652 . 0 9.b.1
(2) Amount of recourse exposure on these mortgages as of the report date . . . . . . . . . 3653 . 0 9.b.2
c. Farmer Mac agricultural mortgage loan pools:
(1) Outstanding principal balance of mortgages transferred as of the report date . . . . . 3654 . 0 9.c.1
(2) Amount of recourse exposure on these mortgages as of the report date . . . . . . . . . 3655 . 0 9.c.2
10. When-issued securities:
a. Gross commitments to purchase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3434 . 0 10.a
b. Gross commitments to sell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3435 . 0 10.b
11. Interest rate contracts (exclude when-issued securities):
a. National value of interest rate swaps . . . . . . . . . . . . . . . . . . . . . . . . . . 3450 . 2,091,207 11.a
b. Futures and forward contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3823 . 0 11.b
c. Option contracts (e.g., options on Treasuries):
(1) Written option contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3824 . 552,027 11.c.1
(2) Purhcased option contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3825 . 8,846,593 11.c.2
12. Foreign exchange rate contracts:
a. National value of exchange swaps (e.g., cross-currency swaps) . . . . . . . . . . . . . . 3826 . 0 12.a
b. Commitments to purhcase foreign currencies and U.S. dollar exchange (spot,
forward, and futures) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3415 . 742,340 12.b
c. Option contracts (e.g., options on foreign currency):
(1) Written option contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3827 . 8,945 12.c.1
(2) Purchased option contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3828 . 79,536 12.c.2
</TABLE>
<PAGE> 29
25
SCHEDULE RC-L - CONTINUED
<TABLE>
<CAPTION>
C461 <-
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
13. Contracts on other commodities and equities: RCFD
----
a. National value of other swaps (e.g., oil swaps) . . . . . . . . . . . . . . . . . . . . . 3829 . 0 13.a
b. Futures and forward contracts (e.g., stock index commodity - precious
metals, wheat, cotton, livestock - contracts) . . . . . . . . . . . . . . . . . . . . . . 3830 . 0 13.b
c. Option contracts (e.g., options on commodities, individual stocks and stock indexes):
(1) Written option contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3831 . 0 13.c1
(2) Purchased option contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3832 . 0 13.c2
14. All other off-balance sheet liabilities (itemize and describe each component
of this item over 25% of Schedule RC, item 28, "Total equity capital") . . . . . . . . . . . . 3430 . 0 14.
TEXT RCFD
---- ----
a. 3555: . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3555 . . N/A . . . . . 14.a
b. 3556: . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3556 . . N/A . . . . . 14.b
c. 3557: . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3557 . . N/A . . . . . 14.c
d. 3558: . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3558 . . N/A . . . . . 14.d
15. All other off-balance sheet assets (itemize and describe each component
of this item over 25% of Schedule RC, item 28, "Total equity capital") . . . . . . . . . . . . 5591 . 0 15.
TEXT RCFD
---- ----
a. 5592: . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5592 . . N/A . . . . . 15.a
b. 5593: . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5593 . . N/A . . . . . 15.b
c. 5594: . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5594 . . N/A . . . . . 15.c
d. 5595: . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5595 . . N/A . . . . . 15.d
</TABLE>
MEMORANDA
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Loans originated by the reporting bank that have been sold or participated to others RCFD
during the calendar quarter ending with the report date (exclude the portions of such ----
loans retained by the reporting bank; see instructions for other exclusions) . . . . . . . . . 3431 . 22,509 M.1
2. Loans purchased by the reporting bank during the calendar quarter ending with the
report date (see instructions for exclusions) . . . . . . . . . . . . . . . . . . . . . . . . 3488 . 11,321 M.2
3. Unused commitments with an original maturity exceeding one year that are reported
in Schedule RC-L, items 1.a through i.e., above (report only the unused portions of
commitments that are fee paid or otherwise legally binding) . . . . . . . . . . . . . . . . . . 3833 . 2,568,602 M.3
a. Participations in commitments with an original RCFD
----
maturity exceeding one year conveyed to other . . . . . . . . 3834 . . 112,947 . . . . . M.3a
4. To be completed only by banks iwth $1 billion or more in total assets:
Standby letters of credit and foreign office guarantees (both financial and
performance) issued to non-U.S. addressees (domicile) included in Schedule RC-L,
items 2 and 3, above . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3377 . 449 M.4
5. To be completed for the September report only:
Installment loans to individuals for household, family and other personal
expenditures that have been securitized and sold without recourse (with servicing
retained, amount outstanding by type of loan:
a. Loans to purchase private passenger automobiles . . . . . . . . . . . . . . . . . . . . . 2741 . N/A M.5.a
b. Credit cards and related plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2742 . N/A M.5.b
c. All other consumer installment credit (including mobile home loans) . . . . . . . . . . . 2743 . N/A M.5.c
</TABLE>
<PAGE> 30
26
SCHEDULE RC-M - MEMORANDA
<TABLE>
<CAPTION>
C465 <-
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Extensions of credit by the reporting bank to its executive officers, directors,
principal shareholders, and their related interests as of the report date:
a. Aggregates amount of al extensions of credit to all executive officers, directors, RCFD
principal shareholders, and their related interests . . . . . . . . . . . . . . . . . . . 6164. . 11,845 1.a
b. Number of executive officers, directors, and principal
shareholders to whom the amount of all extensions of
credit by the reporting bank (including extensions of
credit to related interests) equals or exceeds the
lesser of $ 500,000 or 5 percent of total capital RCFD Number
---- ------
as defined for this purpose in agency regulations . . . . . . 6165 . . 5 . . . . . 1.b
2. Federal funds sold and securities purchased under agreements to resell with U.S.
branches and agencies of foreign banks (1) (included in Schedule RC,
items 3.a and 3.b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3405. . 0 2.
3. Not applicable.
4. Outstanding principal balance of 1-4 family residential mortgage loans serviced for
others (include both retained servicing and purchased servicing):
a. Mortgages serviced under a GNMA contract . . . . . . . . . . . . . . . . . . . . . . . . . 5500. . 0 4.a
b. Mortgages serviced under a FHLMC contract:
(1) Serviced with recourse to servicer . . . . . . . . . . . . . . . . . . . . . . . . . . 5501. . 0 4.b.1
(2) Serviced without recourse to servicer . . . . . . . . . . . . . . . . . . . . . . . . 5502. . 0 4.b.2
c. Mortgages serviced under a FNMA contract:
(1) Serviced under a regular option contract . . . . . . . . . . . . . . . . . . . . . . . 5503. . 0 4.c.1
(2) Serviced under a special option contract . . . . . . . . . . . . . . . . . . . . . . . 5504. . 0 4.c.2
d. Mortgages serviced under other servicing contracts . . . . . . . . . . . . . . . . . . . . 5505. . 0 4.d
5. To be completed only by banks with $1 billion or more in total assets:
Customers' liability to this bank on acceptances outstanding (sum of item 5.a and 5.b
must equal Schedule RC, item 9):
a. U.S. addresses (domicile) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2103. . 21,386 5.a
b. Non-U.S. addressees (domicile) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2104. . 10,949 5.b
6. Intangible assets:
a. Mortgage servicing rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3164. . 0 6.a
b. Other identifiable intangible assets:
(1) Purchased credit card relationship . . . . . . . . . . . . . . . . . . . . . . . . . . 5506. . 0 6.b.1
(2) All other identifiable intangible assets . . . . . . . . . . . . . . . . . . . . . . . 5507. . 613 6.b.2
c. Goodwill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3163. . 39,729 6.c
d. Total (sum of items 6.a through 6.c) (must equal Schedule RC, item 10) . . . . . . . . . . 2143. . 40,342 6.d
e. Intangible assets that have been grandfathered for regulatory capital purposes . . . . . . 6442. . 0 6.a
YES NO
7. Does your bank have any mandatory convertible debt that is part of your primary or --- --
secondary capital? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6167. . X 7.
If yes, complete items 7.a through 7.e:
a. Total equity contract notes, gross . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3290. . N/A 7.a
b. Common or perpetual preferred stock dedicated to redeem the above notes . . . . . . . . . 3291. . N/A 7.b
c. Total equity commitment notes, gross . . . . . . . . . . . . . . . . . . . . . . . . . . . 3293. . N/A 7.c
d. Common or perpetual preferred stock dedicated to redeem the above notes . . . . . . . . . 3294. . N/A 7.d
e. Total (item 7.a minus 7.b plus 7.c minus 7.d) . . . . . . . . . . . . . . . . . . . . . . 3295. . N/A 7.e
</TABLE>
- ----------
(1) Do not report federal funds sold and securities purchased under agreement
to resell with other commercial banks in the U.S. in this item.
<PAGE> 31
27
SCHEDULE RC-M - CONTINUED
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
8. a. Other real estate owned: RCFD
----
(1) Director and indirect investments in real estate ventures . . . . . . . . . . . . . . 5372. . 0 8.a.1
(2) All other real estate owned:
RCON
----
(a) Construction and land development in domestic offices . . . . . . . . . . . . . . 5508. . 92 8.a.2a
(b) Farmland in domestic offices . . . . . . . . . . . . . . . . . . . . . . . . . . 5509. . 0 8.a.2b
(c) 1-4 family residential properties in domestic offices . . . . . . . . . . . . . . 5510 . . 3,893 8.a.2c
(d) Multifamily (5 or more) residential properties in domestic offices . . . . . . . 5511 . . 0 8.a.2d
(e) Nonfarm nonresidential properties in domestic offices . . . . . . . . . . . . . . 5512 . . 13,953 8.a.2e
(f) In foreign RCFN
----
offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5513 . . 0 8.a.2f
(3) Total (sum of items 8.a.(1) and 8.a.(2)) RCFD
----
(must equal Schedule RC, item 7) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2150 . . 17,938 8.a.3
b. Investment in unconsolidated subsidiaries and associated companies:
(1) Direct and indirect investments in real estate ventures . . . . . . . . . . . . . . . 5374 . . 0 8.b.1
(2) All other investments in unconsolidated subsidiaries and associated companies. . . . . 5375 . . 2,698 8.b.2
(3) Total (sum of items 8.b.(1) and 8.b.(2)) (must equal Schedule RC, item 8). . . . . . . 2130 . . 2,698 8.b.3
c. Total assets of unconsolidated subsidiaries and associated companies . . . . . . . . . . . 5376 . . 2,934 8.c
9. Noncumulative perpetual preferred stock and related surplus included in Schedule RC,
item 23, "Perpetual preferred stock and related surplus" . . . . . . . . . . . . . . . . . . . 3778 . . 0 9.
</TABLE>
MEMORANDUM
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Interbank holdings of capital instruments (to be completed for the December report only):
a. Reciprocal holdings of banking organizations' capital instruments . . . . . . . . . . . . . 3836. . 0 M.1.a
b. Nonreciprocal holdings of banking organizations' capital instruments . . . . . . . . . . . 3837. . 0 M.1.b
</TABLE>
<PAGE> 32
28
SCHEDULE RC-N - PAST DUE AND NONACCRUAL LOANS, LEASES, AND OTHER ASSETS
THE FFIEC REGARDS THE INFORMATION IN ALL OF MEMORANDUM ITEM 1, IN ITEMS 1
THROUGH 10, COLUMN A, AND IN MEMORANDUM ITEMS 2 AND 3, COLUMN A, AS
CONFIDENTIAL.
C470 <-
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
(Column A) (Column B) (Column C)
Past due 30 through 89 Past due 90 days or more Nonaccrual
Days and still accruing and still accruing
----------------------- ------------------------ -----------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1. Loans secured by real estate: RCFD RCFD RCFD
---- ---- ----
a. To U.S. addressees (domicile) . . . . . . 1245 . . 32,267 1246 . . 2,466 1247 . . 24,195 1.a
b. To non-U.S. addressees (domicile) . . . . . 1248 . . 0 1249 . . 0 1250 . . 0 1.b
2. Loans to go depository institutions and
acceptances of other banks:
a. To U.S. banks and other U.S.
depository institutions . . . . . . . . . . 5377 . . 0 5378 . . 0 5379 . . 0 2.a
b. To foreign banks . . . . . . . . . . . . . 5380 . . 0 5381 . . 0 5382 . . 0 2.b
3. Loans to finance agricultural production
and other loans to farmers . . . . . . . . . . 1594 . . 0 1597 . . 0 1583 . . 0 3.
4. Commercial and industrial loans:
a. To U.S. addressees (domicile) . . . . . . 1251 . . 36,401 1252 . . 27 1253 . . 20,996 4.a
b. To non-U.S. addressees (domicile) . . . . . 1254 . . 0 1255 . . 0 1256 . . 0 4.b
5. Loans to individuals for household,
family, and other personal expenditures:
a. credit cards and related plans . . . . . . 5383 . . 224 5384 . . 480 5385 . . 0 5.a
b. Other (includes single payment,
installment, and all student loans) . . . . 5386 . . 5,214 5387 . . 1,065 5388 . . 4,159 5.b
6. Loans to foreign governments and
official institutions . . . . . . . . . . . . 5389 . . 0 5390 . . 0 5391 . . 0 6.
7. All other loans . . . . . . . . . . . . . . . 5459 . . 6,350 5460 . . 157 5461 . . 0 7.
8. Lease financing receivables:
a. Of U.S. addressees (domicile) . . . . . . 1257 . . 0 1258 . . 0 1259 . . 8,877 8.a
b. Of non-U.S. addressees (domicile) . . . . 1271 . . 0 1272 . . 0 1791 . . 0 8.b
9. Debt securities and other assets (exclude
other real estate owned and other
repossessed assets) . . . . . . . . . . . . . 3505 . . 0 3506 . . 0 3507 . . 467 9.
</TABLE>
================================================================================
Amounts reported in items 1 through 8 above include guaranteed and unguaranteed
portions of past due and nonaccrual loans and leases. Report in item 10 below
certain guaranteed loans and leases that have already been included in the
amounts reported in items 1 through 8.
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C> <C>
10. Loans and leases reported in items 1
through 8 above which are wholly or
partially guaranteed by the U.S. RCFD RCFD RCFD
---- ---- ----
Government . . . . . . . . . . . . . . . . . . . . 5612 . . 1,109 5613 . . 237 5614 . . 242 10.
a. Guaranteed portion of loans and leases
included in item 10 above . . . . . . . . . . 5615 . . 830 5616 . . 123 5617 . . 181 10.a
</TABLE>
<PAGE> 33
29
SCHEDULE RC-N - CONTINUED
MEMORANDA C473 <--
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1. Restructured loans and leases included in RCFD RCFD RCFD
---- ---- ----
Schedule RC-N, items 1 through 8, above . . . . . 1658 . . 0 1659 . . 0 1661 . . 0 M.1
2. Loans to finance commercial real estate,
construction, and land development
activities (not secured by real estate)
included in Schedule RC-N, items 4 and
7, above . . . . . . . . . . . . . . . . . . . . . 6558 . . 0 6559 . . 0 6560 . . 0 M.2
3. Loans secured by real estate in domestic
offices (included in Schedule RC-N, item
1, above: RCON RCON RCON
---- ---- ----
a. Construction and land development . . . . . . 2759 . . 1,619 2769 . . 0 3492 . . 663 M.3a
b. Secured by farmland . . . . . . . . . . . . . 3493 . . 29 3494 . . 0 3495 . . 0 M.3b
c. Secured by 1-4 family residential
properties:
(1) Revolving, open-end loans secured
by 1-4 family residential properties
and extended under lines of credit . . . . 5398 . . 78 5399 . . 8 5400 . . 0 M.3c1
family residential properties . . . . . . 5401 . . 16,503 5402 . . 2,428 5403 . . 7,022 M.3c2
d. Secured by multifamily (5 or more)
residential properties . . . . . . . . . . . . 3499 . . 2,037 3500 . . 0 3501 . . 1,793 M.3d
e. Secured by nonfarm nonresidential
properties . . . . . . . . . . . . . . . . . . 3502 . . 12,001 3503 . . 30 3504 . . 14,717 M.3e
</TABLE>
SCHEDULE RC-O - OTHER DATA FOR DEPOSIT INSURANCE ASSESSMENTS
An amended Certified Statement should be submitted to the FDIC if the amounts
reported in items 1 through 9 of this schedule are amended after the semiannual
Certified Statement originally covering this report date has been filed with
the FDIC.
C475 <--
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1. Unposted debits (see instructions): RCON
----
a. Actual amount of all unposted debits . . . . . . . . . . . . . . . . . . . . . . . . . . . 0030 . . N/A 1.a
OR
b. Separate amount of unposted debits:
(1) Actual amount of unposted debits to demand deposits . . . . . . . . . . . . . . . . . 0031 . . 0 1.b1
(2) Actual amount of unposted debits to time and savings deposits (1) . . . . . . . . . . 0032 . . 0 1.b2
2. Unposted credits (see instructions):
a. Actual amount of all unposted credits . . . . . . . . . . . . . . . . . . . . . . . . . . 3510 . . N/A 2.a
OR
b. Separate amount of unposted credits:
(1) Actual amount of unposted credits to demand deposits . . . . . . . . . . . . . . . . . 3512 . . 0 2.b1
(2) Actual amount of unposted credits to time and savings deposits (1) . . . . . . . . . . 3514 . . 0 2.b2
3. Uninvested trust funds (cash) held in bank's own trust department (not included in
total deposits in domestic offices) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3520 . . 0 3.
4. Deposits of consolidated subsidiaries in domestic offices and in insured branches in
Puerto Rico and U.S. territories and possessions (not included in total deposits):
a. Demand deposits of consolidated subsidiaries . . . . . . . . . . . . . . . . . . . . . . . 2211 . . 6,372 4.a
b. Time and savings deposits (1) of consolidated subsidiaries . . . . . . . . . . . . . . . . 2351 . . 0 4.b
c. Interest accrued and unpaid on deposits of consolidated subsidiaries . . . . . . . . . . . 5514 . . 0 4.c
5. Deposits of insured branches in Puerto Rico and U.S. territories and possessions:
a. Demand deposits in insured branches (included in Schedule RC-E, Part II) . . . . . . . . . 2229 . . 0 5.a
b. Time and savings deposits (1) in insured branches (included in Schedule RC-E,
Part II) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2383 . . 0 5.b
c. Interest accrued and unpaid on deposits in insured branches (included in
Schedule RC-G, item 1.b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5515 . . 0 5.c
</TABLE>
- -------------
(1) For FDIC insurance assessment purposes, "time and savings deposits"
consists of nontransaction accounts and all transaction accounts other
than demand deposits.
<PAGE> 34
30
SCHEDULE RC-O - CONTINUED
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Item 6 is not applicable to state nonmember banks that have not been authorized by the
Federal Reserve to act as pass-through correspondents.
6. Reserve balances actually passed through to the Federal Reserve by the reporting bank on
behalf of its respondent depository institutions that are also reflected as deposit
liabilities of the reporting bank:
RCON
a. Amount reflected in demand deposits (included in Schedule RC-E, Part I, ----
memorandum item 4.a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2314 . . 631 6.a
b. Amount reflected in time and savings deposits (1) (included in Schedule RC-E,
Part I, Memorandum item 4.b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2315 . . 0 6.b
7. Unamortized premiums and discounts on time and savings deposits:(1)
a. Unamortized premiums . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5516 . . 1,869 7.a
b. Unamortized discounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5517 . . 0 7.b
8. To be completed by banks with "Oakar deposits."
Total "Adjusted Attributable Deposits" of all institutions acquired under
Section 5(d)(3) of the Federal Deposit Insurance Act (from most recent FDIC Oakar
Transaction Worksheet(s)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5518 . . 2,377,306 8.
9. Deposits in lifeline accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5596 . . . . . . . . 9.
</TABLE>
- -------------------
(1) For FDIC insurance assessment purposes, "time and savings deposits"
consists of nontransaction accounts and all transaction accounts other
than demand deposits.
MEMORANDA
<TABLE>
<CAPTION>
(to be completed each quarter except as noted) Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Total deposits in domestic offices of the bank
(sum of Memorandum items 1.a.(1) and 1.b.(1) must equal Schedule RC, item 13.a):
RCON
a. Deposit accounts of $ 100,000 or less: ----
(1) Amount of deposit accounts of $ 100,000 or less . . . . . . . . . . . . . . . . . . . 2702 . . 4,868,233 M.1a1
(2) Number of deposit accounts of $ 100,000 or less RCON Number
---- ------
(to be completed for the June report only) . . . .3779 . . N/A . . . . . . M.1a2
b. Deposit accounts of more than $ 100,000:
(1) Amount of deposit accounts of more than $ 100,000 . . . . . . . . . . . . . . . . . . 2710 . . 3,055,689 M.1b1
(2) Number of deposit accounts of more than RCON Number
---- ------
$ 100,000 . . . . . . . . . . . . . . . . . . . 2722 . . 6,100 . . . . . . M.1b2
2. Estimated amount of uninsured deposits in domestic offices of the bank:
a. An estimate of your bank's uninsured deposits can be determined by multiplying the number of
deposit account of more than $ 100,000 reported in Memorandum item 1.b.(2) above by $ 100,000
and subtracting the result from the amount of deposit accounts of more than $ 100,000 reported
in Memorandum item 1.b.(1) above.
Indicate in the appropriate box at the right whether your bank has a method of
procedure for determining a better estimate of uninsured deposits than the RCON YES NO
---- --- --
estimate described above . . . . . . . . . . . . . . . . . . . . . . . . . . 6861. . X M.2.a
b. If the box marked YES has been checked, report the estimate of uninsured deposits
determined by using your bank's method or procedure . . . . . . . . . . . . 5597. . N/A M.2.b
</TABLE>
C477 <-
________________________________________________________________________________
Person to whom questions about the Reports of Condition and Income should be
directed:
612 667 9895
BRIAN JARZYNSKI, SUPERVISOR REG REPORTING
- --------------------------------------------------------------------------------
Person and Title (TEXT 8901) Area code and phone number (TEXT 8902)
<PAGE> 35
31
SCHEDULE RC-R - RISK-BASED CAPITAL
This schedule must be completed by all banks as follows: Banks that reported
total assets of $1 billion or more in Schedule RC, item 12, for June, 30, 1992,
must complete items 2 through 9 and Memorandum item 1. Banks with assets of
less than $1 billion must complete items 1 through 3 below or Schedule RC-R in
its entirety, depending on their response to item 1 below.
C480<-
<TABLE>
<S> <C> <C> <C> <C> <C>
1. Test for determining the extent to which Schedule RC-R must be completed. To be
completed only by banks with total assets of less than $1 billion. Indicate in the
appropriate box at the right whether the bank has total capital greater than or equal RCFD YES NO
to eight percent of adjusted total assets . . . . . . . . . . . . . . . . . . . . . . 6056 N/A 1.
</TABLE>
For purposes of this test, adjusted total assets equals total assets
less cash, U.S. Treasuries, U.S. Government agency obligations, and 80 percent
of U.S. Government-sponsered agency obligations plus the allowance for loan and
lease losses and selected off-balance sheet items as reported on Schedule RC-L
(see instructions).
If the box marked YES has been checked, then the bank only has to complete
items 2 and 3 below. If the box marked NO has been checked, the bank must
complete the remainder of this schedule.
A NO response to item 1 does not necessarily mean that the bank's actual
risk-based capital ratio is less than eight percent or that the bank is not in
compliance with the risk-based capital guidelines.
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ---------------------------------------------------------------------------------------------------------------------------
(Column A) (Column B)
Subordinated Debt (1) and
Items 2 and 3 are to be completed by all banks. Intermediate Term Other Limited-Life
Preferred Stock Capital Instruments
------------------------- -------------------
<S> <C> <C> <C> <C>
2. Subordinated debt(1) and other limited-life capital
instruments (original weighted average maturity of
at least five years) with a remaining maturity of: . . . . RCFD RCFD
a. One year or less . . . . . . . . . . . . . . . . . . . . 3780 . . 8 3786. . 0 2.a
b. Over one year through two years . . . . . . . . . . . . 3781 . . 8 3787. . 0 2.b
c. Over two years through three years . . . . . . . . . . . 3782 . . 8 3788. . 0 2.c
d. Over three years through four years . . . . . . . . . . 3783 . . 1,508 3789. . 0 2.d
e. Over four years through five years . . . . . . . . . . . 3784 . . 8 3790. . 0 2.e
f. Over five years . . . . . . . . . . . . . . . . . . . . 3785 . . 160,178 3791. . 0 2.f
3. Total qualifying capital (i.e., Tier 1 and Tier 2 Capital) allowable under the RCFD
risk-based capital guidelines . . . . . . . . . . . . . . . 3792 1,320,492 3.
</TABLE>
Items 4-9 and Memorandum item 1 are to be completed by
banks that answered NO to item 1 above and by banks
with total assets of $1 billion or more.
<TABLE>
<CAPTION>
(Column A) (Column B)
Assets Recorded on the Credit Equivalent Amount
Balance Sheet of Off-Balance Sheet Items (2)
---------------------- ------------------------------
<S> <C> <C> <C> <C> <C> <C>
4. Assets and credit equivalent amounts of off-balance
sheet items assigned to the Zero percent risk category:
a. Assets recorded on the balance sheet:
(1) Securities issued by, other claims on, and
claims unconditionally guaranteed by, the U.S.
Government and its agencies and other OECD . . . . . RCFD RCFD
---- ----
central governments . . . . . . . . . . . . . . . . 3794. . 185,630 . . . . . 4.a.1
(2) All other . . . . . . . . . . . . . . . . . . . . . 3795. . 289,471 . . . . . 4.a.2
b. Credit equivalent amount of off-balance sheet items . . . . . 3796. . 0 4.b
- ------------------
</TABLE>
(1) Exclude mandatory convertible debt reported in Schedule RC-M, item 7.e,
"Total."
(2) Do not report in column B the risk-weighted amount of assets reported in
column A.
<PAGE> 36
32
SCHEDULE RC-R - CONTINUED
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- --------------------------------------------------------------------------------------------------------------------------------
(Column A) (Column B)
Assets Recorded on the Credit Equivalent Amount
Balance Sheet of Off-Balance Sheet Items (1)
---------------------- ------------------------------
<S> <C> <C> <C> <C> <C>
5. Assets and credit equivalent amounts of off-balance
sheet items assigned to the 20 percent risk category:
a. Assets recorded on the balance sheet:
(1) Claims conditionally guaranteed by the U.S.
Government and its agencies and other OECD RCFD RCFD
---- ----
central governments . . . . . . . . . . . . . . . . 3798. . 1,659,585 . . . . . 5.a.1
(2) Claims collateralized by securities issued by
the U.S. Government and its agencies and other
OECD central governments; by securities issued
by U.S. Government-sponsored agencies; and by
cash on deposit . . . . . . . . . . . . . . . . . . 3799. . 0 . . . . . 5.a.2
(3) All other . . . . . . . . . . . . . . . . . . . . . 3800. . 3,822,572 . . . . . 5.a.3
b. Credit equivalent amount of off-balance sheet items . . . . . . 3801. . 454,656 5.b
6. Assets and credit equivalent amounts of off-balance
sheet items assigned to the 50 percent risk category:
a. Assets recorded on the balance sheet . . . . . . . . . . 3802. . 3,938,001 . . . . . 6.a
b. Credit equivalent amount of off-balance sheet items . . . . . . 3803. . 134,908 6.b
7. Assets and credit equivalent amounts of off-balance
sheet items assigned to the 100 percent risk category:
a. Assets recorded on the balance sheet . . . . . . . . . . 3804. . 5,558,297 . . . . . 7.a
b. Credit equivalent amount of off-balance sheet items . . . . . . 3805. . 1,694,375 7.b
8. On-balance sheet values (or portions thereof) of
interest rate, foreign exchange rate, and commodity
contracts which have a capital assessment for their
off-balance sheet exposure under the risk-based capital
guidelines and those contracts (e.g., futures contracts)
excluded from the calculation of the risk-based capital
ratio (exclude margin accounts and accrued receivables
from this item) . . . . . . . . . . . . . . . . . . . . . . 3806. . 19,973 . . . . . 8.
9. Total assets recorded on the balance sheet (sum of
items 4.a, 5.a, 6.a, 7.a, and 8, column A) (must equal
Schedule RC, item 12 plus items 4.b and 4.c, plus
Schedule RC-B, item 6.a.(3), column A) . . . . . . . . . . 3807. . 15,473,529 . . . . . 9.
</TABLE>
MEMORANDUM
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- --------------------------------------------------------------------------------------------------------------------------------
(Column A) (Column B)
Notional Principal Replacement Cost
Value (Market Value)
------------------ ----------------
<S> <C> <C> <C> <C> <C>
1. Notional principal value and replacement cost of
interest rate and foreign exchange rate contracts
(in column B, report only those contracts with a
positive replacement cost): RCFD RCFD
---- ----
a. Interest rate contracts (exclude futures contracts) . . . . . . 3808. . 27,748 M.1.a
(1) With a remaining maturity of one year or less . . . 3809. . 9,005,988 . . . . . M.1.a1
(2) With a remaining maturity of over one year . . . . 3810. . 1,831,812 . . . . . M.1.a2
b. Foreign exchange rate contracts (exclude contracts
with an original maturity of 14 days or less and
futures contracts) . . . . . . . . . . . . . . . . . . . . . . . . . 3811. . 5,875 M.1.b
(1) With a remaining maturity of one year or less . . . 3812. . 631,953 . . . . . M.1.b1
(2) With a remaining maturity of over one year . . . . . 3813. . 15,558 . . . . . M.1.b2
</TABLE>
- ------------------
(1) Do not report in column B the risk-weighted amount of assets reported in
column A.
<PAGE> 37
33
OPTIONAL NARRATIVE STATEMENT CONCERNING THE AMOUNTS
REPORTED IN THE REPORTS OF CONDITION AND INCOME
at close of business on December 31, 1993
Norwest Bank Minnesota, N.A. Minneapolis MN
- ---------------------------- ----------- --------
Legal Title of Bank City State
The management of the reporting bank may, if it wishes, submit a brief
narrative statement on the amounts reported in the Reports of Condition and
Income. This optional statement will be made available to the public, along
with the publicly available data in the Reports of Condition and Income, in
response to any request for individual bank report data. However, the
information reported in column A and in all of Memorandum item 1 of Schedule
RC-N is regarded as confidential and will not be released to the public. BANKS
CHOOSING TO SUBMIT THE NARRATIVE STATEMENT SHOULD ENSURE THAT THE STATEMENT
DOES NOT CONTAIN THE NAMES OR OTHER IDENTIFICATIONS OF INDIVIDUAL BANK
CUSTOMERS, REFERENCES TO THE AMOUNTS REPORTED IN THE CONFIDENTIAL ITEMS IN
SCHEDULE RC-N, OR ANY OTHER INFORMATION THAT THEY ARE NOT WILLING TO HAVE MADE
PUBLIC OR THAT WOULD COMPROMISE THE PRIVACY OF THEIR CUSTOMERS. Banks choosing
not to make a statement may check the "No comment" box below and should make no
entries of any kind in the space provided for the narrative statement; i.e., DO
NOT enter in this space such phrases as "No statement," "Not applicable,"
"N/A," "No comment," and "None."
The optional statement must be entered on this sheet. The statement should not
exceed 100 words. Further, regardless of the number of words, the statement
must not exceed 750 characters, including punctuation, indentation, and
standard spacing between words and sentences. If any submission should exceed
750 characters, as defined, it will be truncated at 750 characters with no
notice to the submitting bank and the truncated statement will appear as the
bank's statement both on agency computerized records and in computer- file
releases to the public.
All information furnished by the bank in the narrative statement must be
accurate and not misleading. Appropriate efforts shall be taken by the
submitting bank to ensure the statement's accuracy. The statement must be
signed, in the space provided below, by a senior officer of the bank who therby
attests to its accuracy.
If, subsequent to the original submission, material changes are submitted for
the data reported in the Reports of Conditions and Income, the existing
narrative statement will be deleted from the files, and from disclosure; the
bank, at its option, may replace it with a statement, under signature,
appropriate to the amended data.
The optional narrative statement will appear in agency records and in release
to the public exactly as submitted (or amended as described in the preceding
paragraph) by the management of the bank (except for the truncation of
statements exceeding the 750- character limit described above). THE STATEMENT
WILL NOT BE EDITED OR SCREENED IN ANY WAY BY THE SUPERVISORY AGENCIES FOR
ACCURACY OR RELEVANCE. DISCLOSURE OF THE STATEMENT SHALL NOT SIGNIFY THAT ANY
FEDERAL SUPERVISORY AGENCY HAS VERIFIED OR CONFIRMED THE ACCURACY OF THE
INFORMATION CONTAINED THEREIN. A STATEMENT TO THIS EFFECT WILL APPEAR ON ANY
PUBLIC RELEASE OF THE OPTIONAL STATEMENT SUBMITTED BY THE MANAGEMENT OF THE
REPORTING BANK.
[C471 C472]
No comment: X (RCON 6979)
BANK MANAGEMENT STATEMENT (Please type or print clearly) (TEXT 6980):
/s/ 1/28/94
---------------------- -----------------
Signature of Executive Date of Signature
Officer of Bank
<PAGE> 38
34
THIS PAGE IS TO BE COMPLETED BY ALL BANKS
OMB No. For OCC: 1557- 0081
OMB No. For FDIC: 3064- 0052
OMB No. For Federal Reserve: 7100- 0036
Expiration Date: 02/28/95
SPECIAL REPORT
(Dollar Amounts in Thousands)
CLOSE OF BUSINESS DATE: FDIC Certificate Number:
December 31, 1993 05208 C700 <-
- ------------------------------------------------------------------------------
LOANS TO EXECUTIVE OFFICERS (Complete as of each Call Report Date)
- ------------------------------------------------------------------------------
The following information is required by Public Laws 90-94 and 102-242, but
does not constitute a part of the Report of Condition. With each Report of
Condition, these Laws require all banks to furnish a report of all loans or
other extensions of credit to its executive officers made since the date of the
previous Report of Conditions. Data regarding individual loans or other
extensions of credit are not required. If no such loans or other extions of
credit were made during the period, insert "none" against subitem (a).
(Exclude the first $5,000 of indebtedness of each executive officer under bank
credit card plan.) See Sections 215.2 and 215.3 of Title 12 of the Code of
Federal Regulations (Federal Reserve Board Regulation O) for the definitions of
"executive officer" and "extension of credit," respectively. Exclude loans and
other extensions of credit to directors and principal shareholders who are not
executive officers.
<TABLE>
<S> <C> <C> <C> <C>
a. Number of loans made to executive officers since the previous Call report date 3561 1 a.
b. Total dollar amount of above loans (in thousands of dollars) 3562 530 b.
c. Range of interest charged on above loans (example: 9-3/4% = 9.75) 7701/7702 4.00% to 4.00% c.
</TABLE>
/s/ 1/28/94
- ------------------------------ ---------------------
SIGNATURE AND TITLE OF OFFICER DATE(Month, Day, Year)
AUTHORIZED TO SIGN REPORT
- -------------------------------------- ----------------------------------
NAME AND TITLE OF PERSON TO WHOM AREA CODE/PHONE NUMBER (TEXT 8904)
INQUIRIES MAY BE DIRECTED (TEXT 8903) 612 667 9895
BRIAN JARZYNSKI, SUPERVISOR REG REPORTING
- --------------------------------------------------------------------------------
