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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 25, 1997
BANKBOSTON CORPORATION
(Exact name of registrant as specified in its charter)
Massachusetts 1-6522 04-2471221
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
100 Federal Street, Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (617) 434-2200
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Item 5. Other Events.
BankBoston Corporation ("the Corporation") has filed a shelf registration
statement on Form S-3 (Registration No. 333-38135) (the "Registration
Statement") pursuant to Rule 415 under the Securities Act of 1933, as amended
(the "Act"), covering one or more proposed issuances of (i) debt securities and
warrants to purchase debt securities, (ii) shares of preferred stock, which may
be issued in the form of depositary shares evidenced by depositary receipts, and
warrants to purchase shares of preferred stock and (iii) shares of common stock
and warrants to purchase shares of common stock. The Registration Statement, as
amended by Pre-Effective Amendment No. I thereto, was declared effective by the
Securities and Exchange Commission (the "Commission") on Novmeber 21, 1997. On
November 28, 1997, the Corporation filed a Prospectus Supplement, dated November
25, 1997, with the Commission pursuant to Rule 424(b)(2) under the Act in
connection with the establishment of a program to offer up to $1 billion
aggregate initial offering price of its senior and subordinated Medium-Term
Notes (the "Notes"). The Notes, which may be offered from time to time, will be
issued under the above Registration Statement and will be due nine months or
more from the date of issue. By filing this Current Report on Form 8-K, the
Corporation is incorporating by reference into the above-referenced Registration
Statement the information contained herein relating to the Notes.
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
1 Distribution Agreement, dated November 25, 1997, among the Corporation
and Morgan Stanley & Co. Incorporated, Bear, Stearns & Co. Inc., Chase
Securities Inc., Credit Suisse First Boston Corporation, Lehman Brothers
Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Salomon
Brothers Inc and BancBoston Securities Inc. relating to the Notes.
4(a) Form of global certificate representing the senior fixed rate Notes.
4(b) Form of global certificate representing the senior floating rate Notes.
4(c) Form of global certificate representing the subordinated fixed rate
Notes.
4(d) Form of global certificate representing the subordinated floating rate
Notes.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
BANKBOSTON CORPORATION
Dated: December 1, 1997 /s/ Gary A. Spiess
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General Counsel and Clerk
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EXHIBIT 1
BANKBOSTON CORPORATION
MEDIUM-TERM NOTES DUE
9 MONTHS OR MORE FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
November 25, 1997
MORGAN STANLEY & CO. INCORPORATED
BANCBOSTON SECURITIES INC.
BEAR, STEARNS & CO. INC.
CHASE SECURITIES INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
LEHMAN BROTHERS INC.
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
SALOMON BROTHERS INC
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036-8293
Dear Sir/Madam:
BankBoston Corporation, a Massachusetts corporation (the "Company"),
confirms its agreement with Morgan Stanley & Co. Incorporated, BancBoston
Securities Inc., Bear, Stearns & Co. Inc., Chase Securities Inc., Credit Suisse
First Boston Corporation, Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner &
Smith Incorporated and Salomon Brothers Inc (each referred to as "Agent" and
collectively referred to as the "Agents") with respect to the issue and sale by
the Company of its Senior Medium-Term Notes (the "Senior Notes") and
Subordinated Medium-Term Notes (the "Subordinated Notes") described herein (the
Senior Notes and the Subordinated Notes being collectively referred to as the
"Notes"). The Senior Notes are to be issued pursuant to an Indenture, dated as
of June 15, 1992 (the "Senior Indenture"), between the Company and Norwest Bank
Minnesota, National Association
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("Norwest" or the "Trustee"), as trustee. The Subordinated Notes are to be
issued pursuant to an Indenture, dated as of June 15, 1992, as supplemented by
the First Supplemental Indenture dated as of June 24, 1993 (the "Subordinated
Indenture" and, together with the Senior Indenture, the "Indentures"), between
the Company and Norwest, as trustee. As of the date hereof, the Company has
authorized the issuance and sale of up to U.S. $1,000,000,000 aggregate initial
offering price (or its equivalent, based upon the applicable exchange rate at
the time of issuance, in such foreign or composite currencies as the Company
shall designate at the time of issuance) of Notes with maturities of nine months
or more from their respective dates of issue to or through the Agents pursuant
to the terms of this Agreement.
This Agreement provides both for the sale of Notes by the Company to the
Agents as principal for resale to investors and other purchasers and for the
sale of Notes by the Company directly to investors (as may from time to time be
agreed to by the Company and the Agents), in which case the Agents will act as
agents of the Company in soliciting Note purchases.
The Company has filed with the Securities and Exchange Commission (the
"SEC") a registration statement on Form S-3 (No. 333-38135), including a
prospectus, for the registration of certain securities, including the Notes,
under the Securities Act of 1933 (the "1933 Act") and the offering thereof from
time to time in accordance with Rule 415 of the rules and regulations of the SEC
under the 1933 Act (the "1933 Act Regulations"). Such registration statement has
been declared effective by the SEC and each of the Indentures has been qualified
under the Trust Indenture Act of 1939 (the "1939 Act"). Such registration
statement (and any further registration statements which may be filed by the
Company for the purpose of registering additional Notes and in connection with
which this Agreement is included or incorporated by reference as an exhibit) and
the prospectus constituting a part thereof, and any prospectus supplements
relating to the Notes, including all documents incorporated therein by
reference, as from time to time amended or supplemented by the filing of
documents pursuant to the Securities Exchange Act of 1934 (the "1934 Act") or
the 1933 Act or otherwise, are referred to herein as the "Registration
Statement" and the "Prospectus", respectively, except that if any revised
prospectus shall be provided to the Agents by the Company for use in connection
with the offering of the Notes, whether or not such revised prospectus is
required to be filed by the Company pursuant to Rule 424(b) of the 1933 Act
Regulations, the term "Prospectus" shall refer to such revised prospectus from
and after the time it is first provided to the Agents for such use.
1. APPOINTMENT AS AGENTS.
(a) APPOINTMENT. Subject to the terms and conditions stated herein
and subject to the reservation by the Company of the right to sell Notes
directly on its own behalf or through an affiliate of the Company in those
jurisdictions where the Company or such affiliate is authorized to do so, the
Company hereby agrees that Notes will be sold exclusively to or through the
Agents except as otherwise described below. Each Agent is authorized to engage
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the services of any other broker or dealer in connection with the offer or sale
of the Notes purchased by such Agent as principal for resale to others but is
not authorized to appoint sub-agents. In connection with sales by an Agent of
Notes purchased by such Agent as principal to other brokers or dealers, such
Agent may allow any portion of the discount it has received in connection with
such purchase from the Company to such brokers or dealers. Each Agent is acting
in connection with the Notes individually and not collectively or jointly. The
Company agrees that, during the period the Agents are acting as the Company's
agents hereunder, unless otherwise agreed, the Company will not appoint other
agents (other than an affiliate of the Company) to act on its behalf, or to
assist it, in the placement of the Notes unless the Company has entered into an
agreement or agreements substantially similar to this Agreement with such agent
or agents and has notified the Agents prior to entering into any such
substantially similar agreement.
(b) SALE OF NOTES. The Company shall not sell or approve the
solicitation of purchases of Notes in excess of the amount which shall be
authorized by the Company from time to time or in excess of the principal amount
of Notes registered pursuant to the Registration Statement. The Agents will have
no responsibility for maintaining records with respect to the aggregate
principal amount of Notes sold, or of otherwise monitoring the availability of
Notes for sale, under the Registration Statement.
(c) PURCHASES AS PRINCIPAL. The Agents shall not have any obligation
to purchase Notes from the Company as principal, but the Agents may agree from
time to time to purchase Notes as principal. Any such purchase of Notes by an
Agent as principal shall be made in accordance with Section 3(a) hereof.
(d) SOLICITATIONS AS AGENTS. If agreed upon by an Agent and the
Company, such Agent, acting solely as an agent for the Company and not as
principal, will solicit purchases of the Notes. The Agent will communicate to
the Company, orally, each offer to purchase Notes solicited by such Agent on an
agency basis, other than those offers rejected by such Agent. Each Agent shall
have the right, in its discretion reasonably exercised, to reject any proposed
purchase of Notes, as a whole or in part, and any such rejection shall not be
deemed a breach of such Agent's agreement contained herein. The Company may
accept or reject any proposed purchase of Notes, in whole or in part. Each Agent
shall make reasonable efforts to assist the Company in obtaining performance by
each purchaser whose offer to purchase Notes has been solicited by the Agent and
accepted by the Company. Each Agent shall not have any liability to the Company
in the event any such agency purchase is not consummated for any reason. If the
Company shall default on its obligation to deliver Notes to a purchaser whose
offer it has accepted, the Company shall (i) hold the Agent harmless against any
loss, claim or damage arising from or as a result of such default by the Company
and (ii) notwithstanding such default, pay to the Agent any commission to which
it would be entitled in connection with such sale.
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(e) RELIANCE. The Company and the Agents agree that any Notes
purchased by the Agents shall be purchased, and any Notes the placement of which
an Agent arranges shall be placed by such Agent, in reliance on the
representations, warranties, covenants and agreements of the Company contained
herein and on the terms and conditions and in the manner provided herein.
2. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants to each Agent as of the date
hereof, as of the date of each acceptance by the Company of an offer for the
purchase of Notes (whether from the Agent as principal or through the Agent as
agent), as of the date of each delivery of Notes (whether to such Agent as
principal or through such Agent as agent) (the date of each such delivery to an
Agent as principal being hereafter referred to as a "Settlement Date"), and as
of any time that the Registration Statement or the Prospectus shall be amended
or supplemented or there is filed with the SEC any document incorporated by
reference into the Prospectus (each of the times referenced above being referred
to herein as a "Representation Date") as follows:
(i) DUE INCORPORATION. 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.
(ii) SUBSIDIARIES. Each of BankBoston, N.A. (the "Bank") 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 conduct its
business as such; (the Bank and Hospital Trust 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. 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.
(iii) QUALIFICATION. 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
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would not have a material adverse effect on the Company and its
subsidiaries, considered as one enterprise.
(iv) REGISTRATION STATEMENT AND PROSPECTUS. The Company meets
the requirements for use of Form S-3 under the 1933 Act and will meet
such requirements as of the applicable filing date as to any supplement
to the Prospectus. At the time the Registration Statement became
effective, the Registration Statement complied, and as of each
applicable Representation Date will comply, in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and
the 1939 Act and the rules and regulations of the SEC promulgated
thereunder. The Registration Statement, at the time it became effective,
did not, and at each time thereafter at which any amendment to the
Registration Statement becomes effective or any Annual Report on Form
10-K is filed by the Company with the SEC and as of each Representation
Date, will not, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading. The Prospectus, as of the
date hereof does not, and as of each Representation Date 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, in the
light of the circumstances under which they were made, not misleading;
PROVIDED, HOWEVER, that the representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by the
Agents expressly for use in the Registration Statement or Prospectus. As
of each applicable Representation Date, the Indentures will comply in
all material respects with the requirements of the 1939 Act and the
rules and regulations of the SEC promulgated thereunder.
(v) INCORPORATED DOCUMENTS. 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 or hereafter are filed with the SEC,
complied or when so filed will comply, as the case may be, in all
material respects with the requirements of the 1934 Act and the rules
and regulations promulgated thereunder (the "1934 Act Regulations"),
and, when read together and with the other information in the
Prospectus, did not and will not include 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, in the
light of the circumstances under which they were or are made, not
misleading.
(vi) FINANCIAL STATEMENTS. The consolidated financial
statements included or incorporated by reference in the Registration
Statement and the Prospectus 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
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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.
(vii) AUTHORIZATION AND VALIDITY OF THIS AGREEMENT, THE
INDENTURE AND THE NOTES. This Agreement has been duly authorized,
executed and delivered by the Company and, upon execution and delivery
by the Agents, will be a valid and legally binding agreement of the
Company; each of the Indentures has been duly authorized, executed and
delivered by the Company and, assuming each Indenture has been duly
authorized, executed and delivered by the 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 except further as enforcement
thereof may be limited by (i) requirements that a claim with respect to
any Notes denominated other than in U.S. dollars (or a foreign currency
or currency unit judgment in respect of such claim) be converted into
U.S. dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law or (ii) governmental authority to limit,
delay or prohibit the making of payments outside the United States; the
Notes have been duly and validly authorized for issuance, offer and sale
pursuant to this Agreement and, when executed, authenticated and
delivered in the manner provided for in the applicable Indenture and
issued and paid for in accordance with the provisions of this Agreement,
the Notes will constitute valid and legally 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 laws relating to or 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 except further as enforcement thereof may be limited by
(i) requirements that a claim with respect to any Notes denominated
other than in U.S. dollars (or a foreign currency or currency unit
judgment in respect of such claim) be converted into U.S. dollars at a
rate of exchange prevailing on a date determined pursuant to applicable
law or (ii) governmental authority to limit, delay or prohibit the
making of payments outside the United States; the Notes and the
Indentures will be substantially in the form heretofore delivered to the
Agents and conform in all material respects to all statements relating
thereto contained in the Prospectus; and each holder of Notes will be
entitled to the benefits of the applicable Indenture.
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(viii) MATERIAL CHANGES OR MATERIAL TRANSACTIONS. 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
outstanding common stock and preferred stock 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.
(ix) NO DEFAULTS; REGULATORY APPROVALS. 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 or otherwise), earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as
one enterprise. The execution and delivery of this Agreement and the
Indentures and the consummation of the transactions contemplated herein
and therein and in the Registration Statement, and compliance by the
Company with the terms of this Agreement and the Indentures, 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 or 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 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, 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 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) 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. 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,
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issuance, sale and delivery of the Notes or (B) the execution, delivery
or performance of this Agreement or the Indentures by the Company has
been received.
(x) LEGAL PROCEEDINGS; CONTRACTS. Except as disclosed in the
Prospectus, there is no action, suit or proceeding before or by any
government, government 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; and 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.
(xi) PROPERTIES. 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 or questioning the rights of such corporation to the
continued possession of the leased or subleased premises under any such
lease or sublease.
(xii) LICENSES. The Company and the Significant Subsidiaries
each owns or possesses or has obtained all material governmental
licenses, permits, certificates, consents, orders, approvals and other
authorizations necessary to lease or own, as the case may be, and to
operate its properties and to carry on its business as presently
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conducted, and neither the Company nor any Significant Subsidiary has
received any notice of proceedings relating to the 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.
(xiii) PATENTS; TRADEMARKS. 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.
(xiv) LABOR. 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.
(xv) DOING BUSINESS WITH CUBA. The Company has materially
complied and will comply with all applicable provisions of Florida H.B.
1771, codified as Section 517.075 of the Florida Statutes, 1987, as
amended, and all applicable regulations promulgated thereunder relating
to issuers doing business in Cuba.
(b) ADDITIONAL CERTIFICATIONS. Any certificate signed by any
director or officer of the Company and delivered to the Agents or to counsel for
the Agents in connection with an offering of Notes through an Agent as agent or
the sale of Notes to an Agent as principal shall be deemed a representation and
warranty by the Company to the Agents as to the matters covered thereby on the
date of such certificate and at each Representation Date subsequent thereto.
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3. PURCHASES AS PRINCIPAL; SOLICITATIONS AS AGENTS.
(a) PURCHASES AS PRINCIPAL. Unless otherwise agreed by an Agent and
the Company, Notes shall be purchased by the Agent as principal. Such purchases
shall be made in accordance with terms agreed upon by the Agent and the Company
with respect to such information (as applicable) as is specified in Exhibit A
hereto (which terms, unless otherwise agreed, shall be agreed upon orally, with
written confirmation prepared by the Agent and mailed or sent via facsimile
transmission to the Company). Each Agent's commitment to purchase Notes as
principal shall be deemed to have been made on the basis of the representations
and warranties of the Company herein contained and shall be subject to the terms
and conditions herein set forth. Each purchase of Notes, unless otherwise
agreed, shall be at a discount from the principal amount of each such Note
equivalent to the applicable commission set forth in Schedule I hereto. The
Agent may engage the services of any other broker or dealer in connection with
the resale of the Notes purchased as principal and may allow any portion of the
discount received in connection with such purchases from the Company to such
brokers and dealers. At the time of each purchase of Notes by an Agent as
principal, the Agent shall specify the requirements for the stand-off agreement,
officer's certificate, opinion of counsel and comfort letter pursuant to
Sections 4(j), 7(b), 7(c) and 7(d) hereof.
(b) SOLICITATIONS AS AGENTS. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, when agreed by the Company and an Agent, such Agent, as an agent of the
Company, will use its reasonable efforts to solicit offers to purchase the Notes
upon the terms and conditions set forth herein and in the Prospectus. All Notes
sold through an Agent as agent will be sold at 100% of their principal amount
unless otherwise agreed to by the Company and such Agent.
The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through the Agents, as agents, commencing
at any time for any period of time or permanently. Upon receipt of instructions
from the Company, the Agents will forthwith suspend solicitation of purchases
from the Company until such time as the Company has advised the Agents that such
solicitation may be resumed.
The Company agrees to pay each Agent a commission, in the form of a
discount, equal to the applicable percentage of the principal amount of each
Note sold by the Company as a result of a solicitation made by such Agent as set
forth in Schedule I hereto.
(c) ADMINISTRATIVE PROCEDURES. The purchase price, interest rate or
formula, maturity date and other terms of the Notes (as applicable) specified in
Exhibit A hereto shall be agreed upon by the Company and the applicable Agent
and set forth in a pricing supplement to the Prospectus to be prepared in
connection with each sale of Notes. Except as may be otherwise provided in such
supplement to the Prospectus, the Notes will be issued in denominations of
U.S.$1,000 or any larger amount that is an integral multiple of U.S.$1,000.
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Administrative procedures with respect to the sale of Notes shall be agreed upon
from time to time by the Agents, the Company and the Trustee (the "Procedures").
The Agents and the Company agree to perform the respective duties and
obligations specifically provided to be performed by them in the Procedures.
4. COVENANTS OF THE COMPANY.
The Company covenants with each Agent as follows:
(a) NOTICE OF CERTAIN EVENTS. The Company will notify the Agents
promptly (i) of the effectiveness of any amendment to the Registration
Statement, (ii) of the transmittal to the SEC for filing of any supplement to
the Prospectus, (iii) of the receipt of any comments from the SEC with respect
to the Registration Statement or the Prospectus, (iv) of any request by the SEC
for any amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for additional information, and (v) of the issuance by the
SEC of any stop order suspending the effectiveness of the Registration Statement
or the initiation of any proceedings for that purpose. The Company will make
every reasonable effort to prevent the issuance of any stop order and, if any
stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(b) NOTICE OF CERTAIN PROPOSED FILINGS. The Company will give the
Agents advance notice of its intention to file or prepare any additional
registration statement with respect to the registration of additional Notes, any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus (other than through (i) the incorporation of information by reference
or (ii) by an amendment or supplement providing solely for a change in the
interest rates of Notes or similar changes or an amendment or supplement which
relates exclusively to an offering of debt securities other than the Notes). The
Company will furnish the Agents with copies of any such additional registration
statement and any such amendment or supplement proposed to be filed or prepared
a reasonable time in advance of such proposed filing or preparation, as the case
may be, and will not file any such additional registration statement or
amendment or supplement or other documents in a form to which the Agents or
counsel for the Agents shall reasonably object.
(c) COPIES OF THE REGISTRATION STATEMENT AND THE PROSPECTUS. The
Company will deliver to the Agents as many signed and conformed copies of the
Registration Statement (as originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein, if
specifically requested by an Agent, and documents incorporated by reference in
the Prospectus) as the Agents may reasonably request. The Company will furnish
to the Agents as many copies of the Prospectus (as amended or supplemented) as
the Agents shall reasonably request so long as the Agents are required to
deliver a Prospectus in connection with sales or solicitations of offers to
purchase the Notes.
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(d) PREPARATION OF PRICING SUPPLEMENTS. The Company will prepare,
with respect to any Notes to be sold through or to the Agents pursuant to this
Agreement, a Pricing Supplement with respect to such Notes in a form previously
approved by the Agents and will file such Pricing Supplement pursuant to Rule
424(b)(3) under the 1933 Act not later than the close of business of the SEC on
the fifth business day after the date on which such Pricing Supplement is first
used.
(e) REVISIONS OF PROSPECTUS -- MATERIAL CHANGES. Except as otherwise
provided in subsection (k) of this Section 4, if at any time during the term of
this Agreement any event shall occur or condition exist as a result of which it
is necessary, in the opinion of counsel for the Agents and counsel for the
Company, to amend or supplement the Prospectus in order that the Prospectus will
not include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein not misleading in the
light of the circumstances existing at the time the Prospectus is delivered to a
purchaser, or if it shall be necessary, in the reasonable opinion of both such
counsel, to amend or supplement the Registration Statement or the Prospectus in
order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, prompt notice shall be given, and confirmed in writing, to the
Agents to cease the solicitation of offers to purchase the Notes in their
capacity as agents and to cease sales of any Notes the Agents may then own as
principal, and the Company will -promptly amend the Registration Statement and
the Prospectus, whether by filing documents pursuant to the 1934 Act, the 1933
Act or otherwise, as may be necessary to correct such untrue statement or
omission or to make the Registration Statement and Prospectus comply with such
requirements. The Agents shall, at such time as the Company shall have furnished
to the Agents an amended or supplemental Prospectus satisfactory to the Agents
and their counsel, resume solicitation of offers to purchase the Notes using the
Prospectus as so amended or supplemented.
(f) PROSPECTUS REVISIONS -- PERIODIC FINANCIAL INFORMATION. Except
as otherwise provided in subsection (k) of this Section 4, on or prior to the
date on which there shall be released to the general public interim financial
statement information related to the Company with respect to each of the first
three quarters of any fiscal year or preliminary financial statement information
with respect to any fiscal year, the Company shall cause the Prospectus to be
amended or supplemented to include or incorporate by reference financial
information with respect thereto and corresponding information for the
comparable period of the preceding fiscal year, as well as such other
information and explanations as shall be necessary for an understanding thereof
or as shall be required by the 1933 Act or the 1933 Act Regulations.
(g) EARNINGS STATEMENTS. 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 (in form
complying with the provisions of Rule 158 under the 1933 Act) covering each
twelve month period beginning, in each case, not later than the first
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day of the Company's fiscal quarter next following the "effective date" (as
defined in such Rule 158) of the Registration Statement with respect to each
sale of Notes.
(h) BLUE SKY QUALIFICATIONS. The Company will endeavor, in
cooperation with the Agents, to qualify the Notes for offering and sale under
the applicable securities laws of such states and other jurisdictions of the
United States as the Agents may designate, and will maintain such qualifications
in effect for as long as may be required for the distribution of the Notes;
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 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 Notes have been qualified as above
provided. The Company will promptly advise the Agents of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Notes for sale in any such state or jurisdiction or the initiating or
threatening of any proceeding for such purpose.
(i) 1934 ACT FILINGS. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file promptly
all documents required to be filed with the SEC pursuant to Sections 13(a),
13(c), 14 or 15(d) of the 1934 Act.
(j) STAND-OFF AGREEMENT. If specified by the Agent in connection
with a purchase by it of Notes as principal, between the date of the agreement
to purchase such Notes and the Settlement Date with respect to such purchase,
the Company will not, without the prior written consent of the Agent who is a
party to such agreement, offer or sell, or enter into any agreement to sell, any
debt securities of the Company in the United States (other than the Notes that
are to be sold pursuant to such agreement and commercial paper in the ordinary
course of business).
(k) SUSPENSION OF CERTAIN OBLIGATIONS. The Company shall not be
required to comply with the provisions of subsections (e) or (f) of this Section
during any period from the time (i) the Agents shall have suspended solicitation
of purchases of the Notes in their capacity as agents pursuant to a request from
the Company and (ii) the Agents shall not then hold any Notes purchased as
principal pursuant hereto, until the time the Company shall determine that
solicitation of purchases of the Notes should be resumed or the Agents shall
subsequently purchase Notes from the Company as principal.
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5. CONDITIONS OF OBLIGATIONS.
The obligations of the Agents to purchase Notes as principal and to
solicit offers to purchase the Notes as agents of the Company, and the
obligations of any purchasers of the Notes sold through the Agents as agents,
will be subject to the accuracy of the representations and warranties on the
part of the Company herein and to the accuracy of the statements of the
Company's officers made in any certificate furnished pursuant to the provisions
hereof, to the performance and observance by the Company of all its covenants
and agreements herein contained and to the following additional conditions
precedent:
(a) LEGAL OPINIONS. On the date hereof, the Agents shall have
received the following legal opinions, dated as of the date hereof and in form
and substance satisfactory to the Agents:
(1) OPINION OF COMPANY COUNSEL. The opinion of Gary A.
Spiess, Esq., General Counsel of the Company, 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 Registration Statement
and the Prospectus.
(ii) The Company is duly qualified to transact
business as a foreign corporation 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.
(iii) Each of the Bank 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; 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 qualified 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
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good standing would not have a material adverse effect on the
Company and its subsidiaries, considered as one enterprise.
(v) The Company is duly registered under the Bank
Holding Company Act of 1956, 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) 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.
(vii) This Agreement has been duly and validly
authorized, executed and delivered by the Company.
(viii) The Notes have been duly authorized and, when
the global certificates representing the Notes have been duly
executed, authenticated and delivered in the manner provided for
in the applicable Indenture, and issued and paid for in
accordance with the provisions of this Agreement, the Notes 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 or by general equity
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law) and the availability of
equitable remedies, and except further as enforcement thereof
may be limited by (A) requirements that a claim with respect to
any Notes denominated other than in U.S. dollars (or a foreign
currency or foreign currency unit judgment in respect of such
claim) be converted into United States dollars at a rate of
exchange prevailing on a date determined pursuant to applicable
law or (B) governmental authority to limit, delay or prohibit
the making of payments in foreign currency or currency units or
payments outside the United States, and each holder of Notes
will be entitled to the benefits of the applicable Indenture.
(ix) Each Indenture has been duly authorized,
executed and delivered by the Company and, assuming the due
authorization, execution and delivery thereof by the Trustee,
constitutes a valid and binding obligation of the
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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 by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting enforcement of creditors' rights generally and except
as enforcement thereof is subject to general equity principles
(regardless of whether enforcement is considered in a proceeding
in equity or at law) and the availability of equitable remedies,
and except further as enforcement thereof may be limited by (A)
requirements that a claim with respect to any Notes denominated
other than in U.S. dollars (or a foreign currency or foreign
currency unit judgment in respect of such claim) be converted
into United States dollars at a rate of exchange prevailing on a
date determined pursuant to applicable law or (B) governmental
authority to limit, delay or prohibit the making of payments in
foreign currency or currency units or payments outside the
United States; and each Indenture has been duly qualified under
the 1939 Act.
(x) The Registration Statement is effective under
the 1933 Act and, to the best knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the 1933 Act.
(xi) 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 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.
(xii) 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 SEC and as of the date hereof, 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.
(xiii) Each authorization, approval, consent or license
of any government, governmental instrumentality or court,
domestic or foreign (other
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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 Notes or
(B) the execution, delivery or performance of this Agreement or
the Indentures by the Company has been received.
(xiv) 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.
(xv) 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.
(xvi) 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.
(xvii) The execution and delivery of this Agreement and
the Indentures, the consummation by the Company of the
transactions contemplated herein and therein and compliance by
the Company with the terms of this Agreement and the Indentures
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
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jurisdiction over the Company or any Significant Subsidiary or
any of its properties.
(2) OPINION OF COUNSEL TO THE AGENTS. The opinion of Brown &
Wood LLP, counsel to the Agents, covering the matters referred to in
subparagraph (1) under the subheadings (i) and (vii) to (xi), inclusive,
above.
(3) In giving their opinions required by subsection (a)(1)
and (a)(2) of this Section, Gary A. Spiess, Esq. and Brown & Wood LLP
shall each additionally state that nothing has come to their attention
that would lead them to believe that the Registration Statement, at the
time it became effective or, if an amendment to the Registration
Statement or an Annual Report on Form 10-K has been filed by the Company
with the SEC subsequent to the effectiveness of the Registration
Statement, then at the time such amendment became effective or at the
time of the most recent such filing, as the case may be, or at the date
hereof, contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact required to be stated therein
or necessary in order to make the statements therein not misleading or
that the Prospectus, as amended or supplemented at the date hereof, or
(if such opinion is being delivered in connection with the purchase of
Notes by an Agent as principal pursuant to Section 7(c) hereof) at the
date of any agreement by the Agent to purchase Notes as principal and at
the Settlement Date with respect thereto, as the case may be, 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.
(b) OFFICERS' CERTIFICATE. At the date hereof, the Agents shall have
received a certificate, dated the date hereof, of the President or Vice
President or person holding a functional title of equivalent rank and the chief
financial or chief accounting officer of the Company, to the effect that (i)
since the respective dates as of which information is given in the Registration
Statement and the Prospectus or since the date of any agreement by an Agent to
purchase Notes as principal, there has not been 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, (ii) the
other representations and warranties of the Company contained in Section 2
hereof are true and correct with the same force and effect as though expressly
made at and as of the date of such certificate, (iii) the Company has performed
or complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the date of such certificate, and (iv) 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 SEC.
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(c) COMFORT LETTER. On the date hereof, the Agents shall have
received a letter from Coopers & Lybrand L.L.P., dated as of the date hereof and
in form and substance satisfactory to the Agents, to the effect that:
(i) They are independent public accountants with respect to
the Company and its subsidiaries within the meaning of the 1933 Act and
the applicable published 1933 Act Regulations.
(ii) In their opinion, the audited consolidated financial
statements and the related consolidated financial statement schedules of
the Company and its subsidiaries 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.
(iii) 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 the Bank and the minutes of meetings of the
Executive, Audit and Compensation and Board Governance 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 hereof
and subsequent to the Form 10-K described in (ii) 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 letter, nothing came to their
attention that caused them to believe that: (A) 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 (B)
such unaudited consolidated financial statements are not in conformity
with generally accepted accounting principles applied on a basis
substantially consistent with that of the 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 letter, or (C) 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 outstanding shares of
common stock, perpetual preferred stock or other capital securities of
the Company acceptable to the Company's primary federal regulator, or
any decrease in the
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stockholder's equity of the Company, in each case as compared with the
amounts shown on the most recent balance sheet of the Company and its
subsidiaries included or 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 letter, or (D) 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 Company's
consolidated net interest revenue or increase in consolidated
non-interest expense, in each case as compared with the comparable
period in the preceding year, except in each case for any increases or
decreases that the Registration Statement discloses have occurred or may
occur, or which are disclosed in the letter.
(iv) 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 the
Agents, 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 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.
(d) OTHER DOCUMENTS. On the date hereof and on each Settlement Date,
counsel to the Agents shall have been furnished with such documents and opinions
as such counsel may reasonably require for the purpose of enabling such counsel
to pass upon the issuance and sale of Notes as herein contemplated and related
proceedings, or in order to evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of Notes as herein contemplated shall be satisfactory in
form and substance to the Agents and to counsel to the Agents.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement (or, at the
option of the Agent, any applicable agreement by an Agent to purchase Notes as
principal) may be terminated by the Agents by notice to the Company at any time
and any such termination shall be without liability of any party to any other
party, except that the covenant regarding provision of an earnings statement set
forth in Section 4(g) hereof, the provisions concerning payment of expenses
under Section 10 hereof, the indemnity and contribution agreements set forth in
Sections 8 and 9 hereof, the provisions concerning the representations,
warranties and agreements to survive delivery of
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Section 11 hereof, the provisions relating to governing law set forth in Section
14 and the provisions set forth under "Parties" of Section 15 hereof shall
remain in effect.
6. DELIVERY OF AND PAYMENT FOR NOTES SOLD THROUGH AN AGENT.
Delivery of Notes sold through an Agent as agent shall be made by the
Company to such Agent for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, the Agent shall promptly notify the Company and deliver
the Note to the Company, and, if the Agent has theretofore paid the Company for
such Note, the Company will promptly return such funds to the Agent. If such
failure occurred for any reason other than default by the applicable Agent in
the performance of its obligations hereunder, the Company will reimburse such
Agent on an equitable basis for its loss of the use of the funds for the period
such funds were credited to the Company's account.
7. ADDITIONAL COVENANTS OF THE COMPANY.
The Company covenants and agrees with each Agent that:
(a) REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. Each acceptance
by it of an offer for the purchase of Notes (whether to an Agent as principal or
through the Agent as agent), and each delivery of Notes to an Agent (whether to
an Agent as principal or through an Agent as agent), shall be deemed to be an
affirmation that the representations and warranties of the Company contained in
this Agreement and in any certificate theretofore delivered to the Agent
pursuant hereto are true and correct at the time of such acceptance or sale, as
the case may be, and an undertaking that such representations and warranties
will be true and correct at the time of delivery to the purchaser or its agent,
or to the applicable Agent, of the Note or Notes relating to such acceptance or
sale, as the case may be, as though made at and as of each such time (and it is
understood that such representations and warranties shall relate to the
Registration Statement and Prospectus as amended and supplemented to each such
time).
(b) SUBSEQUENT DELIVERY OF CERTIFICATES. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for a change in the interest
rates of Notes or similar changes, and, unless the Agents shall otherwise
specify, other than by an amendment or supplement which relates exclusively to
an offering of debt securities other than the Notes), (ii) there is filed with
the SEC any document incorporated by reference into the Prospectus (other than
any Current Report on Form 8-K relating exclusively to the issuance of debt
securities under the Registration Statement, unless the Agents shall otherwise
specify), (iii) (if required in connection with the purchase of Notes by an
Agent as principal) the Company sells Notes to an Agent as principal or (iv) if
the Company issues and sells Notes in a form not previously
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certified to the Agents by the Company, the Company shall furnish or cause to be
furnished to the Agents forthwith a certificate dated the date of filing with
the SEC of such supplement or document, the date of effectiveness of such
amendment, or the date of such sale, as the case may be, in form satisfactory to
the Agents to the effect that the statements contained in the certificate
referred to in Section 5(b) hereof which was last furnished to the Agents are
true and correct at the time of such amendment, supplement, filing or sale, as
the case may be, as though made at and as of such time (except that such
statements shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such time) or, in lieu of such
certificate, a certificate of the same tenor as the certificate referred to in
said Section 5(b), modified as necessary to relate to the Registration Statement
and the Prospectus as amended and supplemented to the time of delivery of such
certificate.
(c) SUBSEQUENT DELIVERY OF LEGAL OPINIONS. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for a change in the interest
rates of the Notes or similar changes or solely for the inclusion of additional
financial information, and, unless the Agents shall otherwise specify, other
than by an amendment or supplement which relates exclusively to an offering of
debt securities other than the Notes), (ii) there is filed with the SEC any
document incorporated by reference into the Prospectus (other than any Current
Report on Form 8-K, unless the Agent shall otherwise specify), (iii) (if
required in connection with the purchase of Notes by an Agent as principal) the
Company sells Notes to an Agent as principal or (iv) if the Company issues and
sells Notes in a form not previously certified to the Agents by the Company, the
Company shall furnish or cause to be furnished forthwith to the Agents and to
counsel to the Agents a written opinion of Gary A. Spiess, Esq., General Counsel
of the Company, or other counsel satisfactory to the Agents dated the date of
filing with the SEC of such supplement or document, the date of effectiveness of
such amendment, or the date of such sale, as the case may be, in form and
substance satisfactory to the Agents, of the same tenor as the opinion referred
to in Sections 5(a)(1) and 5(a)(3) hereof, but modified, as necessary, to relate
to the Registration Statement and the Prospectus as amended and supplemented to
the time of delivery of such opinion; or, in lieu of such opinion, counsel last
furnishing such opinion to the Agents shall furnish the Agents with a letter to
the effect that the Agents may rely on such last opinion to the same extent as
though it was dated the date of such letter authorizing reliance (except that
statements in such last opinion shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of delivery
of such letter authorizing reliance).
(d) SUBSEQUENT DELIVERY OF COMFORT LETTERS. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information or there is filed with the SEC any
document incorporated by reference into the Prospectus which contains additional
financial information, or (ii) (if required in connection with the purchase of
Notes by an Agent as principal) the Company sells Notes to an Agent as
principal, the Company shall cause Coopers & Lybrand L.L.P. forthwith to furnish
the Agents
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a letter, dated the date of effectiveness of such amendment, supplement or
document with the SEC, or the date of such sale, as the case may be, in form
satisfactory to the Agents, of the same tenor as the portions of the letter
referred to in clauses (i) and (ii) of Section 5(c) hereof but modified to
relate to the Registration Statement and Prospectus, as amended and supplemented
to the date of such letter, and of the same general tenor as the portions of the
letter referred to in clauses (iii) and (iv) of said Section 5(c) with such
changes as may be necessary to reflect changes in the financial statements and
other information derived from the accounting records of the Company.
8. INDEMNIFICATION.
(a) INDEMNIFICATION OF THE AGENTS. The Company agrees to indemnify
and hold harmless each Agent and each person, if any, who controls each Agent
within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact necessary to make the
statements therein not misleading or arising out of any untrue statement
or alleged untrue statement of a material fact included in the
Prospectus (or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary 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 the fees and disbursements of counsel chosen by the Agents)
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 (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
23
<PAGE> 24
furnished to the Company by the Agents expressly for use in the Registration
Statement (or any amendment thereto) or the Prospectus (or any amendment or
supplement thereto);
(b) INDEMNIFICATION OF COMPANY. Each Agent 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 subsection (a) of this Section, 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 the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Agent expressly for use in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto).
(c) GENERAL. 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 such indemnifying party from any liability which it may
have otherwise than on account of this indemnity agreement. An indemnifying
party may participate at 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 (in addition to any local 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.
9. CONTRIBUTION.
In order to provide for just and equitable contribution in circumstances
in which the indemnity agreement provided for in Section 8 hereof is for any
reason held to be unavailable to or insufficient to hold harmless the
indemnified parties although applicable in accordance with its terms, the
Company and the Agents shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by said indemnity
agreement incurred by the Company and the Agents, as incurred, in such
proportions that each Agent is responsible for that portion represented by the
percentage that the total commissions and underwriting discounts received by
such Agent to the date of such liability bears to the total sales price from the
sale of Notes sold to or through such Agent to the date of such liability, and
the Company is responsible for the balance; PROVIDED, HOWEVER, that (i) in no
case shall any Agent be liable or responsible for any amount in excess of the
total commissions and underwriting discounts received by such Agent to the date
of such liability 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 each Agent within the meaning of Section 15 of the 1933 Act shall have
the same rights to contribution as
24
<PAGE> 25
such Agent, 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.
10. PAYMENT OF EXPENSES.
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) The preparation and filing of the Registration Statement and all
amendments thereto and the Prospectus and any amendments or supplements thereto;
(b) The preparation, filing and reproduction of this Agreement;
(c) The preparation, printing, issuance and delivery of the Notes,
including any fees and expenses relating to the use of book-entry notes;
(d) The fees and disbursements of the Company's accountants and
counsel, of the Trustee and its counsel, and of any Calculation Agent or
Exchange Rate Agent;
(e) The reasonable fees and disbursements of counsel to the Agents
incurred in connection with the establishment of the program relating to the
Notes and incurred from time to time in connection with the transactions
contemplated hereby;
(f) The qualification of the Notes under state securities laws in
accordance with the provisions of Section 4(h) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Agents in connection
therewith and in connection with the preparation of any Blue Sky Survey and any
Legal Investment Survey;
(g) The printing and delivery to the Agents in quantities as
hereinabove stated of copies of the Registration Statement and any amendments
thereto, and of the Prospectus and any amendments or supplements thereto;
(h) The preparation, printing, reproducing and delivery to the
Agents of copies of the Indenture and all supplements and amendments thereto;
(i) Any fees charged by rating agencies for the rating of the Notes;
(j) The fees and expenses incurred in connection with the listing of
the Notes on any securities exchange;
25
<PAGE> 26
(k) The fees and expenses, if any, incurred with respect to any
filing with the National Association of Securities Dealers, Inc.;
(l) Any advertising and other out-of-pocket expenses of the Agents
incurred with the approval of the Company; and
(m) The cost of providing any CUSIP or other identification numbers
for the Notes.
11. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company submitted pursuant
hereto or thereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Agents or any
controlling person of an Agent, or by or on behalf of the Company, and shall
survive each delivery of and payment for any of the Notes.
12. TERMINATION.
(a) TERMINATION OF THIS AGREEMENT. This Agreement (excluding any
agreement hereunder by an Agent to purchase Notes as principal) may be
terminated for any reason, at any time by either the Company or any of the
Agents as to itself, immediately upon the giving of 30 days written notice of
such termination to the other parties hereto.
(b) TERMINATION OF AGREEMENT TO PURCHASE NOTES AS PRINCIPAL. Any
Agent may terminate any agreement hereunder by such Agent to purchase Notes as
principal, immediately upon notice to the Company, at any time prior to the
Settlement Date relating thereto (i) if there has been, since the date of such
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, 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 the judgment of such Agent,
impracticable to market the Notes or enforce contracts for the sale of the
Notes, or (iii) if trading in any securities of the Company has been suspended
by the SEC or the National Association of Securities Dealers, Inc., or if
trading generally on the New York Stock Exchange, the Boston Stock Exchange or
in the over-the-counter market shall have been suspended, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices for securities
have been required, by either of said exchanges or by order of the SEC 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
shall have been
26
<PAGE> 27
declared by either Federal or New York authorities or if a banking moratorium
shall have been declared by the relevant authorities in the country or countries
of origin of any foreign currency or currencies in which the Notes are
denominated or payable, or (v) if the rating assigned by any nationally
recognized securities rating agency to any debt securities of the Company as of
the date of any applicable principal purchase shall have been lowered since that
date or if any such rating agency shall have publicly announced that it has
under surveillance or review, with possible negative implications, its rating of
any debt securities of the Company.
(c) GENERAL. In the event of any such termination, no party will
have any liability to any other party hereto, except that (i) the Agents shall
be entitled to any commission earned in accordance with the third paragraph of
Section 3(b) hereof, (ii) if at the time of termination (a) an Agent shall own
any Notes purchased by it as principal with the intention of reselling them or
(b) an offer to purchase any of the Notes has been accepted by the Company but
the time of delivery to the purchaser or his agent of the Note or Notes relating
thereto has not occurred, the covenants set forth in Sections 4 and 7 hereof
shall remain in effect until such Notes are so resold or delivered, as the case
may be, and (iii) the covenant set forth in Section 4(g) hereof, the provisions
of Section 10 hereof, the indemnity and contribution agreements set forth in
Sections 8 and 9 hereof, and the provisions of Sections 11, 14 and 15 hereof
shall remain in effect.
13. NOTICES.
Unless otherwise provided herein, all notices required under the terms
and provisions hereof shall be in writing, either delivered by hand, by mail or
by telex, telecopier or telegram, and any such notice shall be effective when
received at the address specified below.
If to the Company:
BankBoston Corporation
100 Federal Street
Boston, Massachusetts 02110
Attention: Kathleen M. McGillycuddy,
Executive Director Global Treasury
Fax: (617) 434-0501
27
<PAGE> 28
With a copy to:
BankBoston Corporation
100 Federal Street
Boston, Massachusetts 02110
Attention: Gary A. Spiess, General Counsel
Fax: (617) 434-7980
If to Morgan Stanley & Co. Incorporated:
Morgan Stanley & Co. Incorporated
1585 Broadway - 2nd Floor
New York, New York 10036
Attention: Manager--Continuously Offered Products
Fax: (212) 761-0780
With a copy to:
Morgan Stanley & Co. Incorporated
1585 Broadway - 34th Floor
New York, New York 10036
Attention: Peter Cooper--Investment Banking Information Center
Fax: (212) 761-0260
If to BancBoston Securities Inc.:
BancBoston Securities Inc.
100 Federal Street
M.S. 01-12-06
Boston, Massachusetts 02110
Attention: Daniel Richler
Fax: (617) 434-3709
28
<PAGE> 29
If to Bear, Stearns & Co. Inc.:
Bear, Stearns & Co. Inc.
245 Park Avenue - 4th Floor
New York, New York 10167
Attention: Medium-Term Note Desk
Fax: (212) 272-6227
If to Chase Securities Inc.:
Chase Securities Inc.
270 Park Avenue - 8th Floor
New York, New York 10017
Attention: Medium-Term Note Desk
Fax: (212) 834-6081
If to Credit Suisse First Boston Corporation:
Credit Suisse First Boston Corporation
11 Madison Avenue
New York, New York 10010
Attention: Short and Medium-Term Finance
Fax: (212) 325-8183
If to Lehman Brothers Inc.:
Lehman Brothers Inc.
3 World Financial Center - 12th Floor
New York, New York 10285
Attention: Medium-Term Note Department
Fax: (212) 528-1718
29
<PAGE> 30
If to Merrill Lynch & Co.:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower - 10th Floor
World Financial Center
New York, New York 10281-1310
Attention: MTN Product Management
Fax: (212) 449-2234
If to Salomon Brothers Inc:
Salomon Brothers Inc
7 World Trade Center
New York, New York 10048
Attention: Medium-Term Note Department
Fax: (212) 783-2274
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
14. GOVERNING LAW; FORUM.
This Agreement and all the rights and obligations of the parties 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 such State. Any suit,
action or proceeding brought by the Company against an Agent in connection with
or arising under this Agreement shall be brought solely in the state or federal
court of appropriate jurisdiction located in the Borough of Manhattan, The City
of New York.
15. PARTIES.
This Agreement shall inure to the benefit of and be binding upon the
Agents and the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons and officers and directors referred to in
Sections 8 and 9 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole
30
<PAGE> 31
and exclusive benefit of the parties hereto and their respective successors and
said controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Notes shall be deemed to be a successor by reason merely of such
purchase.
16. 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.
31
<PAGE> 32
If the foregoing is in accordance with the Agents' understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument along with all counterparts will become a binding agreement
among the Agents and the Company in accordance with its terms.
Very truly yours,
BANKBOSTON CORPORATION
By:
-------------------------------------
Name:
Title:
Accepted:
MORGAN STANLEY & CO. INCORPORATED
By:
------------------------------
Name:
Title:
BEAR, STEARNS & CO. INC.
By:
------------------------------
Name:
Title:
CHASE SECURITIES INC.
By:
------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON CORPORATION
By:
------------------------------
Name:
Title:
32
<PAGE> 33
LEHMAN BROTHERS INC.
By:
------------------------------
Name:
Title:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
------------------------------
Name:
Title:
SALOMON BROTHERS INC
By:
------------------------------
Name:
Title:
BANCBOSTON SECURITIES INC.
By:
------------------------------
Name:
Title:
33
<PAGE> 34
EXHIBIT A
The following terms, if applicable, shall be agreed to by the applicable
Agent and the Company in connection with each sale of Notes:
Principal Amount: $_______
(or principal amount of foreign currency)
Original Issue Date:
Discount Note:
If Discount Note, specify Issue Price:
Interest Rate:
If Fixed Rate Note:
Interest Rate:
Interest Payment Dates:
If Floating Rate Note:
Interest Rate Basis or Bases:
Interest Category:
Initial Interest Rate:
Spread and/or Spread Multiplier, if any:
Initial Interest Reset Date:
Interest Reset Date(s):
Interest Payment Date(s):
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Rate Reset Period:
Interest Payment Period:
Calculation Agent:
Day Count Convention:
Exchange Rate Agent:
If LIBOR, specify LIBOR Reuters or LIBOR Telerate:
If CMT Rate, specify Designated CMT Telerate Page:
Designated CMT Maturity Index:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
If Repayable:
Optional Repayment Date(s):
Stated Maturity Date:
Purchase Price: ___%
Settlement Date and Time:
Authorized Denominations:
A-1
<PAGE> 35
Specified Currency (if currency is other than U.S. dollar):
Default Rate, if any:
Additional Terms:
Also, in connection with the purchase of Notes by an Agent as principal,
agreement as to whether the following will be required:
Officers' Certificate pursuant to Section 7(b) of the Distribution Agreement.
Legal Opinion pursuant to Section 7(c) of the Distribution Agreement.
Comfort Letter pursuant to Section 7(d) of the Distribution Agreement.
Stand-off Agreement pursuant to Section 4(j) of the Distribution Agreement.
A-2
<PAGE> 36
SCHEDULE I
As compensation for the services of the Agents hereunder, the Company
shall pay the applicable Agent, on a discount basis, a commission for the sale
of each Note equal to the principal amount of such Note multiplied by the
appropriate percentage set forth below:
<TABLE>
<CAPTION>
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
- --------------- ----------------
<S> <C>
From 9 months to less than 1 year................................ .125%
From 1 year to less than 18 months............................... .150
From 18 months to less than 2 years.............................. .200
From 2 years to less than 3 years................................ .250
From 3 years to less than 4 years................................ .350
From 4 years to less than 5 years................................ .450
From 5 years to less than 6 years................................ .500
From 6 years to less than 7 years................................ .550
From 7 years to less than 10 years............................... .600
From 10 years to less than 15 years.............................. .625
From 15 years to less than 20 years.............................. .700
From 20 years to 30 years........................................ .750
Greater than 30 years ........................................... *
</TABLE>
- ----------
* As agreed to by the Company and the applicable Agent at the time of sale.
<PAGE> 1
EXHIBIT 4(a)
[FORM OF SENIOR FIXED RATE GLOBAL MEDIUM-TERM NOTE]
THIS NOTE IS A DIRECT, UNCONDITIONAL UNSECURED AND UNSUBORDINATED OBLIGATION OF
BANKBOSTON CORPORATION (THE "CORPORATION"), IS NOT A SAVINGS ACCOUNT, DEPOSIT OR
OTHER OBLIGATION OF ANY BANK OR NONBANK SUBSIDIARY OF THE CORPORATION AND IS NOT
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE BANK INSURANCE FUND OR
ANY OTHER GOVERNMENT AGENCY.
THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE SENIOR
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (THE
"DEPOSITARY"), OR ITS NOMINEE, AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY
TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR
ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.
BENEFICIAL INTERESTS IN THIS CERTIFICATE WILL BE SHOWN ON, AND TRANSFERS THEREOF
WILL BE EFFECTED ONLY THROUGH, RECORDS MAINTAINED BY THE DEPOSITARY AND ITS
PARTICIPANTS. BANKBOSTON, N.A. IN BOSTON, MASSACHUSETTS AND SECURITIES TRANSFER
& REPORTING SERVICES, INC. IN THE BOROUGH OF MANHATTAN, THE CITY OF NEW YORK
(COLLECTIVELY, THE "PAYING AGENTS") WILL ACT AS THE CORPORATION'S PAYING AGENTS
WITH RESPECT TO THIS NOTE. THE CORPORATION MAY AT ANY TIME RESCIND THE
DESIGNATION OF A PAYING AGENT, APPOINT A SUCCESSOR PAYING AGENT OR APPROVE A
CHANGE IN THE OFFICE THROUGH WHICH ANY PAYING AGENT ACTS.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY TO THE CORPORATION OR ITS AGENTS FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
<PAGE> 2
REGISTERED PRINCIPAL AMOUNT
No. FX CUSIP No. ________________ ________________
BANKBOSTON CORPORATION
SENIOR MEDIUM-TERM NOTE
(Fixed Rate)
ORIGINAL ISSUE DATE: INTEREST RATE: STATED MATURITY DATE:
SPECIFIED CURRENCY: OPTION TO ELECT PAYMENT AUTHORIZED DENOMIN-
(if other than IN SPECIFIED CURRENCY ATIONS:
U.S. dollars) (only applicable if
Specified Currency is [ ] $1,000 and integral
other than U.S. dollars): multiples thereof.
[ ] Yes [ ] No [ ] Other:
EXCHANGE RATE AGENT:
INTEREST PAYMENT DATE(S): REGULAR RECORD DATES
[ ] At Maturity only (FOR NOTES WITH MATURITIES
[ ] June 15 and December 15 GREATER THAN ONE YEAR):
[ ] Other: [ ] June 1 and December 1
[ ] OTHER:
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: PERCENTAGE REDUCTION:
OPTIONAL REPAYMENT DATE(S):
DAY COUNT CONVENTION:
[ ] 30/360 FOR THE PERIOD FROM TO .
[ ] ACTUAL/360 FOR THE PERIOD FROM TO .
[ ] ACTUAL/ACTUAL FOR THE PERIOD FROM TO .
ADDENDUM ATTACHED:
[ ] Yes
[ ] No
<PAGE> 3
DISCOUNT NOTE:
DEFAULT RATE: [ ] Yes
[ ] No
Issue Price: %
OTHER PROVISIONS:
3
<PAGE> 4
BankBoston Corporation, a Massachusetts corporation ("Issuer" or the
"Corporation", which terms include any successor corporation under the Senior
Indenture hereinafter referred to), for value received, hereby promises to pay
to CEDE & CO., or registered assigns, the principal amount of
___________________, on the Stated Maturity Date specified above (except to the
extent redeemed or repaid prior to the Stated Maturity Date), and to pay
interest thereon at the Interest Rate per annum specified above, until the
principal hereof is paid or duly made available for payment, and (to the extent
that the payment of such interest shall be legally enforceable) at the Default
Rate per annum specified above on any overdue principal and premium, if any, and
on any overdue installment of interest.
The Corporation will pay interest on each Interest Payment Date
specified above, commencing on the first Interest Payment Date next succeeding
the Original Issue Date specified above, and on the Stated Maturity Date or any
Redemption Date or Optional Repayment Date (as defined below) (the date of each
such Stated Maturity Date, Redemption Date and Optional Repayment Date and the
date on which principal or an installment of principal is due and payable by
declaration of acceleration pursuant to the Senior Indenture, being referred to
hereinafter as a "Maturity" with respect to principal payable on such date);
PROVIDED, HOWEVER, that if the Original Issue Date falls between a Regular
Record Date (as defined below) and the next succeeding Interest Payment Date,
interest payments will commence on the Interest Payment Date immediately
following the next succeeding Regular Record Date to the registered Holder on
such next succeeding Regular Record Date. Unless otherwise specified above, the
"Regular Record Date" with respect to any Interest Payment Date shall be the
June 1 or December 1 (whether or not a Business Day (as defined below)), as the
case may be, next preceding the applicable Interest Payment Date. Interest on
this Note will accrue from and including the most recent Interest Payment Date
to which interest has been paid or duly provided for or, if no interest has been
paid or duly provided for, from and including the Original Issue Date specified
above, to but excluding such Interest Payment Date or Maturity, as the case may
be. If the Maturity or an Interest Payment Date for this Note falls on a day
which is not a Business Day, the related payment of principal, premium, if any,
or interest will be made on the next succeeding Business Day with the same force
and effect as if made on such Maturity or Interest Payment Date, as the case may
be, and no interest shall accrue on the amount so payable for the period from
and after such Maturity or Interest Payment Date, as the case may be. The
interest so payable and punctually paid or duly provided for on any Interest
Payment Date will, as provided in the Senior Indenture, be paid to the Person in
whose name this Note (or one or more predecessor securities) is registered at
the close of business on the Regular Record Date for such Interest
4
<PAGE> 5
Payment Date. Any such interest which is payable, but not punctually paid or
duly provided for on any Interest Payment Date (herein called "Defaulted
Interest"), shall forthwith cease to be payable to the registered Holder on such
Regular Record Date, and may be paid to the Person in whose name this Note is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to the Holder of this Note not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner, all as more
fully provided in the Senior Indenture. Interest payable at Maturity will be
payable to the Person to whom the principal hereof shall be payable.
This Note will constitute Senior Indebtedness (as defined in the Senior
Indenture) ranking on a parity with other unsecured Senior Indebtedness of the
Corporation.
Reference herein to "this Note", "hereof", "herein" and comparable terms
shall include an Addendum hereto if an Addendum is specified above.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof and, if so specified on the face hereof, in an
Addendum hereto, which further provisions shall for all purposes have the same
force and effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent by the manual signature of one of its authorized
signatories, this Note shall not be valid or obligatory for any purpose.
5
<PAGE> 6
IN WITNESS WHEREOF, the Corporation has caused this Note to be duly
executed.
BANKBOSTON CORPORATION
[SEAL] By:
---------------------------------
Name:
Title:
Attest:
By:
--------------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION This Note is one of the Securities referred to in
the Senior Indenture referred to herein.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By: BANKBOSTON, N.A., as
Authenticating Agent
By: Dated:
-------------------------------- ------------------------
Name:
Title:
6
<PAGE> 7
[Reverse of Note]
BankBoston Corporation
Medium-Term Note
(Senior Fixed Rate)
This Note is one of a duly authorized issue of Securities (hereinafter
called the "Securities") of the Corporation designated as its Senior Medium-Term
Notes (the "Notes"). The Notes are issued and to be issued under a Senior
Indenture dated as of June 15, 1992 (herein the "Senior Indenture"), between the
Corporation and Norwest Bank Minnesota, National Association, Trustee (the
"Trustee" which term shall include any duly appointed successor trustee acting
in such capacity), to which Senior Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights
thereunder of the Corporation, the Trustee and the Holders of the Securities and
the terms upon which the Securities are, and are to be, authenticated and
delivered. Copies of the Senior Indenture are on file and available for
inspection at the offices of the Trustee located at 6th Street and Marquette
Avenue, Minneapolis, Minnesota 55479 or at such other place or places the
Trustee shall designate by notice to the person in whose name this Note is
registered (the "Holder") on the Security Register (as defined below). The terms
of individual Notes may vary with respect to interest rates or interest rate
formulas, issue dates, maturity, redemption, repayment, currency of payment and
otherwise.
The Notes are issuable only in registered form without coupons in the
Authorized Denominations specified on the face hereof. As provided in the Senior
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes denominated as
authorized, as requested by the Holder surrendering the same.
Unless otherwise specified herein, payments of principal of and premium,
if any, and interest on this Note are payable by the Corporation in the
Specified Currency specified on the face hereof (or, if such Specified Currency
is not at the time of such payment legal tender for the payment of public and
private debts, in such other coin or currency of the country which issued such
Specified Currency as at the time of such payment is legal tender for the
payment of such debts). If the Specified Currency specified on the face hereof
is other than United States dollars, any such amounts paid by the Corporation
will be converted by the Exchange Rate Agent specified on the face hereof into
United States dollars for payment to the Holder of this Note.
If the Specified Currency on the face hereof is other than United States
dollars, any United States dollar amount to be received by the Holder of this
Note will be based on the highest bid quotation in The City of New York received
by the Exchange
7
<PAGE> 8
Rate Agent at approximately 11:00 a.m., New York City time, on the second
Business Day preceding the applicable payment date from three recognized foreign
exchange dealers (one of whom may be the Exchange Rate Agent) selected by the
Exchange Rate Agent and approved by the Corporation for the purchase by the
quoting dealer of the Specified Currency for United States dollars for
settlement on such payment date in the aggregate amount of the Specified
Currency payable to all Holders of Foreign Currency Notes denominated in a
currency other than United States dollars scheduled to receive United States
dollar payments and at which the applicable dealer commits to execute a
contract. All currency exchange costs will be borne by the Holder of this Note
by deductions from such payments. If three such bid quotations are not
available, payments on this Note will be made in the Specified Currency.
The Holder of this Note may elect to receive payment of the principal of
and premium, if any, and/or interest on this Note in the Specified Currency
specified on the face hereof by submitting a written request for such payment to
the Trustee at its principal corporate trust office in Minneapolis, Minnesota on
or prior to the applicable Record Date or at least fifteen calendar days prior
to the Maturity, as the case may be. Such written request may be mailed or hand
delivered or sent by cable, telex or other form of facsimile transmission. The
Holder of this Note may elect to receive payment in the applicable Specified
Currency for all such principal, premium, if any, and interest payments and need
not file a separate election for each payment. Such election will remain in
effect until revoked by written notice to the Trustee, but written notice of any
such revocation must be received by the Trustee on or prior to the applicable
Record Date or at least fifteen calendar days prior to the Maturity, as the case
may be.
If the Holder of this Note shall have duly made an election to receive
payments of principal, premium, if any, or interest in the Specified Currency
specified on the face hereof and the applicable Specified Currency is not
available due to the imposition of exchange controls or other circumstances
beyond the control of the Corporation, the Corporation shall be entitled to
satisfy its obligations to the Holder hereof by making such payment in United
States dollars on the basis of the Market Exchange Rate on the second Business
Day prior to such payment or, if such Market Exchange Rate is not then
available, on the basis of the most recently available Market Exchange Rate or
as otherwise provided herein. The "Market Exchange Rate" for a Specified
Currency other than United States dollars means the noon dollar buying rate in
The City of New York for cable transfer for such Specified Currency as certified
for customs purposes by (or if not so certified, as otherwise determined by) the
Federal Reserve Bank of New York. Any payment made under such circumstances in
United States dollars where the required
8
<PAGE> 9
payment is in a Specified Currency other than United States dollars will not
constitute an Event of Default under the Senior Indenture with respect to this
Note.
If the Holder of this Note shall have duly made an election to receive
payments of principal, premium, if any, or interest hereon in the Specified
Currency specified on the face hereof and such Specified Currency is European
Currency Units ("ECUs") or another currency unit, and such currency unit is
unavailable due to the imposition of exchange controls or other circumstances
beyond the Corporation's control, then the Corporation shall be entitled, but
not required, to make any payments in respect of this Note in United States
dollars until such currency unit is again available. The amount of each payment
in United States dollars shall be computed on the basis of the equivalent of the
currency unit in United States dollars, which shall be determined by the
Exchange Rate Agent on the following basis. The component currencies of the
currency unit for this purpose (collectively, the "Component Currencies" and
each, a "Component Currency") shall be the currency amounts that were components
of the currency unit as of the last day on which the currency unit was used. The
equivalent of the currency unit in United States dollars shall be calculated by
aggregating the United States dollar equivalents of the Component Currencies.
The United States dollar equivalent of each of the Component Currencies shall be
determined by the Exchange Rate Agent on the basis of the most recently
available Market Exchange Rate for each such Component Currency.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the Holder hereof.
Except as otherwise provided in the Senior Indenture and as set forth
below, the Notes will be represented by one or more global securities,
registered in the name of the Depositary or its nominee and ownership of the
Notes shall be maintained in
9
<PAGE> 10
book-entry form by the Depositary for the accounts of participating
organizations of the Depositary. This Note is exchangeable for definitive Notes
in registered form to persons other than the Depositary or its nominee only if
(a) the Depositary notifies the Corporation in writing that it is no longer
willing or able to continue as a depositary for the Notes or if the Depositary
ceases to be a clearing agency registered under the Securities Exchange Act of
1934, as amended, and a successor depositary is not appointed by the Corporation
within ninety days after the effective date of the Depositary's ceasing to act
as depositary for the Notes, (b) the Corporation, at its option, notifies the
Trustee in writing that it elects to cause the issuance of Notes in definitive
form, or (c) any event shall have happened and be continuing which, after notice
or lapse of time, or both, would constitute an Event of Default with respect to
the Notes. In the event of such occurrences, upon the surrender by the
Depositary or a successor depositary of this Note the Corporation will execute,
and the Trustee will, upon the execution of the then standard form of the
Trustee's agreement for certificated securities and upon receipt of instructions
in writing from the Corporation, authenticate and deliver securities of like
tenor and terms in definitive form to each person that the Depositary or a
successor depositary identifies as the beneficial owner of an interest in this
Note in an aggregate principal amount equal to the principal amount of Notes
represented by this Note then outstanding in exchange for this Note. Any such
certificated security will be issued in fully registered form, without coupons,
in an Authorized Denomination specified on the face hereof. Such certificated
security may not subsequently be exchanged by a Holder for Notes in
denominations of less than the minimum Authorized Denomination specified on the
face hereof.
This Note is not subject to any sinking fund or to the defeasance or
covenant defeasance provisions of the Senior Indenture and, unless otherwise
provided above in accordance with the provisions of the following paragraphs, is
not redeemable or repayable prior to the Stated Maturity Date.
If so provided above, this Note may be redeemed by the Corporation on
any date on and after the Initial Redemption Date, if any, specified above. If
no Initial Redemption Date is set forth above, this Note may not be redeemed
prior to the Stated Maturity Date. On and after the Initial Redemption Date, if
any, this Note may be redeemed at any time in whole or from time to time in part
in increments of $1,000 (or, if the Specified Currency indicated on the face
hereof is other than United States dollars, the minimum Authorized Denomination
specified on the face hereof) at the option of the Corporation at the applicable
Redemption Price (as defined below), together with unpaid interest, if any,
accrued hereon at the applicable rate payable to the date of redemption (each
such date, a "Redemption Date"),
10
<PAGE> 11
on written notice given not more than 60 nor less than 30 calendar days prior to
the Redemption Date. In the event of redemption of this Note in part only, a new
Note for the unredeemed portion hereof shall be issued in the name of the Holder
hereof upon the surrender hereof. Whenever less than all the Notes at any time
outstanding are to be redeemed, the terms of the Notes to be so redeemed shall
be selected by the Corporation. In the event of redemption of this Note in part
only, a new Note for the unredeemed portion hereof shall be issued in the name
of the Holder hereof upon surrender hereof.
Unless otherwise specified above, the "Redemption Price" shall initially
be the Initial Redemption Percentage, specified above, of the principal amount
of this Note to be redeemed and, if greater than 100%, shall decline at each
anniversary of the Initial Redemption Date by the Annual Redemption Percentage
Reduction, if any, specified above, of the principal amount to be redeemed until
the Redemption Price is 100% of such principal amount.
This Note may be subject to repayment at the option of the Holder on the
Optional Repayment Date(s), if any, indicated above. If no Optional Repayment
Date(s) are set forth above, this Note is not subject to repayment at the option
of the Holder hereof prior to the Stated Maturity Date. On any Optional
Repayment Date, this Note shall be repayable in whole or in part in increments
of $1,000 (or, if the Specified Currency indicated on the face hereof is other
than United States dollars, in the minimum Authorized Denomination specified on
the face hereof) at the option of the Holder hereof at a repayment price equal
to the sum of (i) 100% of the unpaid principal amount to be repaid plus (ii)
accrued interest, if any, hereon at the applicable rate payable to the relevant
Optional Repayment Date. For this Note to be repaid in whole or in part at the
option of the Holder hereof, this Note must be received, with the form entitled
"Option to Elect Repayment" below duly completed, by one of the Paying Agents at
its office, or such address which the Corporation shall from time to time notify
the Holders of the Notes, not more than 60 nor less than 30 days prior to the
relevant Optional Repayment Date. Exercise of such repayment option by the
Holder hereof shall be irrevocable. In the event of repayment of this Note in
part only, a new Note for the unrepaid portion hereof shall be issued in the
name of the Holder hereof upon the surrender hereof.
While this Note is held by or on behalf of the Depositary, and
registered in the name of the Depositary or the Depositary's nominee, the option
for repayment may be exercised by the applicable participant that has an account
with the Depositary, on behalf of the beneficial owners of this Note, by
delivering a written notice substantially similar to the above mentioned form to
one of the Paying Agents at its office (or such other address
11
<PAGE> 12
of which the Corporation shall from time to time notify the Holders), not more
than 60 nor less than 30 days prior to the date of repayment. Notices of
elections from participants on behalf of beneficial owners of this Note to
exercise their option to have the interests of such beneficial owners in this
Note repaid must be received by one of the Paying Agents not later than 5:00
P.M., New York City time, on the last day for giving such notice. In order to
ensure that a notice is received by one of the Paying Agents on a particular
day, the beneficial owner of this Note must so direct the applicable participant
before such participant's deadline for accepting instructions for that day.
Different firms may have different deadlines for accepting instructions from
their customers. Accordingly, beneficial owners of this Note should consult the
participants through which they own their interest herein for the respective
deadlines for such participants. All notices shall be executed by a duly
authorized officer of such participant (with signature guaranteed) and shall be
irrevocable. In addition, beneficial owners of this Note shall effect delivery
at the time such notices of election are given to the Depositary by causing the
applicable participant to transfer such beneficial owner's interest in this
Note, on the Depositary's records, to the Trustee.
Interest payments on this Note shall include interest accrued from and
including the Original Issue Date indicated above, or the most recent date to
which interest has been paid or duly provided for, to but excluding the related
Interest Payment Date or Maturity, as the case may be. Interest payments for
this Note shall be computed and paid on the basis of a 360-day year of twelve
30-day months if the Day Count Convention specified above is "30/360" for the
period specified thereunder, on the basis of the actual number of days in the
related month and a 360-day year if the Day Count Convention specified above is
"Actual/360" for the period specified thereunder or on the basis of the actual
number of days in the related year and month if the Day Count Convention
specified above is "Actual/Actual" for the period specified thereunder.
As used herein, "Business Day" means, unless otherwise specified above,
any day, other than a Saturday or Sunday, that is neither a legal holiday nor a
day on which banking institutions are authorized or required by law, regulation
or executive order to close in The City of New York or Boston, Massachusetts;
PROVIDED, HOWEVER, that, if the Holder hereof shall have duly made an election
to receive payments of principal of and premium, if any, and/or interest on this
Note in the Specified Currency specified on the face hereof, such day is also
not a day on which banking institutions are authorized or required by law,
regulation or executive order to close in the Principal Financial Center (as
defined below) of the country issuing such Specified Currency unless the
Specified Currency is
12
<PAGE> 13
ECU, in which case such day is also not a day that appears as an ECU
non-settlement day on the display designated as "ISDE" on the Reuter Monitor
Money Rates Service (or is not a day designated as an ECU non-settlement day by
the ECU Banking Association) or, if ECU non-settlement days do not appear on
that page (and are not so designated), a day that is not a day on which payments
in ECU cannot be settled in the international interbank market). "Principal
Financial Center" means the capital city of the country issuing the Specified
Currency (except as described in the immediately preceding sentence with respect
to ECU), except that with respect to U.S. dollars, Australian dollars, Canadian
dollars, Deutsche marks, Dutch guilders, Italian lire and Swiss francs, the
"Principal Financial Center" shall be The City of New York, Sydney, Toronto,
Frankfurt, Amsterdam, Milan and Zurich, respectively.
Any provision contained herein with respect to the calculation of the
rate of interest applicable to this Note, its Interest Payment Dates or any
other matter relating hereto may be modified as specified in an Addendum
relating hereto if so specified above.
If an Event of Default (as defined in the Senior Indenture) with respect
to the Notes shall occur and be continuing, the principal of all the Notes may
be declared due and payable in the manner and with the effect provided in the
Senior Indenture.
If this Note is specified on the face hereof as a Discount Note, the
amount payable to the Holder of this Note in the event of redemption, repayment
or acceleration of maturity of this Note will be equal to the sum of (1) the
Issue Price specified on the face hereof (increased by any accruals of the
Discount, as defined below) and, in the event of any redemption of this Note (if
applicable), multiplied by the Initial Redemption Percentage (as adjusted by the
Annual Redemption Percentage Reduction, if applicable) and (2) any unpaid
interest accrued thereon to the Redemption Date, Repayment Date or date of
acceleration of maturity, as the case may be. The difference between the Issue
Price and 100% of the principal amount of this Note is referred to herein as the
"Discount."
For purposes of determining the amount of Discount that has accrued as
of any Redemption Date, Repayment Date or date of acceleration of maturity of
this Note, such Discount will be accrued so as to cause the yield on the Note to
be constant. The constant yield will be calculated using a 30-day month, 360-day
year convention, a compounding period that, except for the Initial Period (as
defined below), corresponds to the shortest period between Interest Payment
Dates (with ratable accruals within a compounding period), a constant coupon
rate equal to the initial interest rate applicable to this Note and an
assumption that the maturity of this Note will not be accelerated. If the
13
<PAGE> 14
period from the Original Issue Date to the initial Interest Payment Date (the
"Initial Period") is shorter than the compounding period for this Note, a
proportionate amount of the yield for an entire compounding period will be
accrued. If the Initial Period is longer than the compounding period, then such
period will be divided into a regular compounding period and a short period,
with the short period being treated as provided in the preceding sentence.
The Senior Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Corporation and the rights of the Holders of the Securities
of each series to be affected under the Senior Indenture at any time by the
Corporation and the Trustee with the consent of the Holders of 66 2/3% in
aggregate principal amount of the Securities at the time Outstanding, as defined
in the Senior Indenture, of each series affected thereby. The Senior Indenture
also contains provisions permitting the Holders of specified percentages in
aggregate principal amount of the Outstanding Securities of each series at the
time, on behalf of the Holders of all Securities of each series, to waive
compliance with certain provisions of the Senior Indenture and certain past
defaults under the Senior Indenture and their consequences. Any such consent or
waiver by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof whether
or not notation of such consent or waiver is made upon this Note.
No reference herein to the Senior Indenture and no provision of this
Note or of the Senior Indenture shall alter or impair the obligation of the
Corporation, which is absolute and unconditional, to pay the principal of and
interest on this Note at the time, place and rate or formula, and in the coin or
currency, herein prescribed.
As provided in the Senior Indenture and subject to certain limitations
therein set forth, this registered Note 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 Notes of the
same series at the office of Securities Transfer & Reporting Services, Inc. in
The City of New York or the principal office of BankBoston, N.A. in The City of
Boston.
No service charge shall be made for any such registration of transfer or
exchange, but the Corporation may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
14
<PAGE> 15
Prior to due presentment of this Note for registration of transfer, the
Corporation or the Trustee and any agent of the Corporation or the Trustee may
treat the Person in whose name this Note is registered as the owner hereof for
all purposes, whether or not this Note be overdue, and neither the Corporation,
the Trustee nor any such agent shall be affected by notice to the contrary.
This Note and the Senior Indenture shall be governed by and construed in
accordance with the laws of The Commonwealth of Massachusetts.
All terms used in this Note which are defined in the Senior Indenture
shall have the meanings assigned to them in the Senior Indenture.
15
<PAGE> 16
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Corporation to repay this Note (or portion hereof specified below) pursuant to
its terms at a price equal to the principal amount hereof together with interest
to the repayment date, to the undersigned, at _________________________________
_______________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, one of the Paying Agents must receive at its
office, or at such other place or places of which the Corporation shall from
time to time notify the Holder of this Note, not more than 60 nor less than 30
days prior to an Optional Repayment Date, if any, shown above, this Note with
this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of $1,000 (or, if the
Specified Currency indicated on the face hereof is other than United States
dollars, the minimum Authorized Denomination specified on the face hereof))
which the Holder elects to have repaid and specify the denomination or
denominations (which shall be an Authorized Denomination) of the Notes to be
issued to the Holder for the portion of this Note not being repaid (in the
absence of any such specification, one such Note will be issued for the portion
not being repaid).
$______________________________ ____________________________________
NOTICE: The signature on this Option
Date __________________________ to Elect Repayment must correspond
with the name as written upon the
face of this Note in every
particular, without alteration or
enlargement or any change whatever.
16
<PAGE> 17
ASSIGNMENT/TRANSFER FORM
FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s),
assign(s) and transfer(s) unto (insert Social Security or Taxpayer
Identification No.)____________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
______________ (Please print or typewrite name and address including postal zip
code of assignee)
_______________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing ____________________________________________________________________
____________________________ attorney to transfer said Note on the books of the
Corporation with full power of substitution in the premises.
Dated: _____________ __________________________________________________
NOTICE: The signature of the registered Holder to this assignment must
correspond with the name as written upon the face of the within
instrument in every particular, without alteration or enlargement or any
change whatsoever.
17
<PAGE> 18
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this Note, shall be construed as though they were written out in full according
to applicable laws or regulations.
TEN COM--as tenants in common
UNIF GIFT MIN ACT--................Custodian.......................
(Cust) (Minor)
Under Uniform Gifts to Minors Act
.................................
(State)
TEN ENT--as tenants by the entireties
JT TEN--as joint tenants with right of survivorship
and not as tenants in common
Additional abbreviations may also be used though not in the above list.
18
<PAGE> 1
EXHIBIT 4(b)
[FORM OF SENIOR FLOATING RATE GLOBAL MEDIUM-TERM NOTE]
THIS NOTE IS A DIRECT, UNCONDITIONAL UNSECURED AND UNSUBORDINATED OBLIGATION OF
BANKBOSTON CORPORATION (THE "CORPORATION"), IS NOT A SAVINGS ACCOUNT, DEPOSIT OR
OTHER OBLIGATION OF ANY BANK OR NONBANK SUBSIDIARY OF THE CORPORATION AND IS NOT
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE BANK INSURANCE FUND OR
ANY OTHER GOVERNMENT AGENCY.
THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE SENIOR
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (THE
"DEPOSITARY"), OR ITS NOMINEE, AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY
TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR
ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.
BENEFICIAL INTERESTS IN THIS CERTIFICATE WILL BE SHOWN ON, AND TRANSFERS THEREOF
WILL BE EFFECTED ONLY THROUGH, RECORDS MAINTAINED BY THE DEPOSITARY AND ITS
PARTICIPANTS. BANKBOSTON, N.A. IN BOSTON, MASSACHUSETTS AND SECURITIES TRANSFER
& REPORTING SERVICES, INC. IN THE BOROUGH OF MANHATTAN, THE CITY OF NEW YORK
(COLLECTIVELY, THE "PAYING AGENTS") WILL ACT AS THE CORPORATION'S PAYING AGENTS
WITH RESPECT TO THIS NOTE. THE CORPORATION MAY AT ANY TIME RESCIND THE
DESIGNATION OF A PAYING AGENT, APPOINT A SUCCESSOR PAYING AGENT OR APPROVE A
CHANGE IN THE OFFICE THROUGH WHICH ANY PAYING AGENT ACTS.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY TO THE CORPORATION OR ITS AGENTS FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
<PAGE> 2
REGISTERED CUSIP No. __________________ PRINCIPAL AMOUNT
No. FLR ____ ________________
BANKBOSTON CORPORATION
SENIOR MEDIUM-TERM NOTE
(Floating Rate)
INTEREST RATE BASIS ORIGINAL ISSUE DATE: STATED MATURITY DATE:
OR BASES:
IF LIBOR: IF CMT RATE:
[ ] LIBOR Reuters Designated CMT Telerate Page:
[ ] LIBOR Telerate If Telerate Page 7052:
[ ] Weekly Average
[ ] Monthly Avenue
Designated CMT Maturity Index:
DESIGNATED LIBOR CURRENCY:
INDEX MATURITY: INITIAL INTEREST RATE: INTEREST PAYMENT PERIOD:
SPREAD (PLUS OR INITIAL INTEREST RESET DATE: INTEREST PAYMENT DATES:
MINUS):
SPREAD MULTIPLIER: INTEREST RATE RESET PERIOD: INTEREST RESET DATES:
MAXIMUM INTEREST MINIMUM INTEREST RATE: INITIAL REDEMPTION DATE:
RATE:
INITIAL REDEMPTION ANNUAL REDEMPTION OPTIONAL REPAYMENT
PERCENTAGE: PERCENTAGE REDUCTION: DATE(S):
CALCULATION AGENT:
INTEREST CATEGORY: DAY COUNT CONVENTION:
[ ] Regular Floating Rate Note [ ] 30/360 for the period
[ ] Floating Rate/Fixed Rate from to .
Fixed Rate Commencement Date: [ ] Actual/360 for the period
Fixed Interest Rate: from to .
[ ] Inverse Floating Rate Note [ ] Actual/Actual for the period
Fixed Interest Rate: from to .
SPECIFIED CURRENCY: OPTION TO ELECT PAYMENT AUTHORIZED DENOMIN-
(if other than IN SPECIFIED CURRENCY ATION:
U.S. dollars) (only applicable if [ ] $1,000 and integral
Specified Currency is multiples thereof.
other than U.S. dollars): [ ] Other:
[ ] Yes [ ] No
EXCHANGE RATE AGENT:
<PAGE> 3
ADDENDUM ATTACHED: DISCOUNT NOTE:
[ ] Yes [ ] Yes
[ ] No [ ] No
Issue Price: %
DEFAULT RATE:
OTHER PROVISIONS:
<PAGE> 4
BANKBOSTON CORPORATION, a Massachusetts corporation ("Issuer" or the
"Corporation," which terms include any successor corporation under the Senior
Indenture hereinafter referred to), for value received, hereby promises to pay
to CEDE & CO., or registered assigns, the principal amount of _______________,
on the Stated Maturity Date specified above (except to the extent redeemed or
repaid prior to the Stated Maturity Date), and to pay interest thereon, at a
rate per annum equal to the Initial Interest Rate specified above until the
Initial Interest Reset Date specified above and thereafter at a rate per annum
determined in accordance with the provisions hereof and any Addendum relating
hereto depending upon the Interest Rate Basis or Bases, if any, and such other
terms specified above, until the principal hereof is paid or duly made available
for payment, and (to the extent that the payment of such interest is legally
enforceable) at the Default Rate per annum specified above on any overdue
principal and premium, if any, and on any overdue installment of interest.
The Corporation will pay interest monthly, quarterly, semi-annually,
annually or such other period as specified above under "Interest Payment
Period", on each Interest Payment Date specified above, commencing on the first
Interest Payment Date specified above next succeeding the Original Issue Date
specified above, and on the Stated Maturity Date or any Redemption Date or
Optional Repayment Date (as defined below) (the date of each such Stated
Maturity Date, Redemption Date and Optional Repayment Date and the date on which
principal or an installment of principal is due and payable by declaration of
acceleration pursuant to the Senior Indenture, being referred to hereinafter as
a "Maturity" with respect to principal payable on such date); PROVIDED, HOWEVER,
that if the Original Issue Date falls between a Regular Record Date (as defined
below) and the next succeeding Interest Payment Date, interest payments will
commence on the Interest Payment Date immediately following the next succeeding
Regular Record Date to the registered Holder on such next succeeding Regular
Record Date; and PROVIDED, FURTHER, that if an Interest Payment Date (other than
an Interest Payment Date at Maturity) would otherwise fall on a day that is not
a Business Day (as defined below), such Interest Payment Date shall be postponed
to the next succeeding day that is a Business Day, except that if an Interest
Rate Basis is LIBOR, as indicated above, and such next Business Day falls in the
next succeeding calendar month, such Interest Payment Date shall be the
immediately preceding day that is a Business Day. Unless otherwise specified
above, the "Regular Record Date" with respect to any Interest Payment Date shall
be the date 15 calendar days (whether or not a Business Day) immediately
preceding such Interest Payment Date. If the Maturity of this Note falls on a
day which is not a Business Day, the payment of principal, premium, if any, and
interest due at Maturity will be made on the next succeeding Business Day with
the same force and effect as if made on such Maturity and no
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<PAGE> 5
interest shall accrue on the amount so payable for the period from and after
such Maturity. The interest so payable and punctually paid or duly provided for
on any Interest Payment Date will, as provided in the Senior Indenture, be paid
to the Person in whose name this Note (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such Interest
Payment Date. Any such interest which is payable, but not punctually paid or
duly provided for on any Interest Payment Date (herein called "Defaulted
Interest"), shall forthwith cease to be payable to the registered Holder on such
Regular Record Date, and may be paid to the Person in whose name this Note is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to the Holder of this Note not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner, all as more
fully provided in the Senior Indenture. Interest payable at Maturity will be
payable to the Person to whom the principal hereof shall be payable.
This Note will constitute Senior Indebtedness (as defined in the Senior
Indenture) ranking on a parity with other unsecured Senior Indebtedness of the
Corporation.
Reference herein to "this Note", "hereof", "herein" and comparable terms
shall include an Addendum hereto if an Addendum is specified above.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, and, if so specified on the face hereof, in an
Addendum hereto, which further provisions shall for all purposes have the same
force and effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, the manual signature of one of its authorized signatories,
this Note shall not be valid or obligatory for any purpose.
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<PAGE> 6
IN WITNESS WHEREOF, the Corporation has caused this Note to be duly
executed.
BANKBOSTON CORPORATION
[SEAL] By:
---------------------------------------
Name:
Title:
Attest:
By:
--------------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION This Note is one of the Securities referred to in
the Senior Indenture referred to herein.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By: BANKBOSTON, N.A., as
Authenticating Agent
By: Dated:
-------------------------------- -----------------------
Name:
Title:
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<PAGE> 7
[Reverse of Note]
BankBoston
Medium-Term Note
(Senior Floating Rate)
This Note is one of a duly authorized issue of Securities (hereinafter
called the "Securities") of the Corporation designated as its Senior Medium-Term
Notes (the "Notes"). The Notes are issued and to be issued under a Senior
Indenture dated as of June 15, 1992 (herein the "Senior Indenture") between the
Corporation and Norwest Bank Minnesota, National Association, Trustee (the
"Trustee" which term shall include any duly appointed successor trustee acting
in such capacity), to which Senior Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights
thereunder of the Corporation, the Trustee and the Holders of the Securities and
the terms upon which the Securities are, and are to be, authenticated and
delivered. Copies of the Senior Indenture are on file and available for
inspection at the offices of the Trustee located at 6th Street and Marquette
Avenue, Minneapolis, Minnesota 55479 or at such other place or places the
Trustee shall designate by notice to the person in whose name this Note is
registered (the "Holder") on the Security Register (as defined below). The terms
of individual Notes may vary with respect to interest rates or interest rate
formulas, issue dates, maturity, redemption, repayment, currency of payment and
otherwise.
The Notes are issuable only in registered form without coupons in the
Authorized Denominations specified on the face hereof. As provided in the Senior
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes denominated as
authorized, as requested by the Holder surrendering the same.
Unless otherwise specified herein, payments of principal of and premium,
if any, and interest on this Note are payable by the Corporation in the
Specified Currency specified on the face hereof (or, if such Specified Currency
is not at the time of such payment legal tender for the payment of public and
private debts, in such other coin or currency of the country which issued such
Specified Currency as at the time of such payment is legal tender for the
payment of such debts). If the Specified Currency specified on the face hereof
is other than United States dollars, any such amounts paid by the Corporation
will be converted by the Exchange Rate Agent specified on the face hereof into
United States dollars for payment to the Holder of this Note.
If the Specified Currency on the face hereof is other than United States
dollars, any United States dollar amount to be received by the Holder of this
Note will be based on the highest bid quotation in The City of New York received
by the Exchange Rate Agent at approximately 11:00 a.m., New York City time, on
7
<PAGE> 8
the second Business Day preceding the applicable payment date from three
recognized foreign exchange dealers (one of whom may be the Exchange Rate Agent)
selected by the Exchange Rate Agent and approved by the Corporation for the
purchase by the quoting dealer of the Specified Currency for United States
dollars for settlement on such payment date in the aggregate amount of the
Specified Currency payable to all Holders of Foreign Currency Notes denominated
in a currency other than United States dollars scheduled to receive United
States dollar payments and at which the applicable dealer commits to execute a
contract. All currency exchange costs will be borne by the Holder of this Note
by deductions from such payments. If three such bid quotations are not
available, payments on this Note will be made in the Specified Currency.
The Holder of this Note may elect to receive payment of the principal of
and premium, if any, and/or interest on this Note in the Specified Currency
specified on the face hereof by submitting a written request for such payment to
the Trustee at its principal corporate trust office in Minneapolis, Minnesota on
or prior to the applicable Record Date or at least fifteen calendar days prior
to the Maturity, as the case may be. Such written request may be mailed or hand
delivered or sent by cable, telex or other form of facsimile transmission. The
Holder of this Note may elect to receive payment in the applicable Specified
Currency for all such principal, premium, if any, and interest payments and need
not file a separate election for each payment. Such election will remain in
effect until revoked by written notice to the Trustee, but written notice of any
such revocation must be received by the Trustee on or prior to the applicable
Record Date or at least fifteen calendar days prior to the Maturity, as the case
may be.
If the Holder of this Note shall have duly made an election to receive
payments of principal, premium, if any, or interest in the Specified Currency
specified on the face hereof and the applicable Specified Currency is not
available due to the imposition of exchange controls or other circumstances
beyond the control of the Corporation, the Corporation shall be entitled to
satisfy its obligations to the Holder hereof by making such payment in United
States dollars on the basis of the Market Exchange Rate on the second Business
Day prior to such payment or, if such Market Exchange Rate is not then
available, on the basis of the most recently available Market Exchange Rate or
as otherwise provided herein. The "Market Exchange Rate" for a Specified
Currency other than United States dollars means the noon dollar buying rate in
The City of New York for cable transfer for such Specified Currency as certified
for customs purposes by (or if not so certified, as otherwise determined by) the
Federal Reserve Bank of New York. Any payment made under such circumstances in
United States dollars where the required payment is in a Specified Currency
other than United States
8
<PAGE> 9
dollars will not constitute an Event of Default under the Senior Indenture with
respect to this Note.
If the Holder of this Note shall have duly made an election to receive
payments of principal, premium, if any, or interest hereon in the Specified
Currency specified on the face hereof and such Specified Currency is European
Currency Units ("ECUs") or another currency unit, and such currency unit is
unavailable due to the imposition of exchange controls or other circumstances
beyond the Corporation's control, then the Corporation will be entitled, but not
required, to make any payments in respect of this Note in United States dollars
until such currency unit is again available. The amount of each payment in
United States dollars shall be computed on the basis of the equivalent of the
currency unit in United States dollars, which shall be determined by the
Exchange Rate Agent on the following basis. The component currencies of the
currency unit for this purpose (collectively, the "Component Currencies" and
each, a "Component Currency") shall be the currency amounts that were components
of the currency unit as of the last day on which the currency unit was used. The
equivalent of the currency unit in United States dollars shall be calculated by
aggregating the United States dollar equivalents of the Component Currencies.
The United States dollar equivalent of each of the Component Currencies shall be
determined by the Exchange Rate Agent on the basis of the most recently
available Market Exchange Rate for each such Component Currency.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the Holder hereof.
Except as otherwise provided in the Senior Indenture and as set forth
below, the Notes will be represented by one or more global securities,
registered in the name of the Depositary or its nominee and ownership of the
Notes shall be maintained in book-entry form by the Depositary for the accounts
of participating organizations of the Depositary. This Note is
9
<PAGE> 10
exchangeable for definitive Notes in registered form to persons other than the
Depositary or its nominee only if (a) the Depositary notifies the Corporation in
writing that it is no longer willing or able to continue as a depositary for the
Notes or if the Depositary ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, and a successor depositary is not
appointed by the Corporation within ninety days after the effective date of the
Depositary's ceasing to act as depositary for the Notes, (b) the Corporation, at
its option, notifies the Trustee in writing that it elects to cause the issuance
of Notes in definitive form, or (c) any event shall have happened and be
continuing which, after notice or lapse of time, or both, would constitute an
Event of Default with respect to the Notes. In the event of such occurrences,
upon the surrender by the Depositary or a successor depositary of this Note the
Corporation will execute, and the Trustee will, upon the execution of the then
standard form of the Trustee's agreement for certificated securities and upon
receipt of instructions in writing from the Corporation, authenticate and
deliver securities of like tenor and terms in definitive form to each person
that the Depositary or a successor depositary identifies as the beneficial owner
of an interest in this Note in an aggregate principal amount equal to the
principal amount of Notes represented by this Note then outstanding in exchange
for this Note. Any such certificated security will be issued in fully registered
form, without coupons, in the Authorized Denominations specified on the face
hereof. Such certificated security may not subsequently be exchanged by a Holder
for Notes in denominations of less than the minimum Authorized Denomination
specified on the face hereof.
This Note is not subject to any sinking fund or to the defeasance or
covenant defeasance provisions of the Senior Indenture and, unless otherwise
provided above in accordance with the provisions of the following paragraphs, is
not redeemable or repayable prior to the Stated Maturity Date.
If so provided above, this Note may be redeemed by the Corporation on
any date on and after the Initial Redemption Date, if any, specified above. If
no Initial Redemption Date is set forth above, this Note may not be redeemed
prior to the Stated Maturity Date. On and after the Initial Redemption Date, if
any, this Note may be redeemed at any time in whole or from time to time in part
in increments of $1,000 (or, if the Specified Currency indicated on the face
hereof is other than United States dollars, the minimum Authorized Denomination
specified on the face hereof) at the option of the Corporation at the applicable
Redemption Price (as defined below), together with unpaid interest, if any,
accrued hereon at the applicable rate payable to the date of redemption (each
such date, a "Redemption Date"), on written notice given not more than 60 nor
less than 30 calendar days prior to the Redemption Date. In the event of
redemption of this Note in part only, a new Note for the
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<PAGE> 11
unredeemed portion hereof shall be issued in the name of the Holder hereof upon
the surrender hereof. Whenever less than all the Notes at any time outstanding
are to be redeemed, the terms of the Notes to be so redeemed shall be selected
by the Corporation. In the event of redemption of this Note in part only, a new
Note for the unredeemed portion hereof shall be issued in the name of the Holder
hereof upon the surrender hereof.
Unless otherwise specified above, the "Redemption Price" shall
initially be the Initial Redemption Percentage, specified above, of the
principal amount of this Note to be redeemed and, if greater than 100%, shall
decline at each anniversary of the Initial Redemption Date by the Annual
Redemption Percentage Reduction, if any, specified above, of the principal
amount to be redeemed until the Redemption Price is 100% of such principal
amount.
This Note may be subject to repayment at the option of the Holder on
the Optional Repayment Date(s), if any, indicated above. If no Optional
Repayment Date(s) are set forth above, this Note is not subject to repayment at
the option of the Holder hereof prior to the Stated Maturity Date. On any
Optional Repayment Date, this Note shall be repayable in whole or in part in
increments of $1,000 (or, if the Specified Currency indicated on the face hereof
is other than United States dollars, in the minimum Authorized Denomination
specified on the face hereof) at the option of the Holder hereof at a repayment
price equal to the sum of (i) 100% of the unpaid principal amount to be repaid
plus (ii) accrued interest, if any, hereon at the applicable rate payable to the
relevant Optional Repayment Date. For this Note to be repaid in whole or in part
at the option of the Holder hereof, this Note must be received, with the form
entitled "Option to Elect Repayment" below duly completed, by one of the Paying
Agents at its office, or such address which the Corporation shall from time to
time notify the Holders of the Notes, not more than 60 nor less than 30 days
prior to the relevant Optional Repayment Date. Exercise of such repayment option
by the Holder hereof shall be irrevocable. In the event of repayment of this
Note in part only, a new Note for the unrepaid portion hereof shall be issued in
the name of the Holder hereof upon the surrender hereof.
While this Note is held by or on behalf of the Depositary, and
registered in the name of the Depositary or the Depositary's nominee, the option
for repayment may be exercised by the applicable participant that has an account
with the Depositary, on behalf of the beneficial owners of this Note, by
delivering a written notice substantially similar to the above mentioned form to
one of the Paying Agents at its office (or such other address of which the
Corporation shall from time to time notify the Holders), not more than 60 nor
less than 30 days prior to the date of repayment. Notices of elections from
participants on
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<PAGE> 12
behalf of beneficial owners of this Note to exercise their option to have the
interests of such beneficial owners in this Note repaid must be received by one
of the Paying Agents not later than 5:00 P.M., New York City time, on the last
day for giving such notice. In order to ensure that a notice is received by one
of the Paying Agents on a particular day, the beneficial owner of this Note must
so direct the applicable participant before such participant's deadline for
accepting instructions for that day. Different firms may have different
deadlines for accepting instructions from their customers. Accordingly,
beneficial owners of this Note should consult the participants through which
they own their interest herein for the respective deadlines for such
participants. All notices shall be executed by a duly authorized officer of such
participant (with signature guaranteed) and shall be irrevocable. In addition,
beneficial owners of this Note shall effect delivery at the time such notices of
election are given to the Depositary by causing the applicable participant to
transfer such beneficial owner's interest in this Note, on the Depositary's
records, to the Trustee.
The interest rate borne by this Note shall be determined as follows:
1. If this Note is designated as a Regular Floating Rate
Note on the face hereof or if no designation is made for Interest
Calculation on the face hereof, then, except as described below or in an
Addendum hereto, this Note shall bear interest at the rate determined by
reference to the applicable Interest Rate Basis or Bases shown on the
face hereof (i) plus or minus the applicable Spread, if any, and/or (ii)
multiplied by the applicable Spread Multiplier, if any, specified and
applied in the manner described on the face hereof. Commencing on the
Initial Interest Reset Date, the rate at which interest on this Note is
payable shall be reset as of each Interest Reset Date specified on the
face hereof; PROVIDED, HOWEVER, that the interest rate in effect for the
period from the Original Issue Date to the Initial Interest Reset Date
will be the Initial Interest Rate.
2. If this Note is designated as a Floating Rate/Fixed Rate
Note on the face hereof, then, except as described below or in an
Addendum hereto, this Note shall bear interest at the rate determined by
reference to the applicable Interest Rate Basis or Bases shown on the
face hereof (i) plus or minus the applicable Spread, if any, and/or (ii)
multiplied by the applicable Spread Multiplier, if any, specified and
applied in the manner described on the face hereof. Commencing on the
Initial Interest Reset Date, the rate at which interest on this Note is
payable shall be reset as of each Interest Reset Date specified on the
face hereof; PROVIDED, HOWEVER, that (i) the interest rate in effect for
the period from the Original Issue Date to the
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<PAGE> 13
Initial Interest Reset Date shall be the Initial Interest Rate; and (ii)
the interest rate in effect for the period commencing on, and including,
the Fixed Rate Commencement Date to the Maturity shall be the Fixed
Interest Rate, if such a rate is specified on the face hereof, or if no
such Fixed Interest Rate is so specified, the interest rate in effect
hereon on the Business Day immediately preceding the Fixed Rate
Commencement Date.
3. If this Note is designated as an Inverse Floating Rate
Note on the face hereof, then, except as described below or in an
Addendum hereto, this Note shall bear interest equal to the Fixed
Interest Rate indicated on the face hereof minus the rate determined by
reference to the applicable Interest Rate Basis or Bases shown on the
face hereof (i) plus or minus the applicable Spread, if any, and/or (ii)
multiplied by the applicable Spread Multiplier, if any, specified and
applied in the manner described on the face hereof; PROVIDED, HOWEVER,
that, unless otherwise specified on the face hereof, the interest rate
hereon will not be less than zero percent. Commencing on the Initial
Interest Reset Date, the rate at which interest on this Note is payable
shall be reset as of each Interest Reset Date specified on the face
hereof; PROVIDED, -------- however, that the interest rate in effect for
the period from the Original Issue Date to the Initial Interest Reset
Date shall be the Initial Interest Rate.
Notwithstanding the foregoing, if this Note is designated on the face
hereof as having an Addendum attached, this Note shall bear interest in
accordance with the terms described in such Addendum.
Except as provided above, the interest rate in effect on each day shall
be (a) if such day is an Interest Reset Date, the interest rate determined as of
the Interest Determination Date (as defined below) immediately preceding such
Interest Reset Date or (b) if such day is not an Interest Reset Date, the
interest rate determined as of the Interest Determination Date immediately
preceding the next preceding Interest Reset Date. Each Interest Rate Basis shall
be the rate determined in accordance with the applicable provision below. If any
Interest Reset Date (which term includes the term Initial Interest Reset Date
unless the context otherwise requires) would otherwise be a day that is not a
Business Day, such Interest Reset Date shall be postponed to the next succeeding
day that is a Business Day, except that if an Interest Rate Basis specified on
the face hereof is LIBOR and such next Business Day falls in the next succeeding
calendar month, such Interest Reset Date shall be the immediately preceding
Business Day.
Unless otherwise specified on the face hereof, interest payable on this
Note on any Interest Payment Date shall be the
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<PAGE> 14
amount of interest accrued from and including the next preceding Interest
Payment Date in respect of which interest has been paid (or from and including
the Original Issue Date specified on the face hereof, if no interest has been
paid), to but excluding the related Interest Payment Date or Maturity, as the
case may be.
Unless otherwise specified on the face hereof, accrued interest hereon
shall be an amount calculated by multiplying the face amount hereof by an
accrued interest factor. Such accrued interest factor shall be computed by
adding the interest factor calculated for each day in the period for which
accrued interest is being calculated. Unless otherwise specified on the face
hereof, the interest factor for each such day shall be computed on the basis of
a 360-day year of twelve 30-day months if the Day Count Convention specified on
the face hereof is "30/360" for the period specified thereunder, or by dividing
the interest rate applicable to such day by 360 if the Day Count Convention
specified on the face hereof is "Actual/360" for the period specified thereunder
or by the actual number of days in the year if the Day Count Convention
specified on the face hereof is "Actual/Actual" for the period specified
thereunder. If interest on this Note is to be calculated with reference to two
or more Interest Rate Bases as specified on the face hereof, the interest factor
will be calculated in each period in the same manner as if only one of the
applicable Interest Rate Bases applied.
Unless otherwise specified on the face hereof, the "Interest
Determination Date" with respect to the CMT Rate, the Commercial Paper Rate, the
Federal Funds Rate and the Prime Rate will be the second Business Day
immediately preceding each Interest Reset Date; the "Interest Determination
Date" with respect to the Eleventh District Cost of Funds Rate will be the last
working day of the month immediately preceding each Interest Reset Date on which
the Federal Home Loan Bank of San Francisco (the "FHLB of San Francisco")
publishes the Index (as defined below); the "Interest Determination Date" with
respect to LIBOR shall be the second London Business Day (as defined below)
immediately preceding each Interest Reset Date; and the "Interest Determination
Date" with respect to the Treasury Rate will be the day in the week in which the
Interest Reset Date falls on which day Treasury bills (as defined below) are
normally auctioned (Treasury bills are normally sold at auction on Monday of
each week, unless that day is a legal holiday, in which case the auction is
normally held on the following Tuesday, except that such auction may be held on
the preceding Friday); PROVIDED, HOWEVER, that if an auction is held on the
Friday of the week preceding the related Interest Reset Date, the Interest
Determination Date shall be such preceding Friday; and PROVIDED, FURTHER, that
if an auction shall fall on any Interest Reset Date, then the Interest Reset
Date shall instead be the first Business Day following such auction. If the
interest rate of this Note is determined with reference to two or more Interest
Rate Bases as specified on the face hereof, the Interest
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<PAGE> 15
Determination Date pertaining to this Note will be the most recent Business Day
which is at least two Business Days prior to such Interest Reset Date on which
each Interest Rate Basis is determinable. Each Interest Rate Basis shall be
determined on such date, and the applicable interest rate shall take effect on
the related Interest Reset Date.
Unless otherwise specified on the face hereof, the "Calculation Date"
pertaining to any Interest Determination Date will be the earlier of (i) the
tenth calendar day after such Interest Determination Date or, if such day is not
a Business Day, the next succeeding Business Day and (ii) the Business Day
immediately preceding the applicable Interest Payment Date or Maturity, as the
case may be. All calculations on this Note shall be made by the Calculation
Agent specified on the face hereof or such successor thereto as is duly
appointed by the Corporation. The determination of any interest rate by the
Calculation Agent will be final and binding absent manifest error.
All percentages resulting from any calculation on this Note will be
rounded, if necessary, to the nearest one hundred-thousandth of a percentage
point, with five one-millionths of a percentage point rounded upward (e.g.,
9.876545% (or 0.09876545) would be rounded to 9.87655% (or 0.0987655) and
9.876544% (or 0.09876544) would be rounded to 9.87654% (or 0.0987654)), and all
U.S. dollar amounts used in or resulting from such calculation will be rounded
to the nearest cent or, in the case of a Specified Currency other than U.S.
dollars, to the nearest unit (with one-half cent or unit being rounded upward).
As used herein, "Business Day" means, unless otherwise specified above,
any day, other than a Saturday or Sunday, that is neither a legal holiday nor a
day on which banking institutions are authorized or required by law, regulation
or executive order to close in The City of New York or Boston, Massachusetts;
PROVIDED, HOWEVER, that, if the Holder hereof shall have duly made an election
to receive payments of principal of and premium, if any, and/or interest on this
Note in the Specified Currency specified on the face hereof, such day is also
not a day on which banking institutions are authorized or required by law,
regulation or executive order to close in the Principal Financial Center (as
defined below) of the country issuing such Specified Currency unless the
Specified Currency is ECU, in which case such day is also not a day that appears
as an ECU non-settlement day on the display designated as "ISDE" on the Reuter
Monitor Money Rates Service (or is not a day designated as an ECU non-settlement
day by the ECU Banking Association) or, if ECU non-settlement days do not appear
on that page (and are not so designated), a day that is not a day on which
payments in ECU cannot be settled in the international interbank market);
PROVIDED, FURTHER, that, if LIBOR is an applicable Interest Rate Basis, such day
is also a London Business Day. "London Business
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<PAGE> 16
Day" means any day on which dealings in the Designated LIBOR Currency (as
hereinafter defined) are transacted in the London interbank market. "Principal
Financial Center" means the capital city of the country issuing the Specified
Currency (except as described in the immediately preceding sentence with respect
to ECU), except that with respect to U.S. dollars, Australian dollars, Canadian
dollars, Deutsche marks, Dutch guilders, Italian lire and Swiss francs, the
"Principal Financial Center" shall be The City of New York, Sydney, Toronto,
Frankfurt, Amsterdam, Milan (solely with respect to the Specified Currency) and
Zurich, respectively.
DETERMINATION OF CMT RATE. If an Interest Rate Basis for this Note is
the CMT Rate, as indicated on the face hereof, the CMT Rate shall be determined
as of the applicable Interest Determination Date (a "CMT Rate Interest
Determination Date"), as the rate displayed on the Designated CMT Telerate Page
(as defined below) under the caption "...Treasury Constant Maturities...Federal
Reserve Board Release H.15...Mondays Approximately 3:45 P.M.," under the column
for the Designated CMT Maturity Index (as defined below) for (i) if the
Designated CMT Telerate Page is 7055, the rate on such CMT Rate Interest
Determination Date and (ii) if the Designated CMT Telerate Page is 7052, the
weekly, or the monthly average as indicated on the face hereof, for the week or
the month, as applicable, ended immediately preceding the week or the month in
which the related CMT Rate Interest Determination Date falls. If such rate is no
longer displayed on the relevant page, or if not displayed by 3:00 P.M., New
York City time, on the related Calculation Date, then the CMT Rate for such CMT
Rate Interest Determination Date will be such treasury constant maturity rate
for the Designated CMT Maturity Index as published by the Board of Governors of
the Federal Reserve System in the relevant weekly statistical release entitled
"Statistical Release H.15(519), Selected Interest Rates," or any successor
publication ("H.15(519)"). If such rate is no longer published, or if not
published by 3:00 P.M., New York City time, on the related Calculation Date,
then the CMT Rate for such CMT Rate Interest Determination Date will be such
treasury constant maturity rate for the Designated CMT Maturity Index (or other
United States Treasury rate for the Designated CMT Maturity Index) for the CMT
Rate Interest Determination Date with respect to such Interest Reset Date as may
then be published by either the Board of Governors of the Federal Reserve System
or the United States Department of the Treasury that the Calculation Agent
determines to be comparable to the rate formerly displayed on the Designated CMT
Telerate Page and published in H.15(519). If such information is not provided by
3:00 P.M., New York City time, on the related Calculation Date, then the CMT
Rate for the CMT Rate Interest Determination Date shall be calculated by the
Calculation Agent and shall be a yield to maturity, based on the arithmetic mean
of the secondary market offered rates as of approximately 3:30 P.M., New York
City time, on the CMT Rate Interest Determination Date reported, according to
their written
16
<PAGE> 17
records, by three leading primary United States government securities dealers
(each, a "Reference Dealer") in The City of New York selected by the Calculation
Agent (from five such Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for the most recently issued direct noncallable fixed rate obligations
of the United States ("Treasury Notes") with an original maturity of
approximately the Designated CMT Maturity Index and a remaining term to maturity
of not less than such Designated CMT Maturity Index minus one year. If the
Calculation Agent cannot obtain three such Treasury Note quotations, the CMT
Rate for such CMT Rate Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity based on the arithmetic mean
of the secondary market offered rates as of approximately 3:30 P.M., New York
City time, on the CMT Rate Interest Determination Date of three Reference
Dealers in The City of New York (from five such Reference Dealers selected by
the Calculation Agent and eliminating the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest)), for Treasury Notes with an original maturity of
the number of years that is the next highest to the Designated CMT Maturity
Index and a remaining term to maturity closest to the Designated CMT Maturity
Index and in an amount of at least $100 million. If three or four (and not five)
of such Reference Dealers are quoting as described above, then the CMT Rate will
be based on the arithmetic mean of the offered rates obtained and neither the
highest nor the lowest of such quotes will be eliminated; PROVIDED, HOWEVER,
that if fewer than three Reference Dealers selected by the Calculation Agent are
quoting as described herein, the CMT Rate will be the CMT Rate in effect on such
CMT Rate Interest Determination Date. If two Treasury Notes with an original
maturity of approximately the Designated CMT Maturity Index have remaining terms
to maturity equally close to the Designated CMT Maturity Index, the quotes for
the Treasury Note with the shorter remaining term to maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow Jones
Markets Limited (or any successor service) on the page designated on the face
hereof (or any other page as may replace such page on that service for the
purpose of displaying Treasury Constant Maturities as reported in H.15(519)). If
no such page is specified on the face hereof, the Designated CMT Telerate Page
shall be 7052.
"Designated CMT Maturity Index" means the original period to maturity of
the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years specified
on the face hereof with respect to which the CMT Rate will be calculated. If no
such maturity is specified on the face hereof, the Designated CMT Maturity Index
shall be 2 years.
17
<PAGE> 18
DETERMINATION OF COMMERCIAL PAPER RATE. If an Interest Rate Basis for
this Note is the Commercial Paper Rate, as indicated on the face hereof, the
Commercial Paper Rate shall be determined as of the applicable Interest
Determination Date (a "Commercial Paper Rate Interest Determination Date"), as
the Money Market Yield (as defined below) on such date of the rate for
commercial paper having the Index Maturity specified on the face hereof as
published in H.15(519) under the caption "Commercial Paper--Nonfinancial". In
the event that such rate is not published by 3:00 P.M., New York City time, on
the related Calculation Date, then the Commercial Paper Rate on such Commercial
Paper Rate Interest Determination Date shall be calculated by the Calculation
Agent and shall be the Money Market Yield of the arithmetic mean of the offered
rates at approximately 11:00 A.M., New York City time, on such Commercial Paper
Rate Interest Determination Date of three leading dealers of commercial paper in
The City of New York selected by the Calculation Agent for commercial paper
having the Index Maturity specified on the face hereof placed for a
non-financial entity whose bond rating is "Aa," or the equivalent, from a
nationally recognized statistical rating organization; PROVIDED, HOWEVER, that
if any of the dealers selected as aforesaid by the Calculation Agent are not
quoting as mentioned in this sentence, the Commercial Paper Rate determined as
of such Commercial Paper Rate Interest Determination Date shall be the rate in
effect on such Commercial Paper Rate Interest Determination Date.
"Money Market Yield" shall be a yield (expressed as a percentage)
calculated in accordance with the following formula:
Money Market Yield = D x 360 x 100
-----------
360-(D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal and "M" refers to the actual
number of days in the interest period for which interest is being calculated.
DETERMINATION OF ELEVENTH DISTRICT COST OF FUNDS RATE. If an Interest
Rate Basis for this Note is the Eleventh District Cost of Funds Rate, as
indicated on the face hereof, the Eleventh District Cost of Funds Rate shall be
determined as of the applicable Interest Determination Date (an "Eleventh
District Cost of Funds Rate Interest Determination Date"), as the rate equal to
the monthly weighted average cost of funds for the calendar month immediately
preceding the month in which such Eleventh District Cost of Funds Rate Interest
Determination Date falls, as set forth under the caption "11th District" on
Telerate Page 7058 (as defined below) as of 11:00 A.M., San Francisco time, on
such Eleventh District Cost of Funds Rate Interest Determination Date. If such
rate does not appear on Telerate Page 7058 on any related Eleventh District Cost
of Funds Rate
18
<PAGE> 19
Interest Determination Date, the Eleventh District Cost of Funds Rate for such
Eleventh District Cost of Funds Rate Interest Determination Date shall be the
monthly weighted average cost of funds paid by member institutions of the
Eleventh Federal Home Loan Bank District that was most recently announced (the
"Index") by the FHLB of San Francisco as such cost of funds for the calendar
month immediately preceding the date of such announcement. If the FHLB of San
Francisco fails to announce the Index for the calendar month immediately
preceding such Eleventh District Cost of Funds Rate Interest Determination Date,
then the Eleventh District Cost of Funds Rate determined as of such Eleventh
District Cost of Funds Rate Interest Determination Date shall be the Eleventh
District Cost of Funds Rate in effect on such Eleventh District Cost of Funds
Rate Interest Determination Date.
"Telerate Page 7058" means the display designated as page "7058" on the
Dow Jones Telerate Service (or such other page as may replace the 7058 page on
that service for the purpose of displaying the monthly weighted average cost of
funds paid by member institutions of the Eleventh Federal Home Loan Bank
District).
DETERMINATION OF FEDERAL FUNDS RATE. If an Interest Rate Basis for this
Note is the Federal Funds Rate, as indicated on the face hereof, the Federal
Funds Rate shall be determined as of the applicable Interest Determination Date
(a "Federal Funds Rate Interest Determination Date"), as the rate on such date
for United States dollar federal funds as published in H.15(519) under the
heading "Federal Funds (Effective)" or, if not so published by 3:00 P.M., New
York City time, on the related Calculation Date, the rate on such Federal Funds
Rate Interest Determination Date, as published in Composite Quotations under the
heading "Federal Funds/Effective Rate." If by 3:00 P.M., New York City time, on
the related Calculation Date such rate is not published in either H.15(519) or
Composite Quotations, then the Federal Funds Rate on such Federal Funds Rate
Interest Determination Date shall be calculated by the Calculation Agent and
shall be the arithmetic mean of the rates for the last transaction in overnight
United States dollar federal funds arranged prior to 9:00 A.M., New York City
time, on such Federal Funds Rate Interest Determination Date by three leading
brokers of federal funds transactions in The City of New York selected by the
Calculation Agent; PROVIDED, HOWEVER, that if any of the brokers selected as
aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, the Federal Funds Rate determined as of such Federal Funds Rate
Interest Determination Date shall be the Federal Funds Rate in effect on such
Federal Funds Rate Interest Determination Date.
DETERMINATION OF LIBOR. If an Interest Rate Basis for this Note is
LIBOR, as indicated on the face hereof, LIBOR shall be determined by the
Calculation Agent as of the applicable Interest
19
<PAGE> 20
Determination Date (a "LIBOR Interest Determination Date") in accordance with
the following provisions:
(i) (a) "LIBOR Reuters" is specified on the face hereof, the
arithmetic mean of the offered rates (unless the Designated LIBOR Page by its
terms provides only for a single rate, in which case such single rate shall be
used) for deposits in the Designated LIBOR Currency having the Index Maturity,
commencing on the applicable Interest Reset Date, that appear (or, if only a
single rate is required as aforesaid, appears) on the Designated LIBOR Page as
of 11:00 A.M., London time, on such LIBOR Interest Determination Date, or (b)
"LIBOR Telerate" is specified on the face hereof, or if neither "LIBOR Reuters"
nor "LIBOR Telerate" is specified on the face hereof as the method for
calculating LIBOR, the rate for deposits in the Designated LIBOR Currency having
the Index Maturity, commencing on such Interest Reset Date, that appears on the
Designated LIBOR Page as of 11:00 A.M., London time, on such LIBOR Interest
Determination Date. If fewer than two such offered rates so appear, or if no
such rate so appears, as applicable, LIBOR on such LIBOR Interest Determination
Date shall be determined in accordance with the provisions described in clause
(ii) below.
(ii) With respect to a LIBOR Interest Determination Date on which
fewer than two offered rates appear, or no rate appears, as the case may be, on
the Designated LIBOR Page as specified in clause (i) above, the Calculation
Agent shall request the principal London offices of each of four major reference
banks in the London interbank market, as selected by the Calculation Agent, to
provide the Calculation Agent with its offered quotation for deposits in the
Designated LIBOR Currency for the period of the Index Maturity, commencing on
the applicable Interest Reset Date, to prime banks in the London interbank
market at approximately 11:00 A.M., London time, on such LIBOR Interest
Determination Date and in a principal amount that is representative for a single
transaction in the Designated LIBOR Currency in such market at such time. If at
least two such quotations are so provided, then LIBOR on such LIBOR Interest
Determination Date will be the arithmetic mean of such quotations. If fewer than
two such quotations are so provided, then LIBOR on such LIBOR Interest
Determination Date will be the arithmetic mean of the rates quoted at
approximately 11:00 A.M., in the applicable Principal Financial Center, on such
LIBOR Interest Determination Date by three major banks in such Principal
Financial Center selected by the Calculation Agent for loans in the Designated
LIBOR Currency to leading European banks, having the Index Maturity and in a
principal amount that is representative for a single transaction in the
Designated LIBOR Currency in such market at such time; PROVIDED, HOWEVER, that
if the banks so selected by the Calculation Agent are not quoting as mentioned
in this sentence, LIBOR determined as of such LIBOR Interest Determination Date
shall be LIBOR in effect on such LIBOR Interest Determination Date.
20
<PAGE> 21
"Designated LIBOR Currency" means the currency or composite currency
specified on the face hereof as to which LIBOR shall be calculated or, if no
such currency or composite currency is specified on the face hereof, United
States dollars.
"Designated LIBOR Page" means (a) if "LIBOR Reuters" is specified on the
face hereof, the display on the Reuter Monitor Money Rates Service (or any
successor service) on the page specified on the face hereof (or any other page
as may replace such page on such service) for the purpose of displaying the
London interbank rates of major banks for the Designated LIBOR Currency, or (b)
if "LIBOR Telerate" is specified on the face hereof or neither "LIBOR Reuters"
nor "LIBOR Telerate" is specified on the face hereof as the method for
calculating LIBOR, the display on the Dow Jones Markets Limited (or any
successor service) on the page specified on the face hereof (or any other page
as may replace such page on such service) for the purpose of displaying the
London interbank rates of major banks for the Designated LIBOR Currency, unless
the Designated LIBOR Currency specified in the applicable Pricing Supplement is
U.S. dollars, in which case the display designated as page "3750" on the Dow
Jones Telerate Service (or such other page as may replace such page on such
service).
DETERMINATION OF PRIME RATE. If an Interest Rate Basis for this Note is
the Prime Rate, as indicated on the face hereof, the Prime Rate shall be
determined as of the applicable Interest Determination Date (a "Prime Rate
Interest Determination Date") as the rate on such date as such rate is published
in H.15(519) under the heading "Bank Prime Loan". If such rate is not published
prior to 3:00 P.M., New York City time, on the related Calculation Date, then
the Prime Rate shall be the arithmetic mean of the rates of interest publicly
announced by each bank that appears on the Reuters Screen USPRIME1 Page (as
defined below) as such bank's prime rate or base lending rate as in effect for
such Prime Rate Interest Determination Date. If fewer than four such rates
appear on the Reuters Screen USPRIME1 Page for such Prime Rate Interest
Determination Date, the Prime Rate shall be the arithmetic mean of the prime
rates or base lending rates quoted on the basis of the actual number of days in
the year divided by a 360-day year as of the close of business on such Prime
Rate Interest Determination Date by four major money center banks in The City of
New York selected by the Calculation Agent. If fewer than four such rates appear
on the Reuters Screen USPRIME1 Page, the Prime Rate will be the arithmetic mean
of the prime rates or base lending rates quoted on the basis of the actual
number of days in the year divided by a 360-day year as of the close of business
on such Prime Rate Interest Determination Date by four major money center banks
in The City of New York selected by the Calculation Agent. If fewer than four
such quotations are so provided, then the Prime Rate shall be the arithmetic
mean of four prime rates quoted on the basis of
21
<PAGE> 22
the actual number of days in the year divided by a 360-day year as of the close
of business on such Prime Rate Interest Determination Date as furnished in The
City of New York by the major money center banks, if any, that have provided
such quotations and by a reasonable number of substitute banks or trust
companies to obtain four such prime rate quotations, provided such substitute
banks or trust companies are organized and doing business under the laws of the
United States, or any State thereof, each having total equity capital of at
least $500 million and being subject to supervision or examination by Federal or
State authority, selected by the Calculation Agent to provide such rate or
rates; PROVIDED, HOWEVER, that if the banks or trust companies selected as
aforesaid are not quoting as mentioned in this sentence, the Prime Rate
determined as of such Prime Rate Interest Determination Date shall be the Prime
Rate in effect on such Prime Rate Interest Determination Date.
"Reuters Screen USPRIME1 Page" means the display on the Reuter Monitor
Money Rates Service (or any successor service) on the "USPRIME1" page (or such
other page as may replace the USPRIME1 page on such service) for the purpose of
displaying prime rates or base lending rates of major United States banks.
DETERMINATION OF TREASURY RATE. If an Interest Rate Basis for this Note
is the Treasury Rate, as specified on the face hereof, the Treasury Rate shall
be determined as of the applicable Interest Determination Date (a "Treasury Rate
Interest Determination Date") as the rate applicable to the most recent auction
of direct obligations of the United States ("Treasury Bills") having the Index
Maturity specified on the face hereof, as such rate is published in H.15(519)
under the heading "Treasury Bills - auction average (investment)" or, if not
published by 3:00 P.M., New York City time, on the related Calculation Date, the
auction average rate (expressed as a bond equivalent on the basis of a year of
365 or 366 days, as applicable, and applied on a daily basis) as otherwise
announced by the United States Department of the Treasury. In the event that the
results of the auction of Treasury Bills having the Index Maturity specified on
the face hereof are not reported as provided by 3:00 P.M., New York City time,
on such Calculation Date, or if no such auction is held in a particular week,
then the Treasury Rate shall be calculated by the Calculation Agent and shall be
a yield to maturity (expressed as a bond equivalent on the basis of a year of
365 or 366 days, as applicable, and applied on a daily basis) of the arithmetic
mean of the secondary market bid rates, as of approximately 3:30 P.M., New York
City time, on such Treasury Rate Interest Determination Date, of three leading
primary United States government securities dealers selected by the Calculation
Agent, for the issue of Treasury Bills with a remaining maturity closest to the
Index Maturity specified on the face hereof; PROVIDED, HOWEVER, that if any of
the dealers selected as aforesaid by the Calculation Agent are not quoting as
mentioned in this sentence, the Treasury Rate
22
<PAGE> 23
determined as of such Treasury Rate Interest Determination Date shall be the
Treasury Rate in effect on such Treasury Rate Interest Determination Date.
Any provision contained herein, including the determination of an
Interest Rate Basis, the specification of an Interest Rate Basis, calculation of
the interest rate applicable to this Note, its Interest Payment Dates or any
other matter relating hereto may be modified as specified in an Addendum
relating hereto if so specified on the face hereof.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, specified on the face hereof. In addition to any Maximum
Interest Rate applicable hereto pursuant to the above provisions, the interest
rate on this Note will in no event be higher than the maximum rate permitted by
Massachusetts law, as the same may be modified by United States law of general
application. The Calculation Agent shall calculate the interest rate hereon in
accordance with the foregoing on or before each Calculation Date. Unless
otherwise specified on the face hereof, BankBoston, N.A. will be the Calculation
Agent. The determination of any interest rate by the Calculation Agent shall be
final and binding absent manifest error.
At the request of the Holder hereof, the Calculation Agent shall provide
to the Holder hereof the interest rate hereon then in effect and, if determined,
the interest rate which shall become effective as of the next Interest Reset
Date.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of all the Notes may be declared due and payable in
the manner and with the effect provided in the Senior Indenture.
If this Note is specified on the face hereof as a Discount Note, the
amount payable to the Holder of this Note in the event of redemption, repayment
or acceleration of maturity of this Note will be equal to the sum of (1) the
Issue Price specified on the face hereof (increased by any accruals of the
Discount, as defined below) and, in the event of any redemption of this Note (if
applicable), multiplied by the Initial Redemption Percentage (as adjusted by the
Annual Redemption Percentage Reduction, if applicable) and (2) any unpaid
interest accrued thereon to the Redemption Date, Repayment Date or date of
acceleration of maturity, as the case may be. The difference between the Issue
Price and 100% of the principal amount of this Note is referred to herein as the
"Discount."
For purposes of determining the amount of Discount that has accrued as
of any Redemption Date, Repayment Date or date of acceleration of maturity of
this Note, such Discount will be
23
<PAGE> 24
accrued so as to cause an assumed yield on the Note to be constant. The assumed
constant yield will be calculated using a 30-day month, 360-day year convention,
a compounding period that, except for the Initial Period (as defined below),
corresponds to the shortest period between Interest Payment Dates (with ratable
accruals within a compounding period), a constant coupon rate equal to the
initial interest rate applicable to this Note and an assumption that the
maturity of this Note will not be accelerated. If the period from the Original
Issue Date to the initial Interest Payment Date (the "Initial Period") is
shorter than the compounding period for this Note, a proportionate amount of the
yield for an entire compounding period will be accrued. If the Initial Period is
longer than the compounding period, then such period will be divided into a
regular compounding period and a short period, with the short period being
treated as provided in the preceding sentence.
The Senior Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Corporation and the rights of the Holders of the Securities
of each series to be affected under the Senior Indenture at any time by the
Corporation and the Trustee with the consent of the Holders of 66 2/3% in
aggregate principal amount of the Securities at the time Outstanding, as defined
in the Senior Indenture, of each series affected thereby. The Senior Indenture
also contains provisions permitting the Holders of specified percentages in
aggregate principal amount of the Outstanding Securities of each series at the
time, on behalf of the Holders of all Securities of each series, to waive
compliance with certain provisions of the Senior Indenture and certain past
defaults under the Senior Indenture and their consequences. Any such consent or
waiver by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof whether
or not notation of such consent or waiver is made upon this Note.
No reference herein to the Senior Indenture and no provision of this
Note or of the Senior Indenture shall alter or impair the obligation of the
Corporation, which is absolute and unconditional, to pay the principal of and
interest on this Note at the time, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Senior Indenture and subject to certain limitations
therein set forth, this registered Note 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 Notes of the
same series at the office of Securities Transfer & Reporting Services, Inc. in
The City of New York or the principal office of BankBoston, N.A. in The City of
Boston.
24
<PAGE> 25
No service charge shall be made for any registration of transfer or
exchange, but the Corporation may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Corporation or the Trustee and any agent of the Corporation or the Trustee may
treat the Person in whose name this Note is registered as the owner hereof for
all purposes, whether or not this Note be overdue, and neither the Corporation,
the Trustee nor any such agent shall be affected by notice to the contrary.
This Note and the Senior Indenture shall be governed by and construed in
accordance with the laws of The Commonwealth of Massachusetts.
All terms used in this Note which are defined in the Senior Indenture
shall have the meanings assigned to them in the Senior Indenture.
25
<PAGE> 26
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Corporation to repay this Note (or portion hereof specified below) pursuant to
its terms at a price equal to the principal amount hereof together with interest
to the repayment date, to the undersigned, at _________________________________
_______________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, one of the Paying Agents must receive at its
office, or at such other place or places of which the Corporation shall from
time to time notify the Holder of this Note, not more than 60 nor less than 30
days prior to an Optional Repayment Date, if any, shown above, this Note with
this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of $1,000) (or, if the
Specified Currency indicated on the face hereof is other than United States
dollars, in the minimum Authorized Denomination specified on the face hereof)
which the Holder elects to have repaid and specify the denomination or
denominations (which shall be an Authorized Denomination) of the Notes to be
issued to the Holder for the portion of this Note not being repaid (in the
absence of any such specification, one such Note will be issued for the portion
not being repaid).
$____________________________________ ____________________________________
NOTICE: The signature on this Option
Date ________________________________ to Elect Repayment must correspond
with the name as written upon the
face of this Note in every
particular, without alteration or
enlargement or any change whatever.
26
<PAGE> 27
ASSIGNMENT/TRANSFER FORM
FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s),
assign(s) and transfer(s) unto (insert Social Security or Taxpayer
Identification No.) ___________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_____________ (Please print or typewrite name and address including postal zip
code of assignee)
_______________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
_________________________________ attorney to transfer said Note on the books
of the Corporation with full power of substitution in the premises.
Dated: ____________________ ___________________________________________
NOTICE: The signature of the registered Holder to this assignment must
correspond with the name as written upon the face of the within
instrument in every particular, without alteration or enlargement or any
change whatsoever.
27
<PAGE> 28
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM--as tenants in common
UNIF GIFT MIN ACT--................Custodian......................
(Cust) (Minor)
Under Uniform Gifts to Minors Act
.................................
(State)
TEN ENT--as tenants by the entireties
JT TEN--as joint tenants with right of survivorship
and not as tenants in common
Additional abbreviations may also be used though not in the above list.
28
<PAGE> 1
EXHIBIT 4(c)
[FORM OF SUBORDINATED FIXED RATE GLOBAL MEDIUM-TERM NOTE]
THIS NOTE IS A DIRECT, UNCONDITIONAL AND UNSECURED OBLIGATION OF BANKBOSTON
CORPORATION (THE "CORPORATION"), IS NOT A SAVINGS ACCOUNT, DEPOSIT OR OTHER
OBLIGATION OF ANY BANK OR NONBANK SUBSIDIARY OF THE CORPORATION AND IS NOT
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE BANK INSURANCE FUND OR
ANY OTHER GOVERNMENT AGENCY. THE OBLIGATIONS OF THE CORPORATION EVIDENCED BY
THIS NOTE ARE TO THE EXTENT AND IN THE MANNER SET FORTH HEREIN, SUBORDINATE TO
THE CORPORATION'S OBLIGATIONS TO HOLDERS OF ITS SENIOR INDEBTEDNESS.
THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE SENIOR
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (THE
"DEPOSITARY"), OR ITS NOMINEE, AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY
TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR
ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.
BENEFICIAL INTERESTS IN THIS CERTIFICATE WILL BE SHOWN ON, AND TRANSFERS THEREOF
WILL BE EFFECTED ONLY THROUGH, RECORDS MAINTAINED BY THE DEPOSITARY AND ITS
PARTICIPANTS. BANKBOSTON, N.A. IN BOSTON, MASSACHUSETTS AND SECURITIES TRANSFER
& REPORTING SERVICES, INC. IN THE BOROUGH OF MANHATTAN, THE CITY OF NEW YORK
(COLLECTIVELY, THE "PAYING AGENTS") WILL ACT AS THE CORPORATION'S PAYING AGENTS
WITH RESPECT TO THIS NOTE. THE CORPORATION MAY AT ANY TIME RESCIND THE
DESIGNATION OF A PAYING AGENT, APPOINT A SUCCESSOR PAYING AGENT OR APPROVE A
CHANGE IN THE OFFICE THROUGH WHICH ANY PAYING AGENT ACTS.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY TO THE CORPORATION OR ITS AGENTS FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
<PAGE> 2
REGISTERED PRINCIPAL AMOUNT
___________
No. FX CUSIP No.__________________
BANKBOSTON CORPORATION
SUBORDINATED MEDIUM-TERM NOTE
(Fixed Rate)
ORIGINAL ISSUE DATE: INTEREST RATE: STATED MATURITY DATE:
SPECIFIED CURRENCY: OPTION TO ELECT PAYMENT AUTHORIZED DENOMIN-
(if other than IN SPECIFIED CURRENCY ATIONS:
U.S. dollars) (only applicable if [ ] $1,000 and integral
Specified Currency is multiples thereof.
other than [ ] Other:
U.S. dollars):
[ ] Yes [ ] No
EXCHANGE RATE AGENT:
INTEREST PAYMENT DATE(S): REGULAR RECORD DATES
[ ] At Maturity only (FOR NOTES WITH MATURITIES
[ ] June 15 and December 15 GREATER THAN ONE YEAR):
[ ] Other: [ ] June 1 and December 1
[ ] OTHER:
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: PERCENTAGE REDUCTION:
OPTIONAL REPAYMENT DATE(S):
DAY COUNT CONVENTION:
[ ] 30/360 FOR THE PERIOD FROM TO .
[ ] ACTUAL/360 FOR THE PERIOD FROM TO .
[ ] ACTUAL/ACTUAL FOR THE PERIOD FROM TO .
ADDENDUM ATTACHED:
[ ] Yes
2
<PAGE> 3
[ ] No
DISCOUNT NOTE:
DEFAULT RATE: [ ] Yes
[ ] No
Issue Price: %
OTHER PROVISIONS:
BankBoston Corporation, a Massachusetts corporation ("Issuer" or the
"Corporation", which terms include any successor corporation under the
Subordinated Indenture hereinafter referred to), for value received, hereby
promises to pay to CEDE & CO., or registered assigns, the principal amount of
___________________, on the Stated Maturity Date specified above (except to the
extent redeemed or repaid prior to the Stated Maturity Date), and to pay
interest thereon at the Interest Rate per annum specified above, until the
principal hereof is paid or duly made available for payment, and (to the extent
that the payment of such interest shall be legally enforceable) at the Default
Rate per annum specified above on any overdue principal and premium, if any, and
on any overdue installment of interest.
The Corporation will pay interest on each Interest Payment Date specified
above, commencing on the first Interest Payment Date next succeeding the
Original Issue Date specified above, and on the Stated Maturity Date or any
Redemption Date or Optional Repayment Date (as defined below) (the date of each
such Stated Maturity Date, Redemption Date and Optional Repayment Date and the
date on which principal or an installment of principal is due and payable by
declaration of acceleration pursuant to the Subordinated Indenture, being
referred to hereinafter as a "Maturity" with respect to principal payable on
such date); PROVIDED, HOWEVER, that if the Original Issue Date falls between a
Regular Record Date (as defined below) and the next succeeding Interest Payment
Date, interest payments will commence on the Interest Payment Date immediately
following the next succeeding Regular Record Date to the registered Holder on
such next succeeding Regular Record Date. Unless otherwise specified above, the
"Regular Record Date" with respect to any Interest Payment Date shall be the
June 1 or December 1 (whether or not a Business Day (as defined below)), as the
case may be, next preceding the applicable Interest Payment Date. Interest on
this Note will accrue from and including the most recent Interest Payment Date
to which interest has been paid or duly provided for or, if no interest has been
paid or duly provided for, from and including the Original Issue Date specified
above, to but excluding such Interest Payment Date or Maturity, as the case may
be. If the Maturity or an Interest Payment Date for this Note
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<PAGE> 4
falls on a day which is not a Business Day, the related payment of principal,
premium, if any, or interest will be made on the next succeeding Business Day
with the same force and effect as if made on such Maturity or Interest Payment
Date, as the case may be, and no interest shall accrue on the amount so payable
for the period from and after such Maturity or Interest Payment Date, as the
case may be. The interest so payable and punctually paid or duly provided for on
any Interest Payment Date will, as provided in the Subordinated Indenture, be
paid to the Person in whose name this Note (or one or more predecessor
securities) is registered at the close of business on the Regular Record Date
for such Interest Payment Date. Any such interest which is payable, but not
punctually paid or duly provided for on any Interest Payment Date (herein called
"Defaulted Interest"), shall forthwith cease to be payable to the registered
Holder on such Regular Record Date, and may be paid to the Person in whose name
this Note is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to the Holder of this Note not less than 10 days prior to
such Special Record Date, or may be paid at any time in any other lawful manner,
all as more fully provided in the Subordinated Indenture. Interest payable at
Maturity will be payable to the Person to whom the principal hereof shall be
payable.
Reference herein to "this Note", "hereof", "herein" and comparable terms
shall include an Addendum hereto if an Addendum is specified above.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof and, if so specified on the face hereof, in an Addendum
hereto, which further provisions shall for all purposes have the same force and
effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent by the manual signature of one of its authorized
signatories, this Note shall not be valid or obligatory for any purpose.
4
<PAGE> 5
IN WITNESS WHEREOF, the Corporation has caused this Note to be duly
executed.
BANKBOSTON CORPORATION
[SEAL] By: __________________________
Name:
Title:
Attest:
By: ______________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This Note is one of the Securities
referred to in the Subordinated Indenture
referred to herein.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By: BANKBOSTON, N.A., as
Authenticating Agent
By: __________________________ Dated: ___________________
Name:
Title:
5
<PAGE> 6
[Reverse of Note]
BankBoston Corporation
Medium-Term Note
(Subordinated Fixed Rate)
This Note is one of a duly authorized issue of Securities (hereinafter
called the "Securities") of the Corporation designated as its Subordinated
Medium-Term Notes (the "Notes"). The Notes are issued and to be issued under a
Subordinated Indenture dated as of June 15, 1992 (as amended by the First
Supplemental Indenture dated as of June 24, 1993 (the "First Supplemental
Indenture," referred to collectively herein with the Subordinated Indenture as
the "Subordinated Indenture")), between the Corporation and Norwest Bank
Minnesota, National Association, as Trustee (the "Trustee" which term shall
include any duly appointed successor trustee acting in such capacity), to which
Subordinated Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights thereunder of the
Corporation, the Trustee and the Holders of the Securities and the terms upon
which the Securities are, and are to be, authenticated and delivered. Copies of
the Subordinated Indenture are on file and available for inspection at the
offices of the Trustee located at 6th Street and Marquette Avenue, Minneapolis,
Minnesota 55479 or at such other place or places the Trustee shall designate by
notice to the person in whose name this Note is registered (the "Holder") on the
Security Register (as defined below). The terms of individual Notes may vary
with respect to interest rates or interest rate formulas, issue dates, maturity,
redemption, repayment, currency of payment and otherwise.
The Notes are issuable only in registered form without coupons in the
Authorized Denominations specified on the face hereof. As provided in the
Subordinated Indenture and subject to certain limitations therein set forth, the
Notes are exchangeable for a like aggregate principal amount of Notes
denominated as authorized, as requested by the Holder surrendering the same.
PAYMENT OF PRINCIPAL OF THIS NOTE MAY BE ACCELERATED ONLY IN CERTAIN EVENTS
INVOLVING THE BANKRUPTCY OF THE CORPORATION OR THE RECEIVERSHIP OF BANKBOSTON,
N.A. THERE IS NO RIGHT OF ACCELERATION IN THE CASE OF A DEFAULT IN THE PAYMENT
OF PRINCIPAL OR INTEREST ON THIS NOTE OR ANY DEFAULT IN THE PERFORMANCE OF ANY
OTHER COVENANT OR AGREEMENT IN THIS NOTE OR IN THE SUBORDINATED INDENTURE.
The Corporation, for itself, its successors and assigns, covenants and
agrees, and each Holder of this Note likewise covenants and agrees by his, her
or its acceptance hereof, (A) that the obligation of the Corporation to make any
payment on account of the principal of and interest on each and all of the
Securities shall be subordinate and junior in right of payment to the
Corporation's obligations to the holders of Senior Indebtedness of the
Corporation (other than Additional Senior Obligations) and under the
circumstances described in clause
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<PAGE> 7
(B)(ii) of this sentence, to the holders of Additional Senior Obligations, to
the extent provided herein, and (B) that 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 (i) all obligations of the Corporation to the 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 Securities or on any
Indebtedness Ranking on a Parity with the Securities and (ii) 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 Securities,
together with the holders of any Indebtedness Ranking on a Parity with the
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 of, premium, if any, and interest on the Securities and on any
Indebtedness Ranking on a Parity with the 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 giving effect to the operation of clause
(B)(i) above, (x) any amount of cash, property or securities remains available
for payment or distribution in respect of the Securities (such cash, property or
securities constituting "Excess Proceeds") and (y) creditors in respect of
Additional Senior Obligations have not received payment in full of amounts due
or to become due thereon or payment of such amounts has not been duly provided
for, then such Excess Proceeds shall first be applied, ratably if and to the
extent provided with respect to any other subordinated indebtedness of the
Corporation, to pay or provide for the payment in full of all such Additional
Senior Obligations before any payment shall be made on account of the principal
of or interest on the Securities.
In addition, in the event of any proceeding described in clause (B) above,
if any payment or distribution of assets of the Corporation of any kind or
character, whether in cash, property or securities, including any such payment
or distribution which may be payable or deliverable by reason of the payment of
any other indebtedness of the Corporation being subordinated to the payment of
the Securities, shall be received by the Trustee or the Holders of the
Securities before all Senior Indebtedness of the Corporation is paid in full,
such payment or distribution shall be held in trust for the benefit of and shall
be paid over to the holders of such Senior Indebtedness or their representative
or representatives or to the trustee or trustees under any indenture under which
any instruments evidencing any of such Senior Indebtedness may have been issued
for application to the payment first, of all such Senior Indebtedness of the
7
<PAGE> 8
Corporation (other than Additional Senior Obligations) remaining unpaid and
second, of all Senior Indebtedness of the Corporation constituting Additional
Senior Obligations until all such Senior Indebtedness shall have been paid in
full, after giving effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness.
The subordination provisions of the foregoing paragraphs shall not be
applicable to amounts at the time due and owing on the securities of any series
on account of the unpaid principal of (or premium, if any) or interest, if any,
on the securities of any series for the payment of which funds have been
deposited in trust with the Trustee or any Paying Agent or have been set aside
by the Corporation in trust in accordance with the provisions of the
Subordinated Indenture; nor shall such provisions impair any rights, interests,
remedies or powers of any secured creditor of the Corporation in respect of any
security the creation of which is not prohibited by the provisions of the
Subordinated Indenture.
In addition, in the event and during the continuation of any default in the
payment of principal of, or premium, if any, or interest on, any Senior
Indebtedness of the Corporation (other than Additional Senior Obligations)
beyond any applicable period of grace, or in the event that any event of default
with respect to any Senior Indebtedness of the Corporation (other than
Additional Senior Obligations) shall have occurred and be continuing, or would
occur as a result of the payment referred to hereinafter, permitting the holders
of such Senior Indebtedness (or 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 of or interest on the Securities, or in respect of any
redemption, exchange, retirement, purchase or other acquisition of any of the
Securities, shall be made by the Corporation.
The securing of any Indebtedness Ranking on a Parity with the Securities or
Indebtedness Ranking Junior to the Securities shall not be deemed to prevent
such obligations from constituting Indebtedness Ranking on a Parity with the
Securities or Indebtedness Ranking Junior to the Securities.
Each Holder of this Note, by the acceptance hereof, agrees to be bound by
the terms and conditions set forth in this Note and in the Subordinated
Indenture, including, without limitation, Article XIII thereof.
Unless otherwise specified herein, payments of principal of and premium, if
any, and interest on this Note are payable by the Corporation in the Specified
Currency specified on the face hereof (or, if such Specified Currency is not at
the time of such payment legal tender for the payment of public and private
debts, in such other coin or currency of the country which issued such Specified
Currency as at the time of such payment is legal tender
8
<PAGE> 9
for the payment of such debts). If the Specified Currency specified on the face
hereof is other than United States dollars, any such amounts paid by the
Corporation will be converted by the Exchange Rate Agent specified on the face
hereof into United States dollars for payment to the Holder of this Note.
If the Specified Currency on the face hereof is other than United States
dollars, any United States dollar amount to be received by the Holder of this
Note will be based on the highest bid quotation in The City of New York received
by the Exchange Rate Agent at approximately 11:00 a.m., New York City time, on
the second Business Day preceding the applicable payment date from three
recognized foreign exchange dealers (one of whom may be the Exchange Rate Agent)
selected by the Exchange Rate Agent and approved by the Corporation for the
purchase by the quoting dealer of the Specified Currency for United States
dollars for settlement on such payment date in the aggregate amount of the
Specified Currency payable to all Holders of Foreign Currency Notes denominated
in a currency other than United States dollars scheduled to receive United
States dollar payments and at which the applicable dealer commits to execute a
contract. All currency exchange costs will be borne by the Holder of this Note
by deductions from such payments. If three such bid quotations are not
available, payments on this Note will be made in the Specified Currency.
The Holder of this Note may elect to receive payment of the principal of
and premium, if any, and/or interest on this Note in the Specified Currency
specified on the face hereof by submitting a written request for such payment to
the Trustee at its principal corporate trust office in Minneapolis, Minnesota on
or prior to the applicable Record Date or at least fifteen calendar days prior
to the Maturity, as the case may be. Such written request may be mailed or hand
delivered or sent by cable, telex or other form of facsimile transmission. The
Holder of this Note may elect to receive payment in the applicable Specified
Currency for all such principal, premium, if any, and interest payments and need
not file a separate election for each payment. Such election will remain in
effect until revoked by written notice to the Trustee, but written notice of any
such revocation must be received by the Trustee on or prior to the applicable
Record Date or at least fifteen calendar days prior to the Maturity, as the case
may be.
If the Holder of this Note shall have duly made an election to receive
payments of principal, premium, if any, or interest in the Specified Currency
specified on the face hereof and the applicable Specified Currency is not
available due to the imposition of exchange controls or other circumstances
beyond the control of the Corporation, the Corporation shall be entitled to
satisfy its obligations to the Holder hereof by making such payment in United
States dollars on the basis of the Market Exchange Rate on the second Business
Day prior to such payment or, if such Market Exchange Rate is not then
available, on the basis of the most recently available Market Exchange Rate or
as
9
<PAGE> 10
otherwise provided herein. The "Market Exchange Rate" for a Specified Currency
other than United States dollars means the noon dollar buying rate in The City
of New York for cable transfer for such Specified Currency as certified for
customs purposes by (or if not so certified, as otherwise determined by) the
Federal Reserve Bank of New York. Any payment made under such circumstances in
United States dollars where the required payment is in a Specified Currency
other than United States dollars will not constitute an Event of Default under
the Subordinated Indenture with respect to this Note.
If the Holder of this Note shall have duly made an election to receive
payments of principal, premium, if any, or interest hereon in the Specified
Currency specified on the face hereof and such Specified Currency is European
Currency Units ("ECUs") or another currency unit, and such currency unit is
unavailable due to the imposition of exchange controls or other circumstances
beyond the Corporation's control, then the Corporation shall be entitled, but
not required, to make any payments in respect of this Note in United States
dollars until such currency unit is again available. The amount of each payment
in United States dollars shall be computed on the basis of the equivalent of the
currency unit in United States dollars, which shall be determined by the
Exchange Rate Agent on the following basis. The component currencies of the
currency unit for this purpose (collectively, the "Component Currencies" and
each, a "Component Currency") shall be the currency amounts that were components
of the currency unit as of the last day on which the currency unit was used. The
equivalent of the currency unit in United States dollars shall be calculated by
aggregating the United States dollar equivalents of the Component Currencies.
The United States dollar equivalent of each of the Component Currencies shall be
determined by the Exchange Rate Agent on the basis of the most recently
available Market Exchange Rate for each such Component Currency.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
All determinations referred to above made by the Exchange Rate Agent shall
be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the Holder hereof.
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<PAGE> 11
Except as otherwise provided in the Subordinated Indenture and as set forth
below, the Notes will be represented by one or more global securities,
registered in the name of the Depositary or its nominee and ownership of the
Notes shall be maintained in book-entry form by the Depositary for the accounts
of participating organizations of the Depositary. This Note is exchangeable for
definitive Notes in registered form to persons other than the Depositary or its
nominee only if (a) the Depositary notifies the Corporation in writing that it
is no longer willing or able to continue as a depositary for the Notes or if the
Depositary ceases to be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, and a successor depositary is not appointed by
the Corporation within ninety days after the effective date of the Depositary's
ceasing to act as depositary for the Notes, (b) the Corporation, at its option,
notifies the Trustee in writing that it elects to cause the issuance of Notes in
definitive form, or (c) any event shall have happened and be continuing which,
after notice or lapse of time, or both, would constitute an Event of Default
with respect to the Notes. In the event of such occurrences, upon the surrender
by the Depositary or a successor depositary of this Note the Corporation will
execute, and the Trustee will, upon the execution of the then standard form of
the Trustee's agreement for certificated securities and upon receipt of
instructions in writing from the Corporation, authenticate and deliver
securities of like tenor and terms in definitive form to each person that the
Depositary or a successor depositary identifies as the beneficial owner of an
interest in this Note in an aggregate principal amount equal to the principal
amount of Notes represented by this Note then outstanding in exchange for this
Note. Any such certificated security will be issued in fully registered form,
without coupons, in an Authorized Denomination specified on the face hereof.
Such certificated security may not subsequently be exchanged by a Holder for
Notes in denominations of less than the minimum Authorized Denomination
specified on the face hereof.
This Note is not subject to any sinking fund or to the defeasance or
covenant defeasance provisions of the Subordinated Indenture and, unless
otherwise provided above in accordance with the provisions of the following
paragraphs, is not redeemable or repayable prior to the Stated Maturity Date.
If so provided above, this Note may be redeemed by the Corporation on any
date on and after the Initial Redemption Date, if any, specified above. If no
Initial Redemption Date is set forth above, this Note may not be redeemed prior
to the Stated Maturity Date. On and after the Initial Redemption Date, if any,
this Note may be redeemed at any time in whole or from time to time in part in
increments of $1,000 (or, if the Specified Currency indicated on the face hereof
is other than United States dollars, the minimum Authorized Denomination
specified on the face hereof) at the option of the Corporation at the applicable
Redemption Price (as defined below), together with unpaid interest, if any,
accrued hereon at the applicable rate payable
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<PAGE> 12
to the date of redemption (each such date, a "Redemption Date"), on written
notice given not more than 60 nor less than 30 calendar days prior to the
Redemption Date. In the event of redemption of this Note in part only, a new
Note for the unredeemed portion hereof shall be issued in the name of the Holder
hereof upon the surrender hereof. Whenever less than all the Notes at any time
outstanding are to be redeemed, the terms of the Notes to be so redeemed shall
be selected by the Corporation. In the event of redemption of this Note in part
only, a new Note for the unredeemed portion hereof shall be issued in the name
of the Holder hereof upon the surrender hereof.
Unless otherwise specified above, the "Redemption Price" shall initially be
the Initial Redemption Percentage, specified above, of the principal amount of
this Note to be redeemed and, if greater than 100%, shall decline at each
anniversary of the Initial Redemption Date by the Annual Redemption Percentage
Reduction, if any, specified above, of the principal amount to be redeemed until
the Redemption Price is 100% of such principal amount.
This Note may be subject to repayment at the option of the Holder on the
Optional Repayment Date(s), if any, indicated above. If no Optional Repayment
Date(s) are set forth above, this Note is not subject to repayment at the option
of the Holder hereof prior to the Stated Maturity Date. On any Optional
Repayment Date, this Note shall be repayable in whole or in part in increments
of $1,000 (or, if the Specified Currency indicated on the face hereof is other
than United States dollars, in the minimum Authorized Denomination specified on
the face hereof) at the option of the Holder hereof at a repayment price equal
to the sum of (i) 100% of the unpaid principal amount to be repaid plus (ii)
accrued interest, if any, hereon at the applicable rate payable to the relevant
Optional Repayment Date. For this Note to be repaid in whole or in part at the
option of the Holder hereof, this Note must be received, with the form entitled
"Option to Elect Repayment" below duly completed, by one of the Paying Agents at
its office, or such address which the Corporation shall from time to time notify
the Holders of the Notes, not more than 60 nor less than 30 days prior to the
relevant Optional Repayment Date. Exercise of such repayment option by the
Holder hereof shall be irrevocable. In the event of repayment of this Note in
part only, a new Note for the unrepaid portion hereof shall be issued in the
name of the Holder hereof upon the surrender hereof.
While this Note is held by or on behalf of the Depositary, and registered
in the name of the Depositary or the Depositary's nominee, the option for
repayment may be exercised by the applicable participant that has an account
with the Depositary, on behalf of the beneficial owners of this Note, by
delivering a written notice substantially similar to the above mentioned form to
one of the Paying Agents at its office (or such other address of which the
Corporation shall from time to time notify the
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<PAGE> 13
Holders), not more than 60 nor less than 30 days prior to the date of repayment.
Notices of elections from participants on behalf of beneficial owners of this
Note to exercise their option to have the interests of such beneficial owners in
this Note repaid must be received by one of the Paying Agents not later than
5:00 P.M., New York City time, on the last day for giving such notice. In order
to ensure that a notice is received by one of the Paying Agents on a particular
day, the beneficial owner of this Note must so direct the applicable participant
before such participant's deadline for accepting instructions for that day.
Different firms may have different deadlines for accepting instructions from
their customers. Accordingly, beneficial owners of this Note should consult the
participants through which they own their interest herein for the respective
deadlines for such participants. All notices shall be executed by a duly
authorized officer of such participant (with signature guaranteed) and shall be
irrevocable. In addition, beneficial owners of this Note shall effect delivery
at the time such notices of election are given to the Depositary by causing the
applicable participant to transfer such beneficial owner's interest in this
Note, on the Depositary's records, to the Trustee.
Interest payments on this Note shall include interest accrued from and
including the Original Issue Date indicated above, or the most recent date to
which interest has been paid or duly provided for, to but excluding the related
Interest Payment Date or Maturity, as the case may be. Interest payments for
this Note shall be computed and paid on the basis of a 360-day year of twelve
30-day months if the Day Count Convention specified above is "30/360" for the
period specified thereunder, on the basis of the actual number of days in the
related month and a 360-day year if the Day Count Convention specified above is
"Actual/360" for the period specified thereunder or on the basis of the actual
number of days in the related year and month if the Day Count Convention
specified above is "Actual/Actual" for the period specified thereunder.
As used herein, "Business Day" means, unless otherwise specified above, any
day, other than a Saturday or Sunday, that is neither a legal holiday nor a day
on which banking institutions are authorized or required by law, regulation or
executive order to close in The City of New York or Boston, Massachusetts;
PROVIDED, HOWEVER, that, if the Holder hereof shall have duly made an election
to receive payments of principal of and premium, if any, and/or interest on this
Note in the Specified Currency specified on the face hereof, such day is also
not a day on which banking institutions are authorized or required by law,
regulation or executive order to close in the Principal Financial Center (as
defined below) of the country issuing such Specified Currency unless the
Specified Currency is ECU, in which case such day is also not a day that appears
as an ECU non-settlement day on the display designated as "ISDE" on the Reuter
Monitor Money Rates Service (or is not a day designated as an ECU non-settlement
day by the ECU Banking Association) or, if
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<PAGE> 14
ECU non-settlement days do not appear on that page (and are not so designated),
a day that is not a day on which payments in ECU cannot be settled in the
international interbank market). "Principal Financial Center" means the capital
city of the country issuing the Specified Currency (except as described in the
immediately preceding sentence with respect to ECU), except that with respect to
U.S. dollars, Australian dollars, Canadian dollars, Deutsche marks, Dutch
guilders, Italian lire and Swiss francs, the "Principal Financial Center" shall
be The City of New York, Sydney, Toronto, Frankfurt, Amsterdam, Milan and
Zurich, respectively.
Any provision contained herein with respect to the calculation of the rate
of interest applicable to this Note, its Interest Payment Dates or any other
matter relating hereto may be modified as specified in an Addendum relating
hereto if so specified above.
If an Event of Default (as defined in the Subordinated Indenture) with
respect to the Notes shall occur and be continuing, the principal of all the
Notes may be declared due and payable in the manner and with the effect provided
in the Subordinated Indenture.
If this Note is specified on the face hereof as a Discount Note, the amount
payable to the Holder of this Note in the event of redemption, repayment or
acceleration of maturity of this Note will be equal to the sum of (1) the Issue
Price specified on the face hereof (increased by any accruals of the Discount,
as defined below) and, in the event of any redemption of this Note (if
applicable), multiplied by the Initial Redemption Percentage (as adjusted by the
Annual Redemption Percentage Reduction, if applicable) and (2) any unpaid
interest accrued thereon to the Redemption Date, Repayment Date or date of
acceleration of maturity, as the case may be. The difference between the Issue
Price and 100% of the principal amount of this Note is referred to herein as the
"Discount."
For purposes of determining the amount of Discount that has accrued as of
any Redemption Date, Repayment Date or date of acceleration of maturity of this
Note, such Discount will be accrued so as to cause the yield on the Note to be
constant. The constant yield will be calculated using a 30-day month, 360-day
year convention, a compounding period that, except for the Initial Period (as
defined below), corresponds to the shortest period between Interest Payment
Dates (with ratable accruals within a compounding period), a constant coupon
rate equal to the initial interest rate applicable to this Note and an
assumption that the maturity of this Note will not be accelerated. If the period
from the Original Issue Date to the initial Interest Payment Date (the "Initial
Period") is shorter than the compounding period for this Note, a proportionate
amount of the yield for an entire compounding period will be accrued. If the
Initial Period is longer than the compounding period, then such period will be
divided into a regular compounding period and a
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<PAGE> 15
short period, with the short period being treated as provided in the preceding
sentence.
The Subordinated Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Corporation and the rights of the Holders of the Securities
of each series to be affected under the Subordinated Indenture at any time by
the Corporation and the Trustee with the consent of the Holders of 66 2/3% in
aggregate principal amount of the Securities at the time Outstanding, as defined
in the Subordinated Indenture, of each series affected thereby. The Subordinated
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Outstanding Securities of each
series at the time, on behalf of the Holders of all Securities of each series,
to waive compliance with certain provisions of the Subordinated Indenture and
certain past defaults under the Subordinated Indenture and their consequences.
Any such consent or waiver by the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange herefor or
in lieu hereof whether or not notation of such consent or waiver is made upon
this Note.
No reference herein to the Subordinated Indenture and no provision of this
Note or of the Subordinated Indenture shall alter or impair the obligation of
the Corporation, which is absolute and unconditional, to pay the principal of
and interest on this Note at the time, place and rate or formula, and in the
coin or currency, herein prescribed.
As provided in the Subordinated Indenture and subject to certain
limitations therein set forth, this registered Note 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
Notes of the same series at the office of Securities Transfer & Reporting
Services, Inc. in The City of New York or the principal office of BankBoston,
N.A. in The City of Boston.
No service charge shall be made for any such registration of transfer or
exchange, but the Corporation may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Corporation or the Trustee and any agent of the Corporation or the Trustee may
treat the Person in whose name this Note is registered as the owner hereof for
all purposes, whether or not this Note be overdue, and neither the Corporation,
the Trustee nor any such agent shall be affected by notice to the contrary.
15
<PAGE> 16
This Note and the Subordinated Indenture shall be governed by and construed
in accordance with the laws of The Commonwealth of Massachusetts.
All terms used in this Note which are defined in the Subordinated Indenture
shall have the meanings assigned to them in the Subordinated Indenture.
16
<PAGE> 17
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Corporation to repay this Note (or portion hereof specified below) pursuant to
its terms at a price equal to the principal amount hereof together with interest
to the repayment date, to the undersigned, at___________________________________
________________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, one of the Paying Agents must receive at its
office, or at such other place or places of which the Corporation shall from
time to time notify the Holder of this Note, not more than 60 nor less than 30
days prior to an Optional Repayment Date, if any, shown above, this Note with
this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of $1,000 (or, if the
Specified Currency indicated on the face hereof is other than United States
dollars, the minimum Authorized Denomination specified on the face hereof) which
the Holder elects to have repaid and specify the denomination or denominations
(which shall be an Authorized Denomination) of the Notes to be issued to the
Holder for the portion of this Note not being repaid (in the absence of any such
specification, one such Note will be issued for the portion not being repaid).
$_____________________________________ _______________________________
NOTICE: The signature on this
Date _________________________________ Option to Elect Repayment must
correspond with the name as
written upon the face of this
Note in every particular,
without alteration or
enlargement or any change
whatever.
17
<PAGE> 18
ASSIGNMENT/TRANSFER FORM
FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s),
assign(s) and transfer(s) unto (insert Social Security or Taxpayer
Identification No.)_____________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
____________________________________________________(Please print or typewrite
name and address including postal zip code of assignee)
_______________________________________________________________________________
_____the within Note and all rights thereunder, hereby irrevocably constituting
and appointing __________________________________________________ attorney to
transfer said Note on the books of the Corporation with full power of
substitution in the premises.
Dated: ____________________ _____________________________________________
____
NOTICE: The signature of the registered Holder to this assignment must
correspond with the name as written upon the face of the within
instrument in every particular, without alteration or enlargement or any
change whatsoever.
18
<PAGE> 19
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this Note, shall be construed as though they were written out in full according
to applicable laws or regulations.
TEN COM--as tenants in common
UNIF GIFT MIN ACT--..................Custodian......................
(Cust) (Minor)
Under Uniform Gifts to Minors Act
.................................
(State)
TEN ENT--as tenants by the entireties
JT TEN--as joint tenants with right of survivorship and not as
tenants in common
Additional abbreviations may also be used though not in the above list.
19
<PAGE> 1
EXHBIT 4(d)
[FORM OF SUBORDINATED FLOATING RATE GLOBAL MEDIUM-TERM NOTE]
THIS NOTE IS A DIRECT, UNCONDITIONAL AND UNSECURED OBLIGATION OF BANKBOSTON
CORPORATION (THE "CORPORATION"), IS NOT A SAVINGS ACCOUNT, DEPOSIT OR OTHER
OBLIGATION OF ANY BANK OR NONBANK SUBSIDIARY OF THE CORPORATION AND IS NOT
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE BANK INSURANCE FUND OR
ANY OTHER GOVERNMENT AGENCY. THE OBLIGATIONS OF THE CORPORATION EVIDENCED BY
THIS NOTE ARE TO THE EXTENT AND IN THE MANNER SET FORTH HEREIN, SUBORDINATE TO
THE CORPORATION'S OBLIGATIONS TO HOLDERS OF ITS SENIOR INDEBTEDNESS.
THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE SENIOR
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (THE
"DEPOSITARY"), OR ITS NOMINEE, AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY
TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR
ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.
BENEFICIAL INTERESTS IN THIS CERTIFICATE WILL BE SHOWN ON, AND TRANSFERS THEREOF
WILL BE EFFECTED ONLY THROUGH, RECORDS MAINTAINED BY THE DEPOSITARY AND ITS
PARTICIPANTS. BANKBOSTON, N.A. IN BOSTON, MASSACHUSETTS AND SECURITIES TRANSFER
& REPORTING SERVICES, INC. IN THE BOROUGH OF MANHATTAN, THE CITY OF NEW YORK
(COLLECTIVELY, THE "PAYING AGENTS") WILL ACT AS THE CORPORATION'S PAYING AGENTS
WITH RESPECT TO THIS NOTE. THE CORPORATION MAY AT ANY TIME RESCIND THE
DESIGNATION OF A PAYING AGENT, APPOINT A SUCCESSOR PAYING AGENT OR APPROVE A
CHANGE IN THE OFFICE THROUGH WHICH ANY PAYING AGENT ACTS.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY TO THE CORPORATION OR ITS AGENTS FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
<PAGE> 2
REGISTERED CUSIP No._____________ PRINCIPAL AMOUNT
_____________________
No. FLR________
BANKBOSTON CORPORATION
SUBORDINATED MEDIUM-TERM NOTE
(Floating Rate)
INTEREST RATE BASIS ORIGINAL ISSUE DATE: STATED MATURITY DATE:
OR BASES:
IF LIBOR: IF CMT RATE:
[ ] LIBOR Reuters Designated CMT Telerate Page:
[ ] LIBOR Telerate If Telerate Page 7052:
[ ] Weekly Average
[ ] Monthly Average
Designated CMT Maturity Index:
DESIGNATED LIBOR CURRENCY:
INDEX MATURITY: INITIAL INTEREST RATE: INTEREST PAYMENT PERIOD:
SPREAD (PLUS OR INITIAL INTEREST RESET DATE: INTEREST PAYMENT DATES:
MINUS):
SPREAD MULTIPLIER: INTEREST RATE RESET PERIOD: INTEREST RESET DATES:
MAXIMUM INTEREST MINIMUM INTEREST RATE: INITIAL REDEMPTION DATE:
RATE:
INITIAL REDEMPTION ANNUAL REDEMPTION OPTIONAL REPAYMENT
PERCENTAGE: PERCENTAGE REDUCTION: DATE(S):
CALCULATION AGENT:
INTEREST CATEGORY: DAY COUNT CONVENTION:
[ ] Regular Floating Rate Note [ ] 30/360 for the period
[ ] Floating Rate/Fixed Rate from to .
Fixed Rate Commencement Date: [ ] Actual/360 for the period
Fixed Interest Rate: from to .
[ ] Inverse Floating Rate Note [ ] Actual/Actual for the period
Fixed Interest Rate: from to .
SPECIFIED CURRENCY: OPTION TO ELECT PAYMENT AUTHORIZED DENOMIN-
(if other than IN SPECIFIED CURRENCY ATION:
U.S. dollars) (only applicable if [ ] $1,000 and integral
Specified Currency is multiples thereof:
other than U.S. dollars): [ ] Other
[ ] Yes [ ] No
EXCHANGE RATE AGENT:
<PAGE> 3
ADDENDUM ATTACHED: DISCOUNT NOTE:
[ ] Yes [ ] Yes
[ ] No [ ] No
Issue Price: %
DEFAULT RATE:
OTHER PROVISIONS:
3
<PAGE> 4
BANKBOSTON CORPORATION, a Massachusetts corporation ("Issuer" or the
"Corporation," which terms include any successor corporation under the
Subordinated Indenture hereinafter referred to), for value received, hereby
promises to pay to CEDE & CO., or registered assigns, the principal amount of
_____________________, on the Stated Maturity Date specified above (except to
the extent redeemed or repaid prior to the Stated Maturity Date), and to pay
interest thereon, at a rate per annum equal to the Initial Interest Rate
specified above until the Initial Interest Reset Date specified above and
thereafter at a rate per annum determined in accordance with the provisions
hereof and any Addendum relating hereto depending upon the Interest Rate Basis
or Bases, if any, and such other terms specified above, until the principal
hereof is paid or duly made available for payment, and (to the extent that the
payment of such interest is legally enforceable) at the Default Rate per annum
specified above on any overdue principal and premium, if any, and on any overdue
installment of interest.
The Corporation will pay interest monthly, quarterly, semi-annually,
annually or such other period as specified above under "Interest Payment
Period", on each Interest Payment Date specified above, commencing on the first
Interest Payment Date specified above next succeeding the Original Issue Date
specified above, and on the Stated Maturity Date or any Redemption Date or
Optional Repayment Date (as defined below) (the date of each such Stated
Maturity Date, Redemption Date and Optional Repayment Date and the date on which
principal or an installment of principal is due and payable by declaration of
acceleration pursuant to the Subordinated Indenture, being referred to
hereinafter as a "Maturity" with respect to principal payable on such date);
PROVIDED, HOWEVER, that if the Original Issue Date falls between a Regular
Record Date (as defined below) and the next succeeding Interest Payment Date,
interest payments will commence on the Interest Payment Date immediately
following the next succeeding Regular Record Date to the registered Holder on
such next succeeding Regular Record Date; and PROVIDED, FURTHER, that if an
Interest Payment Date (other than an Interest Payment Date at Maturity) would
otherwise fall on a day that is not a Business Day (as defined below), such
Interest Payment Date shall be postponed to the next succeeding day that is a
Business Day, except that if an Interest Rate Basis is LIBOR, as indicated
above, and such next Business Day falls in the next succeeding calendar month,
such Interest Payment Date shall be the immediately preceding day that is a
Business Day. Unless otherwise specified above, the "Regular Record Date" with
respect to any Interest Payment Date shall be the date 15 calendar days (whether
or not a Business Day) immediately preceding such Interest Payment Date. If the
Maturity of this Note falls on a day which is not a Business Day, the payment of
principal, premium, if any, and interest due at Maturity will be made on the
next succeeding Business Day with the same force and effect as if made on such
Maturity and no interest shall accrue on the amount so payable for the period
from and after such Maturity. The interest so payable and punctually paid or
duly provided for on any Interest Payment Date will, as provided in the
Subordinated Indenture, be paid to the Person in whose name this Note (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such Interest Payment Date. Any such interest which is
payable, but not punctually paid or duly provided for on
4
<PAGE> 5
any Interest Payment Date (herein called "Defaulted Interest"), shall forthwith
cease to be payable to the registered Holder on such Regular Record Date, and
may be paid to the Person in whose name this Note is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to the Holder of this
Note not less than 10 days prior to such Special Record Date, or may be paid at
any time in any other lawful manner, all as more fully provided in the
Subordinated Indenture. Interest payable at Maturity will be payable to the
Person to whom the principal hereof shall be payable.
Reference herein to "this Note", "hereof", "herein" and comparable terms
shall include an Addendum hereto if an Addendum is specified above.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof and, if so specified on the face hereof, in an Addendum
hereto, which further provisions shall for all purposes have the same force and
effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, the manual signature of one of its authorized signatories,
this Note shall not be valid or obligatory for any purpose.
5
<PAGE> 6
IN WITNESS WHEREOF, the Corporation has caused this Note to be duly
executed.
BANKBOSTON CORPORATION
[SEAL] By: ________________________________
Name:
Title:
Attest:
By: _________________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This Note is one of the Securities
referred to in the Subordinated Indenture
referred to herein.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By: BANKBOSTON, N.A., as
Authenticating Agent
By: _______________________________ Dated: _________________
Name:
Title:
6
<PAGE> 7
[Reverse of Note]
BankBoston
Medium-Term Note
(Subordinated Floating Rate)
This Note is one of a duly authorized issue of Securities (hereinafter
called the "Securities") of the Corporation designated as its Subordinated
Medium-Term Notes (the "Notes"). The Notes are issued and to be issued under a
Subordinated Indenture dated as of June 15, 1992 (as amended by the First
Supplemental Indenture dated as of June 24, 1993 (the "First Supplemental
Indenture," referred to collectively herein with the Subordinated Indenture as
the "Subordinated Indenture")), between the Corporation and Norwest Bank
Minnesota, National Association, as Trustee (the "Trustee" which term shall
include any duly appointed successor trustee acting in such capacity), to which
Subordinated Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights thereunder of the
Corporation, the Trustee and the Holders of the Securities and the terms upon
which the Securities are, and are to be, authenticated and delivered. Copies of
the Subordinated Indenture are on file and available for inspection at the
offices of the Trustee located at 6th Street and Marquette Avenue, Minneapolis,
Minnesota 55479 or at such other place or places the Trustee shall designate by
notice to the person in whose name this Note is registered (the "Holder") on the
Security Register (as defined below). The terms of individual Notes may vary
with respect to interest rates or interest rate formulas, issue dates, maturity,
redemption, repayment, currency of payment and otherwise.
The Notes are issuable only in registered form without coupons in the
Authorized Denominations specified on the face hereof. As provided in the
Subordinated Indenture and subject to certain limitations therein set forth, the
Notes are exchangeable for a like aggregate principal amount of Notes
denominated as authorized, as requested by the Holder surrendering the same.
PAYMENT OF PRINCIPAL OF THIS NOTE MAY BE ACCELERATED ONLY IN CERTAIN EVENTS
INVOLVING THE BANKRUPTCY OF THE CORPORATION OR THE RECEIVERSHIP OF BANKBOSTON,
N.A. THERE IS NO RIGHT OF ACCELERATION IN THE CASE OF A DEFAULT IN THE PAYMENT
OF PRINCIPAL OR INTEREST ON THIS NOTE OR ANY DEFAULT IN THE PERFORMANCE OF ANY
OTHER COVENANT OR AGREEMENT IN THIS NOTE OR IN THE SUBORDINATED INDENTURE.
The Corporation, for itself, its successors and assigns, covenants and
agrees, and each Holder of this Note likewise covenants and agrees by his, her
or its acceptance hereof, (A) that the obligation of the Corporation to make any
payment on account of the principal of and interest on each and all of the
Securities shall be subordinate and junior in right of payment to the
Corporation's obligations to the holders of Senior Indebtedness of the
Corporation (other than Additional Senior Obligations) and under the
circumstances described in clause (B)(ii) of this sentence, to the holders of
Additional Senior
7
<PAGE> 8
Obligations, to the extent provided herein, and (B) that 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 (i) all obligations of the
Corporation to the 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 Securities or on any Indebtedness Ranking on a Parity with the
Securities and (ii) 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 Securities, together with the holders of any
Indebtedness Ranking on a Parity with the 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 of, premium, if any, and
interest on the Securities and on any Indebtedness Ranking on a Parity with the
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 giving
effect to the operation of clause (B)(i) above, (x) any amount of cash, property
or securities remains available for payment or distribution in respect of the
Securities (such cash, property or securities constituting "Excess Proceeds")
and (y) creditors in respect of Additional Senior Obligations have not received
payment in full of amounts due or to become due thereon or payment of such
amounts has not been duly provided for, then such Excess Proceeds shall first be
applied, ratably if and to the extent provided with respect to any other
subordinated indebtedness of the Corporation, to pay or provide for the payment
in full of all such Additional Senior Obligations before any payment shall be
made on account of the principal of or interest on the Securities.
In addition, in the event of any proceeding described in clause (B) above,
if any payment or distribution of assets of the Corporation of any kind or
character, whether in cash, property or securities, including any such payment
or distribution which may be payable or deliverable by reason of the payment of
any other indebtedness of the Corporation being subordinated to the payment of
the Securities, shall be received by the Trustee or the Holders of the
Securities before all Senior Indebtedness of the Corporation is paid in full,
such payment or distribution shall be held in trust for the benefit of and shall
be paid over to the holders of such Senior Indebtedness or their representative
or representatives or to the trustee or trustees under any indenture under which
any instruments evidencing any of such Senior Indebtedness may have been issued
for application to the payment first, of all such Senior Indebtedness of the
Corporation (other than Additional Senior Obligations) remaining
8
<PAGE> 9
unpaid and second, of all Senior Indebtedness of the Corporation constituting
Additional Senior Obligations until all such Senior Indebtedness shall have been
paid in full, after giving effect to any concurrent payment or distribution to
the holders of such Senior Indebtedness.
The subordination provisions of the foregoing paragraphs shall not be
applicable to amounts at the time due and owing on the securities of any series
on account of the unpaid principal of (or premium, if any) or interest, if any,
on the securities of any series for the payment of which funds have been
deposited in trust with the Trustee or any Paying Agent or have been set aside
by the Corporation in trust in accordance with the provisions of the
Subordinated Indenture; nor shall such provisions impair any rights, interests,
remedies or powers of any secured creditor of the Corporation in respect of any
security the creation of which is not prohibited by the provisions of the
Subordinated Indenture.
In addition, in the event and during the continuation of any default in the
payment of principal of, or premium, if any, or interest on, any Senior
Indebtedness of the Corporation (other than Additional Senior Obligations)
beyond any applicable period of grace, or in the event that any event of default
with respect to any Senior Indebtedness of the Corporation (other than
Additional Senior Obligations) shall have occurred and be continuing, or would
occur as a result of the payment referred to hereinafter, permitting the holders
of such Senior Indebtedness (or 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 of or interest on the Securities, or in respect of any
redemption, exchange, retirement, purchase or other acquisition of any of the
Securities, shall be made by the Corporation.
The securing of any Indebtedness Ranking on a Parity with the Securities or
Indebtedness Ranking Junior to the Securities shall not be deemed to prevent
such obligations from constituting Indebtedness Ranking on a Parity with the
Securities or Indebtedness Ranking Junior to the Securities.
Each Holder of this Note, by the acceptance hereof, agrees to be bound by
the terms and conditions set forth in this Note and in the Subordinated
Indenture, including, without limitation, Article XIII thereof.
Unless otherwise specified herein, payments of principal of and premium, if
any, and interest on this Note are payable by the Corporation in the Specified
Currency specified on the face hereof (or, if such Specified Currency is not at
the time of such payment legal tender for the payment of public and private
debts, in such other coin or currency of the country which issued such Specified
Currency as at the time of such payment is legal tender for the payment of such
debts). If the Specified Currency
9
<PAGE> 10
specified on the face hereof is other than United States dollars, any such
amounts paid by the Corporation will be converted by the Exchange Rate Agent
specified on the face hereof into United States dollars for payment to the
Holder of this Note.
If the Specified Currency on the face hereof is other than United States
dollars, any United States dollar amount to be received by the Holder of this
Note will be based on the highest bid quotation in The City of New York received
by the Exchange Rate Agent at approximately 11:00 a.m., New York City time, on
the second Business Day preceding the applicable payment date from three
recognized foreign exchange dealers (one of whom may be the Exchange Rate Agent)
selected by the Exchange Rate Agent and approved by the Corporation for the
purchase by the quoting dealer of the Specified Currency for United States
dollars for settlement on such payment date in the aggregate amount of the
Specified Currency payable to all Holders of Foreign Currency Notes denominated
in a currency other than United States dollars scheduled to receive United
States dollar payments and at which the applicable dealer commits to execute a
contract. All currency exchange costs will be borne by the Holder of this Note
by deductions from such payments. If three such bid quotations are not
available, payments on this Note will be made in the Specified Currency.
The Holder of this Note may elect to receive payment of the principal of
and premium, if any, and/or interest on this Note in the Specified Currency
specified on the face hereof by submitting a written request for such payment to
the Trustee at its principal corporate trust office in Minneapolis, Minnesota on
or prior to the applicable Record Date or at least fifteen calendar days prior
to the Maturity, as the case may be. Such written request may be mailed or hand
delivered or sent by cable, telex or other form of facsimile transmission. The
Holder of this Note may elect to receive payment in the applicable Specified
Currency for all such principal, premium, if any, and interest payments and need
not file a separate election for each payment. Such election will remain in
effect until revoked by written notice to the Trustee, but written notice of any
such revocation must be received by the Trustee on or prior to the applicable
Record Date or at least fifteen calendar days prior to the Maturity, as the case
may be.
If the Holder of this Note shall have duly made an election to receive
payments of principal, premium, if any, or interest in the Specified Currency
specified on the face hereof and the applicable Specified Currency is not
available due to the imposition of exchange controls or other circumstances
beyond the control of the Corporation, the Corporation shall be entitled to
satisfy its obligations to the Holder hereof by making such payment in United
States dollars on the basis of the Market Exchange Rate on the second Business
Day prior to such payment or, if such Market Exchange Rate is not then
available, on the basis of the most recently available Market Exchange Rate or
as otherwise provided herein. The "Market Exchange Rate" for a
10
<PAGE> 11
Specified Currency other than United States dollars means the noon dollar buying
rate in The City of New York for cable transfer for such Specified Currency as
certified for customs purposes by (or if not so certified, as otherwise
determined by) the Federal Reserve Bank of New York. Any payment made under such
circumstances in United States dollars where the required payment is in a
Specified Currency other than United States dollars will not constitute an Event
of Default under the Subordinated Indenture with respect to this Note.
If the Holder of this Note shall have duly made an election to receive
payments of principal, premium, if any, or interest hereon in the Specified
Currency specified on the face hereof and such Specified Currency is European
Currency Units ("ECUs") or another currency unit, and such currency unit is
unavailable due to the imposition of exchange controls or other circumstances
beyond the Corporation's control, then the Corporation shall be entitled, but
not required, to make any payments in respect of this Note in United States
dollars until such currency unit is again available. The amount of each payment
in United States dollars shall be computed on the basis of the equivalent of the
currency unit in United States dollars, which shall be determined by the
Exchange Rate Agent on the following basis. The component currencies of the
currency unit for this purpose (collectively, the "Component Currencies" and
each, a "Component Currency") shall be the currency amounts that were components
of the currency unit as of the last day on which the currency unit was used. The
equivalent of the currency unit in United States dollars shall be calculated by
aggregating the United States dollar equivalents of the Component Currencies.
The United States dollar equivalent of each of the Component Currencies shall be
determined by the Exchange Rate Agent on the basis of the most recently
available Market Exchange Rate for each such Component Currency.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
All determinations referred to above made by the Exchange Rate Agent shall
be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the Holder hereof.
11
<PAGE> 12
Except as otherwise provided in the Subordinated Indenture and as set forth
below, the Notes will be represented by one or more global securities,
registered in the name of the Depositary or its nominee and ownership of the
Notes shall be maintained in book-entry form by the Depositary for the accounts
of participating organizations of the Depositary. This Note is exchangeable for
definitive Notes in registered form to persons other than the Depositary or its
nominee only if (a) the Depositary notifies the Corporation in writing that it
is no longer willing or able to continue as a depositary for the Notes or if the
Depositary ceases to be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, and a successor depositary is not appointed by
the Corporation within ninety days after the effective date of the Depositary's
ceasing to act as depositary for the Notes, (b) the Corporation, at its option,
notifies the Trustee in writing that it elects to cause the issuance of Notes in
definitive form, or (c) any event shall have happened and be continuing which,
after notice or lapse of time, or both, would constitute an Event of Default
with respect to the Notes. In the event of such occurrences, upon the surrender
by the Depositary or a successor depositary of this Note the Corporation will
execute, and the Trustee will, upon the execution of the then standard form of
the Trustee's agreement for certificated securities and upon receipt of
instructions in writing from the Corporation, authenticate and deliver
securities of like tenor and terms in definitive form to each person that the
Depositary or a successor depositary identifies as the beneficial owner of an
interest in this Note in an aggregate principal amount equal to the principal
amount of Notes represented by this Note then outstanding in exchange for this
Note. Any such certificated security will be issued in fully registered form,
without coupons, in an Authorized Denomination specified on the face hereof.
Such certificated security may not subsequently be exchanged by a Holder for
Notes in denominations of less than the minimum Authorized Denomination
specified on the face hereof.
This Note is not subject to any sinking fund or to the defeasance or
covenant defeasance provisions of the Subordinated Indenture and, unless
otherwise provided above in accordance with the provisions of the following
paragraphs, is not redeemable or repayable prior to the Stated Maturity Date.
If so provided above, this Note may be redeemed by the Corporation on any
date on and after the Initial Redemption Date, if any, specified above. If no
Initial Redemption Date is set forth above, this Note may not be redeemed prior
to the Stated Maturity Date. On and after the Initial Redemption Date, if any,
this Note may be redeemed at any time in whole or from time to time in part in
increments of $1,000 (or, if the Specified Currency indicated on the face hereof
is other than United States dollars, the minimum Authorized Denomination
specified on the face hereof) at the option of the Corporation at the applicable
Redemption Price (as defined below), together with unpaid interest, if any,
accrued hereon at the applicable rate payable
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<PAGE> 13
to the date of redemption (each such date, a "Redemption Date"), on written
notice given not more than 60 nor less than 30 calendar days prior to the
Redemption Date. In the event of redemption of this Note in part only, a new
Note for the unredeemed portion hereof shall be issued in the name of the Holder
hereof upon the surrender hereof. Whenever less than all the Notes at any time
outstanding are to be redeemed, the terms of the Notes to be so redeemed shall
be selected by the Corporation. In the event of redemption of this Note in part
only, a new Note for the unredeemed portion hereof shall be issued in the name
of the Holder hereof upon the surrender hereof.
Unless otherwise specified above, the "Redemption Price" shall initially be
the Initial Redemption Percentage, specified above, of the principal amount of
this Note to be redeemed and, if greater than 100%, shall decline at each
anniversary of the Initial Redemption Date by the Annual Redemption Percentage
Reduction, if any, specified above, of the principal amount to be redeemed until
the Redemption Price is 100% of such principal amount.
This Note may be subject to repayment at the option of the Holder on the
Optional Repayment Date(s), if any, indicated above. If no Optional Repayment
Date(s) are set forth above, this Note is not subject to repayment at the option
of the Holder hereof prior to the Stated Maturity Date. On any Optional
Repayment Date, this Note shall be repayable in whole or in part in increments
of $1,000 (or, if the Specified Currency indicated on the face hereof is other
than United States dollars, in the minimum Authorized Denomination specified on
the face hereof) at the option of the Holder hereof at a repayment price equal
to the sum of (i) 100% of the unpaid principal amount to be repaid plus (ii)
accrued interest, if any, hereon at the applicable rate payable to the relevant
Optional Repayment Date. For this Note to be repaid in whole or in part at the
option of the Holder hereof, this Note must be received, with the form entitled
"Option to Elect Repayment" below duly completed, by one of the Paying Agents at
its office, or such address which the Corporation shall from time to time notify
the Holders of the Notes, not more than 60 nor less than 30 days prior to the
relevant Optional Repayment Date. Exercise of such repayment option by the
Holder hereof shall be irrevocable. In the event of repayment of this Note in
part only, a new Note for the unrepaid portion hereof shall be issued in the
name of the Holder hereof upon the surrender hereof.
While this Note is held by or on behalf of the Depositary, and registered
in the name of the Depositary or the Depositary's nominee, the option for
repayment may be exercised by the applicable participant that has an account
with the Depositary, on behalf of the beneficial owners of this Note, by
delivering a written notice substantially similar to the above mentioned form to
one of the Paying Agents at its office (or such other address of which the
Corporation shall from time to time notify the
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<PAGE> 14
Holders), not more than 60 nor less than 30 days prior to the date of repayment.
Notices of elections from participants on behalf of beneficial owners of this
Note to exercise their option to have the interests of such beneficial owners in
this Note repaid must be received by one of the Paying Agents not later than
5:00 P.M., New York City time, on the last day for giving such notice. In order
to ensure that a notice is received by one of the Paying Agents on a particular
day, the beneficial owner of this Note must so direct the applicable participant
before such participant's deadline for accepting instructions for that day.
Different firms may have different deadlines for accepting instructions from
their customers. Accordingly, beneficial owners of this Note should consult the
participants through which they own their interest herein for the respective
deadlines for such participants. All notices shall be executed by a duly
authorized officer of such participant (with signature guaranteed) and shall be
irrevocable. In addition, beneficial owners of this Note shall effect delivery
at the time such notices of election are given to the Depositary by causing the
applicable participant to transfer such beneficial owner's interest in this
Note, on the Depositary's records, to the Trustee.
The interest rate borne by this Note shall be determined as follows:
1. If this Note is designated as a Regular Floating Rate Note on the
face hereof or if no designation is made for Interest Calculation on the
face hereof, then, except as described below or in an Addendum hereto, this
Note shall bear interest at the rate determined by reference to the
applicable Interest Rate Basis or Bases shown on the face hereof (i) plus
or minus the applicable Spread, if any, and/or (ii) multiplied by the
applicable Spread Multiplier, if any, specified and applied in the manner
described on the face hereof. Commencing on the Initial Interest Reset
Date, the rate at which interest on this Note is payable shall be reset as
of each Interest Reset Date specified on the face hereof; PROVIDED,
HOWEVER, that the interest rate in effect for the period from the Original
Issue Date to the Initial Interest Reset Date will be the Initial Interest
Rate. 1.
2. If this Note is designated as a Floating Rate/Fixed Rate Note on
the face hereof, then, except as described below or in an Addendum hereto,
this Note shall bear interest at the rate determined by reference to the
applicable Interest Rate Basis or Bases shown on the face hereof (i) plus
or minus the applicable Spread, if any, and/or (ii) multiplied by the
applicable Spread Multiplier, if any, specified and applied in the manner
described on the face hereof. Commencing on the Initial Interest Reset
Date, the rate at which interest on this Note is payable shall be reset as
of each Interest Reset Date specified on the face hereof; PROVIDED,
HOWEVER, that (i) the interest rate in effect for the period from the
Original Issue Date to the
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<PAGE> 15
Initial Interest Reset Date shall be the Initial Interest Rate; and (ii)
the interest rate in effect for the period commencing on, and including,
the Fixed Rate Commencement Date to the Maturity shall be the Fixed
Interest Rate, if such a rate is specified on the face hereof, or if no
such Fixed Interest Rate is so specified, the interest rate in effect
hereon on the Business Day immediately preceding the Fixed Rate
Commencement Date.
3. If this Note is designated as an Inverse Floating Rate Note on the
face hereof, then, except as described below or in an Addendum hereto, this
Note shall bear interest equal to the Fixed Interest Rate indicated on the
face hereof minus the rate determined by reference to the applicable
Interest Rate Basis or Bases shown on the face hereof (i) plus or minus the
applicable Spread, if any, and/or (ii) multiplied by the applicable Spread
Multiplier, if any, specified and applied in the manner described on the
face hereof; PROVIDED, HOWEVER, that, unless otherwise specified on the
face hereof, the interest rate hereon will not be less than zero percent.
Commencing on the Initial Interest Reset Date, the rate at which interest
on this Note is payable shall be reset as of each Interest Reset Date
specified on the face hereof; PROVIDED, HOWEVER, that the interest rate in
effect for the period from the Original Issue Date to the Initial Interest
Reset Date shall be the Initial Interest Rate.
Notwithstanding the foregoing, if this Note is designated on the face
hereof as having an Addendum attached, this Note shall bear interest in
accordance with the terms described in such Addendum.
Except as provided above, the interest rate in effect on each day shall be
(a) if such day is an Interest Reset Date, the interest rate determined as of
the Interest Determination Date (as defined below) immediately preceding such
Interest Reset Date or (b) if such day is not an Interest Reset Date, the
interest rate determined as of the Interest Determination Date immediately
preceding the next preceding Interest Reset Date. Each Interest Rate Basis shall
be the rate determined in accordance with the applicable provision below. If any
Interest Reset Date (which term includes the term Initial Interest Reset Date
unless the context otherwise requires) would otherwise be a day that is not a
Business Day, such Interest Reset Date shall be postponed to the next succeeding
day that is a Business Day, except that if an Interest Rate Basis specified on
the face hereof is LIBOR and such next Business Day falls in the next succeeding
calendar month, such Interest Reset Date shall be the immediately preceding
Business Day.
Unless otherwise specified on the face hereof, interest payable on this
Note on any Interest Payment Date shall be the amount of interest accrued from
and including the next preceding Interest Payment Date in respect of which
interest has been paid
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<PAGE> 16
(or from and including the Original Issue Date specified on the face hereof, if
no interest has been paid), to but excluding the related Interest Payment Date
or Maturity, as the case may be.
Unless otherwise specified on the face hereof, accrued interest hereon
shall be an amount calculated by multiplying the face amount hereof by an
accrued interest factor. Such accrued interest factor shall be computed by
adding the interest factor calculated for each day in the period for which
accrued interest is being calculated. Unless otherwise specified on the face
hereof, the interest factor for each such day shall be computed on the basis of
a 360-day year of twelve 30-day months if the Day Count Convention specified on
the face hereof is "30/360" for the period specified thereunder, or by dividing
the interest rate applicable to such day by 360 if the Day Count Convention
specified on the face hereof is "Actual/360" for the period specified thereunder
or by the actual number of days in the year if the Day Count Convention
specified on the face hereof is "Actual/Actual" for the period specified
thereunder. If interest on this Note is to be calculated with reference to two
or more Interest Rate Bases as specified on the face hereof, the interest factor
will be calculated in each period in the same manner as if only one of the
applicable Interest Rate Bases applied.
Unless otherwise specified on the face hereof, the "Interest Determination
Date" with respect to the CMT Rate, the Commercial Paper Rate, the Federal Funds
Rate and the Prime Rate will be the second Business Day immediately preceding
each Interest Reset Date; the "Interest Determination Date" with respect to the
Eleventh District Cost of Funds Rate will be the last working day of the month
immediately preceding each Interest Reset Date on which the Federal Home Loan
Bank of San Francisco (the "FHLB of San Francisco") publishes the Index (as
defined below); the "Interest Determination Date" with respect to LIBOR shall be
the second London Business Day (as defined below) immediately preceding each
Interest Reset Date; and the "Interest Determination Date" with respect to the
Treasury Rate will be the day in the week in which the related Interest Reset
Date falls on which day Treasury bills (as defined below) are normally auctioned
(Treasury bills are normally sold at auction on Monday of each week, unless that
day is a legal holiday, in which case the auction is normally held on the
following Tuesday, except that such auction may be held on the preceding
Friday); PROVIDED, HOWEVER, that if an auction is held on the Friday of the week
preceding the related Interest Reset Date, the Interest Determination Date shall
be such preceding Friday; and PROVIDED, FURTHER, that if an auction shall fall
on any Interest Reset Date, then the Interest Reset Date shall instead be the
first Business Day following such auction. If the interest rate of this Note is
determined with reference to two or more Interest Rate Bases as specified on the
face hereof, the Interest Determination Date pertaining to this Note will be the
most recent Business Day which is at least two Business Days prior to the
related Interest Reset Date on which each Interest Rate Basis is determinable.
Each Interest Rate Basis shall be determined on
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<PAGE> 17
such date, and the applicable interest rate shall take effect on the related
Interest Reset Date.
Unless otherwise specified on the face hereof, the "Calculation Date"
pertaining to any Interest Determination Date will be the earlier of (i) the
tenth calendar day after such Interest Determination Date or, if such day is not
a Business Day, the next succeeding Business Day and (ii) the Business Day
immediately preceding the applicable Interest Payment Date or Maturity, as the
case may be. All calculations on this Note shall be made by the Calculation
Agent specified on the face hereof or such successor thereto as is duly
appointed by the Corporation. The determination of any interest rate by the
Calculation Agent shall be final and binding absent manifest error.
All percentages resulting from any calculation on this Note will be
rounded, if necessary, to the nearest one hundred-thousandth of a percentage
point, with five one-millionths of a percentage point rounded upward (e.g.,
9.876545% (or 0.09876545) would be rounded to 9.87655% (or 0.0987655) and
9.876544% (or 0.09876544) would be rounded to 9.87654% (or 0.0987654)), and all
U.S. dollar amounts used in or resulting from such calculation will be rounded
to the nearest cent or, in the case of a Specified Currency other than U.S.
dollars, to the nearest unit (with one-half cent or unit being rounded upward).
As used herein, "Business Day" means, unless otherwise specified above, any
day, other than a Saturday or Sunday, that is neither a legal holiday nor a day
on which banking institutions are authorized or required by law, regulation or
executive order to close in The City of New York or Boston, Massachusetts;
PROVIDED, HOWEVER, that, if the Holder hereof shall have duly made an election
to receive payments of principal of and premium, if any, and/or interest on this
Note in the Specified Currency specified on the face hereof, such day is also
not a day on which banking institutions are authorized or required by law,
regulation or executive order to close in the Principal Financial Center (as
defined below) of the country issuing such Specified Currency unless the
Specified Currency is ECU, in which case such day is also not a day that appears
as an ECU non-settlement day on the display designated as "ISDE" on the Reuter
Monitor Money Rates Service (or is not a day designated as an ECU non-settlement
day by the ECU Banking Association) or, if ECU non-settlement days do not appear
on that page (and are not so designated), a day that is not a day on which
payments in ECU cannot be settled in the international interbank market);
PROVIDED, FURTHER, that, if LIBOR is an applicable Interest Rate Basis, such day
is also a London Business Day. "London Business Day" means any day on which
dealings in the Designated LIBOR Currency (as hereinafter defined) are
transacted in the London interbank market. "Principal Financial Center" means
the capital city of the country issuing the Specified Currency (except as
described in the immediately preceding sentence with respect to ECU), except
that with respect to U.S. dollars, Australian
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<PAGE> 18
dollars, Canadian dollars, Deutsche marks, Dutch guilders, Italian lire and
Swiss francs, the "Principal Financial Center" shall be The City of New York,
Sydney, Toronto, Frankfurt, Amsterdam, Milan (solely with respect to the
Specified Currency) and Zurich, respectively.
DETERMINATION OF CMT RATE. If an Interest Rate Basis for this Note is the
CMT Rate, as indicated on the face hereof, the CMT Rate shall be determined as
of the applicable Interest Determination Date (a "CMT Rate Interest
Determination Date"), as the rate displayed on the Designated CMT Telerate Page
(as defined below) under the caption "...Treasury Constant Maturities...Federal
Reserve Board Release H.15...Mondays Approximately 3:45 P.M.," under the column
for the Designated CMT Maturity Index (as defined below) for (i) if the
Designated CMT Telerate Page is 7055, the rate on such CMT Rate Interest
Determination Date and (ii) if the Designated CMT Telerate Page is 7052, the
weekly, or the monthly average as indicated on the face hereof, for the week or
the month, as applicable, ended immediately preceding the week or the month in
which the related CMT Rate Interest Determination Date falls. If such rate is no
longer displayed on the relevant page, or if not displayed by 3:00 P.M., New
York City time, on the related Calculation Date, then the CMT Rate for such CMT
Rate Interest Determination Date will be such treasury constant maturity rate
for the Designated CMT Maturity Index as published by the Board of Governors of
the Federal Reserve System in the relevant weekly statistical release entitled
"Statistical Release H.15(519), Selected Interest Rates," or any successor
publication ("H.15(519)"). If such rate is no longer published, or if not
published by 3:00 P.M., New York City time, on the related Calculation Date,
then the CMT Rate for such CMT Rate Interest Determination Date will be such
treasury constant maturity rate for the Designated CMT Maturity Index (or other
United States Treasury rate for the Designated CMT Maturity Index) for the CMT
Rate Interest Determination Date with respect to such Interest Reset Date as may
then be published by either the Board of Governors of the Federal Reserve System
or the United States Department of the Treasury that the Calculation Agent
determines to be comparable to the rate formerly displayed on the Designated CMT
Telerate Page and published in H.15(519). If such information is not provided by
3:00 P.M., New York City time, on the related Calculation Date, then the CMT
Rate for the CMT Rate Interest Determination Date shall be calculated by the
Calculation Agent and shall be a yield to maturity, based on the arithmetic mean
of the secondary market offered rates as of approximately 3:30 P.M., New York
City time, on the CMT Rate Interest Determination Date reported, according to
their written records, by three leading primary United States government
securities dealers (each, a "Reference Dealer") in The City of New York selected
by the Calculation Agent (from five such Reference Dealers selected by the
Calculation Agent and eliminating the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest)), for the most recently issued direct noncallable
fixed rate obligations of the United States
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("Treasury Notes") with an original maturity of approximately the Designated CMT
Maturity Index and a remaining term to maturity of not less than such Designated
CMT Maturity Index minus one year. If the Calculation Agent cannot obtain three
such Treasury Note quotations, the CMT Rate for such CMT Rate Interest
Determination Date will be calculated by the Calculation Agent and will be a
yield to maturity based on the arithmetic mean of the secondary market offered
rates as of approximately 3:30 P.M., New York City time, on the CMT Rate
Interest Determination Date of three Reference Dealers in The City of New York
(from five such Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for Treasury Notes with an original maturity of the number of years
that is the next highest to the Designated CMT Maturity Index and a remaining
term to maturity closest to the Designated CMT Maturity Index and in an amount
of at least $100 million. If three or four (and not five) of such Reference
Dealers are quoting as described above, then the CMT Rate will be based on the
arithmetic mean of the offered rates obtained and neither the highest nor the
lowest of such quotes will be eliminated; PROVIDED, HOWEVER, that if fewer than
three Reference Dealers selected by the Calculation Agent are quoting as
described herein, the CMT Rate will be the CMT Rate in effect on such CMT Rate
Interest Determination Date. If two Treasury Notes with an original maturity of
approximately the Designated CMT Maturity Index have remaining terms to maturity
equally close to the Designated CMT Maturity Index, the quotes for the Treasury
Note with the shorter remaining term to maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow Jones Markets
Limited (or any successor service) on the page designated on the face hereof (or
any other page as may replace such page on that service for the purpose of
displaying Treasury Constant Maturities as reported in H.15(519)). If no such
page is specified on the face hereof, the Designated CMT Telerate Page shall be
7052.
"Designated CMT Maturity Index" means the original period to maturity of
the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years specified
on the face hereof with respect to which the CMT Rate will be calculated. If no
such maturity is specified on the face hereof, the Designated CMT Maturity Index
shall be 2 years.
DETERMINATION OF COMMERCIAL PAPER RATE. If an Interest Rate Basis for this
Note is the Commercial Paper Rate, as indicated on the face hereof, the
Commercial Paper Rate shall be determined as of the applicable Interest
Determination Date (a "Commercial Paper Rate Interest Determination Date"), as
the Money Market Yield (as defined below) on such date of the rate for
commercial paper having the Index Maturity specified on the face hereof as
published in H.15(519) under the caption "Commercial Paper--Nonfinancial". In
the event that such rate is not published by
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<PAGE> 20
3:00 P.M., New York City time, on the related Calculation Date, then the
Commercial Paper Rate on such Commercial Paper Rate Interest Determination Date
shall be calculated by the Calculation Agent and shall be the Money Market Yield
of the arithmetic mean of the offered rates at approximately 11:00 A.M.,
New York City time, on such Commercial Paper Rate Interest Determination Date of
three leading dealers of commercial paper in The City of New York selected by
the Calculation Agent for commercial paper having the Index Maturity specified
on the face hereof placed for a non-financial entity whose bond rating is "Aa,"
or the equivalent, from a nationally recognized statistical rating organization;
PROVIDED, HOWEVER, that if any of the dealers selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, the Commercial
Paper Rate determined as of such Commercial Paper Rate Interest Determination
Date shall be the rate in effect on such Commercial Paper Rate Interest
Determination Date.
"Money Market Yield" shall be a yield (expressed as a percentage)
calculated in accordance with the following formula:
Money Market Yield = D x 360
----------- x 100
360-(D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal and "M" refers to the actual
number of days in the interest period for which interest is being calculated.
DETERMINATION OF ELEVENTH DISTRICT COST OF FUNDS RATE. If an Interest Rate
Basis for this Note is the Eleventh District Cost of Funds Rate, as indicated on
the face hereof, the Eleventh District Cost of Funds Rate shall be determined as
of the applicable Interest Determination Date (an "Eleventh District Cost of
Funds Rate Interest Determination Date"), as the rate equal to the monthly
weighted average cost of funds for the calendar month immediately preceding the
month in which such Eleventh District Cost of Funds Rate Interest Determination
Date falls, as set forth under the caption "11th District" on Telerate Page 7058
(as defined below) as of 11:00 A.M., San Francisco time, on such Eleventh
District Cost of Funds Rate Interest Determination Date. If such rate does not
appear on Telerate Page 7058 on any related Eleventh District Cost of Funds Rate
Interest Determination Date, the Eleventh District Cost of Funds Rate for such
Eleventh District Cost of Funds Rate Interest Determination Date shall be the
monthly weighted average cost of funds paid by member institutions of the
Eleventh Federal Home Loan Bank District that was most recently announced (the
"Index") by the FHLB of San Francisco as such cost of funds for the calendar
month immediately preceding the date of such announcement. If the FHLB of San
Francisco fails to announce the Index for the calendar month immediately
preceding such Eleventh District Cost of Funds Rate Interest Determination Date,
then the Eleventh District Cost of Funds Rate determined as of such Eleventh
District Cost of Funds Rate Interest Determination Date
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<PAGE> 21
shall be the Eleventh District Cost of Funds Rate in effect on such Eleventh
District Cost of Funds Rate Interest Determination Date.
"Telerate Page 7058" means the display designated as page "7058" on the Dow
Jones Telerate Service (or such other page as may replace the 7058 page on that
service for the purpose of displaying the monthly weighted average cost of funds
paid by member institutions of the Eleventh Federal Home Loan Bank District).
DETERMINATION OF FEDERAL FUNDS RATE. If an Interest Rate Basis for this
Note is the Federal Funds Rate, as indicated on the face hereof, the Federal
Funds Rate shall be determined as of the applicable Interest Determination Date
(a "Federal Funds Rate Interest Determination Date"), as the rate on such date
for United States dollar federal funds as published in H.15(519) under the
heading "Federal Funds (Effective)" or, if not so published by 3:00 P.M., New
York City time, on the related Calculation Date, the rate on such Federal Funds
Rate Interest Determination Date, as published in Composite Quotations under the
heading "Federal Funds/Effective Rate." If by 3:00 P.M., New York City time, on
the related Calculation Date such rate is not published in either H.15(519) or
Composite Quotations, then the Federal Funds Rate on such Federal Funds Rate
Interest Determination Date shall be calculated by the Calculation Agent and
shall be the arithmetic mean of the rates for the last transaction in overnight
United States dollar federal funds arranged prior to 9:00 A.M., New York City
time, on such Federal Funds Rate Interest Determination Date by three leading
brokers of federal funds transactions in The City of New York selected by the
Calculation Agent; PROVIDED, HOWEVER, that if any of the brokers selected as
aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, the Federal Funds Rate determined as of such Federal Funds Rate
Interest Determination Date shall be the Federal Funds Rate in effect on such
Federal Funds Rate Interest Determination Date.
DETERMINATION OF LIBOR. If an Interest Rate Basis for this Note is LIBOR,
as indicated on the face hereof, LIBOR shall be determined by the Calculation
Agent as of the applicable Interest Determination Date (a "LIBOR Interest
Determination Date") in accordance with the following provisions:
(i) (a) "LIBOR Reuters" is specified on the face hereof, the arithmetic
mean of the offered rates (unless the Designated LIBOR Page by its terms
provides only for a single rate, in which case such single rate shall be used)
for deposits in the Designated LIBOR Currency having the Index Maturity,
commencing on the applicable Interest Reset Date, that appear (or, if only a
single rate is required as aforesaid, appears) on the Designated LIBOR Page as
of 11:00 A.M., London time, on such LIBOR Interest Determination Date, or (b)
"LIBOR Telerate" is specified on the face hereof, or if neither "LIBOR Reuters"
nor "LIBOR Telerate" is specified on the face hereof as the method for
calculating
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LIBOR, the rate for deposits in the Designated LIBOR Currency having the Index
Maturity, commencing on such Interest Reset Date, that appears on the Designated
LIBOR Page as of 11:00 A.M., London time, on such LIBOR Interest Determination
Date. If fewer than two such offered rates so appear, or if no such rate so
appears, as applicable, LIBOR on such LIBOR Interest Determination Date shall be
determined in accordance with the provisions described in clause (ii) below.
(ii) With respect to a LIBOR Interest Determination Date on which fewer
than two offered rates appear, or no rate appears, as the case may be, on the
Designated LIBOR Page as specified in clause (i) above, the Calculation Agent
shall request the principal London offices of each of four major reference banks
in the London interbank market, as selected by the Calculation Agent, to provide
the Calculation Agent with its offered quotation for deposits in the Designated
LIBOR Currency for the period of the Index Maturity, commencing on the
applicable Interest Reset Date, to prime banks in the London interbank market at
approximately 11:00 A.M., London time, on such LIBOR Interest Determination Date
and in a principal amount that is representative for a single transaction in the
Designated LIBOR Currency in such market at such time. If at least two such
quotations are so provided, then LIBOR on such LIBOR Interest Determination Date
will be the arithmetic mean of such quotations. If fewer than two such
quotations are so provided, then LIBOR on such LIBOR Interest Determination Date
will be the arithmetic mean of the rates quoted at approximately 11:00 A.M., in
the applicable Principal Financial Center, on such LIBOR Interest Determination
Date by three major banks in such Principal Financial Center selected by the
Calculation Agent for loans in the Designated LIBOR Currency to leading European
banks, having the Index Maturity and in a principal amount that is
representative for a single transaction in the Designated LIBOR Currency in such
market at such time; PROVIDED, HOWEVER, that if the banks so selected by the
Calculation Agent are not quoting as mentioned in this sentence, LIBOR
determined as of such LIBOR Interest Determination Date shall be LIBOR in effect
on such LIBOR Interest Determination Date.
"Designated LIBOR Currency" means the currency or composite currency
specified on the face hereof as to which LIBOR shall be calculated or, if no
such currency or composite currency is specified on the face hereof, United
States dollars.
"Designated LIBOR Page" means (a) if "LIBOR Reuters" is specified on the
face hereof, the display on the Reuter Monitor Money Rates Service (or any
successor service) on the page specified on the face hereof (or any other page
as may replace such page on such service) for the purpose of displaying the
London interbank rates of major banks for the Designated LIBOR Currency, or (b)
if "LIBOR Telerate" is specified on the face hereof or neither "LIBOR Reuters"
nor "LIBOR Telerate" is specified on the face hereof as the method for
calculating LIBOR, the display on the Dow Jones Markets Limited (or any
successor
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service) on the page specified on the face hereof (or any other page as may
replace such page on such service) for the purpose of displaying the London
interbank rates of major banks for the Designated LIBOR Currency, unless the
Designated LIBOR Currency specified in the applicable Pricing Supplement is U.S.
dollars, in which case the display designated as page "3750" on the Dow Jones
Telerate Service (or such other page as may replace such page on such service).
DETERMINATION OF PRIME RATE. If an Interest Rate Basis for this Note is the
Prime Rate, as indicated on the face hereof, the Prime Rate shall be determined
as of the applicable Interest Determination Date (a "Prime Rate Interest
Determination Date") as the rate on such date as such rate is published in
H.15(519) under the heading "Bank Prime Loan". If such rate is not published
prior to 3:00 P.M., New York City time, on the related Calculation Date, then
the Prime Rate shall be the arithmetic mean of the rates of interest publicly
announced by each bank that appears on the Reuters Screen USPRIME1 Page (as
defined below) as such bank's prime rate or base lending rate as in effect for
such Prime Rate Interest Determination Date. If fewer than four such rates
appear on the Reuters Screen USPRIME1 Page for such Prime Rate Interest
Determination Date, the Prime Rate shall be the arithmetic mean of the prime
rates or base lending rates quoted on the basis of the actual number of days in
the year divided by a 360-day year as of the close of business on such Prime
Rate Interest Determination Date by four major money center banks in The City of
New York selected by the Calculation Agent. If fewer than four such rates appear
on the Reuters Screen USPRIME1 Page, the Prime Rate will be the arithmetic mean
of the prime rates or base lending rates quoted on the basis of the actual
number of days in the year divided by a 360-day year as of the close of business
on such Prime Rate Interest Determination Date by four major money center banks
in The City of New York selected by the Calculation Agent. If fewer than four
such quotations are so provided, then the Prime Rate shall be the arithmetic
mean of four prime rates quoted on the basis of the actual number of days in the
year divided by a 360-day year as of the close of business on such Prime Rate
Interest Determination Date as furnished in The City of New York by the major
money center banks, if any, that have provided such quotations and by a
reasonable number of substitute banks or trust companies to obtain four such
prime rate quotations, provided such substitute banks or trust companies are
organized and doing business under the laws of the United States, or any State
thereof, each having total equity capital of at least $500 million and being
subject to supervision or examination by Federal or State authority, selected by
the Calculation Agent to provide such rate or rates; PROVIDED, HOWEVER, that if
the banks or trust companies selected as aforesaid are not quoting as mentioned
in this sentence, the Prime Rate determined as of such Prime Rate Interest
Determination Date shall be the Prime Rate in effect on such Prime Rate Interest
Determination Date.
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<PAGE> 24
"Reuters Screen USPRIME1 Page" means the display on the Reuter Monitor
Money Rates Service (or any successor service) on the "USPRIME1" page (or such
other page as may replace the USPRIME1 page on such service) for the purpose of
displaying prime rates or base lending rates of major United States banks.
DETERMINATION OF TREASURY RATE. If an Interest Rate Basis for this Note is
the Treasury Rate, as specified on the face hereof, the Treasury Rate shall be
determined as of the applicable Interest Determination Date (a "Treasury Rate
Interest Determination Date") as the rate applicable to the most recent auction
of direct obligations of the United States ("Treasury Bills") having the Index
Maturity specified on the face hereof, as such rate is published in H.15(519)
under the heading "Treasury Bills - auction average (investment)" or, if not
published by 3:00 P.M., New York City time, on the related Calculation Date, the
auction average rate (expressed as a bond equivalent on the basis of a year of
365 or 366 days, as applicable, and applied on a daily basis) as otherwise
announced by the United States Department of the Treasury. In the event that the
results of the auction of Treasury Bills having the Index Maturity specified on
the face hereof are not reported as provided by 3:00 P.M., New York City time,
on such Calculation Date, or if no such auction is held in a particular week,
then the Treasury Rate shall be calculated by the Calculation Agent and shall be
a yield to maturity (expressed as a bond equivalent on the basis of a year of
365 or 366 days, as applicable, and applied on a daily basis) of the arithmetic
mean of the secondary market bid rates, as of approximately 3:30 P.M., New York
City time, on such Treasury Rate Interest Determination Date, of three leading
primary United States government securities dealers selected by the Calculation
Agent, for the issue of Treasury Bills with a remaining maturity closest to the
Index Maturity specified on the face hereof; PROVIDED, HOWEVER, that if any of
the dealers selected as aforesaid by the Calculation Agent are not quoting as
mentioned in this sentence, the Treasury Rate determined as of such Treasury
Rate Interest Determination Date shall be the Treasury Rate in effect on such
Treasury Rate Interest Determination Date.
Any provision contained herein, including the determination of an Interest
Rate Basis, the specification of an Interest Rate Basis, calculation of the
interest rate applicable to this Note, its Interest Payment Dates or any other
matter relating hereto may be modified as specified in an Addendum relating
hereto if so specified on the face hereof.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, specified on the face hereof. In addition to any Maximum
Interest Rate applicable hereto pursuant to the above provisions, the interest
rate on this Note will in no event be higher than the maximum rate permitted by
Massachusetts law, as the same may be modified by United States law of general
application. The Calculation Agent
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<PAGE> 25
shall calculate the interest rate hereon in accordance with the foregoing on or
before each Calculation Date. Unless otherwise specified on the face hereof,
BankBoston, N.A. will be the Calculation Agent. The determination of any
interest rate by the Calculation Agent shall be final and binding absent
manifest error.
At the request of the Holder hereof, the Calculation Agent shall provide to
the Holder hereof the interest rate hereon then in effect and, if determined,
the interest rate which shall become effective as of the next Interest Reset
Date.
If an Event of Default (as defined in the Subordinated Indenture) with
respect to the Notes shall occur and be continuing, the principal of all the
Notes may be declared due and payable in the manner and with the effect provided
in the Subordinated Indenture.
If this Note is specified on the face hereof as a Discount Note, the amount
payable to the Holder of this Note in the event of redemption, repayment or
acceleration of maturity of this Note will be equal to the sum of (1) the Issue
Price specified on the face hereof (increased by any accruals of the Discount,
as defined below) and, in the event of any redemption of this Note (if
applicable), multiplied by the Initial Redemption Percentage (as adjusted by the
Annual Redemption Percentage Reduction, if applicable) and (2) any unpaid
interest accrued thereon to the Redemption Date, Repayment Date or date of
acceleration of maturity, as the case may be. The difference between the Issue
Price and 100% of the principal amount of this Note is referred to herein as the
"Discount."
For purposes of determining the amount of Discount that has accrued as of
any Redemption Date, Repayment Date or date of acceleration of maturity of this
Note, such Discount will be accrued so as to cause an assumed yield on the Note
to be constant. The assumed constant yield will be calculated using a 30-day
month, 360-day year convention, a compounding period that, except for the
Initial Period (as defined below), corresponds to the shortest period between
Interest Payment Dates (with ratable accruals within a compounding period), a
constant coupon rate equal to the initial interest rate applicable to this Note
and an assumption that the maturity of this Note will not be accelerated. If the
period from the Original Issue Date to the initial Interest Payment Date (the
"Initial Period") is shorter than the compounding period for this Note, a
proportionate amount of the yield for an entire compounding period will be
accrued. If the Initial Period is longer than the compounding period, then such
period will be divided into a regular compounding period and a short period,
with the short period being treated as provided in the preceding sentence.
The Subordinated Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Corporation and the rights
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<PAGE> 26
of the Holders of the Securities of each series to be affected under the
Subordinated Indenture at any time by the Corporation and the Trustee with the
consent of the Holders of 66 2/3% in aggregate principal amount of the
Securities at the time Outstanding, as defined in the Subordinated Indenture, of
each series affected thereby. The Subordinated Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Outstanding Securities of each series at the time, on
behalf of the Holders of all Securities of each series, to waive compliance with
certain provisions of the Subordinated Indenture and certain past defaults under
the Subordinated Indenture and their consequences. Any such consent or waiver by
the Holder of this Note shall be conclusive and binding upon such Holder and
upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof whether
or not notation of such consent or waiver is made upon this Note.
No reference herein to the Subordinated Indenture and no provision of this
Note or of the Subordinated Indenture shall alter or impair the obligation of
the Corporation, which is absolute and unconditional, to pay the principal of
and interest on this Note at the time, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Subordinated Indenture and subject to certain
limitations therein set forth, this registered Note 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
Notes of the same series at the office of Securities Transfer & Reporting
Services, Inc. in The City of New York or the principal office of BankBoston,
N.A. in The City of Boston.
No service charge shall be made for any registration of transfer or
exchange, but the Corporation may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Corporation or the Trustee and any agent of the Corporation or the Trustee may
treat the Person in whose name this Note is registered as the owner hereof for
all purposes, whether or not this Note be overdue, and neither the Corporation,
the Trustee nor any such agent shall be affected by notice to the contrary.
This Note and the Subordinated Indenture shall be governed by and construed
in accordance with the laws of The Commonwealth of Massachusetts.
All terms used in this Note which are defined in the Subordinated Indenture
shall have the meanings assigned to them in the Subordinated Indenture.
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<PAGE> 27
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Corporation to repay this Note (or portion hereof specified below) pursuant to
its terms at a price equal to the principal amount hereof together with interest
to the repayment date, to the undersigned, at __________________________________
________________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, one of the Paying Agents must receive at its
office, or at such other place or places of which the Corporation shall from
time to time notify the Holder of this Note, not more than 60 nor less than 30
days prior to an Optional Repayment Date, if any, shown above, this Note with
this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of $1,000) (or, if the
Specified Currency indicated on the face hereof is other than United States
dollars, in the minimum Authorized Denomination specified on the face hereof)
which the Holder elects to have repaid and specify the denomination or
denominations (which shall be an Authorized Denomination) of the Notes to be
issued to the Holder for the portion of this Note not being repaid (in the
absence of any such specification, one such Note will be issued for the portion
not being repaid).
$____________________________________ ___________________________________
NOTICE: The signature on this
Date _____________________________ Option to Elect Repayment must
correspond with the name as
written upon the face of this
Note in every particular,
without alteration or
enlargement or any change
whatever.
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<PAGE> 28
ASSIGNMENT/TRANSFER FORM
FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s),
assign(s) and transfer(s) unto (insert Social Security or Taxpayer
Identification No.) ____________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
___________ (Please print or typewrite name and address including postal zip
code of assignee)
________________________________________________________________________________
__the within Note and all rights thereunder, hereby irrevocably constituting and
appointing ______________________________________ attorney to transfer said Note
on the books of the Corporation with full power of substitution in the premises.
Dated: _____________ __________________________________________________
__ NOTICE: The signature of the registered Holder to this assignment must
correspond with the name as written upon the face of the within
instrument in every particular, without alteration or enlargement or
any change whatsoever.
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<PAGE> 29
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM--as tenants in common
UNIF GIFT MIN ACT--...................Custodian....................
(Cust) (Minor)
Under Uniform Gifts to Minors Act
.................................
(State)
TEN ENT--as tenants by the entireties
JT TEN--as joint tenants with right of survivorship
and not as tenants in common
Additional abbreviations may also be used though not in the above list.
29
