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 10, 1997
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FLEET FINANCIAL GROUP, INC.
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(Exact name of registrant as specified in its charter)
RHODE ISLAND
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(State or other jurisdiction of incorporation)
1-6366 05-0341324
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(Commission File Number) (IRS Employer Identification No.)
One Federal Street, Boston, Massachusetts 02110
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 617-346-4000
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(Former name or former address, if changed since last report)
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Item 5. Other Materially Important Events.
On November 10, 1997, Registrant authorized the sale of and established
the terms of $2,000,000,000 in aggregate principal amount of its Senior
Medium-Term Notes, Series L and Subordinated Medium-Term Notes, Series M
(the "Notes"), under Registration Statement No. 333-37231. The Notes have
maturities ranging nine months or more and bear interest at fixed or
floating rates. The Notes are to be offered by Registrant's Agents, Fleet
National Bank, Goldman, Sachs & Co., Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated, J.P. Morgan Securities Inc., Salomon
Brothers Inc and UBS Securities LLC. Closing documents relating to the
Notes were executed and delivered on November 21, 1997.
Item 7. Financial Statements and Exhibits.
(a) Financial Statements
Not applicable
(b) Pro Forma Financial Statements
Not applicable
(c) Exhibits
The following exhibits are filed as part of this report:
(1)(a) Selling Agency Agreement dated November 10, 1997 between
Registrant, Goldman Sachs & Co., Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated, J.P. Morgan
Securities, Inc., Salomon Brothers Inc and UBS Securities LLC
(1)(b) Distribution Agreement dated November 10, 1997 between Registrant
and Fleet National Bank
(4)(a) Specimen certificate of the Series L Senior Medium-Term Notes
(4)(b) Specimen certificate of the Series M Subordinated Medium-Term
Notes
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the Registrant has duly caused this report to be signed in its behalf
by the undersigned hereunto duly authorized.
FLEET FINANCIAL GROUP, INC.
Registrant
By /s/ William C. Mutterperl
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William C. Mutterperl
Secretary and General Counsel
Date: November 10, 1997
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Exhibit 1(a)
Fleet Financial Group, Inc.
U.S.$2,000,000,000
Senior Medium-Term Notes, Series L and
Subordinated Medium-Term Notes, Series M
Due Nine Months or More
from Date of Issue
Selling Agency Agreement
November 10, 1997
New York, New York
Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Merrill Lynch & Co.
Merrill Lynch, Pierce,
Fenner & Smith Incorporated
World Financial Center
North Tower, 10th Floor
New York, NY 10281-1310
J.P. Morgan Securities Inc.
60 Wall Street
New York, NY 10260
Salomon Brothers Inc
Seven World Trade Center
New York, NY 10048
UBS Securities LLC
299 Park Avenue
New York, NY 10171-0026
Dear Sirs:
Fleet Financial Group, Inc., a Rhode Island corporation (the
"Company"), confirms its agreement with each of you with respect to the issue
and sale by the
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Company of up to $2,000,000,000 aggregate principal amount of its Senior
Medium-Term Notes, Series L and Subordinated Medium-Term Notes, Series M
(respectively, the "Senior Notes" and the "Subordinated Notes"), Due Nine Months
or More from Date of Issue (collectively, the "Notes"). The Senior Notes are to
be issued under an indenture dated as of October 1, 1992, between the Company
and The First National Bank of Chicago (the "Senior Trustee" or "First
Chicago"), as trustee (the "Senior Indenture"). The Subordinated Notes are to be
issued under an indenture dated as of October 1, 1992, between the Company and
First Chicago as trustee (the "Subordinated Trustee" and, collectively with the
Senior Trustee, the "Trustee") as supplemented by a first supplemental indenture
dated as of November 30, 1992, between the Company and the Subordinated Trustee
(as so supplemented, the "Subordinated Indenture" and collectively with the
Senior Indenture, the "Indentures"). The Notes will be issued in minimum
denominations of $1,000 and integral multiples thereof, will be issued only in
fully registered form and will have the annual interest rates, maturities and,
if appropriate, other terms set forth in a supplement to the Prospectus referred
to below. The Notes will be issued, and the terms thereof established, in
accordance with the applicable Indenture and the Medium-Term Notes
Administrative Procedures attached hereto as Exhibit A (the "Procedures")
(unless a Terms Agreement (as defined in Section 2(b)) modifies or otherwise
supersedes such Procedures with respect to Notes issued pursuant to such Terms
Agreement). The Procedures may only be amended by written agreement of the
Company and you after notice to, and with the approval of, the Trustee. For the
purposes of this Agreement, the term "Agent" shall refer to any of you acting
solely in the capacity as agent for the Company pursuant to Section 2(a) and not
as principal (collectively, the "Agents"), the term "Purchaser" shall refer to
one of you acting solely as principal pursuant to Section 2(b) and not as agent,
and the term "you" shall refer to you collectively whether at any time any of
you is acting in both such capacities or in either such capacity. In acting
under this Agreement, in whatever capacity, each of you is acting individually
and not jointly.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, you as set forth below in this Section 1. Certain
terms used in this Section 1 are defined in paragraph (d) hereof.
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933 (the "Act") and
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has filed with the Securities and Exchange Commission (the "Commission") a
registration statement on such Form (Registration Number 333-37231), including a
basic prospectus, which also constitutes pursuant to Rule 429 under the Act
Post-Effective Amendment No. 1 to registration statement on such Form
(Registration Number 333-00701) and which has become effective, for the
registration under the Act of securities (the "Securities"), including the
Notes, in an aggregate principal amount of $2,733,400,000. Such registration
statement, as amended at the date of this Agreement, meets the requirements set
forth in Rule 415(a)(1)(ix) or (x) under the Act and complies in all other
material respects with said Rule. The Company has included in such registration
statement, as amended at the date of this Agreement, or has filed or will file
with the Commission pursuant to the applicable paragraph of Rule 424(b) under
the Act, a supplement to the form of prospectus included in such registration
statement relating to the Notes and the plan of distribution thereof (the
"Prospectus Supplement"). In connection with the sale of Notes the Company
proposes to file with the Commission pursuant to the applicable paragraph of
Rule 424(b) under the Act further supplements to the Prospectus Supplement
specifying the interest rates, maturity dates and, if appropriate, other terms
of the Notes sold pursuant hereto or the offering thereof.
(b) As of the Execution Time, on the Effective Date, when any
supplement to the Prospectus is filed with the Commission, as of the date of any
Terms Agreement, on each day of an Offering Period (referred to below) and at
the date of delivery by the Company of any Notes sold hereunder (a "Closing
Date"), (i) the Registration Statement, as amended as of any such time, and the
Prospectus, as supplemented as of any such time, and each Indenture will comply
in all material respects with the applicable requirements of the Act, the Trust
Indenture Act of 1939 (the "Trust Indenture Act") and the Securities Exchange
Act of 1934 (the "Exchange Act") and the respective rules thereunder; (ii) the
Registration Statement, as amended as of any such time, did not or will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein not misleading; and (iii) the Prospectus, as supplemented as of any such
time, will not contain any 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,
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that the Company makes no representations or warranties as to (i) that part of
the Registration Statement which shall constitute the Statement of Eligibility
and Qualification (Form T-1) under the Trust Indenture Act of the Trustee or
(ii) the information contained in or omitted from the Registration Statement or
the Prospectus (or any supplement thereto) in reliance upon and in conformity
with information furnished in writing to the Company by any of you specifically
for inclusion in connection with the preparation of the Registration Statement
or the Prospectus (or any supplement thereto).
(c) As of the time any Notes are issued and sold hereunder, each
Indenture will constitute a legal, valid and binding instrument enforceable
against the Company in accordance with its terms and such Notes will have been
duly authorized, executed, authenticated and, when paid for by the purchasers
thereof, will constitute legal, valid and binding obligations of the Company
entitled to the benefits of the applicable Indenture.
(d) The terms which follow, when used in this Agreement, shall have
the meanings indicated. The term "the Effective Date" shall mean each date that
the Registration Statement and any post-effective amendment or amendments
thereto became or become effective. "Execution Time" shall mean the date and
time that this Agreement is executed and delivered by the parties hereto. "Basic
Prospectus" shall mean the form of basic prospectus relating to the Securities
contained in the Registration Statement at the Effective Date. "Prospectus"
shall mean the Basic Prospectus as supplemented by the Prospectus Supplement.
"Registration Statement" shall mean the registration statement referred to in
paragraph (a) above, including incorporated documents, exhibits and financial
statements, as amended at the Execution Time. "Rule 415" and "Rule 424" refer to
such rules under the Act. Any reference herein to the Registration Statement,
the Basic Prospectus, the Prospectus Supplement or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or
before the Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, the Prospectus Supplement or the Prospectus, as the case may
be; and any reference herein to the terms "amend", "amendment" or "supplement"
with respect to the Registration Statement, the Basic Prospectus, the Prospectus
Supplement or the Prospectus shall be deemed to refer to and include the filing
of any document under the Exchange Act
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after the Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, the Prospectus Supplement or the Prospectus, as the case may
be, deemed to be incorporated therein by reference.
2. Appointment of Agents; Solicitation by the Agents of Offers to
Purchase; Sales of Notes to a Purchaser. (a) Subject to the terms and conditions
set forth herein, the Company hereby authorizes each of the Agents to act as its
agent to solicit offers for the purchase of all or part of the Notes from the
Company. The Company shall notify the Agents from time to time as to the
commencement of a period during which the Notes may be offered and sold by the
Agents (each period, commencing with such notification and ending at such time
as the authorization for offers and sales through the Agents shall have been
suspended by the Company or the Agents as provided hereunder, being referred to
as an "Offering Period").
On the basis of the representations and warranties, and subject to
the terms and conditions set forth herein, each of the Agents agrees, as agent
of the Company, to use its reasonable efforts to solicit offers to purchase the
Notes during each Offering Period from the Company upon the terms and conditions
set forth in the Prospectus (and any supplement thereto) and in the Procedures.
The Company reserves the right, in its sole discretion, to instruct
the Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase the Notes. Upon receipt of instructions from
the Company, the Agents will forthwith suspend solicitation of offers to
purchase Notes from the Company until such time as the Company has advised them
that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, on the Closing
Date with respect to each sale of Notes by the Company as a result of a
solicitation made by such Agent as agent, in an amount equal to that percentage
specified in Schedule I hereto of the aggregate principal amount of the Notes
sold by the Company. Such commission shall be payable as specified in the
Procedures.
Subject to the provisions of this Section and to the Procedures,
offers for the purchase of Notes may be solicited by an Agent as agent for the
Company at such time and in such amounts as such Agent deems advisable. The
Company may from time to time offer Notes for sale otherwise
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than through an Agent; provided, however, that so long as this Agreement shall
be in effect, the Company shall not solicit or accept offers to purchase Notes
through any agent other than an Agent or an affiliate of the Company (including
Fleet National Bank, which has entered into a distribution agreement with the
Company providing for the sale of Notes on terms and conditions substantially
similar to those contained herein) unless such solicitation or acceptance is on
terms with respect to commissions substantially similar to those set forth in
Schedule I hereto and the Company shall give the Agents reasonable notice of the
appointment of such agents for the purpose of soliciting the Notes.
(b) Subject to the terms and conditions stated herein, whenever the
Company and any Agent determine that the Company shall sell Notes directly to
such Agent as principal, each such sale of Notes shall be made in accordance
with the terms of this Agreement and a supplemental agreement relating to such
sale between the Company and the Purchaser. Each such supplemental agreement
(which may be an oral or written agreement) is herein referred to as a "Terms
Agreement". Each Terms Agreement shall describe (whether orally or in writing)
the Notes to be purchased by the Purchaser pursuant thereto and shall specify
the aggregate principal amount of such Notes, the price to be paid to the
Company for such Notes, the maturity date of such Notes, the rate at which
interest will be paid on such Notes, the dates on which interest will be paid on
such Notes and the record date with respect to each such payment of interest,
the Closing Date for the purchase of such Notes, the place of delivery of the
Notes and payment therefor, the method of payment and any requirements for the
delivery of opinions of counsel, certificates from the Company or its officers
or a letter from the Company's independent public accountants, as described in
Section 6(b). Any such Terms Agreement may also specify the period of time
referred to in Section 4(m). The Purchaser's commitment to purchase Notes 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.
Delivery of the certificates for Notes sold to the Purchaser
pursuant to a Terms Agreement shall be made not later than the Closing Date
agreed to in such Terms Agreement, against payment of funds to the Company in
the net amount due to the Company for such Notes by the method and in the form
set forth in the Procedures unless otherwise
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agreed to between the Company and the Purchaser in such Terms Agreement.
Unless otherwise agreed to between the Company and the Purchaser in
a Terms Agreement, any Note sold to a Purchaser (i) shall be purchased by such
Purchaser at a price equal to 100% of the principal amount thereof less a
percentage equal to the commission applicable to an agency sale of a Note of
identical maturity and (ii) may be resold by such Agent at varying prices
determined at the time of sale or, if so agreed and set forth in the applicable
Pricing Supplement, at a fixed public offering price, from time to time. In
connection with any resale of Notes purchased, a Purchaser may use a selling or
dealer group and may reallow any portion of the discount or commission payable
pursuant hereto to dealers or purchasers.
3. Offering and Sale of Notes. Each Agent and the Company agree to
perform the respective duties and obligations specifically provided to be
performed by them in the Procedures.
4. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the Notes, the
Company will not file any amendment of the Registration Statement or supplement
to the Prospectus (except for (i) periodic or current reports filed under the
Exchange Act, (ii) a supplement relating to any offering of Notes providing
solely for the specification of or a change in the maturity dates, interest
rates, issuance prices or other terms of any Notes or (iii) a supplement
relating to an offering of Securities other than the Notes) unless the Company
has furnished each of you a copy for your review prior to filing and given each
of you a reasonable opportunity to comment on any such proposed amendment or
supplement. Subject to the foregoing sentence, the Company will cause each
supplement to the Prospectus to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed and will
provide evidence satisfactory to you of such filing. The Company will promptly
advise each of you (i) when the Prospectus, and any supplement thereto, shall
have been filed with the Commission pursuant to Rule 424(b), (ii) when, prior to
the termination of the offering of the Notes, any amendment of the Registration
Statement shall have been filed or become effective, (iii) of any request by the
Commission for any amendment of the Registration Statement or supplement to the
Prospectus or for any additional
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information, (iv) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (v) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Notes for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it shall be necessary to amend the Registration
Statement or to supplement the Prospectus to comply with the Act or the Exchange
Act or the respective rules thereunder, the Company promptly will (i) notify
each of you to suspend solicitation of offers to purchase Notes (and, if so
notified by the Company, each of you shall forthwith suspend such solicitation
and cease using the Prospectus as then supplemented), (ii) prepare and file with
the Commission, subject to the first sentence of paragraph (a) of this Section
4, an amendment or supplement which will correct such statement or omission or
effect such compliance and (iii) supply any supplemented Prospectus to each of
you in such quantities as you may reasonably request. If such amendment or
supplement, and any documents, certificates and opinions furnished to each of
you pursuant to paragraph (g) of this Section 4 in connection with the
preparation or filing of such amendment or supplement are satisfactory in all
respects to you, each of you will, upon the filing of such amendment or
supplement with the Commission and upon the effectiveness of an amendment to the
Registration Statement, if such an amendment is required, resume your obligation
to solicit offers to purchase Notes hereunder.
(c) The Company, during the period when a prospectus relating to the
Notes is required to be delivered under the Act, will file promptly all
documents required to be filed with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act and will furnish to each of you copies of
such documents. In addition, on the date on which the Company makes any
announcement to the
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general public concerning earnings or concerning any other event which is
required to be described, or which the Company proposes to describe, in a
document filed pursuant to the Exchange Act, the Company will furnish to each of
you the information contained or to be contained in such announcement. The
Company also will furnish to each of you copies of all other press releases or
announcements to the general public of a financial nature. The Company will
immediately notify each of you of (i) any decrease in the rating of the Notes or
any other debt securities of the Company, by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) under
the Act) or (ii) any notice given of any intended or potential decrease in any
such rating or of a possible change in any such rating that does not indicate
the direction of the possible change, as soon as the Company learns of any such
decrease or notice.
(d) As soon as practicable, the Company will make generally
available to its security holders and to each of you an earnings statement or
statements of the Company and its subsidiaries which will satisfy the provisions
of Section 11(a) of the Act and Rule 158 under the Act.
(e) The Company will furnish to each of you and your counsel,
without charge, copies of the Registration Statement (including exhibits
thereto) and, so long as delivery of a prospectus may be required by the Act, as
many copies of the Prospectus and any supplement thereto as you may reasonably
request.
(f) The Company will arrange for the qualification of the Notes for
sale under the laws of such jurisdictions as any of you may designate, will
maintain such qualifications in effect so long as required for the distribution
of the Notes, and will arrange for the determination of the legality of the
Notes for purchase by institutional investors.
(g) The Company shall furnish to each of you such information,
documents, certificates of officers of the Company and opinions of counsel for
the Company relating to the business, operations and affairs of the Company, the
Registration Statement, the Prospectus, and any amendments thereof or
supplements thereto, each Indenture, the Notes, this Agreement, the Procedures
and the performance by the Company and you of its and your respective
obligations hereunder and thereunder as any of you may from time to time
<PAGE>
and at any time prior to the termination of this Agreement reasonably request.
(h) The Company shall, whether or not any sale of the Notes is
consummated, (i) pay all expenses incident to the performance of its obligations
under this Agreement, including the fees and disbursements of its accountants
and counsel, the cost of printing or other production and delivery of the
Registration Statement, the Prospectus, all amendments thereof and supplements
thereto, each Indenture, this Agreement and all other documents relating to the
offering, the cost of preparing, printing, packaging and delivering the Notes,
the fees and disbursements, including fees of counsel, incurred in compliance
with Section 4(f), the fees and disbursements of the Trustee and the fees of any
agency that rates the Notes, (ii) reimburse each of you on a monthly basis for
all out-of-pocket expenses (including without limitation advertising expenses)
incurred by you in connection with this Agreement and (iii) pay the reasonable
fees and expenses of your counsel incurred in connection with this Agreement.
(i) Each acceptance by the Company of an offer to purchase Notes
will be deemed to be an affirmation that its representations and warranties
contained in this Agreement are true and correct at the time of such acceptance,
as though made at and as of such time, and a covenant that such representations
and warranties will be true and correct at the time of delivery to the purchaser
of the Notes relating to such acceptance, as though made at and as of such time
(it being understood that for purposes of the foregoing affirmation and covenant
such representations and warranties shall relate to the Registration Statement
and Prospectus as amended or supplemented at each such time). Each such
acceptance by the Company of an offer for the purchase of Notes shall be deemed
to constitute an additional representation, warranty and agreement by the
Company that, as of the settlement date for the sale of such Notes, after giving
effect to the issuance of such Notes, of any other Notes to be issued on or
prior to such settlement date and of any other Securities to be issued and sold
by the Company on or prior to such settlement date, the aggregate amount of
Securities (including any Notes) which have been issued and sold by the Company
will not exceed the amount of Securities registered pursuant to the Registration
Statement.
(j) Prior to the commencement of the first Offering Period
subsequent to each time, and subsequent to each time during any Offering Period,
that the Registration
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Statement or the Prospectus is amended or supplemented (other than by an
amendment or supplement relating to any offering of Securities other than the
Notes or providing solely for the specification of or a change in the maturity
dates, the interest rates, the issuance prices or other similar terms of any
Notes sold pursuant hereto), the Company will deliver or cause to be delivered
promptly to each of you a certificate of the Company, signed by the Chairman of
the Board, or the President, or any Executive Vice President and the principal
financial or accounting officer or Treasurer of the Company, dated the date of
the effectiveness of such amendment or the date of the filing of such
supplement, in form reasonably satisfactory to you, of the same tenor as the
certificate referred to in Section 5(d) but modified to relate to the last day
of the fiscal quarter for which financial statements of the Company were last
filed with the Commission and to the Registration Statement and the Prospectus
as amended and supplemented to the time of the effectiveness of such amendment
or the filing of such supplement.
(k) Prior to the commencement of the first Offering Period
subsequent to each time, and subsequent to each time during any Offering Period,
that the Registration Statement or the Prospectus is amended or supplemented
(other than by an amendment or supplement (i) relating to any offering of
Securities other than the Notes, (ii) providing solely for the specification of
or a change in the maturity dates, the interest rates, the issuance prices or
other similar terms of any Notes sold pursuant hereto or (iii) setting forth or
incorporating by reference financial statements or other information as of and
for a fiscal quarter, unless, in the case of clause (iii) above, in the
reasonable judgment of any of you, such financial statements or other
information are of such a nature that an opinion of counsel should be
furnished), the Company shall furnish or cause to be furnished promptly to each
of you a written opinion of counsel of the Company satisfactory to each of you,
dated the date of the effectiveness of such amendment or the date of the filing
of such supplement, in form satisfactory to each of you, of the same tenor as
the opinion referred to in Section 5(b) but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of the effectiveness of such amendment or the filing of such supplement or,
in lieu of such opinion, counsel last furnishing such an opinion to you may
furnish each of you with a letter to the effect that you may rely on such last
opinion to the same extent as though it were dated the date of such letter
authorizing reliance
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(except that statements in such last opinion will be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of the effectiveness of such amendment or the filing of such supplement).
(l) Prior to the commencement of the first Offering Period
subsequent to each time that the Registration Statement or the Prospectus is
amended or supplemented to include or incorporate amended or supplemental
financial information, and each time during any Offering Period that the
Registration Statement or Prospectus is so amended or supplemented, the Company
shall cause its independent public accountants promptly to furnish each of you a
letter, dated the date of the commencement of such Offering Period or the date
of the effectiveness of such amendment or the date of the filing of such
supplement, as the case may be, in form satisfactory to each of you, of the same
tenor as the letter referred to in Section 5(e) with such changes as may be
necessary to reflect the amended and supplemental financial information included
or incorporated by reference in the Registration Statement and the Prospectus,
as amended or supplemented to the date of such letter; provided, that in no
event will the Company accept any offer to purchase Notes unless such letter
shall have been delivered; provided, further, that, if the Registration
Statement or the Prospectus is amended or supplemented solely to include or
incorporate by reference financial information as of and for a fiscal quarter,
the Company's independent public accountants may limit the scope of such letter,
which shall be satisfactory in form to each of you, to the unaudited financial
statements, the related "Management's Discussion and Analysis of Financial
Condition and Results of Operations" and any other information of an accounting,
financial or statistical nature included in such amendment or supplement,
unless, in the reasonable judgment of any of you, such letter should cover other
information or changes in specified financial statement line items.
(m) During the period from the date of any Terms Agreement to the
later of (A) the Closing Date with respect to such Terms Agreement and (B) the
date, if any, specified in such Terms Agreement, the Company shall not, without
the prior consent of the Purchaser thereunder, issue or announce the proposed
issuance of any of its debt securities, including Notes (other than the Notes
that are to be sold pursuant to such Terms Agreement), with terms substantially
similar to the Notes being purchased pursuant to such Terms Agreement, other
than borrowings under its revolving credit
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agreements and lines of credit and issuances of its commercial paper.
5. Conditions to the Obligations of the Agents. The obligations of
each Agent to solicit offers to purchase the Notes shall be subject to the
accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time, on the Effective Date, when any
supplement to the Prospectus is filed with the Commission and as of each Closing
Date, to the accuracy of the statements of the Company made in any certificates
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions:
(a) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus, and any such supplement, shall
have been filed in the manner and within the time period required by Rule
424(b); and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted or threatened.
(b) The Company shall have furnished to each Agent the opinion of
Edwards & Angell, counsel for the Company, dated the Execution Time, to the
effect that:
(i) each of the Company, Fleet National Bank ("Fleet Bank"),
and any other subsidiary or subsidiaries which the Agent may reasonably request
(individually a "Subsidiary" and collectively the "Subsidiaries") has been duly
incorporated and is validly existing as a corporation or national association in
good standing under the laws of the jurisdiction in which it is chartered or
organized, with full corporate power and authority to own its properties and
conduct its business as described in the Prospectus; the Company is qualified to
do business as a foreign corporation under the laws of the State of New York and
the Commonwealth of Massachusetts; except as stated above, neither the Company
nor Fleet Bank is required to be qualified to do business as a foreign
corporation under the laws of any other jurisdiction; and the Company is
registered as a bank holding company under the Bank Holding Company Act of 1956,
as amended;
(ii) all the outstanding shares of capital stock of Fleet Bank
and such Subsidiaries have been duly and validly authorized and issued and are
fully paid and (except
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as provided in 12 U.S.C. ss. 55) nonassessable, and, except as otherwise set
forth in the Prospectus, all outstanding shares of capital stock of Fleet Bank
and such Subsidiaries are owned by the Company free and clear of any perfected
security interest and, to the knowledge of such counsel, after due inquiry, any
other security interests, claims, liens or encumbrances;
(iii) each Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust Indenture Act,
and constitutes a legal, valid and binding agreement enforceable against the
Company in accordance with its terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally from time to time in effect and to the
availability of equitable remedies which are discretionary with the courts);
(iv) the Notes have been duly authorized as a series of Debt
Securities under the applicable Indenture, are in the forms provided for by
resolutions of the Board of Directors of the Company adopted pursuant to such
Indenture, conform to the description thereof contained in the Prospectus, and,
when executed and authenticated in accordance with the provisions of the
applicable Indenture and delivered to and paid for by the purchasers, will
constitute valid and binding obligations of the Company entitled to the benefits
of the applicable Indenture;
(v) to the best knowledge of such counsel, there is no pending
or threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the Company or any of its
subsidiaries, of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Prospectus, and there is no
franchise, contract or other document of a character required to be described in
the Registration Statement or Prospectus, or to be filed as an exhibit, which is
not described or filed as required;
(vi) the Registration Statement and any amendments thereto
have become effective under the Act; to the best knowledge of such counsel, no
stop order suspending the effectiveness of the Registration Statement, as
amended, has been issued, no proceedings for that purpose have been instituted
or threatened, and the Registration Statement, the Prospectus and each amendment
thereof or supplement thereto as of their respective effective or issue dates
<PAGE>
(other than the financial statements and other financial data contained therein
as to which such counsel need express no opinion) comply as to form in all
material respects with the applicable requirements of the Act and the Exchange
Act and the respective rules thereunder; and such counsel has no reason to
believe that the Registration Statement, or any amendment thereof, at the time
it became effective and at the date of this Agreement (or, in the case of any
opinion delivered pursuant to Section 4(k) or Section 6, the date of such
subsequently delivered opinion), contained any untrue statement of a material
fact or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the Prospectus,
as amended or supplemented to the date of such opinion, includes any untrue
statement of a material fact or omits to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading;
(vii) this Agreement has been duly authorized, executed and
delivered by the Company;
(viii) no consent, approval, authorization or order of any
court or governmental agency or body is required for the consummation of the
transactions contemplated herein, except such as have been obtained under the
Act and such as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Notes as contemplated by
this Agreement and such other approvals (specified in such opinion) as have been
obtained;
(ix) neither the issue and sale of the Notes, nor the
consummation of any other of the transactions herein contemplated nor the
fulfillment of the terms hereof will conflict with, result in a breach of, or
constitute a default under the charter or by-laws of the Company or the terms of
any indenture or other agreement or instrument known to such counsel and to
which the Company or any of its subsidiaries is a party or bound, or any order
or regulation known to such counsel to be applicable to the Company or any of
its subsidiaries of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Company or any of
its subsidiaries; and
(x) no holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
<PAGE>
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State of
Rhode Island or the United States, to the extent deemed proper and specified in
such opinion, upon the opinion of other counsel of good standing believed to be
reliable and who are satisfactory to counsel for the Agents and (B) as to
matters of fact, to the extent deemed proper, on certificates of responsible
officers of the Company and public officials. References to the Prospectus in
this paragraph (b) include any supplements thereto at the date such opinion is
rendered.
(c) Each Agent shall have received from Cravath, Swaine & Moore,
counsel for the Agents, such opinion or opinions, dated the Execution Time, with
respect to the issuance and sale of the Notes, each Indenture, the Registration
Statement, the Prospectus (together with any supplement thereto) and other
related matters as the Agents may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(d) The Company shall have furnished to each Agent a certificate of
the Company, signed by the Chairman of the Board, or the President, or any
Executive Vice President and the principal financial or accounting officer or
Treasurer of the Company, dated the Execution Time, to the effect that the
signers of such certificate have carefully examined the Registration Statement,
the Prospectus, any supplement to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of the date
hereof with the same effect as if made on the date hereof and the Company has
complied with all the agreements and satisfied all the conditions on its part to
be performed or satisfied as a condition to the obligation of the Agents to
solicit offers to purchase the Notes;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements
included in the Prospectus (exclusive
<PAGE>
of any supplement thereto), there has been no material adverse change in the
condition (financial or other), earnings, business or properties of the Company
and its subsidiaries, whether or not arising from transactions in the ordinary
course of business, except as set forth or contemplated in the Prospectus
(exclusive of any supplement thereto).
(e) At the Execution Time, KPMG Peat Marwick LLP shall have
furnished to each Agent a letter or letters (which may refer to letters
previously delivered to the Agents), dated as of the Execution Time, in form and
substance satisfactory to the Agents, confirming that they are independent
accountants within the meaning of the Act and the Exchange Act and the
respective applicable published rules and regulations thereunder and stating in
effect that:
(i) in their opinion the audited financial statements included
or incorporated in the Registration Statement and the Prospectus and reported on
by them comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the related
published rules and regulations;
(ii) on the basis of a reading of the latest unaudited
consolidated financial statements made available by the Company; carrying out
certain specified procedures (but not an examination in accordance with
generally accepted auditing standards) which would not necessarily reveal
matters of significance with respect to the comments set forth in such letter; a
reading of the minutes of the meetings of the stockholders, directors and
executive and audit committees of the Company; and inquiries of certain
officials of the Company who have responsibility for financial and accounting
matters of the Company and its subsidiaries as to transactions and events
subsequent to the date of the most recent audited financial statements
incorporated in the Registration Statement and the Prospectus, nothing came to
their attention which caused them to believe that:
(1) the amounts in the unaudited "Summary Consolidated
Financial Data", if any, included in the Prospectus do not agree with the
corresponding amounts in the audited consolidated financial statements,
unaudited consolidated financial statements or analyses prepared by the Company
from which such amounts were derived; or
<PAGE>
(2) any unaudited financial statements included or
incorporated in the Registration Statement and the Prospectus do not comply as
to form in all material respects with applicable accounting requirements and
with the published rules and regulations of the Commission with respect to
financial statements included or incorporated in quarterly reports on Form 10-Q
under the Exchange Act; and said unaudited financial statements are not in
conformity with generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial statements included
or incorporated in the Registration Statement and the Prospectus; or
(3) with respect to the period subsequent to the date of
the most recent financial statements (other than capsule information), audited
or unaudited, incorporated in the Registration Statement and the Prospectus,
there were any changes, at a specified date not more than five business days
prior to the date of the letter, in the long-term debt of the Company and its
subsidiaries on a consolidated basis or capital stock of the Company or
decreases in the stockholders' equity of the Company and its subsidiaries on a
consolidated basis as compared with the amounts shown on the most recent
consolidated balance sheet or capitalization table included or incorporated in
the Registration Statement and the Prospectus, or for the period from the date
of the most recent financial statements incorporated in the Registration
Statement and the Prospectus to such specified date there were any decreases, as
compared with the corresponding period in the preceding year, in net interest
income or income before income taxes, or in total or per share amounts of net
income, of the Company and its subsidiaries on a consolidated basis, except in
all instances for changes or decreases that the Registration Statement has
disclosed have occurred or may occur, in which case the letter shall be
accompanied by an explanation by the Company as to the significance thereof
unless said explanation is not deemed necessary by the Agents; or
(4) the amounts included in any unaudited "capsule"
information included or incorporated in the Registration Statement and the
Prospectus do not agree with the amounts set forth in the unaudited financial
statements for the same periods or were not determined on a basis substantially
consistent with that of the corresponding amounts in the audited financial
statements included or incorporated in the Registration Statement and the
Prospectus;
<PAGE>
(iii) they have performed certain other specific procedures as
a result of which they determined that certain information of an accounting,
financial or statistical nature (which is limited to accounting, financial or
statistical information derived from the general accounting records of the
Company) set forth in the Registration Statement, as amended, and the
Prospectus, as amended or supplemented, and in Exhibit 12 to the Registration
Statement, the information included or incorporated in Items 1 (Guide 3
Statistical Disclosure), 6 and 7 of the Company's annual report on Form 10-K
incorporated therein, and in "Management's Discussion and Analysis of Financial
Condition and Results of operations" included or incorporated in the Company's
quarterly reports on Form 10-Q incorporated therein agrees with the accounting
records of the Company and its subsidiaries on a consolidated basis, excluding
any questions of legal interpretation; and
(iv) if pro forma financial statements are included or
incorporated in the Registration Statement and the Prospectus, on the basis of a
reading of the unaudited pro forma financial statements, carrying out certain
specified procedures, inquiries of certain officials of the Company and the
acquired company who have responsibility for financial and accounting matters,
and proving the arithmetic accuracy of the application of the pro forma
adjustments to the historical amounts in the pro forma financial statements,
nothing came to their attention which caused them to believe that the pro forma
financial statements do not comply in form in all material respects with the
applicable accounting requirements of Rule 11-02 of Regulation S-X or that the
pro forma adjustments have not been properly applied to the historical amounts
in the compilation of such statements.
References to the Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
(f) Prior to the Execution Time, the Company shall have furnished to
each Agent such further information, documents, certificates and opinions of
counsel as the Agents may reasonably request.
The documents required to be delivered by this Section 5 shall be
delivered at the office of Cravath, Swaine & Moore, counsel for the Agents, at
Worldwide Plaza, 825 Eighth Avenue, New York, New York, on the date hereof.
<PAGE>
6. Conditions to the Obligations of the Purchaser. The obligations
of the Purchaser to purchase any Notes will be subject to the accuracy of the
representations and warranties on the part of the Company herein as of the date
of the related Terms Agreement and as of the Closing Date for such Notes, to the
performance and observance by the Company of all covenants and agreements herein
contained on its part to be performed and observed and to the following
additional conditions precedent:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted or threatened.
(b) To the extent agreed to in writing between the Company and the
Purchaser in a Terms Agreement, the Purchaser shall have received, appropriately
updated, (i) a certificate of the Company, dated as of the Closing Date, to the
effect set forth in Section 5(d) (except that references to the Prospectus shall
be to the Prospectus as supplemented as of the date of such Terms Agreement),
(ii) the opinion of Edwards & Angell, counsel for the Company, dated as of the
Closing Date, to the effect set forth in Section 5(b), (iii) the opinion of
Cravath, Swaine & Moore, counsel for the Purchaser, dated as of the Closing
Date, to the effect set forth in Section 5(c), and (iv) a letter of KPMG Peat
Marwick LLP, independent accountants for the Company, dated as of the Closing
Date, to the effect set forth in Section 5(e).
(c) Prior to the Closing Date, the Company shall have furnished to
the Purchaser such further information, certificates and documents as the
Purchaser may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement
and an applicable Terms Agreement, or if any of the opinions and certificates
mentioned above or elsewhere in this Agreement or such Terms Agreement and
required to be delivered to the Purchaser pursuant to the terms hereof and
thereof shall not be in all material respects reasonably satisfactory in form
and substance to the Purchaser and its counsel, such Terms Agreement and all
obligations of the Purchaser thereunder and with respect to the Notes subject
there to may be canceled at, or at any time prior to, the respective Closing
<PAGE>
Date by the Purchaser. Notice of such cancelation shall be given to the Company
in writing or by telephone or telegraph confirmed in writing.
7. Right of Person Who Agreed to Purchase to Refuse to Purchase. (a)
The Company agrees that any person who has agreed to purchase and pay for any
Note, including a Purchaser and any person who purchases pursuant to a
solicitation by any of the Agents, shall have the right to refuse to purchase
such Note if (i) at the Closing Date therefor, any condition set forth in
Section 5 (except that references to the Prospectus shall be to the Prospectus
as supplemented at the Closing Date) or 6, as applicable, shall not be
satisfied, (ii) subsequent to the agreement to purchase such Note, any change,
or any development with respect to the Company involving a prospective change,
in or affecting the business or properties of the Company and its subsidiaries
shall have occurred the effect of which is, in the judgment of the Purchaser or
the Agent which presented the offer to purchase such Note, as applicable, so
material and adverse as to make it impractical or inadvisable to proceed with
the delivery of such Note or (iii) subsequent to the agreement to purchase such
Note, (w) there shall have been any decrease in the ratings of any of the
Company's debt securities by Moody's Investors Service or Standard & Poor's
Corporation (each a "Rating Agency") or any such Rating Agency shall publicly
announce that it has placed any of such debt securities on a "watchlist" with
negative implications, (x) trading in the Company's Common Stock shall have been
suspended by the Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on such Exchange, (y) a
banking moratorium shall have been declared either by Federal, Rhode Island or
New York State authorities, or (z) there shall have occurred any outbreak or
escalation of hostilities or other calamity or crisis the effect of which on the
financial markets or the United States is such as to make it, in the judgment of
the Purchaser or the Agent which presented the offer to purchase such Note, as
applicable, impracticable to market such Notes (it being understood that under
no circumstance shall any Agent have any duty or obligation to exercise any
judgment permitted to be exercised pursuant to this Section 7(a)).
(b) The Company further agrees to notify each Agent upon the
occurrence of any change, condition or development contemplated by Section
7(a)(ii) or (iii).
<PAGE>
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each of you and each person who controls each of you
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which you, they or
any of you or them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration statement for the
registration of the Securities as originally filed or in any amendment thereof,
or in the Prospectus or any preliminary Prospectus, or in any amendment thereof
or supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that (i) the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by any of you specifically for use in connection with the
preparation thereof, and (ii) such indemnity with respect to the Prospectus or
any preliminary Prospectus shall not inure to the benefit of any of you (or any
person controlling any of you) from whom the person asserting any such loss,
claim, damage or liability purchased the Notes which are the subject thereof if
it shall be established that such person did not receive a copy of the
Prospectus (or the Prospectus as supplemented) excluding documents incorporated
therein by reference at or prior to the confirmation of the sale of such Notes
to such person in any case where such delivery is required by the Act if the
Company has previously furnished copies thereof in sufficient quantity and the
loss, claim, damage or liability results from an untrue statement or omission of
a material fact contained in the Prospectus or any preliminary Prospectus was
corrected in the Prospectus (or the Prospectus as supplemented). This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
<PAGE>
(b) Each of you agrees to indemnify and hold harmless the Company,
each of its directors, each of its officers who signs the Registration Statement
and each person who controls the Company within the meaning of either the Act or
the Exchange Act, to the same extent as the foregoing indemnity from the Company
to you, but only with reference to written information relating to such of you
furnished to the Company by such of you specifically for use in the preparation
of the documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which you may otherwise have. The
Company acknowledges that the statement set forth in the last sentence of the
tenth paragraph under the heading "Plan of Distribution" of the Prospectus
Supplement relating to purchases and sales of Notes in the secondary market
constitute the only information furnished in writing by any of you for inclusion
in the documents referred to in the foregoing indemnity, and you confirm that
such statement is correct.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under this Section 8. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel satisfactory to
such indemnified party; provided, however, that if the defendants in any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified
<PAGE>
party under this Section 8 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel (plus any local
counsel), approved by you in the case of paragraph (a) of this Section 8,
representing the indemnified parties under such paragraph (a) who are parties to
such action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of this
Section 8 is due in accordance with its terms but is for any reason held by a
court to be unavailable from the Company on grounds of policy or otherwise, the
Company and each of you shall contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) to which the Company and any
of you may be subject in such proportion so that each of you is responsible for
that portion represented by the percentage that the aggregate commissions
received by such of you pursuant to Section 2 in connection with the Notes from
which such losses, claims, damages and liabilities arise (or, in the case of
Notes sold pursuant to a Terms Agreement, the aggregate commissions that would
have been received by such of you if such commissions had been payable), bears
to the aggregate principal amount of such Notes sold and the Company is
responsible for the balance; provided, however, that (y) in no case shall any of
you be responsible for any amount in excess of the commissions received by such
of you in connection with the Notes from which such losses, claims, damages and
liabilities arise (or, in the case of Notes sold pursuant to a Terms Agreement,
the aggregate commissions that would have been received by such of you if such
commissions had been payable) and (z) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
<PAGE>
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who controls any
of you within the meaning of the Act shall have the same rights to contribution
as you and each person who controls the Company within the meaning of either the
Act or the Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to clauses (y) and
(z) of this paragraph (d).
9. Termination. (a) This Agreement will continue in effect until
terminated as provided in this Section 9. This Agreement may be terminated by
either the Company as to any of you or any of you insofar as this Agreement
relates to such of you, giving written notice of such termination to such of you
or the Company, as the case may be. This Agreement shall so terminate at the
close of business on the first business day following the receipt of such notice
by the party to whom such notice is given. In the event of such termination, no
party shall have any liability to the other party hereto, except as provided in
the fourth paragraph of Section 2(a), Section 4(b), Section 4(h), Section 8 and
Section 10. The provisions of this Agreement (including without limitation
Section 7 hereof) applicable to any purchase of a Note for which an agreement to
purchase exists prior to the termination hereof shall survive any termination of
this Agreement.
(b) Each Terms Agreement shall be subject to termination in the
absolute discretion of the Purchaser, by notice given to the Company prior to
delivery of any payment for Notes to be purchased thereunder, if prior to such
time (i) trading in the Company's Common Stock shall have been suspended by the
Commission or the New York Stock Exchange or trading in securities generally on
the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (ii) a banking moratorium
shall have been declared either by Federal, Rhode Island, Connecticut, Maine,
New Hampshire, Massachusetts or New York State authorities, (iii) there shall
have occurred any outbreak or escalation of hostilities, declaration by the
United States of a national emergency or war or other calamity or crisis the
effect of which on the financial markets is such as to make it, in the judgment
of the Purchaser, impracticable or inadvisable to market such Notes or (iv)
there shall have been any decrease in the ratings of the Company's debt
securities by any Rating Agency or Any such Rating Agency shall publicly
<PAGE>
announce that it has placed any of such debt securities on a "watchlist" with
negative implications.
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of you set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of you or the Company or any of the officers, directors or
controlling persons referred to in Section 8 hereof, and will survive delivery
of and payment for the Notes. The provisions of Sections 4(h) and 8 hereof shall
survive the termination or cancelation of this Agreement.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to any of you, will be mailed, delivered
or telegraphed and confirmed to such of you, at the address specified in
Schedule I hereto; or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at One Federal Street, Boston, Massachusetts
02110, attention of the Senior Vice President and General Counsel.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8 hereof, and no
other person will have any right or obligation hereunder, except for the right
of a person who has agreed to purchase a Note to refuse to purchase such Note as
provided in Section 7 hereof.
13. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York.
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and you.
Very truly yours,
FLEET FINANCIAL GROUP, INC.
By /s/ John Rodehorst
-------------------
Name:
Title:
<PAGE>
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
/s/ Goldman, Sachs & Co.
- ------------------------------
(Goldman, Sachs & Co.)
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE,
FENNER & SMITH INCORPORATED
By /s/ Richard N. Doyle
------------------------------
Name:
Title:
J.P. MORGAN SECURITIES INC.
By /s/ Robert D. Post
------------------------------
Name:
Title:
SALOMON BROTHERS INC
By /s/ Martha D. Bailey
------------------------------
Name:
Title:
UBS SECURITIES LLC
By /s/ Richard M. Messina
------------------------------
Name:
Title:
<PAGE>
SCHEDULE I
Commissions:
The Company agrees to pay each Agent a commission equal to the
following percentage of the principal amount of each Note sold on an agency
basis by such Agent:
Term Commission Rate
- ---- ---------------
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 and including 30 years .750%
Over 30 years to be negotiated
Unless otherwise specified in the applicable Terms Agreement, the
discount or commission payable to a Purchaser shall be determined on the basis
of the commission schedule set forth above.
Address for Notices to you:
Notices to Goldman, Sachs & Co. shall be directed to it at 85 Broad
Street, New York, New York 10004, Attention of Credit Department.
Notices to Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated, shall be directed to it at World Financial Center, North
Tower - 10th Floor, New York, New York 10281-1310, Attention of MTN Product
Management.
Notices to J.P. Morgan Securities Inc. shall be directed to it at 60
Wall Street, New York, New York 10260, Attention of Medium Term Note Desk, Third
Floor.
<PAGE>
Notices to Salomon Brothers Inc shall be directed to it at Seven
World Trade Center, New York, New York 10048, Attention of the Medium-Term Note
Department.
Notices to UBS Securities LLC shall be directed to it at 299 Park
Avenue, New York, New York 10171-0026, Attention of Richard Messina.
<PAGE>
EXHIBIT A
Fleet Financial Group, Inc.
Medium-Term Note Administrative Procedures
November 10, 1997
The Senior Medium-Term Notes, Series L and Subordinated Medium-Term
Notes, Series M (respectively, the "Senior Notes" and the "Subordinated Notes"),
Due Nine Months or More from Date of Issue (collectively, the "Notes") of Fleet
Financial Group, Inc. (the "Company"), are to be offered on a continuing basis.
Fleet National Bank, Goldman, Sachs & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, J.P. Morgan Securities Inc., Salomon Brothers Inc and UBS
Securities LLC will be acting as agents (the "Agents") pursuant to distribution
agreements dated as of the date hereof. The Agents will not be obligated to
purchase Notes for their own account, unless otherwise agreed. The Notes are
being sold pursuant to a selling agency agreement between the Company and the
Agent dated the date hereof (the "Agency Agreement"). The Senior Notes will be
issued under an indenture dated as of October 1, 1992, between the Company and
The First National Bank of Chicago (the "Senior Trustee" or "First Chicago"), as
trustee (the "Senior Indenture"). The Subordinated Notes will be issued under an
indenture dated as of October 1, 1992, between the Company and First Chicago
(the "Subordinated Trustee" and collectively with the Senior Trustee, the
"Trustee") as trustee, as supplemented by a first supplemental indenture dated
as of November 30, 1992, between the Company and the Subordinated Trustee (as so
supplemented, the "Subordinated Indenture" and collectively with the Senior
Indenture, the "Indentures"). The Senior Notes will rank equally with all other
unsecured and unsubordinated debt of the Company. The Subordinated Notes will be
subordinate and junior in right of payment to all Senior Indebtedness and Other
Financial Obligations of the Company, to the extent and in the manner set forth
in the Subordinated Indenture. The Notes have been registered with the
Securities and Exchange Commission (the "Commission").
The Agency Agreement provides that Notes may also be purchased by an
Agent acting solely as principal and not as agent. In the event of any such
purchase, the functions of both the Agent and the beneficial owner under the
administrative procedures set forth below shall be performed by such Agent
acting solely as principal, unless otherwise agreed to between the Company and
such Agent acting as principal.
<PAGE>
Each Note will be represented by either a Global Security (as
defined hereinafter) delivered to the Trustee, as agent for The Depository Trust
Company ("DTC"), and recorded in the book-entry system maintained by DTC (a
"Book-Entry Note") or a certificate delivered to the Holder thereof or a Person
designated by such Holder (a "Certificated Note"). An owner of a Book-Entry Note
will not be entitled to receive a certificate representing such Note.
The procedures to be followed during, and the specific terms of, the
solicitation of orders by the Agent and the sale as a result thereof by the
Company are explained below. Administrative and record-keeping responsibilities
will be handled for the Company by its Treasury Department. The Company will
advise the Agent and the Trustee in writing of those persons handling
administrative responsibilities with whom the Agent and the Trustee are to
communicate regarding orders to purchase Notes and the details of their
delivery.
Administrative procedures and specific terms of the offering are
explained below. Book-Entry Notes will be issued in accordance with the
administrative procedures set forth in Part I hereof, as adjusted in accordance
with changes in DTC's operating requirements, and Certificated Notes will be
issued in accordance with the administrative procedures set forth in Part II
hereof. Unless otherwise defined herein, terms defined in the applicable
Indenture and the Notes shall be used herein as therein defined. Notes for which
interest is calculated on the basis of a fixed interest rate, which may be zero,
are referred to herein as "Fixed Rate Notes". Notes for which interest is
calculated on the basis of a floating interest rate are referred to herein as
"Floating Rate Notes". To the extent the procedures set forth below conflict
with the provisions of the Notes, the applicable Indenture, DTC's operating
requirements or the Agency Agreement, the relevant provisions of the Notes, the
applicable Indenture, DTC's operating requirements and the Agency Agreement
shall control.
<PAGE>
PART I
Administrative Procedures for
Book-Entry Notes
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, the Trustee will perform
the custodial, document control and administrative functions described below, in
accordance with its respective obligations under a Letter of Representations
from the Company and the Trustee to DTC dated as of March 27, 1996, and a
Medium-Term Note Certificate Agreement between the Trustee and DTC dated as of
May 26, 1989, and its obligations as a participant in DTC, including DTC's
Same-Day Funds Settlement system ("SDFS").
Issuance: On any date of settlement (as defined under
"Settlement" below) for one or more Book-Entry Notes, the Company will issue a
single global security in fully registered form without coupons (a "Global
Security") representing up to $250,000,000 principal amount(or such other
maximum as may from time to time be agreed to by DTC) of all such Book-Entry
Notes that have the same rank (senior or subordinated), original issue date,
original issue discount provisions, if any, Interest Payment Dates, Regular
Record Dates, Interest Payment Period, redemption provisions, if any, Maturity
Date, and, in the case of Fixed Rate Notes, interest rate, or, in the case of
Floating Rate Notes, initial interest rate, Base Rate, Index Maturity, Interest
Reset Period, Interest Reset Dates, Spread and/or Spread Multiplier, if any,
minimum interest rate, if any, and maximum interest rate, if any (collectively,
the "Terms"). Each Global Security will be dated and issued as of the date of
its authentication by the Trustee. Each Global Security will bear an original
issue date, which will be (i) with respect to an original Global Security (or
any portion thereof), the original issue date specified in such Global Security
and (ii) following a consolidation of Global Securities, with respect to the
Global Security resulting from such consolidation, the most recent Interest
Payment Date to which interest has been paid or duly provided for on the
predecessor Global Securities, regardless of the date of authentication of such
resulting Global Security. No Global Security will represent (i) both Fixed Rate
and Floating Rate Book-Entry Notes or (ii) any Certificated Note.
Identification The Company has arranged with the CUSIP
Numbers: Service Bureau of Standard & Poor's
Corporation (the "CUSIP Service Bureau") for the reservation of two series of
CUSIP numbers, each of which consists of approximately 900 CUSIP numbers and
relates to Global Securities representing Book-Entry Notes and book-entry
medium-term notes issued by the Company with other series designations. The
<PAGE>
Company has obtained from the CUSIP Service Bureau a written list of such
reserved CUSIP numbers, which the Company shall deliver to the Trustee and DTC.
The Company will assign CUSIP numbers to Global Securities as described below
under Settlement Procedure "B". DTC will notify the CUSIP Service Bureau
periodically of the CUSIP numbers that the Company has assigned to Global
Securities. At any time when fewer than 100 of the reserved CUSIP numbers remain
unassigned to Global Securities for either series, if it deems necessary, the
Company will reserve additional CUSIP numbers for assignment to Global
Securities. Upon obtaining such additional CUSIP numbers, the Company shall
deliver a list of such additional CUSIP numbers to the Trustee and DTC.
Registration: Global Securities will be issued only in fully
registered form without coupons. Each Global Security will be registered in the
name of CEDE & CO., as nominee for DTC, on the securities register for the Notes
maintained under the applicable Indenture. The beneficial owner of a Book-Entry
Note (or one or more indirect participants in DTC designated by such owner) will
designate one or more participants in DTC (with respect to such Book-Entry Note,
the "Participants") to act as agent or agents for such owner in connection with
the book-entry system maintained by DTC, and DTC will record in book-entry form,
in accordance with instructions provided by such Participants, a credit balance
with respect to such beneficial owner in such Book-Entry Note in the account of
such Participants. The ownership interest of such beneficial owner (or such
participant) in such Book-Entry Note will be recorded through the records of
such Participants or through the separate records of such Participants and one
or more indirect participants in DTC.
Transfers: Transfers of a Book-Entry Note will be
accomplished by book entries made by DTC and, in turn, by Participants (and, in
certain cases, one or more indirect participants in DTC) acting on behalf of
beneficial transferors and transferees of such Note.
Exchanges: The Trustee may deliver to DTC and the CUSIP
Service Bureau at any time a written notice of consolidation (a copy of which
shall be attached to the resulting Global Security described below) specifying
(i) the CUSIP numbers of two or more Outstanding Global Securities that
represent (A) Fixed Rate Book-Entry Notes having the same Terms and for which
interest has been paid to the same date or (B) Floating Rate Book-Entry Notes
having the same Terms and for which interest has been paid to the same date,
(ii) a date, occurring at least thirty days after such written notice is
delivered and at least thirty days before the next Interest Payment Date for
such Book-Entry Notes, on which such Global Securities shall be exchanged for a
single replacement Global Security and (iii) the single CUSIP number to be
assigned to such replacement Global
<PAGE>
Security (which shall be the CUSIP number previously assigned to the Global
Security with the earliest date of issuance). Upon receipt of such a notice, DTC
will send to its participants (including the Trustee) a written reorganization
notice to the effect that such exchange will occur on such date. Prior to the
specified exchange date, the Trustee will deliver to the CUSIP Service Bureau a
written notice setting forth such exchange date and such single CUSIP number and
stating that, as of such exchange date, the CUSIP numbers of the individual
Global Securities not assigned to the replacement Global Security will no longer
be valid. On the specified exchange date, the Trustee will exchange such Global
Securities for a single Global Security bearing the single CUSIP number and the
CUSIP numbers of the individual Global Securities not assigned will, in
accordance with CUSIP Service Bureau procedures, be retired and not reassigned.
Notwithstanding the foregoing, if the Global Securities to be exchanged exceed
$250,000,000 in aggregate principal amount (or such other maximum amount as may
from time to time be agreed to by DTC) one Global Security will be authenticated
and issued to represent each $250,000,000 of principal amount (or such other
maximum amount as may from time to time be agreed to by DTC) of the exchanged
Global Securities and an additional Global Security will be authenticated and
issued to represent any remaining principal amount of such Global Securities
(see "Denominations" below).
Maturities: Each Book-Entry Note will mature nine months
or more from the date of its issue.
Denominations: Book-Entry Notes will be issued in principal
amounts of $1,000 or any integral multiple thereof. Global Securities will be
denominated in principal amounts not in excess of $250,000,000 (or such other
maximum amount as may from time to time be agreed to by DTC) . If one or more
Book-Entry Notes having an aggregate principal amount in excess of
$250,000,000(or such other maximum amount as may from time to time be agreed to
by DTC) would, but for the preceding sentence, be represented by a single Global
Security, then one Global Security will be authenticated and issued to represent
each $250,000,000 principal amount (or such other maximum amount as may from
time to time be agreed to by DTC) of such Book-Entry Note or Notes and an
additional Global Security will be authenticated and issued to represent any
remaining principal amount of such Book-Entry Note or Notes. In such a case,
each of the Global Securities representing such Book-Entry Note or Notes shall
be assigned the same CUSIP number.
Interest: General. Interest, if any, on each Book-Entry
Note will accrue from the original issue date for the first interest period or
the last date to which interest has been paid, if any, for each subsequent
interest period, on the Global Security representing such Book-Entry Note, and
will be cal-
<PAGE>
culated and paid in the manner described in such Book-Entry Note and in the
Prospectus (as defined in the Agency Agreement), as supplemented by the
applicable Pricing Supplement. Unless otherwise specified therein, each payment
of interest on a Book-Entry Note will include interest accrued to but excluding
the Interest Payment Date or to but excluding Maturity. Interest payable at the
Maturity of a Book-Entry Note will be payable to the Person to whom the
principal of such Note is payable. Standard & Poor's Corporation will use the
information received in the pending deposit message described under Settlement
Procedure "C" below in order to include the amount of any interest payable and
certain other information regarding the related Global Security in the
appropriate (daily or weekly) bond report published by Standard & Poor's
Corporation.
Regular Record Dates. The Regular Record Date
with respect to any Interest Payment Date for Floating Rate Book-Entry Notes
shall be the date fifteen calendar days immediately preceding such Interest
Payment Date, whether or not such date shall be a Business Day.
Interest Payment Dates on Fixed Rate
Book-Entry Notes. Interest payments on Fixed Rate Book-Entry Notes will be made
monthly on the 15th day of each month and at Maturity; provided, however, that
in the case of a Fixed Rate Book-Entry Note issued between a Regular Record Date
and an Interest Payment Date, or on an Interest Payment Date, the first interest
payment will be made on the Interest Payment Date following the next succeeding
Regular Record Date. If any Interest Payment Date for a Fixed Rate Book-Entry
Note is not a Business Day, the payment due on such day shall be made on the
next succeeding Business Day and no interest shall accrue on such payment for
the period from and after such Interest Payment Date.
Interest Payment Dates on Floating Rate
Book-Entry Notes. Interest payments will be made on Floating Rate Book-Entry
Notes monthly on the 15th of each month; provided, however, that if an Interest
Payment Date for a Floating Rate Book-Entry Note would otherwise be a day that
is not a Business Day with respect to such Floating Rate Book-Entry Note, such
Interest Payment Date will be the next succeeding Business Day with respect to
such Floating Rate Book-Entry Note, except that in the case of a Floating Rate
Book-Entry Note for which the Base Rate is LIBOR, if such Business Day is in the
next succeeding calendar month, such Interest Payment Date will be the
immediately preceding Business Day; and provided further, that, in the case of a
Floating Rate Book-Entry Note issued between a Regular Record Date and an
Interest Payment Date or on an Interest Payment Date, the first interest payment
will be made on the Interest Payment Date following the next succeeding Regular
Record Date.
<PAGE>
Notice of Floating Rate Interest Rates.
Promptly after each Interest Determination Date for Floating Rate Book-Entry
Notes, the Calculation Agent will notify the Trustee and Standard & Poor's
Corporation of the interest rates determined on such Interest Determination
Date.
Calculation of Fixed Rate Book-Entry Notes. Interest on
Interest: Fixed Rate Book-Entry Notes (including
interest for partial periods) will be calculated on the basis of a 360-day year
of twelve 30-day months.
Floating Rate Book-Entry Notes. Interest
rates on Floating Rate Book-Entry Notes will be determined as set forth in the
form of Notes. Interest on Floating Rate Book-Entry Notes, except as otherwise
set forth therein, will be calculated on the basis of actual days elapsed and a
year of 360 days, except that in the case of a Floating Rate Book-Entry Note for
which the Base Rate is the Treasury Rate or the CMT Rate, interest will be
calculated on the basis of the actual number of days in the year.
Payments of Payment of Interest Only. Promptly
Principal and after each Regular Record Date, provided,
Interest: with respect to Floating Rate Notes, that the
Calculation Agent has provided the Trustee with the necessary information
regarding interest rates, the Trustee will deliver to the Company and DTC a
written notice setting forth, by CUSIP number, the amount of interest to be paid
on each Global Security on the following Interest Payment Date (other than an
Interest Payment Date coinciding with Maturity) and the total of such amounts.
DTC will confirm the amount payable on each Global Security on such Interest
Payment Date by reference to the appropriate (daily or weekly) bond reports
published by Standard & Poor's Corporation. The Company will pay to the Trustee,
as paying agent, the total amount of interest due on such Interest Payment Date
(other than at Maturity), and the Trustee will pay such amount to DTC, at the
times and in the manner set forth below under "Manner of Payment".
<PAGE>
Payments at Maturity. On or about the last
Business Day of each month, the Trustee will deliver to the Company and DTC a
written list of principal and interest to be paid on each Global Security
maturing (on a Maturity or Redemption Date or otherwise) in the following month.
The Trustee, the Company and DTC will confirm the amounts of such principal and
interest payments with respect to each such Global Security on or about the
fifth Business Day preceding the Maturity of such Global Security. On or before
Maturity, the Company will pay to the Trustee, as paying agent, the principal
amount of such Global Security, together with interest due at such Maturity. The
Trustee will pay such amount to DTC at the times and in the manner set forth
below under "Manner of Payment". If any Maturity of a Global Security
representing Book-Entry Notes is not a Business Day, the payment due on such day
shall be made on the next succeeding Business Day and no interest shall accrue
on such payment for the period from and after such Maturity. Promptly after
payment to DTC of the principal and interest due at Maturity of such Global
Security, the Trustee will cancel such Global Security in accordance with the
applicable Indenture and so advise the Company. On the first Business Day of
each month, the Trustee will deliver to the Company a written statement
indicating the total principal amount of Outstanding Global Securities as of the
immediately preceding Business Day.
Manner of Payment. The total amount of any
principal and interest due on Global Securities on any Interest Payment Date or
at Maturity shall be paid by the Company to the Trustee in immediately available
funds no later than 9:30 A.M. (New York City time) on such date. The Company
will make such payment on such Global Securities by instructing the Trustee to
withdraw funds from an account maintained by the Company at First Chicago or by
wire transfer of funds available for immediate use to the Trustee. The Company
will confirm any such instructions in writing to the Trustee. Prior to 10 A.M.
(New York City time) on the date of Maturity or as soon as possible thereafter,
the Trustee will pay by separate wire transfer (using Fedwire message entry
instructions in a form previously specified by DTC) to an account at the Federal
Reserve Bank of New York previously specified by DTC, in funds available for
immediate use by DTC, each payment of principal (together with interest thereon)
due on a Global Security on such date. On each Interest Payment Date (other than
at Maturity), interest payments shall be made to DTC, in funds available for
immediate use by DTC, in accordance with existing arrangements between the
Trustee and DTC. On each such date, DTC will pay, in accordance with its SDFS
operating procedures then in effect, such amounts in funds available for
immediate use to the respective Participants in whose names the Book-Entry Notes
represented by such Global Securities are recorded in the book-entry system
maintained by DTC. Neither the Company (as issuer or as paying agent) nor the
<PAGE>
Trustee shall have any direct responsibility or liability for the payment by DTC
to such Participants of the principal of and interest on the Book-Entry Notes.
Withholding Taxes. The amount of any taxes
required under applicable law to be withheld from any interest payment on a
Book-Entry Note will be determined and withheld by the Participant, indirect
participant in DTC or other Person responsible for forwarding payments and
materials directly to the beneficial owner of such Note.
Procedure for Rate The Company and the Agent will discuss from
Setting and time to time the aggregate principal amount
Posting: of, the issuance price of, and the interest
rates to be borne by, Book-Entry Notes that may be sold as a result of the
solicitation of orders by the Agent. If the Company decides to set prices of,
and rates borne by, any Book-Entry Notes in respect of which the Agent is to
solicit orders (the setting of such prices and rates to be referred to herein as
"posting") or if the Company decides to change prices or rates previously posted
by it, it will promptly advise the Agent of the prices and rates to be posted.
Acceptance and Unless otherwise instructed by the Company,
Rejection of the Agent will advise the Company promptly by
Orders: telephone of all orders to purchase Book-Entry
Notes received by such Agent, other than those rejected by it in whole or in
part in the reasonable exercise of its discretion. The Company has the right to
accept orders to purchase Book-Entry Notes and may reject any such orders in
whole or in part.
Preparation of If any order to purchase a Book-Entry Note is
Pricing accepted by or on behalf of the Company, the
Supplement: Company will prepare a pricing supplement (a
"Pricing Supplement") reflecting the terms of such Book-Entry Note and will
arrange to have ten copies thereof filed with the Commission in accordance with
the applicable paragraph of Rule 424(b) under the Act and will supply at least
ten copies thereof (and additional copies if requested) to the Agent which
presented the order (the "Presenting Agent") at the address set forth on
Schedule I hereto, to be delivered by overnight courier or telecopy to arrive no
later than 11:00 a.m., New York City time, on the Business Day following the
sale date.
The Presenting Agent will cause a Prospectus
and Pricing Supplement to be delivered to the purchaser of such Book-Entry Note.
In each instance that a Pricing Supplement is
prepared, the Presenting Agent will affix the Pricing Supplement to Prospectuses
prior to their use. Outdated Pricing
<PAGE>
Supplements (other than those retained for files), will be destroyed.
Suspension of The Company may instruct the Agent to
Solicitation; suspend at any time, for any period of
Amendment or time or permanently, the solicitation of
Supplement: orders to purchase Book-Entry Notes. Upon
receipt of such instructions, the Agent will forthwith suspend solicitation
until such time as the Company has advised them that such solicitation may be
resumed.
In the event that at the time the Company
suspends solicitation of purchases there shall be any orders outstanding for
settlement, the Company will promptly advise the Agent and the Trustee whether
such orders may be settled and whether copies of the Prospectus as in effect at
the time of the suspension, together with the appropriate Pricing Supplement,
may be delivered in connection with the settlement of such orders. The Company
will have the sole responsibility for such decision and for any arrangements
that may be made in the event that the Company determines that such orders may
not be settled or that copies of such Prospectus may not be so delivered.
If the Company decides to amend or supplement
the Registration Statement (as defined in the Agency Agreement) or the
Prospectus, it will promptly advise the Agent and furnish the Agent with the
proposed amendment or supplement and with such certificates and opinions as are
required, all to the extent required by and in accordance with the terms of the
Agency Agreement. Subject to the provisions contained in Sections 4(a) and 4(b)
of the Agency Agreement, the Company may file with the Commission any such
supplement to the Prospectus relating to the Notes. The Company will provide the
Agent and the Trustee with copies of any such supplement, and confirm to the
Agent that such supplement has been filed with the Commission pursuant to the
applicable paragraph of Rule 424(b).
Procedures For When the Company has determined to change the
Rate Changes: interest rates of Book-Entry Notes being
offered, it will promptly advise the Agent and the Agent will forthwith suspend
solicitation of orders. The Agent will telephone the Company with
recommendations as to the changed interest rates. At such time as the Company
has advised the Agent of the new interest rates, the Agent may resume
solicitation of orders. Until such time only "indications of interest" may be
recorded.
Delivery of A copy of the Prospectus and a Pricing
Prospectus: Supplement relating to a Book-Entry Note must
accompany or precede the earliest of any written offer of such Book-Entry Note,
confirmation of the purchase of such Book-Entry Note and payment for such
Book-
<PAGE>
Entry Note by its purchaser. If notice of a change in the terms of the
Book-Entry Notes is received by the Agent between the time an order for a
Book-Entry Note is placed and the time written confirmation thereof is sent by
the Presenting Agent to a customer or his agent, such confirmation shall be
accompanied by a Prospectus and Pricing Supplement setting forth the terms in
effect when the order was placed. Subject to "Suspension of Solicitation;
Amendment or Supplement" above, the Presenting Agent will deliver a Prospectus
and Pricing Supplement as herein described with respect to each Book-Entry Note
sold by it. The Company will make such delivery if such Book-Entry Note is sold
directly by the Company to a purchaser (other than an Agent).
Confirmation: For each order to purchase a Book-Entry Note
solicited by any Agent and accepted by or on behalf of the Company, the
Presenting Agent will issue a confirmation to the purchaser, with a copy to the
Company, setting forth the details set forth above and delivery and payment
instructions.
Settlement: The receipt by the Company of immediately
available funds in payment for a Book-Entry Note and the authentication and
issuance of the Global Security representing such Book-Entry Note shall
constitute "settlement" with respect to such Book-Entry Note. All orders
accepted by the Company will be settled on the third Business Day following the
date of sale of such Book-Entry Note pursuant to the timetable for settlement
set forth below unless the Company and the purchaser agree to settlement on
another day which shall be no earlier than the Business Day following the date
of sale.
Settlement Settlement Procedures with regard to
Procedures: each Book-Entry Note sold by the Company
through any Agent, as agent, shall be as follows:
A. The Presenting Agent will advise the
Company by telephone of the following settlement information:
1. Rank (senior or subordinated).
2. Principal amount.
3. Maturity Date.
4. In the case of a Fixed Rate Book-Entry
Note, the interest rate or, in the case of a Floating Rate Book-Entry Note, the
Base Rate, initial interest rate (if known at such time), Index Maturity,
Interest Reset Period, Interest Reset Dates, Interest Determination Dates,
Spread and/or Spread Multiplier (if any), minimum interest rate (if any) and
maximum interest rate (if any).
<PAGE>
5. Interest Payment Dates and the Interest
Payment Period.
6. Redemption or repayment provisions, if
any.
7. Settlement date.
8. Price.
9. The Presenting Agent's DTC participant
account number and commission, determined as provided in Section 2 of the Agency
Agreement.
10. Whether such Book-Entry Note is issued
at an original issue discount and, if so, the total amount of OID, the yield to
maturity and the initial accrual period OID.
B. The Company will assign a CUSIP number to
the Global Security representing such Book-Entry Note and then advise the
Trustee and the Presenting Agent by telephone (confirmed in writing at any time
on the same date) or electronic transmission of the information set forth in
Settlement Procedure "A" above, such CUSIP number and the name of the Presenting
Agent. The Company will also notify the Presenting Agent by telephone of such
CUSIP number as soon as practicable.
C. The Trustee will enter a pending deposit
message through DTC's Participant Terminal System providing the settlement
information to DTC specified in the Letter of Representations from the Company
and the Trustee to DTC dated as of the date hereof.
D. To the extent the Company has not already
done so, the Company will deliver to the Trustee a Global Security in a form
that has been approved by the Company, the Agent and the Trustee.
E. The Trustee will complete such Global
Security, stamp the appropriate legend, as instructed by DTC, if not already set
forth thereon, and authenticate the Global Security representing such Book-Entry
Note in accordance with the terms of the written order of the Company then in
effect.
F. DTC will credit such Book-Entry Note to the
Trustee's participant account at DTC.
G. Upon delivery of the pending deposit
message referenced in "C" above, an SDFS deliver order through DTC's Participant
Terminal System will be created
<PAGE>
instructing DTC to debit such Book-Entry Note to the Trustee's participant
account and credit such Book-Entry Note to the Presenting Agent's participant
account and debit the Presenting Agent's settlement account and credit the
Trustee's settlement account for an amount equal to the price of such Book-Entry
Note less the Presenting Agent's commission. The entry of such a pending deposit
message by First Chicago as Trustee shall constitute a representation and
warranty by First Chicago to DTC that (i) the Global Security representing such
Book-Entry Note has been issued and authenticated and (ii) First Chicago is
holding such Global Security pursuant to the Medium-Term Note Certificate
Agreement between First Chicago and DTC.
H. The Presenting Agent will enter an SDFS
deliver order through DTC's Participant Terminal System instructing DTC (i) to
debit such Book-Entry Note to the Presenting Agent's participant account and
credit such Book-Entry Note to the participant accounts of the Participants with
respect to such Book-Entry Note and (ii) to debit the settlement accounts of
such Participants and credit the settlement account of the Presenting Agent for
an amount equal to the price of such Book-Entry Note.
I. Transfers of funds in accordance with SDFS
deliver orders described in Settlement Procedures "G" and "H" will be settled in
accordance with SDFS operating procedures in effect on the settlement date.
J. The Trustee will, upon receipt of funds
from the Agent in accordance with Settlement Procedure "G", credit to an account
of the Company maintained at First Chicago funds available for immediate use in
the amount transferred to the Trustee in accordance with Settlement Procedure
"G". However, the Trustee shall not credit the account of the Company unless and
until the Trustee has confirmed receipt of the funds in the appropriate amount
transferred in accordance with Settlement Procedure "G".
K. The Presenting Agent will confirm the
purchase of such Book-Entry Note to the purchaser either by transmitting to the
Participants with respect to such Book-Entry Note a confirmation order or orders
through DTC's institutional delivery system or by mailing a written confirmation
to such purchaser.
Settlement For orders of Book-Entry Notes solicited by
Procedures change the any Agent and accepted by
<PAGE>
Timetable: the Company for settlement on the Business Day
after the sale date, Settlement Procedures "A" through "K" set forth above shall
be completed as soon as possible but not later than the respective times (New
York City time) set forth below:
Settlement
Procedure Time
A 11:00 A.M. on the sale date
B 12:00 Noon on the sale date
C 2:00 P.M. on the sale date
D 3:00 P.M. on the day before
settlement
E 9:00 A.M. on settlement date
F 10:00 A.M. on settlement date
G-H 2:00 P.M. on settlement date
I 4:30 P.M. on settlement date
J-K 5:00 P.M. on settlement date
If a sale is to be settled more than one
Business Day after the sale date, Settlement Procedures "A", "B" and "C" shall
be completed as soon as practicable but no later than 11:00 A.M. and 12:00 Noon
on the first Business Day after the sale date and no later than 2:00 P.M. on the
Business Day before the settlement date, respectively. If the initial interest
rate for a Floating Rate Book-Entry Note has not been determined at the time
that Settlement Procedure "A" is completed, Settlement Procedures "B" and "C"
shall be completed as soon as such rate has been determined but no later than
12:00 Noon and 2:00 P.M., respectively, on the second Business Day before the
settlement date. Settlement Procedure "I" is subject to extension in accordance
with any extension of Fedwire closing deadlines and in the other events
specified in SDFS operating procedures in effect on the settlement date.
If settlement of a Book-Entry Note is
rescheduled or canceled, the Trustee will deliver to DTC, through DTC's
Participant Terminal System, a cancelation message to such effect by no later
than 2:00 P.M. on the Business Day immediately preceding the scheduled
settlement date.
Failure to Settle: If the Trustee has not entered an SDFS deliver
order with respect to a Book-Entry Note pursuant to Settlement Procedure "G",
then, upon written request (which may
<PAGE>
be by telecopy) of the Company, the Trustee shall deliver to DTC, through DTC's
Participant Terminal System, as soon as practicable, a withdrawal message
instructing DTC to debit such Book-Entry Note to the Trustee's participant
account. DTC will process the withdrawal message, provided that the Trustee's
participant account contains a principal amount of the Global Security
representing such Book-Entry Note that is at least equal to the principal amount
to be debited. If a withdrawal message is processed with respect to all the
Book-Entry Notes represented by a Global Security, the Trustee will cancel such
Global Security in accordance with the applicable Indenture and so advise the
Company, and will make appropriate entries in its records. The CUSIP number
assigned to such Global Security shall, in accordance with CUSIP Service Bureau
procedures, be canceled and not immediately reassigned. If a withdrawal message
is processed with respect to one or more, but not all, of the Book-Entry Notes
represented by a Global Security, the Trustee will exchange such Book-Entry Note
for two Global Securities, one of which shall represent such Book-Entry Notes
and shall be canceled immediately after issuance and the other of which shall
represent the other Book-Entry Notes previously represented by the surrendered
Global Security and shall bear the CUSIP number of the surrendered Global
Security.
If the purchase price for any Book-Entry Note
is not timely paid to the Participants with respect to such Note by the
beneficial purchaser thereof (or a Person, including an indirect participant in
DTC, acting on behalf of such purchaser), such Participants and, in turn, the
Presenting Agent may enter SDFS deliver orders through DTC's Participant
Terminal System debiting such Note to such Agent's participant account and
crediting such Note free to the participant account of the Trustee and shall
notify the Trustee and the Company thereof. Thereafter, the Trustee (i) will
immediately notify the Company thereof, once the Trustee has confirmed that such
Note has been credited to its participant account, and the Company shall
immediately transfer by Fedwire (immediately available funds) to such Agent an
amount equal to the price of such Note which was previously credited to the
account of the Company maintained at First Chicago or wire transferred at the
Company's direction in accordance with Settlement Procedure J and (ii) the
Trustee will deliver the withdrawal message and take the related actions
described in the preceding paragraph. If such failure shall have occurred for
any reason other than a default by the Presenting Agent in the performance of
its obligations hereunder and under the Agency Agreement, then the Company will
reimburse the Presenting Agent or the Trustee, as applicable, on an equitable
basis for the loss of the use of the funds during the period when they were
credited to the account of the Company.
Notwithstanding the foregoing, upon any
failure to settle with respect to a Book-Entry Note, DTC may take
<PAGE>
any actions in accordance with its SDFS operating procedures then in effect. In
the event of a failure to settle with respect to one or more, but not all, of
the Book-Entry Notes to have been represented by a Global Security, the Trustee
will provide, in accordance with Settlement Procedure "E", for the
authentication and issuance of a Global Security representing the other
Book-Entry Notes to have been represented by such Global Security and will make
appropriate entries in its records.
Trustee and First Nothing herein shall be deemed to require the
Chicago Not to Risk Trustee or First Chicago to risk or expend its
Funds: own funds in connection with any payment to
the Company, DTC, the Agent or the purchaser, it being understood by all parties
that payments made by the Trustee or First Chicago to the Company, DTC, the
Agent or the purchaser shall be made only to the extent that funds are provided
to the Trustee or First Chicago for such purpose.
Authenticity of The Company will cause the Trustee to
Signatures: furnish the Agent from time to time with the
specimen signatures of each of the Trustee's officers, employees or agents who
has been authorized by the Trustee to authenticate Book-Entry Notes, but no
Agent will have any obligation or liability to the Company or the Trustee in
respect of the authenticity of the signature of any officer, employee or agent
of the Company or the Trustee on any Book-Entry Note.
Payment of The Agent shall forward to the Company,
Expenses: on a monthly basis, a statement of the
out-of-pocket expenses incurred by such Agent during that month that are
reimbursable to it pursuant to the terms of the Agency Agreement. The Company
will remit payment to the Agent currently on a monthly basis.
Advertising The Company will determine with the Agent the
Costs: amount of advertising that may be appropriate
in soliciting offers to purchase the Book-Entry Notes. Advertising expenses will
be paid by the Company.
Periodic Statements Periodically, upon written request, the from
Trustee: the Trustee will send to the Company a
statement setting forth the principal amount of Book-Entry Notes Outstanding as
of that date and setting forth a brief description of any sales of Book-Entry
Notes which the Company has advised the Trustee but which have not yet been
settled.
<PAGE>
PART II
Administrative Procedures for Certificated Notes
The Trustee will serve as registrar and transfer agent and
authenticating and paying agent in connection with the Certificated Notes.
Issuance: Each Certificated Note will be dated and
issued as of the date of its authentication by the Trustee. Each Certificated
Note will bear an Original Issue Date, which will be (i) with respect to an
original Certificated Note (or any portion thereof), its original issuance date
(which will be the settlement date) and (ii) with respect to any Certificated
Note (or portion thereof) issued subsequently upon transfer or exchange of a
Certificated Note or in lieu of a destroyed, lost or stolen Certificated Note,
the Original Issue Date of the predecessor Certificated Note, regardless of the
date of authentication of such subsequently issued Certificated Note.
Registration: Certificated Notes will be issued only in
fully registered form without coupons.
Transfers and A Certificated Note may be presented for
Exchanges: transfer or exchange at the office of the
Trustee at 14 Wall Street (8th Floor), New York, N.Y. 10005, Attention:
Corporate Trust Services. Certificated Notes will be exchangeable for other
Certificated Notes having identical terms but different authorized denominations
without service charge. Certificated Notes will not be exchangeable for
Book-Entry Notes.
Maturities: Each Certificated Note will mature nine months
or more from its date of issue.
Denominations: The denomination of any Certificated Note
denominated in U.S. dollars will be a minimum of $100,000 or any amount in
excess thereof that is an integral multiple of $1,000. The authorized
denominations of Certificated Notes denominated in any other currency will be
specified pursuant to "Settlement Procedures" below.
Interest: General. Interest, if any, on each
Certificated Note will accrue from the original issue date for the first
interest period or the last date to which interest has been paid, if any, for
each subsequent interest period, and will be calculated and paid in the manner
described in such Note and in the Prospectus, as supplemented by the applicable
Pricing Supplement. Unless otherwise specified therein, each payment of interest
on a Certificated Note will include interest accrued to but excluding the
Interest Payment Date or to but excluding Maturity.
<PAGE>
Regular Record Dates. The Regular Record Dates
with respect to any Interest Payment Date for Floating Rate Certificated Notes
shall be the date fifteen calendar days immediately preceding such interest
Payment Date, and for Fixed Rate Certificated Notes shall be the April 15 or
October 15 next preceding such Interest Payment Date, whether or not such date
shall be a Business Day.
Fixed Rate Certificated Notes. Unless
otherwise specified pursuant to Settlement Procedure "A" below, interest
payments on Fixed Rate Certificated Notes will be made semiannually on May 1 and
November 1 of each year and at Maturity; provided, however, that in the case of
a Fixed Rate Certificated Note issued between a Regular Record Date and an
Interest Payment Date, or on an Interest Payment Date, the first interest
payment will be made on the Interest Payment Date following the next succeeding
Regular Record Date. If any Interest Payment Date for or the Maturity of a Fixed
Rate Certificated Note is not a Business Day, the payment due on such day shall
be made on the next succeeding Business Day and no interest shall accrue on such
payment for the period from and after such Interest Payment Date or Maturity, as
the case may be.
Floating Rate Certificated Notes. Interest
payments will be made on Floating Rate Certificated Notes monthly, quarterly,
semi-annually or annually. Interest will be payable, in the case of Floating
Rate Certificated Notes with a monthly Interest Payment Period, on the third
Wednesday of each month; with a quarterly interest Payment Period, on the third
Wednesday of March, June, September and December of each year; with a
semi-annual Interest Payment Period, on the third Wednesday of the two months
specified pursuant to Settlement Procedure "A" below; and with an annual
Interest Payment Period, on the third Wednesday of the month specified pursuant
to Settlement Procedure "A" below; provided, however, that if an Interest
Payment Date for a Floating Rate Certificated Note would otherwise be a day that
is not a Business Day with respect to such Floating Rate Certificated Note, such
Interest Payment Date will be the next succeeding Business Day with respect to
such Floating Rate Certificated Note, except in the case of a Floating Rate
Certificated Note for which the Base Rate is LIBOR, if such Business Day is in
the next succeeding calendar month, such Interest Payment Date will be the
immediately preceding Business Day; and provided further, that in the case of a
Floating Rate Certificated Note issued between a Regular Record Date and an
Interest Payment Date or on an Interest Payment Date, the first interest payment
will be made on the Interest Payment Date following the next succeeding Regular
Record Date.
Calculation of Fixed Rate Certificated Note. Interest on
Interest: Fixed Rate Certificated Notes
<PAGE>
(including interest for partial periods) will be calculated on the basis of a
360-day year of twelve 30-day months.
Floating Rate Certificated Notes. Interest
rates on Floating Rate Certificated Notes will be determined as set forth in the
form of Notes. Interest on Floating Rate Certificated Notes, except as otherwise
set forth therein, will be calculated on the basis of actual days elapsed and a
year of 360 days, except that in the case of a Floating Rate Certificated Note
for which the Base Rate is the Treasury Rate or the CMT Rate, interest will be
calculated on the basis of the actual number of days in the year.
Payments of On or before the due date for any payment of
Principal and principal or interest on each Certificated
Interest: Note, the Company will pay to the Trustee, as
paying agent, the amount of principal and/or interest then due. The Trustee will
pay the principal amount of each Certificated Note at Maturity upon presentation
of such Certificated Note to the Trustee. Such payment, together with payment of
interest due at Maturity of such Certificated Note, will be made in funds
available for immediate use by the Trustee and in turn by the Holder of such
Certificated Note. Certificated Notes presented to the Trustee at Maturity for
payment will be canceled by the Trustee in accordance with the applicable
Indenture. All interest payments on a Certificated Note (other than interest due
at Maturity) will be made by check drawn on the Trustee or another Person
appointed by the Trustee mailed by the Trustee to the Person entitled thereto as
provided in such Note and the applicable Indenture; provided, however, that the
holder of $10,000,000 (or the equivalent thereof in other currencies) or more of
Certificated Notes with similar tenor and terms will be entitled to receive
payment by wire transfer in U.S. dollars upon receipt of written instructions by
the Trustee. Following each Regular Record Date and Special Record Date, the
Trustee will furnish the Company with a list of interest payments to be made on
the following Interest Payment Date for each group of Certificated Notes bearing
interest at a particular rate and in total for all Certificated Notes. Interest
at Maturity will be payable to the Person to whom the payment of principal is
payable. The Trustee will provide, on or about the last Business Day of each
month, to the Company lists of principal and interest, to the extent
ascertainable, to be paid on Certificated Notes maturing (on a Maturity or
Redemption Date or otherwise) in the next two months.
First Chicago will be responsible for
withholding taxes on interest paid on Certificated Notes as required by
applicable law.
Procedure for Rate The Company and the Agents will discuss
Setting and from time to time the aggregate
<PAGE>
Posting: principal amount of, the issuance price of,
and the interest rates to be borne by, Notes that may be sold as a result of the
solicitation of orders by the Agents. If the Company decides to set prices of,
and rates borne by, any Notes in respect of which the Agents are to solicit
orders (the setting of such prices and rates to be referred to herein as
"posting") or if the Company decides to change prices or rates previously posted
by it, it will promptly advise the Agents of the prices and rates to be posted.
Acceptance and Unless otherwise instructed by the Company,
Rejection of orders: each Agent will advise the Company promptly by
telephone of all orders to purchase Certificated Notes received by such Agent,
other than those rejected by it in whole or in part in the reasonable exercise
of its discretion. Unless otherwise agreed by the Company and the Agents, the
Company has the sole right to accept orders to purchase Certificated Notes and
may reject any such orders in whole or in part.
Preparation of If any order to purchase a Certificated Note
Pricing is accepted by or on behalf of the Company,
Supplement: the Company will prepare a Pricing Supplement
reflecting the terms of such Certificated Note and will arrange to have ten
copies thereof filed with the Commission in accordance with the applicable
paragraph of Rule 424(b) under the Act and will supply at least ten copies
thereof (and additional copies if requested) to the Presenting Agent at the
address set forth on Schedule I hereto, to be delivered by overnight courier or
telecopy to arrive no later than 11:00 a.m., New York City time, on the Business
Day following the sale date. The Presenting Agent will cause a Prospectus and
Pricing Supplement to be delivered to the purchaser of such Certificated Note.
In each instance that a Pricing Supplement is
prepared, the Presenting Agent will affix the Pricing Supplement to Prospectuses
prior to their use. Outdated Pricing Supplements (other than those retained for
files), will be destroyed.
Suspension of Subject to the Company's representations,
Solicitation; warranties and covenants contained in the
Amendment or Agency Agreement, the Company may instruct the
Supplement: Agents to suspend at any time for any period
of time or permanently, the solicitation of orders to purchase Certificated
Notes. Upon receipt of such instructions, the Agents will forthwith suspend
solicitation until such time as the Company has advised them that such
solicitation may be resumed.
<PAGE>
In the event that at the time the Company
suspends solicitation of purchases there shall be any orders outstanding for
settlement, the Company will promptly advise the Agents and the Trustee whether
such orders may be settled and whether copies of the Prospectus as in effect at
the time of the suspension, together with the appropriate Pricing Supplement,
may be delivered in connection with the settlement of such orders. The Company
will have the sole responsibility for such decision and for any arrangements
that may be made in the event that the Company determines that such orders may
not be settled or that copies of such Prospectus may not be so delivered.
If the Company decides to amend or supplement
the Registration Statement or the Prospectus, it will promptly advise the Agents
and furnish the Agents with the proposed amendment or supplement and with such
certificates and opinions as are required, all to the extent required by and in
accordance with the terms of the Agency Agreement. Subject to the provisions of
the Agency Agreement, the Company may file with the Commission any supplement to
the Prospectus relating to the Notes. The Company will provide the Agents and
the Trustee with copies of any such supplement, and confirm to the Agents that
such supplement has been filed with the Commission pursuant to the applicable
paragraph of Rule 424(b).
Procedure for When the Company has determined to change the
Rate Changes: interest rates of Certificated Notes being
offered, it will promptly advise the Agents and the Agents will forthwith
suspend solicitation of orders. The Agents will telephone the Company with
recommendations as to the changed interest rates. At such time as the Company
has advised the Agents of the new interest rates, the Agents may resume
solicitation of orders. Until such time only "indications of interest" may be
recorded.
Delivery of A copy of the Prospectus and a Pricing
Prospectus: Supplement relating to a Certificated Note
must accompany or precede the earliest of any written offer of such Certificated
Note, confirmation of the purchase of such Certificated Note and payment for
such Certificated Note by its purchaser. If notice of a change in the terms of
the Certificated Notes is received by the Agents between the time an order for a
Certificated Note is placed and the time written confirmation thereof is sent by
the Presenting Agent to a customer or his agent, such confirmation shall be
accompanied by a Prospectus and Pricing Supplement setting forth the terms in
effect when the order was placed. Subject to "Suspension of Solicitation;
Amendment or Supplement" above, the Presenting Agent will deliver a Prospectus
and Pricing Supplement as herein described with respect to each Certificated
Note sold by it. The Company will make such delivery if such Certificated Note
is sold directly by the Company to a purchaser (other than any Agent).
<PAGE>
Confirmation: For each order to purchase a Certificated Note
solicited by any Agent and accepted by or on behalf of the Company, the
Presenting Agent will issue a confirmation to the purchaser, with a copy to the
Company, setting forth the details set forth above and delivery and payment
instructions.
Settlement: The receipt by the Company of immediately
available funds in exchange for an authenticated Certificated Note delivered to
the Presenting Agent and the Presenting Agent's delivery of such Certificated
Note against receipt of immediately available funds shall, with respect to such
Certificated Note, constitute "settlement". All orders accepted by the Company
will be settled on the third Business Day following the date of sale pursuant to
the timetable for settlement set forth below, unless the Company and the
purchaser agree to settlement on another day which shall be no earlier than the
next Business Day following the date of sale.
Settlement Settlement Procedures with regard to each
Procedures: Certificated Note sold by the Company through
any Agent, as agent, shall be as follows:
A. The Presenting Agent will advise the
Company by telephone of the following settlement information:
1. Name in which such Certificated Note is
to be registered ("Registered Owner").
2. Address of the Registered Owner and
address for payment of principal and interest.
3. Taxpayer identification number of the
Registered Owner (if available).
4. Rank (senior or subordinated).
5. Principal amount.
6. Maturity Date.
7. In the case of a Fixed Rate Certificated
Note, the interest rate or, in the case of a Floating Rate Certificated Note,
the initial interest rate (if known at such time), Base Rate, Index Maturity,
Interest Reset Period, Interest Reset Dates, Interest Determination Dates,
Spread and/or Spread Multiplier (if any), minimum interest rate (if any) and
maximum interest rate (if any).
8. Interest Payment Dates and the Interest
Payment Period.
<PAGE>
9. Specified Currency and whether the
option to elect payment in a Specified Currency applies and if the Specified
Currency is not U.S. dollars, the authorized denominations.
10. Redemption or repayment provisions, if
any.
11. Settlement date.
12. Price (including currency).
13. Presenting Agent's commission,
determined as provided in Section 2 of the Agency Agreement.
14. Whether such Certificated Note is
issued at an original issue discount, and, if so, the total amount of OID, the
yield to maturity and the initial accrual period OID.
B. The Company will advise the Trustee by
telephone (confirmed in writing at any time on the sale date) or electronic
transmission of the information set forth in Settlement Procedure "A" above and
the name of the Presenting Agent.
C. The Company will deliver to the Trustee an
original Certificated Note with customer confirmation in triplicate in forms
that have been approved by Company, the Agents and the Trustee.
D. The Trustee will complete such Certificated
Note and will authenticate such Certificated Note and deliver it (with the
confirmation) and two copies thereof (clearly marked as such) to the Presenting
Agent, and the Presenting Agent will acknowledge receipt of the Note by stamping
or otherwise marking the first copy and returning it to the Trustee. Such
delivery will be made only against such acknowledgment of receipt. In the event
that the instructions given by the Presenting Agent for payment to the account
of the Company are revoked, the Company will as promptly as possible wire
transfer to the account of the Presenting Agent an amount of immediately
available funds equal to the amount of such payment made.
E. The Presenting Agent will deliver such
Certificated Note (with the confirmation) to the customer against payment in
immediately payable funds. The Presenting Agent will obtain the acknowledgment
of receipt of such Certificated Note by retaining the second copy thereof.
<PAGE>
F. The Trustee will send a third copy of the
Certificated Note (clearly marked as such) to the Company by first-class mail.
Settlement For orders of Certificated Notes solicited by
Procedures any Agent, as agent, and accepted by the
Timetable: Company, Settlement Procedures "A" through "F"
set forth above shall be completed on or before the respective times (New York
City time) set forth below:
Settlement
Procedure Time
A 2:00 P.M. on the day before
settlement
B-C 3:00 P.M. on the day before
settlement
D 2:15 P.M. on settlement date
E 3:00 P.M. on settlement date
F 5:00 P.M. on settlement date
Failure to If a purchaser fails to accept delivery of and
Settle: make payment for any Certificated Note, the
Presenting Agent will notify the Company and the Trustee by telephone and return
such Certificated Note to the Trustee. Upon receipt of such notice, the Company
will immediately wire transfer to the account of the Presenting Agent an amount
equal to the amount previously credited to the account of Company in respect of
such Certificated Note. Such wire transfer will be made on the settlement date,
if possible, and in any event not later than the Business Day following the
settlement date. If the failure shall have occurred for any reason other than a
default by the Presenting Agent in the performance of its obligations hereunder
and under the Agency Agreement, then the Company will reimburse the Presenting
Agent on an equitable basis for its loss of the use of the funds during the
period when they were credited to the account of the Company. Immediately upon
receipt of the Certificated Note in respect of which such failure occurred, the
Trustee will cancel such Certificated Note in accordance with the applicable
Indenture and so advise the Company and will make appropriate entries in its
records.
Trustee Not to Risk Nothing herein shall be deemed to require the
Funds: Trustee or First Chicago to risk or expend its
own funds in connection with any payment to the Company, the Agents or the
purchaser, it being understood by all parties that payments made by the Trustee
to the Company, the Agents or the purchaser shall be made only to the extent
that funds are provided to the Trustee for such purpose.
<PAGE>
Authenticity of The Company will cause the Trustee to furnish
Signatures: the Agents from time to time with the specimen
signatures of each of the Trustee's officers, employees or agents who has been
authorized by the Trustee to authenticate Certificated Notes, but no Agent will
have any obligation or liability to the Company or the Trustee in respect of the
authenticity of the signature of any officer, employee or agent of the Company
or the Trustee on any Certificated Note.
Payment of Each Agent shall forward to the Company, on a
Expenses: monthly basis, a statement of the
out-of-pocket expenses incurred by such Agent during that month that are
reimbursable to it pursuant to the terms of the Agency Agreement. The Company
will remit payment to the Agents currently on a monthly basis.
Advertising Costs: The Company will determine with the Agents the
amount of advertising that may be appropriate in soliciting orders to purchase
the Certificated Notes. Advertising expenses will be paid by the Company.
Periodic Statements Periodically, upon written request, the
from the Trustee: Trustee will send to the Company a statement
setting forth the principal amount of Certificated Notes Outstanding as of that
date and setting forth a brief description of any sales of Certificated Notes of
which the Company has advised the Trustee but which have not yet been settled.
Exhibit 1(b)
Fleet Financial Group, Inc.
$2,000,000,000
Senior Medium-Term Notes, Series L
Subordinated Medium-Term Notes, Series M
Due Nine Months or More
from Date of Issue
Distribution Agreement
November 10, 1997
New York, New York
Fleet National Bank
75 State Street
Boston, MA 02109
Ladies and Gentlemen:
Fleet Financial Group, Inc., a Rhode Island corporation (the "Company"),
confirms its agreement with you with respect to the issue and sale by the
Company of up to $2,000,000,000 aggregate principal amount of its Senior
Medium-Term Notes, Series L and Subordinated Medium-Term Notes, Series M
(respectively, the "Senior Notes" and the "Subordinated Notes"), Due Nine Months
or More from Date of Issue (collectively, the "Notes"). The Senior Notes are to
be issued under an indenture dated as of October 1, 1992 (the "Indenture"),
between the Company and The First National Bank of Chicago, as trustee (the
"Senior Trustee" or "First Chicago"). The Subordinated Notes are to be issued
under an indenture dated as of October 1, 1992, between the Company and First
Chicago as trustee (the "Subordinated Trustee" and, collectively with the Senior
Trustee, the "Trustee"), as supplemented by a first supplemental indenture dated
as of November 30, 1992, between the Company and the Subordinated Trustee (as so
supplemented, the "Subordinated Indenture" and collectively with the Senior
Indenture, the "Indentures"). The Notes to be sold by you will be issued in
minimum denominations of $150,000 or any amount in excess thereof which is an
integral multiple of $1,000, will be issued only in fully registered form and
will have the annual interest rates, maturities and, if appropriate, other terms
set forth in a supplement to the Prospectus referred to below. The Notes will be
issued, and the terms thereof established, in accordance with the applicable
Indenture and the Medium-Term Notes Administrative Procedures attached hereto as
Exhibit A (the "Procedures"). The Procedures may only be amended by written
agreement of the Company and you after notice to, and with the approval of, the
Trustee.
1. Representations and Warranties. The Company represents and warrants to,
and agrees with, you as set forth below in this Section 1. Certain terms used in
this Section 1 are defined in paragraph (d) hereof.
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933 (the "Act") and has filed with the Securities and
Exchange Commission (the "Commission") a registration statement on such Form
(Registration Number: 333-37231), including a base prospectus, which also
constitutes pursuant to Rule 429 under the Act Post-Effective Amendment No. 1 to
registration statement on such Form (Registration Number: 333-00701) and which
become effective, for the registration under the Act of securities (the
<PAGE>
"Securities"), including the Notes, in an aggregate principal amount of
$2,000,000,000. Such registration statements, as amended at the date of this
Agreement, meet the requirements set forth in Rule 415(a)(1)(ix) or (x) under
the Act and comply in all other material respects with said Rule. The Company
has included in such registration statements, as amended at the date of this
Agreement, or has filed or will file with the Commission pursuant to the
applicable paragraph of Rule 424(b) under the Act, a supplement to the form of
prospectus included in such registration statement relating to the Notes and the
plan of distribution thereof (the "Prospectus Supplement"). In connection with
the sale of Notes the Company proposes to file with the Commission pursuant to
the applicable paragraph of Rule 424(b) under the Act further supplements to the
Prospectus Supplement specifying the interest rates, maturity dates and, if
appropriate, other terms of the Notes sold pursuant hereto or the offering
thereof.
(b) As of the Execution Time, on the Effective Date, when any
supplement to the Prospectus is filed with the Commission, on each day of an
Offering Period (referred to below) and at the date of delivery by the Company
of any Notes sold hereunder (a "Closing Date"), (i) the Registration Statement,
as amended as of any such time, and the Prospectus, as supplemented as of any
such time, and each Indenture will comply in all material respects with the
applicable requirements of the Act, the Trust Indenture Act of 1939 (the "Trust
Indenture Act") and the Securities Exchange Act of 1934 (the "Exchange Act") and
the respective rules thereunder; (ii) the Registration Statement, as amended as
of any such time, did not or will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading; and (iii) the
Prospectus, as supplemented as of any such time, will not contain any 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 Company makes no
representations or warranties as to (i) that part of the Registration Statement
which shall constitute the Statement of Eligibility and Qualification (Form T-1)
under the Trust Indenture Act of the Trustee or (ii) the information contained
in or omitted from the Registration Statement or the Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by you specifically for inclusion in
connection with the preparation of the Registration Statement or the Prospectus
(or any supplement thereto).
(c) As of the time any Notes are issued and sold hereunder, each
Indenture will constitute a legal, valid and binding instrument enforceable
against the Company in accordance with its terms and such Notes will have been
duly authorized, executed, authenticated and, when paid for by the purchasers
thereof, will constitute legal, valid and binding obligations of the Company
entitled to the benefits of the applicable Indenture.
(d) The terms which follow, when used in this Agreement, shall have
the meanings indicated. The term "the Effective Date" shall mean each date that
the Registration Statement and any post-effective amendment or amendments
thereto became or become effective. "Execution Time" shall mean the date and
time that this Agreement is executed and delivered by the parties hereto. "Base
prospectus" shall mean the form of base prospectus relating to the Securities
contained in the Registration Statement at the Effective Date. "Prospectus"
shall mean the Base prospectus as supplemented by the Prospectus Supplement.
"Registration Statement" shall mean the registration statements referred to in
paragraph (a) above, including incorporated documents, exhibits and financial
statements, as amended at the Execution Time. "Rule 415" and "Rule 424" refer to
such rules under the Act. Any reference herein to the Registration Statement,
the Base prospectus, the Prospectus Supplement or the Prospectus shall be deemed
to refer to and include the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 which were filed under the Exchange Act on or before the
Effective Date of the Registration Statement or the issue date of the Base
prospectus, the Prospectus Supplement or the Prospectus, as the case may be; and
any reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Base prospectus, the Prospectus
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Supplement or the Prospectus shall be deemed to refer to and include the filing
of any document under the Exchange Act after the Effective Date of the
Registration Statement or the issue date of the Base prospectus, the Prospectus
Supplement or the Prospectus, as the case may be, deemed to be incorporated
therein by reference.
2. Appointment of Agent; Solicitation by the Agent of Offers to Purchase.
Subject to the terms and conditions set forth herein, the Company hereby
authorizes the Agent to act as its agent to solicit offers for the purchase of
all or part of the Notes from the Company. The Company shall notify the Agent
from time to time as to the commencement of a period during which the Notes may
be offered and sold by the Agent (each period, commencing with such notification
and ending at such time as the authorization for offers and sales through the
Agent shall have been suspended by the Company or the Agent as provided
hereunder, being referred to as an "Offering Period").
On the basis of the representations and warranties, and subject to the
terms and conditions set forth herein, the Agent agrees, solely as agent of the
Company, to use its reasonable efforts to solicit offers to purchase the Notes
during each Offering Period from the Company upon the terms and conditions set
forth in the Prospectus (and any supplement thereto) and in the Procedures.
Under no circumstances will the Agent be obligated to purchase any Notes for its
own account.
The Company shall have the sole right to accept offers to purchase the
Notes and may reject any such offer in whole or in part. The Agent shall have
the right to reject, in its discretion reasonably exercised, any offer received
by it to purchase the Notes in whole or in part, and any such rejection shall
not be deemed a breach of its agreements contained herein.
The Company reserves the right, in its sole discretion, to instruct the
Agent to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase the Notes. Upon receipt of instructions from
the Company, the Agent will forthwith suspend solicitation of offers to purchase
Notes from the Company until such time as the Company has advised them that such
solicitation may be resumed.
The Company agrees to pay the Agent a commission, on the Closing Date with
respect to each sale of Notes by the Company as a result of a solicitation made
by the Agent, in an amount equal to that percentage specified in Schedule I
hereto of the aggregate principal amount of the Notes sold by the Company. Such
commission shall be payable as specified in the Procedures.
Subject to the provisions of this Section and to the Procedures, offers
for the purchase of Notes may be solicited by the Agent for the Company at such
time and in such amounts as the Agent deems advisable. The Company may from time
to time offer Notes for sale otherwise than through the Agent; provided,
however, that so long as this Agreement shall be in effect, the Company shall
not solicit or accept offers to purchase Notes through the agent other than the
Agent, an affiliate of the Company, or any of Salomon Brothers Inc, Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Goldman, Sachs
& Co., J.P. Morgan Securities Inc. and UBS Securities LLC, which have entered
into a Selling Agency Agreement with the Company providing for the sale of Notes
on terms and conditions substantially similar to those contained herein, unless
such solicitation or acceptance is on terms with respect to commissions
substantially similar to those set forth in Schedule I hereto and the Company
shall give the Agent reasonable notice of the appointment of such agent for the
purpose of soliciting the Notes.
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3. Offering and Sale of Notes. The Agent and the Company agree to perform
the respective duties and obligations specifically provided to be performed by
them in the Procedures.
4. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the Notes, the
Company will not file any amendment of the Registration Statement or supplement
to the Prospectus (except for (i) periodic or current reports filed under the
Exchange Act, (ii) a supplement relating to any offering of Notes providing
solely for the specification of or a change in the maturity dates, interest
rates, issuance prices or other terms of any Notes or (iii) a supplement
relating to an offering of Securities other than the Notes) unless the Company
has furnished you a copy for your review prior to filing and given you a
reasonable opportunity to comment on any such proposed amendment or supplement.
Subject to the foregoing sentence, the Company will cause each supplement to the
Prospectus to be filed with the Commission pursuant to the applicable paragraph
of Rule 424(b) within the time period prescribed and will provide evidence
satisfactory to you of such filing. The Company will promptly advise you (i)
when the Prospectus, and any supplement thereto, shall have been filed with the
Commission pursuant to Rule 424(b), (ii) when, prior to the termination of the
offering of the Notes, any amendment of the Registration Statement shall have
been filed or become effective, (iii) of any request by the Commission for any
amendment of the Registration Statement or supplement to the Prospectus or for
any additional information, (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (v) of the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Notes for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company will use its best
efforts to prevent the issuance of any such stop order and, if issued, to obtain
as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it shall be necessary to amend the Registration
Statement or to supplement the Prospectus to comply with the Act or the Exchange
Act or the respective rules thereunder, the Company promptly will (i) notify you
to suspend solicitation of offers to purchase Notes (and, if so notified by the
Company, you shall forthwith suspend such solicitation and cease using the
Prospectus as then supplemented), (ii) prepare and file with the Commission,
subject to the first sentence of paragraph (a) of this Section 4, an amendment
or supplement which will correct such statement or omission or effect such
compliance and (iii) supply any supplemented Prospectus to you in such
quantities as you may reasonably request. If such amendment or supplement, and
any documents, certificates and opinions furnished to you pursuant to paragraph
(g) of this Section 4 in connection with the preparation or filing of such
amendment or supplement are satisfactory in all respects to you, you will, upon
the filing of such amendment or supplement with the Commission and upon the
effectiveness of an amendment to the Registration Statement, if such an
amendment is required, resume your obligation to solicit offers to purchase
Notes hereunder.
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(c) The Company, during the period when a prospectus relating to the
Notes is required to be delivered under the Act, will file promptly all
documents required to be filed with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act and will furnish to you copies of such
documents. In addition, on the date on which the Company makes any announcement
to the general public concerning earnings or concerning any other event which is
required to be described, or which the Company proposes to describe, in a
document filed pursuant to the Exchange Act, the Company will furnish to you the
information contained or to be contained in such announcement. The Company also
will furnish to you copies of all other press releases or announcements to the
general public of a financial nature. The Company will immediately notify you of
(i) any downgrading in the rating of the Notes or any other debt securities of
the Company, or the announcement that the Notes or any other debt securities of
the Company have been placed on a "watchlist" with negative implications, by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Act) or (ii) any notice given of any intended or
potential decrease in any such rating or of a possible change in any such rating
that does not indicate the direction of the possible change, as soon as the
Company learns of any such decrease or notice, as soon as the Company learns of
any such downgrading or announcement.
(d) As soon as practicable, the Company will make generally
available to its security holders and to you an earnings statement or statements
of the Company and its subsidiaries which will satisfy the provisions of Section
11(a) of the Act and Rule 158 under the Act.
(e) The Company will furnish to you and your counsel, without
charge, copies of the Registration Statement (including exhibits thereto) and,
so long as delivery of a prospectus may be required by the Act, as many copies
of the Prospectus and any supplement thereto as you may reasonably request.
(f) The Company will arrange for the qualification of the Notes for
sale under the laws of such jurisdictions as you may designate, will maintain
such qualifications in effect so long as required for the distribution of the
Notes, and will arrange for the determination of the legality of the Notes for
purchase by institutional investors.
(g) The Company shall furnish to you such information, documents,
certificates of officers of the Company and opinions of counsel for the Company
relating to the business, operations and affairs of the Company, the
Registration Statement, the Prospectus, and any amendments thereof or
supplements thereto, the Indentures, the Notes, this Agreement, the Procedures
and the performance by the Company and you of its and your respective
obligations hereunder and thereunder as you may from time to time and at any
time prior to the termination of this Agreement reasonably request.
(h) The Company shall, whether or not any sale of the Notes is
consummated, (i) pay all expenses incident to the performance of its obligations
under this Agreement, including the fees and disbursements of its accountants
and counsel, the cost of printing or other production and delivery of the
Registration Statement, the Prospectus, all amendments thereof and supplements
thereto, each Indenture, this Agreement and all other documents relating to the
offering, the cost of preparing, printing, packaging and delivering the Notes,
the fees and disbursements, including fees of counsel, incurred in compliance
with Section 4(f), the fees and disbursements of the Trustee and the fees of any
agency that rates the Notes, (ii) reimburse you on a monthly basis for all
out-of-pocket expenses incurred by you in connection with this Agreement and
(iii) pay the reasonable fees and expenses of your counsel incurred in
connection with this Agreement.
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(i) Each acceptance by the Company of an offer to purchase Notes
will be deemed to be an affirmation that its representations and warranties
contained in this Agreement are true and correct at the time of such acceptance,
as though made at and as of such time, and a covenant that such representations
and warranties will be true and correct at the time of delivery to the purchaser
of the Notes relating to such acceptance, as though made at and as of such time
(it being understood that for purposes of the foregoing affirmation and covenant
such representations and warranties shall relate to the Registration Statement
and Prospectus as amended or supplemented at each such time). Each such
acceptance by the Company of an offer for the purchase of Notes shall be deemed
to constitute an additional representation, warranty and agreement by the
Company that, as of the settlement date for the sale of such Notes, after giving
effect to the issuance of such Notes, of any other Notes to be issued on or
prior to such settlement date and of any other Securities to be issued and sold
by the Company on or prior to such settlement date, the aggregate amount of
Securities (including any Notes) which have been issued and sold by the Company
will not exceed the amount of Securities registered pursuant to the Registration
Statement.
(j) Prior to the commencement of the first Offering Period
subsequent to each time, and subsequent to each time during any Offering Period,
that the Registration Statement or the Prospectus is amended or supplemented
(other than by an amendment or supplement relating to any offering of Securities
other than the Notes or providing solely for the specification of or a change in
the maturity dates, the interest rates, the issuance prices or other similar
terms of any Notes sold pursuant hereto), the Company will deliver or cause to
be delivered promptly to you a certificate of the Company, signed by the
Chairman of the Board, or the President, or any Executive Vice President and the
principal financial or accounting officer or Treasurer of the Company, dated the
date of the effectiveness of such amendment or the date of the filing of such
supplement, in form reasonably satisfactory to you, of the same tenor as the
certificate referred to in Section 5(d) but modified to relate to the last day
of the fiscal quarter for which financial statements of the Company were last
filed with the Commission and to the Registration Statement and the Prospectus
as amended and supplemented to the time of the effectiveness of such amendment
or the filing of such supplement.
(k) Prior to the commencement of the first Offering Period
subsequent to each time, and subsequent to each time during any Offering Period,
each time that the Registration Statement or the Prospectus is amended or
supplemented (other than by an amendment or supplement (i) relating to any
offering of Securities other than the Notes, (ii) providing solely for the
specification of or a change in the maturity dates, the interest rates, the
issuance prices or other similar terms of any Notes sold pursuant hereto or
(iii) setting forth or incorporating by reference financial statements or other
information as of and for a fiscal quarter, unless, in the case of clause (iii)
above, in your reasonable judgment, such financial statements or other
information are of such a nature that an opinion of counsel should be
furnished), the Company shall furnish or cause to be furnished promptly to you a
written opinion of counsel of the Company satisfactory to you, dated the date of
the effectiveness of such amendment or the date of the filing of such
supplement, in form satisfactory to you, of the same tenor as the opinion
referred to in Section 5(b) but modified to relate to the Registration Statement
and the Prospectus as amended and supplemented to the time of the effectiveness
of such amendment or the filing of such supplement or, in lieu of such opinion,
counsel last furnishing such an opinion to you may furnish you with a letter to
the effect that you may rely on such last opinion to the same extent as though
it were dated the date of such letter authorizing reliance (except that
statements in such last opinion will be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of the
effectiveness of such amendment or the filing of such supplement).
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<PAGE>
(l) Prior to the commencement of the first Offering Period
subsequent to each time that the Registration Statement or the Prospectus is
amended or supplemented to include or incorporate amended or supplemental
financial information, and each time during any Offering Period that the
Registration Statement or Prospectus is so amended or supplemented, the Company
shall cause its independent public accountants promptly to furnish you a letter,
dated the date of the commencement of such Offering Period or the date of the
effectiveness of such amendment or the date of the filing of such supplement, as
the case may be, in form satisfactory to you, of the same tenor as the letter
referred to in Section 5(e) with such changes as may be necessary to reflect the
amended and supplemental financial information included or incorporated by
reference in the Registration Statement and the Prospectus, as amended or
supplemented to the date of such letter; provided, that in no event will the
Company accept any offer to purchase Notes unless such letter shall have been
delivered; provided, further, that, if the Registration Statement or the
Prospectus is amended or supplemented solely to include or incorporate by
reference financial information as of and for a fiscal quarter, the Company's
independent public accountants may limit the scope of such letter, which shall
be satisfactory in form to you, to the unaudited financial statements, the
related "Management's Discussion and Analysis of Financial Condition and Results
of Operations" and any other information of an accounting, financial or
statistical nature included in such amendment or supplement, unless, in your
reasonable judgment, such letter should cover other information or changes in
specified financial statement line items.
(m) The Company confirms as of the date hereof that it has complied with
all provisions of Section 1 of Laws of Florida, Chapter 92-198, An Act Relating
to Disclosure of Doing Business with Cuba, and the Company further agrees that
if it commences engaging in business with the government of Cuba or with any
person or affiliate located in Cuba after the date the Registration Statement
becomes or has become effective with the Securities and Exchange Commission or
with the Florida Department of Banking and Finance (the "Department"), whichever
date is later, or if the information reported in the Prospectus, if any,
concerning the Company's business with Cuba or with any person or affiliate
located in Cuba changes in any material way, the Company will provide the
Department notice of such business or change, as appropriate, in a form
acceptable to the Department.
5. Conditions to the Obligations of the Agent. The obligations of the
Agent to solicit offers to purchase the Notes shall be subject to the accuracy
of the representations and warranties on the part of the Company contained
herein as of the Execution Time, on the Effective Date, when any supplement to
the Prospectus is filed with the Commission and as of each Closing Date, to the
accuracy of the statements of the Company made in any certificates pursuant to
the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus, and any such supplement, shall
have been filed in the manner and within the time period required by Rule
424(b); and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted or threatened.
(b) The Company shall have furnished to the Agent the opinion of
Edwards & Angell, counsel for the Company, dated the Execution Time, to the
effect that:
(i) each of the Company and Fleet National Bank (the "Bank") and any
other subsidiary or subsidiaries which the Agent may reasonably request
(individually a "Subsidiary" and collectively the "Subsidiaries") has been
duly incorporated and is validly existing as a corporation or national
association in good
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<PAGE>
standing under the laws of the jurisdiction in which it is chartered or
organized, with full corporate power and authority to own its properties
and conduct its business as described in the Prospectus; the Company is
qualified to do business as a foreign corporation under the laws of the
State of New York; except as stated above, none of the Company or the Bank
is required to be qualified to do business as a foreign corporation under
the laws of any other jurisdiction; and the Company is registered as a
bank holding company under the Bank Holding Company Act of 1956, as
amended;
(ii) all the outstanding shares of capital stock of the Bank and
such Subsidiaries have been duly and validly authorized and issued and are
fully paid and (except as provided in 12 U.S.C. ss. 55) nonassessable,
and, except as otherwise set forth in the Prospectus, all outstanding
shares of capital stock of the Bank and such Subsidiaries are owned by the
Company either directly or through wholly owned subsidiaries free and
clear of any perfected security interest and, to the knowledge of such
counsel, after due inquiry, any other security interests, claims, liens or
encumbrances;
(iii) each Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust
Indenture Act, and constitutes a legal, valid and binding agreement
enforceable against the Company in accordance with its terms (subject, as
to enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors' rights generally
from time to time in effect and to the availability of equitable remedies
which are discretionary with the courts);
(iv) the Notes have been duly authorized as a series of Debt
Securities under the applicable Indenture, are in the forms provided for
by resolutions of the Board of Directors of the Company adopted pursuant
to such Indenture, conform to the description thereof contained in the
Prospectus, and, when executed and authenticated in accordance with the
provisions of the applicable Indenture and delivered to and paid for by
the purchasers, will constitute valid and binding obligations of the
Company entitled to the benefits of the applicable Indenture;
(v) to the best knowledge of such counsel, there is no pending or
threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the Company or any
of its subsidiaries, of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in the
Prospectus, and there is no franchise, contract or other document of a
character required to be described in the Registration Statement or
Prospectus, or to be filed as an exhibit, which is not described or filed
as required;
(vi) the Registration Statement and any amendments thereto have
become effective under the Act; to the best knowledge of such counsel, no
stop order suspending the effectiveness of the Registration Statement, as
amended, has been issued, no proceedings for that purpose have been
instituted or threatened, and the Registration Statement, the Prospectus
and each amendment thereof or supplement thereto as of their respective
effective or issue dates (other than the financial statements and other
financial data contained therein as to which such counsel need express no
opinion) comply as to form in all material respects with the applicable
requirements of the Act and the Exchange Act and the respective rules
thereunder; and such counsel has no reason to believe that the
Registration Statement, or any amendment thereof, at the time it became
effective and at the date of this Agreement (or, in the case of any
opinion delivered pursuant to Section 4(k) or
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<PAGE>
Section 6, the date of such subsequently delivered opinion), contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus, as amended or supplemented to the
date of such opinion, includes any untrue statement of a material fact or
omits to state a material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading;
(vii) this Agreement has been duly authorized, executed and
delivered by the Company;
(viii) no consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the
transactions contemplated herein, except such as have been obtained under
the Act and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the Notes
as contemplated by this Agreement and such other approvals (specified in
such opinion) as have been obtained;
(ix) neither the issue and sale of the Notes, nor the consummation
of any other of the transactions herein contemplated nor the fulfillment
of the terms hereof will conflict with, result in a breach of, or
constitute a default under the charter or by-laws of the Company or the
terms of any indenture or other agreement or instrument known to such
counsel and to which the Company or any of its subsidiaries is a party or
bound, or any order or regulation known to such counsel to be applicable
to the Company or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator having jurisdiction
over the Company or any of its subsidiaries; and
(x) no holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State of
Rhode Island or the United States, to the extent deemed proper and specified in
such opinion, upon the opinion of other counsel of good standing believed to be
reliable and who are satisfactory to counsel for the Agent and (B) as to matters
of fact, to the extent deemed proper, on certificates of responsible officers of
the Company and public officials. References to the Prospectus in this paragraph
(b) include any supplements thereto at the date such opinion is rendered.
(c) [Intentionally omitted]
(d) The Company shall have furnished to the Agent a certificate of
the Company, signed by the Chairman of the Board, or the President, or any
Executive Vice President and the principal financial or accounting officer or
Treasurer of the Company, dated the Execution Time, to the effect that the
signers of such certificate have carefully examined the Registration Statement,
the Prospectus, any supplement to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of the
date hereof with the same effect as if made on the date hereof and the
Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied as a condition to the
obligation of the Agent to solicit offers to purchase the Notes;
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(ii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements
included in the Prospectus (exclusive of any supplement thereto), there
has been no material adverse change in the condition (financial or other),
earnings, business or properties of the Company and its subsidiaries,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(e) Prior to the Execution Time, the Company shall have furnished to
the Agent such further information, documents, certificates and opinions of
counsel as the Agent may reasonably request.
The documents required to be delivered by this Section 5 shall be
delivered at the office of Edwards & Angell, 2700 Hospital Trust Tower,
Providence, Rhode Island 02903, on the date hereof.
6. Right of Person Who Agreed to Purchase to Refuse to Purchase. (a) The
Company agrees that any person who has agreed to purchase and pay for any Note,
shall have the right to refuse to purchase such Note if (i) at the Closing Date
therefor, any condition set forth in Section 5 (except that references to the
Prospectus shall be to the Prospectus as supplemented at the Closing Date) shall
not be satisfied, (ii) subsequent to the agreement to purchase such Note, any
change, or any development with respect to the Company involving a prospective
change, in or affecting the business or properties of the Company and its
subsidiaries shall have occurred the effect of which is, in the judgment of the
Agent, so material and adverse as to make it impractical or inadvisable to
proceed with the delivery of such Note or (iii) subsequent to the agreement to
purchase such Note, (w) there shall have been any decrease in the ratings of any
of the Company's debt securities by Moody's Investors Service or Standard &
Poor's Corporation (each a "Rating Agency") or any such Rating Agency shall
publicly announce that it has placed any of such debt securities on a
"watchlist" with negative implications, (x) trading in the Company's Common
Stock shall have been suspended by the Commission or the New York Stock Exchange
or trading in securities generally on the New York Stock Exchange shall have
been suspended or limited or minimum prices shall have been established on such
Exchange, (y) a banking moratorium shall have been declared either by Federal,
Rhode Island or New York State authorities, or (z) there shall have occurred any
outbreak or escalation of hostilities or other calamity or crisis the effect of
which on the financial markets or the United States is such as to make it, in
the judgment of the Agent, impracticable to market such Notes (it being
understood that under no circumstance shall the Agent have any duty or
obligation to exercise any judgment permitted to be exercised pursuant to this
Section 6(a)).
(b) The Company further agrees to notify the Agent upon the
occurrence of any change, condition or development contemplated by Section
6(a)(ii) or (iii).
7. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless you and each person who controls you within the meaning of
either the Act or the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, to which you, they or any of them may become
subject under the Act, the Exchange Act or other Federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the registration statement for the registration of the Securities
as originally filed or in any amendment thereof, or in the Prospectus or any
preliminary Prospectus, or in any amendment thereof or supplement thereto, or
arise out
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of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that (i) the Company will not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by you specifically
for use in connection with the preparation thereof, and (ii) such indemnity with
respect to the Prospectus or any preliminary Prospectus shall not inure to the
benefit of you (or any person controlling you) from whom the person asserting
any such loss, claim, damage or liability purchased the Notes which are the
subject thereof if such person did not receive a copy of the Prospectus (or the
Prospectus as supplemented) excluding documents incorporated therein by
reference at or prior to the confirmation of the sale of such Notes to such
person in any case where such delivery is required by the Act and the untrue
statement or omission of a material fact contained in the Prospectus or any
preliminary Prospectus was corrected in the Prospectus (or the Prospectus as
supplemented). This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
(b) You agree to indemnify and hold harmless the Company, each of
its directors, each of its officers who signs the Registration Statement and
each person who controls the Company within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from the Company to
you, but only with reference to written information relating to you furnished to
the Company by you specifically for use in the preparation of the documents
referred to in the foregoing indemnity. This indemnity agreement will be in
addition to any liability which you may otherwise have. The Company acknowledges
that the statements set forth in the last sentence of the ninth paragraph under
the heading "Plan of Distribution" of the Prospectus Supplement relating to
purchases and sales of Notes in the secondary market constitute the only
information furnished in writing by you for inclusion in the documents referred
to in the foregoing indemnity, and you confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the omission, without prejudice, so to notify the
indemnifying party will not relieve it from any liability which it may have to
any indemnified party otherwise than under this Section 7. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein, and to the extent that it may elect by written
notice delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof, with counsel
satisfactory to such indemnified party; provided, however, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable
- 11 -
<PAGE>
for the expenses of more than one separate counsel (plus any local counsel),
approved by you in the case of paragraph (a) of this Section 7, representing the
indemnified parties under such paragraph (a) who are parties to such action),
(ii) the indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii).
(d) If for any reason the indemnification provided for in paragraph
(a) of this Section 7 is due in accordance with its terms but is held by a court
to be unavailable from the Company on grounds of policy or otherwise, you shall
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) to which the Company and you may be subject in an amount not in
excess of the commissions received by you in connection with the Notes from
which such losses, claims, damages and liabilities arise unless you were guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act). For purposes of this Section 7, each person who controls you within the
meaning of the Act shall have the same rights to contribution as you and each
person who controls the Company within the meaning of either the Act or the
Exchange Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to clauses (y) and (z) of this
paragraph (d).
8. Termination. This Agreement will continue in effect until terminated as
provided in this Section 8. This Agreement may be terminated by either the
Company or you, giving written notice to the other party of such termination.
This Agreement shall so terminate at the close of business on the first business
day following the receipt of such notice by the party to whom such notice is
given. In the event of such termination, no party shall have any liability to
the other party hereto, except as provided in the fourth paragraph of Section
2(a), Section 4(b), Section 4(h), Section 7 and Section 9. The provisions of
this Agreement (including without limitation Section 6 hereof) applicable to any
purchase of a Note for which an agreement to purchase exists prior to the
termination hereof shall survive any termination of this Agreement.
9. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of you set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made by or on
behalf of you or the Company or any of the officers, directors or controlling
persons referred to in Section 7 hereof, and will survive delivery of and
payment for the Notes. The provisions of Sections 4(h) and 7 hereof shall
survive the termination or cancellation of this Agreement.
10. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to you, will be mailed, delivered or telegraphed
and confirmed to you, at the address set forth above, attention of Carl F.
Woodbury, Senior Vice President; or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at One Federal Street, Boston,
Massachusetts 02110, attention of the Secretary and General Counsel.
11. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7 hereof, and no other
person will have any right or obligation hereunder, except for the right of a
person who has agreed to purchase a Note to refuse to purchase such Note as
provided in Section 6 hereof.
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<PAGE>
12. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and you.
- 13 -
<PAGE>
Very truly yours,
FLEET FINANCIAL GROUP, INC.
By: /s/ Douglas L. Jacobs
------------------------------
Douglas L. Jacobs
Treasurer
The foregoing Agreement
is hereby confirmed and accepted
as of the date hereof.
FLEET NATIONAL BANK
By: /s/ Carl F. Woodbury
-------------------------------
Carl F. Woodbury
Senior Vice President
- 14 -
<PAGE>
SCHEDULE I
Commission:
The Company agrees to pay the Agent a commission equal to the following
percentage of the principal amount of each Note sold on an agency basis by the
Agent:
Term Commission Rate
- ---- ---------------
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 and including 30 years .750%
Over 30 years to be negotiated
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<PAGE>
EXHIBIT A
Fleet Financial Group, Inc.
Medium-Term Note Administrative Procedures
November 10, 1997
The Senior Medium-Term Notes, Series L and Subordinated Medium-Term
Notes, Series M (respectively, the "Senior Notes" and the "Subordinated Notes"),
Due Nine Months or More from Date of Issue (collectively, the "Notes") of Fleet
Financial Group, Inc. (the "Company"), are to be offered on a continuing basis.
Fleet National Bank, Goldman, Sachs & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, J.P. Morgan Securities Inc., Salomon Brothers Inc and UBS
Securities LLC will be acting as agents (the "Agents") pursuant to distribution
agreements dated as of the date hereof. The Agents will not be obligated to
purchase Notes for their own account, unless otherwise agreed. The Notes are
being sold pursuant to a selling agency agreement between the Company and the
Agent dated the date hereof (the "Agency Agreement"). The Senior Notes will be
issued under an indenture dated as of October 1, 1992, between the Company and
The First National Bank of Chicago (the "Senior Trustee" or "First Chicago"), as
trustee (the "Senior Indenture"). The Subordinated Notes will be issued under an
indenture dated as of October 1, 1992, between the Company and First Chicago
(the "Subordinated Trustee" and collectively with the Senior Trustee, the
"Trustee") as trustee, as supplemented by a first supplemental indenture dated
as of November 30, 1992, between the Company and the Subordinated Trustee (as so
supplemented, the "Subordinated Indenture" and collectively with the Senior
Indenture, the "Indentures"). The Senior Notes will rank equally with all other
unsecured and unsubordinated debt of the Company. The Subordinated Notes will be
subordinate and junior in right of payment to all Senior Indebtedness and Other
Financial Obligations of the Company, to the extent and in the manner set forth
in the Subordinated Indenture. The Notes have been registered with the
Securities and Exchange Commission (the "Commission").
The Agency Agreement provides that Notes may also be purchased by an
Agent acting solely as principal and not as agent. In the event of any such
purchase, the functions of both the Agent and the beneficial owner under the
administrative procedures set forth below shall be performed by such Agent
acting solely as principal, unless otherwise agreed to between the Company and
such Agent acting as principal.
Each Note will be represented by either a Global Security (as
defined hereinafter) delivered to the Trustee, as
<PAGE>
agent for The Depository Trust Company ("DTC"), and recorded in the book-entry
system maintained by DTC (a "Book-Entry Note") or a certificate delivered to the
Holder thereof or a Person designated by such Holder (a "Certificated Note"). An
owner of a Book-Entry Note will not be entitled to receive a certificate
representing such Note.
The procedures to be followed during, and the specific terms of, the
solicitation of orders by the Agent and the sale as a result thereof by the
Company are explained below. Administrative and record-keeping responsibilities
will be handled for the Company by its Treasury Department. The Company will
advise the Agent and the Trustee in writing of those persons handling
administrative responsibilities with whom the Agent and the Trustee are to
communicate regarding orders to purchase Notes and the details of their
delivery.
Administrative procedures and specific terms of the offering are
explained below. Book-Entry Notes will be issued in accordance with the
administrative procedures set forth in Part I hereof, as adjusted in accordance
with changes in DTC's operating requirements, and Certificated Notes will be
issued in accordance with the administrative procedures set forth in Part II
hereof. Unless otherwise defined herein, terms defined in the applicable
Indenture and the Notes shall be used herein as therein defined. Notes for which
interest is calculated on the basis of a fixed interest rate, which may be zero,
are referred to herein as "Fixed Rate Notes". Notes for which interest is
calculated on the basis of a floating interest rate are referred to herein as
"Floating Rate Notes". To the extent the procedures set forth below conflict
with the provisions of the Notes, the applicable Indenture, DTC's operating
requirements or the Agency Agreement, the relevant provisions of the Notes, the
applicable Indenture, DTC's operating requirements and the Agency Agreement
shall control.
PART I
Administrative Procedures for
Book-Entry Notes
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, the Trustee will perform
the custodial, document control and administrative functions described below, in
accordance with its respective obligations under a Letter of Representations
from the Company and the Trustee to DTC dated as of March 27, 1996, and a
Medium-Term Note Certificate Agreement between the Trustee and DTC dated as of
May 26, 1989, and its obligations as a participant in DTC, including DTC's
Same-Day Funds Settlement system ("SDFS").
17
<PAGE>
Issuance: On any date of settlement (as defined under
"Settlement" below) for one or more Book-Entry Notes, the Company will issue a
single global security in fully registered form without coupons (a "Global
Security") representing up to $250,000,000 principal amount(or such other
maximum as may from time to time be agreed to by DTC) of all such Book-Entry
Notes that have the same rank (senior or subordinated), original issue date,
original issue discount provisions, if any, Interest Payment Dates, Regular
Record Dates, Interest Payment Period, redemption provisions, if any, Maturity
Date, and, in the case of Fixed Rate Notes, interest rate, or, in the case of
Floating Rate Notes, initial interest rate, Base Rate, Index Maturity, Interest
Reset Period, Interest Reset Dates, Spread and/or Spread Multiplier, if any,
minimum interest rate, if any, and maximum interest rate, if any (collectively,
the "Terms"). Each Global Security will be dated and issued as of the date of
its authentication by the Trustee. Each Global Security will bear an original
issue date, which will be (i) with respect to an original Global Security (or
any portion thereof), the original issue date specified in such Global Security
and (ii) following a consolidation of Global Securities, with respect to the
Global Security resulting from such consolidation, the most recent Interest
Payment Date to which interest has been paid or duly provided for on the
predecessor Global Securities, regardless of the date of authentication of such
resulting Global Security. No Global Security will represent (i) both Fixed Rate
and Floating Rate Book-Entry Notes or (ii) any Certificated Note.
Identification The Company has arranged with the CUSIP
Numbers: Service Bureau of Standard & Poor's
Corporation (the "CUSIP Service Bureau") for the reservation of two series of
CUSIP numbers, each of which consists of approximately 900 CUSIP numbers and
relates to Global Securities representing Book-Entry Notes and book-entry
medium-term notes issued by the Company with other series designations. The
Company has obtained from the CUSIP Service Bureau a written list of such
reserved CUSIP numbers, which the Company shall deliver to the Trustee and DTC.
The Company will assign CUSIP numbers to Global Securities as described below
under Settlement Procedure "B". DTC will notify the CUSIP Service Bureau
periodically of the CUSIP numbers that the Company has assigned to Global
Securities. At any time when fewer than 100 of the reserved CUSIP numbers remain
unassigned to Global Securities for either series, if it deems necessary, the
Company will reserve additional CUSIP numbers for assignment to Global
Securities. Upon obtaining such additional CUSIP numbers, the Company shall
deliver a list of such additional CUSIP numbers to the Trustee and DTC.
Registration: Global Securities will be issued only in
fully registered form without coupons. Each Global Security will be registered
in the name of CEDE & CO., as nominee for DTC, on
18
<PAGE>
the securities register for the Notes maintained under the applicable Indenture.
The beneficial owner of a Book-Entry Note (or one or more indirect participants
in DTC designated by such owner) will designate one or more participants in DTC
(with respect to such Book-Entry Note, the "Participants") to act as agent or
agents for such owner in connection with the book-entry system maintained by
DTC, and DTC will record in book-entry form, in accordance with instructions
provided by such Participants, a credit balance with respect to such beneficial
owner in such Book-Entry Note in the account of such Participants. The ownership
interest of such beneficial owner (or such participant) in such Book-Entry Note
will be recorded through the records of such Participants or through the
separate records of such Participants and one or more indirect participants in
DTC.
Transfers: Transfers of a Book-Entry Note will be
accomplished by book entries made by DTC and, in turn, by Participants (and, in
certain cases, one or more indirect participants in DTC) acting on behalf of
beneficial transferors and transferees of such Note.
Exchanges: The Trustee may deliver to DTC and the CUSIP
Service Bureau at any time a written notice of consolidation (a copy of which
shall be attached to the resulting Global Security described below) specifying
(i) the CUSIP numbers of two or more Outstanding Global Securities that
represent (A) Fixed Rate Book-Entry Notes having the same Terms and for which
interest has been paid to the same date or (B) Floating Rate Book-Entry Notes
having the same Terms and for which interest has been paid to the same date,
(ii) a date, occurring at least thirty days after such written notice is
delivered and at least thirty days before the next Interest Payment Date for
such Book-Entry Notes, on which such Global Securities shall be exchanged for a
single replacement Global Security and (iii) the single CUSIP number to be
assigned to such replacement Global Security (which shall be the CUSIP number
previously assigned to the Global Security with the earliest date of issuance).
Upon receipt of such a notice, DTC will send to its participants (including the
Trustee) a written reorganization notice to the effect that such exchange will
occur on such date. Prior to the specified exchange date, the Trustee will
deliver to the CUSIP Service Bureau a written notice setting forth such exchange
date and such single CUSIP number and stating that, as of such exchange date,
the CUSIP numbers of the individual Global Securities not assigned to the
replacement Global Security will no longer be valid. On the specified exchange
date, the Trustee will exchange such Global Securities for a single Global
Security bearing the single CUSIP number and the CUSIP numbers of the individual
Global Securities not assigned will, in accordance with CUSIP Service Bureau
procedures, be retired and not reassigned. Notwithstanding the foregoing, if the
Global Securities to be exchanged exceed $250,000,000 in aggregate principal
amount (or such other maximum amount as may from time to time be agreed
19
<PAGE>
to by DTC) one Global Security will be authenticated and issued to represent
each $250,000,000 of principal amount (or such other maximum amount as may from
time to time be agreed to by DTC) of the exchanged Global Securities and an
additional Global Security will be authenticated and issued to represent any
remaining principal amount of such Global Securities (see "Denominations"
below).
Maturities: Each Book-Entry Note will mature nine months
or more from the date of its issue.
Denominations: Book-Entry Notes will be issued in principal
amounts of $1,000 or any integral multiple thereof. Global Securities will be
denominated in principal amounts not in excess of $250,000,000 (or such other
maximum amount as may from time to time be agreed to by DTC) . If one or more
Book-Entry Notes having an aggregate principal amount in excess of
$250,000,000(or such other maximum amount as may from time to time be agreed to
by DTC) would, but for the preceding sentence, be represented by a single Global
Security, then one Global Security will be authenticated and issued to represent
each $250,000,000 principal amount (or such other maximum amount as may from
time to time be agreed to by DTC) of such Book-Entry Note or Notes and an
additional Global Security will be authenticated and issued to represent any
remaining principal amount of such Book-Entry Note or Notes. In such a case,
each of the Global Securities representing such Book-Entry Note or Notes shall
be assigned the same CUSIP number.
Interest: General. Interest, if any, on each Book-Entry
Note will accrue from the original issue date for the first interest period or
the last date to which interest has been paid, if any, for each subsequent
interest period, on the Global Security representing such Book-Entry Note, and
will be calculated and paid in the manner described in such Book-Entry Note and
in the Prospectus (as defined in the Agency Agreement), as supplemented by the
applicable Pricing Supplement. Unless otherwise specified therein, each payment
of interest on a Book-Entry Note will include interest accrued to but excluding
the Interest Payment Date or to but excluding Maturity. Interest payable at the
Maturity of a Book-Entry Note will be payable to the Person to whom the
principal of such Note is payable. Standard & Poor's Corporation will use the
information received in the pending deposit message described under Settlement
Procedure "C" below in order to include the amount of any interest payable and
certain other information regarding the related Global Security in the
appropriate (daily or weekly) bond report published by Standard & Poor's
Corporation.
Regular Record Dates. The Regular Record Date
with respect to any Interest Payment Date for Floating Rate Book-Entry Notes
shall be the date fifteen calendar
20
<PAGE>
days immediately preceding such Interest Payment Date, whether or not such date
shall be a Business Day.
Interest Payment Dates on Fixed Rate
Book-Entry Notes. Interest payments on Fixed Rate Book-Entry Notes will be made
monthly on the 15th day of each month and at Maturity; provided, however, that
in the case of a Fixed Rate Book-Entry Note issued between a Regular Record Date
and an Interest Payment Date, or on an Interest Payment Date, the first interest
payment will be made on the Interest Payment Date following the next succeeding
Regular Record Date. If any Interest Payment Date for a Fixed Rate Book-Entry
Note is not a Business Day, the payment due on such day shall be made on the
next succeeding Business Day and no interest shall accrue on such payment for
the period from and after such Interest Payment Date.
Interest Payment Dates on Floating Rate
Book-Entry Notes. Interest payments will be made on Floating Rate Book-Entry
Notes monthly on the 15th of each month; provided, however, that if an Interest
Payment Date for a Floating Rate Book-Entry Note would otherwise be a day that
is not a Business Day with respect to such Floating Rate Book-Entry Note, such
Interest Payment Date will be the next succeeding Business Day with respect to
such Floating Rate Book-Entry Note, except that in the case of a Floating Rate
Book-Entry Note for which the Base Rate is LIBOR, if such Business Day is in the
next succeeding calendar month, such Interest Payment Date will be the
immediately preceding Business Day; and provided further, that, in the case of a
Floating Rate Book-Entry Note issued between a Regular Record Date and an
Interest Payment Date or on an Interest Payment Date, the first interest payment
will be made on the Interest Payment Date following the next succeeding Regular
Record Date.
Notice of Floating Rate Interest Rates.
Promptly after each Interest Determination Date for Floating Rate Book-Entry
Notes, the Calculation Agent will notify the Trustee and Standard & Poor's
Corporation of the interest rates determined on such Interest Determination
Date.
Calculation of Fixed Rate Book-Entry Notes. Interest
Interest: on Fixed Rate Book-Entry Notes (including
interest for partial periods) will be calculated on the basis of a 360-day year
of twelve 30-day months.
Floating Rate Book-Entry Notes. Interest
rates on Floating Rate Book-Entry Notes will be determined as set forth in the
form of Notes. Interest on Floating Rate Book-Entry Notes, except as otherwise
set forth therein, will be calculated on the basis of actual days elapsed and a
year of 360 days, except that in the case of a Floating Rate Book-Entry Note for
which the Base Rate is the Treasury Rate or the CMT Rate,
21
<PAGE>
interest will be calculated on the basis of the actual number of days in the
year.
Payments of Payment of Interest Only. Promptly after each
Principal and Regular Record Date, provided, with respect
Interest: to Floating Rate Notes, that the Calculation
Agent has provided the Trustee with the necessary information regarding interest
rates, the Trustee will deliver to the Company and DTC a written notice setting
forth, by CUSIP number, the amount of interest to be paid on each Global
Security on the following Interest Payment Date (other than an Interest Payment
Date coinciding with Maturity) and the total of such amounts. DTC will confirm
the amount payable on each Global Security on such Interest Payment Date by
reference to the appropriate (daily or weekly) bond reports published by
Standard & Poor's Corporation. The Company will pay to the Trustee, as paying
agent, the total amount of interest due on such Interest Payment Date (other
than at Maturity), and the Trustee will pay such amount to DTC, at the times and
in the manner set forth below under "Manner of Payment".
Payments at Maturity. On or about the last
Business Day of each month, the Trustee will deliver to the Company and DTC a
written list of principal and interest to be paid on each Global Security
maturing (on a Maturity or Redemption Date or otherwise) in the following month.
The Trustee, the Company and DTC will confirm the amounts of such principal and
interest payments with respect to each such Global Security on or about the
fifth Business Day preceding the Maturity of such Global Security. On or before
Maturity, the Company will pay to the Trustee, as paying agent, the principal
amount of such Global Security, together with interest due at such Maturity. The
Trustee will pay such amount to DTC at the times and in the manner set forth
below under "Manner of Payment". If any Maturity of a Global Security
representing Book-Entry Notes is not a Business Day, the payment due on such day
shall be made on the next succeeding Business Day and no interest shall accrue
on such payment for the period from and after such Maturity. Promptly after
payment to DTC of the principal and interest due at Maturity of such Global
Security, the Trustee will cancel such Global Security in accordance with the
applicable Indenture and so advise the Company. On the first Business Day of
each month, the Trustee will deliver to the Company a written statement
indicating the total principal amount of Outstanding Global Securities as of the
immediately preceding Business Day.
Manner of Payment. The total amount of any
principal and interest due on Global Securities on any Interest Payment Date or
at Maturity shall be paid by the Company to the Trustee in immediately available
funds no later than 9:30 A.M. (New York City time) on such date. The Company
will make such payment on such Global Securities by instructing the Trustee
22
<PAGE>
to withdraw funds from an account maintained by the Company at First Chicago or
by wire transfer of funds available for immediate use to the Trustee. The
Company will confirm any such instructions in writing to the Trustee. Prior to
10 A.M. (New York City time) on the date of Maturity or as soon as possible
thereafter, the Trustee will pay by separate wire transfer (using Fedwire
message entry instructions in a form previously specified by DTC) to an account
at the Federal Reserve Bank of New York previously specified by DTC, in funds
available for immediate use by DTC, each payment of principal (together with
interest thereon) due on a Global Security on such date. On each Interest
Payment Date (other than at Maturity), interest payments shall be made to DTC,
in funds available for immediate use by DTC, in accordance with existing
arrangements between the Trustee and DTC. On each such date, DTC will pay, in
accordance with its SDFS operating procedures then in effect, such amounts in
funds available for immediate use to the respective Participants in whose names
the Book-Entry Notes represented by such Global Securities are recorded in the
book-entry system maintained by DTC. Neither the Company (as issuer or as paying
agent) nor the Trustee shall have any direct responsibility or liability for the
payment by DTC to such Participants of the principal of and interest on the
Book-Entry Notes.
Withholding Taxes. The amount of any taxes
required under applicable law to be withheld from any interest payment on a
Book-Entry Note will be determined and withheld by the Participant, indirect
participant in DTC or other Person responsible for forwarding payments and
materials directly to the beneficial owner of such Note.
Procedure for Rate The Company and the Agent will discuss from
Setting and time to time the aggregate principal amount
Posting: of, the issuance price of, and the interest
rates to be borne by, Book-Entry Notes that may be sold as a result of the
solicitation of orders by the Agent. If the Company decides to set prices of,
and rates borne by, any Book-Entry Notes in respect of which the Agent is to
solicit orders (the setting of such prices and rates to be referred to herein as
"posting") or if the Company decides to change prices or rates previously posted
by it, it will promptly advise the Agent of the prices and rates to be posted.
Acceptance and Unless otherwise instructed by the Company,
Rejection of the Agent will advise the Company promptly by
Orders: telephone of all orders to purchase
Book-Entry Notes received by such Agent, other than those rejected by it in
whole or in part in the reasonable exercise of its discretion. The Company has
the right to accept orders to purchase Book-Entry Notes and may reject any such
orders in whole or in part.
23
<PAGE>
Preparation of If any order to purchase a Book-Entry Note is
Pricing accepted by or on behalf of the Company, the
Supplement: Company will prepare a pricing supplement (a
"Pricing Supplement") reflecting the terms of such Book-Entry Note and will
arrange to have ten copies thereof filed with the Commission in accordance with
the applicable paragraph of Rule 424(b) under the Act and will supply at least
ten copies thereof (and additional copies if requested) to the Agent which
presented the order (the "Presenting Agent") at the address set forth on
Schedule I hereto, to be delivered by overnight courier or telecopy to arrive no
later than 11:00 a.m., New York City time, on the Business Day following the
sale date.
The Presenting Agent will cause a Prospectus
and Pricing Supplement to be delivered to the purchaser of such Book-Entry Note.
In each instance that a Pricing Supplement is
prepared, the Presenting Agent will affix the Pricing Supplement to Prospectuses
prior to their use. Outdated Pricing Supplements (other than those retained for
files), will be destroyed.
Suspension of The Company may instruct the Agent to suspend
Solicitation; at any time, for any period of time or
Amendment or permanently, the solicitation of orders to
Supplement: purchase Book-Entry Notes. Upon receipt of
such instructions, the Agent will forthwith suspend solicitation until such time
as the Company has advised them that such solicitation may be resumed.
In the event that at the time the Company
suspends solicitation of purchases there shall be any orders outstanding for
settlement, the Company will promptly advise the Agent and the Trustee whether
such orders may be settled and whether copies of the Prospectus as in effect at
the time of the suspension, together with the appropriate Pricing Supplement,
may be delivered in connection with the settlement of such orders. The Company
will have the sole responsibility for such decision and for any arrangements
that may be made in the event that the Company determines that such orders may
not be settled or that copies of such Prospectus may not be so delivered.
If the Company decides to amend or supplement
the Registration Statement (as defined in the Agency Agreement) or the
Prospectus, it will promptly advise the Agent and furnish the Agent with the
proposed amendment or supplement and with such certificates and opinions as are
required, all to the extent required by and in accordance with the terms of the
Agency Agreement. Subject to the provisions contained in Sections 4(a) and 4(b)
of the Agency Agreement, the Company may file with the Commission any such
supplement to the Prospectus relating to the Notes. The Company will provide the
Agent and
24
<PAGE>
the Trustee with copies of any such supplement, and confirm to the Agent that
such supplement has been filed with the Commission pursuant to the applicable
paragraph of Rule 424(b).
Procedures For When the Company has determined to change the
Rate Changes: interest rates of Book-Entry Notes being
offered, it will promptly advise the Agent and the Agent will forthwith suspend
solicitation of orders. The Agent will telephone the Company with
recommendations as to the changed interest rates. At such time as the Company
has advised the Agent of the new interest rates, the Agent may resume
solicitation of orders. Until such time only "indications of interest" may be
recorded.
Delivery of A copy of the Prospectus and a Pricing
Prospectus: Supplement relating to a Book-Entry Note must
accompany or precede the earliest of any written offer of such Book-Entry Note,
confirmation of the purchase of such Book-Entry Note and payment for such
Book-Entry Note by its purchaser. If notice of a change in the terms of the
Book-Entry Notes is received by the Agent between the time an order for a
Book-Entry Note is placed and the time written confirmation thereof is sent by
the Presenting Agent to a customer or his agent, such confirmation shall be
accompanied by a Prospectus and Pricing Supplement setting forth the terms in
effect when the order was placed. Subject to "Suspension of Solicitation;
Amendment or Supplement" above, the Presenting Agent will deliver a Prospectus
and Pricing Supplement as herein described with respect to each Book-Entry Note
sold by it. The Company will make such delivery if such Book-Entry Note is sold
directly by the Company to a purchaser (other than an Agent).
Confirmation: For each order to purchase a Book-Entry Note
solicited by any Agent and accepted by or on behalf of the Company, the
Presenting Agent will issue a confirmation to the purchaser, with a copy to the
Company, setting forth the details set forth above and delivery and payment
instructions.
Settlement: The receipt by the Company of immediately
available funds in payment for a Book-Entry Note and the authentication and
issuance of the Global Security representing such Book-Entry Note shall
constitute "settlement" with respect to such Book-Entry Note. All orders
accepted by the Company will be settled on the third Business Day following the
date of sale of such Book-Entry Note pursuant to the timetable for settlement
set forth below unless the Company and the purchaser agree to settlement on
another day which shall be no earlier than the Business Day following the date
of sale.
Settlement Settlement Procedures with regard to each
Procedures: Book-Entry Note sold by the Company through
any Agent, as agent, shall be as follows:
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A. The Presenting Agent will advise the
Company by telephone of the following settlement information:
1. Rank (senior or subordinated).
2. Principal amount.
3. Maturity Date.
4. In the case of a Fixed Rate
Book-Entry Note, the interest rate or, in the case of a Floating Rate Book-Entry
Note, the Base Rate, initial interest rate (if known at such time), Index
Maturity, Interest Reset Period, Interest Reset Dates, Interest Determination
Dates, Spread and/or Spread Multiplier (if any), minimum interest rate (if any)
and maximum interest rate (if any).
5. Interest Payment Dates and the
Interest Payment Period.
6. Redemption or repayment provisions,
if any.
7. Settlement date.
8. Price.
9. The Presenting Agent's DTC
participant account number and commission, determined as provided in Section 2
of the Agency Agreement.
10. Whether such Book-Entry Note is
issued at an original issue discount and, if so, the total amount of OID, the
yield to maturity and the initial accrual period OID.
B. The Company will assign a CUSIP number to
the Global Security representing such Book-Entry Note and then advise the
Trustee and the Presenting Agent by telephone (confirmed in writing at any time
on the same date) or electronic transmission of the information set forth in
Settlement Procedure "A" above, such CUSIP number and the name of the Presenting
Agent. The Company will also notify the Presenting Agent by telephone of such
CUSIP number as soon as practicable.
C. The Trustee will enter a pending deposit
message through DTC's Participant Terminal System providing the settlement
information to DTC specified in the Letter of Representations from the Company
and the Trustee to DTC dated as of the date hereof.
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D. To the extent the Company has not already
done so, the Company will deliver to the Trustee a Global Security in a form
that has been approved by the Company, the Agent and the Trustee.
E. The Trustee will complete such Global
Security, stamp the appropriate legend, as instructed by DTC, if not already set
forth thereon, and authenticate the Global Security representing such Book-Entry
Note in accordance with the terms of the written order of the Company then in
effect.
F. DTC will credit such Book-Entry Note to
the Trustee's participant account at DTC.
G. Upon delivery of the pending deposit
message referenced in "C" above, an SDFS deliver order through DTC's Participant
Terminal System will be created instructing DTC to debit such Book-Entry Note to
the Trustee's participant account and credit such Book-Entry Note to the
Presenting Agent's participant account and debit the Presenting Agent's
settlement account and credit the Trustee's settlement account for an amount
equal to the price of such Book-Entry Note less the Presenting Agent's
commission. The entry of such a pending deposit message by First Chicago as
Trustee shall constitute a representation and warranty by First Chicago to DTC
that (i) the Global Security representing such Book-Entry Note has been issued
and authenticated and (ii) First Chicago is holding such Global Security
pursuant to the Medium-Term Note Certificate Agreement between First Chicago and
DTC.
H. The Presenting Agent will enter an SDFS
deliver order through DTC's Participant Terminal System instructing DTC (i) to
debit such Book-Entry Note to the Presenting Agent's participant account and
credit such Book-Entry Note to the participant accounts of the Participants with
respect to such Book-Entry Note and (ii) to debit the settlement accounts of
such Participants and credit the settlement account of the Presenting Agent for
an amount equal to the price of such Book-Entry Note.
I. Transfers of funds in accordance with SDFS
deliver orders described in Settlement Procedures "G" and "H" will be settled in
accordance with SDFS operating procedures in effect on the settlement date.
J. The Trustee will, upon receipt of funds
from the Agent in accordance with Settlement Procedure "G", credit to an account
of the Company maintained at First Chicago funds available for immediate use in
the amount transferred to the Trustee in accordance with Settlement Procedure
"G". However, the Trustee shall not credit the account of the Company unless and
until the Trustee has confirmed receipt of the funds
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<PAGE>
in the appropriate amount transferred in accordance with Settlement Procedure
"G".
K. The Presenting Agent will confirm the
purchase of such Book-Entry Note to the purchaser either by transmitting to the
Participants with respect to such Book-Entry Note a confirmation order or orders
through DTC's institutional delivery system or by mailing a written confirmation
to such purchaser.
Settlement For orders of Book-Entry Notes solicited by
Procedures any Agent and accepted by the Company for
Timetable: settlement on the Business Day after the sale
date, Settlement Procedures "A" through "K" set forth above shall be completed
as soon as possible but not later than the respective times (New York City time)
set forth below:
Settlement
Procedure Time
--------- ----
A 11:00 A.M. on the sale date
B 12:00 Noon on the sale date
C 2:00 P.M. on the sale date
D 3:00 P.M. on the day before
settlement
E 9:00 A.M. on settlement date
F 10:00 A.M. on settlement date
G-H 2:00 P.M. on settlement date
I 4:30 P.M. on settlement date
J-K 5:00 P.M. on settlement date
If a sale is to be settled more than one
Business Day after the sale date, Settlement Procedures "A", "B" and "C" shall
be completed as soon as practicable but no later than 11:00 A.M. and 12:00 Noon
on the first Business Day after the sale date and no later than 2:00 P.M. on the
Business Day before the settlement date, respectively. If the initial interest
rate for a Floating Rate Book-Entry Note has not been determined at the time
that Settlement Procedure "A" is completed, Settlement Procedures "B" and "C"
shall be completed as soon as such rate has been determined but no later than
12:00 Noon and 2:00 P.M., respectively, on the second Business Day before the
settlement date. Settlement Procedure "I" is subject to extension in accordance
with any extension of Fedwire closing
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<PAGE>
deadlines and in the other events specified in SDFS operating procedures in
effect on the settlement date.
If settlement of a Book-Entry Note is
rescheduled or canceled, the Trustee will deliver to DTC, through DTC's
Participant Terminal System, a cancelation message to such effect by no later
than 2:00 P.M. on the Business Day immediately preceding the scheduled
settlement date.
Failure to Settle: If the Trustee has not entered an SDFS
deliver order with respect to a Book-Entry Note pursuant to Settlement Procedure
"G", then, upon written request (which may be by telecopy) of the Company, the
Trustee shall deliver to DTC, through DTC's Participant Terminal System, as soon
as practicable, a withdrawal message instructing DTC to debit such Book-Entry
Note to the Trustee's participant account. DTC will process the withdrawal
message, provided that the Trustee's participant account contains a principal
amount of the Global Security representing such Book-Entry Note that is at least
equal to the principal amount to be debited. If a withdrawal message is
processed with respect to all the Book-Entry Notes represented by a Global
Security, the Trustee will cancel such Global Security in accordance with the
applicable Indenture and so advise the Company, and will make appropriate
entries in its records. The CUSIP number assigned to such Global Security shall,
in accordance with CUSIP Service Bureau procedures, be canceled and not
immediately reassigned. If a withdrawal message is processed with respect to one
or more, but not all, of the Book-Entry Notes represented by a Global Security,
the Trustee will exchange such Book-Entry Note for two Global Securities, one of
which shall represent such Book-Entry Notes and shall be canceled immediately
after issuance and the other of which shall represent the other Book-Entry Notes
previously represented by the surrendered Global Security and shall bear the
CUSIP number of the surrendered Global Security.
If the purchase price for any Book-Entry Note
is not timely paid to the Participants with respect to such Note by the
beneficial purchaser thereof (or a Person, including an indirect participant in
DTC, acting on behalf of such purchaser), such Participants and, in turn, the
Presenting Agent may enter SDFS deliver orders through DTC's Participant
Terminal System debiting such Note to such Agent's participant account and
crediting such Note free to the participant account of the Trustee and shall
notify the Trustee and the Company thereof. Thereafter, the Trustee (i) will
immediately notify the Company thereof, once the Trustee has confirmed that such
Note has been credited to its participant account, and the Company shall
immediately transfer by Fedwire (immediately available funds) to such Agent an
amount equal to the price of such Note which was previously credited to the
account of the Company maintained at First Chicago or wire transferred at the
Company's direction in accordance with Settlement Procedure J and (ii) the
Trustee will
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<PAGE>
deliver the withdrawal message and take the related actions described in the
preceding paragraph. If such failure shall have occurred for any reason other
than a default by the Presenting Agent in the performance of its obligations
hereunder and under the Agency Agreement, then the Company will reimburse the
Presenting Agent or the Trustee, as applicable, on an equitable basis for the
loss of the use of the funds during the period when they were credited to the
account of the Company.
Notwithstanding the foregoing, upon any
failure to settle with respect to a Book-Entry Note, DTC may take any actions in
accordance with its SDFS operating procedures then in effect. In the event of a
failure to settle with respect to one or more, but not all, of the Book-Entry
Notes to have been represented by a Global Security, the Trustee will provide,
in accordance with Settlement Procedure "E", for the authentication and issuance
of a Global Security representing the other Book-Entry Notes to have been
represented by such Global Security and will make appropriate entries in its
records.
Trustee and First Nothing herein shall be deemed to require the
Chicago Not to Risk Trustee or First Chicago to risk or expend
Funds: its own funds in connection with any payment
to the Company, DTC, the Agent or the purchaser, it being understood by all
parties that payments made by the Trustee or First Chicago to the Company, DTC,
the Agent or the purchaser shall be made only to the extent that funds are
provided to the Trustee or First Chicago for such purpose.
Authenticity of The Company will cause the Trustee to furnish
Signatures: the Agent from time to time with the specimen
signatures of each of the Trustee's officers, employees or agents who has been
authorized by the Trustee to authenticate Book-Entry Notes, but no Agent will
have any obligation or liability to the Company or the Trustee in respect of the
authenticity of the signature of any officer, employee or agent of the Company
or the Trustee on any Book-Entry Note.
Payment of The Agent shall forward to the Company, on a
Expenses: monthly basis, a statement of the
out-of-pocket expenses incurred by such Agent during that month that are
reimbursable to it pursuant to the terms of the Agency Agreement. The Company
will remit payment to the Agent currently on a monthly basis.
Advertising The Company will determine with the Agent the
Costs: amount of advertising that may be appropriate
in soliciting offers to purchase the Book-Entry Notes. Advertising expenses will
be paid by the Company.
Periodic Statements Periodically, upon written request, the
from the Trustee: Trustee will send to the Company a statement
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<PAGE>
setting forth the principal amount of Book-Entry Notes Outstanding as of that
date and setting forth a brief description of any sales of Book-Entry Notes
which the Company has advised the Trustee but which have not yet been settled.
PART II
Administrative Procedures for Certificated Notes
The Trustee will serve as registrar and transfer agent and
authenticating and paying agent in connection with the Certificated Notes.
Issuance: Each Certificated Note will be dated and
issued as of the date of its authentication by the Trustee. Each Certificated
Note will bear an Original Issue Date, which will be (i) with respect to an
original Certificated Note (or any portion thereof), its original issuance date
(which will be the settlement date) and (ii) with respect to any Certificated
Note (or portion thereof) issued subsequently upon transfer or exchange of a
Certificated Note or in lieu of a destroyed, lost or stolen Certificated Note,
the Original Issue Date of the predecessor Certificated Note, regardless of the
date of authentication of such subsequently issued Certificated Note.
Registration: Certificated Notes will be issued only in
fully registered form without coupons.
Transfers and A Certificated Note may be presented for
Exchanges: transfer or exchange at the office of the
Trustee at 14 Wall Street (8th Floor), New York, N.Y. 10005, Attention:
Corporate Trust Services. Certificated Notes will be exchangeable for other
Certificated Notes having identical terms but different authorized denominations
without service charge. Certificated Notes will not be exchangeable for
Book-Entry Notes.
Maturities: Each Certificated Note will mature nine
months or more from its date of issue.
Denominations: The denomination of any Certificated Note
denominated in U.S. dollars will be a minimum of $100,000 or any amount in
excess thereof that is an integral multiple of $1,000. The authorized
denominations of Certificated Notes denominated in any other currency will be
specified pursuant to "Settlement Procedures" below.
Interest: General. Interest, if any, on each
Certificated Note will accrue from the original issue date for the first
interest period or the last date to which interest has been paid, if any, for
each subsequent interest period, and will be calculated and paid in the manner
described in such Note and in the Prospectus, as supplemented by the applicable
Pricing
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<PAGE>
Supplement. Unless otherwise specified therein, each payment of interest on a
Certificated Note will include interest accrued to but excluding the Interest
Payment Date or to but excluding Maturity.
Regular Record Dates. The Regular Record
Dates with respect to any Interest Payment Date for Floating Rate Certificated
Notes shall be the date fifteen calendar days immediately preceding such
interest Payment Date, and for Fixed Rate Certificated Notes shall be the April
15 or October 15 next preceding such Interest Payment Date, whether or not such
date shall be a Business Day.
Fixed Rate Certificated Notes. Unless
otherwise specified pursuant to Settlement Procedure "A" below, interest
payments on Fixed Rate Certificated Notes will be made semiannually on May 1 and
November 1 of each year and at Maturity; provided, however, that in the case of
a Fixed Rate Certificated Note issued between a Regular Record Date and an
Interest Payment Date, or on an Interest Payment Date, the first interest
payment will be made on the Interest Payment Date following the next succeeding
Regular Record Date. If any Interest Payment Date for or the Maturity of a Fixed
Rate Certificated Note is not a Business Day, the payment due on such day shall
be made on the next succeeding Business Day and no interest shall accrue on such
payment for the period from and after such Interest Payment Date or Maturity, as
the case may be.
Floating Rate Certificated Notes. Interest
payments will be made on Floating Rate Certificated Notes monthly, quarterly,
semi-annually or annually. Interest will be payable, in the case of Floating
Rate Certificated Notes with a monthly Interest Payment Period, on the third
Wednesday of each month; with a quarterly interest Payment Period, on the third
Wednesday of March, June, September and December of each year; with a
semi-annual Interest Payment Period, on the third Wednesday of the two months
specified pursuant to Settlement Procedure "A" below; and with an annual
Interest Payment Period, on the third Wednesday of the month specified pursuant
to Settlement Procedure "A" below; provided, however, that if an Interest
Payment Date for a Floating Rate Certificated Note would otherwise be a day that
is not a Business Day with respect to such Floating Rate Certificated Note, such
Interest Payment Date will be the next succeeding Business Day with respect to
such Floating Rate Certificated Note, except in the case of a Floating Rate
Certificated Note for which the Base Rate is LIBOR, if such Business Day is in
the next succeeding calendar month, such Interest Payment Date will be the
immediately preceding Business Day; and provided further, that in the case of a
Floating Rate Certificated Note issued between a Regular Record Date and an
Interest Payment Date or on an Interest Payment Date, the first interest payment
will be made on the Interest Payment Date following the next succeeding Regular
Record Date.
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<PAGE>
Calculation of Fixed Rate Certificated Note. Interest on
Interest: Fixed Rate Certificated Notes (including
interest for partial periods) will be calculated on the basis of a 360-day year
of twelve 30-day months.
Floating Rate Certificated Notes. Interest
rates on Floating Rate Certificated Notes will be determined as set forth in the
form of Notes. Interest on Floating Rate Certificated Notes, except as otherwise
set forth therein, will be calculated on the basis of actual days elapsed and a
year of 360 days, except that in the case of a Floating Rate Certificated Note
for which the Base Rate is the Treasury Rate or the CMT Rate, interest will be
calculated on the basis of the actual number of days in the year.
Payments of On or before the due date for any payment of
Principal and principal or interest on each Certificated
Interest: Note, the Company will pay to the Trustee, as
paying agent, the amount of principal and/or interest then due. The Trustee will
pay the principal amount of each Certificated Note at Maturity upon presentation
of such Certificated Note to the Trustee. Such payment, together with payment of
interest due at Maturity of such Certificated Note, will be made in funds
available for immediate use by the Trustee and in turn by the Holder of such
Certificated Note. Certificated Notes presented to the Trustee at Maturity for
payment will be canceled by the Trustee in accordance with the applicable
Indenture. All interest payments on a Certificated Note (other than interest due
at Maturity) will be made by check drawn on the Trustee or another Person
appointed by the Trustee mailed by the Trustee to the Person entitled thereto as
provided in such Note and the applicable Indenture; provided, however, that the
holder of $10,000,000 (or the equivalent thereof in other currencies) or more of
Certificated Notes with similar tenor and terms will be entitled to receive
payment by wire transfer in U.S. dollars upon receipt of written instructions by
the Trustee. Following each Regular Record Date and Special Record Date, the
Trustee will furnish the Company with a list of interest payments to be made on
the following Interest Payment Date for each group of Certificated Notes bearing
interest at a particular rate and in total for all Certificated Notes. Interest
at Maturity will be payable to the Person to whom the payment of principal is
payable. The Trustee will provide, on or about the last Business Day of each
month, to the Company lists of principal and interest, to the extent
ascertainable, to be paid on Certificated Notes maturing (on a Maturity or
Redemption Date or otherwise) in the next two months.
First Chicago will be responsible for
withholding taxes on interest paid on Certificated Notes as required by
applicable law.
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<PAGE>
Procedure for Rate The Company and the Agents will discuss from
Setting and time to time the aggregate principal amount
Posting: of, the issuance price of, and the interest
rates to be borne by, Notes that may be sold as a result of the solicitation of
orders by the Agents. If the Company decides to set prices of, and rates borne
by, any Notes in respect of which the Agents are to solicit orders (the setting
of such prices and rates to be referred to herein as "posting") or if the
Company decides to change prices or rates previously posted by it, it will
promptly advise the Agents of the prices and rates to be posted.
Acceptance and Unless otherwise instructed by the Company,
Rejection of orders: each Agent will advise the Company promptly
by telephone of all orders to purchase Certificated Notes received by such
Agent, other than those rejected by it in whole or in part in the reasonable
exercise of its discretion. Unless otherwise agreed by the Company and the
Agents, the Company has the sole right to accept orders to purchase Certificated
Notes and may reject any such orders in whole or in part.
Preparation of If any order to purchase a Certificated Note
Pricing is accepted by or on behalf of the Company,
Supplement: the Company will prepare a Pricing Supplement
reflecting the terms of such Certificated Note and will arrange to have ten
copies thereof filed with the Commission in accordance with the applicable
paragraph of Rule 424(b) under the Act and will supply at least ten copies
thereof (and additional copies if requested) to the Presenting Agent at the
address set forth on Schedule I hereto, to be delivered by overnight courier or
telecopy to arrive no later than 11:00 a.m., New York City time, on the Business
Day following the sale date. The Presenting Agent will cause a Prospectus and
Pricing Supplement to be delivered to the purchaser of such Certificated Note.
In each instance that a Pricing Supplement is
prepared, the Presenting Agent will affix the Pricing Supplement to Prospectuses
prior to their use. Outdated Pricing Supplements (other than those retained for
files), will be destroyed.
Suspension of Subject to the Company's representations,
Solicitation; warranties and covenants contained in the
Amendment or Agency Agreement, the Company may instruct
Supplement: the Agents to suspend at any time for any
period of time or permanently, the solicitation of orders to purchase
Certificated Notes. Upon receipt of such instructions, the Agents will forthwith
suspend
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<PAGE>
solicitation until such time as the Company has advised them that such
solicitation may be resumed.
In the event that at the time the Company
suspends solicitation of purchases there shall be any orders outstanding for
settlement, the Company will promptly advise the Agents and the Trustee whether
such orders may be settled and whether copies of the Prospectus as in effect at
the time of the suspension, together with the appropriate Pricing Supplement,
may be delivered in connection with the settlement of such orders. The Company
will have the sole responsibility for such decision and for any arrangements
that may be made in the event that the Company determines that such orders may
not be settled or that copies of such Prospectus may not be so delivered.
If the Company decides to amend or supplement
the Registration Statement or the Prospectus, it will promptly advise the Agents
and furnish the Agents with the proposed amendment or supplement and with such
certificates and opinions as are required, all to the extent required by and in
accordance with the terms of the Agency Agreement. Subject to the provisions of
the Agency Agreement, the Company may file with the Commission any supplement to
the Prospectus relating to the Notes. The Company will provide the Agents and
the Trustee with copies of any such supplement, and confirm to the Agents that
such supplement has been filed with the Commission pursuant to the applicable
paragraph of Rule 424(b).
Procedure for When the Company has determined to change the
Rate Changes: interest rates of Certificated Notes being
offered, it will promptly advise the Agents and the Agents will forthwith
suspend solicitation of orders. The Agents will telephone the Company with
recommendations as to the changed interest rates. At such time as the Company
has advised the Agents of the new interest rates, the Agents may resume
solicitation of orders. Until such time only "indications of interest" may be
recorded.
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<PAGE>
Delivery of A copy of the Prospectus and a Pricing
Prospectus: Supplement relating to a Certificated Note
must accompany or precede the earliest of any written offer of such Certificated
Note, confirmation of the purchase of such Certificated Note and payment for
such Certificated Note by its purchaser. If notice of a change in the terms of
the Certificated Notes is received by the Agents between the time an order for a
Certificated Note is placed and the time written confirmation thereof is sent by
the Presenting Agent to a customer or his agent, such confirmation shall be
accompanied by a Prospectus and Pricing Supplement setting forth the terms in
effect when the order was placed. Subject to "Suspension of Solicitation;
Amendment or Supplement" above, the Presenting Agent will deliver a Prospectus
and Pricing Supplement as herein described with respect to each Certificated
Note sold by it. The Company will make such delivery if such Certificated Note
is sold directly by the Company to a purchaser (other than any Agent).
Confirmation: For each order to purchase a Certificated
Note solicited by any Agent and accepted by or on behalf of the Company, the
Presenting Agent will issue a confirmation to the purchaser, with a copy to the
Company, setting forth the details set forth above and delivery and payment
instructions.
Settlement: The receipt by the Company of immediately
available funds in exchange for an authenticated Certificated Note delivered to
the Presenting Agent and the Presenting Agent's delivery of such Certificated
Note against receipt of immediately available funds shall, with respect to such
Certificated Note, constitute "settlement". All orders accepted by the Company
will be settled on the third Business Day following the date of sale pursuant to
the timetable for settlement set forth below, unless the Company and the
purchaser agree to settlement on another day which shall be no earlier than the
next Business Day following the date of sale.
Settlement Settlement Procedures with regard to each
Procedures: Certificated Note sold by the Company through
any Agent, as agent, shall be as follows:
A. The Presenting Agent will advise the
Company by telephone of the following settlement information:
1. Name in which such Certificated Note
is to be registered ("Registered Owner").
2. Address of the Registered Owner and
address for payment of principal and interest.
3. Taxpayer identification number of
the Registered Owner (if available).
4. Rank (senior or subordinated).
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<PAGE>
5. Principal amount.
6. Maturity Date.
7. In the case of a Fixed Rate
Certificated Note, the interest rate or, in the case of a Floating Rate
Certificated Note, the initial interest rate (if known at such time), Base Rate,
Index Maturity, Interest Reset Period, Interest Reset Dates, Interest
Determination Dates, Spread and/or Spread Multiplier (if any), minimum interest
rate (if any) and maximum interest rate (if any).
8. Interest Payment Dates and the
Interest Payment Period.
9. Specified Currency and whether the
option to elect payment in a Specified Currency applies and if the Specified
Currency is not U.S. dollars, the authorized denominations.
10. Redemption or repayment provisions,
if any.
11. Settlement date.
12. Price (including currency).
13. Presenting Agent's commission,
determined as provided in Section 2 of the Agency Agreement.
14. Whether such Certificated Note is
issued at an original issue discount, and, if so, the total amount of OID, the
yield to maturity and the initial accrual period OID.
B. The Company will advise the Trustee by
telephone (confirmed in writing at any time on the sale date) or electronic
transmission of the information set forth in Settlement Procedure "A" above and
the name of the Presenting Agent.
C. The Company will deliver to the Trustee an
original Certificated Note with customer confirmation in triplicate in forms
that have been approved by Company, the Agents and the Trustee.
D. The Trustee will complete such
Certificated Note and will authenticate such Certificated Note and deliver it
(with the confirmation) and two copies thereof (clearly marked as such) to the
Presenting Agent, and the Presenting Agent will acknowledge receipt of the Note
by stamping or otherwise marking the first copy and returning it to the
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<PAGE>
Trustee. Such delivery will be made only against such acknowledgment of receipt.
In the event that the instructions given by the Presenting Agent for payment to
the account of the Company are revoked, the Company will as promptly as possible
wire transfer to the account of the Presenting Agent an amount of immediately
available funds equal to the amount of such payment made.
E. The Presenting Agent will deliver such
Certificated Note (with the confirmation) to the customer against payment in
immediately payable funds. The Presenting Agent will obtain the acknowledgment
of receipt of such Certificated Note by retaining the second copy thereof.
F. The Trustee will send a third copy of the
Certificated Note (clearly marked as such) to the Company by first-class mail.
Settlement For orders of Certificated Notes solicited by
Procedures any Agent, as agent, and accepted by the
Timetable: Company, Settlement Procedures "A" through
"F" set forth above shall be completed on or before the respective times (New
York City time) set forth below:
Settlement
Procedure Time
--------- ----
A 2:00 P.M. on the day before
settlement
B-C 3:00 P.M. on the day before
settlement
D 2:15 P.M. on settlement date
E 3:00 P.M. on settlement date
F 5:00 P.M. on settlement date
Failure to If a purchaser fails to accept delivery of
Settle: and make payment for any Certificated Note,
the Presenting Agent will notify the Company and the Trustee by telephone and
return such Certificated Note to the Trustee. Upon receipt of such notice, the
Company will immediately wire transfer to the account of the Presenting Agent an
amount equal to the amount previously credited to the account of Company in
respect of such Certificated Note. Such wire transfer will be made on the
settlement date, if possible, and in any event not later than the Business Day
following the settlement date. If the failure shall have occurred for any reason
other than a default by the Presenting Agent in the performance of its
obligations hereunder and under the Agency Agreement, then the Company will
reimburse the Presenting Agent on an equitable basis for its loss of the use of
the funds during the period when they were credited
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<PAGE>
to the account of the Company. Immediately upon receipt of the Certificated Note
in respect of which such failure occurred, the Trustee will cancel such
Certificated Note in accordance with the applicable Indenture and so advise the
Company and will make appropriate entries in its records.
Trustee Not to Risk Nothing herein shall be deemed to require the
Funds: Trustee or First Chicago to risk or expend
its own funds in connection with any payment to the Company, the Agents or the
purchaser, it being understood by all parties that payments made by the Trustee
to the Company, the Agents or the purchaser shall be made only to the extent
that funds are provided to the Trustee for such purpose.
Authenticity of The Company will cause the Trustee to furnish
Signatures: the Agents from time to time with the
specimen signatures of each of the Trustee's officers, employees or agents who
has been authorized by the Trustee to authenticate Certificated Notes, but no
Agent will have any obligation or liability to the Company or the Trustee in
respect of the authenticity of the signature of any officer, employee or agent
of the Company or the Trustee on any Certificated Note.
Payment of Each Agent shall forward to the Company, on a
Expenses: monthly basis, a statement of the
out-of-pocket expenses incurred by such Agent during that month that are
reimbursable to it pursuant to the terms of the Agency Agreement. The Company
will remit payment to the Agents currently on a monthly basis.
Advertising Costs: The Company will determine with the Agents
the amount of advertising that may be appropriate in soliciting orders to
purchase the Certificated Notes. Advertising expenses will be paid by the
Company.
Periodic Statements Periodically, upon written request, the
from the Trustee: Trustee will send to the Company a statement
setting forth the principal amount of Certificated Notes Outstanding as of that
date and setting forth a brief description of any sales of Certificated Notes of
which the Company has advised the Trustee but which have not yet been settled.
39
Exhibit 4(a)
REGISTERED REGISTERED
IF APPLICABLE, THE "TOTAL AMOUNT OF OID, "YIELD TO MATURITY" AND "INITIAL
ACCRUAL PERIOD OID" (COMPUTED UNDER THE APPROXIMATE METHOD) BELOW WILL BE
COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE FEDERAL INCOME TAX ORIGINAL
ISSUE DISCOUNT ("OID") RULES.
THIS NOTE IS NOT A SAVINGS ACCOUNT, DEPOSIT OR OTHER OBLIGATION OF ANY BANK OR
NONBANK SUBSIDIARY OF FLEET FINANCIAL GROUP, INC. AND IS NOT INSURED BY THE
FEDERAL DEPOSIT INSURANCE CORPORATION, BANK INSURANCE FUND OR ANY OTHER
GOVERNMENT AGENCY.
CUSIP PRINCIPAL AMOUNT:
NO. L -
FLEET FINANCIAL GROUP, INC.
MEDIUM-TERM NOTE, SERIES L
SENIOR
Issue Price: % Maturity Date:
Original Issue Date: Index Maturity:
__ Fixed Rate - Interest Rate: % Total Amount of OID:
__ Floating Rate -
Initial Interest Rate: % Yield to Maturity: %
Base Rate: Initial Accrual Period OID:
__ CD Rate Specified Currency (if other
than U.S. dollars):
__ CMT Rate
__ Designated CMT Telerate Page:
__ Designated CMT Maturity Index:
__ Commercial Paper Rate Option to Receive Payments in
Specified Currency (non-U.S.
dollar denominated Note):
__ Federal Funds Rate
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__ LIBOR
__ Yes __ No
__ LIBOR Reuters
__ LIBOR Telerate
Index Currency:
__ Prime Rate Place of Payment:
__ Treasury Rate
__ 11th District Cost of Funds Rate
__ Other:
Spread (+/-):
Spread Multiplier: % Redemption Provisions:
Maximum Interest Rate: %
Minimum Interest Rate: %
Initial Interest Reset Date:
Interest Reset Dates:
Interest Payment Dates: Other Terms:
Interest Determination Dates:
Authorized Denomination
(only if non-U.S. dollar denominated Note):
Calculation Agent:
Interest Payment Period:
Fleet Financial Group. Inc., a Rhode Island corporation (herein called the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
____________________________________________________ , or registered assigns,
the Principal Amount specified above on the Maturity Date specified above and to
pay to the registered holder hereof interest on said Principal Amount at a rate
per annum specified above and upon the terms provided under either the heading
"Fixed Rate Note" or "Floating Rate Note".
This Note is one of a duly authorized issue of notes of the Company
(herein referred to as the "Notes"), all issued or to be issued in one or more
series under an Indenture, dated as of October 1, 1992 (herein referred to as
the "Indenture"), between the Company and The First National Bank of Chicago, as
trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental
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thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Trustee, the
Company and the Holders of the Notes and of the terms upon which the Notes are,
and are to be, authenticated and delivered. The Notes of this series are limited
(except as otherwise provided in the Indenture) to the aggregate principal
amount established from time to time by the Board of Directors of the Company.
The Notes of this series may be issued at various times with different maturity
dates and different principal repayment provisions, may bear interest at
different rates and may otherwise vary, all as provided in the Indenture. The
Notes of this series may be subject to redemption or entitled to repayment at
the option of the Holder thereof, in both cases upon notice and in accordance
with the provisions of the Indenture and as indicated on page one hereof. The
Company may defease the Notes of this series in accordance with the provisions
of the Indenture.
Provisions Applicable to Fixed Rate Notes Only:
If the "Fixed Rate" line on page one of this Note is checked, the Company
will pay interest semiannually on May 1 and November 1 of each year (each an
"Interest Payment Date") and on the Maturity Date or upon earlier redemption or
repayment to the person to whom principal is payable. Interest shall accrue from
the Original Issue Date, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for on this Note (or any Predecessor
Note) to, but excluding, the next following Interest Payment Date, Maturity
Date, or date of redemption or repayment, as the case may be. Interest on Fixed
Rate Notes will be computed on the basis of a 360-day year consisting of twelve
30-day months.
If any Interest Payment Date or the Maturity Date (or the date of
redemption or repayment) of a Fixed Rate Note falls on a day that is not a
Business Day (defined below), the payment will be made on the next Business Day
as if it were made on the date such payment was due, and no interest will accrue
on the amount so payable for the period from and after such Interest Payment
Date or the Maturity Date (or the date of redemption or repayment), as the case
may be.
Provisions Applicable to Floating Rate Notes Only:
If the "Floating Rate" line on page one of this Note is checked, the
Company will pay interest on the Interest Payment Dates shown on page one at the
Initial Interest Rate shown on page one until the first Interest Reset Date
shown on page one following the Original Issue Date shown above and thereafter
at a rate determined in accordance with the provisions hereinafter set forth
under the headings "Determination of CD Rate", "Determination of CMT Rate",
"Determination of Commercial Paper Rate", "Determination of Federal Funds Rate",
"Determination of LIBOR", "Determination of Prime Rate", "Determination of
Treasury Rate" or "Determination of 11th District Cost of Funds Rate", depending
on whether the Base Rate is the CD Rate, the CMT Rate, the Commercial Paper
Rate, the Federal Funds Rate, LIBOR, the Prime Rate, the Treasury Rate, the 11th
District Cost of Funds Rate or other Base Rate, as indicated on page one.
An interest payment shall be the amount of interest accrued from and
including the Original Issue Date, or from and including the last Interest
Payment Date to which interest has been paid, to, but excluding, the next
following Interest Payment Date, Maturity Date, or date of redemption or
repayment, as the case may be (an "Interest Period"). If the "Maximum Interest
Rate" on page one is checked, the Floating Rate Note is subject to a maximum
limitation on the rate of interest which may accrue during any Interest Period.
If the "Minimum Interest Rate" line is checked, the Floating Rate Note is
subject to a minimum limitation on the rate of interest which may accrue during
any Interest Period.
If any Interest Payment Date for any Floating Rate Note would fall on a
day that is not a Business Day with respect to such Note, such Interest Payment
Date will be the following day that is a Business Day with respect to such Note,
except that, in the case of a LIBOR Note, if such Business Day is in the next
succeeding calendar month, such Interest Payment Date will be the immediately
preceding day that is a Business Day with respect to such LIBOR Note. If the
Maturity Date (or date of redemption or repayment) of any Floating Rate Note
would fall on a day that is not a Business Day, the payment of interest and
principal (and premium, if any) may be made on the next
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succeeding Business Day, and no interest on such payment will accrue for the
period from and after the Maturity Date (or the date of redemption or
repayment).
Commencing with the first Interest Reset Date specified on page one hereof
following the Original Issue Date, the rate at which interest on this Note is
payable shall be adjusted daily, weekly, monthly, quarterly, semi-annually or
annually as shown on page one hereof under "Interest Reset Dates". The interest
rate for each Interest Reset Date shall be the Base Rate (as shown on page one
hereof and described below) applicable to such Interest Reset Date, plus or
minus the Spread (defined below), if any, and/or multiplied by the Spread
Multiplier (defined below), if any (each as indicated on page one hereof);
provided, however, that the interest rate in effect for the period from the
Issue Date to the first Interest Reset Date will be the Initial Interest Rate.
The "Spread" is the number of basis points (one basis point equals
one-hundredth of a percentage point) specified on page one hereof as being
applicable to the interest rate for such Floating Rate Note, and the "Spread
Multiplier" is the percentage specified on page one hereof as being applicable
to the interest rate for such Floating Rate Note. Both a Spread and/or a Spread
Multiplier may be applicable to the Interest Rate for a particular Floating Rate
Note, as set forth on page one hereof.
Each such adjusted rate shall be applicable on and after the Interest
Reset Date to which it relates but not including the next succeeding Interest
Reset Date. If any Interest Reset Date is a day that is not a Business Day, such
Interest Reset Date shall be postponed to the next day that is a business day,
except that if the rate of interest on this Note shall be determined by
reference to LIBOR and such Business Day is in the next succeeding calendar
month, such Interest Reset Date shall be the immediately preceding Business Day.
Subject to applicable provisions of law (including usury laws) and except as
specified on this Note, on each Interest Reset Date, the rate of interest on
this Note shall be the rate determined in accordance with the provisions of the
applicable heading below.
With respect to a Floating Rate Note, accrued interest shall be calculated
by multiplying the principal amount of such Floating Rate Note by an accrued
interest factor. Such accrued interest factor will be computed by adding the
interest factors calculated for each day in the Interest Period or from the last
date from which accrued interest is being calculated. The interest factor for
each such day is computed by dividing the interest rate applicable to such day
by 360, in the cases of CD Rate Notes, Commercial Paper Rate Notes, Federal
Funds Rate Notes, LIBOR Notes, Prime Rate Notes and 11th District Cost of Funds
Notes or by the number of days in the year, in the cases of CMT Rate Notes and
Treasury Rate Notes. The interest rate applicable to any day that is an Interest
Reset Date will be the interest rate effective on such Interest Reset Date. The
interest rate applicable to any other day will be the interest rate for the
immediately preceding Interest Reset Date (or, if none, the Initial Interest
Rate, as shown on page one).
The "Calculation Date", where applicable, pertaining to an Interest
Determination Date will be the earlier of (i) the tenth calendar day after such
Interest Determination Date or, if any such day is not a Business Day, the next
succeeding Business Day and (ii) the Business Day preceding the applicable
Interest Payment Date or the Maturity Date, as the case may be.
The First National Bank of Chicago shall be the Calculation Agent unless
another Calculation Agent is specified on page one hereof. At the request of the
Holder, the Calculation Agent will provide the interest rate then in effect and,
if determined, the interest rate which will become effective on the next
Interest Reset Date.
Unless otherwise specified on page one hereof, all percentages resulting
from any calculation of the rate of interest on a Floating Rate Note will be
rounded, if necessary, to the nearest one hundred-thousandth of a percent
(.0000001), with five one-millionths of a percentage point rounded upward, and
all dollar amounts used in or resulting from such calculation on Floating Rate
Notes will be rounded to the nearest cent (with one-half cent being rounded
upward).
Determination of CD Rate. If the Base Rate, as indicated on page one
hereof, is, or is calculated by reference to, the CD Rate, unless otherwise
specified on page one hereof, the "CD Rate", with respect to any Interest Reset
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Date will be determined by the Calculation Agent as of the second Business Day
prior to such Interest Reset Date (a "CD Interest Determination Date") and shall
be the rate on such date for negotiable certificates of deposit having the Index
Maturity designated on page one hereof (the "Index Maturity") as published by
the Board of Governors of the Federal Reserve System in "Statistical Release
H.15(519), Selected Interest Rates" or any successor publication ("H.15(519)")
under the heading "CDs (Secondary Market)" or, if not so published by 9:00 A.M.,
New York City time, on the Calculation Date pertaining to such CD Interest
Determination Date, then the CD Rate shall be the rate on such CD Interest
Determination Date for negotiable certificates of deposit having the specified
Index Maturity as published by the Federal Reserve Bank of New York in its daily
statistical release, "Composite 3:30 P.M. Quotations for U.S. Government
Securities" or any successor publication ("Composite Quotations") under the
heading "Certificates of Deposit". If such rate is not so published by 3:00
P.M., New York City time, on such Calculation Date, then the CD Rate on such CD
Interest Determination Date will be calculated by the Calculation Agent and will
be the arithmetic mean of the secondary market offered rates as of 10:00 A.M.,
New York City time, on such CD Interest Determination Date, of three leading
nonbank dealers in negotiable U.S. dollar certificates of deposit in The City of
New York selected by the Calculation Agent for negotiable certificates of
deposit of major United States money center banks of the highest credit standing
(in the market for negotiable certificates of deposit) with a remaining maturity
closest to the specified Index Maturity in a denomination of U.S. $5,000,000;
provided, however, that if the dealers selected as aforesaid by the Calculation
Agent are not quoting as mentioned in this sentence, the CD Rate will be the CD
Rate in effect on such CD Interest Determination Date.
CD Rate Notes, like other Notes, are not deposit obligations of a bank and
are not insured by the Federal Deposit Insurance Corporation.
Determination of CMT Rate. If the Base Rate, as indicated on page one
hereof, is, or is calculated by reference to, the CMT Rate, unless otherwise
specified on page one hereof, the "CMT Rate" will be determined by the
Calculation Agent, with respect to any Interest Determination Date (a "CMT
Interest Determination Date"), and shall be the rate displayed on the Designated
CMT Telerate Page 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 for (i) if the Designated CMT Telerate
Page is 7055, the rate on such CMT Interest Determination Date and (ii) if the
Designated CMT Telerate Page is 7052, the week, or the month, as applicable,
ended immediately preceding the week in which the related CMT Interest
Determination Date occurs. If such rate is no longer displayed on the relevant
page, or is not displayed by 3:00 P.M., New York City time, on the related
Calculation Date, then the CMT Rate for such CMT Interest Determination Date
will be such treasury constant maturity rate for the Designated CMT Maturity
Index as published in the relevant 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 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 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 the relevant 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 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 closing offer
side prices as of approximately 3:30 P.M. (New York City time) on the CMT
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 ("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 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 offer side prices as of approximately 3:30 P.M. (New
York City time) on the CMT 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
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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 offer prices 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 Interest Determination Date. If two Treasury Notes with an
original maturity as described in the third preceding sentence 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 Telerate
Service on the page designated on page one 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)), for the purpose of displaying
Treasury Constant Maturities as reported in H.15(519). If no such page is
specified on page one hereof, the Designated CMT Telerate Page shall be 7052,
for the most recent week.
"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 page one hereof with respect to which the CMT Rate will be
calculated, If no such maturity is specified, the Designated CMT Maturity Index
shall be two years.
Determination of Commercial Paper Rate. If the Base Rate, as indicated on
page one hereof, is, or is calculated by reference to, the Commercial Paper
Rate, unless otherwise specified on page one hereof, the "Commercial Paper Rate"
for each Interest Reset Date will be determined by the Calculation Agent as of
the second Business Day prior to such Interest Reset Date (a "Commercial Paper
Interest Determination Date") and shall be the Money Market Yield (as defined
below) on such date of the rate for commercial paper having the Index Maturity
as indicated on page one hereof, as such rate shall be published in H.15(519)
under the caption "Commercial Paper-nonfinancial". In the event that such rate
is not published prior to 9:00 A.M. New York City time on the Calculation Date,
then the Commercial Paper Rate shall be the Money Market Yield on such
Commercial Paper Interest Determination Date of the rate for commercial paper of
the specified Index Maturity as published in Composite Quotations under the
heading "Commercial Paper". If by 3:00 P.M. New York City time on such
Calculation Date such rate is not yet published in either H.15(519) or Composite
Quotations, then the Commercial Paper Rate shall be the Money Market Yield of
the arithmetic mean of the offered rates as of 11:00 A.M., New York City time,
on that Commercial Paper 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 specified Index Maturity placed for an
industrial issuer whose bond rating is "AA", or the equivalent, from a
nationally recognized rating agency; provided, however, that if the dealers
selected as aforesaid by the Calculation Agent are not quoting offered rates as
mentioned in this sentence, the Commercial Paper Rate will be the Commercial
Paper Rate in effect on such Commercial Paper Interest Determination Date.
"Money Market Yield" shall be a yield 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 Federal Funds Rate. If the Base Rate, as indicated on
page one hereof, is, or is calculated by reference to, the Federal Funds Rate,
unless otherwise specified on page one hereof, the "Federal Funds Rate" with
respect to each Interest Reset Date will be determined by the Calculation Agent
as of the second Business Day prior to such Interest Reset Date (a "Federal
Funds Interest Determination Date"), and shall be the rate on that date for
Federal Funds as published in H.15(519) under the heading "Federal Funds
(Effective)" or, if not so published
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by 9:00 A.M., New York City time, on the Calculation Date pertaining to such
Federal Funds Interest Determination Date, the Federal Funds Rate will be the
rate on such Federal Funds Interest Determination Date as published in Composite
Quotations under the heading "Federal Funds/Effective Rate". If such rate is not
so published by 3:00 P.M., New York City time, on the Calculation Date
pertaining to such Federal Funds Interest Determination Date, the Federal Funds
Rate for such Federal Funds Reset Date will be calculated by the Calculation
Agent and will be the arithmetic mean of the rates for the last transaction in
overnight Federal Funds arranged by three leading brokers of Federal Funds
transactions in The City of New York selected by the Calculation Agent as of
9:00 A.M., New York City time, on such Federal Funds Interest Determination
Date; provided, however, that if the brokers selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, the Federal
Funds Rate will be the Federal Funds Rate in effect on such Federal Funds
Interest Determination Date.
Determination of LIBOR. If the Base Rate, as indicated on page one hereof,
is, or is calculated by reference to, LIBOR, unless otherwise specified on page
one hereof, "LIBOR" for each Interest Reset Date will be determined by the
Calculation Agent in accordance with the following provisions:
(i) With respect to an Interest Determination Date relating to a
LIBOR Note or any Floating Rate Note for which the interest rate is
determined with reference to LIBOR (a "LIBOR" Interest Determination
Date"), LIBOR will be either: (a) if "LIBOR Reuters" is specified on page
one hereof, the arithmetic mean of the offered rates (unless the specified
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 Index
Currency having the Index Maturity designated on page one hereof,
commencing on the second London Business Day immediately following such
LIBOR Interest Determination Date, that appear on the Designated LIBOR
Page specified on page one hereof, as of 11:00 A.M. London time, on such
LIBOR Interest Determination Date, if at least two such offered rates
appear (unless, as aforesaid, only a single rate is required) on such
Designated LIBOR Page, or (b) if "LIBOR Telerate" is specified on page one
hereof or if neither "LIBOR Reuters" nor "LIBOR Telerate" is specified as
the method for calculating LIBOR, the rate for deposits in the Index
Currency having the Index Maturity designated on page one hereof,
commencing on the second London Business Day immediately following such
LIBOR Interest Determination Date that appears on the Designated LIBOR
Page specified on page one hereof as of 11:00 A.M., London time, on such
LIBOR Interest Determination Date. If fewer than two such offered rates
appear, or if no such rate appears, as applicable, LIBOR in respect of the
related LIBOR Interest Determination Date will be determined in accordance
with 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 applicable Designated LIBOR Page as specified in clause (i)
above, the Calculation Agent will 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 Index Currency for the period of
the Index Maturity designated on page one hereof, commencing on the second
London Business Day immediately following such LIBOR Interest
Determination 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 such Index Currency in such market at such time. If
at least two such quotations are provided, LIBOR determined on such LIBOR
Interest Determination Date will the arithmetic mean of such quotations.
If fewer than two quotations are provided, LIBOR determined 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 Index Currency to leading European banks, having the Index
Maturity designated on page one hereof and in a principal amount that is
representative for a single transaction in such Index 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 will be LIBOR in
effect on such LIBOR Interest Determination Date.
"Index Currency" means the currency (including composite currencies)
specified on page one hereof as the currency for which LIBOR shall be
calculated. If no such currency is specified on page one hereof, the Index
Currency shall be United States dollars.
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"Designated LIBOR Page" means either (a) if "LIBOR Reuters" is specified
on page one hereof, the display on the Reuters Monitor Money Rates Service for
the purpose of displaying the London interbank rates of major banks for the
applicable Index Currency, or (b) if "LIBOR Telerate" is specified on page one
hereof or neither "LIBOR Reuters" nor "LIBOR Telerate" is specified as the
method for calculating LIBOR, the display on the Dow Jones Telerate Service for
the purpose of displaying the London interbank rates of major banks for the
applicable Index Currency.
"Principal Financial Center" will generally be the capital city of the
country of the specified Index Currency, except that with respect to United
States dollars, Deutsche Marks, Dutch Guilders, Italian Lire, Swiss Francs and
ECUs, the Principal Financial Center shall be The City of New York, Frankfurt,
Amsterdam, Milan, Zurich and Luxembourg, respectively.
Determination of Prime Rate. If the Base Rate, as indicated on page one
hereof, is, or is calculated by reference to, the Prime Rate, unless otherwise
specified on page one hereof, the "Prime Rate" with respect to each Interest
Reset Date will be determined by the Calculation Agent as of the second Business
Day prior to such Interest Reset Date (a "Prime Interest Determination Date")
and shall be the rate set forth on such date in H.15(519) under the heading
"Bank Prime Loan", or if not so published prior to 9:00 A.M., New York City
time, on the Calculation Date pertaining to such Prime Interest Determination
Date, then the Prime Rate will be determined by the Calculation Agent and will
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 rates as in effect for that Prime Interest
Determination Date. If fewer than four such rates but more than one such rate
appear on the Reuters Screen USPRIME1 Page for the Prime Interest Determination
Date, the Prime Rate will be determined by the Calculation Agent and will be the
arithmetic mean of the prime rate 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 Interest Determination Date by four major money center banks in The City
of New York selected by the Calculation Agent from a list approved by the
Company. If fewer than two such rates appear on the Reuters Screen USPRIME1
Page, the Prime Rate will be determined by the Calculation Agent on the basis of
the rates furnished in The City of New York by the appropriate number of
substitute banks or trust companies organized and doing business under the laws
of the United States, or any state thereof, having total equity capital of at
least U.S. $500,000,000 and being subject to supervision or examination by
Federal or State authority, selected by the Calculation Agent from a list
approved by the Company to provide such rate or rates; provided, however, that
if the banks selected as aforesaid are not quoting as mentioned in this
sentence, the Prime Rate will be the Prime Rate in effect on such Prime Interest
Determination Date. "Reuters Screen USPRIME1 Page" means the display designated
as page "USPRIME1" on the Reuters Monitor Money Rates Service (or such other
page as may replace the USPRIME1 page on that service for the purpose of
displaying prime rates or base lending rates of major United States banks).
Determination of Treasury Rate. If the Base Rate, as indicated on page one
hereof, is, or is calculated by reference to the Treasury Rate, unless otherwise
specified on page one hereof, the "Treasury Rate" for each Interest Reset Date
will be the rate for the auction held on the Treasury Rate Determination Date
(as hereinafter defined) of direct obligations of the United States ("Treasury
bills") having the Index Maturity, as indicated on page one hereof, as published
in H.15(519) under the heading, "U.S. Government Securities - Treasury Bills -
Auction Average (Investment)", or, if not so published by 9:00 A.M., New York
City time, on the Calculation Date pertaining to such Treasury Rate
Determination Date, the auction average rate (expressed as a bond equivalent
yield, rounded to the nearest one one-hundredth of a percent, with five
one-thousandths of a percent rounded upward, on the basis of a year of 365 or
366 days, as applicable, and applied on a daily basis) as announced by the
United States Department of the Treasury. In the event that the results of the
auction of Treasury bills having the applicable Index Maturity designated on
page one hereof are not published or reported as provided above by 3:00 P.M.,
New York City time, on such Calculation Date or if no such auction is held on
such Treasury Rate Determination Date, then the Treasury Rate shall be
calculated by the Calculation Agent and shall be a yield to maturity (expressed
as a bond equivalent yield, rounded to the nearest one one-hundredth of a
percent, with five one-thousandths of a percent rounded upward, 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 Determination Date, of three
leading primary United States government securities dealers selected by the
8
<PAGE>
Calculation Agent for the issue of Treasury bills with a remaining maturity
closest to the specified Index Maturity; provided, however, that if the dealers
selected as aforesaid by the Calculation Agent are not quoting as mentioned in
this sentence, the Treasury Rate for such Interest Reset Date will be the
Treasury Rate in effect on such Treasury Rate Determination Date.
The "Treasury Rate Determination Date" for any Interest Reset Date will be
the day of the week in which such Interest Reset Date falls on which Treasury
bills would normally be auctioned, but in no event shall the Treasury Rate
Determination Date be after the related Interest Reset Date. 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 such auction may be held on the preceding Friday. If, as the result of a
legal holiday, an auction is so held on the preceding Friday, such Friday will
be the Treasury Rate Determination Date pertaining to the Interest Reset Date
occurring in the next succeeding week. If no auction is held in any week (or on
the preceding Friday), the Treasury Rate Determination Date shall be the Monday
of the week in which the Interest Reset Date falls.
Determination of 11th District Cost of Funds Rate. If the Base Rate, as
indicated on page one hereof, is, or is calculated with reference to, the 11th
District Cost of Funds Rate, unless otherwise specified on page one hereof, the
"11th District Cost of Funds Rate", with respect to any related Interest
Determination Date, will be determined by the Calculation Agent and shall be the
rate equal to the monthly weighted average cost of funds for the calendar month
immediately preceding the month in which such Interest Determination Date falls,
as set forth under the caption "11th District" on Telerate Page 7058 as of 11:00
A.M., San Francisco time, on such Interest Determination Date. If such rate does
not appear on Telerate Page 7058 on any related Interest Determination Date, the
11th District Cost of Funds Rate for such Interest Determination Date shall be
the monthly weighted average cost of funds paid by member institutions of the
11th Federal Home Loan Bank District that was most recently announced (the "11th
District Cost of Funds Index") by the Federal Home Loan Bank of San Francisco
(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 such rate for the calendar month immediately
preceding such Interest Determination Date, then the 11th District Cost of Funds
Rate determined as of such Interest Determination Date will be the 11th District
Cost of Funds Rate in effect on such Interest Determination Date.
Provisions Applicable to Both Fixed Rate Notes and Floating Rate Notes:
The interest so payable on any Interest Payment Date will, subject to
certain exceptions in the Indenture hereinafter referred to, be paid to the
person in whose name this Note is registered at the close of business on the
Regular Record Date immediately preceding such Interest Payment Date or, if the
Interest Payment Date is a Maturity Date or date of redemption or repayment, to
the person in whose name this Note is registered at the close of business on the
Maturity Date or date of redemption or repayment; provided, however, that if the
Original Issue Date is between a Regular Record Date and an Interest Payment
Date or on an Interest Payment Date, interest for the period from and including
the Original Issue Date to, but excluding, the Interest Payment Date relating to
such Regular Record Date shall be paid on the next succeeding Interest Payment
Date to the person in whose name this Note is registered on the close of
business on the Regular Record Date preceding such Interest Payment Date. The
"Regular Record Date" with respect to any Interest Payment Date for Floating
Rate Notes shall be the date 15 calendar days immediately preceding such
Interest Payment Date, and for Fixed Rate Notes shall be the April 15 and
October 15 next preceding such Interest Payment Date, whether or not such date
shall be a Business Day.
This Note may be presented for payment of principal and interest in the
Specified Currency at the office or agency of the Company maintained for such
purpose in the Place of Payment as indicated above, provided, however, that
payments of interest may be made at the option of the Company by check mailed to
the address of such person entitled thereto as such address shall appear on the
Security Register of this series, except for interest payable at the Maturity
Date or upon earlier redemption or repayment which will be made in immediately
available funds upon surrender of this Note. Payments of principal (and premium,
if any) and interest, if payable in a currency other than U.S. dollars, will be
made from an account at a bank outside the United States.
9
<PAGE>
Principal (and premium, if any) and interest will be paid by the Company
in U.S. dollars based on an Exchange Rate (as defined in the Indenture), even if
this Note is denominated in a Specified Currency other than U.S. dollars;
provided, however, that if permitted as indicated on page one hereof, at the
written request of the Holder, made not later than the Regular Record Date or
Special Record Date, as the case may be, immediately preceding the applicable
Interest Payment Date or the fifteenth day immediately preceding the Maturity
Date or date of redemption or repayment, as the case may be, and pursuant to the
terms of the Indenture, payments of principal (and premium, if any) and interest
in respect of a Note denominated in a Specified Currency other than U.S. dollars
shall be paid in the Specified Currency and otherwise pursuant to the terms of
the Indenture, and any costs associated with such conversion will be borne by
the Holder. If this Note is denominated in a Specified Currency other then U.S.
dollars on page one hereof, the amount of U.S. dollar payment will be determined
by a New York clearing house bank designated by the Company (the "Exchange Rate
Agent") based on the quotation for such Specified Currency appearing at
approximately 11:00 a.m., New York City time, on the second Business Day
preceding the applicable date of payment, on the bank composite or
multi-contributor pages of the Reuters Monitor Foreign Exchange Service (or, if
such service is not then available to the Exchange Rate Agent, the Telerate
Monitor Foreign Exchange Service or, if neither is available, on a comparable
display or in a comparable manner as the Company and the Exchange Rate Agent
shall agree), bid by one of at least three banks (one of which may be the
Exchange Rate Agent) agreed to by the Company and the Exchange Rate Agent, which
will yield the largest number of U.S. dollars upon conversion from such
Specified Currency. If fewer than three bids are available, then such conversion
will be based on the Market Exchange Rate (as defined below) as of the second
Business Day preceding the applicable payment date or, if the Market Exchange
Rate for such date is not available, as of the most recent date on which the
Market Exchange Rate is available. If the principal of, or interest on this Note
is payable in a Specified Currency other than U.S. dollars (whether by reason of
the unavailability of such quotations or through an election by a Holder) and
such Specified Currency is not available to the Company for making payments
thereof due to the imposition of exchange controls or other circumstances beyond
the control of the Company, the Company will be entitled to satisfy its
obligations to Holders of this Note by making such payment in U.S. dollars on
the basis of the Market Exchange Rate on the second Business Day prior to such
payment date, if available, and if not so available, the exchange rate
determined in the following order: first, by the most recently available Market
Exchange Rate; second by the quotations of three (or if three are not available,
then two) recognized foreign exchange dealers (one of which may be the Exchange
Rate Agent) selected by the Exchange Rate Agent and the Company in The City of
New York or in the foreign country of issue of such currency, and third, by such
other quotations as the Company deems appropriate. If the Specified Currency is
a composite currency, payments will be an amount determined by the Exchange Rate
Agent by adding the results obtained by multiplying the number of units of each
component currency of such composite currency, as of the most recent day on
which such composite currency was used, by the most recently available Market
Exchange Rate for such component currency. Any Payment made under the
circumstances described above, where the required payment is in a Specified
Currency other than U.S. dollars or any payment made in the Specified Currency,
will not constitute an Event of Default under the Indenture. "Market Exchange
Rate" means the noon buying rate for cable transfers in New York City as
determined by the Federal Reserve Bank of New York for such Specified Currency.
"Business Day" means (i) with respect to Notes which are not denominated
in European Currency Units ("ECUs"), any day other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which banking institutions are
authorized or obligated by law, regulation or executive order to close in either
The City of New York or (A) with respect to Notes denominated in a Specified
Currency other than U.S. Dollars, in the city as specified by Fleet pursuant to
the applicable Indenture and (B) with respect to LIBOR Notes, is also a "London
Business Day" or (ii) with respect to Notes which are denominated in ECUs, any
day other than a Saturday or Sunday, that is neither a legal holiday nor a day
on which banking institutions are authorized or obligated by law, regulation or
executive order to close in either the City of New York or any day that is not
designated as an ECU Non-Settlement Day by the ECU Banking Association or
otherwise generally regarded in the ECU interbank market as a day on which
payments in ECUs shall not be made. "London Business Day" means any day (i) if
the Index Currency as specified on page one hereof is other than ECU, on which
dealings in such Index Currency are transacted in the London interbank market or
(ii) if the Index Currency is ECU, that is not designated as an ECU
Non-Settlement Day by the ECU Banking Association or otherwise generally
regarded in the ECU interbank market as a day on which payments in ECUs shall
not be made.
10
<PAGE>
In case an Event of Default (as defined in the Indenture) with respect to
Notes of this series shall occur and be continuing, the principal amount (or, if
the Note is an Original Issue Discount Note, such lesser portion of the
principal amount as may be applicable) of the Notes of this series may be
declared due and payable, in the manner and with the effect provided in the
Indenture. If this Note is an Original Issue Discount Note (as defined below),
in the event of an acceleration of the Maturity hereof, the amount payable to
the Holder of this Note upon such acceleration will be determined by this Note
but will be an amount less than the amount payable at the Maturity of the
principal of this Note. An "Original Issue Discount Note" is a Note, including
any zero-coupon note, which has a stated redemption price at maturity that
exceeds its Issue Price by at least 0.25% of its principal amount, multiplied by
the number of full years from the Original Issue Date to the Maturity Date for
such Note, and any other Note designated by the Company as issued with original
issue discount for United States Federal income tax purposes.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company with the consent of the
Holders of 66 2/3% in aggregate principal amount of the Outstanding Securities
of each series to be affected. The Indenture also contains provisions permitting
the Holders of specified percentages in aggregate principal amount of the
Outstanding Securities of each series, on behalf of the Holders of all
Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the 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 any notation of such consent
or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (premium, if any) and
interest on this Note, at the times, places and rate and in the coin or
currency, herein prescribed.
The Notes of this series are issued in fully registered form without
coupons. Notes of this series denominated in U.S. dollars (as indicated on page
one hereof) will be issued in denominations of $1,000 or any amount in excess
thereof which is an integral multiple thereof. Notes of this series denominated
in a Specified Currency other than U.S. dollars (as indicated on page one
hereof) will be issued in the Authorized Denomination as indicated on page one
hereof.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note may be registered on the Security Register
of this series upon surrender of this Note for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, State of New York, duly endorsed by or accompanied by, a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder hereof or his attorney duly authorized in
writing, and thereupon a new Note or Notes of this series of authorized
denomination and for the same aggregate principal amount will be issued to the
designated transferee or transferees.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment for registration of transfer of this Note, the
Company, the Trustee, and any Agent of the Company or the Trustee may treat the
person in whose name this Note is registered as the owner of this Note for all
purposes, whether or not this Note be overdue, and neither the Company nor the
Trustee nor any such Agent shall be affected by any notice to the contrary.
If so specified on page one hereof, this Note will be redeemable at the
Company's option on a date or dates specified prior to maturity at a price or
prices, each set forth on page one hereof, together with accrued interest to the
date of redemption. This Note will not be subject to any sinking fund. If so
redeemable, the Company may redeem this Note either in whole or from time to
time in part, upon not less than 30, nor more than 60, days' notice.
11
<PAGE>
If less than all of the Notes with like tenor and terms are to be redeemed, the
Notes to be redeemed shall be selected by the applicable Note Registrar by such
method as such Note Registrar shall deem fair and appropriate.
The Company may specify that this Note will be repayable at the option of
the Holder on a date or dates specified prior to maturity at a price or prices
set forth on page one hereof, together with accrued interest to the date of
repayment. In order for this Note to be repaid, the Paying Agent must receive at
least 30, but not more than 45, days, prior to the repayment date (i) this Note
with the form entitled "Option to Elect Repayment" at the end of this Note duly
completed or (ii) a telegram, telex, facsimile transmission or a letter from a
member of a national securities exchange of the National Association of
Securities Dealers, Inc. or a commercial bank or trust company in the United
States of America setting forth the name of the Holder of this Note, a statement
that the option to elect repayment is being exercised thereby and a guarantee
that this Note to be repaid with the form entitled "Option to Elect Repayment"
at the end of this Note duly completed will be received by the Paying Agent not
less than five Business Days after the date of such telegram, telex, facsimile
transmission or letter and such Note and form duly completed are received by the
Paying Agent by such fifth Business Day. Exercise of the repayment option by the
Holder of this Note shall be irrevocable. The repayment option may be exercised
by the Holder of this Note for less then the entire principal amount of this
Note provided that the principal amount of this Note remaining outstanding after
repayment is an authorized denomination.
The Company may at any time purchase this Note at any price in the open
market or otherwise. Notes so purchased by the Company may be held or resold or,
at the discretion of the Company, may be surrendered to the Trustee for
cancellation.
By acceptance of this Note, the holder hereof agrees to be bound by the
provisions of the Indenture. Terms used herein which are defined in the
Indenture shall have the respective meanings assigned thereto in the Indenture.
This Note shall not be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been signed by or on behalf
of the Trustee under the Indenture.
12
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION FLEET FINANCIAL GROUP, INC.
This is one of the Securities of
the series provided for under the
within-mentioned Indenture.
By
-------------------------------------
THE FIRST NATIONAL BANK OF CHICAGO, Chairman and Chief Executive
as Trustee Officer
By By
---------------------------------- -------------------------------------
Authorized Officer Secretary
13
<PAGE>
[TO BE DELETED IF NOTE ISSUED AS GLOBAL BOOK-ENTRY NOTE]
ABBREVIATIONS
The following abbreviations, when used in the inscription on page one of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of
survivorship and not as tenant
in common
UNIF GIFT MIN ACT - ______ Custodian ________
(Cust) (Minor)
under Uniform Gifts to Minors Act
---------------------------
(State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
(Name and address of assignee, including zip code,
must be printed or typewritten)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
the within Note, and all rights thereunder, hereby irrevocably constituting and
appointing _______________________________ Attorney to transfer said Note on the
books of the within Company, with full power of substitution in the premises.
Dated:
-------------------------- --------------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as it
appears upon page one of the within
Note in every particular, without
alteration or enlargement or any
change whatever and must be
guaranteed by a commercial bank or
trust company having its principal
office or a correspondent in The
City of New York or by a member of
the New York Stock Exchange.
14
<PAGE>
[TO BE DELETED UNLESS HOLDER HAS OPTION TO ELECT REPAYMENT]
REGISTRAR, PAYING AGENTS AND TRANSFER AGENT
REGISTRAR AND PAYING AGENT
(subject to change)
The First National Bank of Chicago
1 North State Street
9th Floor
Chicago, IL 60602
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Company to
repay the within Note (or portion hereof specified below) pursuant to its terms
at a price equal to the applicable Repayment Price thereof together with
interest to the Repayment Date, to the undersigned
-------------------------------------------------
-------------------------------------------------
-------------------------------------------------
-------------------------------------------------
(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within note is to be
repaid, specify the portion thereof which the Holder elects to have repaid:
_______________ : and specify the denomination or denominations (which shall be
in authorized denominations) of the Notes to be issued to the Holder for the
portion of the within Note not being repaid (in the absence of any such
specification, one such Note will be issued for the portion not being repaid):
___________________________
Date Signature
-------------- ---------------------
---------------------
ABBREVIATIONS
The following abbreviations, when used in the instruction 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
TEN ENT - as tenants by the entirety
JT TEN- as joint tenants with right of survivorship and not as tenants
in common
UNIF GIFT MIN ACT - ___________ Custodian for ___________
(Cust) (Minor)
Under Uniform Gifts to Minors Act
---------------------------------------------
(State)
Additional abbreviations may be used though not in the above list.
15
Exhibit 4(b)
REGISTERED REGISTERED
IF APPLICABLE, THE "TOTAL AMOUNT OF OID", "YIELD TO MATURITY" AND "INITIAL
ACCRUAL PERIOD OID" (COMPUTED UNDER THE APPROXIMATE METHOD) BELOW WILL BE
COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE FEDERAL INCOME TAX ORIGINAL
ISSUE DISCOUNT ("OID") RULES.
THIS NOTE IS NOT A SAVINGS ACCOUNT, DEPOSIT OR OTHER OBLIGATION OF ANY BANK OR
NONBANK SUBSIDIARY OF FLEET FINANCIAL GROUP, INC. AND IS NOT INSURED BY THE
FEDERAL DEPOSIT INSURANCE CORPORATION, BANK INSURANCE FUND OR ANY OTHER
GOVERNMENT AGENCY.
CUSIP PRINCIPAL AMOUNT:
NO. M -
FLEET FINANCIAL GROUP, INC.
MEDIUM-TERM NOTE, SERIES M
SUBORDINATED
Issue Price: % Maturity Date:
Original Issue Date: Index Maturity:
__ Fixed Rate - Interest Rate: % Total Amount of OID:
__ Floating Rate -
Initial Interest Rate: % Yield to Maturity: %
Base Rate: Initial Accrual Period OID:
__ CD Rate Specified Currency (if other
than U.S. dollars):
__ CMT Rate
__ Designated CMT Telerate Page:
__ Designated CMT Maturity Index:
__ Commercial Paper Rate Option to Receive Payments in
Specified Currency (non-U.S.
dollar denominated Note):
__ Federal Funds Rate
1
<PAGE>
__ LIBOR
__ Yes __ No
__ LIBOR Reuters
__ LIBOR Telerate
Index Currency:
__ Prime Rate Place of Payment:
__ Treasury Rate
__ 11th District Cost of Funds Rate
__ Other:
Spread (+/-):
Spread Multiplier: % Redemption Provisions:
Maximum Interest Rate: %
Minimum Interest Rate: %
Initial Interest Reset Date:
Interest Reset Dates:
Interest Payment Dates: Other Terms:
Interest Determination Dates:
Authorized Denomination
(only if non-U.S. dollar denominated Note):
Calculation Agent:
Interest Payment Period:
Fleet Financial Group. Inc., a Rhode Island corporation (herein called the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
____________________________________________________ , or registered assigns,
the Principal Amount specified above on the Maturity Date specified above and to
pay to the registered holder hereof interest on said Principal Amount at a rate
per annum specified above and upon the terms provided under either the heading
"Fixed Rate Note" or "Floating Rate Note".
This Note is one of a duly authorized issue of notes of the Company
(herein referred to as the "Notes"), all issued or to be issued in one or more
series under an Indenture, dated as of October 1, 1992, as supplemented by a
2
<PAGE>
First Supplemental Indenture dated as of November 30, 1992 (as supplemented,
herein referred to as the "Indenture"), between the Company and The First
National Bank of Chicago, as trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Trustee, the Company and the Holders of the Notes and of the terms upon
which the Notes are, and are to be, authenticated and delivered. The Notes of
this series are limited (except as otherwise provided in the Indenture) to the
aggregate principal amount established from time to time by the Board of
Directors of the Company. The Notes of this series may be issued at various
times with different maturity dates and different principal repayment
provisions, may bear interest at different rates and may otherwise vary, all as
provided in the Indenture. The Notes of this series may be subject to redemption
or entitled to repayment at the option of the Holder thereof, in both cases upon
notice and in accordance with the provisions of the Indenture and as indicated
on page one hereof. The Company may defease the Notes of this series in
accordance with the provisions of the Indenture.
Upon any distribution of assets of the Company upon dissolution, winding
up, liquidation or reorganization, the payment of the principal of, premium, if
any, and interest on, this Note is to be subordinated in right of payment to the
extent provided in the Indenture to the prior payment in full of all Senior
Indebtedness and Other Financial Obligations of the Company (each as defined in
the Indenture). Each Holder of this Note, by the acceptance thereof, agrees to
and shall be bound by such provisions of the Indenture.
Provisions Applicable to Fixed Rate Notes Only:
If the "Fixed Rate" line on page one of this Note is checked, the Company
will pay interest semiannually on May 1 and November 1 of each year (each an
"Interest Payment Date") and on the Maturity Date or upon earlier redemption or
repayment to the person to whom principal is payable. Interest shall accrue from
the Original Issue Date, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for on this Note (or any Predecessor
Note) to, but excluding, the next following Interest Payment Date, Maturity
Date, or date of redemption or repayment, as the case may be. Interest on Fixed
Rate Notes will be computed on the basis of a 360-day year consisting of twelve
30-day months.
If any Interest Payment Date or the Maturity Date (or the date of
redemption or repayment) of a Fixed Rate Note falls on a day that is not a
Business Day (defined below), the payment will be made on the next Business Day
as if it were made on the date such payment was due, and no interest will accrue
on the amount so payable for the period from and after such Interest Payment
Date or the Maturity Date (or the date of redemption or repayment), as the case
may be.
Provisions Applicable to Floating Rate Notes Only:
If the "Floating Rate" line on page one of this Note is checked, the
Company will pay interest on the Interest Payment Dates shown on page one at the
Initial Interest Rate shown on page one until the first Interest Reset Date
shown on page one following the Original Issue Date shown above and thereafter
at a rate determined in accordance with the provisions hereinafter set forth
under the headings "Determination of CD Rate", "Determination of CMT Rate",
"Determination of Commercial Paper Rate", "Determination of Federal Funds Rate",
"Determination of LIBOR", "Determination of Prime Rate", "Determination of
Treasury Rate" or "Determination of 11th District Cost of Funds Rate", depending
on whether the Base Rate is the CD Rate, the CMT Rate, the Commercial Paper
Rate, the Federal Funds Rate, LIBOR, the Prime Rate, the Treasury Rate, the 11th
District Cost of Funds Rate or other Base Rate, as indicated on page one.
An interest payment shall be the amount of interest accrued from and
including the Original Issue Date, or from and including the last Interest
Payment Date to which interest has been paid, to, but excluding, the next
following Interest Payment Date, Maturity Date, or date of redemption or
repayment, as the case may be (an "Interest Period"). If the "Maximum Interest
Rate" on page one is checked, the Floating Rate Note is subject to a maximum
limitation on the rate of interest which may accrue during any Interest Period.
If the "Minimum Interest
3
<PAGE>
Rate" line is checked, the Floating Rate Note is subject to a minimum limitation
on the rate of interest which may accrue during any Interest Period.
If any Interest Payment Date for any Floating Rate Note would fall on a
day that is not a Business Day with respect to such Note, such Interest Payment
Date will be the following day that is a Business Day with respect to such Note,
except that, in the case of a LIBOR Note, if such Business Day is in the next
succeeding calendar month, such Interest Payment Date will be the immediately
preceding day that is a Business Day with respect to such LIBOR Note. If the
Maturity Date (or date of redemption or repayment) of any Floating Rate Note
would fall on a day that is not a Business Day, the payment of interest and
principal (and premium, if any) may be made on the next succeeding Business Day,
and no interest on such payment will accrue for the period from and after the
Maturity Date (or the date of redemption or repayment).
Commencing with the first Interest Reset Date specified on page one hereof
following the Original Issue Date, the rate at which interest on this Note is
payable shall be adjusted daily, weekly, monthly, quarterly, semi-annually or
annually as shown on page one hereof under "Interest Reset Dates". The interest
rate for each Interest Reset Date shall be the Base Rate (as shown on page one
hereof and described below) applicable to such Interest Reset Date, plus or
minus the Spread (defined below), if any, and/or multiplied by the Spread
Multiplier (defined below), if any (each as indicated on page one hereof);
provided, however, that the interest rate in effect for the period from the
Issue Date to the first Interest Reset Date will be the Initial Interest Rate.
The "Spread" is the number of basis points (one basis point equals
one-hundredth of a percentage point) specified on page one hereof as being
applicable to the interest rate for such Floating Rate Note, and the "Spread
Multiplier" is the percentage specified on page one hereof as being applicable
to the interest rate for such Floating Rate Note. Both a Spread and/or a Spread
Multiplier may be applicable to the Interest Rate for a particular Floating Rate
Note, as set forth on page one hereof.
Each such adjusted rate shall be applicable on and after the Interest
Reset Date to which it relates but not including the next succeeding Interest
Reset Date. If any Interest Reset Date is a day that is not a Business Day, such
Interest Reset Date shall be postponed to the next day that is a Business Day,
except that if the rate of interest on this Note shall be determined by
reference to LIBOR and such Business Day is in the next succeeding calendar
month, such Interest Reset Date shall be the immediately preceding Business Day.
Subject to applicable provisions of law (including usury laws) and except as
specified on this Note, on each Interest Reset Date, the rate of interest on
this Note shall be the rate determined in accordance with the provisions of the
applicable heading below.
With respect to a Floating Rate Note, accrued interest shall be calculated
by multiplying the principal amount of such Floating Rate Note by an accrued
interest factor. Such accrued interest factor will be computed by adding the
interest factors calculated for each day in the Interest Period or from the last
date from which accrued interest is being calculated. The interest factor for
each such day is computed by dividing the interest rate applicable to such day
by 360, in the cases of CD Rate Notes, Commercial Paper Rate Notes, Federal
Funds Rate Notes, LIBOR Notes, Prime Rate Notes and 11th District Cost of Funds
Notes or by the number of days in the year, in the cases of CMT Rate Notes and
Treasury Rate Notes. The interest rate applicable to any day that is an Interest
Reset Date will be the interest rate effective on such Interest Reset Date. The
interest rate applicable to any other day will be the interest rate for the
immediately preceding Interest Reset Date (or, if none, the Initial Interest
Rate, as shown on page one).
The "Calculation Date", where applicable, pertaining to an Interest
Determination Date will be the earlier of (i) the tenth calendar day after such
Interest Determination Date or, if any such day is not a Business Day, the next
succeeding Business Day and (ii) the Business Day preceding the applicable
Interest Payment Date or the Maturity Date, as the case may be.
The First National Bank of Chicago shall be the Calculation Agent unless
another Calculation Agent is specified on page one hereof. At the request of the
Holder, the Calculation Agent will provide the interest rate then in effect and,
if determined, the interest rate which will become effective on the next
Interest Reset Date.
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Unless otherwise specified on page one hereof, all percentages resulting
from any calculation of the rate of interest on a Floating Rate Note will be
rounded, if necessary, to the nearest one hundred-thousandth of a percent
(.0000001), with five one-millionths of a percentage point rounded upward, and
all dollar amounts used in or resulting from such calculation on Floating Rate
Notes will be rounded to the nearest cent (with one-half cent being rounded
upward).
Determination of CD Rate. If the Base Rate, as indicated on page one
hereof, is, or is calculated by reference to, the CD Rate, unless otherwise
specified on page one hereof, the "CD Rate", with respect to any Interest Reset
Date will be determined by the Calculation Agent as of the second Business Day
prior to such Interest Reset Date (a "CD Interest Determination Date") and shall
be the rate on such date for negotiable certificates of deposit having the Index
Maturity designated on page one hereof (the "Index Maturity") as published by
the Board of Governors of the Federal Reserve System in "Statistical Release
H.15(519), Selected Interest Rates" or any successor publication ("H.15(519)")
under the heading "CDs (Secondary Market)" or, if not so published by 9:00 A.M.,
New York City time, on the Calculation Date pertaining to such CD Interest
Determination Date, then the CD Rate shall be the rate on such CD Interest
Determination Date for negotiable certificates of deposit having the specified
Index Maturity as published by the Federal Reserve Bank of New York in its daily
statistical release, "Composite 3:30 P.M. Quotations for U.S. Government
Securities" or any successor publication ("Composite Quotations") under the
heading "Certificates of Deposit". If such rate is not so published by 3:00
P.M., New York City time, on such Calculation Date, then the CD Rate on such CD
Interest Determination Date will be calculated by the Calculation Agent and will
be the arithmetic mean of the secondary market offered rates as of 10:00 A.M.,
New York City time, on such CD Interest Determination Date, of three leading
nonbank dealers in negotiable U.S. dollar certificates of deposit in The City of
New York selected by the Calculation Agent for negotiable certificates of
deposit of major United States money center banks of the highest credit standing
(in the market for negotiable certificates of deposit) with a remaining maturity
closest to the specified Index Maturity in a denomination of U.S. $5,000,000;
provided, however, that if the dealers selected as aforesaid by the Calculation
Agent are not quoting as mentioned in this sentence, the CD Rate will be the CD
Rate in effect on such CD Interest Determination Date.
CD Rate Notes, like other Notes, are not deposit obligations of a bank and
are not insured by the Federal Deposit Insurance Corporation.
Determination of CMT Rate. If the Base Rate, as indicated on page one
hereof, is, or is calculated by reference to, the CMT Rate, unless otherwise
specified on page one hereof, the "CMT Rate" will be determined by the
Calculation Agent, with respect to any Interest Determination Date (a "CMT
Interest Determination Date"), and shall be the rate displayed on the Designated
CMT Telerate Page 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 for (i) if the Designated CMT Telerate
Page is 7055, the rate on such CMT Interest Determination Date and (ii) if the
Designated CMT Telerate Page is 7052, the week, or the month, as applicable,
ended immediately preceding the week in which the related CMT Interest
Determination Date occurs. If such rate is no longer displayed on the relevant
page, or is not displayed by 3:00 P.M., New York City time, on the related
Calculation Date, then the CMT Rate for such CMT Interest Determination Date
will be such treasury constant maturity rate for the Designated CMT Maturity
Index as published in the relevant 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 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 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 the relevant 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 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 closing offer
side prices as of approximately 3:30 P.M. (New York City time) on the CMT
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 ("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 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 offer side prices as of approximately 3:30 P.M. (New
York City time) on the CMT 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
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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 offer prices 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 Interest Determination Date. If two Treasury Notes with an
original maturity as described in the third preceding sentence 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 Telerate
Service on the page designated on page one 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)), for the purpose of displaying
Treasury Constant Maturities as reported in H.15(519). If no such page is
specified on page one hereof, the Designated CMT Telerate Page shall be 7052,
for the most recent week.
"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 page one hereof with respect to which the CMT Rate will be
calculated, If no such maturity is specified, the Designated CMT Maturity Index
shall be two years.
Determination of Commercial Paper Rate. If the Base Rate, as indicated on
page one hereof, is, or is calculated by reference to, the Commercial Paper
Rate, unless otherwise specified on page one hereof, the "Commercial Paper Rate"
for each Interest Reset Date will be determined by the Calculation Agent as of
the second Business Day prior to such Interest Reset Date (a "Commercial Paper
Interest Determination Date") and shall be the Money Market Yield (as defined
below) on such date of the rate for commercial paper having the Index Maturity
as indicated on page one hereof, as such rate shall be published in H.15(519)
under the caption "Commercial Paper-nonfinancial". In the event that such rate
is not published prior to 9:00 A.M. New York City time on the Calculation Date,
then the Commercial Paper Rate shall be the Money Market Yield on such
Commercial Paper Interest Determination Date of the rate for commercial paper of
the specified Index Maturity as published in Composite Quotations under the
heading "Commercial Paper". If by 3:00 P.M. New York City time on such
Calculation Date such rate is not yet published in either H.15(519) or Composite
Quotations, then the Commercial Paper Rate shall be the Money Market Yield of
the arithmetic mean of the offered rates as of 11:00 A.M., New York City time,
on that Commercial Paper 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 specified Index Maturity placed for an
industrial issuer whose bond rating is "AA", or the equivalent, from a
nationally recognized rating agency; provided, however, that if the dealers
selected as aforesaid by the Calculation Agent are not quoting offered rates as
mentioned in this sentence, the Commercial Paper Rate will be the Commercial
Paper Rate in effect on such Commercial Paper Interest Determination Date.
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"Money Market Yield" shall be a yield 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 Federal Funds Rate. If the Base Rate, as indicated on
page one hereof, is, or is calculated by reference to, the Federal Funds Rate,
unless otherwise specified on page one hereof, the "Federal Funds Rate" with
respect to each Interest Reset Date will be determined by the Calculation Agent
as of the second Business Day prior to such Interest Reset Date (a "Federal
Funds Interest Determination Date"), and shall be the rate on that date for
Federal Funds as published in H.15(519) under the heading "Federal Funds
(Effective)" or, if not so published by 9:00 A.M., New York City time, on the
Calculation Date pertaining to such Federal Funds Interest Determination Date,
the Federal Funds Rate will be the rate on such Federal Funds Interest
Determination Date as published in Composite Quotations under the heading
"Federal Funds/Effective Rate". If such rate is not so published by 3:00 P.M.,
New York City time, on the Calculation Date pertaining to such Federal Funds
Interest Determination Date, the Federal Funds Rate for such Federal Funds Reset
Date will be calculated by the Calculation Agent and will be the arithmetic mean
of the rates for the last transaction in overnight Federal Funds arranged by
three leading brokers of Federal Funds transactions in The City of New York
selected by the Calculation Agent as of 9:00 A.M., New York City time, on such
Federal Funds Interest Determination Date; provided, however, that if the
brokers selected as aforesaid by the Calculation Agent are not quoting as
mentioned in this sentence, the Federal Funds Rate will be the Federal Funds
Rate in effect on such Federal Funds Interest Determination Date.
Determination of LIBOR. If the Base Rate, as indicated on page one hereof,
is, or is calculated by reference to, LIBOR, unless otherwise specified on page
one hereof, "LIBOR" for each Interest Reset Date will be determined by the
Calculation Agent in accordance with the following provisions:
(i) With respect to an Interest Determination Date relating to a
LIBOR Note or any Floating Rate Note for which the interest rate is
determined with reference to LIBOR (a "LIBOR" Interest Determination
Date"), LIBOR will be either: (a) if "LIBOR Reuters" is specified on page
one hereof, the arithmetic mean of the offered rates (unless the specified
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 Index
Currency having the Index Maturity designated on page one hereof,
commencing on the second London Business Day immediately following such
LIBOR Interest Determination Date, that appear on the Designated LIBOR
Page specified on page one hereof, as of 11:00 A.M. London time, on such
LIBOR Interest Determination Date, if at least two such offered rates
appear (unless, as aforesaid, only a single rate is required) on such
Designated LIBOR Page, or (b) if "LIBOR Telerate" is specified on page one
hereof or if neither "LIBOR Reuters" nor "LIBOR Telerate" is specified as
the method for calculating LIBOR, the rate for deposits in the Index
Currency having the Index Maturity designated on page one hereof,
commencing on the second London Business Day immediately following such
LIBOR Interest Determination Date that appears on the Designated LIBOR
Page specified on page one hereof as of 11:00 A.M., London time, on such
LIBOR Interest Determination Date. If fewer than two such offered rates
appear, or if no such rate appears, as applicable, LIBOR in respect of the
related LIBOR Interest Determination Date will be determined in accordance
with 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 applicable Designated LIBOR Page as specified in clause (i)
above, the Calculation Agent will 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 Index Currency for the period of
the Index Maturity designated on page one hereof, commencing on the second
London Business Day immediately following such LIBOR Interest
Determination 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 such Index Currency in such market at such time. If
at least two such quotations are provided, LIBOR determined on such LIBOR
Interest Determination Date will the arithmetic mean of such quotations.
If fewer than two quotations are provided, LIBOR determined 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 Index Currency to leading European banks, having the Index
Maturity designated on page one hereof and in a principal amount that is
representative for a single
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transaction in such Index 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 will be LIBOR in effect on such LIBOR Interest
Determination Date.
"Index Currency" means the currency (including composite currencies)
specified on page one hereof as the currency for which LIBOR shall be
calculated. If no such currency is specified on page one hereof, the Index
Currency shall be United States dollars.
"Designated LIBOR Page" means either (a) if "LIBOR Reuters" is specified
on page one hereof, the display on the Reuters Monitor Money Rates Service for
the purpose of displaying the London interbank rates of major banks for the
applicable Index Currency, or (b) if "LIBOR Telerate" is specified on page one
hereof or neither "LIBOR Reuters" nor "LIBOR Telerate" is specified as the
method for calculating LIBOR, the display on the Dow Jones Telerate Service for
the purpose of displaying the London interbank rates of major banks for the
applicable Index Currency.
"Principal Financial Center" will generally be the capital city of the
country of the specified Index Currency, except that with respect to United
States dollars, Deutsche Marks, Dutch Guilders, Italian Lire, Swiss Francs and
ECUs, the Principal Financial Center shall be The City of New York, Frankfurt,
Amsterdam, Milan, Zurich and Luxembourg, respectively.
Determination of Prime Rate. If the Base Rate, as indicated on page one
hereof, is, or is calculated by reference to, the Prime Rate, unless otherwise
specified on page one hereof, the "Prime Rate" with respect to each Interest
Reset Date will be determined by the Calculation Agent as of the second Business
Day prior to such Interest Reset Date (a "Prime Interest Determination Date")
and shall be the rate set forth on such date in H.15(519) under the heading
"Bank Prime Loan", or if not so published prior to 9:00 A.M., New York City
time, on the Calculation Date pertaining to such Prime Interest Determination
Date, then the Prime Rate will be determined by the Calculation Agent and will
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 rates as in effect for that Prime Interest
Determination Date. If fewer than four such rates but more than one such rate
appear on the Reuters Screen USPRIME1 Page for the Prime Interest Determination
Date, the Prime Rate will be determined by the Calculation Agent and will be the
arithmetic mean of the prime rate 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 Interest Determination Date by four major money center banks in The City
of New York selected by the Calculation Agent from a list approved by the
Company. If fewer than two such rates appear on the Reuters Screen USPRIME1
Page, the Prime Rate will be determined by the Calculation Agent on the basis of
the rates furnished in The City of New York by the appropriate number of
substitute banks or trust companies organized and doing business under the laws
of the United States, or any state thereof, having total equity capital of at
least U.S. $500,000,000 and being subject to supervision or examination by
Federal or State authority, selected by the Calculation Agent from a list
approved by the Company to provide such rate or rates; provided, however, that
if the banks selected as aforesaid are not quoting as mentioned in this
sentence, the Prime Rate will be the Prime Rate in effect on such Prime Interest
Determination Date. "Reuters Screen USPRIME1 Page" means the display designated
as page "USPRIME1" on the Reuters Monitor Money Rates Service (or such other
page as may replace the USPRIME1 page on that service for the purpose of
displaying prime rates or base lending rates of major United States banks).
Determination of Treasury Rate. If the Base Rate, as indicated on page one
hereof, is, or is calculated by reference to the Treasury Rate, unless otherwise
specified on page one hereof, the "Treasury Rate" for each Interest Reset Date
will be the rate for the auction held on the Treasury Rate Determination Date
(as hereinafter defined) of
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direct obligations of the United States ("Treasury bills") having the Index
Maturity, as indicated on page one hereof, as published in H.15(519) under the
heading, "U.S. Government Securities - Treasury Bills - Auction Average
(Investment)", or, if not so published by 9:00 A.M., New York City time, on the
Calculation Date pertaining to such Treasury Rate Determination Date, the
auction average rate (expressed as a bond equivalent yield, rounded to the
nearest one one-hundredth of a percent, with five one-thousandths of a percent
rounded upward, on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) as announced by the United States Department of the
Treasury. In the event that the results of the auction of Treasury bills having
the applicable Index Maturity designated on page one hereof are not published or
reported as provided above by 3:00 P.M., New York City time, on such Calculation
Date or if no such auction is held on such Treasury Rate Determination Date,
then the Treasury Rate shall be calculated by the Calculation Agent and shall be
a yield to maturity (expressed as a bond equivalent yield, rounded to the
nearest one one-hundredth of a percent, with five one-thousandths of a percent
rounded upward, 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
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 specified Index Maturity; provided, however,
that if the dealers selected as aforesaid by the Calculation Agent are not
quoting as mentioned in this sentence, the Treasury Rate for such Interest Reset
Date will be the Treasury Rate in effect on such Treasury Rate Determination
Date.
The "Treasury Rate Determination Date" for any Interest Reset Date will be
the day of the week in which such Interest Reset Date falls on which Treasury
bills would normally be auctioned, but in no event shall the Treasury Rate
Determination Date be after the related Interest Reset Date. 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 such auction may be held on the preceding Friday. If, as the result of a
legal holiday, an auction is so held on the preceding Friday, such Friday will
be the Treasury Rate Determination Date pertaining to the Interest Reset Date
occurring in the next succeeding week. If no auction is held in any week (or on
the preceding Friday), the Treasury Rate Determination Date shall be the Monday
of the week in which the Interest Reset Date falls.
Determination of 11th District Cost of Funds Rate. If the Base Rate, as
indicated on page one hereof, is, or is calculated with reference to, the 11th
District Cost of Funds Rate, unless otherwise specified on page one hereof, the
"11th District Cost of Funds Rate", with respect to any related Interest
Determination Date, will be determined by the Calculation Agent and shall be the
rate equal to the monthly weighted average cost of funds for the calendar month
immediately preceding the month in which such Interest Determination Date falls,
as set forth under the caption "11th District" on Telerate Page 7058 as of 11:00
A.M., San Francisco time, on such Interest Determination Date. If such rate does
not appear on Telerate Page 7058 on any related Interest Determination Date, the
11th District Cost of Funds Rate for such Interest Determination Date shall be
the monthly weighted average cost of funds paid by member institutions of the
11th Federal Home Loan Bank District that was most recently announced (the "11th
District Cost of Funds Index") by the Federal Home Loan Bank of San Francisco
(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 such rate for the calendar month immediately
preceding such Interest Determination Date, then the 11th District Cost of Funds
Rate determined as of such Interest Determination Date will be the 11th District
Cost of Funds Rate in effect on such Interest Determination Date.
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Provisions Applicable to Both Fixed Rate Notes and Floating Rate Notes:
The interest so payable on any Interest Payment Date will, subject to
certain exceptions in the Indenture hereinafter referred to, be paid to the
person in whose name this Note is registered at the close of business on the
Regular Record Date immediately preceding such Interest Payment Date or, if the
Interest Payment Date is a Maturity Date or date of redemption or repayment, to
the person in whose name this Note is registered at the close of business on the
Maturity Date or date of redemption or repayment; provided, however, that if the
Original Issue Date is between a Regular Record Date and an Interest Payment
Date or on an Interest Payment Date, interest for the period from and including
the Original Issue Date to, but excluding, the Interest Payment Date relating to
such Regular Record Date shall be paid on the next succeeding Interest Payment
Date to the person in whose name this Note is registered on the close of
business on the Regular Record Date preceding such Interest Payment Date. The
"Regular Record Date" with respect to any Interest Payment Date for Floating
Rate Notes shall be the date 15 calendar days immediately preceding such
Interest Payment Date, and for Fixed Rate Notes shall be the April 15 and
October 15 next preceding such Interest Payment Date, whether or not such date
shall be a Business Day.
This Note may be presented for payment of principal and interest in the
Specified Currency at the office or agency of the Company maintained for such
purpose in the Place of Payment as indicated above, provided, however, that
payments of interest may be made at the option of the Company by check mailed to
the address of such person entitled thereto as such address shall appear on the
Security Register of this series, except for interest payable at the Maturity
Date or upon earlier redemption or repayment which will be made in immediately
available funds upon surrender of this Note. Payments of principal (and premium,
if any) and interest, if payable in a currency other than U.S. dollars, will be
made from an account at a bank outside the United States.
Principal (and premium, if any) and interest will be paid by the Company
in U.S. dollars based on an Exchange Rate (as defined in the Indenture), even if
this Note is denominated in a Specified Currency other than U.S. dollars;
provided, however, that if permitted as indicated on page one hereof, at the
written request of the Holder, made not later than the Regular Record Date or
Special Record Date, as the case may be, immediately preceding the applicable
Interest Payment Date or the fifteenth day immediately preceding the Maturity
Date or date of redemption or repayment, as the case may be, and pursuant to the
terms of the Indenture, payments of principal (and premium, if any) and interest
in respect of a Note denominated in a Specified Currency other than U.S. dollars
shall be paid in the Specified Currency and otherwise pursuant to the terms of
the Indenture, and any costs associated with such conversion will be borne by
the Holder. If this Note is denominated in a Specified Currency other then U.S.
dollars on page one hereof, the amount of U.S. dollar payment will be determined
by a New York clearing house bank designated by the Company (the "Exchange Rate
Agent") based on the quotation for such Specified Currency appearing at
approximately 11:00 a.m., New York City time, on the second Business Day
preceding the applicable date of payment, on the bank composite or
multi-contributor pages of the Reuters Monitor Foreign Exchange Service (or, if
such service is not then available to the Exchange Rate Agent, the Telerate
Monitor Foreign Exchange Service or, if neither is available, on a comparable
display or in a comparable manner as the Company and the Exchange Rate Agent
shall agree), bid by one of at least three banks (one of which may be the
Exchange Rate Agent) agreed to by the Company and the Exchange Rate Agent, which
will yield the largest number of U.S. dollars upon conversion from such
Specified Currency. If fewer than three bids are available, then such conversion
will be based on the Market Exchange Rate (as defined below) as of the second
Business Day preceding the applicable payment date or, if the Market Exchange
Rate for such date is not available, as of the most recent date on which the
Market Exchange Rate is available. If the principal of, or interest on this Note
is payable in a Specified Currency other than U.S. dollars (whether by reason of
the unavailability of such quotations or through an election by a Holder) and
such Specified Currency is not available to the Company for making payments
thereof due to the imposition of exchange controls or other circumstances beyond
the control of the Company, the Company will be entitled to satisfy its
obligations to Holders of this Note by making such payment in U.S. dollars on
the basis of the Market Exchange Rate on the second Business Day prior to such
payment date, if available, and if not so available, the exchange rate
determined in the following order: first, by the most recently available Market
Exchange Rate; second by the quotations of three (or if three are not available,
then two) recognized foreign exchange dealers (one of which may be the Exchange
Rate Agent) selected by the Exchange Rate Agent and the Company in The City of
New York or in the foreign country of issue of such currency, and third, by such
other quotations as the Company deems appropriate. If the Specified Currency is
a composite currency, payments will be
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an amount determined by the Exchange Rate Agent by adding the results obtained
by multiplying the number of units of each component currency of such composite
currency, as of the most recent day on which such composite currency was used,
by the most recently available Market Exchange Rate for such component currency.
Any Payment made under the circumstances described above, where the required
payment is in a Specified Currency other than U.S. dollars or any payment made
in the Specified Currency, will not constitute an Event of Default under the
Indenture. "Market Exchange Rate" means the noon buying rate for cable transfers
in New York City as determined by the Federal Reserve Bank of New York for such
Specified Currency.
"Business Day" means (i) with respect to Notes which are not denominated
in European Currency Units ("ECUs"), any day other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which banking institutions are
authorized or obligated by law, regulation or executive order to close in either
The City of New York or (A) with respect to Notes denominated in a Specified
Currency other than U.S. Dollars, in the city as specified by Fleet pursuant to
the applicable Indenture and (B) with respect to LIBOR Notes, is also a "London
Business Day" or (ii) with respect to Notes which are denominated in ECUs, any
day other than a Saturday or Sunday, that is neither a legal holiday nor a day
on which banking institutions are authorized or obligated by law, regulation or
executive order to close in either the City of New York or any day that is not
designated as an ECU Non-Settlement Day by the ECU Banking Association or
otherwise generally regarded in the ECU interbank market as a day on which
payments in ECUs shall not be made. "London Business Day" means any day (i) if
the Index Currency as specified on page one hereof is other than ECU, on which
dealings in such Index Currency are transacted in the London interbank market or
(ii) if the Index Currency is ECU, that is not designated as an ECU
Non-Settlement Day by the ECU Banking Association or otherwise generally
regarded in the ECU interbank market as a day on which payments in ECUs shall
not be made.
In case an Event of Default (as defined in the Indenture) with respect to
Notes of this series shall occur and be continuing, the principal amount (or, if
the Note is an Original Issue Discount Note, such lesser portion of the
principal amount as may be applicable) of the Notes of this series may be
declared due and payable, in the manner and with the effect provided in the
Indenture. If this Note is an Original Issue Discount Note (as defined below),
in the event of an acceleration of the Maturity hereof, the amount payable to
the Holder of this Note upon such acceleration will be determined by this Note
but will be an amount less than the amount payable at the Maturity of the
principal of this Note. An "Original Issue Discount Note" is a Note, including
any zero-coupon note, which has a stated redemption price at maturity that
exceeds its Issue Price by at least 0.25% of its principal amount, multiplied by
the number of full years from the Original Issue Date to the Maturity Date for
such Note, and any other Note designated by the Company as issued with original
issue discount for United States Federal income tax purposes.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company with the consent of the
Holders of 66 2/3% in aggregate principal amount of the Outstanding Securities
of each series to be affected. The Indenture also contains provisions permitting
the Holders of specified percentages in aggregate principal amount of the
Outstanding Securities of each series, on behalf of the Holders of all
Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the 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 any notation of such consent
or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (premium, if any) and
interest on this Note, at the times, places and rate and in the coin or
currency, herein prescribed.
The Notes of this series are issued in fully registered form without
coupons. Notes of this series denominated in U.S. dollars (as indicated on page
one hereof) will be issued in denominations of $1,000 or any amount in excess
thereof which is an integral multiple thereof. Notes of this series denominated
in a Specified
11
<PAGE>
Currency other than U.S. dollars (as indicated on page one hereof) will be
issued in the Authorized Denomination as indicated on page one hereof.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note may be registered on the Security Register
of this series upon surrender of this Note for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, State of New York, duly endorsed by or accompanied by, a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder hereof or his attorney duly authorized in
writing, and thereupon a new Note or Notes of this series of authorized
denomination and for the same aggregate principal amount will be issued to the
designated transferee or transferees.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment for registration of transfer of this Note, the
Company, the Trustee, and any Agent of the Company or the Trustee may treat the
person in whose name this Note is registered as the owner of this Note for all
purposes, whether or not this Note be overdue, and neither the Company nor the
Trustee nor any such Agent shall be affected by any notice to the contrary.
If so specified on page one hereof, this Note will be redeemable at the
Company's option on a date or dates specified prior to maturity at a price or
prices, each set forth on page one hereof, together with accrued interest to the
date of redemption. This Note will not be subject to any sinking fund. If so
redeemable, the Company may redeem this Note either in whole or from time to
time in part, upon not less than 30, nor more than 60, days' notice. If less
than all of the Notes with like tenor and terms are to be redeemed, the Notes to
be redeemed shall be selected by the applicable Note Registrar by such method as
such Note Registrar shall deem fair and appropriate.
The Company may specify that this Note will be repayable at the option of
the Holder on a date or dates specified prior to maturity at a price or prices
set forth on page one hereof, together with accrued interest to the date of
repayment. In order for this Note to be repaid, the Paying Agent must receive at
least 30, but not more than 45, days, prior to the repayment date (i) this Note
with the form entitled "Option to Elect Repayment" at the end of this Note duly
completed or (ii) a telegram, telex, facsimile transmission or a letter from a
member of a national securities exchange of the National Association of
Securities Dealers, Inc. or a commercial bank or trust company in the United
States of America setting forth the name of the Holder of this Note, a statement
that the option to elect repayment is being exercised thereby and a guarantee
that this Note to be repaid with the form entitled "Option to Elect Repayment"
at the end of this Note duly completed will be received by the Paying Agent not
less than five Business Days after the date of such telegram, telex, facsimile
transmission or letter and such Note and form duly completed are received by the
Paying Agent by such fifth Business Day. Exercise of the repayment option by the
Holder of this Note shall be irrevocable. The repayment option may be exercised
by the Holder of this Note for less then the entire principal amount of this
Note provided that the principal amount of this Note remaining outstanding after
repayment is an authorized denomination.
The Company may at any time purchase this Note at any price in the open
market or otherwise. Notes so purchased by the Company may be held or resold or,
at the discretion of the Company, may be surrendered to the Trustee for
cancellation.
By acceptance of this Note, the holder hereof agrees to be bound by the
provisions of the Indenture. Terms used herein which are defined in the
Indenture shall have the respective meanings assigned thereto in the Indenture.
This Note shall not be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been signed by or on behalf
of the Trustee under the Indenture.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
12
<PAGE>
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION FLEET FINANCIAL GROUP, INC.
This is one of the Securities of
the series provided for under the
within-mentioned Indenture.
By
-------------------------------------
THE FIRST NATIONAL BANK OF CHICAGO, Chairman and Chief Executive
as Trustee Officer
By By
---------------------------------- -------------------------------------
Authorized Officer Secretary
13
<PAGE>
[TO BE DELETED IF NOTE ISSUED AS GLOBAL BOOK-ENTRY NOTE]
-----------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on page one of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of
survivorship and not as tenant
in common
UNIF GIFT MIN ACT - ______ Custodian ________
(Cust) (Minor)
under Uniform Gifts to Minors Act
---------------------------
(State)
Additional abbreviations may also be used though not in the above list.
-----------------
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
(Name and address of assignee, including zip code,
must be printed or typewritten)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
the within Note, and all rights thereunder, hereby irrevocably constituting and
appointing _______________________________ Attorney to transfer said Note on the
books of the within Company, with full power of substitution in the premises.
Dated:
-------------------------- --------------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as it
appears upon page one of the within
Note in every particular, without
alteration or enlargement or any
change whatever and must be
guaranteed by a commercial bank or
trust company having its principal
office or a correspondent in The
City of New York or by a member of
the New York Stock Exchange.
14
<PAGE>
[TO BE DELETED UNLESS HOLDER HAS OPTION TO ELECT REPAYMENT]
-----------------
REGISTRAR, PAYING AGENTS AND TRANSFER AGENT
REGISTRAR AND PAYING AGENT
(subject to change)
The First National Bank of Chicago
1 North State Street
9th Floor
Chicago, IL 60602
-----------------
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Company to
repay the within Note (or portion hereof specified below) pursuant to its terms
at a price equal to the applicable Repayment Price thereof together with
interest to the Repayment Date, to the undersigned
-------------------------------------------------
-------------------------------------------------
-------------------------------------------------
-------------------------------------------------
(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within note is to be
repaid, specify the portion thereof which the Holder elects to have repaid:
_______________ : and specify the denomination or denominations (which shall be
in authorized denominations) of the Notes to be issued to the Holder for the
portion of the within Note not being repaid (in the absence of any such
specification, one such Note will be issued for the portion not being repaid):
___________________________
Date Signature
-------------- ---------------------
---------------------
ABBREVIATIONS
The following abbreviations, when used in the instruction 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
TEN ENT - as tenants by the entirety
JT TEN- as joint tenants with right of survivorship and not as tenants
in common
UNIF GIFT MIN ACT - ___________ Custodian for ___________
(Cust) (Minor)
Under Uniform Gifts to Minors Act
---------------------------------------------
(State)
Additional abbreviations may be used though not in the above list.
- --------------------------------------------------------------------------------
15
