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) December 23, 1999
FLEET BOSTON CORPORATION
(Exact name of registrant as specified in its charter)
RHODE ISLAND
(State or other jurisdiction of incorporation)
1-6366 05-0341324
(Commission File Number) (IRS Employer Identification No.)
One Federal Street, Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 617-434-2200
(Former name or former address, if changed since last report)
<PAGE>
Item 5. Other Materially Important Events.
On December 23, 1999, 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 P and Subordinated Medium-Term Notes, Series Q
(the "Notes"), under Registration Statement No. 333-86829. 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,
Bear, Stearns & Company, Inc., FleetBoston Robertson Stephens Inc.,
Goldman, Sachs & Co., Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner
& Smith Incorporated, J.P. Morgan Securities Inc. and Salomon Smith
Barney Inc. Closing documents relating to the Notes were executed and
delivered on December 23, 1999.
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) Selling Agency Agreement dated December 23, 1999 between Registrant,
Bear, Stearns & Company, Inc., FleetBoston Robertson Stephens Inc.,
Goldman, Sachs & Co., Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner
& Smith Incorporated, J.P. Morgan Securities Inc. and Salomon Smith
Barney Inc.
(4)(a) Specimen certificate of the Series P Senior Medium-Term Notes
(4)(b) Specimen certificate of the Series Q Subordinated Medium-Term Notes
<PAGE>
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 BOSTON CORPORATION
Registrant
By: /s/ William C. Mutterperl
--------------------------------------------
William C. Mutterperl
Secretary
Date: January 12, 2000
Exhibit 1
Fleet Boston Corporation
U.S.$2,000,000,000
Senior Medium-Term Notes, Series P and
Subordinated Medium-Term Notes, Series Q
Due Nine Months or More
from Date of Issue
Selling Agency Agreement
December 23, 1999
New York, New York
Bear, Stearns & Co. Inc.
245 Park Avenue
New York, NY 10167
FleetBoston Robertson Stephens Inc.
100 Federal Street
Boston, MA 02110
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 Smith Barney Inc.
388 Greenwich Street
New York, NY 10013
Dear Sirs:
Fleet Boston Corporation, a Rhode Island corporation (the "Company"),
confirms its agreement with each of 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 P and Subordinated Medium-Term Notes, Series Q
(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 December 6, 1999, between the Company
and The Bank of New York (the "Senior Trustee"), as trustee (the "Senior
Indenture"). The Subordinated Notes are to be issued under an indenture dated as
of December 6, 1999, between the Company and The Bank of New York as trustee
(the "Subordinated Trustee" and, collectively with the Senior Trustee, the
"Trustee") (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 has filed with the Securities and
Exchange Commission (the "Commission") a registration statement on such
Form (Registration Number 333-86829), 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
333-62905) and which has become effective, for the registration under the
Act of securities (the "Securities"), including the Notes, in an aggregate
principal amount of $2,000,000,000. 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 (as hereinafter defined), 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, 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, except as enforcement
thereof may be limited by the receivership, conservatorship and supervisory
powers of bank regulatory agencies generally as well as bankruptcy,
insolvency, reorganization, moratorium or other laws relating to or
affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at law)
and the availability of equitable remedies, and except further as
enforcement thereof may be limited by (i) requirements that a claim with
respect to any Notes denominated other than in U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or (ii)
governmental authority to limit, delay or prohibit the making of payments
outside the Unites States 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 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 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 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 offers to purchase 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 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 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. During such period, 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 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 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; provided,
however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is
not otherwise so subject.
(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 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
reasonable 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 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 or, unless
requested by the Agents, other than by an amendment or supplement by means
of a Current Report on Form 8K filed by the Company and incorporated by
reference into the Prospectus), 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, any Vice Chairman 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,
(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 or (iv) unless requested by the
Agents, other than by an amendment or supplement by means of a Current
Report on Form 8K filed by the Company and incorporated by reference into
the Prospectus), 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 (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 (unless requested by
the Agents, other than by an amendment or supplement by means of a Current
Report on Form 8K filed by the Company and incorporated by reference into
the Prospectus), 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
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, LLP, counsel for the Company, dated the Execution Time,
to the effect that:
(i) each of the Company, Fleet National Bank ("Fleet Bank"),
BankBoston National Association ("BankBoston"), Fleet Bank, National
Association ("Fleet NA") 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 banking 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 any Subsidiary 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 of the outstanding shares of capital stock of such
Subsidiaries have been duly and validly authorized and issued and are
fully paid and (except as provided in 12 U.S.C. Section 55)
nonassessable, and, except as otherwise set forth in the Prospectus,
all outstanding shares of capital stock of 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, except
as enforcement thereof may be limited by the receivership,
conservatorship and supervisory powers of bank regulatory agencies
generally as well as bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting enforcement of
creditors' rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law) and the
availability of equitable remedies, and except further as enforcement
thereof may be limited by (i) requirements that a claim with respect
to any Notes denominated other than in U.S. dollars (or a foreign
currency or currency unit judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (ii) governmental authority
to limit, delay or prohibit the making of payments outside the United
States;
(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 in all material respects 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 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, the Trust Indenture 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 (except for such conflicts, breaches or
defaults or liens, charges or encumbrances that would not have a
material adverse effect on the condition (financial or otherwise),
earnings, business affairs or business prospects of the Company and
its subsidiaries, considered as one enterprise); 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 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, any Vice Chairman 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:
(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 or incorporated by reference in the Prospectus (exclusive of
any supplement thereto, but including documents incorporated by
reference), there has been no material adverse change in the condition
(financial or other), earnings, business or properties of the Company
and its subsidiaries considered as one enterprise, 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, but including documents incorporated by
reference).
(e) At the Execution Time, PricewaterhouseCoopers 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
(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;
(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.
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 PricewaterhouseCoopers 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 thereto may be
canceled at, or at any time prior to, the respective Closing 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 considered as one enterprise
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 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)
which occurs prior to the Closing Date.
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.
(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 statements set forth in the eighth 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 reasonably 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 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 reasonably 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
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 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 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 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 Executive Vice President, General Counsel and Secretary or such other
address as the Company may designate from time to time.
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.
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 BOSTON CORPORATION
By /s/ Authorized Signatory
--------------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date hereof.
BEAR, STEARNS & CO. INC.
By /s/ Timothy A. O'Neill
---------------------------
Name: Timothy A. O'Neill
Title: Senior Manager, Director
FLEETBOSTON ROBERTSON STEPHENS INC.
By /s/ John E.T. Crees
---------------------------
Name: John E.T. Crees
Title: Director
/s/ Goldman, Sachs & Co.
- -----------------------------
(Goldman, Sachs & Co.)
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE,
FENNER & SMITH INCORPORATED
By /s/ Diane Kenna
---------------------------
Name: Diane Kenna
Title: Authorized Signatory
J.P. MORGAN SECURITIES INC.
By /s/ Robert Post
---------------------------
Name: Robert Post
Title: Director
SALOMON SMITH BARNEY INC.
By /s/ Martha D. Bailey
---------------------------
Name: Martha D. Bailey
Title: First Vice President
<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 Bear, Stearns & Co. Inc. shall be directed to it at 245 Park
Avenue, New York, NY 10167, Attention: Medium-Term Notes
Notices to FleetBoston Robertson Stephens Inc. shall be directed to it at
100 Federal Street, Boston, MA 02110, Attention: Medium-Term Notes.
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.
Notices to Salomon Smith Barney Inc. shall be directed to it at 388
Greenwich Street, 34th Floor, New York, New York 10013, Attention of the
Medium-Term Note Department.
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 BOSTON CORPORATION AND IS NOT INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION, BANK INSURANCE FUND OR ANY OTHER GOVERNMENT
AGENCY.
CUSIP PRINCIPAL AMOUNT:
NO. P -
FLEET BOSTON CORPORATION
MEDIUM-TERM NOTE, SERIES P
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:
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:
LIBOR:
___ Yes ___ No
LIBOR Reuters:
LIBOR Telerate:
Index Currency:
Prime Rate : Place of Payment:
Treasury Rate:
Other:
Spread (+/-):
Spread Multiplier: % Redemption Provisions:
Maximum Interest Rate: %
Minimum Interest Rate: %
Initial Interest Reset Date:
Interest Reset Dates:
Interest Payment Dates: Renewable: ___ Yes ___ No
Interest Determination Dates:
Authorized Denomination Extendible: ___ Yes ___ No
(only if non-U.S. dollar
denominated Note):
Calculation Agent: Other Terms:
Interest Payment Period:
Fleet Boston Corporation, 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 of this Note (the "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 December 6, 1999 (herein referred to as the
"Indenture"), between the Company and The Bank of New York, 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.
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 15 and November 15 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 CMT Rate", "Determination of Commercial
Paper Rate", "Determination of Federal Funds Rate", "Determination of LIBOR",
"Determination of Prime Rate" or "Determination of Treasury Rate", depending on
whether the Base Rate is the CMT Rate, the Commercial Paper Rate, the Federal
Funds Rate, LIBOR, the Prime Rate, the Treasury 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 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 Commercial Paper Rate Notes, Federal Funds Rate Notes,
LIBOR Notes and Prime Rate 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 or (ii) the Business Day preceding the applicable
Interest Payment Date or the Maturity Date, as the case may be.
The Bank of New York 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 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 7051, 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 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 Bridge Telerate, Inc.
or any successor 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 3:00 P.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 H.15 Daily Update, or other
recognized electronic source used for the purpose of displaying the applicable
rate under the heading "Commercial Paper-nonfinancial". 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)" as
displayed on Bridge Telerate, Inc. or any successor service on page 120 or any
other page as may replace the applicable page on that service, or, if 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 will
be the rate on such Federal Funds Interest Determination Date as published in
H.15 Daily Update, or other recognized electronic source used for the purpose of
displaying the applicable rate 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 three 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.
"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 Bridge Telerate, Inc. or any
successor service, for the purpose of displaying the London interbank rates of
major banks for the applicable Index Currency.
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 3:00 P.M., New York City
time, on the Calculation Date pertaining to such Prime Interest Determination
Date, then the Prime Rate will be as published in H.15 Daily Update, or such
other recognized source used for the purpose of displaying the applicable rate
under the caption "Bank Prime Loan", or if not so published prior to 3:00 P.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. However, 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 on Bridge Telerate, Inc. or any successor service on page 56 or 57 or any
page as may replace page 56 or 57 under the caption, "INVESTMENT RATE", or, if
not so published by 3:00 P.M., New York City time, on the Calculation Date
pertaining to such Treasury Rate Determination Date, the Bond Equivalent Yield
of the rate for the applicable Treasury Bills as published in H.15 Daily Update,
or other recognized electronic source used for the purpose of displaying the
applicable rate, under the caption "U.S. Government Securities/Treasury
Bills/Auction High", or, if not so published by 3:00 P.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, or, if not so announced by 3:00 P.M., New York City time, on the
Calculation Date pertaining to such Treasury Rate Determination Date, the Bond
Equivalent Yield of the rate on the applicable Interest Determination Date of
Treasury Bills having the Index Maturity specified in the applicable Pricing
Supplement published in H.15(519) under the caption "U.S. Government
Securities/Treasury Bills/Secondary Market", or, if not so published by 3:00
P.M., New York City time, on the Calculation Date pertaining to such Treasury
Rate Determination Date, the rate on the applicable Interest Determination Date
of the applicable Treasury Bills as published in H.15 Daily Update, or other
recognized electronic source used for the purpose of displaying the applicable
rate, under the caption, "U.S. Government Securities/Treasury Bills/Secondary
Market." 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.
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 30 and
October 30 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 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 any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which commercial banks are authorized or
required by law, regulation or executive order to close in the City of New York;
provided, however, that, with respect to non-United States dollar-denominated
notes, the day is also not a day on which commercial banks are authorized or
required by law, regulation or executive order to close in the principal
financial center, as defined herein, of the country issuing the specified
currency or, if the specified currency is the Euro, the day is also a day on
which the Trans-European Automated Real-time Gross Settlement Express Transfer
(TARGET) System is open; provided, further, that, with respect to notes as to
which LIBOR is an applicable Interest Rate Basis, the day is also a London
business day. "London business day" means a day which commercial banks are open
for business, including dealings in the Index Currency.
"Principal financial center" means, unless otherwise specified in the
applicable pricing supplement,
(1) the capital city of the country issuing the specified currency,
except that with respect to United States dollars, Australian dollars,
Canadian dollars, South African rand and Swiss francs, the "principal
financial center" will be The City of New York, Sydney, Toronto,
Johannesburg and Zurich, respectively; or
(2) the capital city of the country to which the LIBOR currency
relates, except that with respect to United States dollars, Canadian
dollars, South African rand and Swiss francs, the "Principal Financial
Center" will be The City of New York, Toronto, Johannesburg and Zurich,
respectively.
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 before the
date of redemption. 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 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 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 specify that this Note will automatically renew at the
Maturity Date unless the Holder hereof elects to terminate the automatic
extension options by giving notice in the manner described on page one hereof.
Such notice must be given by the Holder hereof at least 15, but not more than 30
days, prior to the renewal date. The Holder may terminate the automatic
extension for less than the entire principal amount of this Note provided that
the principal amount of this Note remaining outstanding is an authorized
denomination. An election to terminate the automatic extension of any portion of
this Note will not be revocable. If the Holder elects to terminate the automatic
extension of the Maturity Date of this Note, the Holder will become entitled to
the principal and interest accrued up to the renewal date. Page one of this Note
identifies the final maturity date (the "Final Maturity Date") beyond which the
Maturity Date cannot be renewed.
The Company may specify that the Maturity Date may be extended at the
Company's option (an "Extendible Note"), for one or more whole year periods up
to but not beyond the Final Maturity Date in the manner described on page one
hereof.
An option to extend an Extendible Note can be exercised by giving notice to
the Trustee (or any duly appointed paying agent) at least 45 but not more than
60 days, prior to the then effective Maturity Date. If the Maturity Date is
extended, the Trustee (or paying agent) will give notice to the registered
Holder (at least 40 days prior to the Maturity Date) informing such Holder of
(i) the election to extend, (ii) the new maturity date and (iii) any updated
terms. The maturity of such note will be extended automatically as set forth in
the extension notice upon the mailing of such notice.
At the Company's option, no later than 20 calendar days prior to the
Maturity Date of an Extendible Note (or, if such date is not a Business Day, on
the immediately succeeding Business Day), the Company may establish a higher
interest rate, in the case of a Fixed Rate Note, or a higher spread and/or
spread multiplier, in the case of a Floating Rate Note, for the extension period
by mailing or causing the Trustee (or paying agent ) to mail notice of such
higher interest rate or higher spread and/or spread multiplier to the Holder of
the Note. The notice will be irrevocable.
If the Company elects to extend the Maturity Date of an Extendible Note,
the Holder of the Note will have the option to elect instead repayment of the
Note on the then effective maturity date. To effectuate such repayment, the
Holder must give notice to the Company at least 25 days but not more than 35
days prior to the then effective maturity date with the following:
(1) the Note with the form "Option to Elect Repayment" on the reverse
of the Note duly completed; or
(2) a facsimile transmission or a letter from a member of a national
securities exchange or the National Association of Securities Dealers, Inc.
(the "NASD") or a commercial bank or trust company in the United States
setting forth the name of the Holder of the Note, the principal amount of
the Note, the principal amount of the Note to be repaid, the certificate
number or a description of the tenor and terms of the Note, a statement
that the option to elect repayment is being exercised thereby and a
guarantee that the Note to be repaid, together with the duly completed form
entitled "Option to Elect Repayment" on the reverse of the Note, will be
received by the Trustee (or paying agent) not later than the fifth Business
Day after the date of the facsimile transmission or letter; provided,
however, that the facsimile transmission or letter shall only be effective
if the Note and form duly completed are received by the applicable trustee
(or paying agent) by that fifth Business Day. The option may be exercised
by the Holder of an Extendible Note for less than the aggregate principal
amount of the Note then outstanding if the principal amount of the Note
remaining outstanding after repayment is an authorized denomination.
A Holder who has tendered an Extendible Note for repayment may, by written
notice to the Company, revoke the tender until 3:00 P.M. New York City time on
the fifteenth calendar day preceding the then effective Maturity Date.
The Company under the senior and subordinated indentures, can "reopen" a
previously issued tranche of Notes and issue additional Notes of such tranche or
establish additional terms of such tranche or issue notes with the same terms as
previously issued Notes.
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.
Dated:__________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION FLEET BOSTON CORPORATION
This is one of the Securities of the
series provided for under the
within-mentioned Indenture.
By___________________________________
THE BANK OF NEW YORK Chairman and Chief Executive Officer
as Trustee
By______________________________________ By___________________________________
Authorized Signatory Secretary
<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 UNIF GIFT MIN ACT - Custodian
______ ________
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts to Minors Act
_____________
JT TEN - as joint tenants with right of (State)
survivorship and not as tenant
in common
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.
<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 Bank of New York
101 Barclay Street
New York, NY 10286
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.
________________________________________________________________________________
<PAGE>
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 BOSTON CORPORATION AND IS NOT INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION, BANK INSURANCE FUND OR ANY OTHER GOVERNMENT
AGENCY.
CUSIP PRINCIPAL AMOUNT:
NO. Q -
FLEET BOSTON CORPORATION
MEDIUM-TERM NOTE, SERIES P
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:
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:
LIBOR:
___ Yes ___ No
LIBOR Reuters:
LIBOR Telerate:
Index Currency:
Prime Rate : Place of Payment:
Treasury Rate:
Other:
Spread (+/-):
Spread Multiplier: % Redemption Provisions:
Maximum Interest Rate: %
Minimum Interest Rate: %
Initial Interest Reset Date:
Interest Reset Dates:
Interest Payment Dates: Renewable: ___ Yes ___ No
Interest Determination Dates:
Authorized Denomination Extendible: ___ Yes ___ No
(only if non-U.S. dollar
denominated Note):
Calculation Agent:
Interest Payment Period:
Fleet Boston Corporation, 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 of this Note (the "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 December 6, 1999 (the "Indenture"), between the
Company and The Bank of New York, 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 15 and November 15 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 CMT Rate", "Determination of Commercial
Paper Rate", "Determination of Federal Funds Rate", "Determination of LIBOR",
"Determination of Prime Rate" or "Determination of Treasury Rate", depending on
whether the Base Rate is the CMT Rate, the Commercial Paper Rate, the Federal
Funds Rate, LIBOR, the Prime Rate, the Treasury 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 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 Commercial Paper Rate Notes, Federal Funds Rate Notes,
LIBOR Notes and Prime Rate 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 or (ii) the Business Day preceding the applicable
Interest Payment Date or the Maturity Date, as the case may be.
The Bank of New York 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 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 7051, 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 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 Bridge Telerate Inc. or
any successor 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 3:00 P.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 H.15 Daily Update, or other
recognized electronic source used for the purpose of displaying the applicable
rate under the heading "Commercial Paper-nonfinancial". 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)" as
displayed on Bridge Telerate, Inc. or any successor service on page 120 or any
other page as may replace the applicable page on that service, or, if 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 will
be the rate on such Federal Funds Interest Determination Date as published in
H.15 Daily Update, or other recognized electronic source used for the purpose of
displaying the applicable rate 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.
"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 Bridge Telerate, Inc. or any
successor service, for the purpose of displaying the London interbank rates of
major banks for the applicable Index Currency.
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 3:00 P.M., New York City
time, on the Calculation Date pertaining to such Prime Interest Determination
Date, then the Prime Rate will be as published in H.15 Daily Update, or such
other recognized source used for the purpose of displaying the applicable rate
under the caption "Bank Prime Loan", or if not so published prior to 3:00 P.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. However, 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 on Bridge Telerate, Inc. or any successor service on page 56 or 57 or any
page as may replace page 56 or 57 under the caption, "INVESTMENT RATE", or, if
not so published by 3:00 P.M., New York City time, on the Calculation Date
pertaining to such Treasury Rate Determination Date, the Bond Equivalent Yield
of the rate for the applicable Treasury Bills as published in H.15 Daily Update,
or other recognized electronic source used for the purpose of displaying the
applicable rate, under the caption "U.S. Government Securities/Treasury
Bills/Auction High", or, if not so published by 3:00 P.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, or, if not so announced by 3:00 P.M., New York City time, on the
Calculation Date pertaining to such Treasury Rate Determination Date, the Bond
Equivalent Yield of the rate on the applicable Interest Determination Date of
Treasury Bills having the Index Maturity specified in the applicable Pricing
Supplement published in H.15(519) under the caption "U.S. Government
Securities/Treasury Bills/Secondary Market", or, if not so published by 3:00
P.M., New York City time, on the Calculation Date pertaining to such Treasury
Rate Determination Date, the rate on the applicable Interest Determination Date
of the applicable Treasury Bills as published in H.15 Daily Update, or other
recognized electronic source used for the purpose of displaying the applicable
rate, under the caption, "U.S. Government Securities/Treasury Bills/Secondary
Market." 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.
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 30 and
October 30 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 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 any day other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which commercial banks are authorized or
required by law, regulation or executive order to close in the City of New York;
provided, however, that, with respect to non-United States dollar-denominated
notes, the day is also not a day on which commercial banks are authorized or
required by law, regulation or executive order to close in the principal
financial center, as defined herein, of the country issuing the specified
currency or, if the specified currency is the Euro, the day is also a day on
which the Trans-European Automated Real-time Gross Settlement Express Transfer
(TARGET) System is open; provided, further, that, with respect to notes as to
which LIBOR is an applicable Interest Rate Basis, the day is also a London
business day. "London business day" means a day which commercial banks are open
for business, including dealings in the Index Currency.
"Principal financial center" means, unless otherwise specified in the
applicable pricing supplement,
(1) the capital city of the country issuing the specified currency,
except that with respect to United States dollars, Australian dollars,
Canadian dollars, South African rand and Swiss francs, the "principal
financial center" will be The City of New York, Sydney, Toronto,
Johannesburg and Zurich, respectively; or
(2) the capital city of the country to which the LIBOR currency
relates, except that with respect to United States dollars, Canadian
dollars, South African rand and Swiss francs, the "Principal Financial
Center" will be The City of New York, Toronto, Johannesburg and Zurich,
respectively.
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 before the
date of redemption. 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 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 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 specify that this Note will automatically renew at the
Maturity Date unless the Holder hereof elects to terminate the automatic
extension options by giving notice in the manner described on page one hereof.
Such notice must be given by the Holder hereof at least 15, but not more than 30
days, prior to the renewal date. The Holder may terminate the automatic
extension for less than the entire principal amount of this Note provided that
the principal amount of this Note remaining outstanding is an authorized
denomination. An election to terminate the automatic extension of any portion of
this Note will not be revocable. If the Holder elects to terminate the automatic
extension of the Maturity Date of this Note, the Holder will become entitled to
the principal and interest accrued up to the renewal date. Page one of this Note
identifies the final maturity date (the "Final Maturity Date") beyond which the
Maturity Date cannot be renewed.
The Company may specify that the Maturity Date may be extended at the
Company's option (an "Extendible Note"), for one or more whole year periods up
to but not beyond the Final Maturity Date in the manner described on page one
hereof.
An option to extend an Extendible Note can be exercised by giving notice to
the Trustee (or any duly appointed paying agent) at least 45 but not more than
60 days, prior to the then effective Maturity Date. If the Maturity Date is
extended, the Trustee (or paying agent) will give notice to the registered
Holder (at least 40 days prior to the Maturity Date) informing such Holder of
(i) the election to extend, (ii) the new maturity date and (iii) any updated
terms. The maturity of such note will be extended automatically as set forth in
the extension notice upon the mailing of such notice.
At the Company's option, no later than 20 calendar days prior to the
Maturity Date of an Extendible Note (or, if such date is not a Business Day, on
the immediately succeeding Business Day), the Company may establish a higher
interest rate, in the case of a Fixed Rate Note, or a higher spread and/or
spread multiplier, in the case of a Floating Rate Note, for the extension period
by mailing or causing the Trustee (or paying agent ) to mail notice of such
higher interest rate or higher spread and/or spread multiplier to the Holder of
the Note. The notice will be irrevocable.
If the Company elects to extend the Maturity Date of an Extendible Note,
the Holder of the Note will have the option to elect instead repayment of the
Note on the then effective maturity date. To effectuate such repayment, the
Holder must give notice to the Company at least 25 days but not more than 35
days prior to the then effective maturity date with the following:
(1) the Note with the form "Option to Elect Repayment" on the reverse
of the Note duly completed; or
(2) a facsimile transmission or a letter from a member of a national
securities exchange or the National Association of Securities Dealers, Inc.
(the "NASD") or a commercial bank or trust company in the United States
setting forth the name of the Holder of the Note, the principal amount of
the Note, the principal amount of the Note to be repaid, the certificate
number or a description of the tenor and terms of the Note, a statement
that the option to elect repayment is being exercised thereby and a
guarantee that the Note to be repaid, together with the duly completed form
entitled "Option to Elect Repayment" on the reverse of the Note, will be
received by the Trustee (or paying agent) not later than the fifth Business
Day after the date of the facsimile transmission or letter; provided,
however, that the facsimile transmission or letter shall only be effective
if the Note and form duly completed are received by the applicable trustee
(or paying agent) by that fifth Business Day. The option may be exercised
by the Holder of an Extendible Note for less than the aggregate principal
amount of the Note then outstanding if the principal amount of the Note
remaining outstanding after repayment is an authorized denomination.
A Holder who has tendered an Extendible Note for repayment may, by written
notice to the Company, revoke the tender until 3:00 P.M. New York City time on
the fifteenth calendar day preceding the then effective Maturity Date.
The Company under the senior and subordinated indentures, can "reopen" a
previously issued tranche of Notes and issue additional Notes of such tranche or
establish additional terms of such tranche or issue notes with the same terms as
previously issued Notes.
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.
[Remainder of page intentionally left blank]
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:__________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION FLEET BOSTON CORPORATION
This is one of the Securities of the
series provided for under the
within-mentioned Indenture.
By___________________________________
THE BANK OF NEW YORK Chairman and Chief Executive Officer
as Trustee
By______________________________________ By___________________________________
Authorized Signatory Secretary
<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 UNIF GIFT MIN ACT - Custodian
______ ________
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts to Minors Act
_____________
JT TEN - as joint tenants with right of (State)
survivorship and not as tenant
in common
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.
<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 Bank of New York
101 Barclay Street
New York, NY 10286
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.
________________________________________________________________________________
