Exhibit 1(b)
Fleet Financial Group, Inc.
$2,000,000,000
Senior Medium-Term Notes, Series N
Subordinated Medium-Term Notes, Series O
Due Nine Months or More
from Date of Issue
Distribution Agreement
September 25, ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
Fleet National Bank
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Fleet Financial Group, Inc., a Rhode Island corporation (the "Company"),
confirms its agreement with you with respect to the issue and sale by the
Company of up to $2,000,000,000 aggregate principal amount of its Senior
Medium-Term Notes, Series N and Subordinated Medium-Term Notes, Series O
(respectively, the "Senior Notes" and the "Subordinated Notes"), Due Nine Months
or More from Date of Issue (collectively, the "Notes"). The Senior Notes are to
be issued under an indenture dated as of October 1, 1992 (the "Indenture"),
between the Company and The First National Bank of Chicago, as trustee (the
"Senior Trustee" or "First Chicago"). The Subordinated Notes are to be issued
under an indenture dated as of October 1, 1992, between the Company and First
Chicago as trustee (the "Subordinated Trustee" and, collectively with the Senior
Trustee, the "Trustee"), as supplemented by a first supplemental indenture dated
as of November 30, 1992, between the Company and the Subordinated Trustee (as so
supplemented, the "Subordinated Indenture" and collectively with the Senior
Indenture, the "Indentures"). The Notes to be sold by you will be issued in
minimum denominations of $150,000 or any amount in excess thereof which is an
integral multiple of $1,000, will be issued only in fully registered form and
will have the annual interest rates, maturities and, if appropriate, other terms
set forth in a supplement to the Prospectus referred to below. The Notes will
be issued, and the terms thereof established, in accordance with the applicable
Indenture and the Medium-Term Notes Administrative Procedures attached hereto as
Exhibit A (the "Procedures"). The Procedures may only be amended by written
agreement of the Company and you after notice to, and with the approval of, the
Trustee.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to, and agrees with, you as set forth below in this Section 1. Certain terms
used in this Section 1 are defined in paragraph (d) hereof.
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933 (the "Act") and has filed with the Securities and
Exchange Commission (the "Commission") a registration statement on such Form
(Registration Number: 333-62905), including a base prospectus, which also
constitutes pursuant to Rule 429 under the Act Post-Effective Amendment No. 1 to
registration statement on such Form (Registration Number: 333-37231) and to
registration statement on such Form (Registration Number: 333-48043) and which
become effective, for the registration under the Act of securities (the
"Securities"), including the Notes, in an aggregate principal amount of
$2,336,868,750. Such registration statements, as amended at the date of this
Agreement, meet
the requirements set forth in Rule 415(a)(1)(ix) or (x) under the Act and comply
in all other material respects with said Rule. The Company has included in such
registration statements, as amended at the date of this Agreement, or has filed
or will file with the Commission pursuant to the applicable paragraph of Rule
424(b) under the Act, a supplement to the form of prospectus included in such
registration statement relating to the Notes and the plan of distribution
thereof (the "Prospectus Supplement"). In connection with the sale of Notes the
Company proposes to file with the Commission pursuant to the applicable
paragraph of Rule 424(b) under the Act further supplements to the Prospectus
Supplement specifying the interest rates, maturity dates and, if appropriate,
other terms of the Notes sold pursuant hereto or the offering thereof.
(b) As of the Execution Time, on the Effective Date, when any
supplement to the Prospectus is filed with the Commission, on each day of an
Offering Period (referred to below) and at the date of delivery by the Company
of any Notes sold hereunder (a "Closing Date"), (i) the Registration Statement,
as amended as of any such time, and the Prospectus, as supplemented as of any
such time, and each Indenture will comply in all material respects with the
applicable requirements of the Act, the Trust Indenture Act of 1939 (the "Trust
Indenture Act") and the Securities Exchange Act of 1934 (the "Exchange Act") and
the respective rules thereunder; (ii) the Registration Statement, as amended as
of any such time, did not or will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading; and (iii) the
Prospectus, as supplemented as of any such time, will not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that the Company makes no
representations or warranties as to (i) that part of the Registration Statement
which shall constitute the Statement of Eligibility and Qualification (Form T-1)
under the Trust Indenture Act of the Trustee or (ii) the information contained
in or omitted from the Registration Statement or the Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by you specifically for inclusion in
connection with the preparation of the Registration Statement or the Prospectus
(or any supplement thereto).
(c) As of the time any Notes are issued and sold hereunder, each
Indenture will constitute a legal, valid and binding instrument enforceable
against the Company in accordance with its terms and such Notes will have been
duly authorized, executed, authenticated and, when paid for by the purchasers
thereof, will constitute legal, valid and binding obligations of the Company
entitled to the benefits of the applicable Indenture.
(d) The terms which follow, when used in this Agreement, shall have
the meanings indicated. The term "the Effective Date" shall mean each date that
the Registration Statement and any post-effective amendment or amendments
thereto became or become effective. "Execution Time" shall mean the date and
time that this Agreement is executed and delivered by the parties hereto. "Base
prospectus" shall mean the form of base prospectus relating to the Securities
contained in the Registration Statement at the Effective Date. "Prospectus"
shall mean the Base prospectus as supplemented by the Prospectus Supplement.
"Registration Statement" shall mean the registration statements referred to in
paragraph (a) above, including incorporated documents, exhibits and financial
statements, as amended at the Execution Time. "Rule 415" and "Rule 424" refer
to such rules under the Act. Any reference herein to the Registration
Statement, the Base prospectus, the Prospectus Supplement or the Prospectus
shall be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the Exchange Act
on or before the Effective Date of the Registration Statement or the issue date
of the Base prospectus, the Prospectus Supplement or the Prospectus, as the case
may be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, the Base prospectus,
the Prospectus Supplement or the Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the Effective
Date of the Registration Statement or the issue date of the Base prospectus, the
Prospectus Supplement or the Prospectus, as the case may be, deemed to be
incorporated therein by reference.
2. APPOINTMENT OF AGENT; SOLICITATION BY THE AGENT OF OFFERS TO PURCHASE.
Subject to the terms and conditions set forth herein, the Company hereby
authorizes the Agent to act as its agent to solicit offers for the purchase of
all or part of the Notes from the Company. The Company shall notify the Agent
from time to time as to the commencement of a period during which the Notes may
be offered and sold by the Agent (each period,
commencing with such notification and ending at such time as the authorization
for offers and sales through the Agent shall have been suspended by the Company
or the Agent as provided hereunder, being referred to as an "Offering Period").
On the basis of the representations and warranties, and subject to the
terms and conditions set forth herein, the Agent agrees, solely as agent of the
Company, to use its reasonable efforts to solicit offers to purchase the Notes
during each Offering Period from the Company upon the terms and conditions set
forth in the Prospectus (and any supplement thereto) and in the Procedures.
Under no circumstances will the Agent be obligated to purchase any Notes for its
own account.
The Company shall have the sole right to accept offers to purchase the
Notes and may reject any such offer in whole or in part. The Agent shall have
the right to reject, in its discretion reasonably exercised, any offer received
by it to purchase the Notes in whole or in part, and any such rejection shall
not be deemed a breach of its agreements contained herein.
The Company reserves the right, in its sole discretion, to instruct the
Agent to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase the Notes. Upon receipt of instructions from
the Company, the Agent will forthwith suspend solicitation of offers to purchase
Notes from the Company until such time as the Company has advised them that such
solicitation may be resumed.
The Company agrees to pay the Agent a commission, on the Closing Date with
respect to each sale of Notes by the Company as a result of a solicitation made
by the Agent, in an amount equal to that percentage specified in Schedule I
hereto of the aggregate principal amount of the Notes sold by the Company. Such
commission shall be payable as specified in the Procedures.
Subject to the provisions of this Section and to the Procedures, offers for
the purchase of Notes may be solicited by the Agent for the Company at such time
and in such amounts as the Agent deems advisable. The Company may from time to
time offer Notes for sale otherwise than through the Agent; provided, however,
that so long as this Agreement shall be in effect, the Company shall not solicit
or accept offers to purchase Notes through the agent other than the Agent, an
affiliate of the Company, or any of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇ &
Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇▇, Sachs & Co.
and ▇.▇. ▇▇▇▇▇▇ Securities Inc., which have entered into a Selling Agency
Agreement with the Company providing for the sale of Notes on terms and
conditions substantially similar to those contained herein, unless such
solicitation or acceptance is on terms with respect to commissions substantially
similar to those set forth in Schedule I hereto and the Company shall give the
Agent reasonable notice of the appointment of such agent for the purpose of
soliciting the Notes.
3. OFFERING AND SALE OF NOTES. The Agent and the Company agree to
perform the respective duties and obligations specifically provided to be
performed by them in the Procedures.
4. AGREEMENTS. The Company agrees with you that:
(a) Prior to the termination of the offering of the Notes, the
Company will not file any amendment of the Registration Statement or supplement
to the Prospectus (except for (i) periodic or current reports filed under the
Exchange Act, (ii) a supplement relating to any offering of Notes providing
solely for the specification of or a change in the maturity dates, interest
rates, issuance prices or other terms of any Notes or (iii) a supplement
relating to an offering of Securities other than the Notes) unless the Company
has furnished you a copy for your review prior to filing and given you a
reasonable opportunity to comment on any such proposed amendment or supplement.
Subject to the foregoing sentence, the Company will cause each supplement to the
Prospectus to be filed with the Commission pursuant to the applicable paragraph
of Rule 424(b) within the time period prescribed and will provide evidence
satisfactory to you of such filing. The Company will promptly advise you (i)
when the Prospectus, and any supplement thereto, shall have been filed with the
Commission pursuant to Rule 424(b), (ii) when, prior to the termination of the
offering of the Notes, any amendment of the Registration Statement shall have
been filed or become effective, (iii) of any request by the Commission for any
amendment of the Registration Statement or supplement to the Prospectus or for
any additional information, (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (v) of the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Notes for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company will use its best
efforts to prevent the issuance of any such stop order and, if issued, to obtain
as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it shall be necessary to amend the Registration
Statement or to supplement the Prospectus to comply with the Act or the Exchange
Act or the respective rules thereunder, the Company promptly will (i) notify you
to suspend solicitation of offers to purchase Notes (and, if so notified by the
Company, you shall forthwith suspend such solicitation and cease using the
Prospectus as then supplemented), (ii) prepare and file with the Commission,
subject to the first sentence of paragraph (a) of this Section 4, an amendment
or supplement which will correct such statement or omission or effect such
compliance and (iii) supply any supplemented Prospectus to you in such
quantities as you may reasonably request. If such amendment or supplement, and
any documents, certificates and opinions furnished to you pursuant to paragraph
(g) of this Section 4 in connection with the preparation or filing of such
amendment or supplement are satisfactory in all respects to you, you will, upon
the filing of such amendment or supplement with the Commission and upon the
effectiveness of an amendment to the Registration Statement, if such an
amendment is required, resume your obligation to solicit offers to purchase
Notes hereunder.
(c) The Company, during the period when a prospectus relating to the
Notes is required to be delivered under the Act, will file promptly all
documents required to be filed with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act and will furnish to you copies of such
documents. In addition, on the date on which the Company makes any announcement
to the general public concerning earnings or concerning any other event which is
required to be described, or which the Company proposes to describe, in a
document filed pursuant to the Exchange Act, the Company will furnish to you the
information contained or to be contained in such announcement. The Company also
will furnish to you copies of all other press releases or announcements to the
general public of a financial nature. The Company will immediately notify you
of (i) any downgrading in the rating of the Notes or any other debt securities
of the Company, or the announcement that the Notes or any other debt securities
of the Company have been placed on a "watchlist" with negative implications, by
any "nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or (ii) any notice given of any intended
or potential decrease in any such rating or of a possible change in any such
rating that does not indicate the direction of the possible change, as soon as
the Company learns of any such decrease or notice, as soon as the Company learns
of any such downgrading or announcement.
(d) As soon as practicable, the Company will make generally available
to its security holders and to you an earnings statement or statements of the
Company and its subsidiaries which will satisfy the provisions of Section 11(a)
of the Act and Rule 158 under the Act.
(e) The Company will furnish to you and your counsel, without charge,
copies of the Registration Statement (including exhibits thereto) and, so long
as delivery of a prospectus may be required by the Act, as many copies of the
Prospectus and any supplement thereto as you may reasonably request.
(f) The Company will arrange for the qualification of the Notes for
sale under the laws of such jurisdictions as you may designate, will maintain
such qualifications in effect so long as required for the distribution of the
Notes, and will arrange for the determination of the legality of the Notes for
purchase by institutional investors.
(g) The Company shall furnish to you such information, documents,
certificates of officers of the Company and opinions of counsel for the Company
relating to the business, operations and affairs of the Company, the
Registration Statement, the Prospectus, and any amendments thereof or
supplements thereto, the Indentures, the Notes, this Agreement, the Procedures
and the performance by the Company and you of its and your respective
obligations hereunder and thereunder as you may from time to time and at any
time prior to the termination of this Agreement reasonably request.
(h) The Company shall, whether or not any sale of the Notes is
consummated, (i) pay all expenses incident to the performance of its obligations
under this Agreement, including the fees and disbursements of its accountants
and counsel, the cost of printing or other production and delivery of the
Registration Statement, the Prospectus, all amendments thereof and supplements
thereto, each Indenture, this Agreement and all other documents relating to the
offering, the cost of preparing, printing, packaging and delivering the Notes,
the fees and disbursements, including fees of counsel, incurred in compliance
with Section 4(f), the fees and disbursements of the Trustee and the fees of any
agency that rates the Notes, (ii) reimburse you on a monthly basis for all
out-of-pocket expenses incurred by you in connection with this Agreement and
(iii) pay the reasonable fees and expenses of your counsel incurred in
connection with this Agreement.
(i) Each acceptance by the Company of an offer to purchase Notes will
be deemed to be an affirmation that its representations and warranties contained
in this Agreement are true and correct at the time of such acceptance, as though
made at and as of such time, and a covenant that such representations and
warranties will be true and correct at the time of delivery to the purchaser of
the Notes relating to such acceptance, as though made at and as of such time (it
being understood that for purposes of the foregoing affirmation and covenant
such representations and warranties shall relate to the Registration Statement
and Prospectus as amended or supplemented at each such time). Each such
acceptance by the Company of an offer for the purchase of Notes shall be deemed
to constitute an additional representation, warranty and agreement by the
Company that, as of the settlement date for the sale of such Notes, after giving
effect to the issuance of such Notes, of any other Notes to be issued on or
prior to such settlement date and of any other Securities to be issued and sold
by the Company on or prior to such settlement date, the aggregate amount of
Securities (including any Notes) which have been issued and sold by the Company
will not exceed the amount of Securities registered pursuant to the Registration
Statement.
(j) Prior to the commencement of the first Offering Period subsequent
to each time, and subsequent to each time during any Offering Period, that the
Registration Statement or the Prospectus is amended or supplemented (other than
by an amendment or supplement relating to any offering of Securities other than
the Notes or providing solely for the specification of or a change in the
maturity dates, the interest rates, the issuance prices or other similar terms
of any Notes sold pursuant hereto), the Company will deliver or cause to be
delivered promptly to you a certificate of the Company, signed by the Chairman
of the Board, or the President, or any Executive Vice President and the
principal financial or accounting officer or Treasurer of the Company, dated the
date of the effectiveness of such amendment or the date of the filing of such
supplement, in form reasonably satisfactory to you, of the same tenor as the
certificate referred to in Section 5(d) but modified to relate to the last day
of the fiscal quarter for which financial statements of the Company were last
filed with the Commission and to the Registration Statement and the Prospectus
as amended and supplemented to the time of the effectiveness of such amendment
or the filing of such supplement.
(k) Prior to the commencement of the first Offering Period subsequent
to each time, and subsequent to each time during any Offering Period, each time
that the Registration Statement or the Prospectus is amended or supplemented
(other than by an amendment or supplement (i) relating to any offering of
Securities other than the Notes, (ii) providing solely for the specification of
or a change in the maturity dates, the interest rates, the issuance prices or
other similar terms of any Notes sold pursuant hereto or (iii) setting forth or
incorporating by reference financial statements or other information as of and
for a fiscal quarter, unless, in the case of clause (iii) above, in your
reasonable judgment, such financial statements or other information are of such
a nature that an opinion of counsel should be furnished), the Company shall
furnish or cause to be furnished promptly to you a written opinion of counsel of
the Company satisfactory to you, dated the date of the effectiveness of such
amendment or the date of the filing of such supplement, in form satisfactory to
you, of the same tenor as the opinion referred to in Section 5(b) but modified
to relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of the effectiveness of such amendment or the filing of
such supplement or, in lieu of such opinion, counsel last furnishing such an
opinion to you may furnish you with a letter to the effect that you may rely on
such last opinion to the same extent as though it were dated the date of such
letter authorizing reliance (except that statements in such last opinion will be
deemed to relate to the Registration Statement and the Prospectus as amended and
supplemented
to the time of the effectiveness of such amendment or the filing of such
supplement).
(l) Prior to the commencement of the first Offering Period subsequent
to each time that the Registration Statement or the Prospectus is amended or
supplemented to include or incorporate amended or supplemental financial
information, and each time during any Offering Period that the Registration
Statement or Prospectus is so amended or supplemented, the Company shall cause
its independent public accountants promptly to furnish you a letter, dated the
date of the commencement of such Offering Period or the date of the
effectiveness of such amendment or the date of the filing of such supplement, as
the case may be, in form satisfactory to you, of the same tenor as the letter
referred to in Section 5(e) with such changes as may be necessary to reflect the
amended and supplemental financial information included or incorporated by
reference in the Registration Statement and the Prospectus, as amended or
supplemented to the date of such letter; provided, that in no event will the
Company accept any offer to purchase Notes unless such letter shall have been
delivered; provided, further, that, if the Registration Statement or the
Prospectus is amended or supplemented solely to include or incorporate by
reference financial information as of and for a fiscal quarter, the Company's
independent public accountants may limit the scope of such letter, which shall
be satisfactory in form to you, to the unaudited financial statements, the
related "Management's Discussion and Analysis of Financial Condition and Results
of Operations" and any other information of an accounting, financial or
statistical nature included in such amendment or supplement, unless, in your
reasonable judgment, such letter should cover other information or changes in
specified financial statement line items.
(m) The Company confirms as of the date hereof that it has complied
with all provisions of Section 1 of Laws of Florida, Chapter 92-198, An Act
Relating to Disclosure of Doing Business with Cuba, and the Company further
agrees that if it commences engaging in business with the government of Cuba or
with any person or affiliate located in Cuba after the date the Registration
Statement becomes or has become effective with the Securities and Exchange
Commission or with the Florida Department of Banking and Finance (the
"Department"), whichever date is later, or if the information reported in the
Prospectus, if any, concerning the Company's business with Cuba or with any
person or affiliate located in Cuba changes in any material way, the Company
will provide the Department notice of such business or change, as appropriate,
in a form acceptable to the Department.
5. CONDITIONS TO THE OBLIGATIONS OF THE AGENT. The obligations of the
Agent to solicit offers to purchase the Notes shall be subject to the accuracy
of the representations and warranties on the part of the Company contained
herein as of the Execution Time, on the Effective Date, when any supplement to
the Prospectus is filed with the Commission and as of each Closing Date, to the
accuracy of the statements of the Company made in any certificates pursuant to
the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus, and any such supplement, shall
have been filed in the manner and within the time period required by Rule
424(b); and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted or threatened.
(b) The Company shall have furnished to the Agent the opinion of
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, counsel for the Company, dated the Execution Time, to the
effect that:
(i) each of the Company and Fleet National Bank (the "Bank") and
any other subsidiary or subsidiaries which the Agent may reasonably
request (individually a "Subsidiary" and collectively the
"Subsidiaries") has been duly incorporated and is validly existing as
a corporation or national association in good standing under the laws
of the jurisdiction in which it is chartered or organized, with full
corporate power and authority to own its properties and conduct its
business as described in the Prospectus; the Company is qualified to
do business as a foreign corporation under the laws of the State of
New York; except as stated above, none of the Company or the Bank is
required to be qualified to do business as a foreign corporation under
the laws of any other jurisdiction; and the Company is registered as a
bank holding company under the Bank Holding Company Act of 1956, as
amended;
(ii) all the outstanding shares of capital stock of the Bank and
such Subsidiaries have been duly and validly authorized and issued and
are fully paid and (except as provided in 12 U.S.C. Section 55)
nonassessable, and, except as otherwise set forth in the Prospectus,
all outstanding shares of capital stock of the Bank and such
Subsidiaries are owned by the Company either directly or through
wholly owned subsidiaries free and clear of any perfected security
interest and, to the knowledge of such counsel, after due inquiry, any
other security interests, claims, liens or encumbrances;
(iii) each Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust
Indenture Act, and constitutes a legal, valid and binding agreement
enforceable against the Company in accordance with its terms (subject,
as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to the
availability of equitable remedies which are discretionary with the
courts);
(iv) the Notes have been duly authorized as a series of Debt
Securities under the applicable Indenture, are in the forms provided
for by resolutions of the Board of Directors of the Company adopted
pursuant to such Indenture, conform to the description thereof
contained in the Prospectus, and, when executed and authenticated in
accordance with the provisions of the applicable Indenture and
delivered to and paid for by the purchasers, will constitute valid and
binding obligations of the Company entitled to the benefits of the
applicable Indenture;
(v) to the best knowledge of such counsel, there is no pending
or threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries, of a character required to be
disclosed in the Registration Statement which is not adequately
disclosed in the Prospectus, and there is no franchise, contract or
other document of a character required to be described in the
Registration Statement or Prospectus, or to be filed as an exhibit,
which is not described or filed as required;
(vi) the Registration Statement and any amendments thereto have
become effective under the Act; to the best knowledge of such counsel,
no stop order suspending the effectiveness of the Registration
Statement, as amended, has been issued, no proceedings for that
purpose have been instituted or threatened, and the Registration
Statement, the Prospectus and each amendment thereof or supplement
thereto as of their respective effective or issue dates (other than
the financial statements and other financial data contained therein as
to which such counsel need express no opinion) comply as to form in
all material respects with the applicable requirements of the Act and
the Exchange Act and the respective rules thereunder; and such counsel
has no reason to believe that the Registration Statement, or any
amendment thereof, at the time it became effective and at the date of
this Agreement (or, in the case of any opinion delivered pursuant to
Section 4(k) or Section 6, the date of such subsequently delivered
opinion), contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary
to make the statements therein not misleading or that the Prospectus,
as amended or supplemented to the date of such opinion, includes any
untrue statement of a material fact or omits to state a material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(vii) this Agreement has been duly authorized, executed and
delivered by the Company;
(viii) no consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation of the
transactions contemplated herein, except such as have been obtained
under the Act and such as may be required under the blue sky laws of
any jurisdiction in connection with the purchase and distribution of
the Notes as contemplated by this Agreement and such other approvals
(specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Notes, nor the
consummation of any other of the transactions herein contemplated nor
the fulfillment of the terms hereof will conflict with, result in a
breach of, or constitute a default under the charter or by-laws of the
Company or the terms of any indenture or other agreement or instrument
known to such counsel and to which the Company or any of its
subsidiaries is a party or bound, or any order or regulation known to
such counsel to be applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Company
or any of its subsidiaries; and
(x) no holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State of
Rhode Island or the United States, to the extent deemed proper and specified in
such opinion, upon the opinion of other counsel of good standing believed to be
reliable and who are satisfactory to counsel for the Agent and (B) as to matters
of fact, to the extent deemed proper, on certificates of responsible officers of
the Company and public officials. References to the Prospectus in this
paragraph (b) include any supplements thereto at the date such opinion is
rendered.
(c) [Intentionally omitted]
(d) The Company shall have furnished to the Agent a certificate of
the Company, signed by the Chairman of the Board, or the President, or any
Executive Vice President and the principal financial or accounting officer or
Treasurer of the Company, dated the Execution Time, to the effect that the
signers of such certificate have carefully examined the Registration Statement,
the Prospectus, any supplement to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the date hereof with the same effect as if made on the date hereof and
the Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied as a condition to
the obligation of the Agent to solicit offers to purchase the Notes;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included in the Prospectus (exclusive of any supplement thereto),
there has been no material adverse change in the condition (financial
or other), earnings, business or properties of the Company and its
subsidiaries, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Prospectus (exclusive of any supplement thereto).
(e) Prior to the Execution Time, the Company shall have furnished to
the Agent such further information, documents, certificates and opinions of
counsel as the Agent may reasonably request.
The documents required to be delivered by this Section 5 shall be delivered
at the office of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, on the date hereof.
6. RIGHT OF PERSON WHO AGREED TO PURCHASE TO REFUSE TO PURCHASE. (a)
The Company agrees that any person who has agreed to purchase and pay for any
Note, shall have the right to refuse to purchase such Note if (i) at the Closing
Date therefor, any condition set forth in Section 5 (except that references to
the Prospectus shall be to the Prospectus as supplemented at the Closing Date)
shall not be satisfied, (ii) subsequent to the agreement to purchase such Note,
any change, or any development with respect to the Company involving a
prospective change,
in or affecting the business or properties of the Company and its subsidiaries
shall have occurred the effect of which is, in the judgment of the Agent, so
material and adverse as to make it impractical or inadvisable to proceed with
the delivery of such Note or (iii) subsequent to the agreement to purchase such
Note, (w) there shall have been any decrease in the ratings of any of the
Company's debt securities by ▇▇▇▇▇'▇ Investors Service or Standard & Poor's
Corporation (each a "Rating Agency") or any such Rating Agency shall publicly
announce that it has placed any of such debt securities on a "watchlist" with
negative implications, (x) trading in the Company's Common Stock shall have been
suspended by the Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on such Exchange, (y) a
banking moratorium shall have been declared either by Federal, Rhode Island or
New York State authorities, or (z) there shall have occurred any outbreak or
escalation of hostilities or other calamity or crisis the effect of which on the
financial markets or the United States is such as to make it, in the judgment of
the Agent, impracticable to market such Notes (it being understood that under no
circumstance shall the Agent have any duty or obligation to exercise any
judgment permitted to be exercised pursuant to this Section 6(a)).
(b) The Company further agrees to notify the Agent upon the
occurrence of any change, condition or development contemplated by Section
6(a)(ii) or (iii).
7. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless you and each person who controls you within the
meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which you, they or any of
them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Securities as originally filed or in any amendment thereof, or in the
Prospectus or any preliminary Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that (i) the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by you specifically for use in connection with the preparation
thereof, and (ii) such indemnity with respect to the Prospectus or any
preliminary Prospectus shall not inure to the benefit of you (or any person
controlling you) from whom the person asserting any such loss, claim, damage or
liability purchased the Notes which are the subject thereof if such person did
not receive a copy of the Prospectus (or the Prospectus as supplemented)
excluding documents incorporated therein by reference at or prior to the
confirmation of the sale of such Notes to such person in any case where such
delivery is required by the Act and the untrue statement or omission of a
material fact contained in the Prospectus or any preliminary Prospectus was
corrected in the Prospectus (or the Prospectus as supplemented). This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
(b) You agree to indemnify and hold harmless the Company, each of its
directors, each of its officers who signs the Registration Statement and each
person who controls the Company within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from the Company to
you, but only with reference to written information relating to you furnished to
the Company by you specifically for use in the preparation of the documents
referred to in the foregoing indemnity. This indemnity agreement will be in
addition to any liability which you may otherwise have. The Company
acknowledges that the statements set forth in the last sentence of the eleventh
paragraph under the heading "Plan of Distribution" of the Prospectus Supplement
relating to purchases and sales of Notes in the secondary market constitute the
only information furnished in writing by you for inclusion in the documents
referred to in the foregoing indemnity, and you confirm that such statements are
correct.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the
indemnifying party under this Section 7, notify the indemnifying party in
writing of the commencement thereof; but the omission, without prejudice, so to
notify the indemnifying party will not relieve it from any liability which it
may have to any indemnified party otherwise than under this Section 7. In case
any such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein, and to the extent that it may elect by written
notice delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof, with counsel
satisfactory to such indemnified party; provided, however, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (plus any local counsel), approved by you in the case of
paragraph (a) of this Section 7, representing the indemnified parties under such
paragraph (a) who are parties to such action), (ii) the indemnifying party shall
not have employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party; and except
that, if clause (i) or (iii) is applicable, such liability shall be only in
respect of the counsel referred to in such clause (i) or (iii).
(d) If for any reason the indemnification provided for in paragraph
(a) of this Section 7 is due in accordance with its terms but is held by a court
to be unavailable from the Company on grounds of policy or otherwise, you shall
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) to which the Company and you may be subject in an amount not in
excess of the commissions received by you in connection with the Notes from
which such losses, claims, damages and liabilities arise unless you were guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act). For purposes of this Section 7, each person who controls you within the
meaning of the Act shall have the same rights to contribution as you and each
person who controls the Company within the meaning of either the Act or the
Exchange Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to clauses (y) and (z) of this
paragraph (d).
8. TERMINATION. This Agreement will continue in effect until terminated
as provided in this Section 8. This Agreement may be terminated by either the
Company or you, giving written notice to the other party of such termination.
This Agreement shall so terminate at the close of business on the first business
day following the receipt of such notice by the party to whom such notice is
given. In the event of such termination, no party shall have any liability to
the other party hereto, except as provided in the fourth paragraph of Section
2(a), Section 4(b), Section 4(h), Section 7 and Section 9. The provisions of
this Agreement (including without limitation Section 6 hereof) applicable to any
purchase of a Note for which an agreement to purchase exists prior to the
termination hereof shall survive any termination of this Agreement.
9. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of you set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of you or the Company or any of the officers, directors or
controlling persons referred to in Section 7 hereof, and will survive delivery
of and payment for the Notes. The provisions of Sections 4(h) and 7 hereof
shall survive the termination or cancellation of this Agreement.
10. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to
you, will be mailed, delivered or telegraphed and confirmed to you, at the
address set forth above, attention of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Senior Vice President;
or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of
the Secretary and General Counsel.
11. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7 hereof, and no
other person will have any right or obligation hereunder, except for the right
of a person who has agreed to purchase a Note to refuse to purchase such Note as
provided in Section 6 hereof.
12. APPLICABLE LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and you.
Very truly yours,
FLEET FINANCIAL GROUP, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Treasurer
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
FLEET NATIONAL BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Senior Vice President
SCHEDULE I
Commission:
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
EXHIBIT A
Fleet Financial Group, Inc.
Medium-Term Note Administrative Procedures
September 25, 1998
The Senior Medium-Term Notes, Series N and Subordinated Medium-Term
Notes, Series O (respectively, the "Senior Notes" and the "Subordinated Notes"),
Due Nine Months or More from Date of Issue (collectively, the "Notes") of Fleet
Financial Group, Inc. (the "Company"), are to be offered on a continuing basis.
Fleet National Bank, ▇▇▇▇▇▇▇, Sachs & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, ▇.▇. ▇▇▇▇▇▇ Securities Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. will be
acting as agents (the "Agents") pursuant to distribution agreements dated as of
the date hereof. The Agents will not be obligated to purchase Notes for their
own account, unless otherwise agreed. The Notes are being sold pursuant to a
selling agency agreement between the Company and the Agent dated the date hereof
(the "Agency Agreement"). The Senior Notes will be issued under an indenture
dated as of October 1, 1992, between the Company and The First National Bank of
Chicago (the "Senior Trustee" or "First Chicago"), as trustee (the "Senior
Indenture"). The Subordinated Notes will be issued under an indenture dated as
of October 1, 1992, between the Company and First Chicago (the "Subordinated
Trustee" and collectively with the Senior Trustee, the "Trustee") as trustee, as
supplemented by a first supplemental indenture dated as of November 30, 1992,
between the Company and the Subordinated Trustee (as so supplemented, the
"Subordinated Indenture" and collectively with the Senior Indenture, the
"Indentures"). The Senior Notes will rank equally with all other unsecured and
unsubordinated debt of the Company. The Subordinated Notes will be subordinate
and junior in right of payment to all Senior Indebtedness and Other Financial
Obligations of the Company, to the extent and in the manner set forth in the
Subordinated Indenture. The Notes have been registered with the Securities and
Exchange Commission (the "Commission").
The Agency Agreement provides that Notes may also be purchased by an
Agent acting solely as principal and not as agent. In the event of any such
purchase, the functions of both the Agent and the beneficial owner under the
administrative procedures set forth below shall be performed by such Agent
acting solely as principal, unless otherwise agreed to between the Company and
such Agent acting as principal.
Each Note will be represented by either a Global Security (as defined
hereinafter) delivered to the Trustee, as agent for The Depository Trust Company
("DTC"), and recorded in the book-entry system maintained by DTC (a "Book-Entry
Note") or a certificate delivered to the Holder thereof or a Person designated
by such Holder (a "Certificated Note"). An owner of a Book-Entry Note will not
be entitled to receive a certificate representing such Note.
The procedures to be followed during, and the specific terms of, the
solicitation of orders by the Agent and the sale as a result thereof by the
Company are explained below. Administrative and record-keeping responsibilities
will be handled for the Company by its Treasury Department. The Company will
advise the Agent and the Trustee in writing of those persons handling
administrative responsibilities with whom the Agent and the Trustee are to
communicate regarding orders to purchase Notes and the details of their
delivery.
Administrative procedures and specific terms of the offering are
explained below. Book-Entry Notes will be issued in accordance with the
administrative procedures set forth in Part I hereof, as adjusted in accordance
with changes in DTC's operating requirements, and Certificated Notes will be
issued in accordance with the administrative procedures set forth in Part II
hereof. Unless otherwise defined herein, terms defined in the applicable
Indenture and the Notes shall be used herein as therein defined. Notes for
which interest is calculated on the basis of a fixed interest rate, which may be
zero, are referred to herein as "Fixed Rate Notes". Notes for which interest is
calculated on the basis of a floating interest rate are referred to herein as
"Floating Rate Notes". To the extent the procedures set forth below conflict
with the provisions of the Notes, the applicable Indenture, DTC's operating
requirements or the Agency Agreement, the relevant provisions of the Notes, the
applicable Indenture, DTC's operating requirements and the Agency Agreement
shall control.
PART I
ADMINISTRATIVE PROCEDURES FOR
BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, the Trustee will perform
the custodial, document control and administrative functions described below, in
accordance with its respective obligations under a Letter of Representations
from the Company and the Trustee to DTC dated as of March 27, 1996, and a
Medium-Term Note Certificate Agreement between the Trustee and DTC dated as of
May 26, 1989, and its obligations as a participant in DTC, including DTC's
Same-Day Funds Settlement system ("SDFS").
ISSUANCE: On any date of settlement (as defined under
"Settlement" below) for one or more Book-Entry
Notes, the Company will issue a single global
security in fully registered form without coupons
(a "Global Security") representing up to
$200,000,000 principal amount(or such other
maximum as may from time to time be agreed to by
DTC) of all such Book-Entry Notes that have the
same rank (senior or subordinated), original issue
date, original issue discount provisions, if any,
Interest Payment Dates, Regular Record Dates,
Interest Payment Period, redemption provisions, if
any, Maturity Date, and, in the case of Fixed Rate
Notes, interest rate, or, in the case of Floating
Rate Notes, initial interest rate, Base Rate,
Index Maturity, Interest Reset Period, Interest
Reset Dates, Spread and/or Spread Multiplier, if
any, minimum interest rate, if any, and maximum
interest rate, if any (collectively, the "Terms").
Each Global Security will be dated and issued as
of the date of its authentication by the Trustee.
Each Global Security will bear an original issue
date, which will be (i) with respect to an
original Global Security (or any portion thereof),
the original issue date specified in such Global
Security and (ii) following a consolidation of
Global Securities, with respect to the Global
Security resulting from such consolidation, the
most recent Interest Payment Date to which
interest has been paid or duly provided for on the
predecessor Global Securities, regardless of the
date of authentication of such resulting Global
Security. No Global Security will represent (i)
both Fixed Rate and Floating Rate Book-Entry Notes
or (ii) any Certificated Note.
IDENTIFICATION NUMBERS: The Company has arranged with the CUSIP Service
Bureau of Standard & Poor's Corporation (the
"CUSIP Service Bureau") for the reservation of two
series of CUSIP numbers, each of which consists of
approximately 900 CUSIP numbers and relates to
Global Securities representing Book-entry Notes
and book-entry medium-term notes issued by the
Company with other series designations. The
Company has obtained from the CUSIP Service Bureau
a written list of such reserved CUSIP numbers,
which the Company shall deliver to the Trustee and
DTC. The Company will assign CUSIP numbers to
Global Securities as described below under
Settlement Procedure "B". DTC will notify the
CUSIP Service Bureau periodically of the CUSIP
numbers that the Company has assigned to Global
Securities. At any time when fewer than 100 of
the reserved CUSIP numbers remain unassigned to
Global Securities for either series, if it deems
necessary, the Company will reserve additional
CUSIP numbers for assignment to Global Securities.
Upon obtaining such additional CUSIP numbers, the
Company shall deliver a list of such additional
CUSIP numbers to the Trustee and DTC.
REGISTRATION: Global Securities will be issued only in fully
registered form without coupons. Each Global
Security will be registered in the name of CEDE &
CO., as nominee for DTC, on the securities
register for the Notes maintained under the
applicable Indenture. The beneficial owner of a
Book-Entry Note (or one or more indirect
participants in DTC designated by such owner) will
designate one or more participants in DTC (with
respect to such Book-Entry Note, the
"Participants") to act as agent or agents for such
owner in connection with the book-entry system
maintained by DTC, and DTC will record in
book-entry form, in accordance with instructions
provided by such Participants, a credit balance
with respect to such beneficial owner in such
Book-Entry Note in the account of such
Participants. The ownership interest of such
beneficial owner (or such participant) in such
Book-Entry Note will be recorded through the
records of such Participants or through the
separate records of such Participants and one or
more indirect participants in DTC.
TRANSFERS: Transfers of a Book-Entry Note will be
accomplished by book entries made by DTC and, in
turn, by Participants (and, in certain cases, one
or more indirect participants in DTC) acting on
behalf of beneficial transferors and transferees
of such Note.
EXCHANGES: The Trustee may deliver to DTC and the CUSIP
Service Bureau at any time a written notice of
consolidation (a copy of which shall be attached
to the resulting Global Security described below)
specifying (i) the CUSIP numbers of two or more
Outstanding Global Securities that represent (A)
Fixed Rate Book-Entry Notes having the same Terms
and for which interest has been paid to the same
date or (B) Floating Rate Book-Entry Notes having
the same Terms and for which interest has been
paid to the same date, (ii) a date, occurring at
least thirty days after such written notice is
delivered and at least thirty days before the next
Interest Payment Date for such Book-Entry Notes,
on which such Global Securities shall be exchanged
for a single replacement Global Security and (iii)
the single CUSIP number to be assigned to such
replacement Global Security (which shall be the
CUSIP number previously assigned to the Global
Security with the earliest date of issuance).
Upon receipt of such a notice, DTC will send to
its participants (including the Trustee) a written
reorganization notice to the effect that such
exchange will occur on such date. Prior to the
specified exchange date, the Trustee will deliver
to the CUSIP Service Bureau a written notice
setting forth such exchange date and such single
CUSIP number and stating that, as of such exchange
date, the CUSIP numbers of the individual Global
Securities not assigned to the replacement Global
Security will no longer be valid. On the
specified exchange date, the Trustee will exchange
such Global Securities for a single Global
Security bearing the single CUSIP number and the
CUSIP numbers of the individual Global Securities
not assigned will, in accordance with CUSIP
Service Bureau procedures, be retired and not
reassigned. Notwithstanding the foregoing, if the
Global Securities to be exchanged exceed
$200,000,000 in aggregate principal amount (or
such other maximum amount as may from time to time
be agreed to by DTC) one Global Security will be
authenticated and issued to represent each
$200,000,000 of principal amount (or such other
maximum amount as may from time to time be agreed
to by DTC) of the exchanged Global Securities and
an additional Global Security will be
authenticated and issued to represent any
remaining principal amount of such Global
Securities (see "Denominations" below).
MATURITIES: Each Book-Entry Note will mature nine months or
more from the date of its issue.
DENOMINATIONS: Book-Entry Notes will be issued in principal
amounts of $1,000 or any integral multiple
thereof. Global Securities will be denominated in
principal amounts not in excess of $200,000,000
(or such other maximum amount as may from time to
time be agreed to by DTC) . If one or more
Book-Entry Notes having an aggregate principal
amount in excess of $200,000,000(or such other
maximum amount as may from time to time be agreed
to by DTC) would, but for the preceding sentence,
be represented by a single Global Security, then
one Global Security will be authenticated and
issued to represent each $200,000,000 principal
amount (or such other maximum amount as may from
time to time be agreed to by DTC) of such
Book-Entry Note or Notes and an additional Global
Security will be authenticated and issued to
represent any remaining principal amount of such
Book-Entry Note or Notes. In such a case, each of
the Global Securities representing such Book-Entry
Note or Notes shall be assigned the same CUSIP
number.
INTEREST: GENERAL. Interest, if any, on each Book-Entry Note
will accrue from the original issue date for the
first interest period or the last date to which
interest has been paid, if any, for each
subsequent interest period, on the Global Security
representing such Book-Entry Note, and will be
calculated and paid in the manner described in
such Book-Entry Note and in the Prospectus (as
defined in the Agency Agreement), as supplemented
by the applicable Pricing Supplement. Unless
otherwise specified therein, each payment of
interest on a Book-Entry Note will include
interest accrued to but excluding the Interest
Payment Date or to but excluding Maturity.
Interest payable at the Maturity of a Book-Entry
Note will be payable to the Person to whom the
principal of such Note is payable. Standard &
Poor's Corporation will use the information
received in the pending
deposit message described under Settlement
Procedure "C" below in order to include the amount
of any interest payable and certain other
information regarding the related Global Security
in the appropriate (daily or weekly) bond report
published by Standard & Poor's Corporation.
REGULAR RECORD DATES. The Regular Record Date
with respect to any Interest Payment Date for
Floating Rate Book-Entry Notes shall be the date
fifteen calendar days immediately preceding such
Interest Payment Date, whether or not such date
shall be a Business Day.
INTEREST PAYMENT DATES ON FIXED RATE BOOK-ENTRY
NOTES. Unless otherwise agreed, interest payments
on Fixed Rate Book-Entry Notes will be made
monthly on the 15th day of each month and at
Maturity; PROVIDED, HOWEVER, that in the case of a
Fixed Rate Book-Entry Note issued between a
Regular Record Date and an Interest Payment Date,
or on an Interest Payment Date, the first interest
payment will be made on the Interest Payment Date
following the next succeeding Regular Record Date.
If any Interest Payment Date for a Fixed Rate
Book-Entry Note is not a Business Day, the payment
due on such day shall be made on the next
succeeding Business Day and no interest shall
accrue on such payment for the period from and
after such Interest Payment Date.
INTEREST PAYMENT DATES ON FLOATING RATE BOOK-ENTRY
NOTES. Unless otherwise agreed, interest payments
will be made on Floating Rate Book-Entry Notes
monthly on the 15th of each month; PROVIDED,
HOWEVER, that if an Interest Payment Date for a
Floating Rate Book-Entry Note would otherwise be a
day that is not a Business Day with respect to
such Floating Rate Book-Entry Note, such Interest
Payment Date will be the next succeeding Business
Day with respect to such Floating Rate Book-Entry
Note, except that in the case of a Floating Rate
Book-Entry Note for which the Base Rate is LIBOR,
if such Business Day is in the next succeeding
calendar month, such Interest Payment Date will be
the immediately preceding Business Day; and
PROVIDED FURTHER, that, in the case of a Floating
Rate Book-Entry Note issued between a Regular
Record Date and an Interest Payment Date or on an
Interest Payment Date, the first interest payment
will be made on the Interest Payment Date
following the next succeeding Regular Record Date.
NOTICE OF FLOATING RATE INTEREST RATES. Promptly
after each Interest Determination Date for
Floating Rate Book-Entry Notes, the Calculation
Agent will notify the Trustee and Standard &
Poor's Corporation of the interest rates
determined on such Interest Determination Date.
CALCULATION OF INTEREST: FIXED RATE BOOK-ENTRY NOTES. Interest on Fixed
Rate Book-Entry Notes (including interest for
partial periods) will be calculated on the basis
of a 360-day year of twelve 30-day months.
FLOATING RATE BOOK-ENTRY NOTES. Interest rates on
Floating Rate Book-Entry Notes will be determined
as set forth in the form of Notes. Interest on
Floating Rate Book-Entry Notes, except as
otherwise set forth therein, will be calculated on
the basis of actual days elapsed and a year of 360
days, except that in the case of a Floating Rate
Book-Entry Note for which the Base Rate is the
Treasury Rate or the CMT Rate, interest will be
calculated on the basis of the actual number of
days in the year.
PAYMENTS OF PRINCIPAL AND PAYMENT OF INTEREST ONLY. Promptly after each
INTEREST: Regular Record Date, PROVIDED, with respect to
Floating Rate Notes, that the Calculation Agent
has provided the Trustee with the necessary
information regarding interest rates, the Trustee
will deliver to the Company and DTC a written
notice setting forth, by CUSIP number, the amount
of interest to be paid on each Global Security on
the following Interest Payment Date (other than an
Interest Payment Date coinciding with Maturity)
and the total of such amounts. DTC will confirm
the amount payable on each Global Security on such
Interest Payment Date by reference to the
appropriate (daily or weekly) bond reports
published by Standard & Poor's Corporation. The
Company will pay to the Trustee, as paying agent,
the total amount of interest due on such Interest
Payment Date (other than at
Maturity), and the Trustee will pay such amount to
DTC, at the times and in the manner set forth
below under "Manner of Payment".
PAYMENTS AT MATURITY. On or about the last
Business Day of each month, the Trustee will
deliver to the Company and DTC a written list of
principal and interest to be paid on each Global
Security maturing (on a Maturity or Redemption
Date or otherwise) in the following month. The
Trustee, the Company and DTC will confirm the
amounts of such principal and interest payments
with respect to each such Global Security on or
about the fifth Business Day preceding the
Maturity of such Global Security. On or before
Maturity, the Company will pay to the Trustee, as
paying agent, the principal amount of such Global
Security, together with interest due at such
Maturity. The Trustee will pay such amount to DTC
at the times and in the manner set forth below
under "Manner of Payment". If any Maturity of a
Global Security representing Book-Entry Notes is
not a Business Day, the payment due on such day
shall be made on the next succeeding Business Day
and no interest shall accrue on such payment for
the period from and after such Maturity. Promptly
after payment to DTC of the principal and interest
due at Maturity of such Global Security, the
Trustee will cancel such Global Security in
accordance with the applicable Indenture and so
advise the Company. On the first Business Day of
each month, the Trustee will deliver to the
Company a written statement indicating the total
principal amount of Outstanding Global Securities
as of the immediately preceding Business Day.
MANNER OF PAYMENT. The total amount of any
principal and interest due on Global Securities on
any Interest Payment Date or at Maturity shall be
paid by the Company to the Trustee in immediately
available funds no later than 9:30 A.M. (New York
City time) on such date. The Company will make
such payment on such Global Securities by
instructing the Trustee to withdraw funds from an
account maintained by the Company at First Chicago
or by wire transfer of funds available for
immediate use to the Trustee. The Company will
confirm any such instructions in writing to the
Trustee. Prior to 10 A.M. (New York City time) on
the date of Maturity or as soon as possible
thereafter, the Trustee will pay by separate wire
transfer (using Fedwire message entry instructions
in a form previously specified by DTC) to an
account at the Federal Reserve Bank of New York
previously specified by DTC, in funds available
for immediate use by DTC, each payment of
principal (together with interest thereon) due on
a Global Security on such date. On each Interest
Payment Date (other than at Maturity), interest
payments shall be made to DTC, in funds available
for immediate use by DTC, in accordance with
existing arrangements between the Trustee and DTC.
On each such date, DTC will pay, in accordance
with its SDFS operating procedures then in effect,
such amounts in funds available for immediate use
to the respective Participants in whose names the
Book-Entry Notes represented by such Global
Securities are recorded in the book-entry system
maintained by DTC. Neither the Company (as issuer
or as paying agent) nor the Trustee shall have any
direct responsibility or liability for the payment
by DTC to such Participants of the principal of
and interest on the Book-Entry Notes.
WITHHOLDING TAXES. The amount of any taxes
required under applicable law to be withheld from
any interest payment on a Book-Entry Note will be
determined and withheld by the Participant,
indirect participant in DTC or other Person
responsible for forwarding payments and materials
directly to the beneficial owner of such Note.
PROCEDURE FOR RATE The Company and the Agent will discuss from time
SETTING AND to time the aggregate principal amount of, the
POSTING: issuance price of, and the interest rates to be
borne by, Book-Entry Notes that may be sold as a
result of the solicitation of orders by the Agent.
If the Company decides to set prices of, and rates
borne by, any Book-Entry Notes in respect of which
the Agent is to solicit orders (the setting of
such prices and rates to be referred to herein as
"posting") or if the Company decides to change
prices or rates previously posted by it, it will
promptly advise the Agent of the prices and rates
to be posted.
ACCEPTANCE AND Unless otherwise instructed by the Company, the
REJECTION OF Agent will advise the Company promptly by
ORDERS: telephone of all orders to purchase Book-Entry
Notes received by such Agent, other than those
rejected by it in whole or in part in the
reasonable exercise of its discretion. The
Company has the right to accept orders to purchase
Book-Entry Notes and may reject any such orders in
whole or in part.
PREPARATION OF If any order to purchase a Book-Entry Note is
PRICING SUPPLEMENT: accepted by or on behalf of the Company, the
Company will prepare a pricing supplement (a
"Pricing Supplement") reflecting the terms of such
Book-Entry Note and will arrange to have ten
copies thereof filed with the Commission in
accordance with the applicable paragraph of Rule
424(b) under the Act and will supply at least ten
copies thereof (and additional copies if
requested) to the Agent which presented the order
(the "Presenting Agent") at the address set forth
on Schedule I hereto, to be delivered by overnight
courier or telecopy to arrive no later than 11:00
a.m., New York City time, on the Business Day
following the sale date.
The Presenting Agent will cause a Prospectus and
Pricing Supplement to be delivered to the
purchaser of such Book-Entry Note.
In each instance that a Pricing Supplement is
prepared, the Presenting Agent will affix the
Pricing Supplement to Prospectuses prior to their
use. Outdated Pricing Supplements (other than
those retained for files), will be destroyed.
SUSPENSION OF The Company may instruct the Agent to suspend at
SOLICITATION; any time, for any period of time or permanently,
AMENDMENT OR the solicitation of orders to purchase Book-Entry
SUPPLEMENT: Notes. Upon receipt of such instructions, the
Agent will forthwith suspend solicitation until
such time as the Company has advised them that
such solicitation may be resumed. In the event
that at the time the Company suspends solicitation
of purchases there shall be any orders outstanding
for settlement, the Company will promptly advise
the Agent and the Trustee whether such orders may
be settled and whether copies of the Prospectus as
in effect at the time of the suspension, together
with the appropriate Pricing Supplement, may be
delivered in connection with the settlement of
such orders. The Company will have the sole
responsibility for such decision and for any
arrangements that may be made in the event that
the Company determines that such orders may not be
settled or that copies of such Prospectus may not
be so delivered.
If the Company decides to amend or supplement the
Registration Statement (as defined in the Agency
Agreement) or the Prospectus, it will promptly
advise the Agent and furnish the Agent with the
proposed amendment or supplement and with such
certificates and opinions as are required, all to
the extent required by and in accordance with the
terms of the Agency Agreement. Subject to the
provisions contained in Sections 4(a) and 4(b) of
the Agency Agreement, the Company may file with
the Commission any such supplement to the
Prospectus relating to the Notes. The Company
will provide the Agent and the Trustee with copies
of any such supplement, and confirm to the Agent
that such supplement has been filed with the
Commission pursuant to the applicable paragraph of
Rule 424(b).
PROCEDURES FOR When the Company has determined to change the
RATE CHANGES: interest rates of Book-Entry Notes being offered,
it will promptly advise the Agent and the Agent
will forthwith suspend solicitation of orders.
The Agent will telephone the Company with
recommendations as to the changed interest rates.
At such time as the Company has advised the Agent
of the new interest rates, the Agent may resume
solicitation of orders. Until such time only
"indications of interest" may be recorded.
DELIVERY OF A copy of the Prospectus and a Pricing Supplement
PROSPECTUS: relating to a Book-Entry Note must accompany or
precede the earliest of any written offer of such
Book-Entry Note, confirmation of the purchase of
such Book-Entry Note and payment for such
Book-Entry Note by its purchaser. If
notice of a change in the terms of the Book-Entry
Notes is received by the Agent between the time an
order for a Book-Entry Note is placed and the time
written confirmation thereof is sent by the
Presenting Agent to a customer or his agent, such
confirmation shall be accompanied by a Prospectus
and Pricing Supplement setting forth the terms in
effect when the order was placed. Subject to
"Suspension of Solicitation; Amendment or
Supplement" above, the Presenting Agent will
deliver a Prospectus and Pricing Supplement as
herein described with respect to each Book-Entry
Note sold by it. The Company will make such
delivery if such Book-Entry Note is sold directly
by the Company to a purchaser (other than an
Agent).
CONFIRMATION: For each order to purchase a Book-Entry Note
solicited by any Agent and accepted by or on
behalf of the Company, the Presenting Agent will
issue a confirmation to the purchaser, with a copy
to the Company, setting forth the details set
forth above and delivery and payment instructions.
SETTLEMENT: The receipt by the Company of immediately
available funds in payment for a Book-Entry Note
and the authentication and issuance of the Global
Security representing such Book-Entry Note shall
constitute "settlement" with respect to such
Book-Entry Note. All orders accepted by the
Company will be settled on the third Business Day
following the date of sale of such Book-Entry Note
pursuant to the timetable for settlement set forth
below unless the Company and the purchaser agree
to settlement on another day which shall be no
earlier than the Business Day following the date
of sale.
SETTLEMENT Settlement Procedures with regard to each Book-
PROCEDURES: Entry Note sold by the Company through any Agent,
as agent, shall be as follows:
A. The Presenting Agent will advise the Company
by telephone of the following settlement
information:
1. Rank (senior or subordinated).
2. Principal amount.
3. Maturity Date.
4. In the case of a Fixed Rate Book-Entry
Note, the interest rate or, in the case
of a Floating Rate Book-Entry Note, the
Base Rate, initial interest rate (if
known at such time), Index Maturity,
Interest Reset Period, Interest Reset
Dates, Interest Determination Dates,
Spread and/or Spread Multiplier (if
any), minimum interest rate (if any) and
maximum interest rate (if any).
5. Interest Payment Dates and the Interest
Payment Period.
6. Redemption or repayment provisions, if
any.
7. Settlement date.
8. Price.
9. The Presenting Agent's DTC participant
account number and commission,
determined as provided in Section 2 of
the Agency Agreement.
10. Whether such Book-Entry Note is issued
at an original issue discount and, if
so, the total amount of OID, the yield
to maturity and the initial accrual
period OID.
B. The Company will assign a CUSIP number to the
Global Security representing such Book-Entry
Note and then advise the Trustee and the
Presenting Agent by telephone (confirmed in
writing at any time on the same date) or
electronic transmission of the information
set forth in Settlement Procedure "A" above,
such CUSIP number and the name of the
Presenting Agent. The Company will also
notify the Presenting Agent by telephone of
such CUSIP number as soon as practicable.
C. The Trustee will enter a pending deposit
message through DTC's Participant Terminal
System providing the settlement information
to DTC specified in the Letter of
Representations from the Company and the
Trustee to DTC dated as of the date hereof.
D. To the extent the Company has not already
done so, the Company will deliver to the
Trustee a Global Security in a form that has
been approved by the Company, the Agent and
the Trustee.
E. The Trustee will complete such Global
Security, stamp the appropriate legend, as
instructed by DTC, if not already set forth
thereon, and authenticate the Global Security
representing such Book-Entry Note in
accordance with the terms of the written
order of the Company then in effect.
F. DTC will credit such Book-Entry Note to the
Trustee's participant account at DTC.
G. Upon delivery of the pending deposit message
referenced in "C" above, an SDFS deliver
order through DTC's Participant Terminal
System will be created instructing DTC to
debit such Book-Entry Note to the Trustee's
participant account and credit such
Book-Entry Note to the Presenting Agent's
participant account and debit the Presenting
Agent's settlement account and credit the
Trustee's settlement account for an amount
equal to the price of such Book-Entry Note
less the Presenting Agent's commission. The
entry of such a pending deposit message by
First Chicago as Trustee shall constitute a
representation and warranty by First Chicago
to DTC that (i) the Global Security
representing such Book-Entry Note has been
issued and authenticated and (ii) First
Chicago is holding such Global Security
pursuant to the Medium-Term Note Certificate
Agreement between First Chicago and DTC.
H. The Presenting Agent will enter an SDFS
deliver order through DTC's Participant
Terminal System instructing DTC (i) to debit
such Book-Entry Note to the Presenting
Agent's participant account and credit such
Book-Entry Note to the participant accounts
of the Participants with respect to such
Book-Entry Note and (ii) to debit the
settlement accounts of such Participants and
credit the settlement account of the
Presenting Agent for an amount equal to the
price of such Book-Entry Note.
I. Transfers of funds in accordance with SDFS
deliver orders described in Settlement
Procedures "G" and "H" will be settled in
accordance with SDFS operating procedures in
effect on the settlement date.
J. The Trustee will, upon receipt of funds from
the Agent in accordance with Settlement
Procedure "G", credit to an account of the
Company maintained at First Chicago funds
available for immediate use in the amount
transferred to the Trustee in accordance with
Settlement Procedure "G". However, the
Trustee shall not credit the account of the
Company unless and until the Trustee has
confirmed receipt of the funds in the
appropriate amount transferred in accordance
with Settlement Procedure "G".
K. The Presenting Agent will confirm the
purchase of such Book-Entry Note to the
purchaser either by transmitting to the
Participants with respect to such Book-Entry
Note
a confirmation order or orders through DTC's
institutional delivery system or by mailing a
written confirmation to such purchaser.
SETTLEMENT For orders of Book-Entry Notes solicited by any
PROCEDURES Agent and accepted by the Company for settlement
TIMETABLE: on the Business Day after the sale date,
Settlement Procedures "A" through "K" set forth
above shall be completed as soon as possible but
not later than the respective times (New York City
time) set forth below:
Settlement
Procedure Time
--------- ----
A 11:00 A.M. on the sale date
B 12:00 Noon on the sale date
C 2:00 P.M. on the sale date
D 3:00 P.M. on the day before
settlement
E 9:00 A.M. on settlement date
F 10:00 A.M. on settlement date
G-H 2:00 P.M. on settlement date
I 4:30 P.M. on settlement date
J-K 5:00 P.M. on settlement date
If a sale is to be settled more than one Business
Day after the sale date, Settlement Procedures
"A", "B" and "C" shall be completed as soon as
practicable but no later than 11:00 A.M. and 12:00
Noon on the first Business Day after the sale date
and no later than 2:00 P.M. on the Business Day
before the settlement date, respectively. If the
initial interest rate for a Floating Rate
Book-Entry Note has not been determined at the
time that Settlement Procedure "A" is completed,
Settlement Procedures "B" and "C" shall be
completed as soon as such rate has been determined
but no later than 12:00 Noon and 2:00 P.M.,
respectively, on the second Business Day before
the settlement date. Settlement Procedure "I" is
subject to extension in accordance with any
extension of Fedwire closing deadlines and in the
other events specified in SDFS operating
procedures in effect on the settlement date.
If settlement of a Book-Entry Note is rescheduled
or canceled, the Trustee will deliver to DTC,
through DTC's Participant Terminal System, a
cancelation message to such effect by no later
than 2:00 P.M. on the Business Day immediately
preceding the scheduled settlement date.
FAILURE TO SETTLE: If the Trustee has not entered an SDFS deliver
order with respect to a Book-Entry Note pursuant
to Settlement Procedure "G", then, upon written
request (which may be by telecopy) of the Company,
the Trustee shall deliver to DTC, through DTC's
Participant Terminal System, as soon as
practicable, a withdrawal message instructing DTC
to debit such Book-Entry Note to the Trustee's
participant account. DTC will process the
withdrawal message, PROVIDED that the Trustee's
participant account contains a principal amount of
the Global Security representing such Book-Entry
Note that is at least equal to the principal
amount to be debited. If a withdrawal message is
processed with respect to all the Book-Entry Notes
represented by a Global Security, the Trustee will
cancel such Global Security in accordance with the
applicable Indenture and so advise the Company,
and will make appropriate entries in its records.
The CUSIP number
assigned to such Global Security shall, in
accordance with CUSIP Service Bureau procedures,
be canceled and not immediately reassigned. If a
withdrawal message is processed with respect to
one or more, but not all, of the Book-Entry Notes
represented by a Global Security, the Trustee will
exchange such Book-Entry Note for two Global
Securities, one of which shall represent such
Book-Entry Notes and shall be canceled immediately
after issuance and the other of which shall
represent the other Book-Entry Notes previously
represented by the surrendered Global Security and
shall bear the CUSIP number of the surrendered
Global Security.
If the purchase price for any Book-Entry Note is
not timely paid to the Participants with respect
to such Note by the beneficial purchaser thereof
(or a Person, including an indirect participant in
DTC, acting on behalf of such purchaser), such
Participants and, in turn, the Presenting Agent
may enter SDFS deliver orders through DTC's
Participant Terminal System debiting such Note to
such Agent's participant account and crediting
such Note free to the participant account of the
Trustee and shall notify the Trustee and the
Company thereof. Thereafter, the Trustee (i) will
immediately notify the Company thereof, once the
Trustee has confirmed that such Note has been
credited to its participant account, and the
Company shall immediately transfer by Fedwire
(immediately available funds) to such Agent an
amount equal to the price of such Note which was
previously credited to the account of the Company
maintained at First Chicago or wire transferred at
the Company's direction in accordance with
Settlement Procedure J and (ii) the Trustee will
deliver the withdrawal message and take the
related actions described in the preceding
paragraph. If such failure shall have occurred
for any reason other than a default by the
Presenting Agent in the performance of its
obligations hereunder and under the Agency
Agreement, then the Company will reimburse the
Presenting Agent or the Trustee, as applicable, on
an equitable basis for the loss of the use of the
funds during the period when they were credited to
the account of the Company.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note, DTC may
take any actions in accordance with its SDFS
operating procedures then in effect. In the event
of a failure to settle with respect to one or
more, but not all, of the Book-Entry Notes to have
been represented by a Global Security, the Trustee
will provide, in accordance with Settlement
Procedure "E", for the authentication and issuance
of a Global Security representing the other
Book-Entry Notes to have been represented by such
Global Security and will make appropriate entries
in its records.
TRUSTEE AND FIRST Nothing herein shall be deemed to require the
CHICAGO NOT TO RISK Trustee or First Chicago to risk or expend its own
FUNDS: funds in connection with any payment to the
Company, DTC, the Agent or the purchaser, it being
understood by all parties that payments made by
the Trustee or First Chicago to the Company, DTC,
the Agent or the purchaser shall be made only to
the extent that funds are provided to the Trustee
or First Chicago for such purpose.
AUTHENTICITY OF The Company will cause the Trustee to furnish the
SIGNATURES: Agent from time to time with the specimen
signatures of each of the Trustee's officers,
employees or agents who has been authorized by the
Trustee to authenticate Book-Entry Notes, but no
Agent will have any obligation or liability to the
Company or the Trustee in respect of the
authenticity of the signature of any officer,
employee or agent of the Company or the Trustee on
any Book-Entry Note.
PAYMENT OF The Agent shall forward to the Company, on a
EXPENSES: monthly basis, a statement of the out-of-pocket
expenses incurred by such Agent during that month
that are reimbursable to it pursuant to the terms
of the Agency Agreement. The Company will remit
payment to the Agent currently on a monthly basis.
ADVERTISING The Company will determine with the Agent the
COSTS: amount of advertising that may be appropriate in
soliciting offers to purchase the Book-Entry
Notes. Advertising expenses will be paid by the
Company.
PERIODIC STATEMENTS Periodically, upon written request, the Trustee
FROM THE TRUSTEE: will send to the Company a statement setting forth
the principal amount of Book-Entry Notes
Outstanding as of that date and setting forth a
brief description of any sales of Book-Entry Notes
which the Company has advised the Trustee but
which have not yet been settled.
PART II
ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
The Trustee will serve as registrar and transfer agent and
authenticating and paying agent in connection with the Certificated Notes.
ISSUANCE: Each Certificated Note will be dated and issued as
of the date of its authentication by the Trustee.
Each Certificated Note will bear an Original Issue
Date, which will be (i) with respect to an
original Certificated Note (or any portion
thereof), its original issuance date (which will
be the settlement date) and (ii) with respect to
any Certificated Note (or portion thereof) issued
subsequently upon transfer or exchange of a
Certificated Note or in lieu of a destroyed, lost
or stolen Certificated Note, the Original Issue
Date of the predecessor Certificated Note,
regardless of the date of authentication of such
subsequently issued Certificated Note.
REGISTRATION: Certificated Notes will be issued only in fully
registered form without coupons.
TRANSFERS AND A Certificated Note may be presented for transfer
EXCHANGES: or exchange at the office of the Trustee at ▇▇
▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇ ▇▇▇▇▇), ▇▇▇ ▇▇▇▇, N.Y. 10005,
Attention: Corporate Trust Services. Certificated
Notes will be exchangeable for other Certificated
Notes having identical terms but different
authorized denominations without service charge.
Certificated Notes will not be exchangeable for
Book-Entry Notes.
MATURITIES: Each Certificated Note will mature nine months or
more from its date of issue.
DENOMINATIONS: The denomination of any Certificated Note
denominated in U.S. dollars will be a minimum of
$100,000 or any amount in excess thereof that is
an integral multiple of $1,000. The authorized
denominations of Certificated Notes denominated in
any other currency will be specified pursuant to
"Settlement Procedures" below.
INTEREST: GENERAL. Interest, if any, on each Certificated
Note will accrue from the original issue date for
the first interest period or the last date to
which interest has been paid, if any, for each
subsequent interest period, and will be calculated
and paid in the manner described in such Note and
in the Prospectus, as supplemented by the
applicable Pricing Supplement. Unless otherwise
specified therein, each payment of interest on a
Certificated Note will include interest accrued to
but excluding the Interest Payment Date or to but
excluding Maturity.
REGULAR RECORD DATES. The Regular Record Dates
with respect to any Interest Payment Date for
Floating Rate Certificated Notes shall be the date
fifteen calendar days immediately preceding such
interest Payment Date, and for Fixed Rate
Certificated Notes shall be the April 15 or
October 15 next preceding such Interest Payment
Date, whether or not such date shall be a Business
Day.
FIXED RATE CERTIFICATED NOTES. Unless otherwise
specified pursuant to Settlement Procedure "A"
below, interest payments on Fixed Rate
Certificated Notes will be made semiannually on
May 1 and November 1 of each year and at Maturity;
PROVIDED, HOWEVER, that in the case of a Fixed
Rate Certificated Note issued between a Regular
Record Date and an Interest Payment Date, or on an
Interest Payment Date, the first interest payment
will be made on the Interest Payment Date
following the next succeeding Regular Record Date.
If any Interest Payment Date for or the Maturity
of a Fixed Rate Certificated Note is not a
Business Day, the payment due on such day shall be
made on the next succeeding Business Day and no
interest shall accrue on such payment for the
period from and after such Interest Payment Date
or Maturity, as the case may be.
FLOATING RATE CERTIFICATED NOTES. Interest
payments will be made on Floating Rate
Certificated Notes monthly, quarterly,
semi-annually or annually. Interest will be
payable, in the case of Floating Rate Certificated
Notes with a monthly Interest Payment Period, on
the third Wednesday of each month; with a
quarterly interest Payment Period, on the third
Wednesday of March, June, September and December
of each year; with a semi-annual Interest Payment
Period, on the third Wednesday of the two months
specified pursuant to Settlement Procedure "A"
below; and with an annual Interest Payment Period,
on the third Wednesday of the month specified
pursuant to Settlement Procedure "A" below;
PROVIDED, HOWEVER, that if an Interest Payment
Date for a Floating Rate Certificated Note would
otherwise be a day that is not a Business Day with
respect to such Floating Rate Certificated Note,
such Interest Payment Date will be the next
succeeding Business Day with respect to such
Floating Rate Certificated Note, except in the
case of a Floating Rate Certificated Note for
which the Base Rate is LIBOR, if such Business Day
is in the next succeeding calendar month, such
Interest Payment Date will be the immediately
preceding Business Day; and PROVIDED FURTHER, that
in the case of a Floating Rate Certificated Note
issued between a Regular Record Date and an
Interest Payment Date or on an Interest Payment
Date, the first interest payment will be made on
the Interest Payment Date following the next
succeeding Regular Record Date.
CALCULATION OF FIXED RATE CERTIFICATED NOTE. Interest on Fixed
INTEREST: Rate Certificated Notes (including interest for
partial periods) will be calculated on the basis
of a 360-day year of twelve 30-day months.
FLOATING RATE CERTIFICATED NOTES. Interest rates
on Floating Rate Certificated Notes will be
determined as set forth in the form of Notes.
Interest on Floating Rate Certificated Notes,
except as otherwise set forth therein, will be
calculated on the basis of actual days elapsed and
a year of 360 days, except that in the case of a
Floating Rate Certificated Note for which the Base
Rate is the Treasury Rate or the CMT Rate,
interest will be calculated on the basis of the
actual number of days in the year.
PAYMENTS OF On or before the due date for any payment of
PRINCIPAL AND principal or interest on each Certificated Note,
INTEREST: the Company will pay to the Trustee, as paying
agent, the amount of principal and/or interest
then due. The Trustee will pay the principal
amount of each Certificated Note at Maturity upon
presentation of such Certificated Note to the
Trustee. Such payment, together with payment of
interest due at Maturity of such Certificated
Note, will be made in funds available for
immediate use by the Trustee and in turn by the
Holder of such Certificated Note. Certificated
Notes presented to the Trustee at Maturity for
payment will be canceled by the Trustee in
accordance with the applicable Indenture. All
interest payments on a Certificated Note (other
than interest due at Maturity) will be made by
check drawn on the Trustee or another Person
appointed by the Trustee mailed by the Trustee to
the Person entitled thereto as provided in such
Note and the applicable Indenture; PROVIDED,
HOWEVER, that the holder of $10,000,000 (or the
equivalent thereof in other currencies) or more of
Certificated Notes with similar tenor and terms
will be entitled to receive payment by wire
transfer in U.S. dollars upon receipt of written
instructions by the Trustee. Following each
Regular Record Date and Special Record Date, the
Trustee will furnish the Company with a list of
interest payments to be made on the following
Interest Payment Date for each group of
Certificated Notes bearing interest at a
particular rate and in total for all Certificated
Notes. Interest at Maturity will be payable to
the Person to whom the payment of principal is
payable. The Trustee will provide, on or about
the last Business Day of each month, to the
Company lists of principal and interest, to the
extent ascertainable, to be paid on Certificated
Notes maturing (on a Maturity or Redemption Date
or otherwise) in the next two
months.
First Chicago will be responsible for withholding
taxes on interest paid on Certificated Notes as
required by applicable law.
PROCEDURE FOR RATE The Company and the Agents will discuss from time
SETTING AND POSTING: to time the aggregate principal amount of, the
issuance price of, and the interest rates to be
borne by, Notes that may be sold as a result of
the solicitation of orders by the Agents. If the
Company decides to set prices of, and rates borne
by, any Notes in respect of which the Agents are
to solicit orders (the setting of such prices and
rates to be referred to herein as "posting") or if
the Company decides to change prices or rates
previously posted by it, it will promptly advise
the Agents of the prices and rates to be posted.
ACCEPTANCE AND Unless otherwise instructed by the Company, each
REJECTION OF ORDERS: Agent will advise the Company promptly by
telephone of all orders to purchase Certificated
Notes received by such Agent, other than those
rejected by it in whole or in part in the
reasonable exercise of its discretion. Unless
otherwise agreed by the Company and the Agents,
the Company has the sole right to accept orders to
purchase Certificated Notes and may reject any
such orders in whole or in part.
PREPARATION OF If any order to purchase a Certificated Note is
PRICING SUPPLEMENT: accepted by or on behalf of the Company, the
Company will prepare a Pricing Supplement
reflecting the terms of such Certificated Note and
will arrange to have ten copies thereof filed with
the Commission in accordance with the applicable
paragraph of Rule 424(b) under the Act and will
supply at least ten copies thereof (and additional
copies if requested) to the Presenting Agent at
the address set forth on Schedule I hereto, to be
delivered by overnight courier or telecopy to
arrive no later than 11:00 a.m., New York City
time, on the Business Day following the sale date.
The Presenting Agent will cause a Prospectus and
Pricing Supplement to be delivered to the
purchaser of such Certificated Note.
In each instance that a Pricing Supplement is
prepared, the Presenting Agent will affix the
Pricing Supplement to Prospectuses prior to their
use. Outdated Pricing Supplements (other than
those retained for files), will be destroyed.
SUSPENSION OF Subject to the Company's representations,
SOLICITATION; warranties and covenants contained in the Agency
AMENDMENT Agreement, the Company may instruct the Agents to
OR SUPPLEMENT: suspend at any time for any period of time or
permanently, the solicitation of orders to
purchase Certificated Notes. Upon receipt of such
instructions, the Agents will forthwith suspend
solicitation until such time as the Company has
advised them that such solicitation may be
resumed.
In the event that at the time the Company suspends
solicitation of purchases there shall be any
orders outstanding for settlement, the Company
will promptly advise the Agents and the Trustee
whether such orders may be settled and whether
copies of the Prospectus as in effect at the time
of the suspension, together with the appropriate
Pricing Supplement, may be delivered in connection
with the settlement of such orders. The Company
will have the sole responsibility for such
decision and for any arrangements that may be made
in the event that the Company determines that such
orders may not be settled or that copies of such
Prospectus may not be so delivered.
If the Company decides to amend or supplement the
Registration Statement or the Prospectus, it will
promptly advise the Agents and furnish the Agents
with the proposed amendment or supplement and with
such certificates and opinions as are required,
all to the extent required by and in accordance
with the terms of the Agency Agreement. Subject
to the provisions of the Agency Agreement, the
Company may file with the Commission any
supplement to the Prospectus relating to the
Notes. The Company will provide the Agents and
the Trustee with copies of any such supplement,
and confirm to the Agents that such supplement has
been filed
with the Commission pursuant to the applicable
paragraph of Rule 424(b).
PROCEDURE FOR When the Company has determined to change the
RATE CHANGES: interest rates of Certificated Notes being
offered, it will promptly advise the Agents and
the Agents will forthwith suspend solicitation of
orders. The Agents will telephone the Company
with recommendations as to the changed interest
rates. At such time as the Company has advised
the Agents of the new interest rates, the Agents
may resume solicitation of orders. Until such
time only "indications of interest" may be
recorded.
DELIVERY OF A copy of the Prospectus and a Pricing Supplement
PROSPECTUS: relating to a Certificated Note must accompany or
precede the earliest of any written offer of such
Certificated Note, confirmation of the purchase of
such Certificated Note and payment for such
Certificated Note by its purchaser. If notice of
a change in the terms of the Certificated Notes is
received by the Agents between the time an order
for a Certificated Note is placed and the time
written confirmation thereof is sent by the
Presenting Agent to a customer or his agent, such
confirmation shall be accompanied by a Prospectus
and Pricing Supplement setting forth the terms in
effect when the order was placed. Subject to
"Suspension of Solicitation; Amendment or
Supplement" above, the Presenting Agent will
deliver a Prospectus and Pricing Supplement as
herein described with respect to each Certificated
Note sold by it. The Company will make such
delivery if such Certificated Note is sold
directly by the Company to a purchaser (other than
any Agent).
CONFIRMATION: For each order to purchase a Certificated Note
solicited by any Agent and accepted by or on
behalf of the Company, the Presenting Agent will
issue a confirmation to the purchaser, with a copy
to the Company, setting forth the details set
forth above and delivery and payment instructions.
SETTLEMENT: The receipt by the Company of immediately
available funds in exchange for an authenticated
Certificated Note delivered to the Presenting
Agent and the Presenting Agent's delivery of such
Certificated Note against receipt of immediately
available funds shall, with respect to such
Certificated Note, constitute "settlement". All
orders accepted by the Company will be settled on
the third Business Day following the date of sale
pursuant to the timetable for settlement set forth
below, unless the Company and the purchaser agree
to settlement on another day which shall be no
earlier than the next Business Day following the
date of sale.
SETTLEMENT Settlement Procedures with regard to each
PROCEDURES: Certificated Note sold by the Company through any
Agent, as agent, shall be as follows:
A. The Presenting Agent will advise the Company
by telephone of the following settlement
information:
1. Name in which such Certificated Note is
to be registered ("Registered Owner").
2. Address of the Registered Owner and
address for payment of principal and
interest.
3. Taxpayer identification number of the
Registered Owner (if available).
4. Rank (senior or subordinated).
5. Principal amount.
6. Maturity Date.
7. In the case of a Fixed Rate Certificated
Note, the interest rate or, in the case
of a Floating Rate Certificated Note,
the initial interest rate (if known at
such time),
Base Rate, Index Maturity, Interest
Reset Period, Interest Reset Dates,
Interest Determination Dates, Spread
and/or Spread Multiplier (if any),
minimum interest rate (if any) and
maximum interest rate (if any).
8. Interest Payment Dates and the Interest
Payment Period.
9. Specified Currency and whether the
option to elect payment in a Specified
Currency applies and if the Specified
Currency is not U.S. dollars, the
authorized denominations.
10. Redemption or repayment provisions, if
any.
11. Settlement date.
12. Price (including currency).
13. Presenting Agent's commission,
determined as provided in Section 2 of
the Agency Agreement.
14. Whether such Certificated Note is issued
at an original issue discount, and, if
so, the total amount of OID, the yield
to maturity and the initial accrual
period OID.
B. The Company will advise the Trustee by
telephone (confirmed in writing at any time
on the sale date) or electronic transmission
of the information set forth in Settlement
Procedure "A" above and the name of the
Presenting Agent.
C. The Company will deliver to the Trustee an
original Certificated Note with customer
confirmation in triplicate in forms that have
been approved by Company, the Agents and the
Trustee.
D. The Trustee will complete such Certificated
Note and will authenticate such Certificated
Note and deliver it (with the confirmation)
and two copies thereof (clearly marked as
such) to the Presenting Agent, and the
Presenting Agent will acknowledge receipt of
the Note by stamping or otherwise marking the
first copy and returning it to the Trustee.
Such delivery will be made only against such
acknowledgment of receipt. In the event that
the instructions given by the Presenting
Agent for payment to the account of the
Company are revoked, the Company will as
promptly as possible wire transfer to the
account of the Presenting Agent an amount of
immediately available funds equal to the
amount of such payment made.
E. The Presenting Agent will deliver such
Certificated Note (with the confirmation) to
the customer against payment in immediately
payable funds. The Presenting Agent will
obtain the acknowledgment of receipt of such
Certificated Note by retaining the second
copy thereof.
F. The Trustee will send a third copy of the
Certificated Note (clearly marked as such) to
the Company by first-class mail.
SETTLEMENT For orders of Certificated Notes solicited by any
PROCEDURES Agent, as agent, and accepted by the Company,
TIMETABLE: Settlement Procedures "A" through "F" set forth
above shall be completed on or before the
respective times (New York City time) set forth
below:
Settlement
Procedure Time
A 2:00 P.M. on the day before
settlement
B-C 3:00 P.M. on the day before
settlement
D 2:15 P.M. on settlement date
E 3:00 P.M. on settlement date
F 5:00 P.M. on settlement date
FAILURE TO If a purchaser fails to accept delivery of and
SETTLE: make payment for any Certificated Note, the
Presenting Agent will notify the Company and the
Trustee by telephone and return such Certificated
Note to the Trustee. Upon receipt of such notice,
the Company will immediately wire transfer to the
account of the Presenting Agent an amount equal to
the amount previously credited to the account of
Company in respect of such Certificated Note.
Such wire transfer will be made on the settlement
date, if possible, and in any event not later than
the Business Day following the settlement date.
If the failure shall have occurred for any reason
other than a default by the Presenting Agent in
the performance of its obligations hereunder and
under the Agency Agreement, then the Company will
reimburse the Presenting Agent on an equitable
basis for its loss of the use of the funds during
the period when they were credited to the account
of the Company. Immediately upon receipt of the
Certificated Note in respect of which such failure
occurred, the Trustee will cancel such
Certificated Note in accordance with the
applicable Indenture and so advise the Company and
will make appropriate entries in its records.
TRUSTEE NOT TO RISK Nothing herein shall be deemed to require the
FUNDS: Trustee or First Chicago to risk or expend its own
funds in connection with any payment to the
Company, the Agents or the purchaser, it being
understood by all parties that payments made by
the Trustee to the Company, the Agents or the
purchaser shall be made only to the extent that
funds are provided to the Trustee for such
purpose.
AUTHENTICITY OF The Company will cause the Trustee to furnish the
SIGNATURES: Agents from time to time with the specimen
signatures of each of the Trustee's officers,
employees or agents who has been authorized by the
Trustee to authenticate Certificated Notes, but no
Agent will have any obligation or liability to the
Company or the Trustee in respect of the
authenticity of the signature of any officer,
employee or agent of the Company or the Trustee on
any Certificated Note.
PAYMENT OF Each Agent shall forward to the Company, on a
EXPENSES: monthly basis, a statement of the out-of-pocket
expenses incurred by such Agent during that month
that are reimbursable to it pursuant to the terms
of the Agency Agreement. The Company will remit
payment to the Agents currently on a monthly
basis.
ADVERTISING COSTS: The Company will determine with the Agents the
amount of advertising that may be appropriate in
soliciting orders to purchase the Certificated
Notes. Advertising expenses will be paid by the
Company.
PERIODIC STATEMENTS Periodically, upon written request, the Trustee
FROM THE TRUSTEE: will send to the Company a statement setting forth
the principal amount of Certificated Notes
Outstanding as of that date and setting forth a
brief description of any sales of Certificated
Notes of which the Company has advised the Trustee
but which have not yet been settled.