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EXHIBIT 1.1
NATIONAL CONSUMER COOPERATIVE BANK
U.S.$350,000,000
MEDIUM-TERM SENIOR NOTES, SERIES B
MEDIUM-TERM SUBORDINATED NOTES, SERIES B
DUE 9 MONTHS OR MORE FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
January 7, 2000
Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, New York 10010
Banc of America Securities LLC
Bank of America Corporate Center
NC1-007-07-01
100 North Tryon Street
Charlotte, North Carolina 28255-0001
Banc One Capital Markets, Inc.
One Banc One Plaza
Chicago, Illinois 60670
SPP Capital Partners, LLC
330 Madison Avenue, 28th Floor
New York, New York 10017
Ladies and Gentlemen:
National Consumer Cooperative Bank, a financial institution
organized pursuant to the laws of the United States (doing business as National
Cooperative Bank) (the "Bank"), proposes to issue and sell from time to time its
Medium-Term Senior Notes, Series B, due 9 months or more from the Date of Issue
(the "Senior Notes") and its Medium-Term Subordinated Notes, Series B, due 9
Months or more from the Date of Issue (the "Subordinated Notes" and together
with the Senior Notes, the "Securities") in an aggregate amount up to
$350,000,000 and agrees with each of you (individually, an "Agent", and
together, the "Agents") as set forth in this Agreement.
Subject to the terms and conditions stated herein and to the
reservation by the Bank of the right to sell Securities directly on its own
behalf, the Bank hereby (i) appoints each Agent as an agent of the Bank for the
purpose of soliciting and receiving offers to purchase Securities from
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the Bank pursuant to Section 2(a) hereof and (ii) agrees that, except as
otherwise contemplated herein, whenever it determines to sell Securities
directly to any Agent as principal, it will enter into a separate agreement
(each a "Terms Agreement"), substantially in the form of Annex I hereto,
relating to such sale in accordance with Section 2(b) hereof. This Distribution
Agreement shall not be construed to create either an obligation on the part of
the Bank to sell any Securities or an obligation of any of the Agents to
purchase Securities as principal.
The Senior Notes will be issued under a senior indenture, dated as
of January 15, 1997 (the "Senior Indenture"), between the Bank and Bank One
Trust Company, N.A., as Trustee (the "Trustee"). The Subordinated Notes will be
issued under a subordinated indenture, dated as of January 7, 1999, between the
Bank and the Trustee (the "Subordinated Indenture" and together with the Senior
Indenture, the "Indentures"). The Securities shall have the maturity ranges,
interest rates, if any, redemption provisions and other terms set forth in the
Prospectus referred to below as it may be amended or supplemented from time to
time. The Securities will be issued, and the terms and rights thereof
established, from time to time by the Bank in accordance with the Indentures.
1. The Bank represents and warrants to, and agrees with, each Agent
that:
(a) A registration statement on Form S-3 (File No. 333-90457)
in respect of the Securities and a pre-effective amendment thereto
have been filed with the Securities and Exchange Commission (the
"Commission"); provided, that if the Company files a registration
statement with the Commission pursuant to Rule 462(b) of the 1933
Act Regulations (the "Rule 462(b) Registration Statement"), then,
after such filing, all references to the "Registration Statement"
shall also be deemed to include the 462(b) Registration Statement;
such registration statement (as amended) and any post-effective
amendment thereto, each in the form heretofore delivered or to be
delivered to such Agent, excluding exhibits to such registration
statement, but including all documents incorporated by reference in
the prospectus included therein, have been declared effective by the
Commission in such form; no other document with respect to such
registration statement (as amended) or document incorporated by
reference therein has heretofore been filed or transmitted for
filing with the Commission (other than the prospectuses filed
pursuant to Rule 424(b) of the rules and regulations of the
Commission under the Securities Exchange Act of 1933 (the "Act"),
each in the form heretofore delivered to the Agents); and no stop
order suspending the effectiveness of such registration statement
(as amended) has been issued and no proceeding for that purpose has
been initiated or threatened by the Commission (any preliminary
prospectus included in such registration statement (as amended) or
filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Act, are hereinafter called
a "Preliminary Prospectus"); the various parts of such registration
statement, including all exhibits thereto and the documents
incorporated by reference in the prospectus contained in the
registration statement at the time such part of the registration
statement became effective but excluding Form T-1, each as amended
at the time such part of the registration statement became
effective, is hereinafter collectively called the "Registration
Statement"
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(including any Rule 462(b) Registration Statement); the prospectus
(including, if applicable, any prospectus supplement) relating to
the Securities, in the form in which it has most recently been
filed, or transmitted for filing, with the Commission on or prior to
the date of this Agreement, is hereinafter called the "Prospectus";
any reference herein to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include the documents incorporated
by reference therein pursuant to the applicable form under the Act,
as of the date of such Preliminary Prospectus or Prospectus, as the
case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus, including any supplement
to the Prospectus that sets forth only the terms of a particular
issue of the Securities (a "Pricing Supplement"), shall be deemed to
refer to and include any documents filed after the date of such
Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and incorporated therein by reference; any reference to any
amendment to the Registration Statement shall be deemed to refer to
and include any annual report of the Bank filed pursuant to Section
13(a) or 15(d) of the Exchange Act after the effective date of the
Registration Statement that is incorporated by reference in the
Registration Statement; and any reference to the Prospectus as
amended or supplemented shall be deemed to refer to and include the
Prospectus as amended or supplemented (including by the applicable
Pricing Supplement filed in accordance with Section 4(a) hereof) in
relation to Securities to be sold pursuant to this Agreement, in the
form filed or transmitted for filing with the Commission pursuant to
Rule 424(b) under the Act and in accordance with Section 4(a)
hereof, including any documents incorporated by reference therein as
of the date of such filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make
the statements therein not misleading; and any further documents so
filed and incorporated by reference in the Prospectus, or any
further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder and will not contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading;
(c) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement
or the Prospectus will conform, in all material respects to the
requirements of the Act and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the rules and regulations
of the Commission thereunder and do not and will not, as of the
applicable effective date as to the Registration Statement and any
amendment thereto and as of the applicable filing date
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as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Bank by any Agent expressly for use in
the Prospectus as amended or supplemented to relate to a particular
issuance of Securities;
(d) Neither the Bank nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus; and, since the
respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any
change in the capital stock or long-term debt of the Bank or any of
its subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders'
equity or results of operations of the Bank and its subsidiaries,
and there has been no dividend or distribution of any kind declared,
paid or made by the Bank on any class of its capital stock,
otherwise than as set forth or contemplated in the Prospectus;
(e) This Agreement (including any Terms Agreement with respect
to the offering and sale of particular Securities) has been duly
authorized, executed and delivered by the Bank;
(f) The Bank is a corporation duly organized, validly existing
and in good standing under the laws of the United States and has
full power and authority to conduct its business as such and as
described in the Prospectus and the Bank is duly qualified to do
business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification;
(g) Each subsidiary of the Bank has been duly incorporated and
is an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority
(corporate and other) to own its properties and conduct its business
as described in the Prospectus; and each subsidiary of the Bank is
duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or lease
of property or the conduct of its business requires such
qualification; all of the issued and outstanding capital stock of
each subsidiary of the Bank has been duly authorized and validly
issued and is fully paid and nonassessable; and the capital stock of
each subsidiary owned by the Bank, directly or through subsidiaries,
is owned free from liens, encumbrances and defects;
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(h) The Bank has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Bank have been duly and validly authorized and issued and are fully
paid and non-assessable;
(i) The Securities have been duly authorized, and, when issued
and delivered pursuant to this Agreement and any Terms Agreement,
will have been duly executed, authenticated, issued and delivered
and will constitute valid and legally binding obligations of the
Bank entitled to the benefits provided by the Indentures, which will
be substantially in the forms filed as exhibits to the Registration
Statement; the Indentures have been duly authorized and duly
qualified under the Trust Indenture Act and constitute valid and
legally binding instruments enforceable in accordance with their
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to
or affecting creditors' rights and to general equity principles; and
the Indentures conform and the Securities of any particular issuance
of Securities will conform to the descriptions thereof contained in
the Prospectus as amended or supplemented to relate to such issuance
of Securities;
(j) The issue and sale of the Securities, the compliance by the
Bank with all of the provisions of the Securities, the Indentures,
this Agreement and any Terms Agreement, and the consummation of the
transactions herein and therein contemplated will not conflict with
or result in a breach or violation of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the
Bank is a party or by which the Bank is bound or to which any of the
property or assets of the Bank is subject, nor will such action
result in any violation of the provisions of the National Consumer
Cooperative Bank Act, as amended (the "NCCBA"), or the By-laws of
the Bank or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Bank or any of its properties; and no consent, approval,
authorization, order, registration or qualification of or with any
court or governmental agency or body is required for the
solicitation of offers to purchase Securities, the issue and sale of
the Securities or the consummation by the Bank of the other
transactions contemplated by this Agreement, any Terms Agreement or
the Indentures, except such as have been, or will have been prior to
the Commencement Date (as defined in Section 3 hereof), obtained
under the Act or the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with
the solicitation by such Agent of offers to purchase Securities from
the Bank and with purchases of Securities by such Agent as
principal, as the case may be, in each case in the manner
contemplated hereby;
(k) The Bank and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business
now operated by them and have not received any notice of proceedings
relating to the revocation or modification of any such certificate,
authority or permit that, if determined adversely to the Bank or any
of its subsidiaries, would individually or in the
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aggregate have a material adverse effect on the Bank and its
subsidiaries taken as a whole;
(l) The Bank is not in violation of the NCCBA, none of the
Bank's subsidiaries is in violation of its respective Certificate of
Incorporation or Charter, as the case may be, and neither the Bank
nor any of its subsidiaries is in violation of its By-laws or in
default in the performance or observance of any material obligation,
covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to
which it is a party or by which it or any of its properties may be
bound;
(m) The statements set forth in the Prospectus under the
captions "Description of Debt Securities" and "Description of
Notes", insofar as they purport to constitute a summary of the terms
of the Securities, under the caption "Certain United States Federal
Income Tax Considerations", and under the captions "Plan of
Distribution" and "Supplemental Plan of Distribution", insofar as
they purport to describe the provisions of the laws and documents
referred to therein, are accurate, complete and fair;
(n) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Bank or any
of its subsidiaries is a party or to which any property of the Bank
or any of its subsidiaries is subject, which, if determined
adversely to the Bank or any of its subsidiaries, would individually
or in the aggregate have a material adverse effect on the current or
future consolidated financial position, stockholders' equity or
results of operations of the Bank and its subsidiaries, and, to the
best of the Bank's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(o) The Bank is not and, after giving effect to each offering
and sale of the Securities, will not be an "investment company" or
an entity "controlled" by an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(p) Neither the Bank nor any of its affiliates does business
with the government of Cuba or with any person or affiliate located
in Cuba within the meaning of Section 517.075, Florida Statutes;
(q) Immediately after any sale of Securities by the Bank
hereunder or under any Terms Agreement, the aggregate amount of
Securities which shall have been issued and sold by the Bank
hereunder or under any Terms Agreement and of any debt securities of
the Bank (other than such Securities) that shall have been issued
and sold pursuant to the Registration Statement will not exceed the
amount of debt securities registered under the Registration
Statement;
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(r) The amount of the Bank's outstanding bonds, debentures,
notes and other evidences of indebtedness, including the
$350,000,000 aggregate amount of Securities, does not exceed ten
times the paid-in capital and surplus of the Bank; and
(s) Arthur Andersen LLP, who have certified certain financial
statements of the Bank and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of
the Commission thereunder.
2. (a) On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set forth, each of the
Agents hereby severally and not jointly agrees, as agent of the Bank, to use its
reasonable efforts to solicit and receive offers to purchase the Securities from
the Bank upon the terms and conditions set forth in the Prospectus as amended or
supplemented from time to time. So long as this Agreement shall remain in effect
with respect to any Agent, the Bank shall not, without the consent of such
Agent, solicit or accept offers to purchase, or sell, any debt securities with a
maturity at the time of original issuance of 9 months or more except pursuant to
this Agreement, any Terms Agreement, or except pursuant to a private placement
not constituting a public offering under the Act or except in connection with a
firm commitment underwriting pursuant to an underwriting agreement that does not
provide for a continuous offering of medium-term debt securities; provided,
that, if, from time to time the Bank is approached by a prospective agent
offering to solicit a specific purchase of Notes, the Bank may engage such agent
with respect to such specific purchase, provided that (i) such agent is engaged
on terms substantially similar (including the same commission schedule) to the
applicable terms of this Agreement and (ii) the Agents are given notice of such
proposed purchase prior to the time it is agreed to. The Bank reserves the right
to sell, and may solicit and accept offers to purchase, Securities directly on
its own behalf in transactions with persons other than broker-dealers, and, in
the case of any such sale not resulting from a solicitation made by any Agent,
no commission will be payable with respect to such sale. These provisions shall
not limit Section 4(f) hereof or any similar provision included in any Terms
Agreement.
Procedural details relating to the issue and delivery of Securities,
the solicitation of offers to purchase Securities and the payment in each case
therefor shall be as set forth in the Administrative Procedure attached hereto
as Annex II as it may be amended from time to time by written agreement between
the Agents and the Bank (the "Administrative Procedure"). The provisions of the
Administrative Procedure shall apply to all transactions contemplated hereunder
other than those made pursuant to a Terms Agreement. Each Agent and the Bank
agree to perform the respective duties and obligations specifically provided to
be performed by each of them in the Administrative Procedure. The Bank will
furnish to the Trustee a copy of the Administrative Procedure as from time to
time in effect.
The Bank reserves the right, in its sole discretion, to instruct the
Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase the Securities. As soon as practicable, but
in any event not later than one Business Day in New York City, after receipt of
notice from the Bank, the Agents will suspend solicitation of offers to purchase
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Securities from the Bank until such time as the Bank has advised the Agents that
such solicitation may be resumed. "Business Day" shall mean any day that is not
a Saturday or Sunday, and that in The City of New York is not a day on which
banking institutions generally are authorized or obligated by law or executive
order to close. During such period, the Bank shall not be required to comply
with the provisions of Sections 4(h), 4(i), 4(j) and 4(k). Upon advising the
Agents that such solicitation may be resumed, however, the Bank shall
simultaneously provide the documents required to be delivered by Sections 4(h),
4(i), 4(j) and 4(k), and the Agents shall have no obligation to solicit offers
to purchase the Securities until such documents have been received by the
Agents. In addition, any failure by the Bank to comply with its obligations
hereunder, including without limitation its obligations to deliver the documents
required by Sections 4(h), 4(i), 4(j) and 4(k), shall automatically terminate
the Agents' obligations hereunder, including without limitation its obligations
to solicit offers to purchase the Securities hereunder as agent or to purchase
Securities hereunder as principal.
The Bank agrees to pay each Agent a commission, at the time of
settlement of any sale of a Security by the Bank as a result of a solicitation
made by such Agent, in an amount equal to the following applicable percentage of
the principal amount of such Security sold:
MATURITY SENIOR NOTES SUBORDINATED NOTES
- -------- PERCENT OF PERCENT OF
PRINCIPAL AMOUNT PRINCIPAL AMOUNT
---------------- ----------------
Less than 9 months Negotiated at time of sale
From 9 months to less than 1 year .125% NA
From 1 year to less than 18 months .150% NA
From 18 months to less than 2 years .200% NA
From 2 years to less than 3 years .250% NA
From 3 years to less than 4 years .350% NA
From 4 years to less than 5 years .450% NA
From 5 years to less than 6 years .500% .500%
From 6 years to less than 7 years .550% .550%
From 7 years to less than 10 years .600% .600%
From 10 years to less than 12 years .625% .650%
From 12 years to less than 15 years .625% .675%
From 15 years to less than 20 years .700% .750%
From 20 years to less than 30 years .750% .875%
From 30 years and greater Negotiated at time of sale Negotiated at time of sale
(b) Each sale of Securities to any Agent as principal shall be
either:
(i) made in accordance with the terms of this
Agreement and (unless the Bank and such Agent shall otherwise
agree pursuant to clause (ii) below) a Terms Agreement which
will provide for the sale of such Securities to, and the
purchase thereof by, such Agent; a Terms Agreement may also
specify certain
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provisions relating to the reoffering of such Securities by
such Agent; the commitment of any Agent to purchase Securities
as principal, whether pursuant to any Terms Agreement or
otherwise, shall be deemed to have been made on the basis of
the representations and warranties of the Bank herein contained
and shall be subject to the terms and conditions herein set
forth; each Terms Agreement shall specify the principal amount
of Securities to be purchased by any Agent pursuant thereto,
the price to be paid to the Bank for such Securities, any
provisions relating to rights of, and default by, underwriters
acting together with such Agent in the reoffering of the
Securities and the time and date and place of delivery of and
payment for such Securities; and such Terms Agreement shall
also specify any requirements for opinions of counsel,
accountants' letters and officers' certificates pursuant to
Section 4 hereof; or
(ii) in the absence of a Terms Agreement or such
other written confirmation or communication, an oral agreement
with respect to the terms of the Securities and of their offer
and sale evidenced by the offer communicated by the presenting
Agent or Agents and accepted by the Bank, together with the
provisions of this Agreement, shall constitute an agreement
between the presenting Agent or Agents and the Bank for the
sale and purchase of such Securities (whether or not any Terms
Agreement or other written confirmation or communication shall
have been executed by the Bank or the presenting Agent or
Agents). Each Agent proposes to offer Securities purchased by
it as principal for sale at prevailing market prices or prices
related thereto at the time of sale, which may be equal to,
greater than or less than the price at which such Securities
are purchased by such Agent from the Bank.
For each sale of Securities to an Agent as principal that is not
made pursuant to a Terms Agreement, the procedural details relating to the issue
and delivery of such Securities and payment therefor shall be as set forth in
the Administrative Procedure. For each such sale of Securities to an Agent as
principal that is not made pursuant to a Terms Agreement, the Bank agrees to pay
such Agent a commission (or grant an equivalent discount) as provided in Section
2(a) hereof and in accordance with the schedule set forth therein.
Each time and date of delivery of and payment for Securities to be
purchased by an Agent as principal, whether set forth in a Terms Agreement or in
accordance with the Administrative Procedure, is referred to herein as a "Time
of Delivery".
(c) Each Agent agrees, with respect to any Security denominated
in a currency other than U.S. dollars, as agent, directly or
indirectly, not to solicit offers to purchase, and as principal
under any Terms Agreement or otherwise, directly or indirectly, not
to offer, sell or deliver, such Security in, or to residents of, the
country issuing such currency, except as permitted by applicable
law.
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(d) No Agent shall have any responsibility for maintaining
records with respect to the aggregate principal amount of Securities
sold, or otherwise monitoring the availability of Securities for
sale under the Registration Statement.
(e) Subject to purchases in principal as described herein, no
Security which the Bank has agreed to sell pursuant to this
Agreement shall be deemed to have been purchased and paid for, or
sold by the Bank, until such Security shall have been delivered to
the purchaser thereof against payment by such purchaser.
3. The documents required to be delivered pursuant to Section 6
hereof on the Commencement Date (as defined below) shall be delivered to the
Agents at the offices of Brown & Wood LLP, New York, New York, at 11:00 a.m.,
New York City time, on the date of this Agreement, which date and time of such
delivery may be postponed by agreement between the Agents and the Bank but in no
event shall be later than the day prior to the date on which solicitation of
offers to purchase Securities is commenced or on which any Terms Agreement is
executed (such time and date being referred to herein as the "Commencement
Date").
4. The Bank covenants and agrees with each Agent:
(a) (i) To make no amendment or supplement to the Registration
Statement (including any filing under Rule 462(b) of the 1933 Act
Regulations) or the Prospectus (A) prior to the Commencement Date
which shall be disapproved by any Agent promptly after reasonable
notice thereof or (B) after the date of any Terms Agreement or other
agreement by an Agent to purchase Securities as principal and prior
to the related Time of Delivery which shall be disapproved by any
Agent party to such Terms Agreement or so purchasing as principal
promptly after reasonable notice thereof; (ii) to prepare, with
respect to any Securities to be sold through or to such Agent
pursuant to this Agreement, a Pricing Supplement with respect to
such Securities in a form previously approved by such Agent and to
file such Pricing Supplement pursuant to Rule 424(b)(3) under the
Act not later than the close of business of the Commission on the
fifth business day after the date on which such Pricing Supplement
is first used; (iii) to make no amendment or supplement to the
Registration Statement (including any filing under Rule 462(b) of
the 1933 Act Regulations) or Prospectus, other than any Pricing
Supplement, at any time prior to having afforded each Agent a
reasonable opportunity to review and comment thereon; (iv) to file
promptly all reports and any definitive proxy or information
statements required to be filed by the Bank with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Securities, and during
such same period to advise such Agent, promptly after the Bank
receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or has become effective or any
supplement to the Prospectus or any amended Prospectus (other than
any Pricing Supplement that relates to Securities not purchased
through or by such Agent) has been filed with the Commission, of the
issuance by the Commission of any stop order or of any order
preventing or suspending the use of any prospectus relating to
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the Securities, of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or
of any request by the Commission for the amendment or supplement of
the Registration Statement or Prospectus or for additional
information; and (v) in the event of the issuance of any such stop
order or of any such order preventing or suspending the use of any
such prospectus or suspending any such qualification, to use
promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as such
Agent may reasonably request to qualify the Securities for offering
and sale under the securities laws of such jurisdictions as such
Agent may request and to comply with such laws so as to permit the
continuance of sales and dealings therein for as long as may be
necessary to complete the distribution or sale of the Securities;
provided, however, that in connection therewith the Bank shall not
be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction;
(c) To furnish such Agent with copies of the Registration
Statement and each amendment thereto, with copies of the Prospectus
as each time amended or supplemented, other than any Pricing
Supplement (except as provided in the Administrative Procedure), in
the form in which it is filed with the Commission pursuant to Rule
424 under the Act, and with copies of the documents incorporated by
reference therein, all in such quantities as such Agent may
reasonably request from time to time; and, if the delivery of a
prospectus is required at any time in connection with the offering
or sale of the Securities (including Securities purchased from the
Bank by such Agent as principal) and if at such time any event shall
have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made when such Prospectus is delivered, not misleading,
or, if for any other reason it shall be necessary during such same
period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Act, the Exchange Act or the
Trust Indenture Act, to promptly notify such Agent by telephone
(with confirmation in writing) and request such Agent, in its
capacity as agent of the Bank, to suspend solicitation of offers to
purchase Securities from the Bank (and, if so notified, such Agent
shall cease such solicitations as soon as practicable, but in any
event not later than one business day later); and if the Bank shall
decide to amend or supplement the Registration Statement or the
Prospectus as then amended or supplemented, to so advise such Agent
promptly by telephone (with confirmation in writing) and to prepare
and cause to be filed promptly with the Commission an amendment or
supplement to the Registration Statement or the Prospectus as then
amended or supplemented that will correct such statement or omission
or effect such compliance; provided, however, that if during such
same period such Agent continues to own Securities purchased from
the Bank by such Agent as principal or such Agent is otherwise
required to deliver a prospectus in respect of transactions in the
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Securities, the Bank shall promptly prepare and file with the
Commission such an amendment or supplement;
(d) To make generally available to its securityholders as soon
as practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement (as defined
in Rule 158(c) under the Act), an earnings statement of the Bank and
its subsidiaries (which need not be audited) complying with Section
11(a) of the Act and the rules and regulations of the Commission
thereunder (including, at the option of the Bank, Rule 158);
(e) So long as any Securities are outstanding, to furnish to
such Agent copies of all reports or other communications (financial
or other) furnished to stockholders, and deliver to such Agent (i)
as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any national
securities exchange on which any class of securities of the Bank is
listed; and (ii) such additional information concerning the business
and financial condition of the Bank as such Agent may from time to
time reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the Bank and its
subsidiaries are consolidated in reports furnished to its
stockholders generally or to the Commission);
(f) That, from the date of any Terms Agreement with such Agent
or other agreement by such Agent to purchase Securities as principal
and continuing to and including the later of (i) the termination of
the trading restrictions for the Securities purchased thereunder, as
notified to the Bank by such Agent and (ii) the related Time of
Delivery, not to offer, sell, contract to sell or otherwise dispose
of any debt securities of the Bank which both mature more than 9
months after such Time of Delivery and are substantially similar to
the Securities, without the prior written consent of such Agent;
(g) That each acceptance by the Bank of an offer to purchase
Securities hereunder (including any purchase by such Agent as
principal not pursuant to a Terms Agreement), and each execution and
delivery by the Bank of a Terms Agreement with such Agent, shall be
deemed to be an affirmation to such Agent that the representations
and warranties of the Bank contained in or made pursuant to this
Agreement are true and correct as of the date of such acceptance or
of such Terms Agreement, as the case may be, as though made at and
as of such date, and an undertaking that such representations and
warranties will be true and correct as of the settlement date for
the Securities relating to such acceptance or as of the Time of
Delivery relating to such sale, as the case may be, as though made
at and as of such date (except that such representations and
warranties shall be deemed to relate to the Registration Statement
and the Prospectus as amended and supplemented relating to such
Securities);
(h) That reasonably in advance of each time the Registration
Statement or the Prospectus shall be amended or supplemented (other
than by a Pricing Supplement), each time a document filed under the
Act or the Exchange Act is incorporated by reference
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into the Prospectus, and each time the Bank sells Securities to such
Agent as principal pursuant to a Terms Agreement and such Terms
Agreement specifies the delivery of an opinion or opinions by Brown
& Wood LLP, counsel to the Agents, as a condition to the purchase of
Securities pursuant to such Terms Agreement, the Bank shall furnish
to such counsel such papers and information as they may reasonably
request to enable them to furnish to such Agent the opinion or
opinions referred to in Section 6(b) hereof;
(i) That each time the Registration Statement or the Prospectus
shall be amended or supplemented (other than by a Pricing
Supplement), each time a document filed under the Act or the
Exchange Act is incorporated by reference into the Prospectus and
each time the Bank sells Securities to such Agent as principal
pursuant to a Terms Agreement and such Terms Agreement specifies the
delivery of an opinion under this Section 4(i) as a condition to the
purchase of Securities pursuant to such Terms Agreement, the Bank
shall furnish or cause to be furnished forthwith to such Agent a
written opinion of Shea & Gardner, counsel for the Bank, or other
counsel for the Bank satisfactory to such Agent, dated the date of
such amendment, supplement, incorporation or Time of Delivery
relating to such sale, as the case may be, in form satisfactory to
such Agent, to the effect that such Agent may rely on the opinion of
such counsel referred to in Section 6(c) hereof which was last
furnished to such Agent to the same extent as though it were dated
the date of such letter authorizing reliance (except that the
statements in such last opinion shall be deemed to relate to the
Registration Statement and the Prospectus as amended and
supplemented to such date) or, in lieu of such opinion, an opinion
of the same tenor as the opinion of such counsel referred to in
Section 6(c) hereof but modified to relate to the Registration
Statement and the Prospectus as amended and supplemented to such
date;
(j) That each time the Registration Statement or the Prospectus
shall be amended or supplemented and each time that a document filed
under the Act or the Exchange Act is incorporated by reference into
the Prospectus, in either case to set forth financial information
included in or derived from the Bank's consolidated financial
statements or accounting records, and each time the Bank sells
Securities to such Agent as principal pursuant to a Terms Agreement
and such Terms Agreement specifies the delivery of a letter under
this Section 4(j) as a condition to the purchase of Securities
pursuant to such Terms Agreement, the Bank shall cause the
independent certified public accountants who have certified the
financial statements of the Bank and its subsidiaries included or
incorporated by reference in the Registration Statement forthwith to
furnish such Agent a letter, dated the date of such amendment,
supplement, incorporation or Time of Delivery relating to such sale,
as the case may be, in form satisfactory to such Agent, of the same
tenor as the letter referred to in Section 6(d) hereof but modified
to relate to the Registration Statement and the Prospectus as
amended or supplemented to the date of such letter, with such
changes as may be necessary to reflect changes in the financial
statements and other information derived from the accounting records
of the Bank, to the extent such financial statements and other
information are available as of a date not more than five business
days prior to the date of such letter; provided, however, that, with
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respect to any financial information or other matter, such letter
may reconfirm as true and correct at such date as though made at and
as of such date, rather than repeat, statements with respect to such
financial information or other matter made in the letter referred to
in Section 6(d) hereof which was last furnished to such Agent;
(k) That each time the Registration Statement or the Prospectus
shall be amended or supplemented (other than by a Pricing
Supplement), each time a document filed under the Act or the
Exchange Act is incorporated by reference into the Prospectus and
each time the Bank sells Securities to such Agent as principal and
the applicable Terms Agreement specifies the delivery of a
certificate under this Section 4(k) as a condition to the purchase
of Securities pursuant to such Terms Agreement, the Bank shall
furnish or cause to be furnished forthwith to such Agent a
certificate, dated the date of such supplement, amendment,
incorporation or Time of Delivery relating to such sale, as the case
may be, in such form and executed by such officers of the Bank as
shall be satisfactory to such Agent, to the effect that the
statements contained in the certificates referred to in Section 6(i)
hereof which was last furnished to such Agent are true and correct
at such date as though made at and as of such date (except that such
statements shall be deemed to relate to the Registration Statement
and the Prospectus as amended and supplemented to such date) or, in
lieu of such certificate, certificates of the same tenor as the
certificates referred to in said Section 6(i) but modified to relate
to the Registration Statement and the Prospectus as amended and
supplemented to such date; and
(l) To offer to any person who has agreed to purchase
Securities from the Bank as the result of an offer to purchase
solicited by such Agent the right to refuse to purchase and pay for
such Securities if, on the related settlement date fixed pursuant to
the Administrative Procedure, any condition set forth in Section
6(a), 6(e), 6(f) or 6(g) hereof shall not have been satisfied (it
being understood that the judgment of such person with respect to
the impracticability or inadvisability of such purchase of
Securities shall be substituted, for purposes of this Section 4(l),
for the respective judgments of an Agent with respect to certain
matters referred to in such Sections 6(e) and 6(g), and that such
Agent shall have no duty or obligation whatsoever to exercise the
judgment permitted under such Sections 6(e) and 6(g) on behalf of
any such person).
5. The Bank covenants and agrees with each Agent that the Bank will
pay or cause to be paid the following: (i) the fees, disbursements and expenses
of the Bank's counsel and accountants in connection with the registration of the
Securities under the Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, any Preliminary
Prospectus, the Prospectus and any Pricing Supplements and all other amendments
and supplements thereto and the mailing and delivering of copies thereof to such
Agent; (ii) the fees, disbursements and expenses of counsel for the Agents in
connection with the establishment of the program contemplated hereby, any
opinions to be rendered by such counsel hereunder and under any Terms Agreement
and the transactions contemplated hereunder and under any Terms Agreement; (iii)
the cost of printing, producing or reproducing this Agreement,
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any Terms Agreement, any Indentures, any Blue Sky and Legal Investment
Memoranda, closing documents (including any compilations thereof) and any other
documents in connection with the offering, purchase, sale and delivery of the
Securities; (iv) all expenses in connection with the qualification of the
Securities for offering and sale under state securities laws as provided in
Section 4(b) hereof, including the fees and disbursements of counsel for the
Agents in connection with such qualification and in connection with the Blue Sky
and legal investment surveys; (v) any fees charged by securities rating services
for rating the Securities; (vi) any filing fees incident to, and the fees and
disbursements of counsel for the Agents in connection with, any required review
by the National Association of Securities Dealers, Inc. of the terms of the sale
of the Securities; (vii) the cost of preparing the Securities; (viii) the fees
and expenses of any Trustee and any agent of any Trustee and any transfer or
paying agent of the Bank and the fees and disbursements of counsel for any
Trustee or such agent in connection with any Indentures and the Securities; (ix)
any advertising expenses connected with the solicitation of offers to purchase
and the sale of Securities so long as such advertising expenses have been
approved by the Bank; and (x) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. Except as provided in Sections 7 and 8 hereof,
each Agent shall pay all other expenses it incurs.
6. The obligation of any Agent, as agent of the Bank, at any time
("Solicitation Time") to solicit offers to purchase the Securities and the
obligation of any Agent to purchase Securities as principal, pursuant to any
Terms Agreement or otherwise, shall in each case be subject, in such Agent's
discretion, to the condition that all representations and warranties and other
statements of the Bank herein (and, in the case of an obligation of an Agent
under a Terms Agreement, in or incorporated by reference in such Terms
Agreement) are true and correct at and as of the Commencement Date and any
applicable date referred to in Section 4(k) hereof that is prior to such
Solicitation Time or Time of Delivery, as the case may be, and at and as of such
Solicitation Time or Time of Delivery, as the case may be, the condition that
prior to such Solicitation Time or Time of Delivery, as the case may be, the
Bank shall have performed all of its obligations hereunder theretofore to be
performed, and the following additional conditions:
(a) (i) With respect to any Securities sold at or prior to such
Solicitation Time or Time of Delivery, as the case may be, the
Prospectus as amended or supplemented (including the Pricing
Supplement) with respect to such Securities shall have been filed
with the Commission pursuant to Rule 424(b) under the Act within the
applicable time period prescribed for such filing by the rules and
regulations under the Act and in accordance with Section 4(a)
hereof; (ii) no stop order suspending the effectiveness of the
Registration Statement (including any Rule 462(b) Registration
Statement) shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and (iii)
all requests for additional information on the part of the
Commission shall have been complied with to the reasonable
satisfaction of such Agent;
(b) Brown & Wood LLP, counsel to the Agents, shall have
furnished to such Agent (i) such opinion or opinions, dated the
Commencement Date, with respect to the matters covered in paragraphs
(i), (v), (vii), (xii) and (xv) of subsection (c) below, as well
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as such other related matters as such Agent may reasonably request,
and (ii) if and to the extent requested by such Agent, with respect
to each applicable date referred to in Section 4(h) hereof that is
on or prior to such Solicitation Time or Time of Delivery, as the
case may be, an opinion or opinions, dated such applicable date, to
the effect that such Agent may rely on the opinion or opinions which
were last furnished to such Agent pursuant to this Section 6(b) to
the same extent as though it or they were dated the date of such
letter authorizing reliance (except that the statements in such last
opinion or opinions shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such
date) or, in any case, in lieu of such an opinion or opinions, an
opinion or opinions of the same tenor as the opinion or opinions
referred to in clause (i) but modified to relate to the Registration
Statement and the Prospectus as amended and supplemented to such
date; and in each case such counsel shall have received such papers
and information as they may reasonably request to enable them to
pass upon such matters;
(c) Shea & Gardner, counsel for the Bank, or other counsel for
the Bank satisfactory to such Agent, shall have furnished to such
Agent their written opinions, dated the Commencement Date and each
applicable date referred to in Section 4(i) hereof that is on or
prior to such Solicitation Time or Time of Delivery, as the case may
be, in form and substance satisfactory to such Agent, to the effect
that:
(i) The Bank is a financial institution duly
organized, validly existing and in good standing under the laws
of the United States and has full power and authority to
conduct its business as described in the Prospectus as amended
or supplemented and the Bank is duly qualified to do business
as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or
the conduct of its business requires such qualification;
(ii) Each subsidiary of the Bank has been duly
incorporated and is an existing corporation in good standing
under the laws of the jurisdiction of its incorporation, with
power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectus; and
each subsidiary of the Bank is duly qualified to do business as
a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or
the conduct of its business requires such qualification; all of
the issued and outstanding capital stock of each subsidiary of
the Bank has been duly authorized and validly issued and is
fully paid and nonassessable; and the capital stock of each
subsidiary owned by the Bank, directly or through subsidiaries,
is owned free from liens, encumbrances and defects;
(iii) The Bank has an authorized capitalization as set
forth in the Prospectus as amended or supplemented and all of
the issued shares of capital stock of the Bank have been duly
and validly authorized and issued and are fully paid and
non-assessable;
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(iv) To the best of such counsel's knowledge and other
than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Bank or any of
its subsidiaries is a party or to which any property of the
Bank or any of its subsidiaries is subject, which, if
determined adversely to the Bank or any of its subsidiaries,
would individually or in the aggregate have a material adverse
effect on the current or future consolidated financial
position, stockholders' equity or results of operations of the
Bank and its subsidiaries; and to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others;
(v) This Agreement and any applicable Terms Agreement
have been duly authorized, executed and delivered by the Bank;
(vi) The Securities have been duly authorized and,
when duly executed, authenticated, issued and delivered by the
Bank, will constitute valid and legally binding obligations of
the Bank entitled to the benefits provided by the Indentures;
and the Indentures conform and the Securities will conform to
the descriptions thereof in the Prospectus as amended or
supplemented;
(vii) The Indentures have been duly authorized,
executed and delivered by the parties thereto and constitute
valid and legally binding instruments, enforceable in
accordance with their terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors'
rights and to general equity principles; and the Indentures
have been duly qualified under the Trust Indenture Act;
(viii) The Bank and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct the
business now operated by them and have not received any notice
of proceedings relating to the revocation or modification of
any such certificate, authority or permit that, if determined
adversely to the Bank or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect
on the Bank and its subsidiaries taken as a whole;
(ix) The issue and sale of the Securities, the
compliance by the Bank with all of the provisions of the
Securities, the Indentures, this Agreement and any applicable
Terms Agreement and the consummation of the transactions herein
and therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known to
such counsel to which the Bank is a party or by which the Bank
is bound or to which any of the property or assets of the Bank
is subject, nor will such action result in any violation of the
provisions of the NCCBA or the By-laws of the Bank or any
statute or any order, rule or regulation known to such counsel
of any
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court or governmental agency or body having jurisdiction over
the Bank or any of its properties;
(x) No consent, approval, authorization, order,
registration or qualification of or with any court or
governmental agency or body is required for the solicitation of
offers to purchase Securities, the issue and sale of the
Securities or the consummation by the Bank of the other
transactions contemplated by this Agreement, any applicable
Terms Agreement, or the Indentures, except such as have been
obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or
Blue Sky laws in connection with the solicitation by the Agents
of offers to purchase Securities from the Bank and with
purchases of Securities by an Agent as principal, as the case
may be, in each case in the manner contemplated hereby;
(xi) The Bank is not in violation of the NCCBA, none
of the Bank's subsidiaries is in violation of its respective
Certificate of Incorporation or Charter, as the case may be,
and neither the Bank nor any of its subsidiaries is in
violation of its By-laws or in default in the performance or
observance of any material obligation, covenant or condition
contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it
is a party or by which it or any of its properties may be
bound;
(xii) The statements set forth in the Prospectus under
the caption "Description of Debt Securities" and "Description
of Notes", to the extent they relate to the Notes, are
accurate, complete and fair;
(xiii) The Bank is not and, after giving effect to the
offering and sale of the Securities, will not be an "investment
company" or an entity "controlled" by an "investment company",
as such terms are defined in the Investment Company Act;
(xiv) The documents incorporated by reference in the
Prospectus (other than the financial statements and related
schedules therein, as to which such counsel need express no
opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all
material respects with the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder; and they have no reason to believe
that any of such documents, when they became effective or were
so filed, as the case may be, contained, in the case of a
registration statement which became effective under the Act, an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading, and, in the case of
other documents which were filed under the Act or the Exchange
Act with the Commission, an untrue statement of a
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material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made when such documents
were so filed, not misleading; and
(xv) The Registration Statement and the Prospectus as
amended and supplemented and any further amendments and
supplements thereto made by the Bank prior to the date of such
opinion (other than the financial statements and related
schedules therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the Act and the Trust Indenture Act and the
rules and regulations thereunder; although they do not assume
any responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement or
the Prospectus, except for those referred to in the opinion in
subsection (xii) of this Section 6(c), they have no reason to
believe that, as of its effective date, the Registration
Statement or any further amendment or supplement thereto made
by the Bank prior to the date of such opinion (other than the
financial statements and related schedules therein, as to which
such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading or that, as of the date of
such opinion, the Prospectus as amended or supplemented or any
further amendment or supplement thereto made by the Bank prior
to the date of such opinion (other than the financial
statements and related schedules therein, as to which such
counsel need express no opinion) contained an untrue statement
of a material fact or omitted to state a material fact
necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading; and they
do not know of any amendment to the Registration Statement
required to be filed or any contracts or other documents of a
character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by
reference into the Prospectus as amended or supplemented or
required to be described in the Registration Statement or the
Prospectus as amended or supplemented which are not filed or
incorporated by reference or described as required.
(d) Not later than 10:00 a.m., New York City time, on the
Commencement Date and on each applicable date referred to in Section
4(j) hereof that is on or prior to such Solicitation Time or Time of
Delivery, as the case may be, the independent certified public
accountants who have certified the financial statements of the Bank
and its subsidiaries included or incorporated by reference in the
Registration Statement shall have furnished to such Agent a letter,
dated the Commencement Date or such applicable date, as the case may
be, in form and substance satisfactory to such Agent, to the effect
set forth in Annex III hereto;
(e) (i) Neither the Bank nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the
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Prospectus as amended or supplemented prior to the date of the
Pricing Supplement relating to the Securities to be delivered at the
relevant Time of Delivery any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus as amended or supplemented prior to
the date of the Pricing Supplement relating to the Securities to be
delivered at the relevant Time of Delivery and (ii) since the
respective dates as of which information is given in the Prospectus
as amended or supplemented prior to the date of the Pricing
Supplement relating to the Securities to be delivered at the
relevant Time of Delivery there shall not have been any change in
the capital stock or long-term debt of the Bank or any of its
subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of
the Bank and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus as amended or supplemented prior to
the date of the Pricing Supplement relating to the Securities to be
delivered at the relevant Time of Delivery, the effect of which, in
any such case described in Clause (i) or (ii), is in the judgment of
such Agent so material and adverse as to make it impracticable or
inadvisable to proceed with the solicitation by such Agent of offers
to purchase Securities from the Bank or the purchase by such Agent
of Securities from the Bank as principal, as the case may be, on the
terms and in the manner contemplated in the Prospectus as amended or
supplemented prior to the date of the Pricing Supplement relating to
the Securities to be delivered at the relevant Time of Delivery;
(f) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Bank's debt securities by any
"nationally recognized statistical rating organization", as that
term is defined by the Commission for purposes of Rule 436(g)(2)
under the Act, and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Bank's debt
securities;
(g) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange; (ii)
a general moratorium on commercial banking activities in New York
declared by either Federal or New York State authorities; or (iii)
the outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national
emergency or war, if the effect of any such event specified in the
Clause (iii) in the judgment of such Agent makes it impracticable or
inadvisable to proceed with the solicitation of offers to purchase
Securities or the purchase of the Securities from the Bank as
principal pursuant to the applicable Terms Agreement or otherwise,
as the case may be, on the terms and in the manner contemplated in
the Prospectus;
(h) With respect to any Security denominated in a currency
other than the U.S. dollar, more than one currency or a composite
currency or any Security the principal or interest of which is
indexed to such currency, currencies or composite currency, there
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shall not have occurred a suspension or material limitation in
foreign exchange trading in such currency, currencies or composite
currency by a major international bank, a general moratorium on
commercial banking activities in the country or countries issuing
such currency, currencies or composite currency, the outbreak or
escalation of hostilities involving, the occurrence of any material
adverse change in the existing financial, political or economic
conditions of, or the declaration of war or a national emergency by,
the country or countries issuing such currency, currencies or
composite currency or the imposition or proposal of exchange
controls by any governmental authority in the country or countries
issuing such currency, currencies or composite currency;
(i) The Bank shall have furnished or caused to be furnished to
such Agent certificates of officers of the Bank dated the
Commencement Date and each applicable date referred to in Section
4(k) hereof that is on or prior to such Solicitation Time or Time of
Delivery, as the case may be, in such form and executed by such
officers of the Bank as shall be satisfactory to such Agent, as to
the accuracy of the representations and warranties of the Bank
herein at and as of the Commencement Date or such applicable date,
as the case may be, as to the performance by the Bank of all of its
obligations hereunder to be performed at or prior to the
Commencement Date or such applicable date, as the case may be, as to
the matters set forth in subsections (a) and (e) of this Section 6,
and as to such other matters as such Agent may reasonably request.
7. (a) The Bank will indemnify and hold harmless each Agent against
any losses, claims, damages or liabilities, joint or several, to
which such Agent may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained
in any Preliminary Prospectus, the Registration Statement, the
Prospectus, the Prospectus as amended or supplemented or any other
prospectus relating to the Securities, or any amendment 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 will reimburse such Agent for any legal or other
expenses reasonably incurred by it in connection with investigating
or defending any such action, claim, damage, liability or loss as
such expenses are incurred; provided, however, that the Bank shall
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 an untrue
statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus, the Registration
Statement, the Prospectus, the Prospectus as amended or supplemented
or any other prospectus relating to the Securities, or any such
amendment or supplement, in reliance upon and in conformity with
written information furnished to the Bank by such Agent expressly
for use therein, unless such loss, claim, damage or liability arises
out of the offer or sale of Securities occurring after the Agent has
notified the Bank in writing that such information should no longer
be used therein, it being understood and agreed that the only such
information furnished by any Agent consists of the information
described as such in subsection (b) below.
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(b) Each Agent will (severally and not jointly) indemnify and
hold harmless the Bank against any losses, claims, damages or
liabilities to which the Bank may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement,
the Prospectus, the Prospectus as amended or supplemented or any
other prospectus relating to the Securities, or any amendment 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, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Prospectus, the
Registration Statement, the Prospectus, the Prospectus as amended or
supplemented or any other prospectus relating to the Securities, or
any such amendment or supplement, in reliance upon and in conformity
with written information furnished to the Bank by such Agent
expressly for use therein; and will reimburse the Bank for any legal
or other expenses reasonably incurred by the Bank in connection with
investigating or defending any such action or claim as such expenses
are incurred, unless such loss, claim, damage or liability arises
out of the offer or sale of Securities occurring after the Agent has
notified the Bank in writing that such information should no longer
be used therein it being understood and agreed that the only such
information furnished by any Agent consists of the second sentence
and the fourth sentence of the second paragraph under "Supplemental
Plan of Distribution".
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof
is to be made against the indemnifying party under such subsection,
notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any
indemnified party otherwise than under such subsection. In case any
such action shall be brought against any indemnified party and it
shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to
the extent that it shall wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party
to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense
thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified
party is an actual or potential party to such action or
22
23
claim) unless such settlement, compromise or judgment (i) includes
an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure
to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Bank on the one hand and each
Agent on the other from the offering of the Securities to which such
loss, claim, damage or liability (or action in respect thereof)
relates. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute
to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Bank on the one hand and
each Agent on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by
the Bank on the one hand and each Agent on the other shall be deemed
to be in the same proportion as the total net proceeds from the sale
pursuant to this Agreement of the Securities which are the subject
of the losses, claims, damages or liabilities (or actions in respect
thereof) (before deducting expenses) received by the Bank bear to
the total commissions or discounts received by such Agent in respect
thereof. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a
material fact required to be stated therein or necessary in order to
make the statements therein not misleading relates to information
supplied by the Bank on the one hand or by any Agent on the other
and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or
omission. The Bank and each Agent agree that it would not be just
and equitable if contribution pursuant to this subsection (d) were
determined by per capita allocation (even if all Agents were treated
as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred
to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in
this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), an Agent
shall not be required to contribute any amount in excess of the
amount by which the total public offering price at which the
Securities purchased by or through it were sold exceeds the amount
of any damages which such Agent has otherwise been required to pay
by reason of such untrue
23
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or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
obligations of each of the Agents under this subsection (d) to
contribute are several in proportion to the respective purchases
made by or through it to which such loss, claim, damage or liability
(or action in respect thereof) relates and are not joint.
(e) The obligations of the Bank under this Section 7 shall be
in addition to any liability which the Bank may otherwise have and
shall extend, upon the same terms and conditions, to each person, if
any, who controls any Agent within the meaning of the Act; and the
obligations of each Agent under this Section 7 shall be in addition
to any liability which such Agent may otherwise have and shall
extend, upon the same terms and conditions, to each officer and
director of the Bank and to each person, if any, who controls the
Bank within the meaning of the Act.
8. Each Agent, in soliciting offers to purchase Securities from the
Bank and in performing the other obligations of such Agent hereunder (other than
in respect of any purchase by an Agent as principal, pursuant to a Terms
Agreement or otherwise), is acting solely as agent for the Bank and not as
principal. Each Agent will make reasonable efforts to assist the Bank in
obtaining performance by each purchaser whose offer to purchase Securities from
the Bank was solicited by such Agent and has been accepted by the Bank, but such
Agent shall not have any liability to the Bank in the event such purchase is not
consummated for any reason. If the Bank shall default on its obligation to
deliver Securities to a purchaser whose offer it has accepted, the Bank shall
(i) hold each Agent harmless against any loss, claim or damage arising from or
as a result of such default by the Bank and (ii) notwithstanding such default,
pay to the Agent that solicited such offer any commission to which it would be
entitled in connection with such sale.
9. The respective indemnities, agreements, representations,
warranties and other statements by any Agent and the Bank set forth in or made
pursuant to this Agreement shall remain in full force and effect regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Agent or any controlling person of any Agent, or the Bank, or any
officer or director or any controlling person of the Bank, and shall survive
each delivery of and payment for any of the Securities. If this Agreement is
suspended or terminated pursuant to Section 10 hereof or for any other reason or
if for any reason the sale of Securities described in a confirmation or Terms
Agreement referred to in Section 2 by the Bank to an Agent is not consummated,
the Bank shall remain responsible for the expenses to be paid or reimbursed by
it pursuant to Section 5 and the obligations of the Bank under Sections 4(d) and
4(e).
10. The provisions of this Agreement relating to the solicitation of
offers to purchase Securities from the Bank may be suspended or terminated at
any time by the Bank as to any Agent or by any Agent as to such Agent upon the
giving of one Business Day's written notice of such suspension or termination to
such Agent or the Bank, as the case may be. In the event of such suspension or
termination with respect to any Agent, (x) this Agreement shall remain in full
24
25
force and effect with respect to any Agent as to which such suspension or
termination has not occurred, (y) this Agreement shall remain in full force and
effect with respect to the rights and obligations of any party which have
previously accrued or which relate to Securities which are already issued,
agreed to be issued or the subject of a pending offer at the time of such
suspension or termination and (z) in any event, this Agreement shall remain in
full force and effect insofar as the fourth paragraph of Section 2(a), and
Sections 4(d), 4(e), 5, 7, 8 and 9 hereof are concerned.
11. If at any time the Bank and any of the Agents shall determine to
issue and sell Securities denominated in a currency other than U.S. dollars,
which other currency may include a currency unit, or with respect to which an
index is used to determine the amounts of payments of principal and any premium
and interest, the Bank and any such Agent may execute and deliver a supplement
to this Agreement for the purpose of making any appropriate additions to and
modifications of the terms of this Agreement (and the Procedures) applicable to
such Securities and the offer and sale thereof. The Bank will not issue
Securities denominated in Yen otherwise than in compliance with applicable
Japanese laws, regulations and policies. In particular, the Bank or its
designated agent shall submit such reports or information as may be required
from time to time by applicable law, regulations and guidelines promulgated by
Japanese governmental and regulatory authorities in the case of the issue and
purchase of the Securities and the Bank shall ensure that each such Security
shall have such minimum denomination and maturity as may be allowed from time to
time by Japanese governmental and regulatory authorities.
12. Except as otherwise specifically provided herein or in the
Administrative Procedure, all statements, requests, notices and advices
hereunder shall be in writing, or by telephone if promptly confirmed in writing,
and if to Credit Suisse First Boston Corporation shall be sufficient in all
respects when delivered or sent by facsimile transmission or registered mail to
Eleven Madison Avenue, New York, New York 10010, Facsimile Transmission No.
(212) 325-8183, Attention: Short and Medium Term Finance; if to Banc of America
Securities LLC shall be sufficient in all respects when delivered or sent by
telex, facsimile transmission or registered mail to Bank of America Corporate
Center, NC1-007-07-01, 100 North Tryon Street, Charlotte, NC 28255-0001,
Facsimile Transmission No. (704) 388-9939; if to Banc One Capital Markets, Inc.
shall be sufficient in all respects when delivered or sent by telex, facsimile
transmission or registered mail to 1 Banc One Plaza, Chicago, IL 60670,
Facsimile Transmission No. (312) 732-4773, Attention: Corporate Securities
Structuring; if to SPP Capital Partners, LLC shall be sufficient in all respects
when delivered or sent by telex, facsimile transmission or registered mail to
330 Madison Avenue, 28th Floor, New York, New York 10017, Facsimile Transmission
No. (212) 455-4545, Attention Amy Lazarus; and if to the Bank shall be
sufficient in all respects when delivered or sent by facsimile transmission or
registered mail to 1401 Eye Street N.W., Suite 700, Washington, D.C. 20005,
Facsimile Transmission No. (202) 336-7803, Attention: Treasurer.
13. This Agreement and any Terms Agreement shall be binding upon,
and inure solely to the benefit of, each Agent and the Bank, and to the extent
provided in Sections 7, 8 and 9 hereof,
25
26
the officers and directors of the Bank and any person who controls any Agent or
the Bank, and their respective personal representatives, successors and assigns,
and no other person shall acquire or have any right under or by virtue of this
Agreement or any Terms Agreement. No purchaser of any of the Securities through
or from any Agent hereunder shall be deemed a successor or assign by reason
merely of such purchase.
14. Time shall be of the essence in this Agreement and any Terms
Agreement. As used herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
15. THIS AGREEMENT AND ANY TERMS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO THE PRINCIPLES OF NEW YORK STATE'S CONFLICT OF LAWS RULES.
16. This Agreement and any Terms Agreement may be executed by any
one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be an original, but all of such respective counterparts
shall together constitute one and the same instrument.
26
27
If the foregoing is in accordance with your understanding, please
sign and return to us five counterparts hereof, whereupon this letter and the
acceptance by each of you thereof shall constitute a binding agreement between
the Bank and each of you in accordance with its terms.
Very truly yours,
National Consumer Cooperative Bank
By: /s/ William E. Seas III
-----------------------------------
Name: William E. Seas
Title: Treasurer
CREDIT SUISSE FIRST BOSTON CORPORATION
BANC OF AMERICA SECURITIES LLC
BANC ONE CAPITAL MARKETS, INC.
SPP CAPITAL PARTNERS, LLC
By: Credit Suisse First Boston Corporation
By: /s/ Helena Willner
------------------------------------
Authorized Signatory
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28
ANNEX I
NATIONAL CONSUMER COOPERATIVE BANK
MEDIUM-TERM SENIOR NOTES, SERIES B
MEDIUM-TERM SUBORDINATED NOTES, SERIES B
DUE 9 MONTHS OR MORE FROM DATE OF ISSUE
Terms Agreement
____________, ____
[CREDIT SUISSE FIRST BOSTON CORPORATION
ELEVEN MADISON AVENUE
NEW YORK, NEW YORK 10010]
[BANC OF AMERICA SECURITIES LLC
BANK OF AMERICA CORPORATE CENTER
NC1-007-07-01
100 NORTH TRYON STREET
CHARLOTTE, NORTH CAROLINA 28255-0001]
[BANC ONE CAPITAL MARKETS, INC.
1 BANC ONE PLAZA
CHICAGO, ILLINOIS 60670]
[SPP CAPITAL PARTNERS, LLC
330 MADISON AVENUE, 28TH FLOOR
NEW YORK, NEW YORK 10017]
Ladies and Gentlemen:
National Consumer Cooperative Bank (the "Bank") proposes, subject to
the terms and conditions stated herein and in the Distribution Agreement, dated
January 7, 2000 (the "Distribution Agreement"), between the Bank on the one hand
and Credit Suisse First Boston Corporation, Banc of America Securities LLC, Banc
One Capital Markets, Inc., and SPP Capital Partners, LLC (the "Agents") on the
other, to issue and sell to the securities specified in the Schedule hereto (the
"Purchased Securities"). Each of the provisions of the Distribution Agreement
not specifically related to the solicitation by the Agents, as agents of the
Bank, of offers to purchase Securities is incorporated herein by reference in
its entirety, and shall be deemed to be part of this Terms Agreement to the same
extent as if such provisions had been set forth in full herein. Nothing
contained herein or in the Distribution Agreement shall make any party hereto an
agent of the Bank or make such party subject to the provisions therein relating
to the solicitation of offers to purchase Securities from the Bank, solely by
virtue of its execution of
I-1
29
this Terms Agreement. Each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Terms
Agreement, except that each representation and warranty in Section 1 of the
Distribution Agreement which makes reference to the Prospectus shall be deemed
to be a representation and warranty as of the date of the Distribution Agreement
in relation to the Prospectus (as therein defined), and also a representation
and warranty as of the date of this Terms Agreement in relation to the
Prospectus as amended and supplemented to relate to the Purchased Securities.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Purchased Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Distribution Agreement incorporated herein by reference, the Bank agrees to
issue and sell to [CREDIT SUISSE FIRST BOSTON CORPORATION], [BANC OF AMERICA
SECURITIES LLC], [BANC ONE CAPITAL MARKETS, INC.], AND [SPP CAPITAL PARTNERS,
LLC] and [CREDIT SUISSE FIRST BOSTON CORPORATION], [BANC OF AMERICA SECURITIES
LLC], [BANC ONE CAPITAL MARKETS, INC.], AND [SPP CAPITAL PARTNERS, LLC] agree to
purchase from the Bank the Purchased Securities, at the time and place, in the
principal amount and at the purchase price set forth in the Schedule hereto.
I-2
30
If the foregoing is in accordance with your understanding, please
sign and return to us five counterparts hereof, and upon acceptance hereof by
you this letter and such acceptance hereof, including those provisions of the
Distribution Agreement incorporated herein by reference, shall constitute a
binding agreement between you and the Bank.
National Consumer Cooperative Bank
By:
--------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON CORPORATION
BANC OF AMERICA SECURITIES LLC
BANC ONE CAPITAL MARKETS, INC.
SPP CAPITAL PARTNERS, LLC
By: Credit Suisse First Boston Corporation
By:
---------------------------------
Authorized Signatory
I-3
31
SCHEDULE TO ANNEX I
Title of Purchased Securities:
[ %] Medium-Term Senior Notes[, SERIES [ ]]
[ %] Medium-Term Subordinated Notes[, SERIES [ ]]
Aggregate Principal Amount:
[$__________]
[PRICE TO PUBLIC:]
Purchase Price by [CREDIT SUISSE FIRST BOSTON CORPORATION], [BANC OF AMERICA
SECURITIES LLC], [BANC ONE CAPITAL MARKETS, INC.], AND [SPP CAPITAL PARTNERS,
LLC]:
% of the principal amount of the Purchased Securities[, PLUS ACCRUED
INTEREST FROM _______ TO _______] [AND ACCRUED AMORTIZATION, IF ANY, FROM ______
TO _____]
Method of and Specified Funds for Payment of Purchase Price:
[BY CERTIFIED OR OFFICIAL BANK CHECK OR CHECKS, PAYABLE TO THE ORDER
OF THE BANK, IN IMMEDIATELY AVAILABLE FUNDS]
[BY WIRE TRANSFER TO A BANK ACCOUNT SPECIFIED BY THE BANK IN
IMMEDIATELY AVAILABLE FUNDS]
Senior Indenture:
Senior Indenture, dated as of January 15, 1997, between the Bank and
The First National Bank of Chicago, as Trustee
Subordinated Indenture:
Subordinated Indenture, dated as of January 7, 2000, between the
Bank and Bank One Trust Company, N.A., as Trustee
Time of Delivery:
Closing Location for Delivery of Securities:
Maturity:
Interest Rate:
Sch-1
32
[ %]
Interest Payment Dates:
[MONTHS AND DATES]
Documents to be Delivered:
The following documents referred to in the Distribution Agreement
shall be delivered as a condition to the Closing:
[(1) THE OPINION OR OPINIONS OF COUNSEL TO THE AGENTS REFERRED TO
IN SECTION 4(h).]
[(2) THE OPINION OF COUNSEL TO THE BANK REFERRED TO IN SECTION
4(i).]
[(3) THE ACCOUNTANTS' LETTER REFERRED TO IN SECTION 4(j).]
[(4) THE OFFICERS' CERTIFICATE REFERRED TO IN SECTION 4(k).]
Other Provisions (including Syndicate Provisions, if applicable):
Sch-2
33
ANNEX II
ADMINISTRATIVE PROCEDURES
FOR FIXED AND FLOATING RATE MEDIUM-TERM SENIOR AND SUBORDINATED NOTES, SERIES B
DUE 9 MONTHS OR MORE FROM DATE OF ISSUE
DATED AS OF JANUARY 7, 2000
Medium-Term Senior Notes, Series B (the "Senior Notes") and
Medium-Term Subordinated Notes, Series B (the "Subordinated Notes" and, together
with the Senior Notes, the "Notes"), are to be offered on a continuing basis by
National Consumer Cooperative Bank ("NCB"), to or through Credit Suisse First
Boston Corporation, Banc of America Securities LLC, Banc One Capital Markets,
Inc. and SPP Capital Partners, LLC (each, an "Agent" and, collectively, the
"Agents"), pursuant to a Distribution Agreement dated January 7, 2000 (the
"Distribution Agreement") among NCB and the Agents. The Distribution Agreement
provides both for the sale of Notes by NCB to one or more of the Agents as
principal for resale to investors and other purchasers and for the sale of Notes
by NCB directly to investors (as may from time to time be agreed to by NCB and
the related Agents) in which case the Agents will act as agents of NCB in
soliciting Note purchases.
Unless otherwise agreed by the related Agents and NCB, Notes will be
purchased by the related Agents as principal. Such purchases will be made in
accordance with terms agreed upon by the related Agents and NCB (which terms,
unless otherwise agreed, shall be agreed upon orally, with written confirmation
prepared by the related Agents and mailed to NCB). If agreed upon by NCB and the
applicable Agent, such Agent, acting solely for NCB and not as principal, will
use its reasonable efforts to solicit offers to purchase the Notes. Only those
provisions in these Administrative Procedures that are applicable to the
particular role that an Agent will perform shall apply.
The Senior Notes will be issued as a series of securities pursuant
to a Senior Indenture, dated as of January 15, 1997, as may be amended and
supplemented from time to time (the "Senior Indenture"), between NCB and Bank
One Trust Company, N.A. (as successor Trustee to the First National Bank of
Chicago) (the "Trustee"), as trustee with respect to the Senior Notes. The
Subordinated Notes will be issued as a series of securities pursuant to a
Subordinated Indenture dated as of January 7, 2000, as may be amended or
supplemented from time to time (the "Subordinated Indenture"), between NCB and
the Trustee as trustee with respect to the Subordinated Notes. The Senior
Indenture and the Subordinated Indenture are collectively referred to herein as
the "Indentures." In accordance with the provisions of the Indentures, the
Trustee has been appointed Authenticating Agent (in such capacity, the "Issuing
Agent"). The Trustee will act as NCB's Paying Agent with respect to the Notes
(in such capacity the "Paying Agent").
A Registration Statement (the "Registration Statement," which term
shall include any additional registration statements or amendments thereto filed
in connection with the Notes as
II-1
34
provided in the introductory paragraph of the Distribution Agreement) with
respect to, among other securities, the Notes has been filed with the Securities
and Exchange Commission (the "Commission"). The most recent base Prospectus
included in the Registration Statement, as supplemented with respect to the
Notes, is herein referred to as the "Prospectus." The most recent supplement to
the Prospectus setting forth the purchase price, interest rate or formula,
maturity date and other terms of the Notes (as applicable) is herein referred to
as the "Pricing Supplement."
The Notes will be issued in book-entry form and represented by one
or more global certificates in fully registered form without coupons (each, a
"Book-Entry Note") delivered to the Issuing Agent, as agent for The Depository
Trust Company ("DTC"), and recorded in the book-entry system maintained by DTC.
General procedures relating to the issuance of the Notes are set
forth in Part I hereof. Part II hereof sets forth procedures for the issuance of
Notes in book-entry form. Capitalized terms used herein that are not otherwise
defined shall have the meanings ascribed thereto in the applicable Indenture or
the Notes, as the case may be.
II-2
35
PART I: GENERAL PROCEDURES
Date of Issuance/
Authentication: Each Note will be dated as of the date of its
authentication by the Issuing Agent. Each
Note shall also bear an original issue date
(each, an "Original Issue Date"). The
Original Issue Date shall remain the same for
all Notes subsequently issued upon transfer,
exchange or substitution of an original Note
regardless of their dates of authentication.
Maturities: Each Note will mature on a date selected by
the investor or other purchaser and agreed to
by NCB which is not less than nine months
from its Original Issue Date (the "Stated
Maturity Date"); provided, however, that
Notes bearing interest at rates determined by
reference to selected indices ("Floating Rate
Notes") will mature on an Interest Payment
Date.
Registration: Unless otherwise provided in the applicable
Pricing Supplement, Notes will be issued only
in fully registered form.
Denominations: Unless otherwise provided in the applicable
Pricing Supplement, Notes will be issued in
denominations of $1,000 or any integral
multiple of $1,000 in excess thereof.
Interest Base Rates
applicable to
Floating Rate
Notes: Unless otherwise provided in the applicable
Pricing Supplement, Floating Rate Notes
(except for certain Discount Notes) will be
issued as described below. The applicable
Pricing Supplement will specify the "Interest
Rate Basis" or "Interest Rate Bases" by
reference to which interest will be
determined which may be one or more of the CD
Rate ("CD Rate Notes"), the CMT Rate ("CMT
Rate Notes"), the Commercial Paper Rate
("Commercial Paper Rate Notes"), the Federal
Funds Rate ("Federal Funds Rate Notes"),
LIBOR ("LIBOR Notes"), the Prime Rate ("Prime
Rate Notes"), the Treasury Rate ("Treasury
Rate Notes") or any other interest rate basis
or formula specified in the applicable
Pricing Supplement, or by reference to two or
more such rates, as adjusted by the Spread
and/or Spread Multiplier, if any, applicable
to such Floating Rate Notes.
II-3
36
Repayment/Redemption: The Notes will be subject to repayment at the
option of the Holders thereof in accordance
with the terms of the Notes on their
respective Optional Repayment Dates, if any.
Optional Repayment Dates, if any, will be
fixed at the time of sale and set forth in
the applicable Pricing Supplement and in the
applicable Note. If no Optional Repayment
Dates are indicated with respect to a Note,
such Note will not be repayable at the option
of the Holder prior to its Stated Maturity
Date.
The Notes will be subject to redemption by
NCB on and after their respective Redemption
Dates, if any. Redemption Dates, if any, will
be fixed at the time of sale and set forth in
the applicable Pricing Supplement and in the
applicable Note. If no Redemption Dates are
indicated with respect to a Note, such Note
will not be redeemable prior to its Stated
Maturity Date.
Amortizing Notes If a Note is designated on the face thereof
as an Amortizing Note, payments of principal
and interest will be made in equal
installments over the life of the Note, at
periodic intervals as specified in the
applicable Pricing Supplement and on the
Stated Maturity Date. A table setting forth
payment information in respect of each
Amortizing Note will be included in the
applicable Pricing Supplement and set forth
in the Note. Unless otherwise specified in
the applicable Pricing Supplement, interest
on an Amortizing Note will be computed on the
basis of a 360-day year of twelve 30-day
months. Payments with respect to an
Amortizing Note will be applied first to
interest due and payable thereon and then to
the reduction of the unpaid principal amount
of the Amortizing Notes. Further information
concerning additional terms and conditions of
any issue of Amortizing Notes will be
provided in the applicable Pricing
Supplement.
Extendible Notes: The applicable Pricing Supplement will
indicate whether NCB has the option to extend
the Stated Maturity Date of the Notes (other
than Amortizing Notes) for one or more
periods up to but not beyond a date set forth
in the Pricing Supplement. If NCB has this
option with respect to any applicable Notes,
the procedures relating thereto will be as
set forth in the applicable Pricing
Supplement.
Renewable Notes: The applicable Pricing Supplement will
indicate whether the Notes will mature unless
the term of all or any portion of the
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Note is renewed in accordance with the
procedures described in the applicable
Pricing Supplement.
Calculation of
Interest: In case of Fixed Rate Notes, interest
(including payments for partial periods) will
be calculated and paid on the basis of a
360-day year of twelve 30-day months.
The interest rate on each Floating Rate Note
will be calculated by reference to the
specified Interest Rate Basis or specified
Interest Rate Bases plus or minus the
applicable Spread, if any, and/or multiplied
by the applicable Spread Multiplier, if any.
Unless otherwise provided in the applicable
Pricing Supplement, accrued interest on each
Floating Rate Note will be calculated by
multiplying its principal amount by an
accrued interest factor. Such accrued
interest factor is computed by adding the
interest factor calculated for each day in
the period, from and including the Original
Issue Date, or from the last date for which
interest has been paid or duly provided for,
to but excluding the date for which accrued
interest is being calculated. Unless
otherwise specified in the applicable Pricing
Supplement, the interest factor for each such
day is computed by dividing the interest rate
applicable to such day by 360 in the case of
CD Rate Notes, Commercial Paper Rate Notes,
Federal Funds Rate Notes, LIBOR Notes or
Prime Rate Notes, or by the actual number of
days in the year in the case of CMT Rate
Notes or Treasury Rate Notes. The interest
factor for Notes for which the interest rate
is calculated with reference to two or more
Interest Rate Bases will be calculated as set
forth in the applicable Pricing Supplement.
Interest: General. Each Note will bear interest in
accordance with its terms. Unless otherwise
provided in the applicable Pricing
Supplement, each payment of interest on the
Notes will include interest accrued from and
including the immediately preceding Interest
Payment Date in respect of which interest has
been paid (or from and including the Original
Issue Date, if no interest has been paid with
respect to the applicable Note) to but
excluding the related Interest Payment Date,
the Stated Maturity Date, any Redemption Date
or any Optional Repayment Date (each Stated
Maturity Date, Redemption Date or Optional
Repayment Date is referred to herein as
II-5
38
"Maturity"). Interest payable at Maturity
will be payable to the Person to whom the
principal of such Note is payable.
If an Interest Payment Date or the date of
Maturity with respect to any Fixed Rate Note
falls on a day that is not a Business Day (as
defined herein), the payment of interest
required to be made on such Interest Payment
Date will be made on the next succeeding
Business Day with the same force and effect
as if made on such Interest Payment Date and
no interest will accrue on such payment for
the period from and after such Interest
Payment Date to the next succeeding Business
Day. If an Interest Payment Date (other than
at Maturity) with respect to any Floating
Rate Note would otherwise fall on a day that
is not a Business Day, such Interest Payment
Date will be postponed to the next succeeding
day that is a Business Day (as defined
herein), except that in the case of a LIBOR
Note (or a Note for which LIBOR is an
applicable Interest Rate Basis), if the next
succeeding London Business Day falls in the
next succeeding calendar month, such Interest
Payment Date will be the immediately
preceding London Business Day (as defined
herein). If the date of Maturity of a
Floating Rate Note falls on a day that is not
a Business Day, the payment of principal,
premium, if any, and interest will be made on
the next succeeding Business Day with the
same force and effect as if made on such date
of maturity and no interest on such payment
will accrue for the period from and after
such Maturity to the next succeeding Business
Day. For additional special provisions
relating to Floating Rate Notes, see the
Prospectus and the applicable Pricing
Supplement.
Regular Record Dates. Unless otherwise
provided in the applicable Pricing
Supplement, the "Regular Record Date" with
respect to any Interest Payment Date for a
Floating Rate Note shall be the date 15
calendar days (whether or not a Business Day)
immediately preceding such Interest Payment
Date.
Unless otherwise provided in the applicable
Pricing Supplement, the " Regular Record
Date" for Fixed Rate Notes shall be the April
15 and October 15 immediately preceding such
Interest Payment Date.
Interest Payment Dates. Interest payments
will be made on each Interest Payment Date
commencing with the first Interest
II-6
39
Payment Date following the Original Issue
Date and on the Maturity Date; provided,
however, the first payment of interest on any
Note originally issued between a Regular
Record Date and the related Interest Payment
Date or on an Interest Payment Date will
occur on the second Interest Payment Date
following the Issue Date of the Note.
Fixed Rate Notes. Unless otherwise provided
in an applicable Fixed Rate Note, interest
payments on Fixed Rate Notes will be made
semiannually on May 1 and November 1, of each
year and at Maturity.
Floating Rate Notes. Interest payments on
Floating Rate Notes will be made as specified
in the related Floating Rate Note and Pricing
Supplement.
Acceptance and
Rejection of Offers
from Solicitation
as Agents: If agreed upon by NCB and any Agent, such
Agent, acting solely as agent for NCB and not
as principal, will solicit purchases of the
Notes. Each Agent will communicate to NCB,
orally or in writing, each offer to purchase
Notes solicited by such Agent on an agency
basis, other than those offers rejected by
such Agent. Each Agent has the right, in its
discretion reasonably exercised, to reject
any proposed purchase of Notes, as a whole or
in part, and any such rejection is not deemed
a breach of such Agent's agreement contained
in the Distribution Agreement. NCB may accept
or reject any proposed purchase of the Notes,
in whole or in part, any such rejection is
not deemed a breach of NCB's agreements
contained in the Distribution Agreement.
Preparation of
Pricing Supplement: If any offer to purchase a Note is accepted
by NCB, NCB will promptly prepare a Pricing
Supplement reflecting the terms of such Note
and file such Pricing Supplement with the
Commission in accordance with Rule 424 under
the Securities Act of 1933 and Rule 901 of
Regulation S-T. Information to be included in
the Pricing Supplement shall include:
1. the name of NCB;
2. the title of the securities, including
series designation, if any;
II-7
40
3. the date of the Pricing Supplement and
the dates of the Prospectus and
Prospectus Supplement to which the
Pricing Supplement relates;
4. the name of the Offering Agent (as
hereinafter defined);
5. whether such Notes are
being sold to the Offering Agent as
principal or to an investor or other
purchaser through the Offering Agent
acting as agent for NCB;
6. with respect to Notes sold to the
Offering Agent as principal, whether
such Notes will be resold by the
Offering Agent to investors and other
purchasers at (i) a fixed public
offering price of a specified percentage
of their principal amount, (ii) varying
prices related to prevailing market
prices at the time of resale to be
determined by the Offering Agent or
(iii) 100% of their principal amount;
7. with respect to Notes sold to an
investor or other purchaser through the
Offering Agent acting as agent for NCB,
whether such Notes will be sold at (i)
100% of their principal amount or (ii)
another specified percentage of their
principal amount;
8. the Offering Agent's commission or
underwriting discount;
9. net proceeds to NCB;
10. Principal Amount, Specified Currency,
Original Issue Date, Stated Maturity
Date, Authorized Denomination, Interest
Payment Date(s), Initial Redemption
Date, if any, Initial Redemption
Percentage, if any, Annual Redemption
Percentage Reduction, if any, and
Optional Repayment Date or Dates, if
any, Exchange Rate Agent, if any, Day
Count Convention, whether such Note is
an Original Issue Discount Note (and, if
so, the Issue Price), and, in the case
of Fixed Rate Notes, Interest Rate,
Regular Record Date or Dates (if other
than April 15 and October 15 of each
year), and, in the case of Floating Rate
Notes, Interest Rate Basis or Bases,
LIBOR Rueters or LIBOR Telerate (and the
applicable pages), if applicable,
Designated LIBOR Currency, if
applicable, Designated CMT Telerate
Page, and if Telerate Page
II-8
41
7052, whether the Weekly or Monthly
Average, if applicable, Designated CMT
Maturity Index, if applicable, Index
Maturity, if applicable, Initial
Interest Rate, Maximum Interest Rate, if
any, Minimum Interest Rate, if any,
Initial Interest Reset Date, Interest
Reset Date or Dates, Spread and/or
Spread Multiplier, if any, Calculation
Agent, and Interest Payment Period;
11. the information with respect to the
terms of the Notes set forth below under
"Procedures for Notes Issued in
Book-Entry Form - Settlement
Procedures," items 1, 2, 6, 7, 8 and 9;
and
12. any other provisions of the Notes
material to investors or other
purchasers of the Notes not otherwise
specified in the Prospectus or Pricing
Supplement.
One copy of such filed document will be sent
by telecopy or overnight express (for
delivery by the close of business on the
applicable trade date, but in no event later
than 11:00 a.m., New York City time, on the
Business Day following the applicable trade
date) to the Agent which made or presented
the offer to purchase the applicable Note
(such Agent in such capacity, the "Offering
Agent"), the Trustee, Issuing Agent and the
Paying Agent at the following applicable
address:
if to Credit Suisse First Boston, to:
Eleven Madison Avenue
New York, New York 10010
Facsimile Transmission No. (212) 325-8183
Attention: Short and Medium Term Finance
if to Banc of America Securities LLC, to:
Bank of America Corporate Center
NC1-007-07-01
100 North Tryon Street
Charlotte, NC 28255-0001
Facsimile Transmission No. (704) 388-9939
if to Banc One Capital Markets, Inc.:
One First National Plaza
Chicago, IL 60670
II-9
42
Facsimile Transmission No. (312) 732-4172
Attention: Corporate Securities
Structuring
if to SPP Capital Partners, LLC:
330 Madison Avenue
28th Floor
New York, New York 10017
Facsimile Transmission No. (212) 455-4545
Attention: Amy Lazarus
if to the Trustee (in such capacity or as
Issuing Agent or Paying Agent), to:
Bank One Trust Company, N.A.
14 Wall Street, 8th Floor
New York, New York 10005
For record keeping purposes, one copy of each
Pricing Supplement, as so filed, shall also
be mailed or telecopied to Brown & Wood LLP
at One World Trade Center, New York, New York
10048, Attention: Daniel M. Rossner.
In each instance that a Pricing Supplement is
prepared, the Offering Agent will provide a
copy of such Pricing Supplement to each
investor or purchaser of the relevant Notes
or its agent. Outdated Pricing Supplements,
and the supplemented Prospectuses to which
they are attached (other than those retained
for files) will be destroyed.
Settlement: The receipt of immediately available funds by
NCB in payment for a Note and the
authentication and delivery of such Note
shall, with respect to such Note, constitute
"settlement." Offers accepted by NCB will be
settled in three Business Days, or at a time
as the purchaser, the applicable Agent and
NCB shall agree, pursuant to the timetable
for settlement set forth in Part II hereof
under "Settlement Procedures" with respect to
Book-Entry Notes (each such date fixed for
settlement is hereinafter referred to as a
"Settlement Date"). If procedures A and B of
the applicable Settlement Procedures with
respect to a particular offer are not
completed on or before the time set forth
under the applicable "Settlement Procedures
Timetable," such offer shall not be settled
until the Business Day following the
completion of settlement procedures A and B
or such later date as the purchaser and NCB
shall agree.
II-10
43
The foregoing settlement procedures may be
modified, with respect to any purchase of
Notes by an Agent as principal, if so agreed
by NCB and such Agent.
Procedure for Changing
Rates or Other
Variable Terms: When a decision has been reached to change
the interest rate or any other variable term
on any Notes being sold by NCB, NCB will
promptly advise the Agents and the Issuing
Agent by facsimile transmission and the
Agents will forthwith suspend solicitation of
offers to purchase such Notes. The Agents
will telephone NCB with recommendations as to
the changed interest rates or other variable
terms. At such time as NCB advises the Agents
and the Issuing Agent by facsimile
transmission of the new interest rates or
other variable terms, the Agents may resume
solicitation of offers to purchase such
Notes. Until such time only "indications of
interest" may be recorded. Immediately after
acceptance by NCB of an offer to purchase
Notes at a new interest rate or new variable
term, NCB, the Offering Agent and the Issuing
Agent shall follow the procedures set forth
under the applicable "Settlement Procedures."
Suspension of
Solicitation;
Amendment or
Supplement: NCB may instruct the Agents to suspend
solicitation of offers to purchase Notes at
any time. Upon receipt of such instructions,
the Agents will forthwith suspend
solicitation of offers to purchase from NCB
until such time as NCB has advised them that
solicitation of offers to purchase may be
resumed. If NCB decides to amend or
supplement the Registration Statement or the
Prospectus (other than to establish or change
interest rates or formulas, maturities,
prices or other similar variable terms with
respect to the Notes or as provided by the
Distribution Agreement), it will promptly
advise the Agents and will furnish the Agents
and their counsel with copies of the proposed
amendment or supplement at the following
applicable address:
if to Credit Suisse First Boston, to:
Eleven Madison Avenue
New York, New York 10010
II-11
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Facsimile Transmission No. (212) 325-8183
Attention: Short and Medium Term Finance
if to Banc of America Securities LLC, to:
Bank of America Corporate Center
NC1-007-07-01
100 North Tryon Street
Charlotte, NC 28255-0001
Facsimile Transmission No. (704) 388-9939
if to Banc One Capital Markets, Inc.:
One First National Plaza
Chicago, IL 60670
Facsimile Transmission No. (312) 732-4172
Attention: Corporate Securities
Structuring
if to SPP Capital Partners, LLC:
330 Madison Avenue
28th Floor
New York, New York 10017
Facsimile Transmission No. (212) 455-4545
Attention: Amy Lazarus
if to the Trustee (in such capacity or as
Issuing Agent or Paying Agent), to:
Bank One Trust Company, N.A.
14 Wall Street, 8th Floor
New York, New York 10005
For record keeping purposes, one copy of each
Pricing Supplement, as so filed, shall also
be mailed or telecopied to Brown & Wood LLP
at One World Trade Center, New York, New York
10048, Attention: Daniel M. Rossner.
In the event that at the time the
solicitation of offers to purchase from NCB
is suspended (other than to establish or
change interest rates or formulas,
maturities, prices or other similar variable
terms with respect to the Notes) there shall
be any offers to purchase Notes that have
been accepted by NCB which have not been
settled, NCB will promptly advise the
Offering Agent and the Issuing Agent whether
such offers may
II-12
45
be settled and whether copies of the
Prospectus as theretofore amended and/or
supplemented as in effect at the time of the
suspension may be delivered in connection
with the settlement of such offers. NCB will
have the sole responsibility for such
decision and for any arrangements which may
be made in the event that NCB determines that
such offers may not be settled or that copies
of such Prospectus may not be so delivered.
Delivery of Prospectus
and applicable
Pricing Supplement: A copy of the most recent Prospectus and the
applicable Pricing Supplement must accompany
or precede the earlier of (a) the written
confirmation of a sale sent to an investor or
other purchaser or its agent and (b) the
delivery of Notes to an investor or other
purchaser or its agent.
Authenticity of
Signatures: The Agents will have no obligation or
liability to NCB, the Trustee, the Issuing
Agent or the Paying Agent in respect of the
authenticity of the signature of any officer,
employee or agent of NCB, the Trustee, the
Issuing Agent or the Paying Agent on any
Note.
Documents Incorporated
by Reference: At the Agent's request NCB shall supply the
Agents with an adequate supply of all
documents incorporated by reference in the
Registration Statement and the Prospectus.
Business Day: Unless otherwise provided in the Notes,
"Business Day" means, with respect to any
Note, any other than Saturday, Sunday or
other day on which banking institutions in
The City of New York are authorized or
obligated by law, regulation or executive
order to close; provided, however, that with
respect to Foreign Currency Notes (other than
Foreign Currency Notes denominated in Euro
only) any day that is a Business Day both in
New York and in the Principal Financial
Center (as defined below) in the country of
the Specified Currency unless the Specified
Currency is Euro, in which case such date is
also a day on which the Trans-European
Automated Real-Time Gross Settlement Express
Transfer (TARGET) System is open; provided
further, that, with respect to LIBOR Notes
only, any Business Day in New York that is
also a London Business Day. "London Business
Day" means any day on which dealings in
deposits in U.S. dollars are transacted in
the London interbank
II-13
46
market. It being understood that if no such
currency or composite currency is specified
in the applicable Pricing Supplement, the
Index Currency shall be U.S. dollars.
"Principal Financial Center" means the
capital city of the country issuing the
Specified Currency, except that with respect
to United States dollars, Australian dollars,
Deutsche marks, Dutch guilders, Italian lire
and Swiss francs, the Principal Financial
Center shall be The City of New York, Sydney
(and, solely in the case of the Specified
Currency, Melbourne), Frankfurt, Amsterdam,
Milan and Zurich, respectively.
Designated LIBOR
Currency "Index Currency" means the currency or
composite currency specified in the
applicable Pricing Supplement as to which
LIBOR shall be calculated. If no such
currency or Designated LIBOR Currency is
specified in the applicable Pricing
Supplement, the Designated LIBOR Currency
shall be United States dollars.
II-14
47
PART II: PROCEDURES FOR NOTES ISSUED
IN BOOK-ENTRY FORM
In connection with the qualification of Notes issued in book-entry
form for eligibility in the book-entry system maintained by DTC, the Issuing
Agent will perform the custodial, document control and administrative functions
described below, in accordance with its respective obligations under a Letter of
Representations from NCB and the Issuing Agent to DTC, dated January __, 2000,
and a Certificate of Deposit Agreement, dated _______, between the Issuing Agent
and DTC, as amended (the "Certificate Agreement"), and its obligations as a
participant in DTC, including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: All Fixed Rate Notes issued in book-entry
form having the same Original Issue Date,
Specified Currency, Interest Rate, Default
Rate, Interest Payment Dates, Day Count
Convention, Redemption and/or Repayment
terms, if any, and Stated Maturity Date
(collectively, the "Fixed Rate Terms") will
be represented initially by a single
Book-Entry Note; and all Floating Rate Notes
issued in book-entry form having the same
Original Issue Date, Specified Currency,
Interest Category, formula for the
calculation of interest, and specifying the
Interest Rate Basis or Bases, which may be
the CD Rate, the CMT Rate, the Commercial
Paper Rate, the Federal Funds Rate, LIBOR,
the Prime Rate or the Treasury Rate or any
other interest rate basis or formula, Initial
Interest Rate, Default Rate, Index Maturity,
Spread and/or Spread Multiplier, if any, Day
Count Convention, Minimum Interest Rate, if
any, Maximum Interest Rate, if any,
redemption and/or repayment terms, if any,
Interest Payment Dates, Initial Interest
Reset Date, Interest Reset Dates and Stated
Maturity Date (collectively, "Floating Rate
Terms") will be represented initially by a
single Book-Entry Note.
Each Book-Entry Note will be dated and issued
as of the date of its authentication by the
Issuing Agent. The date from which interest
will begin to accrue with respect to each
Book-Entry Note will be (a) with respect to
an original Book-Entry Note (or any portion
thereof), its Original Issue Date and (b)
with respect to any Book-Entry Note (or
portion thereof) issued subsequently upon
exchange of a Book-Entry Note or in lieu of a
destroyed, lost or stolen Book-Entry Note,
the most recent Interest Payment Date to
which interest has been paid or duly provided
for on the predecessor Book-Entry Note or
Notes (or if no such payment or provision has
been made, the Original Issue Date of the
predecessor Book-Entry Note or Notes),
II-15
48
regardless of the date of authentication of
such subsequently issued Book-Entry Note. No
Book-Entry Note shall represent any Note
issued in certificated form.
For other variable terms with respect to the
Fixed Rate Notes and Floating Rate Notes, see
the Prospectus and the applicable Pricing
Supplement.
Except as provided in the applicable
Indenture, no owner of a beneficial interest
in a Book-Entry Note shall be entitled to
receive any Note issued in certificated form.
Identification: NCB 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
which have been reserved for and relate to
Book-Entry Notes and NCB has delivered to
each of the Trustee, the Issuing Agent and
DTC a list of such CUSIP numbers. NCB will
assign CUSIP numbers to Book-Entry Notes as
described below under Settlement Procedure B.
DTC will notify the CUSIP Service Bureau
periodically of the CUSIP numbers that NCB
has assigned to Book-Entry Notes. The Trustee
or the Issuing Agent, as the case may be,
will notify NCB at any time when fewer than
100 of the reserved CUSIP numbers of either
series remain unassigned to Book-Entry Notes,
and, if it deems necessary, NCB will reserve
and obtain additional CUSIP numbers for
assignment to Book-Entry Notes. Upon
obtaining such additional CUSIP numbers, NCB
will deliver a list of such additional
numbers to the Trustee, the Issuing Agent and
DTC. An issue of Notes having an aggregate
principal amount in excess of $200,000,000
(or the equivalent thereof in one or more
foreign or composite currencies) and
otherwise required to be represented by the
same Book-Entry Note will instead be
represented by two or more Book-Entry Notes
which shall all be assigned the same CUSIP
number.
Registration: Unless otherwise specified by DTC, all
Book-Entry Notes will be registered in the
name of Cede & Co., as nominee for DTC, on
the register maintained by the Issuing Agent
under the Indenture. The beneficial owner of
a Note issued in book-entry form (i.e., an
owner of a beneficial interest in a
Book-Entry Note) (or one or more indirect
participants in DTC designated by such owner)
will designate one or more participants in
DTC
II-16
49
(with respect to such Note issued in
book-entry form, the "Participants") to act
as agent for such beneficial 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 Note
issued in book-entry form in the account of
such Participants. The ownership interest of
such beneficial owner in such Note issued in
book-entry form 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 beneficial ownership interests
in 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 Book-Entry Note.
Exchanges: The Issuing Agent may deliver to DTC and the
CUSIP Service Bureau at any time a written
notice specifying (a) the CUSIP numbers of
two or more Book-Entry Notes outstanding on
such date that represent Notes having the
same Fixed Rate Terms or Floating Rate Terms,
as the case may be (other than Original Issue
Dates), and for which interest has been paid
to the same date; (b) a date, occurring at
least 30 days after such written notice is
delivered and at least 30 days before the
next Interest Payment Date for the related
Notes issued in book-entry form, on which
such Book-Entry Notes shall be exchanged for
a single replacement Book-Entry Note; and (c)
a new CUSIP number, obtained from NCB, to be
assigned to such replacement Book-Entry Note.
Upon receipt of such a notice, DTC will send
to its Participants (including the Issuing
Agent) a written reorganization notice to the
effect that such exchange will occur on such
date. Prior to the specified exchange date,
the Issuing Agent will deliver to the CUSIP
Service Bureau written notice setting forth
such exchange date and the new CUSIP number
and stating that, as of such exchange date,
the CUSIP numbers of the Book-Entry Notes to
be exchanged will no longer be valid. On the
specified exchange date, the Issuing Agent
will exchange such Book-Entry Notes for a
single Book-Entry Note bearing the new CUSIP
number and the CUSIP numbers of the exchanged
Book-Entry Notes will, in accordance with
CUSIP Service Bureau procedures, be canceled
and not immediately reassigned.
Notwithstanding the
II-17
50
foregoing, if the Book-Entry Notes to be
exchanged exceed $200,000,000 (or the
equivalent thereof in one or more foreign or
composite currencies) in aggregate principal
amount, one replacement Book-Entry Note will
be authenticated and issued to represent each
$200,000,000 (or the equivalent thereof in
one or more foreign or composite currencies)
of principal amount of the exchanged
Book-Entry Notes and an additional Book-Entry
Note or Notes will be authenticated and
issued to represent any remaining principal
amount of such Book-Entry Notes (See
"Denominations" below).
Denominations: Unless otherwise provided in the applicable
Pricing Supplement, Notes issued in
book-entry form will be issued in
denominations of $1,000 and integral
multiples of $1,000 in excess thereof.
Book-Entry Notes will be denominated in
principal amounts not in excess of
$200,000,000 (or the equivalent thereof in
one or more foreign or composite currencies).
If one or more Notes issued in book-entry
form having an aggregate principal amount in
excess of $200,000,000 (or the equivalent
thereof in one or more foreign or composite
currencies) would, but for the preceding
sentence, be represented by a single
Book-Entry Note, then one Book-Entry Note
will be issued to represent each $200,000,000
(or the equivalent thereof in one or more
foreign or composite currencies) principal
amount of such Note or Notes issued in
book-entry form and an additional Book-Entry
Note or Notes will be issued to represent any
remaining principal amount of such Note or
Notes issued in book-entry form. In such a
case, each of the Book-Entry Notes shall all
be assigned the same CUSIP number.
Payments of Principal
and Interest: Payments of Interest Only. Promptly after
each Regular Record Date, the Issuing Agent
will deliver to NCB and DTC a written notice
specifying by CUSIP number the amount of
interest to be paid on each Book-Entry Note
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
Book-Entry Note on such Interest Payment Date
by reference to the daily bond reports
published by Standard & Poor's Corporation.
On such Interest Payment Date, NCB will pay
to the Issuing Agent in immediately available
funds an amount sufficient to pay the
interest then due and owing, and upon receipt
of such funds
II-18
51
from NCB, the Issuing Agent in turn will pay
to DTC, such total amount of interest due on
such Book-Entry Notes (other than at
Maturity) which is payable in U.S. dollars,
at the times and in the manner set forth
below under "Manner of Payment." The Issuing
Agent shall make payment of that amount of
interest due and owing on any Book-Entry
Notes that Participants have elected to
receive in foreign or composite currencies
directly to such Participants.
Notice of Interest Rates and Regular Record
Dates. Promptly after each Interest
Determination Date, or Calculation Date, as
the case may be, for Floating Rate Notes
issued in book-entry form, the Issuing Agent
will notify each of Moody's Investors
Service, Inc. and Standard & Poor's
Corporation of the interest rates determined
on such Interest Determination Date.
Payments at Maturity. On or about the first
Business Day of each month, the Issuing Agent
will deliver to NCB and DTC a written list of
principal, premium, if any, and interest to
be paid on each Book-Entry Note maturing
either at the Stated Maturity Date, on a
Redemption Date in, or for which an Option to
Elect Repayment has been received with
respect to, such month. The Issuing Agent,
NCB and DTC will confirm the amounts of such
principal, premium, if any, and interest
payments with respect to a Book-Entry Note on
or about the fifth Business Day preceding the
Maturity of such Book-Entry Note. At such
Maturity, NCB will pay to the Issuing Agent
in immediately available funds an amount
sufficient to make such Maturity payment, and
upon receipt of such funds the Issuing Agent
in turn will pay to DTC, the principal amount
of such Note, together with interest and
premium, if any, due at such Maturity, which
are payable in U.S. dollars, at the times and
in the manner set forth below under "Manner
of Payment." The Issuing Agent shall make the
payment of the principal, premium, if any,
and interest to be paid at the Maturity of
each Book-Entry Note that Participants have
elected to receive in foreign or composite
currencies directly to such Participants.
Promptly after (i) payment to DTC of the
principal, premium, if any, and interest due
at the Maturity of such Book-Entry Note which
are payable in U.S. dollars and (ii) payment
of principal, premium, if any, and interest
due at the Maturity of such Book-Entry Note
to those Participants who have elected to
receive such payments in foreign or composite
currencies, the Issuing Agent will cancel
such Book-Entry Note and
II-19
52
deliver it to NCB with an appropriate debit
advice. On the first Business Day of each
month, the Issuing Agent will deliver to NCB
a written statement indicating the total
principal amount of outstanding Book-Entry
Notes as of the close of business on the
immediately preceding Business Day.
Manner of Payment. The total amount of any
principal, premium, if any, and interest due
on Book-Entry Notes on any Interest Payment
Date or at Maturity, as the case may be,
which is payable in U.S. dollars shall be
paid by NCB to the Issuing Agent in funds
available for use by the Issuing Agent no
later than 10:00 a.m., New York City time, on
such date. NCB will make such payment on such
Book-Entry Notes to an account specified by
the Issuing Agent. Upon receipt of such
funds, the Issuing Agent 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 in U.S. dollars of principal,
premium, if any, and interest, due on a
Book-Entry Note on such date. Thereafter on
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 beneficial interests in such Notes
are recorded in the book-entry system
maintained by DTC. Neither NCB, the Issuing
Agent nor the Trustee shall have any
responsibility or liability for the payment
in U.S. dollars by DTC of the principal of,
premium, if any, or interest on, the
Book-Entry Notes to such Participants. The
Issuing Agent shall make all payments of
principal, premium, if any, and interest on
each Book-Entry Note that Participants have
elected to receive in foreign or composite
currencies directly to such Participants.
Withholding Taxes. The amount of any taxes
required under applicable law to be withheld
from any interest payment on a 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.
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Settlement
Procedures: Settlement Procedures with regard to each
Note in book-entry form purchased by an
Agent, as principal, or sold through an
Agent, as agent of NCB, will be as follows:
A. The Offering Agent will advise NCB by
telephone, confirmed by facsimile, of
the following Settlement information:
1. Principal Amount, Authorized
Denomination, Specified Currency
and Original Issue Date of the
Note.
2. Exchange Rate Agent, if any.
3. Whether such Notes are Senior Notes
or Subordinated Notes.
4. (a) Fixed Rate Notes:
(i) Interest Rate
(ii) Interest Payment Dates
(b) Floating Rate Notes:
(i) Interest Category
(ii) Interest Rate Basis or
Bases
(iii) Initial Interest Rate
(iv) Spread and/or Spread
Multiplier, if any
(v) Initial Interest Reset
Date
(vi) Interest Rate Reset Period
(vii) Interest Reset Date or
Dates
(viii) Interest Payment Dates
(ix) Interest Payment Period
(x) Regular Record Dates
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(xi) Index Maturity, if any
(xii) Maximum and/or Minimum
Interest Rates, if any
(xiii) Day Count Convention
(xiv) Calculation Agent
(xv) If LIBOR, indicate LIBOR
Reuters or LIBOR Telerate
(xvi) If CMT Rate, indicate
Designated CMT Telerate
Page and Designated CMT
Maturity Index
5. Price to public, if any, of the
Note (or whether the Note is being
offered at varying prices relating
to prevailing market prices at time
of resale as determined by the
Offering Agent).
6. Trade Date.
7. Settlement Date (Original Issue
Date).
8. Stated Maturity Date.
9. Redemption provisions, if any,
including: Initial Redemption Date,
Initial Redemption Percentage and
Annual Redemption Percentage
Reduction.
10. Repayment provisions, if any.
11. Default Rate, if any.
12. Optional Repayment Date(s).
13. Net proceeds to NCB.
14. The Offering Agent's commission or
underwriting discount.
15. Whether such Notes are
being sold to the Offering Agent as
principal or to an investor or
other purchaser through the
Offering Agent acting as agent for
NCB.
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16. Whether such Note is a Discount
Note and the terms thereof.
17. Such other information specified
with respect to the Notes (whether
by Addendum or otherwise).
B. NCB will assign a CUSIP number to the
Book-Entry Note representing such Note
and then advise the Issuing Agent by
facsimile transmission or other
electronic transmission of the above
settlement information received from the
Offering Agent, such CUSIP number and
the name of the Offering Agent. NCB will
also advise the Offering Agent of the
CUSIP number assigned to the Book-Entry
Note.
C. The Issuing Agent will communicate to
DTC and the Offering Agent through DTC's
Participant Terminal System, a pending
deposit message specifying the following
settlement information:
1. The information set forth in the
Settlement Procedure A.
2. Identification numbers of the
participant accounts maintained by
DTC on behalf of the Issuing Agent
and the Offering Agent.
3. Identification of the Book-Entry
Note as a Fixed Rate Book-Entry
Note or Floating Rate Book-Entry
Note.
4. Initial Interest Payment Date for
such Note, number of days by which
such date succeeds the related
record date for DTC purposes (or,
in the case of Floating Rate Notes
which reset daily or weekly, the
date five calendar days preceding
the Interest Payment Date) and, if
then calculable, the amount of
interest payable on such Interest
Payment Date (which amount shall
have been confirmed by the Issuing
Agent).
5. CUSIP number of the Book-Entry Note
representing such Note.
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6. Whether such Book-Entry Note
represents any other Notes issued
or to be issued in book-entry form.
DTC will arrange for each pending
deposit message described above to be
transmitted to Standard & Poor's
Corporation, which will use the
information in the message to include
certain terms of the related Book-Entry
Note in the appropriate daily bond
report published by Standard & Poor's
Corporation.
D. The Issuing Agent will complete and
authenticate the Book-Entry Note
representing such Note.
E. DTC will credit such Note to the
participant account of the Issuing Agent
maintained by DTC.
F. The Issuing Agent will enter an SDFS
deliver order through DTC's Participant
Terminal System instructing DTC (i) to
debit such Note to the Issuing Agent's
participant account and credit such Note
to the participant account of the
Offering Agent maintained by DTC and
(ii) to debit the settlement account of
the Offering Agent and credit the
settlement account of the Issuing Agent
maintained by DTC, in an amount equal to
the price of such Note less such
Offering Agent's discount or
underwriting commission, as applicable.
Any entry of such a deliver order shall
be deemed to constitute a representation
and warranty by the Issuing Agent to DTC
that (i) the Book-Entry Note
representing such Note has been issued
and authenticated and (ii) the Issuing
Agent is holding such Book-Entry Note
pursuant to the Certificate Agreement.
G. In the case of Book-Entry Notes sold
through the Offering Agent, as agent,
the Offering Agent will enter an SDFS
deliver order through DTC's Participant
Terminal System instructing DTC (i) to
debit such Note to the Offering Agent's
participant account and credit such Note
to the participant account of the
Participants maintained by DTC and (ii)
to debit the settlement accounts of such
Participants and credit the settlement
account of the Offering Agent maintained
by DTC in an amount equal to the initial
public offering price of such Note.
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H. Transfers of funds in accordance with
SDFS deliver orders described in
Settlement Procedures F and G will be
settled in accordance with SDFS
operating procedures in effect on the
Settlement Date.
I. Upon receipt, the Issuing Agent will pay
NCB, by wire transfer of immediately
available funds to an account specified
by NCB to the Issuing Agent from time to
time, in the amount transferred to the
Issuing Agent in accordance with
Settlement Procedure F.
J. The Issuing Agent will send a copy of
the Book-Entry Note by first class mail
to NCB together with a statement setting
forth the principal amount of Notes
outstanding as of the related Settlement
Date after giving effect to such
transaction and all other offers to
purchase Notes of which NCB has advised
the Issuing Agent but which have not yet
been settled.
K. If the Note was sold through the
Offering Agent, as agent, the Offering
Agent will confirm the purchase of such
Note to the investor or other purchaser
either by transmitting to the
Participant with respect to such Note a
confirmation order through DTC's
Participant Terminal System or by
mailing a written confirmation to such
investor or other purchaser.
Settlement Procedures
Timetable: For offers to purchase Notes accepted by NCB,
Settlement Procedures "A" through "K" set
forth above shall be completed as soon as
possible following the trade but not later
than the respective times (New York City
time) set forth below:
SETTLEMENT
PROCEDURE TIME
A 11:00 a.m. on the trade date
or within one hour following
the trade
B 12:00 noon on the trade date
or within one hour following
the trade
C No later than the close of
business on the trade date
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D 9:00 a.m. on Settlement Date
E 10:00 a.m. on Settlement
Date
F-G No later than 2:00 p.m. on
Settlement Date
H 4:00 p.m. on Settlement Date
I-K 5:00 p.m. on Settlement Date
If a sale is to be settled more than one
Business Day after the trade date, Settlement
Procedures A, B, and C may, if necessary, be
completed at any time prior to the specified
times on the first Business Day after such
trade date.
Settlement Procedure H is subject to
extension in accordance with any extension of
Fedwire closing deadlines and in the other
events specified in the SDFS operating
procedures in effect on the Settlement Date.
If settlement of a Note issued in book-entry
form is rescheduled or canceled, the Issuing
Agent will deliver to DTC, through DTC's
Participant Terminal System, a cancellation
message to such effect by no later than 5:00
p.m., New York City time, on the Business Day
immediately preceding the scheduled
Settlement Date.
Failure to Settle: If the Issuing Agent fails to enter an SDFS
deliver order with respect to a Book-Entry
Note issued in book-entry form pursuant to
Settlement Procedure F, the Issuing Agent may
deliver to DTC, through DTC's Participant
Terminal System, as soon as practicable a
withdrawal message instructing DTC to debit
such Note to the participant account of the
Issuing Agent maintained at DTC. DTC will
process the withdrawal message, provided that
such participant account contains a principal
amount of the Book-Entry Note representing
such Note that is at least equal to the
principal amount to be debited. If withdrawal
messages are processed with respect to all
the Notes represented by a Book-Entry Note,
the Issuing Agent will mark such Book-Entry
Note "canceled," make appropriate entries in
its records and send certification of
destruction of such canceled Book-Entry Note
to NCB. The CUSIP number assigned to such
Book-Entry Note shall, in accordance with
CUSIP Service Bureau procedures, be canceled
and not
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immediately reassigned. If withdrawal
messages are processed with respect to a
portion of the Notes represented by a
Book-Entry Note, the Issuing Agent will
exchange such Book-Entry Note for two
Book-Entry Notes, one of which shall
represent the Book-Entry Notes for which
withdrawal messages are processed and shall
be canceled immediately after issuance, and
the other of which shall represent the other
Notes previously represented by the
surrendered Book-Entry Note and shall bear
the CUSIP number of the surrendered
Book-Entry Note.
In the case of any Note in book-entry form
sold through the Offering Agent, as agent, if
the purchase price for any Book-Entry Note is
not timely paid to the Participants with
respect to such Note by the beneficial
investor or other purchaser thereof (or a
person, including an indirect participant in
DTC, acting on behalf of such investor or
other purchaser), such Participants and, in
turn, the related Offering Agent may enter
SDFS deliver orders through DTC's Participant
Terminal System reversing the orders entered
pursuant to Settlement Procedures F and G,
respectively. Thereafter, the Issuing Agent
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
default by the applicable Offering Agent to
perform its obligations hereunder or under
the Distribution Agreement, NCB will
reimburse such Offering Agent on an equitable
basis for its reasonable loss of the use of
funds during the period when the funds were
credited to the account of NCB.
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 a Note that was to
have been represented by a Book-Entry Note
also representing other Notes, the Issuing
Agent will provide, in accordance with
Settlement Procedure D, for the
authentication and issuance of a Book-Entry
Note representing such remaining Notes and
will make appropriate entries in its records.
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ANNEX III
ACCOUNTANTS' LETTER
Pursuant to Sections 4(j) and 6(d), as the case may be, of the
Distribution Agreement, the Bank's independent certified public accountants
shall furnish letters to the effect that:
(i) They are independent certified public accountants with
respect to the Bank and its subsidiaries within the meaning of the
Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited (and, if
applicable, financial forecasts and/or pro forma financial
information) examined by them and included or incorporated by
reference in the Registration Statement or the Prospectus comply as
to form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and the
related published rules and regulations thereunder; and, if
applicable, they have made a review in accordance with standards
established by the American Institute of Certified Public
Accountants of the consolidated interim financial statements,
selected financial data, pro forma financial information and/or
condensed financial statements derived from audited financial
statements of the Bank for the periods specified in such letter, as
indicated in their reports thereon, copies of which have been
furnished to the Agents and are attached hereto;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public
Accountants of the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus and/or included in the Bank's
quarterly report on Form 10-Q incorporated by reference into the
Prospectus as indicated in their reports thereon copies of which are
attached hereto; and on the basis of specified procedures including
inquiries of officials of the Bank who have responsibility for
financial and accounting matters regarding whether the unaudited
condensed consolidated financial statements referred to in paragraph
(vi)(A)(i) below comply as to form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act
and the related published rules and regulations, nothing came to
their attention that caused them to believe that the unaudited
condensed consolidated financial statements do not comply as to form
in all material respects with the applicable accounting requirements
of the Act and the Exchange Act and the related published rules and
regulations;
(iv) The unaudited selected financial information with
respect to the consolidated results of operations and financial
position of the Bank for the five most recent fiscal years included
in the Prospectus and included or incorporated by reference in Item
6 of the Bank's Annual Report on Form 10-K for the most recent
fiscal year agrees with the corresponding amounts (after restatement
where applicable) in the
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audited consolidated financial statements for five such fiscal years
which were included or incorporated by reference in the Bank's
Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus
under selected captions with the disclosure requirements of
Regulation S-K and on the basis of limited procedures specified in
such letter nothing came to their attention as a result of the
foregoing procedures that caused them to believe that this
information does not conform in all material respects with the
disclosure requirements of Items 301, 302, 402 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing
standards, consisting of a reading of the unaudited financial
statements and other information referred to below, a reading of the
latest available interim financial statements of the Bank and its
subsidiaries, inspection of the minute books of the Bank and its
subsidiaries since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus,
inquiries of officials of the Bank and its subsidiaries responsible
for financial and accounting matters and such other inquiries and
procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the
Prospectus and/or included or incorporated by reference in the
Bank's Quarterly Reports on Form 10-Q incorporated by reference
in the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
Exchange Act and the related published rules and regulations,
or (ii) any material modifications should be made to the
unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash
flows included in the Prospectus or included in the Bank's
Quarterly Reports on Form 10-Q incorporated by reference in the
Prospectus for them to be in conformity with generally accepted
accounting principles;
(B) (ii) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree
with the corresponding items in the unaudited consolidated
financial statements from which such data and items were
derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis
for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in
the Bank's Annual Report on Form 10-K for the most recent
fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in clause
(A) and any unaudited income statement data and
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balance sheet items included in the Prospectus and referred to
in clause (B) were not determined on a basis substantially
consistent with the basis for the audited financial statements
included or incorporated by reference in the Bank's Annual
Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in
the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the Act
and the published rules and regulations thereunder or the pro
forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
(E) as of a specified date not more than five days
prior to the date of such letter, there have been any changes
in the consolidated capital stock (other than issuances of
capital stock upon exercise of options and stock appreciation
rights, upon earn-outs of performance shares and upon
conversions of convertible securities, in each case which were
outstanding on the date of the latest balance sheet included or
incorporated by reference in the Prospectus) or any increase in
the consolidated long-term debt of the Bank and its
subsidiaries, or any decreases in consolidated net current
assets or stockholders' equity or other items specified by the
Agents, or any increases in any items specified by the Agents,
in each case as compared with amounts shown in the latest
balance sheet included or incorporated by reference in the
Prospectus, except in each case for changes, increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(F) for the period from the date of the latest
financial statements included or incorporated by reference in
the Prospectus to the specified date referred to in clause (E)
there were any decreases in consolidated net revenues or
operating profit or the total or per share amounts of
consolidated net income or other items specified by the Agents,
or any increases in any items specified by the Agents, in each
case as compared with the comparable period of the preceding
year and with any other period of corresponding length
specified by the Agents, except in each case for increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(vii) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the
limited procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (iii) and (vi) above, they have
carried out certain specified procedures, not constituting an audit
in accordance with generally accepted auditing standards, with
respect to certain amounts, percentages and financial information
specified by the Agents which are derived from the general
accounting records of the Bank and its subsidiaries, which appear in
the Prospectus (excluding documents incorporated by reference), or
in Part II of, or in
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exhibits and schedules to, the Registration Statement specified by
the Agents or in documents incorporated by reference in the
Prospectus specified by the Agents, and have compared certain of
such amounts, percentages and financial information with the
accounting records of the Bank and its subsidiaries and have found
them to be in agreement.
All references in this Annex III to the Prospectus shall be
deemed to refer to the Prospectus (including the documents incorporated by
reference therein) as defined in the Distribution Agreement as of the
Commencement Date referred to in Section 6(d) thereof and to the Prospectus as
amended or supplemented (including the documents incorporated by reference
therein) as of the date of the amendment, supplement, incorporation or the Time
of Delivery relating to the Terms Agreement requiring the delivery of such
letter under Section 4(j) thereof.
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