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Exhibit 1
FleetBoston Financial Corporation
U.S.$3,000,000,000
Senior Medium-Term Notes, Series R and
Subordinated Medium-Term Notes, Series S
Due Nine Months or More from Date of Issue
Selling Agency Agreement
June 2, 2000
Bear, Stearns & Co. Inc.
245 Park Avenue
New York, NY 10167
FleetBoston Robertson Stephens Inc.
100 Federal Street
Boston, MA 02110
Fleet Securities, Inc.
26 Broadway, 12th Floor
New York, NY 10004
Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower, 10th Floor
New York, NY 10281-1310
J.P. Morgan Securities Inc.
60 Wall Street
New York, NY 10260
Salomon Smith Barney Inc.
388 Greenwich Street
New York, NY 10013
Dear Sir/Madam:
FleetBoston Financial Corporation, a Rhode Island corporation (the
"Company"), confirms its agreement with each of you with respect to the issue
and sale by the Company of up to $3,000,000,000 aggregate principal amount of
its Senior Medium-Term Notes, Series R and
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Subordinated Medium-Term Notes, Series S (respectively, the "Senior Notes" and
the "Subordinated Notes"), Due Nine Months or More from Date of Issue
(collectively, the "Notes"). The Senior Notes are to be issued under an
indenture dated as of December 6, 1999, between the Company and The Bank of New
York (the "Senior Trustee"), as trustee (the "Senior Indenture"). The
Subordinated Notes are to be issued under an indenture dated as of December 6,
1999, between the Company and The Bank of New York, as trustee (the
"Subordinated Trustee" and, collectively with the Senior Trustee, the "Trustee")
(the "Subordinated Indenture" and collectively with the Senior Indenture, the
"Indentures"). The Notes will be issued in minimum denominations of $1,000 and
integral multiples thereof, will be issued only in fully registered form and
will have the annual interest rates, maturities and, if appropriate, other terms
set forth in a supplement to the Prospectus referred to below. The Notes will be
issued, and the terms thereof established, in accordance with the applicable
Indenture and the Medium-Term Notes Administrative Procedures attached hereto as
Exhibit A (the "Procedures") (unless a Terms Agreement (as defined in Section
2(b)) modifies or otherwise supersedes such Procedures with respect to Notes
issued pursuant to such Terms Agreement). The Procedures may only be amended by
written agreement of the Company and you after notice to, and with the approval
of, the Trustee. For the purposes of this Agreement, the term "Agent" shall
refer to any of you acting solely in the capacity as agent for the Company
pursuant to Section 2(a) and not as principal (collectively, the "Agents"), the
term "Purchaser" shall refer to one of you acting solely as principal pursuant
to Section 2(b) and not as agent, and the term "you" shall refer to you
collectively whether at any time any of you is acting in both such capacities or
in either such capacity. In acting under this Agreement, in whatever capacity,
each of you is acting individually and not jointly.
Section 1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to, and agrees with, you as set forth below in this Section 1. Certain
terms used in this Section 1 are defined in paragraph (d) hereof.
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act") and has filed
with the Securities and Exchange Commission (the "Commission") a
registration statement on such Form S-3 (Registration Number
333-36444), including a basic prospectus which also constitutes
pursuant to Rule 429 under the Act, Post-Effective Amendment No. 1 to
registration statement on such Form (Registration Number 333-86829) and
which has become effective, for the registration under the Act of
securities (the "Securities"), including the Notes, in an aggregate
principal amount of $3,000,000,000. Such registration statement, as
amended at the date of this Agreement, meets the requirements set forth
in Rule 415(a)(1)(ix) or (x) under the Act and complies in all other
material respects with said Rule. The Company has included in such
registration statement, as amended at the date of this Agreement, or
has filed or will file with the Commission pursuant to the applicable
paragraph of Rule 424(b) under the Act, a supplement to the form of
prospectus included in such registration statement relating to the
Notes and the plan of distribution thereof (the "Prospectus
Supplement"). In connection with the sale of Notes, the Company
proposes to file with the Commission pursuant to the applicable
paragraph of Rule 424(b) under the Act further supplements to the
Prospectus Supplement specifying the interest rates, maturity dates
and, if appropriate, other terms of the Notes sold pursuant hereto or
the offering thereof.
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(b) As of the Execution Time, on the Effective Date (each as
defined herein), when any supplement to the Prospectus is filed with
the Commission, as of the date of any Terms Agreement, on each day of
an Offering Period (referred to below) and at the date of delivery by
the Company of any Notes sold hereunder (a "Closing Date"), (i) the
Registration Statement (as defined herein), as amended as of any such
time, and the Prospectus, as supplemented as of any such time, and each
Indenture will comply in all material respects with the applicable
requirements of the Act, the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act") and the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and the respective rules thereunder; (ii)
the Registration Statement, as amended as of any such time, did not or
will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and (iii) the
Prospectus, as supplemented as of any such time, will not contain any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to
(i) that part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee or (ii) the information contained in or
omitted from the Registration Statement or the Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by any of you specifically for
inclusion in connection with the preparation of the Registration
Statement or the Prospectus (or any supplement thereto).
(c) As of the time any Notes are issued and sold hereunder,
each Indenture will constitute a legal, valid and binding instrument
enforceable against the Company in accordance with its terms, except as
enforcement thereof may be limited by the receivership, conservatorship
and supervisory powers of bank regulatory agencies generally as well as
bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a proceeding
in equity or at law) and the availability of equitable remedies, and
except further as enforcement thereof may be limited by (i)
requirements that a claim with respect to any Notes denominated other
than in U.S. dollars (or a foreign currency or currency unit judgment
in respect of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or
(ii) governmental authority to limit, delay or prohibit the making of
payments outside the United States; and such Notes will have been duly
authorized, executed, authenticated and, when paid for by the
purchasers thereof, will constitute legal, valid and binding
obligations of the Company entitled to the benefits of the applicable
Indenture.
(d) The terms which follow, when used in this Agreement, shall
have the meanings indicated. "Effective Date" shall mean each date that
the Registration Statement and any post-effective amendment or
amendments thereto became or become effective. "Execution Time" shall
mean the date and time that this Agreement is executed and delivered by
the parties hereto. "Basic Prospectus" shall mean the form of basic
prospectus relating to the Securities contained in the Registration
Statement at the
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Effective Date. "Prospectus" shall mean the Basic Prospectus as
supplemented by the Prospectus Supplement. "Registration Statement"
shall mean the registration statement referred to in paragraph (a)
above, including incorporated documents, exhibits and financial
statements, as amended at the Execution Time. "Rule 415" and "Rule 424"
refer to such rules under the Act. Any reference herein to the
Registration Statement, the Basic Prospectus, the Prospectus Supplement
or the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which
were filed under the Exchange Act on or before the Effective Date of
the Registration Statement or the issue date of the Basic Prospectus,
the Prospectus Supplement or the Prospectus, as the case may be; and
any reference herein to the terms "amend", "amendment" or "supplement"
with respect to the Registration Statement, the Basic Prospectus, the
Prospectus Supplement or the Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, the Prospectus Supplement or the Prospectus, as the
case may be, deemed to be incorporated therein by reference.
Section 2. APPOINTMENT OF AGENTS; SOLICITATION BY THE AGENTS OF OFFERS
TO PURCHASE; SALES OF NOTES TO A PURCHASER.
(a) Subject to the terms and conditions set forth herein, the
Company hereby authorizes each of the Agents to act as its agent to
solicit offers for the purchase of all or part of the Notes from the
Company. The Company shall notify the Agents from time to time as to
the commencement of a period during which the Notes may be offered and
sold by the Agents (each period, commencing with such notification and
ending at such time as the authorization for offers and sales through
the Agents shall have been suspended by the Company or the Agents as
provided hereunder, being referred to as an "Offering Period").
On the basis of the representations and warranties, and
subject to the terms and conditions set forth herein, each of the
Agents agrees, as agent of the Company, to use its reasonable efforts
to solicit offers to purchase the Notes during each Offering Period
from the Company upon the terms and conditions set forth in the
Prospectus (and any supplement thereto) and in the Procedures.
The Company reserves the right, in its sole discretion, to
instruct the Agents to suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase the Notes. Upon
receipt of instructions from the Company, the Agents will forthwith
suspend solicitation of offers to purchase Notes from the Company until
such time as the Company has advised them that such solicitation may be
resumed.
The Company agrees to pay each Agent a commission, on the
Closing Date with respect to each sale of Notes by the Company as a
result of a solicitation made by such Agent as agent, in an amount
equal to that percentage specified in Schedule I hereto of the
aggregate principal amount of the Notes sold by the Company. Such
commission shall be payable as specified in the Procedures.
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Subject to the provisions of this Section and to the
Procedures, offers for the purchase of Notes may be solicited by an
Agent as agent for the Company at such time and in such amounts as such
Agent deems advisable. The Company may from time to time offer Notes
for sale otherwise than through an Agent; provided, however, that so
long as this Agreement shall be in effect, the Company shall not
solicit or accept offers to purchase Notes through any agent other than
an Agent or an affiliate of the Company unless such solicitation or
acceptance is on terms with respect to commissions substantially
similar to those set forth in Schedule I hereto and the Company shall
give the Agents reasonable notice of the appointment of such agents for
the purpose of soliciting offers to purchase the Notes.
(b) Subject to the terms and conditions stated herein,
whenever the Company and any Agent determine that the Company shall
sell Notes directly to such Agent as principal, each such sale of Notes
shall be made in accordance with the terms of this Agreement and a
supplemental agreement relating to such sale between the Company and
the Purchaser. Each such supplemental agreement (which may be an oral
or written agreement) is herein referred to as a "Terms Agreement".
Each Terms Agreement shall describe (whether orally or in writing) the
Notes to be purchased by the Purchaser pursuant thereto and shall
specify the aggregate principal amount of such Notes, the price to be
paid to the Company for such Notes, the maturity date of such Notes,
the rate at which interest will be paid on such Notes, the dates on
which interest will be paid on such Notes and the record date with
respect to each such payment of interest, the Closing Date for the
purchase of such Notes, the place of delivery of the Notes and payment
therefor, the method of payment and any requirements for the delivery
of opinions of counsel, certificates from the Company or its officers
or a letter from the Company's independent public accountants, as
described in Section 6(b). Any such Terms Agreement may also specify
the period of time referred to in Section 4(m). The Purchaser's
commitment to purchase Notes shall be deemed to have been made on the
basis of the representations and warranties of the Company herein
contained and shall be subject to the terms and conditions herein set
forth.
Delivery of the certificates for Notes sold to the Purchaser
pursuant to a Terms Agreement shall be made not later than the Closing
Date agreed to in such Terms Agreement, against payment of funds to the
Company in the net amount due to the Company for such Notes by the
method and in the form set forth in the Procedures unless otherwise
agreed to between the Company and the Purchaser in such Terms
Agreement.
Unless otherwise agreed to between the Company and the
Purchaser in a Terms Agreement, any Note sold to a Purchaser (i) shall
be purchased by such Purchaser at a price equal to 100% of the
principal amount thereof less a percentage equal to the commission
applicable to an agency sale of a Note of identical maturity and (ii)
may be resold by such Agent at varying prices determined at the time of
sale or, if so agreed and set forth in the applicable Pricing
Supplement, at a fixed public offering price, from time to time. In
connection with any resale of Notes purchased, a Purchaser may use a
selling or dealer group and may reallow any portion of the discount or
commission payable pursuant hereto to dealers or purchasers.
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(c) So long as either FleetBoston Robertson Stephens Inc.
or Fleet Securities, Inc. is an agent under this Agreement, each
Agent agrees that it will comply with the applicable provisions of
Conduct Rule 2720(l) of the Conduct Rules of the National Association
of Securities Dealers, Inc.
Section 3. OFFERING AND SALE OF NOTES. Each Agent and the Company agree
to perform the respective duties and obligations specifically provided to be
performed by them in the Procedures.
Section 4. AGREEMENTS. The Company agrees with you that:
(a) Prior to the termination of the offering of the Notes, the
Company will not file any amendment of the Registration Statement or
supplement to the Prospectus (except for (i) periodic or current
reports filed under the Exchange Act, (ii) a supplement relating to any
offering of Notes providing solely for the specification of or a change
in the maturity dates, interest rates, issuance prices or other terms
of any Notes or (iii) a supplement relating to an offering of
Securities other than the Notes) unless the Company has furnished each
of you a copy for your review prior to filing and given each of you a
reasonable opportunity to comment on any such proposed amendment or
supplement. Subject to the foregoing sentence, the Company will cause
each supplement to the Prospectus to be filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time
period prescribed and will provide evidence satisfactory to you of such
filing. The Company will promptly advise each of you (i) when the
Prospectus, and any supplement thereto, shall have been filed with the
Commission pursuant to Rule 424(b), (ii) when, prior to the termination
of the offering of the Notes, any amendment of the Registration
Statement shall have been filed or become effective, (iii) of any
request by the Commission for any amendment of the Registration
Statement or supplement to the Prospectus or for any additional
information, (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (v)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Notes for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it
shall be necessary to amend the Registration Statement or to supplement
the Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will (i) notify each
of you to suspend solicitation of offers to purchase Notes (and, if so
notified by the Company, each of you shall forthwith suspend such
solicitation and cease using the Prospectus as then supplemented), (ii)
prepare and file with the Commission, subject to the first sentence of
paragraph (a) of this Section 4, an amendment or supplement which will
correct such statement or omission or effect such compliance and (iii)
supply any
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supplemented Prospectus to each of you in such quantities as you may
reasonably request. If such amendment or supplement, and any documents,
certificates and opinions furnished to each of you pursuant to
paragraph (g) of this Section 4 in connection with the preparation or
filing of such amendment or supplement are satisfactory in all respects
to you, each of you will, upon the filing of such amendment or
supplement with the Commission and upon the effectiveness of an
amendment to the Registration Statement, if such an amendment is
required, resume your obligation to solicit offers to purchase Notes
hereunder.
(c) The Company, during the period when a prospectus relating
to the Notes is required to be delivered under the Act, will file
promptly all documents required to be filed with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act.
During such period, the Company will immediately notify each of you of
(i) any decrease in the rating of the Notes or any other debt
securities of the Company, by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the
Act) or (ii) any notice given of any intended or potential decrease in
any such rating or a possible change in any such rating that does not
indicate the direction of the possible change, as soon as the Company
learns of any such decrease or notice.
(d) As soon as practicable, the Company will make generally
available to its security holders an earnings statement or statements
of the Company and its subsidiaries which will satisfy the provisions
of Section 11(a) of the Act and Rule 158 under the Act.
(e) The Company will furnish to each of you and your counsel,
without charge, copies of the Registration Statement (including
exhibits thereto) and, so long as delivery of a prospectus may be
required by the Act, as many copies of the Prospectus and any
supplement thereto as you may reasonably request.
(f) The Company will arrange for the qualification of the
Notes for sale under the laws of such jurisdictions as any of you may
designate, will maintain such qualifications in effect so long as
required for the distribution of the Notes, and will arrange for the
determination of the legality of the Notes for purchase by
institutional investors; provided, however, that the Company shall not
be obligated to file any general consent to service of process or to
qualify as a foreign corporation in any jurisdiction in which it is not
so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject.
(g) The Company shall furnish to each of you such information,
documents, certificates of officers of the Company and opinions of
counsel for the Company relating to the business, operations and
affairs of the Company, the Registration Statement, the Prospectus, and
any amendments thereof or supplements thereto, each Indenture, the
Notes, this Agreement, the Procedures and the performance by the
Company and you of its and your respective obligations hereunder and
thereunder as any of you may from time to time and at any time prior to
the termination of this Agreement reasonably request.
(h) The Company shall, whether or not any sale of the Notes is
consummated, (i) pay all expenses incident to the performance of its
obligations under this Agreement,
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including the fees and disbursements of its accountants and counsel,
the cost of printing or other production and delivery of the
Registration Statement, the Prospectus, all amendments thereof and
supplements thereto, each Indenture, this Agreement and all other
documents relating to the offering, the cost of preparing, printing,
packaging and delivering the Notes, the fees and disbursements,
including reasonable fees of counsel, incurred in compliance with
Section 4(f), the fees and disbursements of the Trustee and the fees of
any agency that rates the Notes, (ii) reimburse each of you on a
monthly basis for all out-of-pocket expenses (including without
limitation advertising expenses) incurred by you in connection with
this Agreement and (iii) pay the reasonable fees and expenses of your
counsel incurred in connection with this Agreement.
(i) Each acceptance by the Company of an offer to purchase
Notes will be deemed to be an affirmation that its representations and
warranties contained in this Agreement are true and correct at the time
of such acceptance, as though made at and as of such time, and a
covenant that such representations and warranties will be true and
correct at the time of delivery to the purchaser of the Notes relating
to such acceptance, as though made at and as of such time (it being
understood that for purposes of the foregoing affirmation and covenant
such representations and warranties shall relate to the Registration
Statement and Prospectus as amended or supplemented at each such time).
Each such acceptance by the Company of an offer for the purchase of
Notes shall be deemed to constitute an additional representation,
warranty and agreement by the Company that, as of the settlement date
for the sale of such Notes, after giving effect to the issuance of such
Notes, of any other Notes to be issued on or prior to such settlement
date and of any other Securities to be issued and sold by the Company
on or prior to such settlement date, the aggregate amount of Securities
(including any Notes) which have been issued and sold by the Company
will not exceed the amount of Securities registered pursuant to the
Registration Statement.
(j) On the date hereof and each time hereafter that the
Registration Statement or the Prospectus is amended or supplemented
(other than by an amendment or supplement (i) relating to any offering
of Securities other than the Notes, (ii) providing solely for the
specification of or a change in the maturity dates, the interest rates,
the issuance prices or other similar terms of any Notes sold pursuant
hereto or (iii) other than by means of a Current Report on Form 8-K
filed by the Company and incorporated by reference into the Prospectus,
unless requested by the Agents), the Company will deliver or cause to
be delivered promptly to each of you a certificate of the Company,
signed by the Chairman of the Board, any Vice Chairman or the
President, or any Vice President or person holding a functional title
of equivalent rank and the principal financial or accounting officer or
Treasurer of the Company, dated the date of the effectiveness of such
amendment or the date of the filing of such supplement, in form
reasonably satisfactory to you, of the same tenor as the certificate
referred to in Section 5(d) but modified to relate to the last day of
the fiscal quarter for which financial statements of the Company were
last filed with the Commission and to the Registration Statement and
the Prospectus as amended and supplemented to the time of the
effectiveness of such amendment or the filing of such supplement.
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(k) On the date hereof and each time hereafter that the
Registration Statement or the Prospectus is amended or supplemented
(other than by an amendment or supplement (i) relating to any offering
of Securities other than the Notes, (ii) providing solely for the
specification of or a change in the maturity dates, the interest rates,
the issuance prices or other similar terms of any Notes sold pursuant
hereto, (iii) setting forth or incorporating by reference financial
statements or other information as of and for a fiscal quarter, unless,
in the case of clause (iii) above, in the reasonable judgment of any of
you, such financial statements or other information are of such a
nature that an opinion of counsel should be furnished, (iv) other than
by an amendment or supplement by means of a Current Report on Form 8-K
filed by the Company and incorporated by reference into the Prospectus,
unless requested by the Agents), the Company shall furnish or cause to
be furnished promptly to each of you a written opinion of counsel of
the Company reasonably satisfactory to each of you, dated the date of
the effectiveness of such amendment or the date of the filing of such
supplement of the same tenor as the opinion referred to in Section 5(b)
but modified to relate to the Registration Statement and the Prospectus
as amended and supplemented to the time of the effectiveness of such
amendment or the filing of such supplement or, in lieu of such opinion,
counsel last furnishing such an opinion to you may furnish each of you
with a letter to the effect that you may rely on such last opinion to
the same extent as though it were dated the date of such letter
authorizing reliance (except that statements in such last opinion will
be deemed to relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of the effectiveness of such
amendment or the filing of such supplement).]
(l) On the date hereof and each time hereafter that the
Registration Statement or the Prospectus is amended or supplemented to
include or incorporate amended or supplemental financial information,
and each time during any Offering Period that the Registration
Statement or Prospectus is so amended or supplemented (other than by an
amendment or supplement by means of a Current Report on Form 8-K filed
by the Company and incorporated by reference into the Prospectus,
unless requested by the Agents), the Company shall cause its
independent public accountants promptly to furnish each of you a
letter, dated the date of the commencement of such Offering Period or
the date of the effectiveness of such amendment or the date of the
filing of such supplement, as the case may be, in form satisfactory to
each of you, of the same tenor as the letter referred to in Section
5(e) with such changes as may be necessary to reflect the amended and
supplemental financial information included or incorporated by
reference in the Registration Statement and the Prospectus, as amended
or supplemented to the date of such letter; provided, that in no event
will the Company accept any offer to purchase Notes unless such letter
shall have been delivered; provided, further, that, if the Registration
Statement or the Prospectus is amended or supplemented solely to
include or incorporate by reference financial information as of and for
a fiscal quarter, the Company's independent public accountants may
limit the scope of such letter, which shall be reasonably satisfactory
in form to each of you, to the unaudited financial statements, the
related "Management's Discussion and Analysis of Financial Condition
and Results of Operations" and any other information of an accounting,
financial or statistical nature included in such amendment or
supplement, unless, in the reasonable judgment of any of
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you, such letter should cover other information or changes in specified
financial statement line items.
(m) During the period from the date of any Terms Agreement to
the later of (A) the Closing Date with respect to such Terms Agreement
and (B) the date, if any, specified in such Terms Agreement, the
Company shall not, without the prior consent of the Purchaser
thereunder, issue or announce the proposed issuance of any of its debt
securities, including Notes (other than the Notes that are to be sold
pursuant to such Terms Agreement), with terms substantially similar to
the Notes being purchased pursuant to such Terms Agreement, other than
borrowings under its revolving credit agreements and lines of credit
and issuances of its commercial paper.
Section 5. CONDITIONS TO THE OBLIGATIONS OF THE AGENTS. The obligations
of each Agent to solicit offers to purchase the Notes shall be subject to the
accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time, on the Effective Date, when any
supplement to the Prospectus is filed with the Commission and as of each Closing
Date, to the accuracy of the statements of the Company made in any certificates
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions:
(a) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus, and any such
supplement, shall have been filed in the manner and within the time
period required by Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or
threatened.
(b) The Company shall have furnished to each Agent the opinion
of Edwards & Angell, LLP, special counsel for the Company, or William
C. Mutterperl, General Counsel for the Company, dated the Execution
Time, to the effect that:
(i) each of the Company, Fleet National Bank ("Fleet
Bank") and any other subsidiary or subsidiaries which the
Agent may reasonably request (individually a "Subsidiary" and
collectively the "Subsidiaries") has been duly incorporated
and is validly existing as a corporation or national banking
association in good standing under the laws of the
jurisdiction in which it is chartered or organized, with full
corporate power and authority to own its properties and
conduct its business as described in the Prospectus; the
Company is qualified to do business as a foreign corporation
under the laws of the State of New York and the Commonwealth
of Massachusetts and neither the Company nor any Subsidiary is
required to be qualified to do business as a foreign
corporation under the laws of any other jurisdiction, except
to the extent that the failure to so qualify would not have a
material adverse effect on the Company and its Subsidiaries,
considered as one enterprise; and the Company is registered as
a financial holding company under the Bank Holding Company Act
of 1956, as amended;
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(ii) all of the outstanding shares of capital stock
of such Subsidiaries have been duly and validly authorized and
issued and are fully paid and (except as provided in 12 U.S.C.
Section 55) nonassessable, and, except as otherwise set forth
or incorporated by reference in the Prospectus, all
outstanding shares of capital stock of such Subsidiaries are
owned by the Company free and clear of any perfected security
interest and, to the knowledge of such counsel, after due
inquiry, any other security interests, claims, liens or
encumbrances;
(iii) each Indenture has been duly authorized,
executed and delivered; each Indenture has been duly qualified
under the Trust Indenture Act; and each Indenture, assuming
the due authorization, execution and delivery thereof by the
Trustee, constitutes a legal, valid and binding agreement,
enforceable against the Company in accordance with its terms,
except as enforcement thereof may be limited by the
receivership, conservatorship and supervisory powers of bank
regulatory agencies generally as well as bankruptcy,
insolvency, reorganization, moratorium or other laws relating
to or affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles
of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law) and the availability of
equitable remedies, and except further as enforcement thereof
may be limited by (i) requirements that a claim with respect
to any Notes denominated other than in U.S. dollars (or a
foreign currency or currency unit judgment in respect of such
claim) be converted into U.S. dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law or
(ii) governmental authority to limit, delay or prohibit the
making of payments outside the United States;
(iv) the Notes have been duly authorized as a series
of Debt Securities under the applicable Indenture, are in the
forms provided for by resolutions of the Board of Directors of
the Company, conform in all material respects to the
description thereof contained in the Prospectus, and, when
executed and authenticated in accordance with the provisions
of the applicable Indenture and delivered to and paid for by
the purchasers pursuant to this Agreement, will constitute
legal, valid and binding obligations of the Company entitled
to the benefits of the applicable Indenture, enforceable
against the Company in accordance with their terms, except as
enforcement thereof may be limited by the receivership,
conservatorship and supervisory powers of bank regulatory
agencies generally as well as bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or
affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles
of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law) and the availability of
equitable remedies, and except further as enforcement thereof
may be limited by (i) requirements that a claim with respect
to any Notes denominated other than in U.S. dollars (or a
foreign currency or currency unit judgment in respect of such
claim) be converted into U.S. dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law or
(ii) governmental authority to limit, delay or prohibit the
making of payments outside the United States;
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<PAGE> 12
(v) to the best knowledge of such counsel, there is
no pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries,
of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Prospectus
or incorporated by reference therein, and there is no
franchise, contract or other document of a character required
to be described in the Registration Statement or Prospectus,
or to be filed as an exhibit thereto, which is not described
or filed as required;
(vi) the Registration Statement has become effective
under the Act; to the best knowledge of such counsel, no stop
order suspending the effectiveness of the Registration
Statement has been issued, no proceedings for that purpose
have been instituted or threatened, and the Registration
Statement and the Prospectus and each amendment thereof or
supplement thereto as of their respective effective or issue
dates (other than the financial statements and other financial
data contained therein, as to which such counsel need express
no opinion) complied as to form in all material respects with
the applicable requirements of the Act and the Exchange Act
and the respective rules thereunder; and such counsel has no
reason to believe that the Registration Statement, or any
amendment thereof or supplement thereto, as of their
respective effective dates and the effective date of each
amendment thereof or supplement thereto, and at the date of
this Agreement, contained any untrue statement of a material
fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Prospectus, as amended or supplemented
to the date of such opinion, includes any untrue statement of
a material fact or omits to state a material fact necessary in
order to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(vii) this Agreement has been duly authorized,
executed and delivered by the Company;
(viii) no consent, approval, authorization, or order
of any court or governmental agency or body is required for
the consummation of the transactions contemplated herein,
except such as have been obtained under the Act and such as
may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Notes as
contemplated by this Agreement;
(ix) neither the issue and sale of the Notes, nor the
consummation of any other of the transactions herein
contemplated, nor the fulfillment of the terms hereof will
conflict with, result in a breach of, or constitute a default
under the Restated Articles of Incorporation or By-laws of the
Company or the terms of any material indenture or other
material agreement or material instrument known to such
counsel and to which the Company or any of its subsidiaries is
a party or bound, or any order or regulation known to such
counsel to be applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction
over the Company or
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<PAGE> 13
any of its subsidiaries, except in each such case where
conflicts, breaches and defaults would not have a material
adverse effect on the condition, financial or otherwise,
earnings, business affairs or business prospects of the
Company and the Company's subsidiaries considered as one
enterprise; and
(x) no holders of securities of the Company have
rights to the registration of such securities under the
Registration Statement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State of
Rhode Island or the United States, to the extent deemed proper and specified in
such opinion, upon the opinion of other counsel of good standing believed to be
reliable and who are satisfactory to counsel for the Agents and (B) as to
matters of fact, to the extent deemed proper, on certificates of responsible
officers of the Company and public officials. References to the Prospectus in
this paragraph (b) include any supplements thereto at the date such opinion is
rendered.
(c) Each Agent shall have received from Brown & Wood LLP,
counsel for the Agents, such opinion or opinions, dated the Execution
Time, with respect to the issuance and sale of the Notes, each
Indenture, the Registration Statement, the Prospectus (together with
any supplement thereto) and other related matters as the Agents may
reasonably require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them
to pass upon such matters.
(d) The Company shall have furnished to each Agent a
certificate of the Company, signed by the Chairman of the Board, any
Vice Chairman or the President, or any Vice President or person holding
a functional title of equivalent rank and the principal financial or
accounting officer or Treasurer of the Company, dated the Execution
Time, to the effect that:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the date hereof with the same effect as
if made on the date hereof and the Company has complied with
all the agreements and satisfied all the conditions on its
part to be performed or satisfied as a condition to the
obligation of the Agents to solicit offers to purchase the
Notes;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii) since the date of the most recent financial
statements included or incorporated by reference in the
Prospectus (exclusive of any supplement thereto, but including
documents incorporated by reference), there has been no
material adverse change in the condition (financial or other),
earnings, business or properties of the Company and its
subsidiaries considered as one enterprise, whether or not
arising from transactions in the ordinary course of business,
except
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<PAGE> 14
as set forth or contemplated in the Prospectus (exclusive of
any supplement thereto, but including documents incorporated
by reference).
(e) At the Execution Time, PricewaterhouseCoopers LLP shall
have furnished to each Agent a letter or letters (which may refer to
letters previously delivered to the Agents), dated as of the Execution
Time, in form and substance satisfactory to the Agents, confirming that
they are independent accountants within the meaning of the Act and the
Exchange Act and the respective applicable published rules and
regulations thereunder and stating in effect that:
(i) in their opinion the audited financial statements
included or incorporated in the Registration Statement and the
Prospectus and reported on by them comply as to form in all
material respects with the applicable accounting requirements
of the Act and the Exchange Act and the related published
rules and regulations;
(ii) on the basis of a reading of the latest
unaudited consolidated financial statements made available by
the Company; carrying out certain specified procedures (but
not an examination in accordance with generally accepted
auditing standards) which would not necessarily reveal matters
of significance with respect to the comments set forth in such
letter; a reading of the minutes of the meetings of the
stockholders, directors and executive and audit committees of
the Company; and inquiries of certain officials of the Company
who have responsibility for financial and accounting matters
of the Company and its subsidiaries as to transactions and
events subsequent to the date of the most recent audited
financial statements incorporated in the Registration
Statement and the Prospectus, nothing came to their attention
which caused them to believe that:
(1) the amounts in the unaudited "Summary
Consolidated Financial Data", if any, included in the
Prospectus do not agree with the corresponding
amounts in the audited consolidated financial
statements, unaudited consolidated financial
statements or analyses prepared by the Company from
which such amounts were derived; or
(2) any unaudited financial statements
included or incorporated in the Registration
Statement and the Prospectus do not comply as to form
in all material respects with applicable accounting
requirements and with the published rules and
regulations of the Commission with respect to
financial statements included or incorporated in
quarterly reports on Form 10-Q under the Exchange
Act; and said unaudited financial statements are not
in conformity with generally accepted accounting
principles applied on a basis substantially
consistent with that of the audited financial
statements included or incorporated in the
Registration Statement and the Prospectus; or
(3) with respect to the period subsequent to
the date of the most recent financial statements
(other than capsule information), audited
14
<PAGE> 15
or unaudited, incorporated in the Registration
Statement and the Prospectus, there were any changes,
at a specified date not more than five business days
prior to the date of the letter, in the long-term
debt of the Company and its subsidiaries on a
consolidated basis or capital stock of the Company or
decreases in the stockholders' equity of the Company
and its subsidiaries on a consolidated basis as
compared with the amounts shown on the most recent
consolidated balance sheet or capitalization table
included or incorporated in the Registration
Statement and the Prospectus, or for the period from
the date of the most recent financial statements
incorporated in the Registration Statement and the
Prospectus to such specified date there were any
decreases, as compared with the corresponding period
in the preceding year, in net interest income or
income before income taxes, or in total or per share
amounts of net income, of the Company and its
subsidiaries on a consolidated basis, except in all
instances for changes or decreases that the
Registration Statement has disclosed have occurred or
may occur, in which case the letter shall be
accompanied by an explanation by the Company as to
the significance thereof unless said explanation is
not deemed necessary by the Agents; or
(4) the amounts included in any unaudited
"capsule" information included or incorporated in the
Registration Statement and the Prospectus do not
agree with the amounts set forth in the unaudited
financial statements for the same periods or were not
determined on a basis substantially consistent with
that of the corresponding amounts in the audited
financial statements included or incorporated in the
Registration Statement and the Prospectus;
(iii) they have performed certain other specific
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company) set forth in the Registration Statement, as amended,
and the Prospectus, as amended or supplemented, and in Exhibit
12 to the Registration Statement, the information included or
incorporated in Items 1 (Guide 3 Statistical Disclosure), 6
and 7 of the Company's annual report on Form 10-K incorporated
therein, and in "Management's Discussion and Analysis of
Financial Condition and Results of Operations" included or
incorporated in the Company's quarterly reports on Form 10-Q
incorporated therein agrees with the accounting records of the
Company and its subsidiaries on a consolidated basis,
excluding any questions of legal interpretation; and
(iv) if pro forma financial statements are included
or incorporated in the Registration Statement and the
Prospectus, on the basis of a reading of the unaudited pro
forma financial statements, carrying out certain specified
procedures, inquiries of certain officials of the Company and
the acquired company who have responsibility for financial and
accounting matters, and
15
<PAGE> 16
proving the arithmetic accuracy of the application of the pro
forma adjustments to the historical amounts in the pro forma
financial statements, nothing came to their attention which
caused them to believe that the pro forma financial statements
do not comply in form in all material respects with the
applicable accounting requirements of Rule 11-02 of Regulation
S-X or that the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of such
statements.
References to the Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
(f) Prior to the Execution Time, the Company shall have
furnished to each Agent such further information, documents,
certificates and opinions of counsel as the Agents may reasonably
request.
The documents required to be delivered by this Section 5 shall be
delivered at the office of Brown & Wood LLP, counsel for the Agents, at One
World Trade Center, New York, New York 10048, on the date hereof.
Section 6. CONDITIONS TO THE OBLIGATIONS OF THE PURCHASER. The
obligations of the Purchaser to purchase any Notes will be subject to the
accuracy of the representations and warranties on the part of the Company herein
as of the date of the related Terms Agreement and as of the Closing Date for
such Notes, to the performance and observance by the Company of all covenants
and agreements herein contained on its part to be performed and observed and to
the following additional conditions precedent:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or threatened.
(b) To the extent agreed to in writing between the Company and
the Purchaser in a Terms Agreement, the Purchaser shall have received,
appropriately updated, (i) a certificate of the Company, dated as of
the Closing Date, to the effect set forth in Section 5(d) (except that
references to the Prospectus shall be to the Prospectus as supplemented
as of the date of such Terms Agreement), (ii) the opinion of Edwards &
Angell, LLP, special counsel for the Company, or William C. Mutterperl,
General Counsel for the Company dated as of the Closing Date, to the
effect set forth in Section 5(b), (iii) the opinion of Brown & Wood
LLP, counsel for the Purchaser, dated as of the Closing Date, to the
effect set forth in Section 5(c), and (iv) a letter of
PricewaterhouseCoopers LLP, independent accountants for the Company,
dated as of the Closing Date, to the effect set forth in Section 5(e).
(c) Prior to the Closing Date, the Company shall have
furnished to the Purchaser such further information, certificates and
documents as the Purchaser may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement
and an applicable Terms Agreement,
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<PAGE> 17
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement or such Terms Agreement and required to be delivered to the Purchaser
pursuant to the terms hereof and thereof shall not be in all material respects
reasonably satisfactory in form and substance to the Purchaser and its counsel,
such Terms Agreement and all obligations of the Purchaser thereunder and with
respect to the Notes subject thereto may be canceled at, or at any time prior
to, the respective Closing Date by the Purchaser. Notice of such cancellation
shall be given to the Company in writing or by telephone or telegraph confirmed
in writing.
Section 7. RIGHT OF PERSON WHO AGREED TO PURCHASE TO REFUSE TO
PURCHASE.
(a) The Company agrees that any person who has agreed to
purchase and pay for any Note, including a Purchaser and any person who
purchases pursuant to a solicitation by any of the Agents, shall have
the right to refuse to purchase such Note if (i) at the Closing Date
therefor, any condition set forth in Section 5 (except that references
to the Prospectus shall be to the Prospectus as supplemented at the
Closing Date) or 6, as applicable, shall not be satisfied, (ii)
subsequent to the agreement to purchase such Note, any change, or any
development with respect to the Company involving a prospective change,
in or affecting the business or properties of the Company and its
subsidiaries considered as one enterprise shall have occurred the
effect of which is, in the judgment of the Purchaser or the Agent which
presented the offer to purchase such Note, as applicable, so material
and adverse as to make it impractical or inadvisable to proceed with
the delivery of such Note or (iii) subsequent to the agreement to
purchase such Note, (w) there shall have been any decrease in the
ratings of any of the Company's debt securities by Moody's Investors
Service, Inc. or Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc. (each, a "Rating Agency") or any such
Rating Agency shall publicly announce that it has placed any of such
debt securities on a "watchlist" with negative implications, (x)
trading in the Company's common stock shall have been suspended by the
Commission or the New York Stock Exchange or trading in securities
generally on the New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on such Exchange,
(y) a banking moratorium shall have been declared either by Federal or
New York State authorities, or (z) there shall have occurred any
outbreak or escalation of hostilities or other calamity or crisis the
effect of which on the financial markets or the United States is such
as to make it, in the judgment of the Purchaser or the Agent which
presented the offer to purchase such Note, as applicable, impracticable
to market such Notes (it being understood that under no circumstance
shall any Agent have any duty or obligation to exercise any judgment
permitted to be exercised pursuant to this Section 7(a)).
(b) The Company further agrees to notify each Agent upon the
occurrence of any change, condition or development contemplated by
Section 7(a)(ii) or (iii) which occurs prior to the Closing Date.
Section 8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each of
you and each person who controls each of you within the meaning of
either the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to
17
<PAGE> 18
which you, they or any of you or them may become subject under the Act,
the Exchange Act or other Federal or state statutory law or regulation,
at common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material
fact contained in the registration statement for the registration of
the Securities as originally filed or in any amendment thereof, or in
the Prospectus or any preliminary Prospectus, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that (i) the Company
will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company by any of you specifically for use
in connection with the preparation thereof, and (ii) such indemnity
with respect to the Prospectus or any preliminary Prospectus shall not
inure to the benefit of any of you (or any person controlling any of
you) from whom the person asserting any such loss, claim, damage or
liability purchased the Notes which are the subject thereof if it shall
be established that such person did not receive a copy of the
Prospectus (or the Prospectus as supplemented) excluding documents
incorporated therein by reference at or prior to the confirmation of
the sale of such Notes to such person in any case where such delivery
is required by the Act if the Company has previously furnished copies
thereof in sufficient quantity and the loss, claim, damage or liability
results from an untrue statement or omission of a material fact
contained in the Prospectus or any preliminary Prospectus which was
corrected in the Prospectus (or the Prospectus as supplemented). This
indemnity agreement will be in addition to any liability which the
Company may otherwise have.
(b) Each of you agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the
Registration Statement and each person who controls the Company within
the meaning of either the Act or the Exchange Act, to the same extent
as the foregoing indemnity from the Company to you, but only with
reference to written information relating to such of you furnished to
the Company by such of you specifically for use in the preparation of
the documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which you may otherwise
have. The Company acknowledges that the statements set forth in the
fifth, eighth and ninth paragraphs under the heading "Plan of
Distribution" of the Prospectus Supplement relating to purchases and
sales of Notes in the secondary market and stabilization of market
prices constitute the only information furnished in writing by any of
you for inclusion in the documents referred to in the foregoing
indemnity, and you confirm that such information is correct.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party
in writing of the commencement thereof; but the omission so to
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<PAGE> 19
notify the indemnifying party will not relieve it from any liability
which it may have to any indemnified party otherwise than under this
Section 8. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice
delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified
party; provided, however, that if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which
are different from or additional to those available to the indemnifying
party, the indemnified party or parties shall have the right to select
separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified
party or parties. Upon receipt of notice from the indemnifying party to
such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under
this Section 8 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless
(i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the
proviso to the next preceding sentence (it being understood, however,
that the indemnifying party shall not be liable for the expenses of
more than one separate counsel (plus any local counsel), approved by
you in the case of paragraph (a) of this Section 8, representing the
indemnified parties under such paragraph (a) who are parties to such
action), (ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement
of the action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party; and except that, if clause (i) or (iii) is
applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph
(a) of this Section 8 is due in accordance with its terms but is for
any reason held by a court to be unavailable from the Company on
grounds of policy or otherwise, the Company and each of you shall
contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection
with investigating or defending same) to which the Company and any of
you may be subject in such proportion so that each of you is
responsible for that portion represented by the percentage that the
aggregate commissions received by such of you pursuant to Section 2 in
connection with the Notes from which such losses, claims, damages and
liabilities arise (or, in the case of Notes sold
19
<PAGE> 20
pursuant to a Terms Agreement, the aggregate commissions that would
have been received by such of you if such commissions had been
payable), bears to the aggregate principal amount of such Notes sold
and the Company is responsible for the balance; provided, however, that
(y) in no case shall any of you be responsible for any amount in excess
of the commissions received by such of you in connection with the Notes
from which such losses, claims, damages and liabilities arise (or, in
the case of Notes sold pursuant to a Terms Agreement, the aggregate
commissions that would have been received by such of you if such
commissions had been payable) and (z) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section 8, each
person who controls any of you within the meaning of the Act shall have
the same rights to contribution as you and each person who controls the
Company within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement
and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to clauses (y) and
(z) of this paragraph (d).
Section 9. TERMINATION.
(a) This Agreement will continue in effect until terminated as
provided in this Section 9. This Agreement may be terminated by either
the Company as to any of you or any of you insofar as this Agreement
relates to such of you, giving written notice of such termination to
such of you or the Company, as the case may be. This Agreement shall so
terminate at the close of business on the first business day following
the receipt of such notice by the party to whom such notice is given.
In the event of such termination, no party shall have any liability to
the other party hereto, except as provided in the fourth paragraph of
Section 2(a), Section 4(b), Section 4(h), Section 8 and Section 10. The
provisions of this Agreement (including without limitation Section 7
hereof) applicable to any purchase of a Note for which an agreement to
purchase exists prior to the termination hereof shall survive any
termination of this Agreement.
(b) Each Terms Agreement shall be subject to termination in
the absolute discretion of the Purchaser, by notice given to the
Company prior to delivery of any payment for Notes to be purchased
thereunder, if prior to such time (i) trading in the Company's common
stock shall have been suspended by the Commission or the New York Stock
Exchange or trading in securities generally on the New York Stock
Exchange shall have been suspended or limited or minimum prices shall
have been established on such Exchange, (ii) a banking moratorium shall
have been declared either by Federal or New York State authorities,
(iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency
or war or other calamity or crisis the effect of which on the financial
markets is such as to make it, in the judgment of the Purchaser,
impracticable to market such Notes or (iv) there shall have been any
decrease in the ratings of the Company's debt securities by any Rating
Agency or any such Rating Agency shall publicly announce that it has
placed any of such debt securities on a "watchlist" with negative
implications.
Section 10. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of you set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of you or the Company or any of the officers, directors or
controlling persons referred to in Section 8 hereof, and will survive delivery
of and payment for the Notes. The provisions of Sections 4(h) and 8 hereof shall
survive the termination or cancellation of this Agreement.
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Section 11. NOTICES. All communications hereunder will be in writing
and effective only on receipt, and, if sent to any of you, will be mailed,
delivered or telegraphed and confirmed to such of you, at the address specified
in Schedule I hereto; or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at One Federal Street, Boston, Massachusetts
02110, attention of the Vice President, General Counsel and Secretary or such
other address as the Company may designate from time to time.
Section 12. SUCCESSORS. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8 hereof,
and no other person will have any right or obligation hereunder, except for the
right of a person who has agreed to purchase a Note to refuse to purchase such
Note as provided in Section 7 hereof.
Section 13. APPLICABLE LAW. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and you.
Very truly yours,
FLEETBOSTON FINANCIAL CORPORATION
By /s/ Eugene M. McQuade
------------------------------------------------
Name: Eugene M. McQuade
Title: Vice Chairman and Chief Financial Officer
The foregoing Agreement is hereby confirmed and accepted as of the date
hereof.
BEAR, STEARNS & CO. INC.
By /s/ Timothy A. O'Neill
--------------------------------
Name: Timothy A. O'Neill
Title: Senior Managing Director
FLEETBOSTON ROBERTSON STEPHENS INC.
By /s/ Paul E. McCormack
--------------------------------
Name: Paul E. McCormack
Title: Managing Director
FLEET SECURITIES, INC.
By /s/ Joel Hirstreet
--------------------------------
Name: Joel Hirstreet
Title: Senior Vice President
GOLDMAN, SACHS & CO.
By /s/ Ben-Zion Smilchensky
----------------------------------
Name: Ben-Zion Smilchensky
Title: Vice President
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MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By /s/ Diane Kenna
----------------------------------
Name: Diane Kenna
Title: Authorized Signatory
J.P. MORGAN SECURITIES INC.
By /s/ Geoffrey Fitzgerald
----------------------------------
Name: Geoffrey Fitzgerald
Title: Vice President
SALOMON SMITH BARNEY INC.
By /s/ Jeffrey S. Poorman
--------------------------------
Name: Jeffrey S. Poorman
Title: Managing Director
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SCHEDULE I
Commissions:
The Company agrees to pay each Agent a commission equal to the
following percentage of the principal amount of each Note sold on an agency
basis by such Agent:
Term Commission Rate
From 9 months to less than 1 year .125%
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .700%
From 20 years to and including 30 years .750%
Over 30 years to be negotiated
Unless otherwise specified in the applicable Terms Agreement, the
discount or commission payable to a Purchaser shall be determined on the basis
of the commission schedule set forth above.
Address for Notices to you:
Notices to Bear, Stearns & Co. Inc. shall be directed to it at 245 Park
Avenue, New York, NY 10167, Attention: Medium-Term Notes
Notices to FleetBoston Robertson Stephens Inc. shall be directed to it
at 100 Federal Street, Boston, MA 02110, Attention: Medium-Term Notes.
Notices to Fleet Securities, Inc. shall be directed to it at 26
Broadway, 12th Floor, New York, New York 10004, Attention: John Mando.
Notices to Goldman, Sachs & Co. shall be directed to it at 85 Broad
Street, New York, New York 10004, Attention: Credit Department.
Notices to Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, shall be directed to it at World Financial Center, North Tower -
10th Floor, New York, New York 10281-1310, Attention: MTN Product Management.
Notices to J.P. Morgan Securities Inc. shall be directed to it at 60
Wall Street, Fifth Floor, New York, New York 10260, Attention: Transaction
Execution Group.
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Notices to Salomon Smith Barney Inc. shall be directed to it at 388
Greenwich Street, 34th Floor, New York, New York 10013, Attention: Medium-Term
Note Department.
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