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Exhibit 1
New York, New York
September 12, 2000
To: the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
FleetBoston Financial Corporation, a Rhode Island corporation (the
"Company"), proposes to sell to the underwriters named in Schedule II hereto
(the "Underwriters"), for whom you are acting as representatives (the
"Representatives"), the principal amount of its debt securities identified in
Schedule I hereto (the "Debt Securities"), to be issued under an indenture,
dated as of December 6, 1999 (the "Indenture"), between the Company and the
trustee named in Schedule I hereto (the "Trustee"). If so indicated on Schedule
I hereto, the Company also proposes to issue warrants (the "Warrants") to
purchase the aggregate principal amount listed in Schedule I hereto of the debt
securities identified in Schedule I hereto (the "Warrant Securities"). The
Warrants, if any, are to be issued pursuant to the Warrant Agreement listed in
Schedule I hereto (the "Warrant Agreement") between the Company and the Warrant
Agent listed in Schedule I hereto (the "Warrant Agent"). The Debt Securities and
the Warrants, if any, are hereinafter referred to as the "Purchased Securities".
The Purchased Securities and the Warrant Securities, if any, are referred to
herein as the "Securities". If the firm or firms listed in Schedule II hereto
include only the firm or firms listed in Schedule I hereto, then the terms
"Underwriters" and "Representatives", as used herein, shall each be deemed to
refer to such firm or firms.
Section 1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1. Certain terms used in this Section 1 are defined in paragraph (c)
hereof.
(a) If the offering of the Securities is a Delayed Offering (as
specified in Schedule I hereto), paragraph (i) below is applicable and, if the
offering of the Securities is a Non-Delayed Offering (as so specified),
paragraph (ii) below is applicable.
(i) The Company meets the requirements for the use of Form S-3
under the Securities Act of 1933 (the "Act") and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement (the file number of which is set forth in Schedule I hereto)
on such Form, including a related basic prospectus, for registration
under the Act of the offering and sale of the Securities. The Company
may have filed one or more amendments thereto, and may have used a
Preliminary Final Prospectus, each of which has previously been
furnished to you. Such registration statement, as so amended, has
become effective. The Company will next file with the Commission
pursuant to Rules 415 and 424(b)(2) or (5) a final supplement to the
form of prospectus included in such registration statement relating to
the Securities and the offering thereof. As filed, such final
prospectus supplement shall include all required information with
respect to the Securities and the offering thereof and, except to the
extent the Representatives shall agree in writing to a modification,
shall be in all
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substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution Time,
shall contain only such specific additional information and other
changes (beyond that contained in the Basic Prospectus and any
Preliminary Final Prospectus) as the Company has advised you, prior to
the Execution Time, will be included or made therein. If the Rule 434
Delivery Alternative is used, the Company will also file the Rule 434
Term Sheet in accordance with Rule 434. As filed, such Rule 434 Term
Sheet shall contain all the information required by Rule 434, and
except to the extent the Representatives shall agree in writing to a
modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the
latest Preliminary Prospectus) as the Company has advised you, prior to
the Execution Time, will be included or made therein. Upon your
request, but not without your agreement, the Company will also file a
Rule 462(b) Registration Statement in accordance with Rule 462(b).
(ii) The Company meets the requirements for the use of Form S-3
under the Act and has filed with the Commission a registration
statement (the file number of which is set forth in Schedule I hereto)
on such Form, including a related basic prospectus, for registration
under the Act of the offering and sale of the Securities. The Company
may have filed one or more amendments thereto, including a Preliminary
Final Prospectus, each of which has previously been furnished to you.
The Company will next file with the Commission either (x) a final
prospectus supplement relating to the Securities in accordance with
Rules 430A and 424(b)(1) or (4), or (y) prior to the effectiveness of
such registration statement, an amendment to such registration
statement, including the form of final prospectus supplement. In the
case of clause (x), the Company has included in such registration
statement, as amended at the Effective Date, all information (other
than Rule 430A Information) required by the Act and the rules
thereunder to be included in the Final Prospectus with respect to the
Securities and the offering thereof. As filed, such final prospectus
supplement or such amendment and form of final prospectus supplement
shall contain all Rule 430A Information, together with all other such
required information, with respect to the Securities and the offering
thereof and, except to the extent the Representatives shall agree in
writing to a modification, shall be in all substantive respects in the
form furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the
Basic Prospectus and any Preliminary Final Prospectus) as the Company
has advised you, prior to the Execution Time, will be included or made
therein. If the Rule 434 Delivery Alternative is used, the Company will
also file the Rule 434 Term Sheet in accordance with Rule 434. As
filed, such Rule 434 Term Sheet shall contain all the information
required by Rule 434, and except to the extent the Representatives
shall agree in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the Execution Time or,
to the extent not completed at the Execution Time, shall contain only
such specific additional information and other changes (beyond that
contained in the latest Preliminary Prospectus) as the Company has
advised you, prior to the Execution Time, will be included or made
therein. Upon your request, but not without your agreement, the
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Company will also file a Rule 462(b) Registration Statement in
accordance with Rule 462(b).
(b) On the Effective Date, the Registration Statement did or will, and
when the Final Prospectus is first filed (if required) in accordance with Rule
424(b) and on the Closing Date, the Final Prospectus (and any supplement
thereto) will, comply in all material respects with the applicable requirements
of the Act and the Securities Exchange Act of 1934 (the "Exchange Act") and the
respective rules thereunder; on the Effective Date, the Registration Statement
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; on the Effective Date and on the
Closing Date the Indenture did or will comply in all material respects with the
applicable requirements of the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the rules thereunder; and, on the Effective Date,
the Final Prospectus, if not filed pursuant to Rule 424(b), did not or will not,
and on the date of any filing pursuant to Rule 424(b) and on the Closing Date,
the Final Prospectus (together with any supplement thereto) will not, include
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 Final Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Company by or on behalf
of any Underwriter through the Representatives specifically for use in
connection with the preparation of the Registration Statement or the Final
Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this Agreement, shall have
the meanings indicated. The term "the Effective Date" shall mean each date that
the Registration Statement, any post-effective amendment or amendments thereto
and any Rule 462(b) Registration Statement 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
prospectus referred to in paragraph (a) above contained in the Registration
Statement at the Effective Date including, in the case of a Non-Delayed
Offering, any Preliminary Final Prospectus. "Preliminary Final Prospectus" shall
mean any preliminary prospectus supplement to the Basic Prospectus which
describes the Securities and the offering thereof and is used prior to filing of
the Final Prospectus. "Final Prospectus" shall mean the prospectus supplement
relating to the Securities that is first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus or, if, in the case of a
Non-Delayed Offering, no filing pursuant to Rule 424(b) is required, shall mean
the form of final prospectus relating to the Securities, including the Basic
Prospectus, included in the Registration Statement at the Effective Date. If the
Rule 434 Delivery Alternative is used, such term shall also include the Basic
Prospectus and the Rule 434 Term Sheet, taken together. "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 (or, if not effective at the Execution Time, in the form
in which it shall become effective) and, in the event any post-effective
amendment thereto or any Rule 462(b) Registration Statement becomes effective
prior to the Closing Date (as hereinafter defined), shall also mean such
registration statement as so
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amended. Such term shall include any Rule 430A Information and Rule 434
Information deemed to be included therein at the Effective Date as provided
by Rule 430A and Rule 434, respectively. "Rule 415", "Rule 424", "Rule 430A",
"Rule 434", "Rule 462(b)" and "Regulation S-K" refer to such rules or regulation
under the Act. "Rule 430A Information" means information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A. "Rule
434 Delivery Alternative" shall mean the delivery alternative permitted by Rule
434. "Rule 434 Information" shall mean any information to be included in a Rule
434 Term Sheet. "Rule 434 Term Sheet" shall mean the term sheet or abbreviated
term sheet delivered by the Underwriters to investors and filed by the Company
with the Commission pursuant to Rule 434. "Rule 462(b) Registration Statement"
shall mean a registration statement and any amendments thereto filed pursuant to
Rule 462(b) relating to the final Delayed Offering covered by the initial
Registration Statement. Any reference herein to the Registration Statement, the
Basic Prospectus, any Preliminary Final Prospectus or the Final 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, any Preliminary Final Prospectus or the Final
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, any Preliminary Final Prospectus or the Final 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, any Preliminary Final Prospectus or the Final Prospectus,
as the case may be, deemed to be incorporated therein by reference. A
"Non-Delayed Offering" shall mean an offering of securities which is intended to
commence promptly after the effective date of a registration statement, with the
result that, pursuant to Rules 415 and 430A, all information (other than Rule
430A Information) with respect to the securities so offered must be included in
such registration statement at the effective date thereof. A "Delayed Offering"
shall mean an offering of securities pursuant to Rule 415 which does not
commence promptly after the effective date of a registration statement, with the
result that only information required pursuant to Rule 415 need be included in
such registration statement at the effective date thereof with respect to the
securities so offered. Whether the offering of the Securities is a Non-Delayed
Offering or a Delayed Offering shall be set forth in Schedule I hereto.
Section 2. PURCHASE AND SALE. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the purchase price
set forth in Schedule I hereto the principal amount of the Securities set forth
opposite such Underwriter's name in Schedule II hereto, except that, if Schedule
I hereto provides for the sale of Securities pursuant to delayed delivery
arrangements, the respective principal amounts of Securities to be purchased by
the Underwriters shall be as set forth in Schedule II hereto less the respective
amounts of Contract Securities determined as provided below. Securities to be
purchased by the Underwriters are herein sometimes called the "Underwriters'
Securities" and Securities to be purchased pursuant to Delayed Delivery
Contracts as hereinafter provided are herein called "Contract Securities".
If so provided in Schedule I hereto, the Underwriters are authorized to
solicit offers to purchase Securities from the Company pursuant to delayed
delivery contracts ("Delayed
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Delivery Contracts"), substantially in the form of Schedule III hereto
but with such changes therein as the Company may authorize or approve. The
Underwriters will endeavor to make such arrangements and, as compensation
therefor, the Company will pay to the Representatives, for the account of the
Underwriters, on the Closing Date, the percentage set forth in Schedule I hereto
of the principal amount of the Securities for which Delayed Delivery Contracts
are made. Delayed Delivery Contracts are to be with institutional investors,
including commercial and savings banks, insurance companies, pension funds,
investment companies and educational and charitable institutions. The Company
will enter into Delayed Delivery Contracts in all cases where sales of Contract
Securities arranged by the Underwriters have been approved by the Company but,
except as the Company may otherwise agree, each such Delayed Delivery Contract
must be for not less than the minimum principal amount set forth in Schedule I
hereto and the aggregate principal amount of Contract Securities may not exceed
the maximum aggregate principal amount set forth in Schedule I hereto. The
Underwriters will not have any responsibility in respect of the validity or
performance of Delayed Delivery Contracts. The principal amount of Securities to
be purchased by each Underwriter as set forth in Schedule II hereto shall be
reduced by an amount which shall bear the same proportion to the total principal
amount of Contract Securities as the principal amount of Securities set forth
opposite the name of such Underwriter bears to the aggregate principal amount
set forth in Schedule II hereto, except to the extent that you determine that
such reduction shall be otherwise than in such proportion and so advise the
Company in writing; provided, however, that the total principal amount of
Securities to be purchased by all Underwriters shall be the aggregate principal
amount set forth in Schedule II hereto less the aggregate principal amount of
Contract Securities.
Section 3. DELIVERY AND PAYMENT. Delivery of and payment for the
Underwriters' Securities shall be made on the date and at the time specified in
Schedule I hereto (or such later date not later than five business days after
such specified date as the Representatives shall designate), which date and time
may be postponed by agreement between the Representatives and the Company or as
provided in Section 8 hereof (such date and time of delivery and payment for the
Underwriters' Securities being herein called the "Closing Date"). Delivery of
the Underwriters' Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase price thereof to or
upon the order of the Company by either certified or official bank check or
checks drawn on or by a New York Clearing House bank and payable in next day
funds or in Federal or similar same day funds as set forth in Schedule I to an
account specified by the Company. Delivery of the Underwriters' Securities shall
be made at such location as the Representatives shall reasonably designate at
least one business day in advance of the Closing Date and payment for the
Securities shall be made at the office specified in Schedule I hereto.
Certificates for the Underwriters' Securities shall be registered in such names
and in such denominations as the Representatives may request not less than two
full business days in advance of the Closing Date.
The Company agrees to have the Underwriters' Securities available for
inspection, checking and packaging by the Representatives in New York, New York,
not later than 1:00 p.m. on the business day prior to the Closing Date.
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Section 4. AGREEMENTS. The Company agrees with the several
Underwriters that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment thereto, to
become effective. Prior to the termination of the offering of the Securities,
the Company will not file any amendment of the Registration Statement or
supplement (including the Final Prospectus or any Preliminary Final Prospectus)
to the Basic Prospectus or any Rule 462(b) Registration Statement unless the
Company has furnished you a copy for your review prior to filing and will not
file any such proposed amendment or supplement or Rule 462(b) Registration
Statement to which you reasonably object in writing; provided, however, that the
foregoing shall not apply to any of the Company's filings with the Commission
required to be filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act, copies of which such filings the Company will cause to be
delivered to the Representatives promptly after being transmitted for filing
with the Commission. Subject to the foregoing sentence, the Company will cause
the Final Prospectus, properly completed, and any supplement thereto 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 the
Representatives of such timely filing. If the Rule 434 Delivery Alternative is
used, the Company will also cause the Rule 434 Term Sheet, properly completed,
to be filed with the Commission pursuant to Rule 434 within the time period
prescribed and will provide evidence satisfactory to the Representatives of such
timely filing. Upon your request, the Company will cause the Rule 462(b)
Registration Statement, properly completed, to be filed with the Commission
pursuant to Rule 462(b) and will provide evidence satisfactory to the
Representatives of such filing. The Company will promptly advise the
Representatives (i) when the Registration Statement, if not effective at the
Execution Time, shall have become effective, (ii) when the Final Prospectus, any
supplement thereto or any Rule 434 Term Sheet shall have been filed with the
Commission pursuant to Rule 424(b), or when any Rule 462(b) Registration
Statement shall have been filed with the Commission, (iii) when, prior to
termination of the offering of the Securities, any amendment to the Registration
Statement shall have been filed or become effective, (iv) of any request by the
Commission for any amendment of the Registration Statement or supplement to the
Final Prospectus or for any additional information, (v) 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 (vi) of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities 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 Securities is
required to be delivered under the Act, any event occurs as a result of which
the Final 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 supplement the Final Prospectus to comply with the Act or the Exchange Act or
the respective rules thereunder, the Company promptly will prepare and file with
the Commission, subject to the second sentence of paragraph (a) of this Section
4, an amendment or supplement which will correct such statement or omission or
effect such compliance.
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(c) As soon as practicable, the Company will make generally available
to its security holders and to the Representatives 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.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, copies of the Registration Statement
(including exhibits thereto) and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, as many copies of any
Preliminary Final Prospectus and the Final Prospectus and any supplement thereto
as the Representatives may reasonably request. The Company will pay the expenses
of printing or other production of all documents relating to the offering.
(e) The Company will cooperate with the Representatives in connection
with the qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives may designate and will maintain such
qualifications in effect so long as required for the distribution of the
Securities; 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.
(f) Until the business day following the Closing Date, the Company
will not, without the consent of the Representatives, offer, sell or contract to
sell, or announce the offering of, any senior debt securities (other than the
Securities).
Section 5. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the Underwriters to purchase the Underwriters' Securities shall
be subject to the accuracy of the representations and warranties on the part of
the Company contained herein as of the Execution Time and the 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 the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later time,
the Registration Statement will become effective not later than (i) 6:00 p.m.
New York City time, on the date of determination of the public offering price,
if such determination occurred at or prior to 3:00 p.m. New York City time on
such date or (ii) 12:00 Noon on the business day following the day on which the
public offering price was determined, if such determination occurred after 3:00
p.m. New York City time on such date; if filing of the Final Prospectus, or any
supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus,
and any such supplement, shall have been filed in the manner and within the time
period required by Rule 424(b), or if the filing of the Rule 434 Term Sheet is
required pursuant to Rule 434, the Rule 434 Term Sheet will be filed in the
manner and within the time period required by Rule 434; and no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or
threatened.
(b) The Company shall have furnished to the Representatives the
opinion of Edwards & Angell, counsel for the Company, dated the Closing Date, to
the effect that:
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(i) each of the Company and Fleet National Bank ("FNB") has been
duly organized and is validly existing as a corporation or national
banking association under the laws of the jurisdiction in which it is
organized, with full corporate power and authority to own its
properties and conduct its business as described in the Final
Prospectus; the Company is duly 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 FNB 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 duly registered as a financial holding company under the
Bank Holding Company Act of 1956, as amended;
(ii) all of the outstanding shares of the capital stock of FNB
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 Final
Prospectus, all outstanding shares of capital stock of FNB 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) the Purchased Securities conform in all material respects to
the description thereof contained in the Final Prospectus;
(iv) the Indenture and the Warrant Agreement, if any, have been
duly authorized, executed and delivered; the Indenture has been duly
qualified under the Trust Indenture Act; and the Indenture and the
Warrant Agreement, if any, constitute legal, valid and binding
instruments enforceable against the Company in accordance with their
respective terms (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally from time to time in effect and
to the availability of equitable remedies which are discretionary with
the courts); and the Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered pursuant to the Warrant Agreement, in the case
of Warrant Securities, and delivered to and paid for by the
Underwriters pursuant to this Agreement, in the case of the
Underwriters' Securities, or by the purchasers thereof pursuant to
Delayed Delivery Contracts, in the case of any Contract Securities,
will constitute legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture;
(v) to the best knowledge of such counsel, there is no pending or
threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the Company or
any of its subsidiaries, of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in the Final
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 Final Prospectus, or to be
filed as an exhibit thereto, which is not described or filed as
required;
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(vi) the Registration Statement has become effective under the
Act; any required filing of the Basic Prospectus, any Preliminary Final
Prospectus and the Final Prospectus, and any supplements thereto,
pursuant to Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b), or if the Rule 434 Delivery Alternative
was used, the required filing of the Rule 434 Term Sheet has been made
in the manner and time period required by Rule 434; 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 Final Prospectus (other than the financial statements
and other financial and statistical information contained therein as to
which such counsel need express no opinion) comply as to form in all
material respects with the applicable requirements of the Act and the
Exchange Act and the respective rules thereunder; and such counsel has
no reason to believe that at the Effective Date the Registration
Statement 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 at the Closing
Date the Final Prospectus includes any untrue statement of a material
fact or omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(vii) this Agreement and any Delayed Delivery Contracts have been
duly authorized, executed and delivered by the Company;
(viii) without expressing any opinion with respect to the Warrant
Securities, no consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation of the
transactions contemplated herein or in any Delayed Delivery Contracts,
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 Securities by the Underwriters and
such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the
consummation of any other of the transactions herein contemplated nor
the fulfillment of the terms hereof or of any Delayed Delivery
Contracts will conflict with, result in a breach of, or constitute a
default under 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 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 its subsidiaries
considered as one enterprise or the holders of the Notes, nor will such
action result in any violation of the provisions of the articles of
incorporation or by-laws of the Company; and
(x) no holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
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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
Underwriters 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 Final
Prospectus in this paragraph (b) include any supplements
thereto at the Closing Date.
(c) The Representatives shall have received from Brown & Wood LLP,
counsel for the Underwriters, such opinion or opinions, dated the Closing Date,
with respect to the issuance and sale of the Securities, the Indenture, any
Delayed Delivery Contracts, the Registration Statement, the Final Prospectus
(together with any supplement thereto) and other related matters as the
Representatives 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 the Representatives a
certificate of the Company, signed by the Chairman of the Board, the President,
any Vice Chairman, or any Vice President and the principal financial or
accounting officer or the treasurer or any assistant treasurer of the Company or
any Vice Chairman, dated the Closing Date, to the effect that the signers of
such certificate have examined the Registration Statement, the Final Prospectus,
any supplement to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and the Company has complied in all material respects with all the
agreements and satisfied all the conditions on its part to be performed
or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included in the Final Prospectus (exclusive of any supplement thereto),
there has been no material adverse change in the condition (financial
or other), earnings, business or properties of the Company and its
subsidiaries considered as one enterprise, whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated in the Final Prospectus (exclusive of any supplement
thereto).
(e) At the Closing Date, PricewaterhouseCoopers LLP shall have
furnished to the Representatives a letter or letters (which may refer to letters
previously delivered to one or more of the Representatives), dated as of the
Closing Date, in form and substance satisfactory to the Representatives,
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:
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(i) in their opinion the audited consolidated financial statements
and financial statement schedules included or incorporated in the
Registration Statement and the Final Prospectus and reported on by them
comply in 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 condensed financial statements made available by the
Company and its subsidiaries; carrying out certain specified procedures
(but not an audit 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 the
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 in or incorporated in the Final
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 Final Prospectus do not
agree with the corresponding amounts in the audited consolidated
condensed financial statements or analyses prepared by the Company
from which such amounts were derived; or
(2) any unaudited consolidated financial statements included
or incorporated in the Registration Statement and the Final
Prospectus do not comply in 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 consolidated
condensed financial statements are not in conformity with
generally accepted accounting principles applied on a basis
substantially consistent with that of the audited consolidated
financial statements included or incorporated in the Registration
Statement and the Final Prospectus;
(3) with respect to the period subsequent to the date of the
most recent consolidated financial statements (other than any
capsule information), audited or unaudited, in or incorporated in
the Registration Statement and the Final 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 or capital stock of the Company or decreases in the
stockholders' equity of the Company as compared with the amounts
shown on the most recent consolidated balance sheet included or
incorporated in the Registration Statement and the Final
Prospectus, or for the period from the date of the most recent
consolidated financial statements included or incorporated in the
Registration Statement and the Final Prospectus to such specified
date there were any decreases, as compared with the corresponding
period in the preceding year; in consolidated net interest income,
consolidated net interest
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income after provision for possible loan losses, consolidated
income before income taxes or in total or per share amounts
of consolidated net income of the Company, except in all instances
for changes or decreases set forth in such letter, 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 Representatives; or
(4) the amounts included in any unaudited "capsule"
information included or incorporated in the Registration Statement
and the Final 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
Final Prospectus; and
(iii) they have performed certain other specified 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 and its subsidiaries) set
forth in the Registration Statement and the Final Prospectus and in
Exhibit 12 to the Registration Statement, including the information set
forth under the captions "FleetBoston Financial Corporation" and
"Consolidated Ratios of Earnings to Fixed Charges" in the Final
Prospectus, the information included or incorporated in Items 1, 6 and
7 of the Company's Annual Report on Form 10-K incorporated in the
Registration Statement and the Final Prospectus, and the information
included in the "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 in the
Registration Statement and the Final Prospectus, agrees with the
accounting records of the Company and its subsidiaries, excluding any
questions of legal interpretation.
References to the Final Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in the
letter or letters referred to in paragraph (e) of this Section 5 or (ii) any
change, or any development involving a prospective change, in or affecting the
business, properties, conditions (financial or otherwise) or results of
operations of the Company and its subsidiaries the effect of which, in any case
referred to in clause (i) or (ii) above, is, in the judgment of the
Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or the delivery of the Securities as
contemplated by the Registration Statement (exclusive of any amendment thereof)
and the Final Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any
decrease in the ratings of any of the Company's debt securities by any
"nationally recognized statistical rating
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organization" (as defined for purposes of Rule 436(g) under the Act) or
any notice given of any intended or potential decrease in any such rating.
(h) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as the
Representatives may reasonably request.
(i) The Company shall have accepted Delayed Delivery Contracts in any
case where sales of Contract Securities arranged by the Underwriters have been
approved by the Company.
(j) If the Securities are to be listed on any stock exchange, the
Company agrees that authorization therefor has been given, subject to official
notice of issuance and evidence of satisfactory distribution, or the Company has
filed a preliminary listing application and has filed or will file all required
supporting documents with respect to the Securities with such stock exchange and
the Company has no reason to believe that the Securities will not be authorized
for listing, subject to official notice of issuance and evidence of satisfactory
distribution.
If any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of such
cancelation shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
Section 6. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 5 hereof is not satisfied
or because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof other than by
reason of a default by any of the Underwriters, the Company will reimburse the
Underwriters severally upon demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of the Securities.
Section 7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act against any
and all losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration statement for the
registration of the Securities as originally filed or in any amendment thereof,
or in the Basic Prospectus, any Preliminary Final Prospectus or the Final
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
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<PAGE> 14
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 or on behalf of
any Underwriter through the Representatives specifically for use in connection
with the preparation thereof, and (ii) such indemnity with respect to the Basic
Prospectus or any Preliminary Final Prospectus shall not inure to the benefit of
any Underwriter (or any person controlling such Underwriter) from whom the
person asserting any such loss, claim, damage or liability purchased the
Securities which are the subject thereof if such person did not receive a copy
of the Final Prospectus (or the Final Prospectus as supplemented) excluding
documents incorporated therein by reference at or prior to the confirmation of
the sale of such Securities to such person in any case where such delivery is
required by the Act and the untrue statement or omission of a material fact
contained in the Basic Prospectus or any Preliminary Final Prospectus was
corrected in the Final Prospectus (or the Final Prospectus as supplemented)
unless the Company has failed to timely furnish to the Underwriters copies of
the Final Prospectus in accordance with Section 4(d) hereof. This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
(b) Each Underwriter severally 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 each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
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 any Underwriter may otherwise have. The Company acknowledges
that the statements set forth in the last paragraph of the cover page, the
second and fifth paragraphs and the second sentence of the third paragraph under
the heading "UNDERWRITING" and, if Schedule I hereto provides for sales of
Securities pursuant to delayed delivery arrangements, in the last sentence under
the heading "Delayed Delivery Arrangements" in any Preliminary Final Prospectus
or the Final Prospectus constitute the only information furnished in writing by
or on behalf of the several Underwriters for inclusion in the documents referred
to in the foregoing indemnity, and you, as the Representatives, confirm that
such statements are correct.
(c) Promptly after receipt by an indemnified party under this Section 7
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 7. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to appoint counsel satisfactory to such
indemnified party to represent the indemnified party in such action; 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
14
<PAGE> 15
from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel to
defend 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 appoint counsel to defend such action and approval by the indemnified
party of such counsel, the indemnifying party will not be liable to such
indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
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 the
Representatives in the case of paragraph (a) of this Section 7, representing the
indemnified parties under such paragraph (a) who are parties to such action),
(ii) the indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of this
Section 7 is for any reason held by a court to be unavailable or otherwise
insufficient, the Company and the Underwriters 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 one or more of the Underwriters may be subject in such
proportion so that the Underwriters are responsible for that portion represented
by the percentage that the underwriting discount bears to the sum of such
discount and the purchase price of the Securities specified in Schedule I hereto
and the Company is responsible for the balance; provided, however, that (y) in
no case shall any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be responsible for any
amount in excess of the underwriting discount applicable to the Securities
purchased by such Underwriter hereunder 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 7, each person who controls an
Underwriter within the meaning of the Act shall have the same rights to
contribution as such Underwriter, 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). Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this paragraph
(d), notify such party or parties from whom contribution may be sought, but the
omission to so notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any other obligation it or
they may have hereunder or otherwise than under this paragraph (d). The
Underwriters' obligations to contribute as provided in this Section 7(d) are
several in proportion in their respective underwriting commitments and not
joint.
15
<PAGE> 16
Section 8. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters shall fail
to purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate amount
of Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
amount of Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate amount of Securities set
forth in Schedule II hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any nondefaulting
Underwriter or the Company. In the event of a default by any Underwriter as set
forth in this Section 8, the Closing Date shall be postponed for such period,
not exceeding seven days, as the Representatives shall determine in order that
the required changes in the Registration Statement and the Final Prospectus or
in any other documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter of its liability, if
any, to the Company and any nondefaulting Underwriter for damages occasioned by
its default hereunder.
Section 9. SELLING RESTRICTIONS. The Securities are offered for sale in
the United States and in jurisdictions outside the United States subject to
applicable law. Each Underwriter understands that no action has been taken to
permit a public offering of the Securities in any jurisdiction outside the
United States where action would be required for such purpose. Schedule IV
hereof details certain selling restrictions relating to the Securities. Each of
the Underwriters and each of its affiliates agrees that it will not offer, sell
or deliver any of the Securities, directly or indirectly, or distribute the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus or
any other offering material relating to the Securities in or from any
jurisdiction except under circumstances that will result in compliance with the
applicable laws and regulations and which will not impose any obligation on the
Company except as set forth herein.
Section 10. TERMINATION. This Agreement shall be subject to termination
in the absolute discretion of the Representatives, by notice given to the
Company prior to delivery of and payment for the Securities, 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 or
(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 Representatives, impracticable or inadvisable to
market the Securities.
Section 11. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and
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<PAGE> 17
of the Underwriters 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 any Underwriter or the Company or any of the officers, directors or
controlling persons referred to in Section 7 hereof, and will survive delivery
of and payment for the Securities. The provisions of Sections 6 and 7 hereof
shall survive the termination or cancellation of this Agreement.
Section 12. NOTICES. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telegraphed and confirmed to them, 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 100 Federal Street, Mail Stop MA DE 10026A,
Boston, MA 02110, attention of the Executive Vice President, General Counsel and
Secretary.
Section 13. SUCCESSORS. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7 hereof,
and no other person will have any right or obligation hereunder.
APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
17
<PAGE> 18
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 the several Underwriters.
Very truly yours,
FLEETBOSTON FINANCIAL CORPORATION
By: ________________________________
Name: John R. Rodehorst
Title: Assistant Treasurer
CONFIRMED AND ACCEPTED, as of the date first above written:
CHASE SECURITIES INC.
SALOMON SMITH BARNEY INC.
By: Chase Securities Inc.
By: __________________________
Name:
Title:
For themselves and as Representatives of the
other several Underwriters named in
Schedule II hereto.
18
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SCHEDULE I
Underwriting Agreement, dated September 12, 2000
Registration Statement No. 333-36444
Representatives: Chase Securities Inc.
270 Park Avenue
New York, NY 10017
Salomon Smith Barney Inc.
388 Greenwich Street
New York, NY 10013
Title, Purchase Price and Description of Securities:
Title: 7.25% Senior Notes due September 15, 2005
Trustee: The Bank of New York
101 Barclay Street, Floor 21 West
New York, New York 10286
Principal amount: $1,500,000,000
Purchase price: 99.534% of principal amount plus accrued interest,
if any, from September 15, 2000 to the date of
delivery
Type of Funds: Wire transfer of Federal (same day) funds
Sinking fund provisions: None
Redemption provisions: Redeemable by the Company in
whole upon the occurrence of certain tax
events as described in the prospectus
supplement dated the date of this
agreement.
Other provisions: None
Closing Date, Time and Location: September 15, 2000
10:00 a.m., New York time
Brown & Wood LLP
One World Trade Center
New York, NY 10048
Type of Offering: Delayed offering
Delayed Delivery Arrangements: None
19
<PAGE> 20
Minimum Principal Amount for Delayed Delivery: Not applicable
Percentage: Not applicable
Modification of items to be covered by the letter from
PricewaterhouseCoopers LLP delivered pursuant to
Section 5(e) at the Execution Time: None
20
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SCHEDULE II
----------------
Principal Amount
of Securities to
Underwriters be Purchased
------------ ----------------
Chase Securities Inc. $600,000,000
Salomon Smith Barney Inc. 600,000,000
Banc of America Securities LLC 54,000,000
Banc One Capital Markets, Inc. 54,000,000
Fleet Securities, Inc. 54,000,000
Credit Suisse First Boston Corporation 54,000,000
J.P. Morgan Securities Inc. 54,000,000
Blaylock & Partners, L.P. 7,500,000
Muriel Siebert & Co. Inc. 7,500,000
Utendahl Capital Partners L.P. 7,500,000
Williams Capital Group, L.P. 7,500,000
--------------
Total........................................ $1,500,000,000
==============
21
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SCHEDULE III
------------------
Principal Amount
of Delayed
Underwriters Delivery Contracts
------------ ------------------
Not applicable
22
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SCHEDULE IV
UNITED KINGDOM
Each Underwriter represents and agrees that it and each of its
affiliates: (a) has not offered or sold and, prior to the expiry of the period
of six months from the time to closing, will not offer or sell any of the
Securities to persons in the United Kingdom except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995, as amended, (b) has complied and will
comply with all applicable provisions of the Financial Services Act 1986 with
respect to anything done by it in relation to the Securities in, from or
otherwise involving the United Kingdom, and (c) has only issued or passed on,
and will only issue or pass on, in the United Kingdom any document received by
it in connection with the issue of the Securities to a person who is of a kind
described in Article 11(3) of the Financial Services Act 1986 (Investment
Advertisements) (Exemptions) Order 1996, as amended, or is a person to whom such
document may otherwise lawfully be issued or passed on.
GERMANY
In connection with the initial placement of any Securities in Germany,
each of the Underwriters represents and agrees that it has not offered or sold
and it will not offer or sell any Securities in Germany other than in compliance
with the Securities Prospectus Act (Weitpapier-Verkaufsprospektgesetz) of 13th
December, 1990 as amended, or any other law applicable in Germany governing the
issue, offering and sale of securities.
THE NETHERLANDS
Each of the Underwriters represents and agrees that it has not,
directly or indirectly, offered or sold and will not, directly or indirectly,
offer or sell in the Netherlands any Debt Securities other than to persons who
trade or invest in securities in the conduct of a profession or business (which
include banks, stockbrokers, insurance companies, pension funds, other
institutional investors and finance companies and treasury departments of large
enterprises).
THE REPUBLIC OF FRANCE
Each of the Underwriters represents and agrees that the Securities are
being issued outside of France, and that it, in connection with the initial
distribution of the Securities, has not offered or sold and will not offer or
sell any Securities in France, and that it has not distributed and will not
distribute or cause to be distributed in France the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus or any other offering
material relating to the Securities, except to (i) qualified investors
(investisseurs qualifies) and/or (ii) a restricted circle of investors (cercle
restreint d'investisseurs), all as defined in Article 6 of the Order
("Ordinance") dated 28th September, 1967 (as amended) and Decree no. 98-880
dated 1st October, 1998 and in
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compliance with regulations issued from time to time by the Commission des
Operations de Bourse.
JAPAN
The Securities have not been and will not be registered under the
Securities and Exchange Law of Japan and each of the Underwriters and each of
its affiliates represents and agrees that it has not offered or sold, and it
will not offer or sell, directly or indirectly, any of the Securities in or to
residents of Japan or to any persons for reoffering or resale, directly or
indirectly, in Japan or to any resident of Japan, except pursuant to an
exemption from the registration requirements of the Securities and Exchange Law
available thereunder and in compliance with the other relevant laws and
regulations of Japan.
HONG KONG
Each of the Underwriters and each of its affiliates represents and
agrees that it has not offered or sold, and it will not offer or sell, the
Securities by means of any document to persons in Hong Kong other than persons
whose ordinary business it is to buy or sell shares or debentures, whether as a
principal or agent, or otherwise in circumstances which do not constitute an
offer to the public within the meaning of the Hong Kong Companies Ordinance
(Chapter 32 of the Laws of Hong Kong).
24
