New York, New York
February 10, 2003
To: the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
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, as amended (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 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 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, as amended (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 "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 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 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.
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.
(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
Xxxxxxx & Xxxxxx, LLP, counsel for the Company, dated the Closing Date, to the
effect that:
(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, as the case may be, 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, the Indenture and the Warrant
Agreement, if any, conform in all material respects to the descriptions
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 obligations of the Company,
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 under the Indenture, are in the forms
provided for by the resolutions of the Board of Directors of the Company
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, 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 are 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;
(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, the Exchange Act and the Trust
Indenture 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 the Final Prospectus, as of its
date or as of the Closing Date, included or includes any untrue statement
of a material fact or omitted 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, law, rule 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 on the
Company's ability to make payments on the Securities and perform its other
obligations under this Agreement, the Indenture, the Securities, the
Warrant Agreement, if any, any Delayed Delivery Contracts and any Contract
Securities, nor will such action result in any violation of the provisions
of the Restated Articles of Incorporation or By-laws of the Company; and
(x) the discussion under the heading "Material United States Federal
Income Tax Considerations" in the Final Prospectus constitutes, in all
material respects, a fair and accurate summary of the United States income
tax consequences of the purchase, ownership and disposition of the
Securities, based upon current law.
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, the State of New York 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 Xxxxxx Xxxxxx Xxxxx & Xxxx
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:
(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 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, condition (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 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 will file 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
cancellation 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
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
second and fourth paragraphs 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 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 is 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) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other from the offering of
the Securities to which such loss, claim, damage or liability relates. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and such Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from such offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by such Underwriters. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company on the
one hand or such Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. In no case shall (y) 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) any
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) 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.
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. 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, (iii)
any change in U.S. or international financial, political or economic conditions
or currency exchange rates or exchange controls which will, in the judgment of a
majority in interest of the Underwriters, including any Representatives,
prejudice materially the success of the proposed issue, sale or disposition of
the Securities, whether in the primary market or in respect of dealings in the
secondary market, (iv) any major disruption of settlements of securities
clearance services in the United States which will, in the judgment of a
majority in interest of the Underwriters, including any Representatives,
prejudice materially the success of the proposed issue, sale or disposition of
the Securities, or (v) there shall have occurred any attack on, outbreak or
escalation of hostilities or act of terrorism involving the United States,
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 10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and 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 11. 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 000 Xxxxxxx Xxxxxx, Xxxx Xxxx XX XX 00000X,
Xxxxxx, XX 00000, attention of the Executive Vice President, General Counsel and
Secretary.
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 7 hereof, and no
other person will have any right or obligation hereunder.
Section 13. Applicable Law. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the several Underwriters.
Very truly yours,
FLEETBOSTON FINANCIAL CORPORATION
By:
---------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED, as of the date first above written:
BANC OF AMERICA SECURITIES LLC
By:
--------------------------------------
Name:
Title:
XXXXXXX, XXXXX & CO.
By:
--------------------------------------
(Xxxxxxx, Xxxxx & Co.)
FLEET SECURITIES, INC.
By:--------------------------------------
Name:
Title:
For themselves and as Representatives of the other several Underwriters named in
Schedule II hereto.
SCHEDULE I
Underwriting Agreement, dated February 10, 2003
Registration Statement No. 333-72912
Representatives: Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fleet Securities, Inc.
00 Xxxxxxxx
Xxx Xxxx, XX 00000
Title, Purchase Price and Description of Securities:
Title: 3.85% Senior Notes due February 15, 2008
Trustee: The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Principal amount: $500,000,000
Purchase price: 99.546% of principal amount (being equal to the
issue price of 99.896% less a combined underwriting
commission of 0.350% of the principal amount) plus
accrued interest, if any, from February 13, 2003
to the date of delivery
Proceeds to Issuer: $497,730,000
Type of Funds: Wire transfer of Federal (same day) funds
Interest Payment
Dates: The fifteenth calendar day of each February and
August, commencing August 15, 2003
Day Count Basis: 30/360
Sinking fund provisions: None
Redemption provisions: None
Other provisions: None
Closing Date, Time and Location: February 13, 2003
10:00 a.m., New York time
Xxxxxx Xxxxxx Xxxxx & Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Type of Offering: Delayed offering
Delayed Delivery Arrangements: None
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
SCHEDULE II
--------------------------------------------------------
Principal Amount
of Securities to
Underwriters be Purchased
------------ --------------------------------------------------------
Banc of America Securities LLC............................................... $175,000,000
Xxxxxxx, Xxxxx & Co.......................................................... 175,000,000
Fleet Securities, Inc........................................................ 112,500,000
Xxxxx, Xxxxxxxx & Xxxxx Inc.................................................. 12,500,000
Sandler X'Xxxxx & Partners, L.P.............................................. 12,500,000
Xxxxxxxx & Partners, L.P..................................................... 2,500,000
Xxxxxx & Company............................................................. 2,500,000
Xxxxxx Xxxxxxx & Co. Inc..................................................... 2,500,000
Xxxxxxxx Capital Partners, L.P............................................... 2,500,000
The Xxxxxxxx Capital Group, L.P.............................................. 2,500,000
----------
Total................................... $500,000,000
============
SCHEDULE III
--------------------------------------------------------
Principal Amount
of Delayed
Underwriters Delivery Contracts
------------ --------------------------------------------------------
Not applicable
