Exhibit 1
Fleet Boston Corporation
U.S.$2,000,000,000
Senior Medium-Term Notes, Series P and
Subordinated Medium-Term Notes, Series Q
Due Nine Months or More
from Date of Issue
Selling Agency Agreement
December 23, 1999
New York, New York
Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
FleetBoston Xxxxxxxxx Xxxxxxxx Inc.
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated
World Financial Center
Xxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
Fleet Boston Corporation, a Rhode Island corporation (the "Company"),
confirms its agreement with each of you with respect to the issue and sale by
the Company of up to $2,000,000,000 aggregate principal amount of its Senior
Medium-Term Notes, Series P and Subordinated Medium-Term Notes, Series Q
(respectively, the "Senior Notes" and the "Subordinated Notes"), Due Nine Months
or More from Date of Issue (collectively, the "Notes"). The Senior Notes are to
be issued under an indenture dated as of December 6, 1999, between the Company
and The Bank of New York (the "Senior Trustee"), as trustee (the "Senior
Indenture"). The Subordinated Notes are to be issued under an indenture dated as
of December 6, 1999, between the Company and The Bank of New York as trustee
(the "Subordinated Trustee" and, collectively with the Senior Trustee, the
"Trustee") (the "Subordinated Indenture" and collectively with the Senior
Indenture, the "Indentures"). The Notes will be issued in minimum denominations
of $1,000 and integral multiples thereof, will be issued only in fully
registered form and will have the annual interest rates, maturities and, if
appropriate, other terms set forth in a supplement to the Prospectus referred to
below. The Notes will be issued, and the terms thereof established, in
accordance with the applicable Indenture and the Medium-Term Notes
Administrative Procedures attached hereto as Exhibit A (the "Procedures")
(unless a Terms Agreement (as defined in Section 2(b)) modifies or otherwise
supersedes such Procedures with respect to Notes issued pursuant to such Terms
Agreement). The Procedures may only be amended by written agreement of the
Company and you after notice to, and with the approval of, the Trustee. For the
purposes of this Agreement, the term "Agent" shall refer to any of you acting
solely in the capacity as agent for the Company pursuant to Section 2(a) and not
as principal (collectively, the "Agents"), the term "Purchaser" shall refer to
one of you acting solely as principal pursuant to Section 2(b) and not as agent,
and the term "you" shall refer to you collectively whether at any time any of
you is acting in both such capacities or in either such capacity. In acting
under this Agreement, in whatever capacity, each of you is acting individually
and not jointly.
1. Representations and Warranties. The Company represents and warrants to,
and agrees with, you as set forth below in this Section 1. Certain terms used in
this Section 1 are defined in paragraph (d) hereof.
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933 (the "Act") and has filed with the Securities and
Exchange Commission (the "Commission") a registration statement on such
Form (Registration Number 333-86829), including a basic prospectus, which
also constitutes pursuant to Rule 429 under the Act Post-Effective
Amendment No. 1 to registration statement on such Form (Registration Number
333-62905) and which has become effective, for the registration under the
Act of securities (the "Securities"), including the Notes, in an aggregate
principal amount of $2,000,000,000. Such registration statement, as amended
at the date of this Agreement, meets the requirements set forth in Rule
415(a)(1)(ix) or (x) under the Act and complies in all other material
respects with said Rule. The Company has included in such registration
statement, as amended at the date of this Agreement, or has filed or will
file with the Commission pursuant to the applicable paragraph of Rule
424(b) under the Act, a supplement to the form of prospectus included in
such registration statement relating to the Notes and the plan of
distribution thereof (the "Prospectus Supplement"). In connection with the
sale of Notes, the Company proposes to file with the Commission pursuant to
the applicable paragraph of Rule 424(b) under the Act further supplements
to the Prospectus Supplement specifying the interest rates, maturity dates
and, if appropriate, other terms of the Notes sold pursuant hereto or the
offering thereof.
(b) As of the Execution Time (as hereinafter defined), on the
Effective Date, when any supplement to the Prospectus is filed with the
Commission, as of the date of any Terms Agreement, on each day of an
Offering Period (referred to below) and at the date of delivery by the
Company of any Notes sold hereunder (a "Closing Date"), (i) the
Registration Statement, as amended as of any such time, and the Prospectus,
as supplemented as of any such time, and each Indenture will comply in all
material respects with the applicable requirements of the Act, the Trust
Indenture Act of 1939 (the "Trust Indenture Act") and the Securities
Exchange Act of 1934 (the "Exchange Act") and the respective rules
thereunder; (ii) the Registration Statement, as amended as of any such
time, did not or will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading; and (iii)
the Prospectus, as supplemented as of any such time, will not contain any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to (i)
that part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee or (ii) the information contained in or
omitted from the Registration Statement or the Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by any of you specifically for
inclusion in connection with the preparation of the Registration Statement
or the Prospectus (or any supplement thereto).
(c) As of the time any Notes are issued and sold hereunder, each
Indenture will constitute a legal, valid and binding instrument enforceable
against the Company in accordance with its terms, except as enforcement
thereof may be limited by the receivership, conservatorship and supervisory
powers of bank regulatory agencies generally as well as bankruptcy,
insolvency, reorganization, moratorium or other laws relating to or
affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at law)
and the availability of equitable remedies, and except further as
enforcement thereof may be limited by (i) requirements that a claim with
respect to any Notes denominated other than in U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or (ii)
governmental authority to limit, delay or prohibit the making of payments
outside the Unites States and such Notes will have been duly authorized,
executed, authenticated and, when paid for by the purchasers thereof, will
constitute legal, valid and binding obligations of the Company entitled to
the benefits of the applicable Indenture.
(d) The terms which follow, when used in this Agreement, shall have
the meanings indicated. The term "the Effective Date" shall mean each date
that the Registration Statement and any post-effective amendment or
amendments thereto became or become effective. "Execution Time" shall mean
the date and time that this Agreement is executed and delivered by the
parties hereto. "Basic Prospectus" shall mean the form of basic prospectus
relating to the Securities contained in the Registration Statement at the
Effective Date. "Prospectus" shall mean the Basic Prospectus as
supplemented by the Prospectus Supplement. "Registration Statement" shall
mean the registration statement referred to in paragraph (a) above,
including incorporated documents, exhibits and financial statements, as
amended at the Execution Time. "Rule 415" and "Rule 424" refer to such
rules under the Act. Any reference herein to the Registration Statement,
the Basic Prospectus, the Prospectus Supplement or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the Exchange
Act on or before the Effective Date of the Registration Statement or the
issue date of the Basic Prospectus, the Prospectus Supplement or the
Prospectus, as the case may be; and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, the Prospectus Supplement or the
Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, the
Prospectus Supplement or the Prospectus, as the case may be, deemed to be
incorporated therein by reference.
2. Appointment of Agents; Solicitation by the Agents of Offers to Purchase;
Sales of Notes to a Purchaser. (a) Subject to the terms and conditions set forth
herein, the Company hereby authorizes each of the Agents to act as its agent to
solicit offers for the purchase of all or part of the Notes from the Company.
The Company shall notify the Agents from time to time as to the commencement of
a period during which the Notes may be offered and sold by the Agents (each
period, commencing with such notification and ending at such time as the
authorization for offers and sales through the Agents shall have been suspended
by the Company or the Agents as provided hereunder, being referred to as an
"Offering Period").
On the basis of the representations and warranties, and subject to the
terms and conditions set forth herein, each of the Agents agrees, as agent of
the Company, to use its reasonable efforts to solicit offers to purchase the
Notes during each Offering Period from the Company upon the terms and conditions
set forth in the Prospectus (and any supplement thereto) and in the Procedures.
The Company reserves the right, in its sole discretion, to instruct the
Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase the Notes. Upon receipt of instructions from
the Company, the Agents will forthwith suspend solicitation of offers to
purchase Notes from the Company until such time as the Company has advised them
that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, on the Closing Date with
respect to each sale of Notes by the Company as a result of a solicitation made
by such Agent as agent, in an amount equal to that percentage specified in
Schedule I hereto of the aggregate principal amount of the Notes sold by the
Company. Such commission shall be payable as specified in the Procedures.
Subject to the provisions of this Section and to the Procedures, offers for
the purchase of Notes may be solicited by an Agent as agent for the Company at
such time and in such amounts as such Agent deems advisable. The Company may
from time to time offer Notes for sale otherwise than through an Agent;
provided, however, that so long as this Agreement shall be in effect, the
Company shall not solicit or accept offers to purchase Notes through any agent
other than an Agent or an affiliate of the Company unless such solicitation or
acceptance is on terms with respect to commissions substantially similar to
those set forth in Schedule I hereto and the Company shall give the Agents
reasonable notice of the appointment of such agents for the purpose of
soliciting offers to purchase the Notes.
(b) Subject to the terms and conditions stated herein, whenever the Company
and any Agent determine that the Company shall sell Notes directly to such Agent
as principal, each such sale of Notes shall be made in accordance with the terms
of this Agreement and a supplemental agreement relating to such sale between the
Company and the Purchaser. Each such supplemental agreement (which may be an
oral or written agreement) is herein referred to as a "Terms Agreement". Each
Terms Agreement shall describe (whether orally or in writing) the Notes to be
purchased by the Purchaser pursuant thereto and shall specify the aggregate
principal amount of such Notes, the price to be paid to the Company for such
Notes, the maturity date of such Notes, the rate at which interest will be paid
on such Notes, the dates on which interest will be paid on such Notes and the
record date with respect to each such payment of interest, the Closing Date for
the purchase of such Notes, the place of delivery of the Notes and payment
therefor, the method of payment and any requirements for the delivery of
opinions of counsel, certificates from the Company or its officers or a letter
from the Company's independent public accountants, as described in Section 6(b).
Any such Terms Agreement may also specify the period of time referred to in
Section 4(m). The Purchaser's commitment to purchase Notes shall be deemed to
have been made on the basis of the representations and warranties of the Company
herein contained and shall be subject to the terms and conditions herein set
forth.
Delivery of the certificates for Notes sold to the Purchaser pursuant to a
Terms Agreement shall be made not later than the Closing Date agreed to in such
Terms Agreement, against payment of funds to the Company in the net amount due
to the Company for such Notes by the method and in the form set forth in the
Procedures unless otherwise agreed to between the Company and the Purchaser in
such Terms Agreement.
Unless otherwise agreed to between the Company and the Purchaser in a Terms
Agreement, any Note sold to a Purchaser (i) shall be purchased by such Purchaser
at a price equal to 100% of the principal amount thereof less a percentage equal
to the commission applicable to an agency sale of a Note of identical maturity
and (ii) may be resold by such Agent at varying prices determined at the time of
sale or, if so agreed and set forth in the applicable Pricing Supplement, at a
fixed public offering price, from time to time. In connection with any resale of
Notes purchased, a Purchaser may use a selling or dealer group and may reallow
any portion of the discount or commission payable pursuant hereto to dealers or
purchasers.
3. Offering and Sale of Notes. Each Agent and the Company agree to perform
the respective duties and obligations specifically provided to be performed by
them in the Procedures.
4. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the Notes, the Company
will not file any amendment of the Registration Statement or supplement to
the Prospectus (except for (i) periodic or current reports filed under the
Exchange Act, (ii) a supplement relating to any offering of Notes providing
solely for the specification of or a change in the maturity dates, interest
rates, issuance prices or other terms of any Notes or (iii) a supplement
relating to an offering of Securities other than the Notes) unless the
Company has furnished each of you a copy for your review prior to filing
and given each of you a reasonable opportunity to comment on any such
proposed amendment or supplement. Subject to the foregoing sentence, the
Company will cause each supplement to the Prospectus to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b) within the
time period prescribed and will provide evidence satisfactory to you of
such filing. The Company will promptly advise each of you (i) when the
Prospectus, and any supplement thereto, shall have been filed with the
Commission pursuant to Rule 424(b), (ii) when, prior to the termination of
the offering of the Notes, any amendment of the Registration Statement
shall have been filed or become effective, (iii) of any request by the
Commission for any amendment of the Registration Statement or supplement to
the Prospectus or for any additional information, (iv) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose and (v) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Notes for sale
in any jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use its best efforts to prevent the issuance
of any such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it shall be necessary to amend
the Registration Statement or to supplement the Prospectus to comply with
the Act or the Exchange Act or the respective rules thereunder, the Company
promptly will (i) notify each of you to suspend solicitation of offers to
purchase Notes (and, if so notified by the Company, each of you shall
forthwith suspend such solicitation and cease using the Prospectus as then
supplemented), (ii) prepare and file with the Commission, subject to the
first sentence of paragraph (a) of this Section 4, an amendment or
supplement which will correct such statement or omission or effect such
compliance and (iii) supply any supplemented Prospectus to each of you in
such quantities as you may reasonably request. If such amendment or
supplement, and any documents, certificates and opinions furnished to each
of you pursuant to paragraph (g) of this Section 4 in connection with the
preparation or filing of such amendment or supplement are satisfactory in
all respects to you, each of you will, upon the filing of such amendment or
supplement with the Commission and upon the effectiveness of an amendment
to the Registration Statement, if such an amendment is required, resume
your obligation to solicit offers to purchase Notes hereunder.
(c) The Company, during the period when a prospectus relating to the
Notes is required to be delivered under the Act, will file promptly all
documents required to be filed with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act. During such period, the
Company will immediately notify each of you of (i) any decrease in the
rating of the Notes or any other debt securities of the Company, by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or (ii) any notice given of any
intended or potential decrease in any such rating or a possible change in
any such rating that does not indicate the direction of the possible
change, as soon as the Company learns of any such decrease or notice.
(d) As soon as practicable, the Company will make generally available
to its security holders an earnings statement or statements of the Company
and its subsidiaries which will satisfy the provisions of Section 11(a) of
the Act and Rule 158 under the Act.
(e) The Company will furnish to each of you and your counsel, without
charge, copies of the Registration Statement (including exhibits thereto)
and, so long as delivery of a prospectus may be required by the Act, as
many copies of the Prospectus and any supplement thereto as you may
reasonably request.
(f) The Company will arrange for the qualification of the Notes for
sale under the laws of such jurisdictions as any of you may designate, will
maintain such qualifications in effect so long as required for the
distribution of the Notes, and will arrange for the determination of the
legality of the Notes for purchase by institutional investors; provided,
however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is
not otherwise so subject.
(g) The Company shall furnish to each of you such information,
documents, certificates of officers of the Company and opinions of counsel
for the Company relating to the business, operations and affairs of the
Company, the Registration Statement, the Prospectus, and any amendments
thereof or supplements thereto, each Indenture, the Notes, this Agreement,
the Procedures and the performance by the Company and you of its and your
respective obligations hereunder and thereunder as any of you may from time
to time and at any time prior to the termination of this Agreement
reasonably request.
(h) The Company shall, whether or not any sale of the Notes is
consummated, (i) pay all expenses incident to the performance of its
obligations under this Agreement, including the fees and disbursements of
its accountants and counsel, the cost of printing or other production and
delivery of the Registration Statement, the Prospectus, all amendments
thereof and supplements thereto, each Indenture, this Agreement and all
other documents relating to the offering, the cost of preparing, printing,
packaging and delivering the Notes, the fees and disbursements, including
reasonable fees of counsel, incurred in compliance with Section 4(f), the
fees and disbursements of the Trustee and the fees of any agency that rates
the Notes, (ii) reimburse each of you on a monthly basis for all
out-of-pocket expenses (including without limitation advertising expenses)
incurred by you in connection with this Agreement and (iii) pay the
reasonable fees and expenses of your counsel incurred in connection with
this Agreement.
(i) Each acceptance by the Company of an offer to purchase Notes will
be deemed to be an affirmation that its representations and warranties
contained in this Agreement are true and correct at the time of such
acceptance, as though made at and as of such time, and a covenant that such
representations and warranties will be true and correct at the time of
delivery to the purchaser of the Notes relating to such acceptance, as
though made at and as of such time (it being understood that for purposes
of the foregoing affirmation and covenant such representations and
warranties shall relate to the Registration Statement and Prospectus as
amended or supplemented at each such time). Each such acceptance by the
Company of an offer for the purchase of Notes shall be deemed to constitute
an additional representation, warranty and agreement by the Company that,
as of the settlement date for the sale of such Notes, after giving effect
to the issuance of such Notes, of any other Notes to be issued on or prior
to such settlement date and of any other Securities to be issued and sold
by the Company on or prior to such settlement date, the aggregate amount of
Securities (including any Notes) which have been issued and sold by the
Company will not exceed the amount of Securities registered pursuant to the
Registration Statement.
(j) Prior to the commencement of the first Offering Period subsequent
to each time, and subsequent to each time during any Offering Period, that
the Registration Statement or the Prospectus is amended or supplemented
(other than by an amendment or supplement relating to any offering of
Securities other than the Notes or providing solely for the specification
of or a change in the maturity dates, the interest rates, the issuance
prices or other similar terms of any Notes sold pursuant hereto or, unless
requested by the Agents, other than by an amendment or supplement by means
of a Current Report on Form 8K filed by the Company and incorporated by
reference into the Prospectus), the Company will deliver or cause to be
delivered promptly to each of you a certificate of the Company, signed by
the Chairman of the Board, any Vice Chairman or the President, or any
Executive Vice President and the principal financial or accounting officer
or Treasurer of the Company, dated the date of the effectiveness of such
amendment or the date of the filing of such supplement, in form reasonably
satisfactory to you, of the same tenor as the certificate referred to in
Section 5(d) but modified to relate to the last day of the fiscal quarter
for which financial statements of the Company were last filed with the
Commission and to the Registration Statement and the Prospectus as amended
and supplemented to the time of the effectiveness of such amendment or the
filing of such supplement.
(k) Prior to the commencement of the first Offering Period subsequent
to each time, and subsequent to each time during any Offering Period, that
the Registration Statement or the Prospectus is amended or supplemented
(other than by an amendment or supplement (i) relating to any offering of
Securities other than the Notes, (ii) providing solely for the
specification of or a change in the maturity dates, the interest rates, the
issuance prices or other similar terms of any Notes sold pursuant hereto,
(iii) setting forth or incorporating by reference financial statements or
other information as of and for a fiscal quarter, unless, in the case of
clause (iii) above, in the reasonable judgment of any of you, such
financial statements or other information are of such a nature that an
opinion of counsel should be furnished or (iv) unless requested by the
Agents, other than by an amendment or supplement by means of a Current
Report on Form 8K filed by the Company and incorporated by reference into
the Prospectus), the Company shall furnish or cause to be furnished
promptly to each of you a written opinion of counsel of the Company
satisfactory to each of you, dated the date of the effectiveness of such
amendment or the date of the filing of such supplement, in form
satisfactory to each of you, of the same tenor as the opinion referred to
in Section 5(b) but modified to relate to the Registration Statement and
the Prospectus as amended and supplemented to the time of the effectiveness
of such amendment or the filing of such supplement or, in lieu of such
opinion, counsel last furnishing such an opinion to you may furnish each of
you with a letter to the effect that you may rely on such last opinion to
the same extent as though it were dated the date of such letter authorizing
reliance (except that statements in such last opinion will be deemed to
relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of the effectiveness of such amendment or the
filing of such supplement).
(l) Prior to the commencement of the first Offering Period subsequent
to each time that the Registration Statement or the Prospectus is amended
or supplemented to include or incorporate amended or supplemental financial
information, and each time during any Offering Period that the Registration
Statement or Prospectus is so amended or supplemented (unless requested by
the Agents, other than by an amendment or supplement by means of a Current
Report on Form 8K filed by the Company and incorporated by reference into
the Prospectus), the Company shall cause its independent public accountants
promptly to furnish each of you a letter, dated the date of the
commencement of such Offering Period or the date of the effectiveness of
such amendment or the date of the filing of such supplement, as the case
may be, in form satisfactory to each of you, of the same tenor as the
letter referred to in Section 5(e) with such changes as may be necessary to
reflect the amended and supplemental financial information included or
incorporated by reference in the Registration Statement and the Prospectus,
as amended or supplemented to the date of such letter; provided, that in no
event will the Company accept any offer to purchase Notes unless such
letter shall have been delivered; provided, further, that, if the
Registration Statement or the Prospectus is amended or supplemented solely
to include or incorporate by reference financial information as of and for
a fiscal quarter, the Company's independent public accountants may limit
the scope of such letter, which shall be satisfactory in form to each of
you, to the unaudited financial statements, the related "Management's
Discussion and Analysis of Financial Condition and Results of Operations"
and any other information of an accounting, financial or statistical nature
included in such amendment or supplement, unless, in the reasonable
judgment of any of you, such letter should cover other information or
changes in specified financial statement line items.
(m) During the period from the date of any Terms Agreement to the
later of (A) the Closing Date with respect to such Terms Agreement and (B)
the date, if any, specified in such Terms Agreement, the Company shall not,
without the prior consent of the Purchaser thereunder, issue or announce
the proposed issuance of any of its debt securities, including Notes (other
than the Notes that are to be sold pursuant to such Terms Agreement), with
terms substantially similar to the Notes being purchased pursuant to such
Terms Agreement, other than borrowings under its revolving credit
agreements and lines of credit and issuances of its commercial paper.
5. Conditions to the Obligations of the Agents. The obligations of each
Agent to solicit offers to purchase the Notes shall be subject to the accuracy
of the representations and warranties on the part of the Company contained
herein as of the Execution Time, on the Effective Date, when any supplement to
the Prospectus is filed with the Commission and as of each Closing Date, to the
accuracy of the statements of the Company made in any certificates pursuant to
the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus, and any such supplement,
shall have been filed in the manner and within the time period required by
Rule 424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(b) The Company shall have furnished to each Agent the opinion of
Xxxxxxx & Xxxxxx, LLP, counsel for the Company, dated the Execution Time,
to the effect that:
(i) each of the Company, Fleet National Bank ("Fleet Bank"),
BankBoston National Association ("BankBoston"), Fleet Bank, National
Association ("Fleet NA") and any other subsidiary or subsidiaries
which the Agent may reasonably request (individually a "Subsidiary"
and collectively the "Subsidiaries") has been duly incorporated and is
validly existing as a corporation or national banking association in
good standing under the laws of the jurisdiction in which it is
chartered or organized, with full corporate power and authority to own
its properties and conduct its business as described in the
Prospectus; the Company is qualified to do business as a foreign
corporation under the laws of the [State of New York and the
Commonwealth of Massachusetts]; except as stated above, neither the
Company nor any Subsidiary is required to be qualified to do business
as a foreign corporation under the laws of any other jurisdiction; and
the Company is registered as a bank holding company under the Bank
Holding Company Act of 1956, as amended;
(ii) all of the outstanding shares of capital stock of such
Subsidiaries have been duly and validly authorized and issued and are
fully paid and (except as provided in 12 U.S.C. Section 55)
nonassessable, and, except as otherwise set forth in the Prospectus,
all outstanding shares of capital stock of such Subsidiaries are owned
by the Company free and clear of any perfected security interest and,
to the knowledge of such counsel, after due inquiry, any other
security interests, claims, liens or encumbrances;
(iii) each Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust
Indenture Act, and constitutes a legal, valid and binding agreement
enforceable against the Company in accordance with its terms, except
as enforcement thereof may be limited by the receivership,
conservatorship and supervisory powers of bank regulatory agencies
generally as well as bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting enforcement of
creditors' rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law) and the
availability of equitable remedies, and except further as enforcement
thereof may be limited by (i) requirements that a claim with respect
to any Notes denominated other than in U.S. dollars (or a foreign
currency or currency unit judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (ii) governmental authority
to limit, delay or prohibit the making of payments outside the United
States;
(iv) the Notes have been duly authorized as a series of Debt
Securities under the applicable Indenture, are in the forms provided
for by resolutions of the Board of Directors of the Company adopted
pursuant to such Indenture, conform in all material respects to the
description thereof contained in the Prospectus, and, when executed
and authenticated in accordance with the provisions of the applicable
Indenture and delivered to and paid for by the purchasers, will
constitute valid and binding obligations of the Company entitled to
the benefits of the applicable Indenture;
(v) to the best knowledge of such counsel, there is no pending or
threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the Company or
any of its subsidiaries, of a character required to be disclosed in
the Registration Statement which is not adequately disclosed in the
Prospectus, and there is no franchise, contract or other document of a
character required to be described in the Registration Statement or
Prospectus, or to be filed as an exhibit, which is not described or
filed as required;
(vi) the Registration Statement and any amendments thereto have
become effective under the Act; to the best knowledge of such counsel,
no stop order suspending the effectiveness of the Registration
Statement, as amended, has been issued, no proceedings for that
purpose have been instituted or threatened, and the Registration
Statement, the Prospectus and each amendment thereof or supplement
thereto as of their respective effective or issue dates (other than
the financial statements and other financial data contained therein as
to which such counsel need express no opinion) comply as to form in
all material respects with the applicable requirements of the Act and
the Exchange Act and the respective rules thereunder; and such counsel
has no reason to believe that the Registration Statement, or any
amendment thereof, at the time it became effective and at the date of
this Agreement (or, in the case of any opinion delivered pursuant to
Section 4(k) or Section 6, the date of such subsequently delivered
opinion), contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary
to make the statements therein not misleading or that the Prospectus,
as amended or supplemented to the date of such opinion, includes any
untrue statement of a material fact or omits to state a material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(vii) this Agreement has been duly authorized, executed and
delivered by the Company;
(viii) no consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation of the
transactions contemplated herein, except such as have been obtained
under the Act, the Trust Indenture Act and such as may be required
under the blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Notes as contemplated by this
Agreement and such other approvals (specified in such opinion) as have
been obtained;
(ix) neither the issue and sale of the Notes, nor the
consummation of any other of the transactions herein contemplated nor
the fulfillment of the terms hereof will conflict with, result in a
breach of, or constitute a default under the charter or by-laws of the
Company or the terms of any indenture or other agreement or instrument
known to such counsel and to which the Company or any of its
subsidiaries is a party or bound, or any order or regulation known to
such counsel to be applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Company
or any of its subsidiaries (except for such conflicts, breaches or
defaults or liens, charges or encumbrances that 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); and
(x) no holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
In rendering such opinion, such counsel may rely (a) as to matters
involving the application of laws of any jurisdiction other than the State
of Rhode Island or the United States, to the extent deemed proper and
specified in such opinion, upon the opinion of other counsel of good
standing believed to be reliable and who are satisfactory to counsel for
the Agents and (B) as to matters of fact, to the extent deemed proper, on
certificates of responsible officers of the Company and public officials.
References to the Prospectus in this paragraph (b) include any supplements
thereto at the date such opinion is rendered.
(c) Each Agent shall have received from Cravath, Swaine & Xxxxx,
counsel for the Agents, such opinion or opinions, dated the Execution Time,
with respect to the issuance and sale of the Notes, each Indenture, the
Registration Statement, the Prospectus (together with any supplement
thereto) and other related matters as the Agents may reasonably require,
and the Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to each Agent a certificate of
the Company, signed by the Chairman of the Board, any Vice Chairman or the
President, or any Executive Vice President and the principal financial or
accounting officer or Treasurer of the Company, dated the Execution Time,
to the effect that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the date hereof with the same effect as if made on the date hereof and
the Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied as a condition to
the obligation of the Agents to solicit offers to purchase the Notes;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Prospectus (exclusive of
any supplement thereto, but including documents incorporated by
reference), there has been no material adverse change in the condition
(financial or other), earnings, business or properties of the Company
and its subsidiaries considered as one enterprise, whether or not
arising from transactions in the ordinary course of business, except
as set forth or contemplated in the Prospectus (exclusive of any
supplement thereto, but including documents incorporated by
reference).
(e) At the Execution Time, PricewaterhouseCoopers LLP shall have
furnished to each Agent a letter or letters (which may refer to letters
previously delivered to the Agents), dated as of the Execution Time, in
form and substance satisfactory to the Agents, confirming that they are
independent accountants within the meaning of the Act and the Exchange Act
and the respective applicable published rules and regulations thereunder
and stating in effect that:
(i) in their opinion the audited financial statements included or
incorporated in the Registration Statement and the Prospectus and
reported on by them comply as to form in all material respects with
the applicable accounting requirements of the Act and the Exchange Act
and the related published rules and regulations;
(ii) on the basis of a reading of the latest unaudited
consolidated financial statements made available by the Company;
carrying out certain specified procedures (but not an examination in
accordance with generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the
comments set forth in such letter; a reading of the minutes of the
meetings of the stockholders, directors and executive and audit
committees of the Company; and inquiries of certain officials of the
Company who have responsibility for financial and accounting matters
of the Company and its subsidiaries as to transactions and events
subsequent to the date of the most recent audited financial statements
incorporated in the Registration Statement and the Prospectus, nothing
came to their attention which caused them to believe that:
(1) the amounts in the unaudited "Summary Consolidated
Financial Data", if any, included in the Prospectus do not agree
with the corresponding amounts in the audited consolidated
financial statements, unaudited consolidated financial statements
or analyses prepared by the Company from which such amounts were
derived; or
(2) any unaudited financial statements included or
incorporated in the Registration Statement and the Prospectus do
not comply as to form in all material respects with applicable
accounting requirements and with the published rules and
regulations of the Commission with respect to financial
statements included or incorporated in quarterly reports on Form
10-Q under the Exchange Act; and said unaudited financial
statements are not in conformity with generally accepted
accounting principles applied on a basis substantially consistent
with that of the audited financial statements included or
incorporated in the Registration Statement and the Prospectus; or
(3) with respect to the period subsequent to the date of the
most recent financial statements (other than capsule
information), audited or unaudited, incorporated in the
Registration Statement and the Prospectus, there were any
changes, at a specified date not more than five business days
prior to the date of the letter, in the long-term debt of the
Company and its subsidiaries on a consolidated basis or capital
stock of the Company or decreases in the stockholders' equity of
the Company and its subsidiaries on a consolidated basis as
compared with the amounts shown on the most recent consolidated
balance sheet or capitalization table included or incorporated in
the Registration Statement and the Prospectus, or for the period
from the date of the most recent financial statements
incorporated in the Registration Statement and the Prospectus to
such specified date there were any decreases, as compared with
the corresponding period in the preceding year, in net interest
income or income before income taxes, or in total or per share
amounts of net income, of the Company and its subsidiaries on a
consolidated basis, except in all instances for changes or
decreases that the Registration Statement has disclosed have
occurred or may occur, in which case the letter shall be
accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed
necessary by the Agents; or
(4) the amounts included in any unaudited "capsule"
information included or incorporated in the Registration
Statement and the Prospectus do not agree with the amounts set
forth in the unaudited financial statements for the same periods
or were not determined on a basis substantially consistent with
that of the corresponding amounts in the audited financial
statements included or incorporated in the Registration Statement
and the Prospectus;
(iii) they have performed certain other specific procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company) set forth in the
Registration Statement, as amended, and the Prospectus, as amended or
supplemented, and in Exhibit 12 to the Registration Statement, the
information included or incorporated in Items 1 (Guide 3 Statistical
Disclosure), 6 and 7 of the Company's annual report on Form 10-K
incorporated therein, and in "Management's Discussion and Analysis of
Financial Condition and Results of operations" included or
incorporated in the Company's quarterly reports on Form 10-Q
incorporated therein agrees with the accounting records of the Company
and its subsidiaries on a consolidated basis, excluding any questions
of legal interpretation; and
(iv) if pro forma financial statements are included or
incorporated in the Registration Statement and the Prospectus, on the
basis of a reading of the unaudited pro forma financial statements,
carrying out certain specified procedures, inquiries of certain
officials of the Company and the acquired company who have
responsibility for financial and accounting matters, and proving the
arithmetic accuracy of the application of the pro forma adjustments to
the historical amounts in the pro forma financial statements, nothing
came to their attention which caused them to believe that the pro
forma financial statements do not comply in form in all material
respects with the applicable accounting requirements of Rule 11-02 of
Regulation S-X or that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of such
statements.
References to the Prospectus in this paragraph (e) include any supplement
thereto at the date of the letter.
(f) Prior to the Execution Time, the Company shall have furnished to
each Agent such further information, documents, certificates and opinions
of counsel as the Agents may reasonably request.
The documents required to be delivered by this Section 5 shall be delivered
at the office of Cravath, Swaine & Xxxxx, counsel for the Agents, at Worldwide
Plaza, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx the date hereof.
6. Conditions to the Obligations of the Purchaser. The obligations of the
Purchaser to purchase any Notes will be subject to the accuracy of the
representations and warranties on the part of the Company herein as of the date
of the related Terms Agreement and as of the Closing Date for such Notes, to the
performance and observance by the Company of all covenants and agreements herein
contained on its part to be performed and observed and to the following
additional conditions precedent:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been instituted or threatened.
(b) To the extent agreed to in writing between the Company and the
Purchaser in a Terms Agreement, the Purchaser shall have received,
appropriately updated, (i) a certificate of the Company, dated as of the
Closing Date, to the effect set forth in Section 5(d) (except that
references to the Prospectus shall be to the Prospectus as supplemented as
of the date of such Terms Agreement), (ii) the opinion of Xxxxxxx & Xxxxxx,
counsel for the Company, dated as of the Closing Date, to the effect set
forth in Section 5(b), (iii) the opinion of Cravath, Swaine & Xxxxx,
counsel for the Purchaser, dated as of the Closing Date, to the effect set
forth in Section 5(c), and (iv) a letter of PricewaterhouseCoopers LLP,
independent accountants for the Company, dated as of the Closing Date, to
the effect set forth in Section 5(e).
(c) Prior to the Closing Date, the Company shall have furnished to the
Purchaser such further information, certificates and documents as the
Purchaser may reasonably request.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement and an
applicable Terms Agreement, or if any of the opinions and certificates mentioned
above or elsewhere in this Agreement or such Terms Agreement and required to be
delivered to the Purchaser pursuant to the terms hereof and thereof shall not be
in all material respects reasonably satisfactory in form and substance to the
Purchaser and its counsel, such Terms Agreement and all obligations of the
Purchaser thereunder and with respect to the Notes subject thereto may be
canceled at, or at any time prior to, the respective Closing Date by the
Purchaser. Notice of such cancelation shall be given to the Company in writing
or by telephone or telegraph confirmed in writing.
7. Right of Person Who Agreed to Purchase to Refuse to Purchase. (a) The
Company agrees that any person who has agreed to purchase and pay for any Note,
including a Purchaser and any person who purchases pursuant to a solicitation by
any of the Agents, shall have the right to refuse to purchase such Note if (i)
at the Closing Date therefor, any condition set forth in Section 5 (except that
references to the Prospectus shall be to the Prospectus as supplemented at the
Closing Date) or 6, as applicable, shall not be satisfied, (ii) subsequent to
the agreement to purchase such Note, any change, or any development with respect
to the Company involving a prospective change, in or affecting the business or
properties of the Company and its subsidiaries considered as one enterprise
shall have occurred the effect of which is, in the judgment of the Purchaser or
the Agent which presented the offer to purchase such Note, as applicable, so
material and adverse as to make it impractical or inadvisable to proceed with
the delivery of such Note or (iii) subsequent to the agreement to purchase such
Note, (w) there shall have been any decrease in the ratings of any of the
Company's debt securities by Xxxxx'x Investors Service or Standard & Poor's
Corporation (each a "Rating Agency") or any such Rating Agency shall publicly
announce that it has placed any of such debt securities on a "watchlist" with
negative implications, (x) trading in the Company's Common Stock shall have been
suspended by the Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on such Exchange, (y) a
banking moratorium shall have been declared either by Federal or New York State
authorities, or (z) there shall have occurred any outbreak or escalation of
hostilities or other calamity or crisis the effect of which on the financial
markets or the United States is such as to make it, in the judgment of the
Purchaser or the Agent which presented the offer to purchase such Note, as
applicable, impracticable to market such Notes (it being understood that under
no circumstance shall any Agent have any duty or obligation to exercise any
judgment permitted to be exercised pursuant to this Section 7(a)).
(b) The Company further agrees to notify each Agent upon the occurrence of
any change, condition or development contemplated by Section 7(a)(ii) or (iii)
which occurs prior to the Closing Date.
8. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each of you and each person who controls each of you within
the meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which you, they or any of
you or them may become subject under the Act, the Exchange Act or other Federal
or state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the registration statement for the registration
of the Securities as originally filed or in any amendment thereof, or in the
Prospectus or any preliminary Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that (i) the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by any of you specifically for use in connection with the
preparation thereof, and (ii) such indemnity with respect to the Prospectus or
any preliminary Prospectus shall not inure to the benefit of any of you (or any
person controlling any of you) from whom the person asserting any such loss,
claim, damage or liability purchased the Notes which are the subject thereof if
it shall be established that such person did not receive a copy of the
Prospectus (or the Prospectus as supplemented) excluding documents incorporated
therein by reference at or prior to the confirmation of the sale of such Notes
to such person in any case where such delivery is required by the Act if the
Company has previously furnished copies thereof in sufficient quantity and the
loss, claim, damage or liability results from an untrue statement or omission of
a material fact contained in the Prospectus or any preliminary Prospectus was
corrected in the Prospectus (or the Prospectus as supplemented). This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
(b) Each of you agrees to indemnify and hold harmless the Company, each of
its directors, each of its officers who signs the Registration Statement and
each person who controls the Company within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from the Company to
you, but only with reference to written information relating to such of you
furnished to the Company by such of you specifically for use in the preparation
of the documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which you may otherwise have. The
Company acknowledges that the statements set forth in the eighth paragraph under
the heading "Plan of Distribution" of the Prospectus Supplement relating to
purchases and sales of Notes in the secondary market constitute the only
information furnished in writing by any of you for inclusion in the documents
referred to in the foregoing indemnity, and you confirm that such statement is
correct.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 8. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party;
provided, however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall have
the right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying party
to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section 8 for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel (plus any local counsel), approved by you in the
case of paragraph (a) of this Section 8, representing the indemnified parties
under such paragraph (a) who are parties to such action), (ii) the indemnifying
party shall not have employed counsel reasonably satisfactory to the indemnified
party to represent the indemnified party within a reasonable time after notice
of commencement of the action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party; and except that, if clause (i) or (iii) is applicable, such
liability shall be only in respect of the counsel referred to in such clause (i)
or (iii).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of this
Section 8 is due in accordance with its terms but is for any reason held by a
court to be unavailable from the Company on grounds of policy or otherwise, the
Company and each of you shall contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) to which the Company and any
of you may be subject in such proportion so that each of you is responsible for
that portion represented by the percentage that the aggregate commissions
received by such of you pursuant to Section 2 in connection with the Notes from
which such losses, claims, damages and liabilities arise (or, in the case of
Notes sold pursuant to a Terms Agreement, the aggregate commissions that would
have been received by such of you if such commissions had been payable), bears
to the aggregate principal amount of such Notes sold and the Company is
responsible for the balance; provided, however, that (y) in no case shall any of
you be responsible for any amount in excess of the commissions received by such
of you in connection with the Notes from which such losses, claims, damages and
liabilities arise (or, in the case of Notes sold pursuant to a Terms Agreement,
the aggregate commissions that would have been received by such of you if such
commissions had been payable) and (z) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who controls any
of you within the meaning of the Act shall have the same rights to contribution
as you and each person who controls the Company within the meaning of either the
Act or the Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to clauses (y) and
(z) of this paragraph (d).
9. Termination. (a) This Agreement will continue in effect until terminated
as provided in this Section 9. This Agreement may be terminated by either the
Company as to any of you or any of you insofar as this Agreement relates to such
of you, giving written notice of such termination to such of you or the Company,
as the case may be. This Agreement shall so terminate at the close of business
on the first business day following the receipt of such notice by the party to
whom such notice is given. In the event of such termination, no party shall have
any liability to the other party hereto, except as provided in the fourth
paragraph of Section 2(a), Section 4(b), Section 4(h), Section 8 and Section 10.
The provisions of this Agreement (including without limitation Section 7 hereof)
applicable to any purchase of a Note for which an agreement to purchase exists
prior to the termination hereof shall survive any termination of this Agreement.
(b) Each Terms Agreement shall be subject to termination in the absolute
discretion of the Purchaser, by notice given to the Company prior to delivery of
any payment for Notes to be purchased thereunder, if prior to such time (i)
trading in the Company's Common Stock shall have been suspended by the
Commission or the New York Stock Exchange or trading in securities generally on
the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (ii) a banking moratorium
shall have been declared either by Federal or New York State authorities, (iii)
there shall have occurred any outbreak or escalation of hostilities, declaration
by the United States of a national emergency or war or other calamity or crisis
the effect of which on the financial markets is such as to make it, in the
judgment of the Purchaser, impracticable to market such Notes or (iv) there
shall have been any decrease in the ratings of the Company's debt securities by
any Rating Agency or any such Rating Agency shall publicly announce that it has
placed any of such debt securities on a "watchlist" with negative implications.
10. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of you set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made by or on
behalf of you or the Company or any of the officers, directors or controlling
persons referred to in Section 8 hereof, and will survive delivery of and
payment for the Notes. The provisions of Sections 4(h) and 8 hereof shall
survive the termination or cancelation of this Agreement.
11. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to any of you, will be mailed, delivered or
telegraphed and confirmed to such of you, at the address specified in Schedule I
hereto; or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at Xxx Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, attention of
the Executive Vice President, General Counsel and Secretary or such other
address as the Company may designate from time to time.
12. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 8 hereof, and no other
person will have any right or obligation hereunder, except for the right of a
person who has agreed to purchase a Note to refuse to purchase such Note as
provided in Section 7 hereof.
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 you.
Very truly yours,
FLEET BOSTON CORPORATION
By /s/ Authorized Signatory
--------------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date hereof.
BEAR, XXXXXXX & CO. INC.
By /s/ Xxxxxxx X. X'Xxxxx
---------------------------
Name: Xxxxxxx X. X'Xxxxx
Title: Senior Manager, Director
FLEETBOSTON XXXXXXXXX XXXXXXXX INC.
By /s/ Xxxx E.T. Crees
---------------------------
Name: Xxxx E.T. Xxxxx
Title: Director
/s/ Xxxxxxx, Sachs & Co.
-----------------------------
(Xxxxxxx, Xxxxx & Co.)
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE,
XXXXXX & XXXXX INCORPORATED
By /s/ Xxxxx Xxxxx
---------------------------
Name: Xxxxx Xxxxx
Title: Authorized Signatory
X.X. XXXXXX SECURITIES INC.
By /s/ Xxxxxx Xxxx
---------------------------
Name: Xxxxxx Xxxx
Title: Director
XXXXXXX XXXXX XXXXXX INC.
By /s/ Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
Title: First Vice President
SCHEDULE I
Commissions:
The Company agrees to pay each Agent a commission equal to the following
percentage of the principal amount of each Note sold on an agency basis by such
Agent:
Term Commission Rate
From 9 months to less than 1 year .125%
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .700%
From 20 years to and including 30 years .750%
Over 30 years to be negotiated
Unless otherwise specified in the applicable Terms Agreement, the discount
or commission payable to a Purchaser shall be determined on the basis of the
commission schedule set forth above.
Address for Notices to you:
Notices to Bear, Xxxxxxx & Co. Inc. shall be directed to it at 000 Xxxx
Xxxxxx, Xxx Xxxx, XX 00000, Attention: Medium-Term Notes
Notices to FleetBoston Xxxxxxxxx Xxxxxxxx Inc. shall be directed to it at
000 Xxxxxxx Xxxxxx, Xxxxxx, XX 00000, Attention: Medium-Term Notes.
Notices to Xxxxxxx, Sachs & Co. shall be directed to it at 00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention of Credit Department.
Notices to Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, shall be directed to it at World Financial Center, Xxxxx Xxxxx -
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention of MTN Product Management.
Notices to X.X. Xxxxxx Securities Inc. shall be directed to it at 00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Medium Term Note Desk, Third
Floor.
Notices to Xxxxxxx Xxxxx Xxxxxx Inc. shall be directed to it at 000
Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of the
Medium-Term Note Department.
