New York, New York
November 14, 2001
To: the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
FleetBoston Financial Corporation, a Rhode Island corporation (the
"Company"), proposes to sell to the underwriters named in Schedule II hereto
(the "Underwriters"), for whom you are acting as representatives (the
"Representatives"), the principal amount of its debt securities identified in
Schedule I hereto (the "Debt Securities"), to be issued under an indenture,
dated as of December 6, 1999 (the "Indenture"), between the Company and the
trustee named in Schedule I hereto (the "Trustee"). If so indicated on Schedule
I hereto, the Company also proposes to issue warrants (the "Warrants") to
purchase the aggregate principal amount listed in Schedule I hereto of the debt
securities identified in Schedule I hereto (the "Warrant Securities"). The
Warrants, if any, are to be issued pursuant to the Warrant Agreement listed in
Schedule I hereto (the "Warrant Agreement") between the Company and the Warrant
Agent listed in Schedule I hereto (the "Warrant Agent"). The Debt Securities and
the Warrants, if any, are hereinafter referred to as the "Purchased Securities".
The Purchased Securities and the Warrant Securities, if any, are referred to
herein as the "Securities". If the firm or firms listed in Schedule II hereto
include only the firm or firms listed in Schedule I hereto, then the terms
"Underwriters" and "Representatives", as used herein, shall each be deemed to
refer to such firm or firms.
Section 1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1. Certain terms used in this Section 1 are defined in paragraph (c)
hereof.
(a) If the offering of the Securities is a Delayed Offering (as specified
in Schedule I hereto), paragraph (i) below is applicable and, if the offering of
the Securities is a Non-Delayed Offering (as so specified), paragraph (ii) below
is applicable.
(i) The Company meets the requirements for the use of Form S-3 under
the Securities Act of 1933 (the "Act") and has filed with the Securities
and Exchange Commission (the "Commission") a registration statement (the
file number of which is set forth in Schedule I hereto) on such Form,
including a related basic prospectus, for registration under the Act of
the offering and sale of the Securities. The Company may have filed one or
more amendments thereto, and may have used a Preliminary Final Prospectus,
each of which has previously been furnished to you. Such registration
statement, as so amended, has become effective. The Company will next file
with the Commission pursuant to Rules 415 and 424(b)(2) or (5) a final
supplement to the form of prospectus included in such registration
statement relating to the Securities and the offering thereof. As filed,
such final prospectus supplement shall include all required information
with respect to the Securities and the offering thereof and, except to the
extent the Representatives shall agree in writing to a modification, shall
be in all
substantive respects in the form furnished to you prior to the Execution
Time or, to the extent not completed at the Execution Time, shall contain
only such specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Final Prospectus) as
the Company has advised you, prior to the Execution Time, will be included
or made therein. If the Rule 434 Delivery Alternative is used, the Company
will also file the Rule 434 Term Sheet in accordance with Rule 434. As
filed, such Rule 434 Term Sheet shall contain all the information required
by Rule 434, and except to the extent the Representatives shall agree in
writing to a modification, shall be in all substantive respects in the
form furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the
latest Preliminary Prospectus) as the Company has advised you, prior to
the Execution Time, will be included or made therein. Upon your request,
but not without your agreement, the Company will also file a Rule 462(b)
Registration Statement in accordance with Rule 462(b).
(ii) The Company meets the requirements for the use of Form S-3
under the Act and has filed with the Commission a registration statement
(the file number of which is set forth in Schedule I hereto) on such Form,
including a related basic prospectus, for registration under the Act of
the offering and sale of the Securities. The Company may have filed one or
more amendments thereto, including a Preliminary Final Prospectus, each of
which has previously been furnished to you. The Company will next file
with the Commission either (x) a final prospectus supplement relating to
the Securities in accordance with Rules 430A and 424(b)(1) or (4), or (y)
prior to the effectiveness of such registration statement, an amendment to
such registration statement, including the form of final prospectus
supplement. In the case of clause (x), the Company has included in such
registration statement, as amended at the Effective Date, all information
(other than Rule 430A Information) required by the Act and the rules
thereunder to be included in the Final Prospectus with respect to the
Securities and the offering thereof. As filed, such final prospectus
supplement or such amendment and form of final prospectus supplement shall
contain all Rule 430A Information, together with all other such required
information, with respect to the Securities and the offering thereof and,
except to the extent the Representatives shall agree in writing to a
modification, shall be in all substantive respects in the form furnished
to you prior to the Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional information
and other changes (beyond that contained in the Basic Prospectus and any
Preliminary Final Prospectus) as the Company has advised you, prior to the
Execution Time, will be included or made therein. If the Rule 434 Delivery
Alternative is used, the Company will also file the Rule 434 Term Sheet in
accordance with Rule 434. As filed, such Rule 434 Term Sheet shall contain
all the information required by Rule 434, and except to the extent the
Representatives shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the Execution
Time or, to the extent not completed at the Execution Time, shall contain
only such specific additional information and other changes (beyond that
contained in the latest Preliminary Prospectus) as the Company has advised
you, prior to the Execution Time, will be included or made therein. Upon
your request, but not without your agreement, the
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Company will also file a Rule 462(b) Registration Statement in accordance
with Rule 462(b).
(b) On the Effective Date, the Registration Statement did or will, and
when the Final Prospectus is first filed (if required) in accordance with Rule
424(b) and on the Closing Date, the Final Prospectus (and any supplement
thereto) will, comply in all material respects with the applicable requirements
of the Act and the Securities Exchange Act of 1934 (the "Exchange Act") and the
respective rules thereunder; on the Effective Date, the Registration Statement
did not or will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein not misleading; on the Effective Date and on the
Closing Date the Indenture did or will comply in all material respects with the
applicable requirements of the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the rules thereunder; and, on the Effective Date,
the Final Prospectus, if not filed pursuant to Rule 424(b), did not or will not,
and on the date of any filing pursuant to Rule 424(b) and on the Closing Date,
the Final Prospectus (together with any supplement thereto) will not, include
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the Company makes no representations or warranties as to (i) that part of
the Registration Statement which shall constitute the Statement of Eligibility
and Qualification (Form T-1) under the Trust Indenture Act of the Trustee or
(ii) the information contained in or omitted from the Registration Statement or
the Final Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Company by or on behalf
of any Underwriter through the Representatives specifically for use in
connection with the preparation of the Registration Statement or the Final
Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this Agreement, shall have the
meanings indicated. The term "the Effective Date" shall mean each date that the
Registration Statement, any post-effective amendment or amendments thereto and
any Rule 462(b) Registration Statement became or become effective. "Execution
Time" shall mean the date and time that this Agreement is executed and delivered
by the parties hereto. "Basic Prospectus" shall mean the prospectus referred to
in paragraph (a) above contained in the Registration Statement at the Effective
Date including, in the case of a Non-Delayed Offering, any Preliminary Final
Prospectus. "Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus. "Final
Prospectus" shall mean the prospectus supplement relating to the Securities that
is first filed pursuant to Rule 424(b) after the Execution Time, together with
the Basic Prospectus or, if, in the case of a Non-Delayed Offering, no filing
pursuant to Rule 424(b) is required, shall mean the form of final prospectus
relating to the Securities, including the Basic Prospectus, included in the
Registration Statement at the Effective Date. If the Rule 434 Delivery
Alternative is used, such term shall also include the Basic Prospectus and the
Rule 434 Term Sheet, taken together. "Registration Statement" shall mean the
registration statement referred to in paragraph (a) above, including
incorporated documents, exhibits and financial statements, as amended at the
Execution Time (or, if not effective at the Execution Time, in the form in which
it shall become effective) and, in the event any post-effective amendment
thereto or any Rule 462(b) Registration Statement becomes effective prior to the
Closing Date (as hereinafter defined), shall also mean such registration
statement as so
3
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
4
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.
5
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.
6
(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
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for the Company, dated the Closing Date, to the effect
that:
7
(i) each of the Company and Fleet National Bank ("FNB") has been duly
organized and is validly existing as a corporation or national banking
association under the laws of the jurisdiction in which it is organized, with
full corporate power and authority to own its properties and conduct its
business as described in the Final Prospectus; the Company is duly qualified to
do business as a foreign corporation under the laws of the State of New York and
the Commonwealth of Massachusetts and neither the Company nor FNB is required to
be qualified to do business as a foreign corporation under the laws of any other
jurisdiction, except to the extent that the failure to so qualify would not have
a material adverse effect on the Company and its subsidiaries, considered as one
enterprise; and the Company is duly registered as a financial holding company
under the Bank Holding Company Act of 1956, as amended;
(ii) all of the outstanding shares of the capital stock of FNB have
been duly and validly authorized and issued and are fully paid and (except as
provided in 12 U.S.C. Section 55) nonassessable, and, except as otherwise set
forth or incorporated by reference in the Final Prospectus, all outstanding
shares of capital stock of FNB are owned by the Company free and clear of any
perfected security interest and, to the knowledge of such counsel, after due
inquiry, any other security interests, claims, liens or encumbrances;
(iii) the Purchased Securities conform in all material respects to the
description thereof contained in the Final Prospectus;
(iv) the Indenture and the Warrant Agreement, if any, have been duly
authorized, executed and delivered; the Indenture has been duly qualified under
the Trust Indenture Act; and the Indenture and the Warrant Agreement, if any,
constitute legal, valid and binding instruments enforceable against the Company
in accordance with their respective terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or
other laws affecting creditors' rights generally from time to time in effect and
to the availability of equitable remedies which are discretionary with the
courts); and the Securities have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and delivered
pursuant to the Warrant Agreement, in the case of Warrant Securities, and
delivered to and paid for by the Underwriters pursuant to this Agreement, in the
case of the Underwriters' Securities, or by the purchasers thereof pursuant to
Delayed Delivery Contracts, in the case of any Contract Securities, will
constitute legal, valid and binding obligations of the Company entitled to the
benefits of the Indenture;
(v) to the best knowledge of such counsel, there is no pending or
threatened action, suit or proceeding before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its
subsidiaries, of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Final Prospectus or
incorporated by reference therein, and there is no franchise, contract or other
document of a character required to be described in the Registration Statement
or Final Prospectus, or to be filed as an exhibit thereto, which is not
described or filed as required;
8
(vi) the Registration Statement has become effective under the Act; any
required filing of the Basic Prospectus, any Preliminary Final Prospectus and
the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) has
been made in the manner and within the time period required by Rule 424(b), or
if the Rule 434 Delivery Alternative was used, the required filing of the Rule
434 Term Sheet has been made in the manner and time period required by Rule 434;
to the best knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued, no proceedings for
that purpose have been instituted or threatened, and the Registration Statement
and the Final Prospectus (other than the financial statements and other
financial and statistical information contained therein as to which such counsel
need express no opinion) comply as to form in all material respects with the
applicable requirements of the Act and the Exchange Act and the respective rules
thereunder; and such counsel has no reason to believe that at the Effective Date
the Registration Statement contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary to
make the statements therein not misleading or that at the Closing Date the Final
Prospectus includes any untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(vii) this Agreement and any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company;
(viii) without expressing any opinion with respect to the Warrant
Securities, no consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the transactions
contemplated herein or in any Delayed Delivery Contracts, except such as have
been obtained under the Act and such as may be required under the blue sky laws
of any jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters and such other approvals (specified in such
opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation
of any other of the transactions herein contemplated nor the fulfillment of the
terms hereof or of any Delayed Delivery Contracts will conflict with, result in
a breach of, or constitute a default under the terms of any material indenture
or other material agreement or material instrument known to such counsel and to
which the Company or any of its subsidiaries is a party or bound, or any order
or regulation known to such counsel to be applicable to the Company or any of
its subsidiaries of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Company or any of
its subsidiaries, except in each such case where conflicts, breaches and
defaults would not have a material adverse effect on the condition, financial or
otherwise, earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise or on the Company's ability to
make payments on the Notes, nor will such action result in any violation of the
provisions of the articles of incorporation or by-laws of the Company; and
(x) no holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
9
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction
other than the State of Rhode Island or the United States, to
the extent deemed proper and specified in such opinion, upon
the opinion of other counsel of good standing believed to be
reliable and who are satisfactory to counsel for the
Underwriters and (B) as to matters of fact, to the extent
deemed proper, on certificates of responsible officers of the
Company and public officials. References to the Final
Prospectus in this paragraph (b) include any supplements
thereto at the Closing Date.
(c) The Representatives shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ &
▇▇▇▇ 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:
10
(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
11
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
12
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
13
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 fifth paragraphs and the second
sentence of the third paragraph under the heading "UNDERWRITING" and, if
Schedule I hereto provides for sales of Securities pursuant to delayed delivery
arrangements, in the last sentence under the heading "Delayed Delivery
Arrangements" in any Preliminary Final Prospectus or the Final Prospectus
constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in the documents referred to in the foregoing
indemnity, and you, as the Representatives, confirm that such statements are
correct.
(c) Promptly after receipt by an indemnified party under this Section 7
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 7. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to appoint counsel satisfactory to such
indemnified party to represent the indemnified party in such action; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties
14
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) to which
the Company and one or more of the Underwriters may be subject in such
proportion so that the Underwriters are responsible for that portion represented
by the percentage that the underwriting discount bears to the sum of such
discount and the purchase price of the Securities specified in Schedule I hereto
and the Company is responsible for the balance; provided, however, that (y) in
no case shall any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be responsible for any
amount in excess of the underwriting discount applicable to the Securities
purchased by such Underwriter hereunder and (z) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, each person who controls an
Underwriter within the meaning of the Act shall have the same rights to
contribution as such Underwriter, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each officer of the
Company who shall have signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the Company, subject
in each case to clauses (y) and (z) of this paragraph (d). Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this paragraph
(d), notify such party or parties from whom contribution may be sought, but the
omission to so notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any other obligation it or
they may have hereunder or otherwise than under this paragraph (d). The
Underwriters' obligations to contribute as provided in this Section 7(d) are
several in proportion in their respective underwriting commitments and not
joint.
15
Section 8. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate amount
of Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
amount of Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate amount of Securities set
forth in Schedule II hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any nondefaulting
Underwriter or the Company. In the event of a default by any Underwriter as set
forth in this Section 8, the Closing Date shall be postponed for such period,
not exceeding seven days, as the Representatives shall determine in order that
the required changes in the Registration Statement and the Final Prospectus or
in any other documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter of its liability, if
any, to the Company and any nondefaulting Underwriter for damages occasioned by
its default hereunder.
Section 9. Selling Restrictions. The Securities are offered for sale in
the United States and in jurisdictions outside the United States subject to
applicable law. Each Underwriter understands that no action has been taken to
permit a public offering of the Securities in any jurisdiction outside the
United States where action would be required for such purpose. Schedule IV
hereof details certain selling restrictions relating to the Securities. Each of
the Underwriters and each of its affiliates agrees that it will not offer, sell
or deliver any of the Securities, directly or indirectly, or distribute the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus or
any other offering material relating to the Securities in or from any
jurisdiction except under circumstances that will result in compliance with the
applicable laws and regulations and which will not impose any obligation on the
Company except as set forth herein.
Section 10. Termination. This Agreement shall be subject to termination
in the absolute discretion of the Representatives, by notice given to the
Company prior to delivery of and payment for the Securities, if prior to such
time (i) trading in the Company's Common Stock shall have been suspended by the
Commission or the New York Stock Exchange or trading in securities generally on
the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (ii) a banking moratorium
shall have been declared either by Federal or New York state authorities, (iii)
any change in U.S. or international financial, political or economic conditions
or currency exchange rates or exchange controls which will, in the reasonable
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 reasonable
judgment of a majority in interest of the Underwriters, including any
Representatives, prejudice materially the success of the proposed
16
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 11. 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 12. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telegraphed and confirmed to them, at the address specified
in Schedule I hereto; or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, attention of the Executive Vice President, General Counsel and
Secretary.
Section 13. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7 hereof,
and no other person will have any right or obligation hereunder.
Section 14. Applicable Law. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
17
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: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Assistant Treasurer
CONFIRMED AND ACCEPTED, as of the date first above written:
CREDIT SUISSE FIRST BOSTON CORPORATION
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
FLEET SECURITIES, INC.
By: Credit Suisse First Boston Corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
For themselves and as Representatives of the
other several Underwriters named in Schedule II hereto.
18
SCHEDULE I
Underwriting Agreement, dated November 14, 2001
Registration Statement No. 333-36444
Representatives: Credit Suisse First Boston Corporation
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fleet Securities, Inc.
▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Title, Purchase Price and Description of Securities:
Title: 4 7/8% Senior Notes due December 1, 2006
Trustee: The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Principal amount: $1,000,000,000
Purchase price: 4 7/8% of principal amount plus accrued interest, if
any, from November 19, 2001 to the date of delivery
Type of Funds: Wire transfer of Federal (same day) funds
Sinking fund provisions: None
Redemption provisions: Redeemable by the Company in whole upon the
occurrence of certain tax events as
described in the prospectus supplement dated
the date of this agreement
Other provisions: None
Closing Date, Time and Location: November 19, 2001
10:00 a.m., New York time
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
19
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
20
SCHEDULE II
Principal Amount
of Securities to
Underwriters be Purchased
Credit Suisse First Boston Corporation....................................... $350,000,000
Bear, ▇▇▇▇▇▇▇ & Co. Inc...................................................... 350,000,000
Fleet Securities, Inc........................................................ 225,000,000
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc................................................. 25,000,000
Sandler ▇'▇▇▇▇▇ & Partners, L.P.............................................. 25,000,000
▇▇▇▇▇▇▇▇ & Partners, L.P..................................................... 5,000,000
▇▇▇▇▇▇ & Company............................................................. 5,000,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Inc.................................................... 5,000,000
▇▇▇▇▇▇▇▇ Capital Partners L.P................................................ 5,000,000
The ▇▇▇▇▇▇▇▇ Capital Group, L.P.............................................. 5,000,000
--------------
Total................................... $1,000,000,000
==============
21
SCHEDULE III
Principal Amount
of Delayed
Underwriters Delivery Contracts
Not applicable
22
SCHEDULE IV
UNITED KINGDOM
Each Underwriter represents and agrees that it and each of its
affiliates: (a) has not offered or sold and, prior to the expiry of the period
of six months from the time to closing, will not offer or sell any of the
Securities to persons in the United Kingdom except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995, (b) has complied and will comply with all
applicable provisions of the Financial Services Act 1986 (and, after they come
into force, all applicable provisions of the Financial Services and Markets Act
2000 ("FSMA")) with respect to anything done by it in relation to the Securities
in, from or otherwise involving the United Kingdom, and (c) has only issued or
passed on, and will only issue or pass on, in the United Kingdom, before the
repeal of section 57 of the Financial Services Act 1986, any document received
by it in connection with the issue of the Securities to a person who is of a
kind described in Article 11(3) of the Financial Services Act 1986 (Investment
Advertisements) (Exemptions) Order 1996, or is a person to whom such document
may otherwise lawfully be issued or passed on. After the repeal of section 57 of
the Act it will have only communicated or caused to be communicated and will
only communicate or cause to be communicated any invitation or inducement to
engage in investment activity (within the meaning of section 21 of the FSMA)
received by it in connection with the issue or sale of senior notes in
circumstances in which section 21(1) of the FSMA does not apply to us.
CANADA
Resale Restrictions
The distribution of the Securities in Canada is being made only on a
private placement basis exempt from the requirement that we prepare and file a
prospectus with the securities regulatory authorities in each province where
trades of Securities are made. Any resale of the Securities in Canada must be
made under applicable securities laws, which will vary depending on the relevant
jurisdiction, and which may require resales to be made under available statutory
exemptions or under a discretionary exemption granted by the applicable Canadian
securities regulatory authority. Purchasers are advised to seek legal advice
prior to any resale of the Securities.
Representations of Purchasers
By purchasing Securities in Canada and accepting a purchase
confirmation a purchaser is representing to us and the dealer from whom the
purchase confirmation is received that
- the purchaser is entitled under applicable provincial securities laws to
purchase the securities without the benefit of a prospectus qualified under
those securities laws,
- where required by law, that the purchaser is purchasing as principal and not
as agent, and
23
- the purchaser has reviewed the text above under Resale Restrictions.
Rights of Action (Ontario Purchasers)
The Securities being offered are those of a foreign issuer and Ontario
purchasers will not receive the contractual right of action prescribed by
Ontario securities law. As a result, Ontario purchasers must rely on other
remedies that may be available, including common law rights of action for
damages or rescission or rights of action under the civil liability provisions
of the U.S. federal securities laws.
Enforcement of Legal Rights
All of the issuer's directors and officers as well as the experts named
herein may be located outside of Canada and, as a result, it may not be possible
for Canadian purchasers to effect service of process within Canada upon the
issuer or such persons. All or a substantial portion of the assets of the issuer
and such persons may be located outside of Canada and, as a result, it may not
be possible to satisfy a judgment against the issuer or such persons in Canada
or to enforce a judgement obtained in Canadian courts against such issuer or
persons outside of Canada.
Taxation and Eligibility for Investment
Canadian purchasers of Securities should consult their own legal and
tax advisors with respect to the tax consequences of an investment in the
Securities in their particular circumstances and about the eligibility of the
Securities for investment by the purchaser under relevant Canadian legislation.
GERMANY
In connection with the initial placement of any Securities in Germany,
each of the Underwriters represents and agrees that it has not offered or sold
and it will not offer or sell any Securities in Germany other than in compliance
with the Securities Prospectus Act (Weitpapier-Verkaufsprospektgesetz) of 13th
December, 1990 as amended, or any other law applicable in Germany governing the
issue, offering and sale of securities.
THE NETHERLANDS
Each of the Underwriters represents and agrees that it has not,
directly or indirectly, offered or sold and will not, directly or indirectly,
offer or sell in the Netherlands any Debt Securities other than to persons who
trade or invest in securities in the conduct of a profession or business (which
include banks, stockbrokers, insurance companies, pension funds, other
institutional investors and finance companies and treasury departments of large
enterprises).
THE REPUBLIC OF FRANCE
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Each of the Underwriters represents and agrees that the Securities are
being issued outside of France, and that it, in connection with the initial
distribution of the Securities, has not offered or sold and will not offer or
sell any Securities in France, and that it has not distributed and will not
distribute or cause to be distributed in France the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus or any other offering
material relating to the Securities.
JAPAN
The Securities have not been and will not be registered under the
Securities and Exchange Law of Japan and each of the Underwriters and each of
its affiliates represents and agrees that it has not offered or sold, and it
will not offer or sell, directly or indirectly, any of the Securities in or to
or for the benefit of residents of Japan or to any persons for reoffering or
resale, directly or indirectly, in Japan or to any resident of Japan, except
pursuant to an exemption from the registration requirements of the Securities
and Exchange Law available thereunder and in compliance with the other relevant
laws and regulations of Japan. The term "resident of Japan" as used in this
paragraph means any person resident in Japan, including any corporation or other
entity organized under the laws of Japan.
HONG KONG
Each of the Underwriters and each of its affiliates represents and
agrees that: (a) it has not offered or sold, and it will not offer or sell, the
Securities by means of any document to persons in Hong Kong other than persons
whose ordinary business it is to buy or sell shares or debentures, whether as a
principal or agent, or otherwise in circumstances which do not constitute an
offer to the public within the meaning of the Hong Kong Companies Ordinance
(Chapter 32 of the Laws of Hong Kong), and (b) unless it is a person permitted
to do so under the securities laws of Hong Kong, it has not issued or had in its
possession and will not issue or have in its possession for the purpose of issue
any advertisement, invitation or document relating to the Notes other than with
respect to Notes intended to be disposed of to persons outside Hong Kong or to
be disposed of in Hong Kong only to persons whose business involves the
acquisition, disposal or holding of securities, whether as principal or agent.
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