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BANK OF BOSTON CORPORATION
MEDIUM-TERM NOTES DUE
9 MONTHS OR MORE FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
December 16, 1994
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
GOLDMAN, SACHS & CO.
LEHMAN BROTHERS INC.
PAINEWEBBER INCORPORATED
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower, 10th Floor
New York, New York 10281-1310
Dear Sirs:
Bank of Boston Corporation, a Massachusetts corporation (the
"Company"), confirms its agreement with Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated, Goldman, Sachs & Co., Lehman Brothers Inc.
and PaineWebber Incorporated (each referred to as "Agent" and collectively
referred to as the "Agents", which terms for purposes of this Agreement shall
include Lehman Government Securities Inc.) with respect to the issue and sale
by the Company of its Senior Medium-Term Notes (the "Senior Notes") and
Subordinated Medium-Term Notes (the "Subordinated Notes") described herein (the
Senior Notes and the Subordinated Notes being collectively referred to as the
"Notes"). The Senior Notes are to be issued pursuant to an Indenture, dated as
of June 15, 1992 (the "Senior Indenture"), between the Company and Norwest Bank
Minnesota, National Association
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("Norwest" or the "Trustee"), as trustee. The Subordinated Notes are to be
issued pursuant to an Indenture, dated as of June 15, 1992, as supplemented by
the First Supplemental Indenture dated as of June 24, 1993 (the "Subordinated
Indenture" and, together with the Senior Indenture, the "Indentures"), between
the Company and Norwest, as trustee. As of the date hereof, the Company has
authorized the issuance and sale of up to U.S. $1,000,000,000 aggregate initial
offering price (or its equivalent, based upon the applicable exchange rate at
the time of issuance, in such foreign or composite currencies as the Company
shall designate at the time of issuance) of Notes with maturities of nine
months or more from their respective dates of issue to or through the Agents
pursuant to the terms of this Agreement.
This Agreement provides both for the sale of Notes by the Company to
the Agents as principal for resale to investors and other purchasers and for
the sale of Notes by the Company directly to investors (as may from time to
time be agreed to by the Company and the Agents), in which case the Agents will
act as agents of the Company in soliciting Note purchases.
The Company has filed with the Securities and Exchange Commission (the
"SEC") a registration statement on Form S-3 (No. 33-52571), including a
prospectus, for the registration of certain securities, including the Notes,
under the Securities Act of 1933 (the "1933 Act") and the offering thereof from
time to time in accordance with Rule 415 of the rules and regulations of the
SEC under the 1933 Act (the "1933 Act Regulations"). Such registration
statement has been declared effective by the SEC and each of the Indentures has
been qualified under the Trust Indenture Act of 1939 (the "1939 Act"). Such
registration statement (and any further registration statements which may be
filed by the Company for the purpose of registering additional Notes and in
connection with which this Agreement is included or incorporated by reference
as an exhibit) and the prospectus constituting a part thereof, and any
prospectus supplements relating to the Notes, including all documents
incorporated therein by reference, as from time to time amended or supplemented
by the filing of documents pursuant to the Securities Exchange Act of 1934 (the
"1934 Act") or the 1933 Act or otherwise, are referred to herein as the
"Registration Statement" and the "Prospectus", respectively, except that if any
revised prospectus shall be provided to the Agents by the Company for use in
connection with the offering of the Notes, whether or not such revised
prospectus is required to be filed by the Company pursuant to Rule 424(b) of
the 1933 Act Regulations, the term "Prospectus" shall refer to such revised
prospectus from and after the time it is first provided to the Agents for such
use.
SECTION 1. Appointment as Agents.
(a) Appointment. Subject to the terms and conditions stated
herein and subject to the reservation by the Company of the right to sell Notes
directly on its own behalf or through an affiliate of the Company in those
jurisdictions where the Company or such affiliate is authorized to do so, the
Company hereby agrees that Notes will be sold exclusively to or through the
Agents except as otherwise described below. Each Agent is authorized to engage
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the services of any other broker or dealer in connection with the offer or sale
of the Notes purchased by such Agent as principal for resale to others but is
not authorized to appoint sub-agents. In connection with sales by an Agent of
Notes purchased by such Agent as principal to other brokers or dealers, such
Agent may allow any portion of the discount it has received in connection with
such purchase from the Company to such brokers or dealers. Each Agent is
acting in connection with the Notes individually and not collectively or
jointly. The Company agrees that, during the period the Agents are acting as
the Company's agents hereunder, unless otherwise agreed, the Company will not
appoint other agents (other than an affiliate of the Company) to act on its
behalf, or to assist it, in the placement of the Notes unless the Company has
entered into an agreement or agreements substantially similar to this Agreement
with such agent or agents and has notified the Agents prior to entering into
any such substantially similar agreement.
(b) Sale of Notes. The Company shall not sell or approve the
solicitation of purchases of Notes in excess of the amount which shall be
authorized by the Company from time to time or in excess of the principal
amount of Notes registered pursuant to the Registration Statement. The Agents
will have no responsibility for maintaining records with respect to the
aggregate principal amount of Notes sold, or of otherwise monitoring the
availability of Notes for sale, under the Registration Statement.
(c) Purchases as Principal. The Agents shall not have any
obligation to purchase Notes from the Company as principal, but the Agents may
agree from time to time to purchase Notes as principal. Any such purchase of
Notes by an Agent as principal shall be made in accordance with Section 3(a)
hereof.
(d) Solicitations as Agents. If agreed upon by an Agent and the
Company, such Agent, acting solely as an agent for the Company and not as
principal, will solicit purchases of the Notes. The Agent will communicate to
the Company, orally, each offer to purchase Notes solicited by such Agent on an
agency basis, other than those offers rejected by such Agent. Each Agent shall
have the right, in its discretion reasonably exercised, to reject any proposed
purchase of Notes, as a whole or in part, and any such rejection shall not be
deemed a breach of such Agent's agreement contained herein. The Company may
accept or reject any proposed purchase of Notes, in whole or in part. Each
Agent shall make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Notes has been solicited
by the Agent and accepted by the Company. Each Agent shall not have any
liability to the Company in the event any such agency purchase is not
consummated for any reason. If the Company shall default on its obligation to
deliver Notes to a purchaser whose offer it has accepted, the Company shall (i)
hold the Agent harmless against any loss, claim or damage arising from or as a
result of such default by the Company and (ii) notwithstanding such default,
pay to the Agent any commission to which it would be entitled in connection
with such sale.
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(e) Reliance. The Company and the Agents agree that any Notes
purchased by the Agents shall be purchased, and any Notes the placement of
which an Agent arranges shall be placed by such Agent, in reliance on the
representations, warranties, covenants and agreements of the Company contained
herein and on the terms and conditions and in the manner provided herein.
SECTION 2. Representations and Warranties.
(a) The Company represents and warrants to each Agent as of the
date hereof, as of the date of each acceptance by the Company of an offer for
the purchase of Notes (whether from the Agent as principal or through the Agent
as agent), as of the date of each delivery of Notes (whether to such Agent as
principal or through such Agent as agent) (the date of each such delivery to an
Agent as principal being hereafter referred to as a "Settlement Date"), and as
of any time that the Registration Statement or the Prospectus shall be amended
or supplemented or there is filed with the SEC any document incorporated by
reference into the Prospectus (each of the times referenced above being
referred to herein as a "Representation Date") as follows:
(i) Due Incorporation. The Company is a corporation duly
organized, validly existing and in good standing under the laws of The
Commonwealth of Massachusetts with corporate power and authority under
such laws to own, lease and operate its properties and conduct its
business as described in the Prospectus; the Company is duly
registered as a bank holding company under the Bank Holding Company
Act of 1956, as amended.
(ii) Subsidiaries. Each of The First National Bank of
Boston ("FNBB"), Casco Northern Bank, N.A. ("Casco"), and Rhode Island
Hospital Trust National Bank ("Hospital Trust") is a duly organized
and validly existing national banking association under the laws of
the United States, continues to hold a valid certificate to do
business as such and has full power and authority to conduct its
business as such; Bank of Boston Connecticut is a duly organized and
validly existing state-chartered banking association under the laws of
the State of Connecticut, continues to hold a valid certificate to do
business as such and has full power and authority to conduct its
business as such; Bank of Vermont is a duly organized and validly
existing state-chartered banking association under the laws of the
State of Vermont, continues to hold a valid certificate to do business
as such and has full power and authority to conduct its business as
such (FNBB, Casco, Hospital Trust, Bank of Boston Connecticut and Bank
of Vermont are referred to collectively as the "Significant
Subsidiaries"); each Significant Subsidiary has the authority under
its jurisdiction of organization to own, lease and operate its
properties and to conduct its business. The Company does not have any
subsidiaries which are material to its business, except to
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the extent that one or more of the Significant Subsidiaries may be
deemed to be so material.
(iii) Qualification. The Company is duly qualified as a
foreign corporation, and each of the Significant Subsidiaries is duly
authorized, to transact business and is in good standing in each
jurisdiction in which it owns or leases property of a nature, or
transacts business of a type, that would make such qualification
necessary, except to the extent that the failure to so qualify or be
in good standing would not have a material adverse effect on the
Company and its subsidiaries, considered as one enterprise.
(iv) Registration Statement and Prospectus. The Company
meets the requirements for use of Form S-3 under the 1933 Act and will
meet such requirements as of the applicable filing date as to any
supplement to the Prospectus. At the time the Registration Statement
became effective, the Registration Statement complied, and as of each
applicable Representation Date will comply, in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and
the 1939 Act and the rules and regulations of the SEC promulgated
thereunder. The Registration Statement, at the time it became
effective, did not, and at each time thereafter at which any amendment
to the Registration Statement becomes effective or any Annual Report
on Form 10-K is filed by the Company with the SEC and as of each
Representation Date, will not, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
The Prospectus, as of the date hereof does not, and as of each
Representation Date will not, include an 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
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by the Agents expressly for use in
the Registration Statement or Prospectus. As of each applicable
Representation Date, the Indentures will comply in all material
respects with the requirements of the 1939 Act and the rules and
regulations of the SEC promulgated thereunder.
(v) Incorporated Documents. The documents incorporated
by reference in the Prospectus pursuant to Item 12 of Form S-3 under
the 1933 Act, at the time they were or hereafter are filed with the
SEC, complied or when so filed will comply, as the case may be, in all
material respects with the requirements of the 1934 Act and the rules
and regulations promulgated thereunder (the "1934 Act Regulations"),
and, when read together and with the other information in the
Prospectus, did not and will not include an untrue statement of a
material fact or omit to state a mate-
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rial fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under which
they were or are made, not misleading.
(vi) Financial Statements. The consolidated financial
statements included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the consolidated financial
position of the Company and its subsidiaries as of the dates indicated
and the consolidated results of operations and cash flows of the
Company and its subsidiaries for the periods specified. Such
financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis
throughout the periods involved, except as disclosed in the notes to
such financial statements. The financial statement schedules, if any,
included in the Registration Statement present fairly the information
required to be stated therein.
(vii) Authorization and Validity of this Agreement, the
Indenture and the Notes. This Agreement has been duly authorized,
executed and delivered by the Company and, upon execution and delivery
by the Agents, will be a valid and legally binding agreement of the
Company; each of the Indentures has been duly authorized, executed and
delivered by the Company and, assuming each Indenture has been duly
authorized, executed and delivered by the Trustee, constitutes a valid
and binding obligation of the Company, 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 similar laws affecting enforcement
of creditors' rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether
enforcement is
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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;
the Notes have been duly and validly authorized for issuance, offer
and sale pursuant to this Agreement and, when executed, authenticated
and delivered in the manner provided for in the applicable Indenture
and issued and paid for in accordance with the provisions of this
Agreement, the Notes will constitute valid and legally binding
obligations of the Company enforceable against the Company in
accordance with their terms, except as enforcement thereof may be
limited by the receivership, conservatorship and supervisory powers of
bank regulatory agencies generally as well as bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law)
and the availability of equitable remedies, and except further as
enforcement thereof may be limited by (i) requirements that a claim
with respect to any Notes denominated other than in U.S. dollars (or a
foreign currency or currency unit judgment in respect of such claim)
be converted into U.S. dollars at a rate of exchange prevailing on a
date determined pursuant to applicable law or (ii) governmental
authority to limit, delay or prohibit the making of payments outside
the United States; the Notes and the Indentures will be substantially
in the form heretofore delivered to the Agents and conform in all
material respects to all statements relating thereto contained in the
Prospectus; and each holder of Notes will be entitled to the benefits
of the applicable Indenture.
(viii) Material Changes or Material Transactions. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein or
contemplated thereby and, except for normal recurring dividends on the
outstanding common stock and preferred stock of the Company, there has
not been (a) any material adverse change in the condition (financial
or otherwise), earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business, (b) any transaction
entered into by the Company or any subsidiary, other than in the
ordinary course of business, that is material to the Company and its
subsidiaries, considered as one enterprise, or (c) any dividend or
distribution of any kind declared, paid or made by the Company on its
capital stock.
(ix) No Defaults; Regulatory Approvals. Neither the
Company nor any Significant Subsidiary is in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which it is
a party or by which it may be bound or to which any of its properties
may be subject, except for such defaults 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. The execution and
delivery of this Agreement and the Indentures and the consummation of
the transactions contemplated herein and therein and in the
Registration Statement, and compliance by the Company with the terms
of this Agreement and the Indentures, have been duly authorized by all
necessary corporate action on the part of the Company and do not and
will not result in any violation of the charter or by-laws of the
Company or of any Significant Subsidiary, and do not and will not
conflict with, or result in a breach of any of the terms or provisions
of, or constitute default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any Significant Subsidiary under, (a) any
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which the Company or any Significant Subsidiary is a
party or by which it may be bound or to which any of its
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properties may be subject (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) or (b) any existing
applicable law, rule, regulation, judgment, order or decree of any
government, governmental instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any Significant
Subsidiary or any of its properties. Each authorization, approval,
consent or license of any government, governmental instrumentality or
court, domestic or foreign (other than under the 1933 Act, the 1939
Act and the securities or blue sky laws of the various states), which
is required for (A) the valid authorization, issuance, sale and
delivery of the Notes or (B) the execution, delivery or performance of
this Agreement or the Indentures by the Company has been received.
(x) Legal Proceedings; Contracts. Except as disclosed in
the Prospectus, there is no action, suit or proceeding before or by
any government, government instrumentality or court, domestic or
foreign, now pending, or, to the knowledge of the Company, threatened
against or affecting the Company or any Significant Subsidiary that is
required to be disclosed in the Prospectus or that, in the final
outcome, could, in the judgment of the Company, result in any material
adverse change in the condition (financial or otherwise), earnings,
business affairs or business prospects of the Company and its
subsidiaries, considered as one enterprise, or that could materially
and adversely affect the properties or assets of the Company and its
subsidiaries, considered as one enterprise, or that could adversely
affect the consummation of the transactions contemplated in this
Agreement; the aggregate liability or loss, if any, resulting from the
final outcome of all pending legal or governmental proceedings to
which the Company or any Significant Subsidiary is a party or which
affect any of its properties that are not described in the Prospectus,
including ordinary routine litigation incidental to its business,
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 there
are no contracts or documents of a character required to be described
in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described and
filed as required.
(xi) Properties. The Company and the Significant
Subsidiaries each has good and marketable title to all properties and
assets described in the Prospectus as owned by it, free and clear of
all liens, charges, encumbrances or restrictions, except such as (a)
are described in the Prospectus or (b) are neither material in amount
nor materially significant in relation to the business of the Company
and its subsidiaries, considered as one enterprise; all of the leases
and subleases material to the business of the Company and its
subsidiaries, considered as one enterprise, and under which the
Company or any Significant Subsidiary holds properties described in
the Prospectus,
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are in full force and effect, and neither the Company nor any
Significant Subsidiary has any notice of any material claim of any
sort that has been asserted by anyone adverse to the rights of the
Company or any Significant Subsidiary under any of the leases or
subleases mentioned above, or affecting or questioning the rights of
such corporation to the continued possession of the leased or
subleased premises under any such lease or sublease.
(xii) Licenses. The Company and the Significant
Subsidiaries each owns or possesses or has obtained all material
governmental licenses, permits, certificates, consents, orders,
approvals and other authorizations necessary to lease or own, as the
case may be, and to operate its properties and to carry on its
business as presently conducted, and neither the Company nor any
Significant Subsidiary has received any notice of proceedings relating
to the revocation or modification of any such licenses, permits,
certificates, consents, orders, approvals or authorizations that, in
the aggregate, if the subject of an unfavorable decision, ruling or
finding, could materially adversely affect the condition (financial or
otherwise), earnings, business affairs or business prospects of the
Company and its subsidiaries, considered as one enterprise.
(xiii) Patents; Trademarks. The Company and the Significant
Subsidiaries each owns or possesses, or can acquire on reasonable
terms, adequate patents, patent licenses, trademarks, service marks
and trade names necessary to carry on their businesses as presently
conducted, and neither the Company nor any of the Significant
Subsidiaries has received any notice of infringement of or conflict
with asserted rights of others with respect to any patents, patent
licenses, trademarks, service marks or trade names that, in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, could materially adversely affect the condition (financial or
otherwise), earnings, business affairs or business prospects of the
Company and its subsidiaries, considered as one enterprise.
(xiv) Labor. To the best knowledge of the Company, no
labor problem exists with its employees or with employees of the
Significant Subsidiaries or is imminent that could adversely affect
the Company and its subsidiaries, considered as one enterprise, and
the Company is not aware of any existing or imminent labor disturbance
by the employees of any of its or the Significant Subsidiaries'
principal suppliers, contractors or customers that could be expected
to materially adversely affect the condition (financial or otherwise),
earnings, business affairs or business prospects of the Company and
its subsidiaries, considered as one enterprise.
(xv) Doing Business with Cuba. The Company has complied
and will comply with all applicable provisions of Florida H.B. 1771,
codified as Section 517.075 of the Florida Statutes, 1987, as amended,
and all applicable regulations promulgated thereunder relating to
issuers doing business in Cuba.
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(b) Additional Certifications. Any certificate signed by any
director or officer of the Company and delivered to the Agents or to counsel
for the Agents in connection with an offering of Notes through an Agent as
agent or the sale of Notes to an Agent as principal shall be deemed a
representation and warranty by the Company to the Agents as to the matters
covered thereby on the date of such certificate and at each Representation Date
subsequent thereto.
SECTION 3. Purchases as Principal; Solicitations as Agents.
(a) Purchases as Principal. Unless otherwise agreed by an Agent
and the Company, Notes shall be purchased by the Agent as principal. Such
purchases shall be made in accordance with terms agreed upon by the Agent and
the Company with respect to such information (as applicable) as is specified in
Exhibit A hereto (which terms, unless otherwise agreed, shall be agreed upon
orally, with written confirmation prepared by the Agent and mailed or sent via
facsimile transmission to the Company). Each Agent's commitment to purchase
Notes as principal 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. Each purchase of Notes,
unless otherwise agreed, shall be at a discount from the principal amount of
each such Note equivalent to the applicable commission set forth in Schedule I
hereto. The Agent may engage the services of any other broker or dealer in
connection with the resale of the Notes purchased as principal and may allow
any portion of the discount received in connection with such purchases from the
Company to such brokers and dealers. At the time of each purchase of Notes by
an Agent as principal, the Agent shall specify the requirements for the
stand-off agreement, officer's certificate, opinion of counsel and comfort
letter pursuant to Sections 4(j), 7(b), 7(c) and 7(d) hereof.
(b) Solicitations as Agents. On the basis of the representations
and warranties herein contained, but subject to the terms and conditions herein
set forth, when agreed by the Company and an Agent, such Agent, as an agent of
the Company, will use its reasonable efforts to solicit offers to purchase the
Notes upon the terms and conditions set forth herein and in the Prospectus.
All Notes sold through an Agent as agent will be sold at 100% of their
principal amount unless otherwise agreed to by the Company and such Agent.
The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through the Agents, as agents,
commencing at any time for any period of time or permanently. Upon receipt of
instructions from the Company, the Agents will forthwith suspend solicitation
of purchases from the Company until such time as the Company has advised the
Agents that such solicitation may be resumed.
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The Company agrees to pay each Agent a commission, in the form of a
discount, equal to the applicable percentage of the principal amount of each
Note sold by the Company as a result of a solicitation made by such Agent as
set forth in Schedule I hereto.
(c) Administrative Procedures. The purchase price, interest rate
or formula, maturity date and other terms of the Notes (as applicable)
specified in Exhibit A hereto shall be agreed upon by the Company and the
applicable Agent and set forth in a pricing supplement to the Prospectus to be
prepared in connection with each sale of Notes. Except as may be otherwise
provided in such supplement to the Prospectus, the Notes will be issued in
denominations of U.S.$1,000 or any larger amount that is an integral multiple
of U.S.$1,000. Administrative procedures with respect to the sale of Notes
shall be agreed upon from time to time by the Agents, the Company and the
Trustee (the "Procedures"). The Agents and the Company agree to perform the
respective duties and obligations specifically provided to be performed by them
in the Procedures.
SECTION 4. Covenants of the Company.
The Company covenants with each Agent as follows:
(a) Notice of Certain Events. The Company will notify the Agents
promptly (i) of the effectiveness of any amendment to the Registration
Statement, (ii) of the transmittal to the SEC for filing of any supplement to
the Prospectus, (iii) of the receipt of any comments from the SEC with respect
to the Registration Statement or the Prospectus, (iv) of any request by the SEC
for any amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for additional information, and (v) of the issuance by the
SEC of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose. The Company
will make every reasonable effort to prevent the issuance of any stop order
and, if any stop order is issued, to obtain the lifting thereof at the earliest
possible moment.
(b) Notice of Certain Proposed Filings. The Company will give the
Agents advance notice of its intention to file or prepare any additional
registration statement with respect to the registration of additional Notes,
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus (other than through (i) the incorporation of information by
reference or (ii) by an amendment or supplement providing solely for a change
in the interest rates of Notes or similar changes or an amendment or supplement
which relates exclusively to an offering of debt securities other than the
Notes). The Company will furnish the Agents with copies of any such additional
registration statement and any such amendment or supplement proposed to be
filed or prepared a reasonable time in advance of such proposed filing or
preparation, as the case may be, and will not file any such additional
registration statement or amendment or supplement or other documents in a form
to which the Agents or counsel for the Agents shall reasonably object.
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(c) Copies of the Registration Statement and the Prospectus. The
Company will deliver to the Agents as many signed and conformed copies of the
Registration Statement (as originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein, if
specifically requested by an Agent, and documents incorporated by reference in
the Prospectus) as the Agents may reasonably request. The Company will furnish
to the Agents as many copies of the Prospectus (as amended or supplemented) as
the Agents shall reasonably request so long as the Agents are required to
deliver a Prospectus in connection with sales or solicitations of offers to
purchase the Notes.
(d) Preparation of Pricing Supplements. The Company will prepare,
with respect to any Notes to be sold through or to the Agents pursuant to this
Agreement, a Pricing Supplement with respect to such Notes in a form previously
approved by the Agents and will file such Pricing Supplement pursuant to Rule
424(b)(3) under the 1933 Act not later than the close of business of the SEC on
the fifth business day after the date on which such Pricing Supplement is first
used.
(e) Revisions of Prospectus -- Material Changes. Except as
otherwise provided in subsection (k) of this Section 4, if at any time during
the term of this Agreement any event shall occur or condition exist as a result
of which it is necessary, in the opinion of counsel for the Agents and counsel
for the Company, to amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time the
Prospectus is delivered to a purchaser, or if it shall be necessary, in the
reasonable opinion of both such counsel, to amend or supplement the
Registration Statement or the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, prompt notice shall
be given, and confirmed in writing, to the Agents to cease the solicitation of
offers to purchase the Notes in their capacity as agents and to cease sales of
any Notes the Agents may then own as principal, and the Company will promptly
amend the Registration Statement and the Prospectus, whether by filing
documents pursuant to the 1934 Act, the 1933 Act or otherwise, as may be
necessary to correct such untrue statement or omission or to make the
Registration Statement and Prospectus comply with such requirements. The
Agents shall, at such time as the Company shall have furnished to the Agents an
amended or supplemental Prospectus satisfactory to the Agents and their
counsel, resume solicitation of offers to purchase the Notes using the
Prospectus as so amended or supplemented.
(f) Prospectus Revisions -- Periodic Financial Information.
Except as otherwise provided in subsection (k) of this Section 4, on or prior
to the date on which there shall be released to the general public interim
financial statement information related to the Company with respect to each of
the first three quarters of any fiscal year or preliminary financial statement
information with respect to any fiscal year, the Company shall cause the
Prospectus
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to be amended or supplemented to include or incorporate by reference financial
information with respect thereto and corresponding information for the
comparable period of the preceding fiscal year, as well as such other
information and explanations as shall be necessary for an understanding thereof
or as shall be required by the 1933 Act or the 1933 Act Regulations.
(g) Earnings Statements. The Company will make generally
available to its security holders as soon as practicable, but not later than 90
days after the close of the period covered thereby, an earnings statement (in
form complying with the provisions of Rule 158 under the 1933 Act) covering
each twelve month period beginning, in each case, not later than the first day
of the Company's fiscal quarter next following the "effective date" (as defined
in such Rule 158) of the Registration Statement with respect to each sale of
Notes.
(h) Blue Sky Qualifications. The Company will endeavor, in
cooperation with the Agents, to qualify the Notes for offering and sale under
the applicable securities laws of such states and other jurisdictions of the
United States as the Agents may designate, and will maintain such
qualifications in effect for as long as may be required for the distribution of
the Notes; 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. The Company will file such statements and reports
as may be required by the laws of each jurisdiction in which the Notes have
been qualified as above provided. The Company will promptly advise the Agents
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Notes for sale in any such state or
jurisdiction or the initiating or threatening of any proceeding for such
purpose.
(i) 1934 Act Filings. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file promptly
all documents required to be filed with the SEC pursuant to Sections 13(a),
13(c), 14 or 15(d) of the 1934 Act.
(j) Stand-Off Agreement. If specified by the Agent in connection
with a purchase by it of Notes as principal, between the date of the agreement
to purchase such Notes and the Settlement Date with respect to such purchase,
the Company will not, without the prior written consent of the Agent who is a
party to such agreement, offer or sell, or enter into any agreement to sell,
any debt securities of the Company in the United States (other than the Notes
that are to be sold pursuant to such agreement and commercial paper in the
ordinary course of business).
(k) Suspension of Certain Obligations. The Company shall not be
required to comply with the provisions of subsections (e) or (f) of this
Section during any period from the time (i) the Agents shall have suspended
solicitation of purchases of the Notes in their capacity as agents pursuant to
a request from the Company and (ii) the Agents shall not then hold any
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Notes purchased as principal pursuant hereto, until the time the Company shall
determine that solicitation of purchases of the Notes should be resumed or the
Agents shall subsequently purchase Notes from the Company as principal.
SECTION 5. Conditions of Obligations.
The obligations of the Agents to purchase Notes as principal and to
solicit offers to purchase the Notes as agents of the Company, and the
obligations of any purchasers of the Notes sold through the Agents as agents,
will be subject to the accuracy of the representations and warranties on the
part of the Company herein and to the accuracy of the statements of the
Company's officers made in any certificate furnished pursuant to the provisions
hereof, to the performance and observance by the Company of all its covenants
and agreements herein contained and to the following additional conditions
precedent:
(a) Legal Opinions. On the date hereof, the Agents shall have
received the following legal opinions, dated as of the date hereof and in form
and substance satisfactory to the Agents:
(1) Opinion of Company Counsel. The opinion of Gary A.
Spiess, Esq., General Counsel of the Company, to the effect that:
(i) The Company is a corporation duly organized,
validly existing and in good standing under the laws of The
Commonwealth of Massachusetts with corporate power and
authority under such laws to own, lease and operate its
properties and conduct its business as described in the
Registration Statement and the Prospectus.
(ii) The Company is duly qualified to transact
business as a foreign corporation and is in good standing in
each jurisdiction in which it owns or leases property of a
nature, or transacts business of a type, that would make such
qualification necessary, except to the extent that the failure
to so qualify or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, considered
as one enterprise.
(iii) Each of FNBB, Casco and Hospital Trust is a
duly organized and validly existing national banking
association under the laws of the United States, continues to
hold a valid certificate to do business as such and has full
power and authority to conduct its business as such; Bank of
Boston Connecticut is a duly organized and validly existing
state-chartered banking association under the laws of the
State of Connecticut, continues to hold a valid certificate
to do business as such and has full power and authority to
conduct its business as such; Bank of Vermont is a duly
organized and validly existing state-chartered
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banking association under the laws of the State of Vermont,
continues to hold a valid certificate to do business as such
and has full power and authority to conduct its business as
such; and each Significant Subsidiary has the authority under
its jurisdiction of organization to own, lease and operate its
properties and to conduct its business.
(iv) Each Significant Subsidiary is duly qualified
to transact business and is in good standing in each
jurisdiction in which it owns or leases property of a nature,
or transacts business of a type, that would make such
qualification necessary, except to the extent that the failure
to so qualify or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, considered
as one enterprise.
(v) The Company is duly registered under the Bank
Holding Company Act of 1956, as amended; and each Significant
Subsidiary is duly authorized to conduct such banking business
in each jurisdiction in which its banking business is
conducted.
(vi) All of the outstanding shares of capital
stock of each Significant Subsidiary have been duly authorized
and validly issued and are fully paid and non-assessable;
except for directors' qualifying shares, all of such shares
are owned by the Company, directly or through one or more
subsidiaries, free and clear of any pledge, lien, security
interest, charge, claim, equity or encumbrance of any kind;
and none of such shares was issued in violation of the
preemptive rights of any stockholder of the Significant
Subsidiaries.
(vii) This Agreement has been duly and validly
authorized, executed and delivered by the Company.
(viii) The Notes have been duly authorized and, when
the global certificates representing the Notes have been duly
executed, authenticated and delivered in the manner provided
for in the applicable Indenture, and issued and paid for in
accordance with the provisions of this Agreement, the Notes
will constitute valid and binding obligations of the Company
enforceable against the Company in accordance with their
terms, except as enforcement thereof may be limited by the
receivership, conservatorship and supervisory powers of bank
regulatory agencies generally as well as bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting enforcement of creditors' rights generally or by
general equity principles (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 (A) requirements that a
claim with respect to any Notes denominated other than in
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U.S. dollars (or a foreign currency or foreign currency unit
judgment in respect of such claim) be converted into United
States dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (B) governmental
authority to limit, delay or prohibit the making of payments
in foreign currency or currency units or payments outside the
United States, and each holder of Notes will be entitled to
the benefits of the applicable Indenture.
(ix) Each Indenture has been duly authorized,
executed and delivered by the Company and, assuming the due
authorization, execution and delivery thereof by the Trustee,
constitutes a valid and binding obligation of the Company,
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 by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general equity
principles (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 (A) requirements that a claim with respect
to any Notes denominated other than in U.S. dollars (or a
foreign currency or foreign currency unit judgment in respect
of such claim) be converted into United States dollars at a
rate of exchange prevailing on a date determined pursuant to
applicable law or (B) governmental authority to limit, delay
or prohibit the making of payments in foreign currency or
currency units or payments outside the United States; and each
Indenture has been duly qualified under the 1939 Act.
(x) The Registration Statement is effective under
the 1933 Act and, to the best knowledge of such counsel, no
stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose
have been instituted or are pending or contemplated under the
1933 Act.
(xi) The Registration Statement and the
Prospectus, excluding the documents incorporated by reference
therein, and each amendment or supplement thereto (except for
the financial statements and other financial or statistical
data included therein or omitted therefrom, as to which such
counsel need express no opinion) as of their respective
effective or issue dates appear on their face to have been
appropriately responsive in all material respects to the
requirements of the 1933 Act and the 1933 Act Regulations.
(xii) The documents incorporated by reference in
the Prospectus (except for the financial statements and other
financial or statistical data included therein
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or omitted therefrom, as to which such counsel need express no
opinion, and except to the extent that any statement therein
is modified or superseded in the Prospectus), as of the dates
they were filed with the SEC and as of the date hereof, appear
on their face to have been appropriately responsive in all
material respects to the requirements of the 1934 Act and the
1934 Act Regulations.
(xiii) Each authorization, approval, consent or
license of any government, governmental instrumentality or
court, domestic or foreign (other than under the 1933 Act, the
1939 Act and the securities or blue sky laws of the various
states), which is required for (A) the valid authorization,
issuance, sale and delivery of the Notes or (B) the execution,
delivery or performance of this Agreement or the Indentures by
the Company has been received.
(xiv) Such counsel does not know of any statutes or
regulations, or any pending or threatened legal or
governmental proceedings, required to be described in the
Prospectus that are not described as required, nor of any
contracts or documents of a character required to be described
or referred to in the Prospectus or to be filed as exhibits to
the Registration Statement that are not described, referred to
or filed as required.
(xv) The descriptions in the Prospectus of the
statutes, regulations, legal or governmental proceedings,
contracts and other documents therein described are accurate
and fairly discuss in all material respects the information
required to be shown.
(xvi) To the knowledge of such counsel, no default
exists in the performance or observance of any material
obligation, agreement, covenant or condition contained in any
contract, indenture, loan agreement, note, lease or other
agreement or instrument that is described or referred to in
the Prospectus or filed as an exhibit to the Registration
Statement.
(xvii) The execution and delivery of this
Agreement and the Indentures, the consummation by the Company
of the transactions contemplated herein and therein and
compliance by the Company with the terms of this Agreement and
the Indentures do not and will not result in any violation of
the charter or by-laws of the Company or any Significant
Subsidiary and do not and will not conflict with, or result in
a breach of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the
Company or any Significant Subsidiary under (a) any indenture,
mortgage or loan agreement or any other agreement or
instrument known to such counsel, to which the
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Company or any Significant Subsidiary is a party or by which
it may be bound or to which any of its properties may be
subject (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),
(b) any existing applicable law, rule or regulation (other
than the securities or blue sky laws of the various states, as
to which such counsel need express no opinion), or (c) any
judgment, order or decree of any government, governmental
instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any Significant Subsidiary or
any of its properties.
(2) Opinion of Counsel to the Agents. The opinion of
Brown & Wood, counsel to the Agents, covering the matters referred to
in subparagraph (1) under the subheadings (i) and (vii) to (xi),
inclusive, above.
(3) In giving their opinions required by subsection
(a)(1) and (a)(2) of this Section, Gary A. Spiess, Esq. and Brown &
Wood shall each additionally state that nothing has come to their
attention that would lead them to believe that the Registration
Statement, at the time it became effective or, if an amendment to the
Registration Statement or an Annual Report on Form 10-K has been filed
by the Company with the SEC subsequent to the effectiveness of the
Registration Statement, then at the time such amendment became
effective or at the time of the most recent such filing, as the case
may be, or at the date hereof, contained or contains an untrue
statement of a material fact or omitted or omits to state a material
fact required to be stated therein or necessary in order to make the
statements therein not misleading or that the Prospectus, as amended
or supplemented at the date hereof, or (if such opinion is being
delivered in connection with the purchase of Notes by an Agent as
principal pursuant to Section 7(c) hereof) at the date of any
agreement by the Agent to purchase Notes as principal and at the
Settlement Date with respect thereto, as the case may be, included or
includes an untrue statement of a material fact or omitted or omits 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.
(b) Officers' Certificate. At the date hereof, the Agents shall
have received a certificate, dated the date hereof, of the President or Vice
President or person holding a functional title of equivalent rank and the chief
financial or chief accounting officer of the Company, to the effect that (i)
since the respective dates as of which information is given in the Registration
Statement and the Prospectus or since the date of any agreement by an Agent to
purchase Notes as principal, there has not been any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the
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ordinary course of business, (ii) the other representations and warranties of
the Company contained in Section 2 hereof are true and correct with the same
force and effect as though expressly made at and as of the date of such
certificate, (iii) the Company has performed or complied with all agreements
and satisfied all conditions on its part to be performed or satisfied at or
prior to the date of such certificate, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been initiated or threatened by the SEC.
(c) Comfort Letter. On the date hereof, the Agents shall have
received a letter from Coopers & Lybrand, dated as of the date hereof and in
form and substance satisfactory to the Agents, to the effect that:
(i) They are independent public accountants with respect
to the Company and its subsidiaries within the meaning of the 1933 Act
and the applicable published 1933 Act Regulations.
(ii) In their opinion, the audited consolidated financial
statements and the related consolidated financial statement schedules
of the Company and its subsidiaries included or incorporated by
reference in the Company's most recently filed annual report on Form
10-K comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations
with respect to registration statements on Form S-3 and the 1934 Act
and the 1934 Act Regulations with respect to annual reports on Form
10-K.
(iii) On the basis of procedures (but not an examination in
accordance with generally accepted auditing standards) consisting of a
reading of the minutes of all meetings of the stockholders and
directors of the Company and of FNBB and the minutes of meetings of
the Executive, Audit and Compensation and Nominating Committees of the
Board of Directors of the Company from the date of the latest audited
consolidated financial statements of the Company, a reading of the
unaudited consolidated financial statements of the Company and its
subsidiaries included or incorporated by reference in each of the
Company's quarterly reports on Form 10-Q filed prior to the date
hereof and subsequent to the Form 10-K described in (ii) above, a
reading of the most recent consolidated financial statement of the
Company, and inquiries of certain officials of the Company and its
subsidiaries responsible for financial and accounting matters, all
such inquiries and procedures being carried out to a specified date
not more than five business days prior to the date of the letter,
nothing came to their attention that caused them to believe that: (A)
the unaudited consolidated financial statements included or
incorporated by reference in each quarterly report on Form 10-Q do not
comply as to form in all material respects with the applicable
accounting requirements of the 1934 Act and the 1934 Act Regulations
with respect to Form 10-Q, or (B) such unaudited consolidated
financial statements are not in
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conformity with generally accepted accounting principles applied on a
basis substantially consistent with that of the audited consolidated
financial statements referred to above, except as disclosed in the
notes to such unaudited consolidated financial statements or as
otherwise described in such letter, or (C) there was any increase at
the specified date in the consolidated notes payable of the Company
and its consolidated subsidiaries or any increase in the number of
outstanding shares of common stock, perpetual preferred stock or other
capital securities of the Company acceptable to the Company's primary
federal regulator, or any decrease in the stockholder's equity of the
Company, in each case as compared with the amounts shown on the most
recent balance sheet of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement, except in
each case for changes, decreases or increases that the Registration
Statement discloses have occurred or may occur, or which are disclosed
in the letter, or (D) for the period from the date of the latest
consolidated balance sheet of the Company and its subsidiaries
included or incorporated by reference in the Prospectus to such
specified date, there was any decrease in the Company's consolidated
net interest revenue or increase in consolidated non-interest expense,
in each case as compared with the comparable period in the preceding
year, except in each case for any increases or decreases that the
Registration Statement discloses have occurred or may occur, or which
are disclosed in the letter.
(iv) Such letter shall further state that, in addition to
their examinations, inspections, inquiries and other procedures
referred to therein, they have performed such other procedures,
specified by the Agents, not constituting an audit, as they have
agreed to perform and report on with respect to certain amounts,
percentages, numerical data and other financial information in the
most recently filed Form 10-K, each Form 10-Q incorporated by
reference in the Registration Statement, the Prospectus and the
exhibits to the Registration Statement or in other documents
incorporated by reference in the Prospectus, and have compared certain
of such amounts, percentages, numerical data and financial information
with, and have found such items to be in agreement with or derived
from, the detailed accounting and financial records of the Company and
its subsidiaries.
(d) Other Documents. On the date hereof and on each Settlement
Date, counsel to the Agents shall have been furnished with such documents and
opinions as such counsel may reasonably require for the purpose of enabling
such counsel to pass upon the issuance and sale of Notes as herein contemplated
and related proceedings, or in order to evidence the accuracy and completeness
of any of the representations and warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of Notes as herein contemplated shall be
satisfactory in form and substance to the Agents and to counsel to the Agents.
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If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement (or, at the
option of the Agent, any applicable agreement by an Agent to purchase Notes as
principal) may be terminated by the Agents by notice to the Company at any time
and any such termination shall be without liability of any party to any other
party, except that the covenant regarding provision of an earnings statement
set forth in Section 4(g) hereof, the provisions concerning payment of
expenses under Section 10 hereof, the indemnity and contribution agreements set
forth in Sections 8 and 9 hereof, the provisions concerning the
representations, warranties and agreements to survive delivery of Section 11
hereof, the provisions relating to governing law set forth in Section 14 and
the provisions set forth under "Parties" of Section 15 hereof shall remain in
effect.
SECTION 6. Delivery of and Payment for Notes Sold through an Agent.
Delivery of Notes sold through an Agent as agent shall be made by the
Company to such Agent for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, the Agent shall promptly notify the Company and deliver
the Note to the Company, and, if the Agent has theretofore paid the Company for
such Note, the Company will promptly return such funds to the Agent. If such
failure occurred for any reason other than default by the applicable Agent in
the performance of its obligations hereunder, the Company will reimburse such
Agent on an equitable basis for its loss of the use of the funds for the period
such funds were credited to the Company's account.
SECTION 7. Additional Covenants of the Company.
The Company covenants and agrees with each Agent that:
(a) Reaffirmation of Representations and Warranties. Each
acceptance by it of an offer for the purchase of Notes (whether to an Agent as
principal or through the Agent as agent), and each delivery of Notes to an
Agent (whether to an Agent as principal or through an Agent as agent), shall be
deemed to be an affirmation that the representations and warranties of the
Company contained in this Agreement and in any certificate theretofore
delivered to the Agent pursuant hereto are true and correct at the time of such
acceptance or sale, as the case may be, and an undertaking that such
representations and warranties will be true and correct at the time of delivery
to the purchaser or its agent, or to the applicable Agent, of the Note or Notes
relating to such acceptance or sale, as the case may be, as though made at and
as of each such time (and it is understood that such representations and
warranties shall relate to the Registration Statement and Prospectus as amended
and supplemented to each such time).
(b) Subsequent Delivery of Certificates. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented
(other than by an amendment
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or supplement providing solely for a change in the interest rates of Notes or
similar changes, and, unless the Agents shall otherwise specify, other than by
an amendment or supplement which relates exclusively to an offering of debt
securities other than the Notes), (ii) there is filed with the SEC any document
incorporated by reference into the Prospectus (other than any Current Report on
Form 8-K relating exclusively to the issuance of debt securities under the
Registration Statement, unless the Agents shall otherwise specify), (iii) (if
required in connection with the purchase of Notes by an Agent as principal) the
Company sells Notes to an Agent as principal or (iv) if the Company issues and
sells Notes in a form not previously certified to the Agents by the Company,
the Company shall furnish or cause to be furnished to the Agents forthwith a
certificate dated the date of filing with the SEC of such supplement or
document, the date of effectiveness of such amendment, or the date of such
sale, as the case may be, in form satisfactory to the Agents to the effect that
the statements contained in the certificate referred to in Section 5(b) hereof
which was last furnished to the Agents are true and correct at the time of such
amendment, supplement, filing or sale, as the case may be, as though made at
and as of such time (except that such statements shall be deemed to relate to
the Registration Statement and the Prospectus as amended and supplemented to
such time) or, in lieu of such certificate, a certificate of the same tenor as
the certificate referred to in said Section 5(b), modified as necessary to
relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such certificate.
(c) Subsequent Delivery of Legal Opinions. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented
(other than by an amendment or supplement providing solely for a change in the
interest rates of the Notes or similar changes or solely for the inclusion of
additional financial information, and, unless the Agents shall otherwise
specify, other than by an amendment or supplement which relates exclusively to
an offering of debt securities other than the Notes), (ii) there is filed with
the SEC any document incorporated by reference into the Prospectus (other than
any Current Report on Form 8-K, unless the Agent shall otherwise specify),
(iii) (if required in connection with the purchase of Notes by an Agent as
principal) the Company sells Notes to an Agent as principal or (iv) if the
Company issues and sells Notes in a form not previously certified to the Agents
by the Company, the Company shall furnish or cause to be furnished forthwith to
the Agents and to counsel to the Agents a written opinion of Gary A. Spiess,
Esq., General Counsel of the Company, or other counsel satisfactory to the
Agents dated the date of filing with the SEC of such supplement or document,
the date of effectiveness of such amendment, or the date of such sale, as the
case may be, in form and substance satisfactory to the Agents, of the same
tenor as the opinion referred to in Sections 5(a)(1) and 5(a)(3) hereof, but
modified, as necessary, to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such opinion;
or, in lieu of such opinion, counsel last furnishing such opinion to the Agents
shall furnish the Agents with a letter to the effect that the Agents may rely
on such last opinion to the same extent as though it was dated the date of such
letter authorizing reliance (except that statements in such last opinion shall
be deemed to
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relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such letter authorizing reliance).
(d) Subsequent Delivery of Comfort Letters. Each time that (i)
the Registration Statement or the Prospectus shall be amended or supplemented
to include additional financial information or there is filed with the SEC any
document incorporated by reference into the Prospectus which contains
additional financial information, or (ii) (if required in connection with the
purchase of Notes by an Agent as principal) the Company sells Notes to an Agent
as principal, the Company shall cause Coopers & Lybrand forthwith to furnish
the Agents a letter, dated the date of effectiveness of such amendment,
supplement or document with the SEC, or the date of such sale, as the case may
be, in form satisfactory to the Agents, of the same tenor as the portions of
the letter referred to in clauses (i) and (ii) of Section 5(c) hereof but
modified to relate to the Registration Statement and Prospectus, as amended and
supplemented to the date of such letter, and of the same general tenor as the
portions of the letter referred to in clauses (iii) and (iv) of said Section
5(c) with such changes as may be necessary to reflect changes in the financial
statements and other information derived from the accounting records of the
Company.
SECTION 8. Indemnification.
(a) Indemnification of the Agents. The Company agrees to
indemnify and hold harmless each Agent and each person, if any, who controls
each Agent within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in
the Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of
the Company; and
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(iii) against any and all expense whatsoever, as incurred,
(including the fees and disbursements of counsel chosen by the Agents)
reasonably incurred in investigating, preparing or defending against
any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above.
provided, however, that this indemnity agreement does not apply to any loss,
liability, claim, damage or expense to the extent arising out of an untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Agents expressly for use in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto);
(b) Indemnification of Company. Each Agent severally agrees to
indemnify and hold harmless the Company, its directors, each of its officers
who signed the Registration Statement, and each person, if any, who controls
the Company within the meaning of Section 15 of the 1933 Act against any and
all loss, liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto) or the Prospectus
(or any amendment or supplement thereto) in reliance upon and in conformity
with written information furnished to the Company by the Agents expressly for
use in the Registration Statement (or any amendment thereto) or the Prospectus
(or any amendment or supplement thereto).
(c) General. Each indemnified party shall give prompt notice to
each indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which it may
have otherwise than on account of this indemnity agreement. An indemnifying
party may participate at its own expense in the defense of such action. In no
event shall the indemnifying parties be liable for the fees and expenses of
more than one counsel (in addition to any local counsel) for all indemnified
parties in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances.
SECTION 9. Contribution.
In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 8 hereof
is for any reason held to be unavailable to or insufficient to hold harmless
the indemnified parties although applicable in accordance with its terms, the
Company and the Agents shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by said indemnity
agreement
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incurred by the Company and the Agents, as incurred, in such proportions that
each Agent is responsible for that portion represented by the percentage that
the total commissions and underwriting discounts received by such Agent to the
date of such liability bears to the total sales price from the sale of Notes
sold to or through such Agent to the date of such liability, and the Company is
responsible for the balance; provided, however, that (i) in no case shall any
Agent be liable or responsible for any amount in excess of the total
commissions and underwriting discounts received by such Agent to the date of
such liability and (ii) no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each person, if any, who
controls each Agent within the meaning of Section 15 of the 1933 Act shall have
the same rights to contribution as such Agent, and each director of the
Company, each officer of the Company who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act shall have the same rights to contribution as the Company.
SECTION 10. Payment of Expenses.
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) The preparation and filing of the Registration Statement and
all amendments thereto and the Prospectus and any amendments or supplements
thereto;
(b) The preparation, filing and reproduction of this Agreement;
(c) The preparation, printing, issuance and delivery of the Notes,
including any fees and expenses relating to the use of book-entry notes;
(d) The fees and disbursements of the Company's accountants and
counsel, of the Trustee and its counsel, and of any Calculation Agent or
Exchange Rate Agent;
(e) The reasonable fees and disbursements of counsel to the Agents
incurred in connection with the establishment of the program relating to the
Notes and incurred from time to time in connection with the transactions
contemplated hereby;
(f) The qualification of the Notes under state securities laws in
accordance with the provisions of Section 4(h) hereof, including filing fees
and the reasonable fees and disbursements of counsel for the Agents in
connection therewith and in connection with the preparation of any Blue Sky
Survey and any Legal Investment Survey;
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(g) The printing and delivery to the Agents in quantities as
hereinabove stated of copies of the Registration Statement and any amendments
thereto, and of the Prospectus and any amendments or supplements thereto;
(h) The preparation, printing, reproducing and delivery to the
Agents of copies of the Indenture and all supplements and amendments thereto;
(i) Any fees charged by rating agencies for the rating of the
Notes;
(j) The fees and expenses incurred in connection with the listing
of the Notes on any securities exchange;
(k) The fees and expenses, if any, incurred with respect to any
filing with the National Association of Securities Dealers, Inc.;
(l) Any advertising and other out-of-pocket expenses of the Agents
incurred with the approval of the Company; and
(m) The cost of providing any CUSIP or other identification
numbers for the Notes.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company submitted pursuant
hereto or thereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Agents or any
controlling person of an Agent, or by or on behalf of the Company, and shall
survive each delivery of and payment for any of the Notes.
SECTION 12. Termination.
(a) Termination of this Agreement. This Agreement (excluding any
agreement hereunder by an Agent to purchase Notes as principal) may be
terminated for any reason, at any time by either the Company or any of the
Agents as to itself, immediately upon the giving of 30 days written notice of
such termination to the other parties hereto.
(b) Termination of Agreement to Purchase Notes as Principal. Any
Agent may terminate any agreement hereunder by such Agent to purchase Notes as
principal, immediately upon notice to the Company, at any time prior to the
Settlement Date relating thereto (i) if there has been, since the date of such
agreement or since the respective dates as of which information is given in the
Registration Statement, any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of the
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Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there shall have
occurred any outbreak or escalation of existing hostilities or other national
or international calamity or crisis the effect of which on the financial
markets of the United States is such as to make it, in the judgment of such
Agent, impracticable to market the Notes or enforce contracts for the sale of
the Notes, or (iii) if trading in any securities of the Company has been
suspended by the SEC or the National Association of Securities Dealers, Inc.,
or if trading generally on the New York Stock Exchange, the Boston Stock
Exchange or in the over-the- counter market shall have been suspended, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by either of said exchanges or by
order of the SEC any exchange on which such securities are listed or any other
governmental authority with appropriate jurisdiction over such matters, or (iv)
if a banking moratorium shall have been declared by either Federal or New York
authorities or if a banking moratorium shall have been declared by the relevant
authorities in the country or countries of origin of any foreign currency or
currencies in which the Notes are denominated or payable, or (v) if the rating
assigned by any nationally recognized securities rating agency to any debt
securities of the Company as of the date of any applicable principal purchase
shall have been lowered since that date or if any such rating agency shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any debt securities of the Company.
(c) General. In the event of any such termination, no party will
have any liability to any other party hereto, except that (i) the Agents shall
be entitled to any commission earned in accordance with the third paragraph of
Section 3(b) hereof, (ii) if at the time of termination (a) an Agent shall own
any Notes purchased by it as principal with the intention of reselling them or
(b) an offer to purchase any of the Notes has been accepted by the Company but
the time of delivery to the purchaser or his agent of the Note or Notes
relating thereto has not occurred, the covenants set forth in Sections 4 and 7
hereof shall remain in effect until such Notes are so resold or delivered, as
the case may be, and (iii) the covenant set forth in Section 4(g) hereof, the
provisions of Section 10 hereof, the indemnity and contribution agreements set
forth in Sections 8 and 9 hereof, and the provisions of Sections 11, 14 and 15
hereof shall remain in effect.
SECTION 13. Notices.
Unless otherwise provided herein, all notices required under the terms
and provisions hereof shall be in writing, either delivered by hand, by mail or
by telex, telecopier or telegram, and any such notice shall be effective when
received at the address specified below.
If to the Company:
Bank of Boston Corporation
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100 Federal Street
Boston, Massachusetts 02110
Attention: Kathleen M. McGillycuddy, Managing Director
Fax: (617) 434-0501
With a copy to:
Bank of Boston Corporation
100 Federal Street
Boston, Massachusetts 02110
Attention: Gary A. Spiess, General Counsel
Fax: (617) 434-7980
If to Merrill Lynch & Co.:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower - 10th Floor
World Financial Center
New York, New York 10281-1310
Attention: MTN Product Management
Fax: (212) 449-2234
If to Goldman, Sachs & Co.:
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attention: Registration Department
Fax: (212) 902-4103
If to Lehman Brothers Inc.:
Lehman Brothers Inc.
3 World Financial Center
New York, New York 10285
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Attention: Medium-Term Note Department, 12th Floor
Fax: (212) 528-1718
If to PaineWebber Incorporated:
PaineWebber Incorporated
1285 Avenue of the Americas
New York, New York 10019
Attention: Corporate Finance
Fax: (212) 713-1054
or at such other address as such party may designate from time to time by
notice duly given in accordance with the terms of this Section 13.
SECTION 14. Governing Law; Forum.
This Agreement and all the rights and obligations of the parties shall
be governed by and construed in accordance with the laws of the State of New
York applicable to agreements made and to be performed in such State. Any
suit, action or proceeding brought by the Company against an Agent in
connection with or arising under this Agreement shall be brought solely in the
state or federal court of appropriate jurisdiction located in the Borough of
Manhattan, The City of New York.
SECTION 15. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Agents and the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons and officers and directors referred to
in Sections 8 and 9 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties
hereto and their respective successors and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Notes shall
be deemed to be a successor by reason merely of such purchase.
SECTION 16. Counterparts.
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This Agreement may be executed in one or more counterparts and when a
counterpart has been executed by each party, all such counterparts taken
together shall constitute one and the same agreement.
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If the foregoing is in accordance with the Agents' understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument along with all counterparts will become a binding
agreement among the Agents and the Company in accordance with its terms.
Very truly yours,
BANK OF BOSTON CORPORATION
By: _______________________________
Name:
Title:
Accepted:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: __________________________________
Name:
Title:
________________________________________
GOLDMAN, SACHS & CO.
LEHMAN BROTHERS INC.
By: __________________________________
Name:
Title:
PAINEWEBBER INCORPORATED
By: __________________________________
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Name:
Title:
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EXHIBIT A
The following terms, if applicable, shall be agreed to by the
applicable Agent and the Company in connection with each sale of Notes:
Principal Amount: $_______
(or principal amount of foreign currency)
Interest Rate:
If Fixed Rate Note, Interest Rate:
If Floating Rate Note:
Interest Rate Basis:
Initial Interest Rate:
Spread or Spread Multiplier, if any:
Interest Reset Date(s):
Interest Payment Date(s):
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Reset Period:
Interest Payment Period:
Calculation Agent:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
If Repayable:
Optional Repayment Date(s):
Date of Maturity:
Purchase Price: ___%
Settlement Date and Time:
Currency of Denomination:
Denominations (if currency is other than U.S. dollar):
Currency of Payment:
Additional Terms:
Also, in connection with the purchase of Notes by an Agent as principal,
agreement as to whether the following will be required:
Officers' Certificate pursuant to Section 7(b) of the Distribution
Agreement.
Legal Opinion pursuant to Section 7(c) of the Distribution Agreement.
Comfort Letter pursuant to Section 7(d) of the Distribution Agreement.
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Stand-off Agreement pursuant to Section 4(j) of the Distribution
Agreement.
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SCHEDULE I
As compensation for the services of the Agents hereunder, the Company
shall pay the applicable Agent, on a discount basis, a commission for the sale
of each Note equal to the principal amount of such Note multiplied by the
appropriate percentage set forth below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
- --------------- ----------------
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 30 years . . . . . . . . . . . . . . . . . . . . . . . .750
Greater than 30 years. . . . . . . . . . . . . . . . . . . . . . . . . *
* As agreed to by the Company and the applicable Agent at the time of
sale.