Exhibit 1
BANKBOSTON CAPITAL TRUST (IV) (V)
(a Delaware business trust)
Capital Securities
(Liquidation Amount of $( ) Per Capital Security)
PURCHASE AGREEMENT
Dated:
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BANKBOSTON CAPITAL TRUST (IV)(V)
(a Delaware business trust)
Capital Securities
(Liquidation Amount of $( ) Per Capital Security)
PURCHASE AGREEMENT
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( )
as Representatives of the several Underwriters
c/o( )
Ladies and Gentlemen:
BANKBOSTON CAPITAL TRUST (IV) (V) (the "Trust"), a statutory business
trust organized under the Business Trust Act (the "Delaware Act") of the
State of Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del.
(Sections 3801 et seq.)) and BANKBOSTON CORPORATION, a Massachusetts
corporation (the "Company" and together with the Trust, the "Offerors"),
confirm their agreement (the "Agreement") with ( ) (" ")
and each of the other Underwriters named in Schedule A hereto (collectively,
the "Underwriters", which term shall also include any underwriter substituted
as hereinafter provided in Section 10 hereof), for whom (
)
are acting as representatives (in such capacity, the "Representatives"), with
respect to the issue and sale by the Trust and the purchase by the
Underwriters, acting severally and not jointly, of the respective number of
Capital Securities (liquidation amount of $( ) per
capital security) of the Trust (the "Capital Securities") set forth in said
Schedule A. The Capital Securities will be guaranteed by the Company, to the
extent described in the Prospectus (as defined below), with respect to
distributions and payments upon liquidation, redemption and otherwise (the
"Capital Securities Guarantee") pursuant to the Capital Securities Guarantee
Agreement, to be dated as of (the "Capital Securities
Guarantee Agreement"), between the Company and The Bank of New York, as
Trustee (the "Guarantee Trustee"). The Capital Securities issued in book-
entry form will be issued to Cede & Co. as nominee of The Depository Trust
Company ("DTC") pursuant to a letter agreement, to be dated as of the Closing
Time (as defined in Section 2(b)) (the "DTC Agreement"), among the Trust, the
Guarantee Trustee and DTC.
The Offerors understand that the Underwriters propose to make a public
offering of the Capital Securities as soon as the Representatives deem
advisable after this Agreement has been executed and delivered and the
Declaration (as defined herein), the Indenture (as defined herein) and the
Capital Securities Guarantee Agreement have been qualified under the Trust
Indenture Act of 1939, as amended (the "1939 Act").
The entire proceeds from the sale of the Capital Securities will be
combined with the entire proceeds from the sale by the Trust to the Company
of its common securities (the "Common Securities") , as guaranteed by the
Company, to the extent set forth in the Prospectus, with respect to distribu-
tions and payments upon liquidation, redemption and otherwise (the "Common
Securities Guarantee" and, together with the Capital Securities Guarantee,
the "Guarantees") pursuant to the Common Securities Guarantee Agreement, to
be dated as of (the "Common Securities Guarantee Agreement" and,
together with the Capital Securities Guarantee Agreement, the "Guarantee
Agreements"), made by the Company, and will be used by the Trust to purchase
$( ) aggregate principal amount of Junior Subordinated
Deferrable Interest Debentures due , 20__ (the "Subordinated
Debentures") to be issued by the Company. The Capital Securities and the
Common Securities will be issued pursuant to the Amended and Restated
Declaration of Trust of the Trust, to be dated as of (the
"Declaration"), among the Company, as sponsor, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as administrative trustees (the
"Administrative Trustees"), The Bank of New York, as property trustee (the
"Property Trustee"), and The Bank of New York (Delaware), as Delaware trustee
(the "Delaware Trustee," and, together with the Property Trustee and the
Administrative Trustees, the "Trustees"). The Subordinated Debentures will
be issued pursuant to an indenture, to be dated as of (the
"Indenture"), between the Company and The Bank of New York, as trustee (the
"Debenture Trustee").
The Capital Securities, the Capital Securities Guarantee and the
Subordinated Debentures are hereinafter collectively referred to as the
"Securities." The Indenture, the Declaration, the DTC Agreement and this
Agreement are hereinafter referred to collectively as the "Operative
Documents."
The Offerors have filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-47125, 333-47125
-01 and 333-47125-02) covering
the registration of the Securities under the Securities Act of 1933, as
amended (the "1933 Act"), including the related preliminary prospectus or
prospectuses, relating to the Securities and the offering thereof from time
to time in accordance with Rule 415 of the 1933 Act. Promptly after execution
and delivery of this Agreement, the Offerors will either (i) prepare
and file a prospectus in accordance with paragraph (b) of Rule 424 ("Rule
424(b)") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") or (ii) if the Offerors have elected to rely
upon Rule 434 ("Rule 434") of the 1933 Act Regulations, prepare and file a
term sheet (a "Term Sheet") in accordance with the provisions of Rule 434 and
Rule 424(b). The information included in such prospectus or in such Term
Sheet, as the case may be, that was omitted from such registration statement
at the time it became effective but that is deemed to be part of such
registration statement at the time it became effective pursuant to paragraph
(d) of Rule 434 is referred to as "Rule 434 Information." Each prospectus
used before such registration statement became effective, and any prospectus
that omitted, as applicable, the Rule 434 Information, that was used after
such effectiveness and prior to the execution and delivery of this Agreement,
is herein called a "preliminary prospectus." Such registration statement,
including the exhibits thereto, the schedules thereto, if any, and the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, at the time it became effective and including the Rule
434 Information, as applicable, is herein called the "Registration
Statement." Any registration statement filed pursuant to Rule 462(b) of the
1933 Act Regulations is herein referred to as the "Rule 462(b) Registration
Statement," and after such filing the term "Registration Statement" shall
include the Rule 462(b) Registration Statement. The final prospectus,
including the documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the 1933 Act, in the form first furnished to the
Underwriters for use in connection with the offering of the Securities, is
herein called the "Prospectus." If Rule 434 is relied on, the term
"Prospectus" shall refer to the preliminary prospectus and the Term Sheet,
and all references in this Agreement to the date of the Prospectus shall mean
the date of the Term Sheet. For purposes of this Agreement, all references
to the Registration Statement, any preliminary prospectus, the Prospectus or
any Term Sheet or any amendment or supplement to any of the foregoing shall
be deemed to include the copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval system ("▇▇▇▇▇").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which are
incorporated by reference in the Registration Statement, any preliminary
prospectus or the Prospectus, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to mean and include
the filing of any document under the Securities Exchange Act of 1934, as
amended (the "1934 Act"), which
is incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
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(a) The Offerors jointly and severally represent and warrant to each
Underwriter as of the date hereof and as of the Closing Time, and agree with
each Underwriter as follows:
(i) The Company meets the requirements for use of Form S-3
under the 1933 Act. Each of the Registration Statement and any Rule
462(b) Registration Statement has become effective under the 1933 Act
and no stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement has been issued
under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are
contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective and at the Closing Time, the Registration Statement, the Rule
462(b) Registration Statement and any amendments thereto complied and
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 Commission under the 1939 Act (the "1939 Act
Regulations"), and did not and 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.
Neither the Prospectus nor any amendments or supplements thereto, at the
time the Prospectus or any such amendment or supplement was issued and
at the Closing Time, included or will include an untrue statement of a
material fact or omitted or will 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. If Rule 434
is used, the Company will comply with the requirements of Rule 434. The
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement (or any
amendments thereto) or Prospectus (or any amendments or supplements
thereto) made in reliance upon and in conformity with information
furnished to the Offerors in writing by any Underwriter through (
) expressly for use in the Registration Statement (or any amendments
thereto) or Prospectus (or any amendments or supplements thereto).
Any preliminary prospectus and the prospectus filed as part of the
Registration Statement as originally filed or as
part of any amendment thereto, or filed
pursuant to Rule 424 under the 1933 Act, complied when so filed in all
material respects with the 1933 Act Regulations and any preliminary
prospectus and the Prospectus delivered to the Underwriters for use in
connection with this offering was identical to the electronically transmitted
copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the
extent permitted by Regulation S-T.
(ii) The documents incorporated or deemed to be incorporated
by reference in the Registration Statement and the Prospectus, at the
time they were or hereafter are filed with the Commission, complied and
will comply in all material respects with the requirements of the 1934
Act and the rules and regulations of the Commission thereunder (the
"1934 Act Regulations"), and, when read together with the other
information in the Prospectus, at the time the Registration Statement
became effective, at the time the Prospectus was issued and at the
Closing Time, did not and 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, in light of the
circumstances under which they were made, not misleading.
(iii) The accountants who certified the financial statements
and supporting schedules included in the Registration Statement are
independent public accountants as required by the 1933 Act and the 1933
Act Regulations.
(iv) The consolidated financial statements, together with the
related schedules and notes, included in the Registration Statement and
the Prospectus present fairly the consolidated financial position of the
Company and its subsidiaries at the dates indicated and the consolidated
results of operations, stockholders' equity and cash flows of the
Company and its subsidiaries for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout
the periods involved, except as disclosed in the notes to such financial
statements. The supporting schedules, if any, included in the
Registration Statement present fairly the information required to be
stated therein. The summary financial data included in the Prospectus
present fairly the information shown therein and have been compiled on a
basis consistent with that of the audited financial statements included
in the Registration Statement.
(v) 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 capital 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 Trust, or
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 Trust, the Company or any subsidiary, other than in the ordinary
course of business, that is material to the Trust, or to the Company and its
subsidiaries, considered as one enterprise, or (C) any dividend or distribu-
tion of any kind declared, paid or made by the Company on its capital stock.
(vi) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the Commonwealth of
Massachusetts and has the corporate power and authority under such laws
to own, lease and operate its properties and to 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;
and the Company is duly qualified as a foreign corporation 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.
(vii) Each of BankBoston, N.A. ("BankBoston") 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
(BankBoston and Hospital Trust 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 and 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 to be
in good standing would not have a material adverse effect on the Company
and its subsidiaries, considered as one enterprise.
(viii) The Company does not have any subsidiaries which are
material to its business, except to the extent that one or more of the
Significant Subsidiaries may be deemed to be so material.
(ix) (a) The Company had at the date indicated a duly
authorized and outstanding capitalization as set forth in the Prospectus,
(b) all of the outstanding shares of capital stock of the Company have
been duly authorized and validly issued and are fully paid and non-assessable,
and (c) none of the outstanding shares of capital stock of the Company was
issued in violation of the preemptive rights of any stockholder of the
Company.
(x) The Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware Act
with the power and authority to own property and to conduct its business
as described in the Prospectus and to enter into and perform its
obligations under the Operative Documents, as applicable, and the
Capital Securities; the Trust is not a party to or otherwise bound by
any material agreement other than those described in the Prospectus; and
the Trust is and will, under current law, be classified for United
States federal income tax purposes as a grantor trust and not as an
association taxable as a corporation.
(xi) The Common Securities have been duly authorized by
the Declaration and, when issued and delivered by the Trust to the
Company against payment therefor as described in the Prospectus, will be
validly issued and will represent undivided beneficial interests in the
assets of the Trust; the issuance of the Common Securities is not
subject to preemptive or other similar rights; and at the Closing Time
all of the issued and outstanding Common Securities of the Trust will be
directly owned by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equitable right.
(xii) As of the Closing Time, the Capital Securities will
have been duly authorized by the Trust and, when issued and delivered
against payment therefor as provided herein, will be validly issued and
fully paid and non-assessable undivided beneficial interests in the
assets of the Trust and will conform in all material respects to the
description thereof contained in the Prospectus and the issuance of the
Capital Securities will not be subject to preemptive or other similar
rights.
(xiii) This Agreement has been duly authorized, executed
and delivered by the Offerors.
(xiv) The Declaration has been qualified under the 1939 Act and
has been duly authorized by the Company and, at the Closing Time, will
have been duly executed and delivered by the Company and the Trustees,
and assuming due authorization, execution and delivery of the Declaration by
the Trustees, the Declaration will, at the Closing Time, be a valid and
binding obligation of the Company, enforceable against the Company in
accordance with its terms, except to the extent that enforcement thereof may
be limited by the receivership, conservatorship and supervisory powers of
bank regulatory agencies generally as well as to bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally or by general principles of equity (regardless of whether
enforcement is considered in a proceeding at law or in equity) and the
availability of equitable remedies (collectively, the "Enforceability
Exceptions").
(xv) The Capital Securities Guarantee Agreement has been
qualified under the 1939 Act; each of the Guarantee Agreements has been
duly authorized by the Company and, at the Closing Time, will have been
duly executed and delivered by the Company and will constitute a valid
and binding obligation of the Company, enforceable against the Company
in accordance with its terms, except to the extent that enforcement
thereof may be limited by the Enforceability Exceptions.
(xvi) The Indenture has been qualified under the 1939 Act
and has been duly authorized by the Company and, at the Closing Time,
will have been duly executed and delivered by the Company and will
constitute a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms except to the extent
that enforcement thereof may be limited by the Enforceability
Exceptions.
(xvii) The Subordinated Debentures have been duly
authorized by the Company and, at the Closing Time, will have been duly
executed by the Company and, when authenticated in the manner provided
for in the Indenture and delivered against payment therefor as described
in the Prospectus, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms
except to the extent that enforcement thereof may be limited by the
Enforceability Exceptions; and the Subordinated Debentures will be in
the form contemplated by, and entitled to the benefits of, the Indenture
and will conform in all material respects to the description thereof in
the Prospectus.
(xviii) Each of the Administrative Trustees of the Trust is
an officer of the Company or BankBoston and has been duly authorized by
the Company to execute and deliver the Declaration.
(xix) The Trust is not, and following consummation of the
transactions contemplated hereby will not be, an "investment company" or a
company "controlled" by an "investment company" which is
required to be registered under the Investment Company Act of 1940, as
amended (the "1940 Act").
(xx) The Operative Documents conform in all material
respects to the summary descriptions thereof contained in the
Prospectus.
(xi) None of the Trust, 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 the Operative Documents by the
Trust or the Company, as the case may be, the issuance and delivery of
the Securities, the consummation by the Offerors of the transactions
contemplated in the Operative Documents, and compliance by the Offerors
with the terms of the Operative Documents to which they are party have
been duly authorized by all necessary corporate action on the part of
the Company and, as at the Closing Time, will have been duly authorized
by all necessary action on the part of the Trust, and do not and will
not result in any violation of the charter or by-laws of the Company or
any Significant Subsidiary or the Declaration or the trust certificate
of the Trust filed with the State of Delaware on February 26, 1998 (the
"Trust Certificate"), 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 of assets of the Trust, the
Company or any Significant Subsidiary under (A) any indenture, mortgage,
loan agreement, note, lease or other agreement or instrument to which
the Trust, the 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 Trust, or 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 Trust, the Company or any
Significant Subsidiary or any of its properties.
(xxii) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency, other than those that have been made
or obtained, is necessary or required for the performance by the Company
or the Trust of their obligations hereunder, in connection with the
issuance and sale of the Capital Securities or the consummation of the
transactions contemplated by the Operative Documents, except as have
been previously made or obtained.
(xxiii) To the best knowledge of the Offerors, no labor
problem exists with employees of the Significant Subsidiaries or is
imminent that could adversely affect the Trust, or the Company and its
subsidiaries considered as one enterprise, and the Offerors are 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 Trust, or the Company and its
subsidiaries considered as one enterprise.
(xxiv) Except as disclosed in the Registration Statement,
there is no action, suit or proceeding before or by any government,
governmental instrumentality or court, domestic or foreign, now pending
or, to the knowledge of the Company or the Trust, threatened against or
affecting the Trust, or the Company or any Significant Subsidiary that
is required to be disclosed in the Registration Statement 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), earn-
ings, business affairs or business prospects of the Trust, or the
Company and its subsidiaries considered as one enterprise, or that could
materially and adversely affect the properties or assets of the Trust,
or the Company and its subsidiaries considered as one enterprise, or
that could adversely affect the consummation of the transactions
contemplated in the Operative Documents; the aggregate liability or
loss, if any, resulting from the final outcome of all pending legal or
governmental proceedings to which the Trust, the Company or any
Significant Subsidiary is a party or which affect any of its properties
that are not described in the Registration Statement, 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 Trust, or the Company and
its subsidiaries considered as one enterprise.
(xxv) There are no contracts or documents which are
required to be described in the Registration Statement, the Prospectus
or the documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described or filed as required.
(xxvi) The Offerors 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
Offerors 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 Trust, or the Company and its subsidiaries
considered as one enterprise.
(xxvii) The Offerors and the Significant Subsidiaries each
owns, possesses or has obtained all material governmental licenses,
permits, certificates, consents, orders, approvals and other
authorizations necessary to own or lease, as the case may be, and to
operate its properties and to carry on its business as presently
conducted, and neither the Offerors nor any Significant Subsidiary has
received any notice of proceedings relating to 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 Trust, or the Company and
its subsidiaries considered as one enterprise.
(xxvii) The Offerors 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 Trust, or the Company and
its subsidiaries considered as one enterprise; and all of the leases and
subleases material to the business of the Trust, and the Company and its
subsidiaries considered as one enterprise, and under which the Offerors
or any Significant Subsidiary holds properties described in the
Prospectus, are in full force and effect, and neither the Offerors 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 Offerors
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.
(xxviii) The Company has not taken and will not take, directly
or indirectly, any action designed to, or that might be reasonably
expected to, cause or result in stabilization or manipulation of the
price of the Securities.
(b) Any certificate signed by any Trustee of the Trust or any duly
authorized officer of the Company or any Significant Subsidiary and delivered
to the Representatives or to counsel for the Underwriters shall be deemed a
representation and warranty by the Trust or the Company, as the case may be,
to each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
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(a) On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Trust agrees to
sell to each Underwriter, severally and not jointly, and each Underwriter,
severally and not jointly, agrees to purchase from the Trust, at the price
per Capital Security set forth in Schedule B, the number of Capital
Securities set forth in Schedule A opposite the name of such Underwriter,
plus any additional number of Capital Securities which such Underwriter may
become obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) Payment of the purchase price for, and delivery of certificates
for, the Capital Securities shall be made at the offices of Skadden, Arps,
Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at
such other place as shall be agreed upon by the Representatives and the
Offerors, at 10:00 A.M. (Eastern time) on the third (fourth, if the pricing
occurs after 4:30 P.M. (Eastern time) on any given day) business day after
the date hereof (unless postponed in accordance with the provisions of
Section 10), or such other time not later than ten business days after such
date as shall be agreed upon by the Representatives and the Offerors (such
time and date of payment and delivery being herein called "Closing Time").
Payment shall be made to the Trust by wire transfer of immediately
available funds to a bank account designated by the Trust against delivery to
the Representatives for the respective accounts of the Underwriters of
certificates for the Capital Securities to be purchased by them. It is
understood that each Underwriter has authorized the Representatives, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for, the Capital Securities which it has agreed to
purchase. ( ), individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the
purchase price for the Capital Securities to be purchased by any Underwriter
whose funds have not been received by the Closing Time, but such payment
shall not relieve such Underwriter from its obligations hereunder.
(c) Certificates for the Capital Securities shall be in such
denominations and registered in such names as the Representatives may request
in writing at least one full business day before the Closing Time. The
Capital Securities will be made available for examination and packaging by
the Representatives in The City of New York not later than 10:00 A.M.
(Eastern time) on the business day prior to the Closing Time.
(d) As compensation to the Underwriters for their commitments
hereunder and in view of the fact that the proceeds of the sale of the
Capital Securities will be used to purchase Subordinated Debentures of the
Company, the Company hereby agrees to pay at the Closing Time to (
) in immediately available funds, for the accounts of the several Und-
erwriters, a commission per Capital Security to be delivered by the Trust
hereunder at the Closing Time as set forth in Schedule B.
SECTION 3. Covenants of the Offerors. The Offerors covenant with
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each Underwriter as follows:
(a) The Offerors, subject to Section 3(b) hereof, will comply with the
requirements of Rule 434, as applicable, and will notify the Representatives
immediately, and confirm the notice in writing, (i) when any post-effective
amendment to the Registration Statement shall become effective, or any
supplement to the Prospectus or any amended Prospectus shall have been filed,
(ii) of the receipt of any comments from the Commission, (iii) of any request
by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, and
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction, or
of the initiation or threatening of any proceedings for any of such purposes.
The Offerors will promptly effect the filings necessary pursuant to Rule
424(b) and will take such steps as they deem necessary to ascertain promptly
whether the form of prospectus transmitted for filing under Rule 424(b) was
received for filing by the Commission and, in the event that it was not, they
will promptly file such prospectus. The Offerors 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) The Offerors will give the Representatives notice of its intention
to file or prepare any amendment to the Registration Statement (including any
filing under Rule 462(b)), any Term Sheet or any amendment, supplement or
revision to either the prospectus included in the Registration Statement at
the time it became effective or to the Prospectus, whether pursuant to the
1933 Act, the 1934 Act or otherwise, will furnish the Representatives with
copies of any such documents a reasonable amount of time prior to such
proposed filing or use, as the case may be, and will not file or use any such
document without the consent of the Representatives, which consent shall not
be unreasonably withheld.
(c) The Offerors have furnished or will deliver to the Representatives
and counsel for the Underwriters, without charge, photocopies of the signed
Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated or deemed to be incorporated by reference therein) and
photocopies of all consents and certificates of experts, and will also
deliver to the Representatives, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment thereto
(without exhibits) for each of the Underwriters. The copies of the
Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T.
(d) The Offerors will furnish to each Underwriter, without charge,
during the period when the Prospectus is required to be delivered under the
1933 Act or the 1934 Act, such number of copies of the Prospectus (as amended
or supplemented) as such Underwriter may reasonably request. The Prospectus
and any amendments or supplements thereto furnished to the Underwriters will
be identical to the electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation
S-T.
(e) The Offerors will comply with the 1933 Act, the 1933 Act
Regulations, the 1934 Act, the 1934 Act Regulations, the 1939 Act and the
1939 Act Regulations so as to permit the completion of the distribution of
the Capital Securities as contemplated in this Agreement and in the
Prospectus. If at any time when a prospectus is required by the 1933 Act to
be delivered in connection with sales of the Capital Securities, any event
shall occur or condition shall exist as a result of which it is necessary, in
the reasonable opinion of counsel for the Underwriters or for the Offerors,
to amend the Registration Statement or amend or supplement the Prospectus in
order that the Prospectus 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 not misleading in the light of the circumstances
existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the
1933 Act or the 1933 Act Regulations, the Offerors will promptly prepare and
file with the Commission, subject to Section 3(b), such amendment or
supplement as may be necessary to correct such statement or omission or to
make the Registration Statement or the Prospectus comply with such
requirements, and the Offerors will furnish to the Underwriters such number
of copies of such amendment or supplement as the Underwriters may reasonably
request.
(f) The Offerors will use their best efforts, in cooperation with the
Underwriters, to qualify the Capital Securities for offering and sale under
the applicable securities laws of such states and other jurisdictions as the
Representatives may designate and to maintain such qualifications in effect
for a period of not less than one year from the later of the effective date
of the Registration Statement and any Rule 462(b) Registration Statement;
provided, however, that the Offerors shall not be obligated to file any
general consent to service of process or to qualify as a foreign corporation
or as a dealer in securities 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. In each
jurisdiction in which the Capital Securities have been so qualified, the
Offerors will file such statements and reports as may be required by the laws
of such jurisdiction to continue such qualification in effect for a period of
not less than one year from the effective date of the Registration Statement
and any Rule 462(b) Registration Statement. The Offerors will also supply
the Underwriters with such information as is necessary for the determination
of the legality of the Capital Securities for investment under the laws of
such jurisdictions as the Underwriters may request.
(g) The Company and the Trust (to the extent applicable) will make
generally available to their securityholders as soon as practicable an
earnings statement for the purposes of, and to provide the benefits
contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(h) The Offerors shall take all reasonable action necessary to enable
Standard & Poor's Ratings Services, a division of McGraw Hill, Inc. ("S&P"),
and ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's") to provide their respective
credit ratings of the Capital Securities.
(i) The Offerors will cooperate with the Underwriters and use their
best efforts to permit the Capital Securities to be eligible for clearance
and settlement through the facilities of DTC.
(j) The Trust will use the net proceeds received by it from
the sale of the Capital Securities, and the Company will use the proceeds
received by it from the sale of the Subordinated Debentures, in the manners
specified in the Prospectus under "Use of Proceeds".
(k) Prior to the Closing Time, neither the Trust nor the Company will,
without the prior written consent of ( ), directly or indirectly,
issue, sell, offer or agree to sell, grant any option for the sale of, or
otherwise dispose of, Capital Securities, any security convertible into
exchangeable or exercisable for Capital Securities or the Subordinated
Debentures or any debt securities substantially similar (including provisions
with respect to the deferral of interest) to the Subordinated Debentures or
any equity security substantially similar to the Capital Securities (except
for the Securities issued pursuant to this Agreement).
(l) The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act or the 1934 Act, will file all documents
required to be filed with the Commission pursuant to the 1934 Act within the
time periods required by the 1934 Act and the 1934 Act Regulations.
SECTION 3A. Covenants of the Underwriters. Each of the Underwriters
-----------------------------
represents and agrees as follows:
(a) The Underwriters will comply with the provisions of Rule 2810 of
the Conduct Rules of the National Association of Securities Dealers, Inc.
(the "NASD"), including, without limitation, Sections (b)(2)(B) and (b)(3)(D)
thereof.
SECTION 4. Payment of Expenses.
-------------------
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and any schedules or exhibits and any document
incorporated therein by reference) and of each amendment thereto, (ii) the
preparation, printing and delivery to the Underwriters of this Agreement, the
Operative Documents and such other documents as may be required in connection
with the offering, purchase, sale and delivery of the Securities, (iii) the
preparation, issuance and delivery of the certificates for the Capital
Securities to the Underwriters, (iv) the fees and disbursements of the
Company's counsel, accountants and other advisors, (v) rating agency fees,
(vi) the fees and expenses of any trustee appointed under any of the
Operative Documents, including the fees and disbursements of counsel for such
trustees in connection with the Operative Documents, (vii) the qualification
of the Capital Securities under securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the reasonable
fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation
of the Blue Sky Survey and any supplement thereto, (viii) the printing and
delivery to the Underwriters of copies of each preliminary prospectus, any
Term Sheets and the Prospectus and any amendments or supplements thereto,
(ix) the preparation, printing and delivery to the Underwriters of copies of
the Blue Sky Survey and any supplement thereto, (x) the filing fees incident
to, and the reasonable fees and disbursements of counsel to the Underwriters
in connection with, the review, if any, by the NASD of the terms of the sale
of the Securities, (xi) the fees and expenses of any transfer agent or
registrar for the Securities, and (xii) the cost of qualifying the Capital
Securities with DTC.
(b) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or
Section 9(a)(i) hereof, the Company shall reimburse the Underwriters for all
of their out-of-pocket expenses, including the reasonable fees and
disbursements of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the
Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations
---------------------------------------
of the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Offerors contained in Section 1 hereof
or in certificates of any Trustee of the Trust, officer of the Company or any
of its subsidiaries delivered pursuant to the provisions hereof, to the
performance by the Offerors of their obligations hereunder, and to the
following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, and any
request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the
Underwriters. A prospectus shall have been filed with the Commission in
accordance with Rule 424(b) or, if the Offerors have elected to rely upon
Rule 434, a Term Sheet shall have been filed with the Commission in
accordance with Rule 424(b).
(b) Opinion of Outside Counsel for Offerors. At the Closing Time, the
Underwriters shall have received the favorable opinion, dated as of the
Closing Time, of ▇▇▇▇▇ & Wood LLP, counsel for the Company, in form and
substance reasonably satisfactory to counsel for the Underwriters.
(c) Opinion of General Counsel. At the Closing Time, the Underwriters
shall have received the favorable opinion, dated as of the Closing Time, of
▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel for the Company, in form and substance
reasonably satisfactory to counsel for the Underwriters.
(d) Opinion of Special Delaware Counsel for Offerors. If the opinion
referred to in Section 5(b) does not cover applicable matters of Delaware
law, at the Closing Time, the Underwriters shall have received the favorable
opinion, dated as of the Closing Time, of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ &
▇▇▇▇ LLP, special Delaware counsel to the Offerors, in form and substance
reasonably satisfactory to counsel for the Underwriters.
(e) Opinion of Counsel for The Bank of New York. At the Closing Time,
the Underwriters shall have received the favorable opinion, dated as of the
Closing Time, of ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, counsel to The Bank of New
York, as Property Trustee under the Declaration, and Guarantee Trustee under
the Capital Securities Guarantee Agreement, in form and substance reasonably
satisfactory to counsel for the Underwriters.
(f) Opinion of Special Tax Counsel for the Offerors. At the Closing
Time, the Underwriters shall have received an opinion, dated as of the
Closing Time, of ▇▇▇▇▇ & Wood LLP, special tax counsel to the Offerors, that
(i) the Subordinated Debentures will be classified for United States federal
income tax purposes as indebtedness of the Company, (ii) the Trust will be
classified for United States federal income tax purposes as a grantor trust
and not as an association taxable as a corporation and (iii) although the
discussion set forth in the Prospectus under the heading "Certain Federal
Income Tax Consequences" does not purport to discuss all possible United
States federal income tax consequences of the purchase, ownership and
disposition of the Capital Securities, such discussion constitutes, in all
material respects, a fair and accurate summary of the United States federal
income tax consequences of the purchase, ownership and disposition of the
Capital Securities under current law. Such opinion may be conditioned on,
among other things, the initial and continuing accuracy of the facts,
financial and other information, covenants and representations set forth in
certificates of officers of the Company and other documents deemed necessary
for such opinion.
(g) Opinion of Counsel for Underwriters. At the Closing Time, the
Underwriters shall have received the favorable opinion, dated as of the
Closing Time, of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the
Underwriters, with respect to the incorporation and legal existence of the
Company, the Capital Securities, the Indenture, the Capital Securities
Guarantee, this Agreement, the Prospectus and other related matters as the
Underwriters may require. Such counsel may also state that, insofar as such
opinion involves factual matters, they have relied, to the extent they deem
proper, upon certificates of Trustees of the Trust, officers of the Company
and its subsidiaries and certificates of public officials.
(h) Certificates. At the Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information
is given in the Prospectus, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Trust, or the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and
the Representatives shall have received a certificate of the Chairman, any
Vice Chairman, the Chief Executive Officer, the President, any Vice President
or the Executive Director, Global Treasury of the Company and of the chief
financial officer or the chief accounting officer of the Company and a
certificate of an Administrative Trustee of the Trust, dated as of the
Closing Time, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 1 hereof were true
and correct when made and are true and correct with the same force and effect
as though expressly made at and as of the Closing Time, (iii) the Offerors
have complied with all agreements and satisfied all conditions on their part
to be performed or satisfied at or prior to the Closing Time, and (iv) 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, to each such officer's knowledge, are contemplated by the
Commission.
(i) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Representatives shall have received from Coopers & ▇▇▇▇▇▇▇
L.L.P. a letter dated such date, in form and substance satisfactory to the
Representatives, together with signed or reproduced copies of such letter for
each of the other Underwriters, containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial information
contained in the Registration Statement and the Prospectus.
(j) Bring-down Comfort Letter. At the Closing Time, the
Representatives shall have received from Coopers & ▇▇▇▇▇▇▇ L.L.P. a letter,
dated as of the Closing Time, to the effect that they reaffirm the statements
made in the letter furnished pursuant to subsection (i) of this Section,
except that the specified date referred to shall be a date not more than
three business days prior to the Closing Time.
(k) Maintenance of Rating. At the Closing Time, the Capital Securities
shall be rated at least baa1 by Moody's and BBB by S&P, and the Trust shall
have delivered to the Representatives a letter dated the Closing Time, from
each such rating agency, or other evidence satisfactory to the
Representatives, confirming that the Capital Securities have such ratings;
and between the date of this Agreement and the Closing Time, there shall not
have occurred a downgrading in the rating assigned to the Capital Securities
or any of the Company's other debt securities by any nationally recognized
statistical rating organization, and no such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of any of the Capital Securities or any of the
Company's other debt securities.
(l) Additional Documents. At the Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions as
they may require for the purpose of enabling them to pass upon the issuance
and sale of the Capital Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or warranties of the
Offerors, or the fulfillment of any of the conditions, herein contained; and
all proceedings taken by the Offerors in connection with the issuance and
sale of the Capital Securities as herein contemplated shall be satisfactory
in form and substance to the Representatives and counsel for the
Underwriters.
(m) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement may be terminated by the Representatives by notice to the
Offerors at any time at or prior to the Closing Time, and such termination
shall be without liability of any party to any other party except as provided
in Section 4 and except that Sections 6, 7 and 8 shall survive any such
termination and remain in full force and effect.
SECTION 6. Indemnification.
---------------
(a) Indemnification of Underwriters. The Offerors agree to jointly and
severally indemnify and hold harmless each Underwriter and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 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), including the Rule 434
Information, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary
to make the statements therein not misleading or arising out of any
untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order 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 any 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; provided
that (subject to Section 6(d) below) any such settlement is
effected with the written consent of the Offerors; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by ( )),
reasonably incurred in investigating, preparing or defending against any
litigation, or any 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 shall not apply to any loss,
liability, claim, damage or expense to the extent arising
out of any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with written information
furnished to the Offerors by any Underwriter through ( ) expressly
for use in the Registration Statement (or any amendment thereto), including
the Rule 434 Information, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(b) Indemnification of Offerors, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Offerors,
their respective directors or trustees, the Company's officers who signed the
Registration Statement, and each person, if any, who controls the Offerors
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
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), including the Rule 434 Information, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information
furnished to the Offerors by such Underwriter through ( ) expressly
for use in Registration Statement (or any amendment thereto) or such
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) Actions against Parties; Notification. Each indemnified
party shall give notice as promptly as reasonably practicable 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 hereunder
to the extent it is not materially prejudiced as a result thereof and in any
event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. In the case of parties
indemnified pursuant to Section 6(a) above, counsel to the indemnified
parties shall be selected by ( ), and, in the case of parties
indemnified pursuant to Section 6(b) above, counsel to the indemnified
parties shall be selected by the Offerors. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party.
In no event shall the indemnifying parties be liable for fees and expenses of
more than one counsel (in addition to any local counsel) separate from their
own 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. No indemnifying party
shall, without the prior written consent of the indemnified parties, settle
or compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or
Section 7 hereof (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim
and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse.
Notwithstanding the last sentence of Section 6(c), if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement effected without its
written consent if (i) such settlement is entered into more than 45 days
after receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement
at least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement; provided
that an indemnifying party shall not be liable for any such settlement-------
- effected without its consent if such indemnifying party (1) reimburses such
indemnified party in accordance with such request to the extent it considers
such request to be reasonable and (2) provides written notice to the
indemnified party substantiating the unpaid balance as unreasonable, in each
case prior to the date of such settlement.
SECTION 7. Contribution. In order to provide for just and equitable
------------
contribution in circumstances under which the indemnification provided for
in Section 6 hereof is for any reason held to be unenforceable by an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute
to the aggregate amount of such losses, liabilities, claims, damages and
expenses incurred by such indemnified party, as incurred, in such proportion
as is appropriate to reflect the relative benefits received by the Offerors
on the one hand and the Underwriters on the other hand from the offering of
the Capital Securities pursuant to this Agreement.
The relative benefits received by the Offerors on the one hand and the
Underwriters on the other hand in connection with the offering of the Capital
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Capital Securities pursuant to this Agreement (before deducting expenses)
received by the Offerors and the total commission received by the
Underwriters, bear to the aggregate initial public offering price of the
Capital Securities.
The Offerors and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the
total price at which the Capital Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to from any person who was
not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter,
and each director of the Company, each officer of the Company who signed the
Registration Statement, each trustee of the Trust and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as the
Company. The Underwriters' respective obligations to contribute pursuant to
this Section 7 are several in proportion to the number of Capital Securities
set forth opposite their respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
-----------------------------------------------------
Delivery. All representations, warranties and agreements contained in
--------
this Agreement or in certificates of officers of the Company or trustees
of the Trust submitted pursuant hereto shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the Trust or the
Company, and shall survive delivery of the Capital Securities to the
Underwriters.
SECTION 9. Termination of Agreement.
------------------------
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Offerors, at any time at or prior to the Closing
Time (i) if there has been, since the time of execution of this Agreement or
since the respective dates as of which information is given in the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Trust or the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, or (ii) if there
has occurred any material adverse change in the financial markets in the
United States or any outbreak of hostilities or escalation thereof or other
calamity or crisis, in each case the effect of which is such as to make it,
in the judgment of the Representatives, impracticable to market the Capital
Securities or to enforce contracts for the sale of the Capital Securities, or
(iii) if trading in any securities of the Company has been suspended or
limited by the Commission, or if trading generally on the American Stock
Exchange or the New York Stock Exchange or in the NASDAQ National Market
System has been suspended or limited, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices have been required, by
any of said exchanges or by such system or by order of the Commission, the
NASD or any other governmental authority, or (iv) if a banking moratorium has
been declared by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any
other party except as provided in Section 4 hereof, and provided further that
Sections 1, 6, 7 and 8 shall survive such termination and remain in full
force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or
------------------------------------------
more of the Underwriters shall fail at the Closing Time to purchase the
Capital Securities which it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), the Representatives shall have the
right, within 24 hours thereafter, to make arrangements for one or more of
the non-defaulting Underwriters, or any other underwriters, to purchase all,
but not less than all, of the Defaulted Securities in such amounts as may be
agreed upon and upon the terms herein set forth; if, however, the
Representatives shall not have completed such arrangements within such
24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of
the total number of Capital Securities to be purchased hereunder, each
of the non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the total
number of Capital Securities to be purchased hereunder, this Agreement
shall terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either the Representatives or the Company shall have the
right to postpone the Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements. As used herein, the
term "Underwriter" includes any person substituted for an Underwriter under
this Section 10.
SECTION 11. Notices. All notices and other communications hereunder
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shall be in writing and shall be deemed to have been duly given if mailed
or transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives c/o (
), with a
copy to Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.; notices to the
Offerors shall be directed to BankBoston Corporation, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
BOS 01-25-01, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇ ▇. ▇▇▇▇▇▇,
General Counsel, with a copy to ▇▇▇▇▇ & Wood LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
SECTION 12. Parties. This Agreement shall each inure to the benefit
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of and be binding upon the Underwriters and the Offerors 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 Underwriters and the Offerors and their respective successors and
the controlling persons and officers, directors and trustees referred to in
Sections 6 and 7 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
Underwriters and the Offerors and their respective successors, and said
controlling persons and officers, directors and trustees and their heirs and
legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Capital Securities from any Underwriter shall
be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED
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BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 14. Effect of Headings. The Article and Section headings
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herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
If the foregoing is in accordance with your 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 Underwriters and the Offerors in accordance with its
terms.
Very truly yours,
BANKBOSTON CORPORATION
By
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Title:
BANKBOSTON CAPITAL TRUST (IV) (V)
By
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Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
( )
By: ( )
By
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Authorized Signatory
For themselves and as representative of the other Underwriters named in
Schedule A hereto.
SCHEDULE A
Number
of
Capital
Name of Underwriter Securities
------------------- ----------
Total . . . . . . . . . . . . . . . . . . . . . . . . . .
SCHEDULE B
BANKBOSTON CAPITAL TRUST (IV) (V)
( )
Capital Securities
(Liquidation Amount of $( ) Per Capital Security)
1. The initial public offering price for the Capital Securities,
determined as provided in said Section 2, shall be $( ) per security.
2. The purchase price for the Capital Securities to be paid by the
several Underwriters shall be $( ) per security, being an amount equal to
the initial public offering price set forth above.
3. The commission for the Capital Securities to be paid by the Company
to the Underwriters for their commitments hereunder shall be $( ) per
Capital Security.