Exhibit 1
PURCHASE AGREEMENT
FLEETBOSTON FINANCIAL CORPORATION
(a Rhode Island corporation); and
FLEET CAPITAL TRUST IX
(a Delaware statutory trust)
7,000,000 Preferred Securities
6.000% Preferred Securities
(Liquidation Amount $25 Per Preferred Security)
Dated: July 24, 2003
Table of Contents
Page
SECTION 1. Representations and Warranties.....................................3
(a) Representations and Warranties by the Company and the Trust..............3
(i) Compliance with Registration Requirements.......................3
(ii) Incorporated Documents..........................................4
(iii) Independent Accountants.........................................4
(iv) Financial Statements............................................5
(v) No Material Adverse Change in Business..........................5
(vi) Good Standing of the Company....................................5
(vii) Existence of Trust..............................................6
(viii) Common Securities...............................................6
(ix) Authorization of Declaration....................................6
(x) Guarantee Agreements............................................6
(xi) Preferred Securities............................................6
(xii) Authorization of Indenture......................... ............7
(xiii) Authorization of Debentures.....................................7
(xiv) Authorization of Agreement......................................7
(xv) Absence of Defaults and Conflicts...............................7
(xvi) Absence of Proceedings..........................................8
(xvii) Possession of Licenses and Permits..............................8
(xviii) Investment Company Act..........................................8
(xix) Accounting Treatment; Regulatory Capital........................8
(xx) SOX Act.........................................................9
(xxi) Internal Accounting Controls....................................9
(b) Officers' Certificates...................................................9
SECTION 2. Sale and Delivery to Underwriters; Closing.........................9
(a) Initial Preferred Securities.............................................9
(b) Option Preferred Securities..............................................9
(c) Payment.................................................................10
(d) Denominations; Registration.............................................10
SECTION 3. Covenants of the Company and the Trust............................11
(a) Compliance with Securities Regulations and Commission Requests..........11
(b) Filing of Amendments....................................................11
(c) Delivery of Registration Statements.....................................11
(d) Delivery of Prospectus..................................................12
(e) Continued Compliance with Securities Laws...............................12
(f) Blue Sky Qualifications.................................................12
(g) Rule 158................................................................13
(h) DTC.....................................................................13
(i) Use of Proceeds.........................................................13
(j) Restriction on Sale of Securities.......................................13
(k) Reporting Requirements..................................................13
SECTION 4. Payment of Expenses...............................................13
(a) Expenses................................................................13
(b) Termination of Agreement................................................14
SECTION 5. Conditions of Underwriters' Obligations...........................14
(a) Effectiveness of Registration Statement.................................14
(b) Opinion of Counsel for Company..........................................14
(c) Opinion of Special Tax Counsel for the Trust and the Company............14
(d) Opinion of Special Delaware Counsel for the Trust.......................15
(e) Opinion of Counsel for The Bank of New York.............................15
(f) Opinion of Counsel for Underwriters.....................................15
(g) Trustee's Certificate...................................................15
(h) Officers' Certificates..................................................15
(i) Accountant's Comfort Letter.............................................16
(j) Bring-down Comfort Letter...............................................16
(k) Lock-up Agreements......................................................16
(l) Maintenance of Rating...................................................16
(m) Over-allotment Option...................................................17
(n) Additional Documents....................................................17
(o) Termination of Agreement................................................18
(p) Approval of Listing.....................................................18
SECTION 6. Indemnification...................................................18
(a) Indemnification of Underwriters.........................................18
(b) Indemnification of Trust by Company.....................................19
(c) Indemnification of Trust, Company, Directors and Officers...............19
(d) Actions against Parties; Notification...................................19
(e) Settlement without Consent if Failure to Reimburse......................20
SECTION 7. Contribution......................................................20
SECTION 8. Representations, Warranties and Agreements to Survive Delivery....21
SECTION 9. Termination of Agreement..........................................21
(a) Termination; General....................................................21
(b) Liabilities....................................... .....................22
SECTION 10. Default by One or More of the Underwriters.......................22
SECTION 11. Notices..........................................................23
SECTION 12. Parties..........................................................23
SECTION 13. GOVERNING LAW AND TIME...........................................23
SECTION 14. Effect of Headings...............................................23
SCHEDULES
Schedule A-- List of Underwriters Sch. A-1
Schedule B-- List of Subsidiaries Sch. B-1
EXHIBITS
Exhibit A-- Form of Opinion of Company's Counsel A-1
Exhibit B-- Form of Opinion of Trust's Special Delaware Counsel B-1
Exhibit C-- Form of Lock-up Letter C-1
FLEETBOSTON FINANCIAL CORPORATION
(a Rhode Island corporation)
FLEET CAPITAL TRUST IX
(a Delaware statutory trust)
7,000,000 Preferred Securities
6.000% Preferred Securities
(Liquidation Amount $25 Per Preferred Security)
PURCHASE AGREEMENT
July 24, 2003
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
as Representative of the several Underwriters
Ladies and Gentlemen:
Fleet Capital Trust IX (the "Trust"), a statutory trust created under the
Delaware Statutory Trust Act (the "Delaware Act") of the State of Delaware
(Chapter 38, Title 12 of the Delaware Code, 12 Del. C. Sections 3801 et seq.)
confirms its agreement with Citigroup Global Markets Inc. ("Citigroup") and each
of the 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 Citigroup is acting as Representative
(in such capacity, the "Representative") with respect to the issue and sale by
the Trust and the purchase by the Underwriters, acting severally and not
jointly, of 6.000% Preferred Securities (liquidation amount $25 per preferred
security) in the respective numbers set forth in said Schedule A hereto (the
"Initial Preferred Securities") and with respect to the grant by the Trust to
the Underwriters, acting severally and not jointly, of the option described in
Section 2(b) hereof to purchase all or any part of the additional Preferred
Securities to cover over-allotments, if any. The aforesaid 7,000,000 Initial
Preferred Securities and all or part of the 1,050,000 Preferred Securities
subject to the option described in Section 2(b) hereof (the "Option Preferred
Securities") are hereinafter collectively called the "Preferred Securities". The
Preferred Securities are more fully described in the Prospectus (as defined
below).
The Preferred Securities will be guaranteed by FleetBoston Financial
Corporation (a Rhode Island corporation) (the "Company"), to the extent set
forth in the Prospectus, with respect to distributions and amounts payable upon
liquidation or redemption (the "Preferred Securities Guarantee") pursuant to the
Preferred Securities Guarantee Agreement (the "Preferred Securities Guarantee
Agreement") to be dated as of Closing Time (as defined below), executed and
delivered by the Company and The Bank of New York (the "Guarantee Trustee"), a
New York banking corporation not in its individual capacity but solely as
trustee, for the benefit of the holders from time to time of the Preferred
Securities. The Company and the Trust each understand that the Underwriters
propose to make a public offering of the Preferred Securities as soon as the
Representative deems advisable after this Agreement has been executed and
delivered. The entire proceeds from the sale of the Preferred Securities will be
combined with the entire proceeds from the sale by the Trust to the Company of
its common securities (the "Common Securities") guaranteed by the Company, to
the extent set forth in the Prospectus, with respect to distributions and
amounts payable upon liquidation or redemption pursuant to the Common Securities
Guarantee Agreement (the "Common Securities Guarantee Agreement" and, together
with the Preferred Securities Agreement, the "Guarantee Agreements"), to be
dated as of Closing Time, executed and delivered by the Company for the benefit
of the holders from time to time of the Common Securities, and will be used by
the Trust to purchase $180,412,375 aggregate principal amount of 6.000% Junior
Subordinated Debentures due 2033 (the "Initial Debentures") issued by the
Company and, if all or part of the Option Preferred Securities are purchased, up
to approximately an additional $27,061,875 aggregate principal amount of
Debentures (the "Option Debentures"). The aforesaid Initial Debentures and
Option Debentures are hereinafter collectively called the "Debentures." The
Preferred 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
Closing Time (the "Declaration"), among the Company, as Sponsor, The Bank of New
York, as institutional trustee (the "Institutional Trustee"), The Bank of New
York (Delaware), as Delaware trustee (the "Delaware Trustee"), and Xxxxxxx X.
Xxxxxx, Xxxx X. Xxxxxxxxx and Xxxx X. Xxxxxxxx, as regular trustees (the
"Regular Trustees" and together with the Institutional Trustee and the Delaware
Trustee, the "Trustees"), and the holders from time to time of undivided
beneficial interests in the assets of the Trust. The Debentures will be issued
pursuant to an Indenture, dated as of June 30, 2000 (the "Base Indenture"),
between the Company and The Bank of New York, as trustee (the "Indenture
Trustee"), as supplemented by the Fourth Supplemental Indenture, to be dated as
of Closing Time (the "Fourth Supplemental Indenture," together with the Base
Indenture, the "Indenture"), between the Company and the Indenture Trustee. The
Preferred Securities, the Preferred Securities Guarantee and the Debentures are
collectively referred to herein as the "Securities." Capitalized terms used
herein without definition have the respective meanings specified in the
Prospectus.
The Company and the Trust have filed with the Securities and Exchange
Commission (the "Commission") a shelf registration statement on Form S-3 (No.
333-72912), as amended by Amendment No. 1 thereto, including the relevant forms
of prospectus and preliminary prospectus supplement, covering the registration
of the Securities under the Securities Act of 1933, as amended (the "1933 Act"),
which permits the delayed or continuous offering of securities pursuant to Rule
415 of the rules and regulations of the Commission under the 1933 Act (the "1933
Act Regulations"). Promptly after execution and delivery of this Agreement, the
Company will either (i) prepare and file a prospectus (including a prospectus
supplement relating to the Securities) in accordance with the provisions of Rule
430A ("Rule 430A") of the 1933 Act Regulations, if applicable, and paragraph (b)
of Rule 424 ("Rule 424(b)") of the 1933 Act Regulations or (ii) if the Company
has 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 (a) pursuant to paragraph
(b) of Rule 430A is referred to as "Rule 430A Information" or (b) pursuant to
paragraph (d) of Rule 434 is referred to as "Rule 434 Information." Any
prospectus used before such registration statement became effective, and any
prospectus that omitted, as applicable, the Rule 430A Information or 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,
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 430A Information and the Rule 434 Information,
if any, 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 Preferred Securities is herein called the "Prospectus." If Rule 434 is
relied on, the term "Prospectus" shall refer to the preliminary prospectus
together with 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, 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 ("XXXXX").
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 is 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 (the "1934 Act") which is
incorporated by reference in the Registration Statement, any preliminary
prospectus or the Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company and the Trust. The
Company and the Trust jointly and severally represent and warrant to each
Underwriter as of the date hereof and as of the Closing Time and, if applicable,
as of each Date of Delivery (as defined below) (in each case, a "Representation
Date"), and agrees with each Underwriter, as follows:
(i) Compliance with Registration Requirements. 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 and the Trust, 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, at the date hereof, and at each Representation Date, the Registration
Statement, the Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the Trust
Indenture Act of 1939 (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 and at each Date of Delivery, if any, 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 and the Trust will comply with the requirements of Rule
434. The representations and warranties in this subsection shall not apply (A)
to statements in or omissions from the Registration Statement or Prospectus made
in reliance upon and in conformity with information furnished to the Trust or
the Company in writing by any Underwriter through Citigroup expressly for use in
the Registration Statement or the Prospectus or (B) to that part of the
Registration Statement that constitutes the Statements of Eligibility and
Qualification on Form T-1 (the "Forms T-1") under the Trust Indenture Act of the
Indenture Trustee, the Institutional Trustee and the Guarantee Trustee.
The relevant forms of prospectus and preliminary prospectus supplement
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 XXXXX, except
to the extent permitted by Regulation S-T.
(ii) Incorporated Documents. 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 date hereof, at the
time the Prospectus was issued and at the Closing Time and at each Date of
Delivery, if any, 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.
(iii) Independent Accountants. To the best of the Company's knowledge,
after due inquiry, PricewaterhouseCoopers LLP, the Company's auditors, who have
certified certain financial statements and schedules of the Company and its
consolidated subsidiaries included, or incorporated by reference, in the
Registration Statement and delivered their report with respect to the audited
consolidated financial statements for the fiscal year ended December 31, 2002
and schedules incorporated by reference in the Prospectus, are independent
public accountants with respect to the Company within the meaning of Rule 2-01
of Regulation S-X under the 1933 Act, as amended by Section 201 of the
Xxxxxxxx-Xxxxx Act of 2002, including the applicable rules and regulations
promulgated by the Commission thereunder (the "SOX Act").
(iv) Financial Statements. The financial statements included in the
Registration Statement and the Prospectus, together with the related schedules
and notes, present fairly the financial position of the Company and its
consolidated subsidiaries at the dates indicated and the statement of
operations, stockholders' equity and cash flows of the Company and its
consolidated 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. The
supporting schedules, if any, included in the Registration Statement present
fairly in accordance with GAAP the information required to be stated therein.
The selected financial data and the summary financial information 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. In addition, any pro forma financial
statements of the Company and its subsidiaries and the related notes thereto
included in the Registration Statement and the Prospectus have been prepared in
accordance with the Commission's rules and guidelines with respect to pro forma
financial statements and have been properly compiled on the bases described
therein, and the assumptions used in the preparation thereof are reasonable and
the adjustments used therein are appropriate to give effect to the transactions
and circumstances referred to therein, but the pro forma financial statements
may differ from actual results.
(v) No Material Adverse Change in Business. Since the respective dates as
of which information is given in the Registration Statement and the Prospectus,
except as otherwise stated therein, (A) there has been no 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 ordinary course of business (a
"Material Adverse Effect"), (B) there have been no transactions entered into by
the Company or any of its subsidiaries, other than those in the ordinary course
of business, which are material with respect to the Company and its subsidiaries
considered as one enterprise and (C) there has been no dividend or distribution
of any kind declared, paid or made by the Company on any class of its capital
stock, except for dividends paid by the Company in the ordinary course of
business consistent with past practice.
(vi) Good Standing of the Company. Each of the Company and the subsidiaries
of the Company listed on Schedule B hereto, (the "Significant Subsidiaries") has
been duly incorporated and is validly existing as a corporation or national
banking association in good standing under the laws of the jurisdiction in which
it is chartered or organized, with full corporate power and authority to own its
properties and conduct its business as described in the Prospectus; the Company
is duly qualified to do business as a foreign corporation under the laws of the
State of New York and the laws of the Commonwealth of Massachusetts; and neither
the Company nor any Significant Subsidiary is required to be qualified to do
business as a foreign corporation under the laws of any other jurisdiction
(except where the failure to qualify would not have a Material Adverse Effect),
and the Company is duly registered as a financial holding company under the Bank
Holding Company Act of 1956, as amended.
(vii) Existence of Trust. The Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware Act, is and
will be treated as a "grantor trust" for federal income tax purposes under
existing law, has the business trust power and authority to conduct its business
as presently conducted and as described in the Prospectus and is not required to
be authorized to do business in any other jurisdiction.
(viii) Common Securities. The Common Securities have been duly authorized
by the Declaration and, when issued and delivered by the Trust to the Company in
accordance with the terms of the Declaration and against payment therefor as
described in the Prospectus, will be validly issued and (subject to the terms of
the Declaration) fully paid and nonassessable undivided beneficial interests in
the assets of the Trust; the issuance of the Common Securities is not subject to
preemptive or other similar rights; no holder thereof will be subject to
personal liability by reason of being such a holder; 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 equity.
(ix) Authorization of Declaration. The Declaration has been duly authorized
by the Company and duly qualified under the 1939 Act and, when validly executed
and delivered by the Company and the Regular Trustees, and assuming the due
authorization, execution and delivery of the Declaration by the Delaware Trustee
and the Institutional Trustee, the Declaration will constitute a valid and
binding obligation of the Company and the Regular Trustees, enforceable against
the Company and the Regular Trustees in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or 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 considered in a proceeding in equity or at
law).
(x) Guarantee Agreements. The Guarantee Agreements have been duly
authorized by the Company and duly qualified under the 1939 Act and, when
validly executed and delivered by the Company, and assuming due authorization,
execution and delivery of the Guarantee Agreements by the Guarantee Trustee,
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 bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium or
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 considered in a proceeding in equity or at law).
(xi) Preferred Securities. The Preferred Securities have been duly
authorized by the Declaration and, when authenticated in the manner provided for
in the Declaration and issued and delivered pursuant to this Agreement against
payment of the consideration set forth herein, will be validly issued and
(subject to the terms of the Declaration) fully paid and nonassessable undivided
beneficial interests in the assets of the Trust; the issuance of the Preferred
Securities is not subject to preemptive or other similar rights; and holders of
Preferred Securities will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit
incorporated under the General Corporation Law of the State of Delaware.
(xii) Authorization of Indenture. The Indenture has been duly authorized by
the Company and duly qualified under the 1939 Act and, when duly executed and
delivered by the Company and assuming the due authorization, execution and
delivery of the Indenture by the Indenture Trustee, will constitute a valid and
binding agreement of the Company, enforceable against the Company in accordance
with its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or 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 considered in
a proceeding in equity or at law).
(xiii) Authorization of Debentures. The Debentures have been duly
authorized by the Company, and when executed, authenticated, issued and
delivered in the manner provided for in the Indenture and sold and paid for as
provided in this Agreement, the Debentures will constitute valid and binding
obligations of the Company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or 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 considered in a proceeding in equity or at
law).
(xiv) Authorization of Agreement. This Agreement has been duly authorized,
executed and delivered by the Company and the Trust.
(xv) Absence of Defaults and Conflicts. The execution and delivery by the
Company and the Trust of, and the performance by the Company and the Trust of
their obligations under, this Agreement, the execution and delivery by the
Company of, and the performance by the Company of its obligations under, the
Declaration, the Preferred Securities Guarantee Agreement and the Indenture, the
issuance and delivery by the Trust of the Common Securities and Preferred
Securities and the consummation of the sale of the Preferred Securities and the
fulfillment of the terms herein contemplated will not conflict with or result in
a breach of any of the terms or provisions of, or constitute a default under (in
each case material to the Company and its subsidiaries (including the Trust)
considered as a whole or as to the Trust separately), any indenture, mortgage,
deed of trust, loan agreement, guarantee, lease, financing agreement or other
similar agreement or instrument to which the Company or any of its subsidiaries
(including the Trust) is a party or by which the Company or any of its
subsidiaries (including the Trust) is bound or to which any of the property or
assets of the Company or any of its subsidiaries (including the Trust) is
subject, nor will such actions result in any violation of the provisions of the
certificate of incorporation or by-laws of the Company or the Declaration of the
Trust, nor will such actions result in any violation (in each case material to
the Company and its subsidiaries (including the Trust) considered as a whole or
as to the Trust separately) of any statute or any order, rule or regulation of
any court or regulatory authority or other governmental body having jurisdiction
over the Trust or the Company or any of its subsidiaries or any of their
properties; and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for, and the
absence of which would materially affect, the performance by the Company and the
Trust of their obligations under this Agreement and the issuance and delivery of
the Preferred Securities, except such approvals as will be obtained under the
1933 Act, the 1934 Act or the 1939 Act and as may be required by the securities
or Blue Sky laws of the various states or the securities laws of non-U.S.
jurisdictions in connection with the sale of the Preferred Securities.
(xvi) Absence of Proceedings. There is no action, suit, proceeding, inquiry
or investigation before or brought by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the Company or the
Trust, threatened, against or affecting the Company or any subsidiary, which is
required to be disclosed in the Registration Statement (other than as disclosed
therein), or which might reasonably be expected to result in a Material Adverse
Effect, or which might reasonably be expected to materially and adversely affect
the properties or assets of the Company and its subsidiaries taken as a whole or
the consummation of the transactions contemplated in this Agreement or the
performance by the Company or the Trust of its obligations hereunder; the
aggregate of all pending legal or governmental proceedings to which the Company
or any subsidiary is a party or of which any of their respective property or
assets is the subject which are not described in the Registration Statement,
including ordinary routine litigation incidental to the business, could not
reasonably be expected to result in a Material Adverse Effect.
(xvii) Possession of Licenses and Permits. The Company and its subsidiaries
possess such permits, licenses, approvals, consents and other authorizations
(collectively, "Governmental Licenses") issued by the appropriate federal,
state, local or foreign regulatory agencies or bodies necessary to conduct the
business now operated by them, except for such Governmental Licenses the absence
of which would not cause a Material Adverse Effect; the Company and its
subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not, singly
or in the aggregate, have a Material Adverse Effect; all of the Governmental
Licenses are valid and in full force and effect, except when the invalidity of
such Governmental Licenses or the failure of such Governmental Licenses to be in
full force and effect would not have a Material Adverse Effect; and neither the
Company nor any of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such Governmental Licenses
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(xviii) Investment Company Act. Neither the Company nor the Trust is, and
upon the issuance and sale of the Preferred Securities as herein contemplated
and the application of the net proceeds therefrom as described in the Prospectus
neither will be, an "investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the Investment Company Act of
1940, as amended (the "1940 Act").
(xix) Accounting Treatment; Regulatory Capital. The statements contained in
the third and fourth paragraphs under the caption "Accounting Treatment;
Regulatory Capital" of the Prospectus are, in all material respects, accurate
and complete.
(xx) SOX Act. The Company is in compliance with the currently applicable
provisions of the SOX Act, except where the failure to so comply would not
individually or in the aggregate have a material adverse effect on the condition
(financial or other), business, properties or results of operations of the
Company and its subsidiaries takes as a whole.
(xxi) Internal Accounting Controls. The Company has in place a system of
internal accounting controls that management believes are, as a whole,
sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with management's general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
(b) Officers' Certificates. Any certificate signed by any officer of the
Company or the Trust delivered to Underwriters or to counsel for the
Underwriters shall be deemed a representation and warranty by the Company or the
Trust, respectively, to each Underwriter as to the matters covered thereby on
the date of such certificate and, unless subsequently amended or supplemented,
at each Representation Date subsequent thereto.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Initial Preferred Securities. 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
Company, at the purchase price of $25 per Preferred Security, the number of
Initial Preferred Securities set forth in Schedule A opposite the name of such
Underwriter, plus any additional number of Initial Preferred Securities which
such Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof, subject, in each case, to such adjustments among the
Underwriters as they in their sole discretion shall make to eliminate any sales
or purchases of fractional securities.
(b) Option Preferred Securities. In addition, on the basis of the
representations, warranties and agreements herein contained and subject to the
terms and conditions herein set forth, the Trust hereby grants an option to the
Underwriters, severally and not jointly, to purchase up to an additional
1,050,000 Preferred Securities (the "Option Preferred Securities") at a price
per Option Preferred Security equal to the price per Initial Preferred Security
plus accumulated distributions, if any, from July 31, 2003 to the date of
delivery and payment. If such an option is exercised, the Company agrees to
issue Option Debentures in an aggregate principal amount equal to the aggregate
liquidation amount of the Option Preferred Securities subject to the exercise of
the over-allotment option, divided by .97 and rounded to the nearest $25. Such
option will expire 30 days after the date of this Agreement and may be exercised
in whole or in part from time to time only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Initial Preferred Securities upon notice by Citigroup to the
Trust and the Company setting forth the number of Option Preferred Securities as
to which the several Underwriters are then exercising the option and the time,
date and place of payment and delivery for such Option Preferred Securities. Any
such time and date of payment and delivery (each, a "Date of Delivery") shall be
determined by Citigroup, the Trust and the Company, but shall not be later than
seven full business days after the exercise of said option, nor in any event
prior to the Closing Time, unless otherwise agreed upon by Citigroup, the Trust
and the Company. If the option is exercised as to all or any portion of the
Option Preferred Securities, each of the Underwriters, severally and not
jointly, will purchase that proportion of the total number of Option Preferred
Securities then being purchased which the number of Initial Preferred Securities
each such Underwriter has severally agreed to purchase bears to the total number
of Initial Preferred Securities, subject to such adjustments as Citigroup in its
discretion shall make to eliminate any sales or purchases of a fractional number
of Option Preferred Securities.
(c) Payment. As compensation to the Underwriters for their commitments
hereunder and in view of the fact that the proceeds of the sale of the Preferred
Securities will be used to purchase the Debentures, the Company hereby agrees to
pay at the Closing Time and at each Date of Delivery to the Underwriters a
commission of $0.7875 per Preferred Security purchased by the Underwriters.
Payment of the purchase price for, and delivery of certificates for, the
Preferred Securities shall be made at the offices of Sidley Xxxxxx Xxxxx & Xxxx
LLP, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as
shall be agreed upon by the Underwriters, the Company and the Trust, at 9:00
A.M. (Eastern time) on the fifth (sixth, 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
Underwriters, the Company and the Trust (such time and date of payment and
delivery being herein called the "Closing Time"). In addition, in the event that
the Underwriters have exercised their option to purchase any or all of the
Option Preferred Securities, payment of the purchase price for, and delivery of
such Option Preferred Securities, shall be made at the above-mentioned offices
of Sidley Xxxxxx Xxxxx & Xxxx LLP, or at such other place as shall be agreed
upon by the Underwriters, the Trust and the Company, on the relevant Date of
Delivery as specified in the notice from Citigroup to the Trust and the Company.
Payment shall be made to the Trust by wire transfer of immediately
available funds to the order of the Trust, against delivery to the Underwriters
of certificates for the Preferred Securities to be purchased by them. It is
understood that each Underwriter has authorized the Representative, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for the Preferred Securities which it has agreed to purchase. Citigroup,
individually and not as representative of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Preferred Securities
to be purchased by any Underwriter whose funds have not been received by the
Closing Time or the relevant Date of Delivery, as the case may be, but such
payment shall not relieve such Underwriter from its obligations hereunder.
At the Closing Time or the relevant Date of Delivery, as the case may be,
the Company will pay, or cause to be paid, the commission payable at such time
under this Section 2 to Citigroup on behalf of the Underwriters by wire transfer
of immediately available funds.
(d) Denominations; Registration. Certificates for the Preferred Securities
shall be in such denominations and registered in such names as the
Representative may request in writing at least two full business days before the
Closing Time or the relevant Date of Delivery, as the case may be. The
certificates for the Preferred Securities will be made available for examination
and packaging by the Representative in The City of New York not later than 10:00
A.M. (Eastern time) on the business day prior to the Closing Time or the
relevant Date of Delivery, as the case may be.
SECTION 3. ......Covenants of the Company and the Trust. The Company and
the Trust jointly and severally covenant with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company and the Trust, subject to Section 3(b), will comply with the
requirements of Rule 424, Rule 430A or Rule 434, as applicable, and will notify
the Underwriters 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, any prospectus, or of the suspension of the
qualification of the Preferred Securities for offering or sale in any
jurisdiction or of the initiation or threatening of any proceedings for any of
such purposes. The Company and the Trust will promptly effect the filings
necessary pursuant to Rule 424(b) and will take such steps as it deems 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, it will promptly file such prospectus. The Company and the
Trust 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) Filing of Amendments. The Company and the Trust will give the
Representative notice of their 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
Representative with copies of any such documents to, and consult with, the
Representative and their counsel within 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 to which the Representative or counsel for the Representative
shall reasonably object in writing; provided, however, that the foregoing shall
not apply to any of the Company's filings with the Commission required to be
filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act, copies of
which such filings the Company will cause to be delivered to the Representative
promptly after being transmitted for filing with the Commission.
(c) Delivery of Registration Statements. The Company has furnished or will
deliver to the Representative and counsel for the Representative, without
charge, signed copies of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and, upon request, documents incorporated or deemed to be
incorporated by reference therein), and will also deliver to the Representative,
without charge, a conformed copy of the Registration Statement as originally
filed and of each amendment thereto (without exhibits) for the Representative.
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 XXXXX, except to the extent
permitted by Regulation S-T.
(d) Delivery of Prospectus. The Company will deliver to each Underwriter,
without charge, as many copies of the Prospectus as such Underwriter reasonably
requests, and the Company and the Trust hereby consent to the use of such copies
for purposes permitted by the 1933 Act. The Company 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 XXXXX, except to the extent
permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company and the Trust
will comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and
the 1934 Act Regulations so as to permit the completion of the distribution of
the 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 Preferred Securities, any event shall occur or
condition shall exist as a result of which it is necessary, in the opinion of
counsel for the Underwriters and for the Company or the Trust, to amend the
Registration Statement or amend or supplement the Prospectus in order that the
Prospectus will not include any untrue statements 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 Company and the Trust 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 Company will furnish to the Underwriters such number of copies of such
amendment or supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company and the Trust will each use its
best efforts, in cooperation with the Underwriters, to qualify the Preferred
Securities for offering and sale under the applicable securities laws of such
states and other jurisdictions (domestic or foreign) as the Underwriters 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 neither the
Company nor the Trust shall 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 Preferred Securities
have been so qualified, the Company and the Trust 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 date
hereof. The Company and the Trust will also supply the Underwriters with such
information as is necessary for the determination of the legality of the
Preferred Securities for investment under the laws of such jurisdictions as the
Underwriters may request.
(g) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
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) DTC. The Trust and the Company will cooperate with the Underwriters and
use their best efforts to permit the Preferred Securities to be eligible for
clearance and settlement through the facilities of The Depository Trust Company.
(i) Use of Proceeds. The Trust and the Company will use the proceeds
referred to in the Prospectus under "Use of Proceeds" in the manner described
therein.
(j) Restriction on Sale of Securities. During a period of 7 days from the
date of the Prospectus, neither the Company nor the Trust will, without the
prior written consent of Citigroup, directly or indirectly, offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase or otherwise
transfer or dispose of any Preferred Securities or Debentures (or any equity or
debt securities substantially similar to the Preferred Securities or Debentures,
respectively). The foregoing sentence shall not apply to the Preferred
Securities or Debentures to be sold hereunder.
(k) Reporting Requirements. The Company and the Trust, 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 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the performance
of its and the Trust's obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, printing and delivery to the Underwriters of this
Agreement, any Agreement among Underwriters and such other documents as may be
required in connection with the offering, purchase, sale, issuance or delivery
of the Preferred Securities, (iii) the preparation, issuance and delivery of the
certificates for the Preferred Securities to the Underwriters, including any
stock or other transfer taxes and any stamp or other duties payable upon the
sale, issuance or delivery of the Preferred Securities to the Underwriters, (iv)
the fees and disbursements of the Company's and the Trust's counsel, accountants
and other advisors, (v) the qualification of the Preferred 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, if any, (vi) the printing and
delivery to the Underwriters of copies of any preliminary prospectus, any Term
Sheets and of the Prospectus and any amendments or supplements thereto, (vii)
the printing and delivery to the Underwriters of copies of the Blue Sky Survey
and any supplement thereto, if any, (viii) the fees and expenses of any transfer
agent or registrar for the Preferred Securities, (ix) the fees and expenses of
the Indenture Trustee, including the fees and disbursements of counsel for the
Indenture Trustee in connection with the Indenture and the Debentures, (x) the
reasonable fees and expenses of the Delaware Trustee, the Institutional Trustee
and the Guarantee Trustee, including the fees and disbursements of counsel for
the Delaware Trustee, the Institutional Trustee and the Guarantee Trustee, (xi)
any fees payable in connection with the rating of the Preferred Securities and
the Debentures, (xii) the cost and charges associated with the approval of the
Preferred Securities by The Depository Trust Company for "book-entry" transfer,
and (xiii) the fees and expenses incurred in connection with the listing of the
Preferred Securities and, if applicable, the Debentures on the New York Stock
Exchange.
(b) Termination of Agreement. If this Agreement is terminated by the
Underwriters 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
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 Company and the Trust contained in Section
1 hereof or in certificates of any officer of the Company or any Trustee
delivered pursuant to the provisions hereof, to the performance by the Company
and the Trust of their respective covenants and other 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 a
post-effective amendment providing such information shall have been filed and
declared effective) or, if the Company has 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 Counsel for Company. At Closing Time, the Representative
shall have received the favorable opinion, dated as of Closing Time, of Xxxxxxx
& Xxxxxx, LLP, special counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, together with signed or reproduced
copies of such letter for each of the other Underwriters substantially to the
effect set forth in Exhibit A hereto and to such further effect as counsel to
the Underwriters may reasonably request. 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 officers of the Company and its
subsidiaries and certificates of public officials.
(c) Opinion of Special Tax Counsel for the Trust and the Company. At
Closing Time, the Company, the Trust and the Representative shall have received
an opinion, dated as of Closing Time, of Xxxxxxx & Xxxxxx, LLP, special tax
counsel to the Trust and the Company, that (i) the Debt Securities 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
"United States Federal Income Taxation" does not purport to discuss all possible
United States federal income tax consequences of the purchase, ownership and
disposition of the Preferred 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
Preferred Securities under current law. 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 officers of the Company and its
subsidiaries and certificates of public officials.
(d) Opinion of Special Delaware Counsel for the Trust. At Closing Time, the
Representative shall have received the favorable opinion, dated as of the
Closing Time, of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to
the Trust, together with signed or reproduced copies of such letter for each of
the Underwriters to the effect set forth in Exhibit B hereto and to such further
effect as counsel to the Underwriters may reasonably request.
(e) Opinion of Counsel for The Bank of New York. At Closing Time, the
Representative shall have received an opinion, dated as of Closing Time, of
Xxxxx, Xxxxxx & Xxxxxx, LLP, counsel to The Bank of New York, as Property
Trustee and Debt Securities Trustee, and The Bank of New York (Delaware), as
Guarantee Trustee, in form and substance satisfactory to the Underwriters.
(f) Opinion of Counsel for Underwriters. At Closing Time, the
Representative shall have received the favorable opinion, dated as of Closing
Time, of Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, together
with signed or reproduced copies of such letter for each of the other
Underwriters with respect to the validity of the Preferred Securities, the
Registration Statement, the Prospectus and other related matters as the
Underwriters may reasonably request. In giving such opinion such counsel may
rely, as to all matters governed by the laws of jurisdictions other than the law
of the State of New York and the federal law of the United States, upon the
opinions of counsel satisfactory to the Underwriters. 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 officers of the Company and
its subsidiaries and certificates of public officials.
(g) Trustee's Certificate. At Closing Time, the Representative shall have
received a certificate, dated as of Closing Time, signed by an authorized
officer or any Vice President of The Bank of New York, in which such officer
shall state that the information contained in the Form T-1 is true and accurate
as of its date.
(h) Officers' Certificates. At 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, (A) 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 ordinary course of business, and the
Representative shall have received a certificate of the Chairman, the President,
a Vice Chairman or a Vice President of the Company and of the chief financial or
chief accounting officer or the Treasurer of the Company, dated as of Closing
Time, to the effect that (i) there has been no such material adverse change,
(ii) the representations and warranties in Section 1(a) hereof are true and
correct with the same force and effect as though expressly made at and as of
Closing Time (except for representations or warranties which by their terms
speak as of a different date or dates), (iii) the Company has complied in all
material respects with all agreements and satisfied all conditions on its part
to be performed or satisfied at or prior to 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 are, to
the best of the Company's knowledge, threatened by the Commission; or (B) any
material adverse change in the condition, financial or otherwise, or in the
earnings or business affairs of the Trust, and the Representative shall have
received a certificate of a Regular Trustee of the Trust, dated as of Closing
Time, to the effect that (i) there has been no such material adverse change,
(ii) the representations and warranties in Section 1(a) hereof are true and
correct with the same force and effect as though expressly made at and as of
Closing Time (except for representations or warranties which by their terms
speak as of a different date or dates), (iii) the Trust has complied in all
material respects with all agreements and satisfied all conditions on its part
to be performed or satisfied at or prior to 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 are, to
the best of the Trust's knowledge, threatened by the Commission.
(i) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Representative shall have received from PricewaterhouseCoopers
LLP a letter dated such date, in form and substance satisfactory to the
Representative, together with signed or reproduced copies of such letter for
each of the 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 Closing Time, the Representative shall
have received from PricewaterhouseCoopers LLP 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 5, except that the
specified date referred to shall be a date not more than three business days
prior to the Closing Time.
(k) Lock-up Agreements. At the date of this Agreement, the Representative
shall have received an agreement substantially in the form of Exhibit C hereto
signed by the Company and the Trust.
(l) Maintenance of Rating. At Closing Time, the Preferred Securities shall
be rated at least a2 by Xxxxx'x Investors Service, Inc. and BBB+ by Standard &
Poor's Ratings Group, a division of XxXxxx-Xxxx, Inc., and the Company shall
have delivered to the Underwriters a letter dated the Closing Time, from each
such rating agency, or other evidence satisfactory to the Representative,
confirming that the Preferred Securities have such ratings; and since the date
of this Agreement, there shall not have occurred a downgrading in the rating
assigned to the Preferred Securities or any of the Company's preferred
securities by any "nationally recognized statistical rating agency," as that
term is defined by the Commission for purposes of Rule 436(g)(2) under the 1933
Act, and no such organization shall have publicly announced that it has under
surveillance or review its rating of the Securities or any of the Company's
preferred securities.
(m) Over-allotment Option. In the event that the Underwriters exercise
their option to purchase all or any portion of the Option Preferred Securities,
the representations and warranties of the Trust and the Company contained herein
and the statements in any certificates furnished by the Trust or the Company or
any of its subsidiaries hereunder shall be true and correct as of each Date of
Delivery, and, at the relevant Date of Delivery, the Representative shall have
received:
(i) A certificate, dated such Date of Delivery, of the Chairman, the
President, a Vice Chairman or a Vice President of the Company and of the chief
financial officer or chief accounting officer or the Treasurer of the Company
and of a Regular Trustee of the Trust, confirming that the certificates
delivered at the Closing Time pursuant to Section 5(h) hereof remain true and
correct as of such Date of Delivery.
(ii) The opinions of (i) Xxxxxxx & Xxxxxx, LLP, special counsel for the
Company and (ii) Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to
the Trust, each in form and substance reasonably satisfactory to the
Representative, dated such Date of Delivery, relating to the Option Preferred
Securities and otherwise to the same effect as the opinions required by Sections
5(b) and 5(d) hereof.
(iii) The opinion of Xxxxxxx & Xxxxxx, LLP, special tax counsel to the
Trust and the Company, in form and substance reasonably satisfactory to the
Representative, dated such Date of Delivery, relating to the Option Preferred
Securities and otherwise to the same effect as the opinions required by Section
5(c) hereof.
(iv) The opinion of Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option Preferred
Securities and otherwise to the same effect as the opinion required by Section
5(f) hereof.
(v) A letter from PricewaterhouseCoopers LLP, in form and substance
reasonably satisfactory to the Representative and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished to the
Underwriters pursuant to Section 5(i) hereof, except that the "specified date"
on the letter furnished pursuant to this paragraph shall be a date not more than
three business days prior to such Date of Delivery.
(n) Additional Documents. At the Closing Time and at each Date of Delivery,
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 Preferred Securities as herein contemplated, or in
order to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company and Trust in connection with the issuance and sale of the
Preferred Securities as herein contemplated shall be satisfactory in form and
substance to the Representative and counsel for the Underwriters.
(o) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement (or, with respect to the Underwriters' exercise of their
over-allotment option for the purchase of Option Preferred Securities on a Date
of Delivery after the Closing Time, the obligations of the Underwriters to
purchase Option Preferred Securities on such Date of Delivery) may be terminated
by the Underwriters by notice to the Company at any time at or prior to Closing
Time (or such Date of Delivery, as applicable), and such termination shall be
without liability of any party to any other party except as provided in Section
4 and except that Sections 1, 6, 7 and 8 shall survive any such termination and
remain in full force and effect.
(p) Approval of Listing. At the Closing Time, the Preferred Securities
shall have been approved for listing on the New York Stock Exchange, subject
only to official notice of issuance.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. Each of the Company and the Trust
jointly and severally agrees to 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 430A Information and 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 included 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(e) below) any such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including the
fees and disbursements of counsel chosen by Citigroup), 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 Company by any Underwriter through
Citigroup expressly for use in the Registration Statement (or any amendment
thereto), including the Rule 430A Information and the Rule 434 Information, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(b) Indemnification of Trust by Company. The Company agrees to indemnify
the Trust against all loss, liability, claim, damage and expense whatsoever as
due from the Trust under Section 6(a) hereunder.
(c) Indemnification of Trust, Company, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Company and the
Trust, the Company's directors, each of the Company's officers and the Trustee
of the Trust who signed the Registration Statement, and each person, if any, who
controls the Company and the Trust 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 430A Information and
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 Company by such Underwriter
through Citigroup expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus, if any, or the Prospectus (or
any amendment or supplement thereto).
(d) 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 Citigroup, and, in the
case of parties indemnified pursuant to Section 6(c) above, counsel to the
indemnified parties shall be selected by the Company, in each case reasonably
acceptable to the indemnifying party. 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.
(e) Settlement without Consent if Failure to Reimburse. 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 of the nature contemplated by
Section 6(a)(ii) 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.
SECTION 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless 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, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Trust on the one hand and the Underwriters on the other hand from the offering
of the Preferred Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company and the Trust on the one
hand and of the Underwriters on the other hand in connection with the statements
or omissions, which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Trust on the one hand
and the Underwriters on the other hand in connection with the offering of the
Preferred 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
Preferred Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus, or, if
Rule 434 is used, the corresponding location on the Term Sheet, bear to the
aggregate initial public offering price of the Securities as set forth on such
cover.
The relative fault of the Company and the Trust on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company, the Trust 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 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 any 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 0000 Xxx) shall be entitled to contribution 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 and the Trustee of the
Trust who signed the Registration Statement, and each person, if any, who
controls the Company or the Trust 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 Initial Preferred
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 the Trustees of the Trust or any of
its other subsidiaries 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 Company, and
shall survive delivery of the Preferred Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representative may terminate this Agreement,
by notice to the Company and the Trust, at any time at or prior to the Closing
Time or any relevant Date of Delivery if (i) 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 Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, (ii) an
official interpretation or definitive guidance from the Federal Reserve Board
has been issued to the effect that trust preferred securities will no longer be
eligible under the rules and regulations of the Federal Reserve Board for "Tier
1" regulatory capital treatment, (iii) there has occurred any material adverse
change in the financial markets in the United States, any outbreak of
hostilities or escalation thereof, including, without limitation, an act of
terrorism, or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the
reasonable judgment of the Representative, impracticable or inadvisable to
market the Preferred Securities or to enforce contracts for the sale of the
Preferred Securities, (iv) trading in any securities of the Company has been
suspended or materially limited by the Commission or the New York Stock
Exchange, or if trading generally on the American Stock Exchange or the New York
Stock Exchange or in the Nasdaq National Market has been suspended or materially
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 National Association of Securities Dealers,
Inc. or any other governmental authority, or any major disruption has occurred
in commercial banking or securities settlement or any major disruption of
settlements of securities clearance services in the United States which will, in
the reasonable judgment of the Representative, prejudice materially the success
of the proposed issue, sale or disposition of the Preferred Securities, or (v) 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 or the relevant Date of
Delivery, as the case may be, to purchase the Preferred Securities which it or
they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Representative 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 Representative 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 number
of Preferred Securities to be purchased on such date, 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 number of
Preferred Securities to be purchased on such date, this Agreement (or, with
respect to the Underwriters' exercise of the over-allotment option for the
purchase of Option Preferred Securities on a Date of Delivery after the Closing
Time, the obligations of the Underwriters to purchase, and the Trust to sell,
such Option Preferred Securities on such Date of Delivery) 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 (i) a termination
of this Agreement or (ii) in the case of a Date of Delivery after the Closing
Time, a termination of the obligations of the Underwriters and the Trust with
respect to the related Option Preferred Securities, as the case may be, either
the Representative or the Company shall have the right to postpone Closing Time
or the relevant Date of Delivery, as the case may be, 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 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
Representative shall be directed to Citigroup at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, attention of Debt Syndicate Department; notices to the Trust
shall be directed to it at The Bank of New York, 000 Xxxxxxx Xxxxxx, Xxxxx 21
West, New York, New York 10286, attention of Corporate Trust Administration and
notices to the Company shall be directed to it at FleetBoston Financial
Corporation, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, 00000, attention of
General Counsel.
SECTION 12. Parties. This Agreement shall inure to the benefit of and be
binding upon the Underwriters, the Company and the Trust 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, the Company and the Trust and their respective successors and the
controlling persons and officers, trustees and directors 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, the Company and
the Trust and their respective successors, and said controlling persons and
officers, trustees and directors and their heirs and legal representatives, and
for the benefit of no other person, firm or corporation. No purchaser of
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 BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY
TIME.
SECTION 14. Effect of Headings. The Article and Section headings 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 and the Trust a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters, the Company and the Trust in accordance with
its terms.
Very truly yours,
FLEETBOSTON FINANCIAL CORPORATION
By:
-----------------------------------
Name:
Title:
FLEET CAPITAL TRUST IX
By:
-----------------------------------
Name:
Regular Trustee
CONFIRMED AND ACCEPTED,
as of the date first above written:
CITIGROUP GLOBAL MARKETS INC.
By: Citigroup Global Markets Inc.
By:
--------------------------------
Authorized Signatory
For itself and as Representative of the several Underwriters named in
Schedule A hereto.
SCHEDULE A
Number of
Name of Underwriter Preferred Securities
------------------- --------------------
Citigroup Global Markets Inc. 985,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 985,000
Xxxxxx Xxxxxxx & Co. Incorporated 985,000
Quick & Xxxxxx, Inc. 985,000
UBS Securities LLC 985,000
Wachovia Capital Markets, LLC 985,000
X.X. Xxxxxxx & Sons, Inc. 60,000
Bear, Xxxxxxx & Co. Inc. 60,000
U.S. Bancorp Xxxxx Xxxxxxx Inc. 60,000
Advest, Inc. 35,000
Banc One Capital Markets, Inc. 35,000
Banc of America Securities LLC 35,000
Deutsche Bank Securities Inc. 35,000
Fidelity Brokerage Services LLC 35,000
H&R Block Financial Advisors, Inc. 35,000
HSBC Securities (USA) Inc. 35,000
McDonald Investments Inc. 35,000
Xxxxxxx Xxxxx & Associates, Inc. 35,000
RBC Xxxx Xxxxxxxx Inc. 35,000
Sandler X'Xxxxx & Partners, L.P. 35,000
Xxxxxxx Xxxxxx & Co., Inc. 35,000
SunTrust Capital Markets, Inc. 35,000
Xxxxx Fargo Securities, LLC 35,000
ABN AMRO Incorporated 17,500
BB&T Investment Services, Inc. 17,500
Xxxxxxxx & Partners, L.P. 17,500
Credit Suisse First Boston LLC 17,500
X.X. Xxxxxxxx & Co. 17,500
Xxxxxxxxx & Company LLC 17,500
Xxxxxxxxxx & Co. Inc. 17,500
Xxxxxx, Xxxxx Xxxxx, Incorporated 17,500
Friedman, Billings, Xxxxxx & Co., Inc. 17,500
Xxxxxx & Company 17,500
Xxxxxx Xxxxxxxxxx Xxxxx LLC 17,500
J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc. 17,500
Xxxxx, Xxxxxxxx & Xxxxx, Inc. 17,500
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated 17,500
Mesirow Financial, Inc. 17,500
Xxxxxx Xxxxxx & Company, Inc. 17,500
Xxxxxx Xxxxxxx & Co., Inc. 17,500
Xxxxxx X. Xxxxxxx & Co., Inc. 17,500
Xxxxxx X. Xxxxx & Co. Incorporated 17,500
Xxxx Xxxx & Co. 17,500
Southwest Securities, Inc. 17,500
TD Waterhouse Capital Markets LLC 17,500
Xxxxxxxx Capital Partners, L.P. 17,500
The Xxxxxxxx Capital Group, L.P. 17,500
---------------
Total........................................... 7,000,000
SCHEDULE B
List of Significant Subsidiaries
Fleet National Bank
Exhibit A
Form of opinion, dated as of Closing Time, of Xxxxxxx & Xxxxxx, LLP,
counsel for the Company and the Trust, substantially to the effect that:
(i) Each of the Company and the subsidiaries of the Company listed on
Schedule B hereto, (the "Significant Subsidiaries") has been duly incorporated
and is validly existing as a corporation or national banking association in good
standing under the laws of the jurisdiction in which it is chartered or
organized, with full corporate power and authority to own its properties and
conduct its business as described in the Prospectus; the Company is duly
qualified to do business as a foreign corporation under the laws of the State of
New York and the laws of the Commonwealth of Massachusetts; and neither the
Company nor any Significant Subsidiary is required to be qualified to do
business as a foreign corporation under the laws of any other jurisdiction
(except where the failure to so qualify would not have a Material Adverse
Effect), and the Company is duly registered as a financial holding company under
the Bank Holding Company Act of 1956, as amended.
(ii) All the outstanding shares of the capital stock of the Significant
Subsidiaries have been duly and validly authorized and issued and are fully paid
and (except as provided in 12 U.S.C. Section 55 in the case of Fleet National
Bank and Fleet Bank, National Association) nonassessable, and, except as
otherwise set forth in the Prospectus, all outstanding shares of capital stock
of the Significant Subsidiaries are owned by the Company, free and clear of any
perfected security interest and, to the knowledge of such counsel, after due
inquiry, any other security interests claims, liens or encumbrances.
(iii) The Purchase Agreement has been duly authorized by the Company and
has been duly executed and delivered by each of the Company and the Trust.
(iv) The Indenture has been duly authorized, executed and delivered by the
Company and 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 bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or 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 considered in a proceeding in equity or at
law).
(v) The Debentures have been duly authorized, executed and delivered by the
Company and when the Debentures have been duly authenticated by the Indenture
Trustee in accordance with the provisions of the Indenture and delivered to and
paid for by the Trust, the Debentures will constitute valid and binding
obligations of the Company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or 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 considered in a proceeding in equity or at
law).
(vi) The Declaration has been duly authorized, executed and delivered by
the Company; and, assuming the due authorization, execution and delivery of the
Declaration by The Bank of New York and The Bank of New York (Delaware), the
Declaration constitutes a valid and binding obligation of the Company and is
enforceable against the Company and the Regular Trustees in accordance with its
terms, except as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or 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 considered in a
proceeding in equity or at law).
(vii) The Guarantee Agreements have been duly authorized, executed and
delivered by the Company, and are valid and binding agreements of the Company
enforceable against the Company in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or 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 considered in a proceeding in equity or at
law).
(viii) The Indenture, the Guarantee Agreements and the Declaration have
each been duly qualified under the 1939 Act.
(ix) The holders of outstanding shares of capital stock of the Company are
not entitled to any preemptive rights under the Articles of Incorporation or
By-Laws of the Company or the laws of the State of Rhode Island to subscribe for
the Preferred Securities or the Debentures.
(x) The documents incorporated by reference in the Prospectus (other than
the financial statements and supporting schedules included therein or omitted
therefrom, as to which such counsel need express no opinion), when they were
filed with the Commission complied as to form in all material respects with the
requirements of the 1934 Act and the rules and regulations of the Commission
thereunder.
(xi) The statements made in the Prospectus under the captions "Description
of the Preferred Securities," "Description of the Guarantee," "Description of
the Junior Subordinated Debentures" and "Effect of Obligations Under the Junior
Subordinated Debentures and the Guarantee," insofar as such statements purport
to summarize certain provisions of the Preferred Securities, the Common
Securities, the Debentures, the Preferred Securities Guarantee, the Indenture,
the Declaration, the Guarantee Agreements and the Articles of Incorporation of
the Company, to the extent that they constitute matters of law or legal
conclusions, have been reviewed by such counsel and fairly summarize the
information required to be disclosed therein.
(xii) Neither the issue and sale by the Trust of the Preferred Securities,
nor the consummation of any other of the transactions contemplated by the
Purchase Agreement nor the fulfillment of the terms in the Purchase Agreement
will conflict with, result in a breach of, or constitute a default under (in
each case material to the Company and its subsidiaries (including the Trust)
considered as a whole or as to the Trust separately) the charter or by-laws of
the Company or the organizational documents or Declaration of the Trust or the
terms of any indenture or other agreement or instrument known to such counsel
and to which the Company or any of its subsidiaries is a party or bound, or any
statute, order, rule or regulation known to such counsel to be applicable to the
Company or any of its subsidiaries of any court or regulatory authority or other
governmental body or arbitrator having jurisdiction over the Company or any of
its subsidiaries.
(xiii) Neither the Company nor the Trust is, and upon the issuance and sale
of the Preferred Securities as herein contemplated and the application of the
net proceeds therefrom as described in the Prospectus neither will be, required
to be registered under the Investment Company Act of 1940, as amended.
(xiv) There is no action, suit, proceeding, inquiry or investigation before
or brought by any court or governmental agency or body, domestic or foreign, now
pending or, to the best knowledge of such counsel, threatened, against or
affecting the Company or any of its subsidiaries, of a character required to be
disclosed in the Registration Statement which is not adequately disclosed in the
Prospectus, and there is no franchise, contract or other document of a character
required to be described in the Registration Statement or Prospectus, or to be
filed as an exhibit, which is not described or filed as required.
(xv) The Registration Statement was declared effective under the 1933 Act
on November 21, 2001; any required filing of the Prospectus pursuant to Rule
424(b) under the 1933 Act has been made in the manner and within the time period
required by Rule 424(b) and, such counsel has been orally advised by the
Commission that no stop order suspending the effectiveness of the Registration
Statement has been issued by the Commission and, no proceeding for that purpose
is pending or, to such Counsel's knowledge, threatened by the Commission.
(xvi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the transactions
contemplated by the Purchase Agreement, except such as have been obtained under
the Securities Act and such as may be required under the blue sky laws of any
jurisdiction or the securities laws of non-U.S. jurisdictions in connection with
the purchase and distribution of the Preferred Securities by the Underwriters
and such other approvals (specified in such opinion) as have been obtained.
(xvii) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
(xviii) The Registration Statement, as of its effective date, and the
Prospectus, as of its date, appeared on their face to be appropriately
responsive in all material respects to the requirements of the 1933 Act and the
1933 Act Regulations, except that in each case such counsel need not express an
opinion as to the financial statements, schedules and other financial and
statistical data included therein or excluded therefrom or the exhibits to the
Registration Statement, and such counsel need not assume any responsibility for
the accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Prospectus except for those made under the
captions "Description of the Preferred Securities," "Description of the
Guarantee," "Description of the Junior Subordinated Debentures" and "Effect of
Obligations Under the Junior Subordinated Debentures and the Guarantee" in the
Prospectus insofar as they relate to provisions of documents therein described.
Additionally, in giving its opinion, such counsel shall state that such
counsel has participated in conferences with representatives of the
Underwriters, officers and other representatives of the Company and
representatives of the independent certified public accountants of the Company,
at which conferences the contents of the Registration Statement and the
Prospectus and related matters were discussed, and although such counsel does
not pass upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Prospectus (except and only to the extent as set forth in
paragraphs (xviii) above), on the basis of the foregoing (relying as to matters
of fact to a large extent upon the discussions with and representations and
opinions of officers and other representatives of the Company), no facts have
come to the attention of such counsel which lead such counsel to believe that
the Registration Statement at the time it became effective or at the date hereof
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus, as of its date or the date of such
opinion, included an untrue statement of a material fact or omitted 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 that such
counsel does not express any comment with respect to the financial statements
including the notes thereto and supporting schedules, or any other financial and
statistical data set forth or referred to in the Registration Statement or the
Prospectus.
Exhibit B
Form of opinion, dated as of Closing Time, of Xxxxxxxx, Xxxxxx & Finger, P.A.,
special Delaware counsel for the Trust, substantially to the effect that:
(i) The Trust has been duly created and is validly existing in good
standing as a statutory trust under the Statutory Trust Act, and all filings
required under the laws of the State of Delaware with respect to the creation
and valid existence of the Trust as a business trust have been made.
(ii) Under the Statutory Trust Act and the Declaration of Trust, the Trust
has the trust power and authority to own property and conduct its business, all
as described in the Declaration of Trust and the Prospectus, and to enter into
and perform its obligations under the Purchase Agreement.
(iii) The Preferred Securities have been duly authorized for issuance in
accordance with the Declaration of Trust and, when issued and delivered against
payment of the consideration as set forth in the Purchase Agreement, the
Preferred Securities will be validly issued and, subject to the qualifications
set forth in this paragraph, fully paid and non-assessable undivided beneficial
interests in the assets of the Trust. The Preferred Security Holders will be
entitled to the benefits of the Declaration of Trust and, as beneficial owners
of the Trust, will be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware. We note that the Preferred
Security Holders may be obligated pursuant to the Declaration of Trust to (i)
provide indemnity and/or security in connection with and pay taxes or
governmental charges arising from transfers or exchanges of preferred security
certificates and the issuance of replacement preferred security certificates and
(ii) provide security or indemnity in connection with requests of or directions
to the Institutional Trustee to exercise its rights and remedies under the
Declaration of Trust.
(iv) The Common Securities have been duly authorized for issuance in
accordance with the Declaration of Trust and, when issued and delivered against
payment of the consideration as set forth in the Declaration of Trust, the
Common Securities will be validly issued and, subject to the qualifications set
forth in this paragraph and except to the extent provided in Sections 4.4 and
10.1 of the Declaration of Trust, fully-paid and non-assessable undivided
beneficial interests in the assets of the Trust. The Common Security Holder will
be entitled to the benefits of the Declaration of Trust and, as a beneficial
owner of the Trust, will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware. We note that the
Common Security Holder may be obligated pursuant to the Declaration of Trust to
(i) provide indemnity and/or security in connection with and pay taxes or
governmental charges arising from transfers or exchanges of preferred security
certificates and the issuance of replacement preferred security certificates and
(ii) provide security or indemnity in connection with requests of or directions
to the Trustees. In addition, we note that under Sections 4.4 and 10.1 of the
Declaration of Trust, the Common Security Holder is responsible for the debts,
obligations, costs and expenses of the Trust
(v) Under the Statutory Trust Act and the Declaration of Trust, the
issuance of the Preferred Securities and the Common Securities is not subject to
preemptive or other similar rights.
(vi) Under the Declaration of Trust and the Statutory Trust Act, the
execution and delivery by the Trust of the Purchase Agreement, and the
performance by the Trust of its obligations thereunder, have been duly
authorized by all necessary trust action on the part of the Trust and, assuming
due execution and delivery of the Purchase Agreement on behalf of the Trust by a
Regular Trustee, the Purchase Agreement has been duly executed and delivered by
the Trust.
(vii) The Declaration of Trust constitutes a valid and binding obligation
of the Company and the Trustees and is enforceable against the Company and the
Trustees in accordance with its terms.
(viii) The issuance and sale by the Trust of the Preferred Securities, the
purchase by the Trust of the Debentures, the execution, delivery and performance
by the Trust of the Purchase Agreement, the consummation by the Trust of the
transactions contemplated thereby and compliance by the Trust with its
obligations thereunder do not violate (i) any of the provisions of the
Certificate or the Declaration of Trust or (ii) any Delaware law or Delaware
administrative regulation applicable to the Trust.
(ix) No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any Delaware court or Delaware
governmental authority or Delaware agency is necessary or required solely in
connection with the issuance and sale by the Trust of the Preferred Securities,
the purchase by the Trust of the Debentures, the execution, delivery and
performance by the Trust of the Purchase Agreement, the consummation by the
Trust of the transaction contemplated thereby and compliance by the Trust with
its obligations thereunder.
The opinions expressed in paragraphs 3, 4 and 7 above are subject, as to
enforcement, to the effect upon the Declaration of Trust of (i) bankruptcy,
insolvency, moratorium, receivership, reorganization, liquidation, fraudulent
conveyance or transfer and other similar laws relating to or affecting the
rights and remedies of creditors generally, (ii) principles of equity, including
applicable law relating to fiduciary duties (regardless of whether considered
and applied in a proceeding in equity or at law), and (iii) the effect of
applicable public policy on the enforceability of provisions relating to
indemnification or contribution.
Form of lock-up pursuant to Section 5(k)
Exhibit C
July 24, 2003
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Representative of the Several Underwriters
Re: Proposed Public Offering by FleetBoston Financial Corporation
Ladies and Gentlemen:
The undersigned, FleetBoston Financial Corporation, a Rhode Island
corporation (the "Company") and Fleet Capital Trust IX, a Delaware statutory
trust (the "Trust") understand that Citigroup Global Markets Inc. ("Citigroup"),
as representative of the several initial purchasers proposes to enter into a
Purchase Agreement (the "Purchase Agreement") with the Company and the Trust,
providing for the public offering of 7,000,000 of the Trust's 6.000% Preferred
Securities (the "Preferred Securities"). In connection with the foregoing, the
Company will deposit in the Trust its 6.000% Junior Subordinated Debentures due
2033 (the "Debentures") In recognition of the benefit that such an offering will
confer upon the undersigned and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the undersigned agrees
with each underwriter to be named in the Purchase Agreement that, during a
period of 7 days from the date of the Purchase Agreement, the undersigned will
not, without the prior written consent of Citigroup, directly or indirectly,
offer, pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant for
the sale of, or otherwise dispose of or transfer any Preferred Securities, any
security convertible into or exchangeable into or exercisable for Preferred
Securities or Debentures or any debt securities substantially similar to the
Debentures or equity securities substantially similar to the Preferred
Securities, whether now owned or hereafter acquired by the undersigned or with
respect to which the undersigned has or hereafter acquires the power of
disposition, or file any registration statement under the Securities Act of
1933, as amended, with respect to any of the foregoing.
Very truly yours,
FLEETBOSTON FINANCIAL CORPORATION
By:
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Name:
Title:
FLEET CAPITAL TRUST IX
By:
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Name:
Regular Trustee
