Exhibit 1.3
EXECUTION VERSION
State Street Capital Trust II
Floating Rate Medium Term Capital Securities
liquidation amount
$1,000 per Capital Security
-----------------------------
Underwriting Agreement
January 14, 2003
Xxxxxxx, Xxxxx & Co.
As representative (the "Representative" or "you")
of the several Underwriters
named in Schedule I hereto,
c/x Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
State Street Capital Trust II, a Delaware statutory trust (the "Trust")
and a wholly owned subsidiary of State Street Corporation, a Massachusetts
corporation (the "Company"), proposes, subject to the terms and conditions
stated herein, to issue and sell to the Underwriters named in Schedule I hereto
(the "Underwriters") $300 million aggregate liquidation amount of the Trust's
Floating Rate Medium Term Capital Securities, liquidation amount $1,000 per
Capital Security (the "Firm Securities"), and, at the election of the
Underwriters, up to an additional $45 million aggregate liquidation amount of
the Trust's Floating Rate Medium Term Capital Securities, liquidation amount
$1,000 per Capital Security (the "Optional Securities") (the Firm Securities and
the Optional Securities that the Underwriters elect to purchase pursuant to
Section 2 hereof being together called the "Securities"). The Securities will
represent undivided beneficial ownership interests in the assets of the Trust,
will be guaranteed by the Company as to the payment of distributions, and as to
payments on liquidation or redemption, to the extent set forth in a guarantee
agreement dated as of January 21, 2003 (the "Guarantee") between the Company and
Bank One Trust Company, a national banking corporation, as trustee (the
"Guarantee Trustee"). The Securities are to be issued pursuant to the Amended
and Restated Trust Agreement of State Street Capital Trust II to be dated as of
January 21, 2003 (the "Trust Agreement") between the Company and Bank One Trust
Company, N.A., as Property Trustee, Bank One Delaware, Inc., as Delaware Trustee
and the Administrative Trustees named therein each as a Trustee (collectively,
the "Trustees"), which is substantially in the form filed as an exhibit to the
Registration Statement (as defined below). The proceeds of the sale by the Trust
of the Securities and its Common Securities, liquidation amount $1,000 per
Common Security (the "Common Securities"), are to be invested in the Floating
Rate Medium Term Junior Subordinated Deferrable Interest Debentures (the "Debt
Securities") of the Company having an aggregate principal amount equal to the
aggregate liquidation amount of the Securities and the Common Securities, to be
issued pursuant to the Junior Subordinated Indenture dated as of December 15,
1996 as supplemented by the Supplemental Indenture to be dated as of January 21,
2003 (the "Indenture") between the Company and Bank One Trust Company, N.A., as
Trustee (the "Indenture Trustee").
1. The Company and the Trust, jointly and severally, represent and
warrant to, and agree with, each of the Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-98267),
as amended by the Post-Effective Amendment No. 1 thereto (the "Initial
Registration Statement") in respect of the Securities has been filed
with the Securities and Exchange Commission (the "Commission"); the
Initial Registration Statement and any post-effective amendment
thereto, each in the form heretofore delivered or to be delivered to
you, and, excluding exhibits thereto but including all documents
incorporated by reference in the prospectus contained therein, to you
for each of the other Underwriters, have been declared effective by the
Commission in such form; other than (i) a registration statement, if
any, increasing the size of the offering (a "Rule 462(b) Registration
Statement"), filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended (the "Act"), which became effective upon filing, and
(ii) prospectus supplements filed pursuant to Rule 424(b) of the rules
and regulations of the Commission under the Act, each in the form
heretofore delivered to you, no other document with respect to the
Initial Registration Statement or document incorporated by reference
therein has heretofore been filed, or transmitted for filing, with the
Commission; and no stop order suspending the effectiveness of the
Initial Registration Statement, any post-effective amendment thereto or
the Rule 462(b) Registration Statement, if any, has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in the Initial
Registration Statement or filed with the Commission pursuant to Rule
424(a) or 424(b)(5) of the rules and regulations of the Commission
under the Act is hereinafter called a "Preliminary Prospectus"; the
various parts of the Initial Registration Statement and the Rule 462(b)
Registration Statement, if any, including all exhibits thereto and the
documents incorporated by reference in the prospectus contained in the
Initial Registration Statement at the time such part of the Initial
Registration Statement became effective, each as amended at the time
such part of the Initial Registration Statement became effective or
such part of the Rule 462(b) Registration Statement, if any, became
effective, are hereinafter collectively called the "Registration
Statement"; the prospectus supplement relating to the Securities, in
the form first filed, or transmitted for filing, with the Commission
pursuant to Rule 424(b) under the Act, together with the prospectus
included in the Initial Registration Statement, is hereinafter called
the "Prospectus"; any reference herein to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form under
the Act, as of the date of such Preliminary Prospectus or Prospectus,
as the case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include any documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated
by reference in such Preliminary Prospectus or Prospectus, as the case
may be; any reference to any amendment to the Registration Statement
shall be deemed to refer to and include any annual report of the
Company filed pursuant to Section 13(a) or 15(d) of the
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Exchange Act after the effective date of the Initial Registration
Statement that is incorporated by reference in the Registration
Statement;
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
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; and any further documents so filed
and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become effective
or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder 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; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter
through Xxxxxxx, Xxxxx & Co. expressly for use in the Prospectus;
(c) The Registration Statement (other than Form T-1 filings
filed as exhibits thereto) and the Prospectus, in each case, conform,
and any further amendments or supplements to the Registration Statement
(other than Form T-1 filings filed as exhibits thereto) or the
Prospectus will conform, in all material respects to the requirements
of the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date
as to the Registration Statement and any amendment thereto, and as of
the applicable filing date as to the Prospectus and any amendment or
supplement thereto, 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; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter
through Xxxxxxx, Xxxxx & Co. expressly for use in the Prospectus;
(d) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus; and, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any change in the
capital stock or long-term debt (other than (i) issuances of capital
stock upon exercise of options and stock appreciation rights issued
under equity incentive or stock option plans reported on the Company's
Proxy Statement filed with the Commission on March 11, 2002, (ii) upon
earn-outs of performance shares, (iii) upon repayment of long-term debt
in accordance with its terms, (iv) upon conversions of convertible
securities, (v) issuances of capital stock under deferred stock
compensation plans, restricted stock programs and saving-related
purchase plans, in the case of (i) through (v) above, which were
outstanding on the date of the latest balance sheet included or
incorporated by reference into the Prospectus, and (vi) repurchases of
the Company's Common Stock, par value $1.00 per share, in accordance
with the Company's stock repurchase program authorized by its Board of
Directors) of the Company or any of its
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subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries taken as a
whole, otherwise than as set forth or contemplated in the Prospectus;
(e) Each of the Company and State Street Bank and Trust
Company (the "Bank") has been duly incorporated and is validly existing
as a corporation or trust company in good standing under the laws of
the jurisdiction of its incorporation, with corporate and chartered
trust power and authority to own its properties and conduct its
business as described in the Prospectus and has been duly qualified as
a foreign corporation or trust company for the transaction of business
and is in good standing under the laws of each other jurisdiction in
which it owns or leases properties or conducts any business so as to
require such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction;
(f) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid
and non-assessable; and all of the issued shares of capital stock of
the Bank have been duly authorized and validly issued, are fully paid
and non-assessable and are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims;
(g) The Trust has been duly created and is validly existing as
a statutory trust in good standing under the Delaware Statutory Trust
Act with the power and authority to own its properties and conduct its
business as described in the Prospectus, and the Trust has conducted no
business to date other than as contemplated by the Prospectus and this
Agreement, and it will conduct no business in the future that would be
inconsistent with the Trust Agreement and the description of the Trust
set forth in the Prospectus; the Trust is not a party to or bound by
any agreement or instrument other than this Agreement, the Trust
Agreement, and the agreements and instruments contemplated by the Trust
Agreement; the Trust has no liabilities or obligations other than those
arising out of the transactions contemplated by this Agreement and the
Trust Agreement and described in the Prospectus; based on expected
operations and current law, the Trust is not and will not be classified
as an association taxable as a corporation for United States federal
income tax purposes; and the Trust is not a party to or subject to any
action, suit or proceeding of any nature;
(h) The Securities have been duly authorized by the Trust,
and, when issued and delivered against payment therefor as provided
herein, will be duly and validly executed, authenticated, issued and
delivered, and will be fully paid and non-assessable, undivided
beneficial interests in the assets of the Trust; the issuance of the
Securities is not subject to preemptive or other similar rights; the
Securities will have the rights set forth in the Trust Agreement, and
the terms of the Securities are valid and binding on the Trust; the
holders of the Securities (the "Securityholders") 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; the Trust Agreement has been duly
authorized and, when executed and delivered by the Company and the
Trustees, will constitute a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to enforcement,
to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles; and the Securities and the Trust Agreement will
conform to the descriptions thereof in the Prospectus;
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(i) The Common Securities of the Trust have been duly and
validly authorized by the Trust, and, when issued and delivered by the
Trust to the Company against payment therefor as described in the
Prospectus, will be duly and validly executed, authenticated, issued
and delivered, and will be fully paid and non-assessable, undivided
beneficial interests in the assets of the Trust and will conform in all
material respects to the description thereof contained in the
Prospectus; the issuance of the Common Securities is not subject to
preemptive or other similar rights; and at the First Time of Delivery
(as defined in Section 4 hereof), 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;
(j) The Debt Securities have been duly and validly authorized
by the Company, and, when issued and delivered by the Company to the
Trust against payment therefor as described in the Prospectus, will be
duly and validly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture, subject to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and other
general equity principles; and the Debt Securities will conform to the
descriptions thereof in the Prospectus;
(k) The Guarantee, the Trust Agreement and the Indenture each
has been duly and validly authorized by the Company (the Guarantee, the
Debt Securities, the Trust Agreement and the Indenture being
collectively referred to as the "Guarantor Agreements"), and, when
validly executed and delivered by the Company and, in the case of the
Guarantee, by the Guarantee Trustee, in the case of the Trust
Agreement, by the Trustees and, in the case of the Indenture, by the
Indenture Trustee, will each constitute a valid and legally binding
instrument, enforceable in accordance with their respective terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization,
and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; the Debt Securities
are entitled to the benefits of the Indenture; and the Guarantor
Agreements will conform to the descriptions thereof in the Prospectus;
(l) The issue and sale of the Securities by the Trust, the
execution and delivery of the Guarantor Agreements and this Agreement
and the compliance by the Company with all of the provisions of the
Securities, the Guarantor Agreements and this Agreement and the
consummation of the transactions therein and herein contemplated will
not conflict with or result in any breach or violation of any of the
terms or provisions of, or constitute a default under, or result in
the creation or imposition of any security interest, lien, charge or
encumbrance upon any property or assets of the Company or its
subsidiaries pursuant to, any material indenture, mortgage, deed of
trust, loan agreement, contract or other agreement or instrument to
which the Company or the Bank is a party or by which the Company or
the Bank is bound or to which any of the property or assets of the
Company or the Bank is subject, nor will such action result in any
violation of the provisions of the organizational documents (including
Articles of Organization or By-laws) of the Company or the Bank or any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company, the Bank or any
of their properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the
Securities or the consummation by the Company of the transactions
contemplated by the Guarantor Agreements and this Agreement, except
such as have been, or will have been prior to each Time of Delivery
(as defined in Section 4 hereof), obtained under the Act and the Trust
Indenture Act and such consents,
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approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Underwriters;
(m) Neither the Company nor the Bank is in violation of its
organizational documents (including Articles of Organization or
By-laws) or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any of
its properties may be bound, which, individually or in the aggregate,
would reasonably be expected to result in any material adverse change,
or any development involving a prospective material adverse change, in
or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole;
(n) The statements set forth in the Prospectus under the
captions "Description of Capital Securities", "Description of
Guarantee", "Description of Junior Subordinated Debentures",
"Relationship Among the Capital Securities, the Subordinated Debentures
and the Guarantee", "Description of the Capital Securities Guarantees"
and "Relationship Among the Capital Securities, the Corresponding
Junior Subordinated Debentures and the Capital Securities Guarantees",
insofar as they purport to constitute a summary of the terms of the
Securities, the Guarantee and the Debt Securities, and under the
caption "Underwriting", insofar as they purport to describe the
provisions of the laws and documents referred to therein, are accurate,
complete and fair, in all material respects;
(o) Other than as set forth in the Prospectus, there are no
pending or, to the Company's knowledge, threatened or contemplated
legal or government actions, suits or proceedings to which the Company
or any of its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject, which, taking into
account the likelihood of the outcome, the damages or other relief
sought and other relevant factors, individually and in the aggregate,
would reasonably be expected to result in any material adverse change,
or any development involving a prospective material adverse change, in
or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole;
(p) Neither the Company nor the Trust is and, after giving
effect to the offering and sale of the Securities, 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 "Investment Company Act");
(q) None of the Company, the Trust, nor any of their
affiliates does business with the government of Cuba or with any person
or affiliate located in Cuba within the meaning of Section 517.075,
Florida Statutes;
(r) Ernst & Xxxxx, LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder; and
(s) The Company is a bank holding company registered under the
Bank Holding Company Act of 1956, as amended; and the Company and the
Bank are in compliance with, and conduct their respective businesses in
conformity with, all applicable laws and
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governmental regulations governing bank holding companies, banks and
subsidiaries of bank holding companies, respectively, except failures
to so comply or be in conformity with that could not reasonably be
expected to have a material adverse change on the Company and its
subsidiaries taken as a whole.
2. Subject to the terms and conditions herein set forth, (a) the
Company and the Trust, jointly and severally, agree that the Trust will issue
and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Trust, at a purchase price per
security of $1,000, plus accrued distributions, if any, from January 21, 2002,
the number of Firm Securities with an aggregate liquidation amount as set forth
opposite the name of such Underwriter in Schedule I hereto and (b) in the event
and to the extent that the Underwriters shall exercise the election to purchase
Optional Securities as provided below, the Company and the Trust, jointly and
severally, agree that Trust will issue and sell to each of the Underwriters, and
each of the Underwriters agrees, severally and not jointly, to purchase from the
Trust, at the purchase price per security set forth in clause (a) of this
Section 2, that portion of the number of Optional Securities with an aggregate
liquidation amount equal to the aggregate liquidation amount as to which such
election shall have been exercised (to be adjusted by you so as to eliminate
fractional securities) determined by multiplying such number of Optional
Securities by a fraction, the numerator of which is the maximum number of
Optional Securities which such Underwriter is entitled to purchase as set forth
opposite the name of such Underwriter in Schedule I hereto and the denominator
of which is the maximum number of Optional Securities that all of the
Underwriters are entitled to purchase hereunder.
The Trust hereby grants to the Underwriters the right to purchase at
their election up to $45 million aggregate liquidation amount of Optional
Securities, at the purchase price per security set forth in the paragraph above,
for the sole purpose of covering sales of securities in excess of the number of
Firm Securities. Any such election to purchase Optional Securities may be
exercised only by written notice from Xxxxxxx, Xxxxx & Co. to the Trust, with a
copy to the Company, given within a period of 30 calendar days after the date of
this Agreement, setting forth the aggregate number of Optional Securities to be
purchased and the date on which such Optional Securities are to be delivered, as
determined by Xxxxxxx, Xxxxx & Co. but in no event earlier than the First Time
of Delivery (as defined in Section 4 hereof), or, unless Xxxxxxx, Xxxxx & Co.,
the Trust and the Company otherwise agree in writing, earlier than two or later
than ten business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Securities,
the several Underwriters propose to offer the Firm Securities for sale upon the
terms and conditions set forth in the Prospectus.
4. (a) The Securities to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Xxxxxxx, Xxxxx & Co. may request upon at least forty-eight hours' prior
notice to the Trust and the Company, shall be delivered by or on behalf of the
Trust to Xxxxxxx, Xxxxx & Co., through the facilities of The Depository Trust
Company ("DTC"), for the account of such Underwriter, against payment by or on
behalf of such Underwriter of the purchase price therefore by wire transfer of
Federal (same-day) funds to the account specified by the Trust to Xxxxxxx, Xxxxx
& Co. at least forty-eight hours in advance. At such same time, the Company
shall pay to you Underwriters' commissions in the amount of $6.00 per Security
in same-day funds, all at the office of Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000. The Company will cause the certificates representing
the Securities to be made available for checking and packaging at least
twenty-four hours prior to the Time of Delivery (as
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defined below) with respect thereto at the office of DTC or its designated
custodian (the "Designated Office"). The time and date of such delivery and
payment shall be, with respect to the Firm Securities, 9:30 a.m., New York City
time, on January 21, 2003 or such other time and date as Xxxxxxx, Xxxxx & Co.,
the Trust and the Company may agree upon in writing, and, with respect to the
Optional Securities, 9:30 a.m., New York City time, on the date specified by
Xxxxxxx, Xxxxx & Co. in the written notice given by Xxxxxxx, Xxxxx & Co. of the
Underwriters' election to purchase such Optional Securities, or such other time
and date as Xxxxxxx, Xxxxx & Co., the Trust and the Company may agree upon in
writing. Such time and date for delivery of the Firm Securities is herein called
the "First Time of Delivery", such time and date for delivery of the Optional
Securities, if not the First Time of Delivery, is herein called the "Second Time
of Delivery" and each such time and date for delivery is herein called a "Time
of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Securities and any additional documents requested by the
Underwriters pursuant to Section 7(n) hereof, will be delivered at the offices
of Ropes & Gray, 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, XX 00000-0000 (the
"Closing Location"), and the Securities will be delivered at the Designated
Office, all at such Time of Delivery. A meeting will be held at the Closing
Location at 3:00 p.m., New York City time, on the New York Business Day next
preceding such Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. For the purposes of this Section 4, "New York
Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York City are generally
authorized or obligated by law or executive order to close.
5. The Company and the Trust, jointly and severally, agree with each of
the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to
file such Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission's close of business on the second business day
following the execution and delivery of this Agreement, or, if
applicable, such earlier time as may be required by Rule 424(b); to
make no further amendment or any supplement to the Registration
Statement or Prospectus prior to the last Time of Delivery which shall
be disapproved by you promptly after reasonable notice thereof; to
advise you promptly of any such amendment or supplement after the last
Time of Delivery (other than filings of reports under the Exchange Act)
and furnish you with copies thereof; to file promptly all reports and
any definitive proxy or information statements required to be filed by
the Company or the Trust with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the
Prospectus and for so long as the delivery of a prospectus is required
in connection with the offering or sale of the Securities, and during
such same period, to advise you, promptly after it receives notice
thereof, of the time when any amendment to the Registration Statement
has been filed or becomes effective or any supplement to the Prospectus
or any amended Prospectus has been filed with the Commission and to
furnish you with copies thereof; to advise you, promptly after it
receives notice thereof, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any
prospectus relating to the Securities, of the suspension of the
qualification of the Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending
or supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of any
prospectus relating to the Securities or suspending any such
qualification, to promptly use its best efforts to obtain the
withdrawal of such order;
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(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Securities for offering and sale
under the securities laws of such jurisdictions as you may request and
to comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary
to complete the distribution of the Securities; provided that in
connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process
in any jurisdiction;
(c) Prior to 11:00 a.m., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time
to time, to furnish the Underwriters with written and electronic copies
of the Prospectus, and any amendments or supplements thereto, in New
York City in such quantities as you may reasonably request, and, if the
delivery of a prospectus is required at any time in connection with the
offering or sale of the Securities and if at such time any event shall
have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if for any
other reason it shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to comply
with the Act or the Exchange Act, to notify you and upon your request
to file such document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many written and
electronic copies as you may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will correct
such statement or omission or effect such compliance;
(d) To make generally available to its securityholders as soon
as practicable, but in any event not later than eighteen months after
the effective date of the Registration Statement (as defined in Rule
158(c)), an earnings statement of the Company and its subsidiaries (and
the Trust if required by the Commission) (which need not be audited)
complying with Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including, at the option of the Company,
Rule 158);
(e) During the period beginning from the date hereof and
continuing to and including the date 90 days after the date of the
Prospectus, not to, and in the case of the Company not to and to cause
the Trust not to, offer, sell, contract to sell, pledge, grant any
option to purchase, make any short sale or otherwise dispose of, except
as provided hereunder, any securities of the Trust that are
substantially similar to the Securities, without the prior written
consent of Xxxxxxx, Xxxxx & Co.; provided, however, that neither the
Company nor the Trust shall be restricted from offering, selling,
contracting to sell or otherwise disposing of any securities that are
substantially similar to the Securities having a maturity of 10 years
or greater;
(f) To use the net proceeds received by it, and in the case of
the Company to cause the Trust to use the net proceeds received by it,
from the sale of the Securities pursuant to this Agreement in the
manner specified in the Prospectus under the caption "Use of Proceeds";
(g) If the Company and the Trust elect to rely upon Rule
462(b), the Company and the Trust shall file a Rule 462(b) Registration
Statement with the Commission in compliance with Rule 462(b) by 10:00
p.m., Washington, D.C. time, on the date of this Agreement, and the
9
Company shall at the time of filing either pay to the Commission the
filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the Act;
(h) To issue the Guarantee and the Debt Securities
concurrently with the issue and sale of the Firm Securities; and
(i) Upon request of any Underwriter, to furnish, or cause
to be furnished, to such Underwriter an electronic version of the
Company's trademarks, servicemarks and corporate logo for use on the
website, if any, operated by such Underwriter for the purpose of
facilitating the on-line offering of the Securities (the "License");
provided, however, that the License shall be used solely for the
purpose described above, is granted without any fee and may not be
assigned or transferred.
6. The Company and the Trust jointly and severally covenant and agree
with the several Underwriters that the Company and the Trust will pay or cause
to be paid the following: (i) the fees, disbursements and expenses of the
Company's and the Trust's counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement
among Underwriters, this Agreement, any Guarantor Agreement, any Blue Sky
Memoranda, closing documents (including any compilations thereof) and any other
documents in connection with the offering, purchase, sale and delivery of the
Securities or the Debt Securities; (iii) all expenses in connection with the
qualification of the Securities for offering and sale under state securities
laws as provided in Section 5(b) hereof, including the fees and disbursements of
counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky survey(s); (iv) any fees charged by securities
rating services for rating the Securities; (v) the filing fees incident to, and
the fees and disbursements of counsel for the Underwriters in connection with,
any required review by the National Association of Securities Dealers, Inc. of
the terms of the sale of the Securities; (vi) the cost of preparing the
Securities and the Debt Securities; (vii) the fees and expenses of the Trustees,
the Guarantee Trustee and the Indenture Trustee and any of their respective
agents, and the fees and disbursements of counsel for the Trustees, the
Guarantee Trustee and the Indenture Trustee; and (viii) all other costs and
expenses incident to the performance of their obligations hereunder and under
the Guarantor Agreements which are not otherwise specifically provided for in
this Section. It is understood, however, that, except as provided in this
Section, and Sections 8 and 11 hereof, the Underwriters will pay all of their
own costs and expenses, including the fees of their counsel, transfer taxes on
resale of any of the Securities by them, and any advertising expenses connected
with any offers they may make.
7. The obligations of the Underwriters hereunder, as to the Securities
to be delivered at each Time of Delivery, shall be subject, in your discretion,
to the condition that all representations and warranties and other statements of
the Company and the Trust herein are, at and as of such Time of Delivery, true
and correct, the condition that the Company and the Trust shall have performed
all of their obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in
accordance with Section 5(a) hereof; if the Company and the Trust have
elected to rely upon Rule 462(b), the Rule 462(b) Registration
Statement shall have become effective
10
by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no
stop order suspending the effectiveness of the Registration Statement
or any part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission; and
all requests for additional information on the part of the Commission
shall have been complied with to your reasonable satisfaction;
(b) Cravath, Swaine & Xxxxx, counsel for the Underwriters,
shall have furnished to you such written opinion or opinions (a draft
of each such opinion is attached as Xxxxx XX(a) hereto), dated as of
such Time of Delivery, with respect to the matters covered in
paragraphs (i), (iii), (iv), (vi) and (vii) of subsection (d) below as
well as such other related matters as you may reasonably request, and
such counsel shall have received such papers and information as they
may reasonably request to enable them to pass upon such matters;
(c) Xxxxxxx Xxxxxxxx Xxxxxxx, General Counsel for the Company
and counsel for the Trust, shall have furnished to you her written
opinion (a draft of such opinion is attached as Xxxxx XX(b) hereto),
dated as of such Time of Delivery, in form and substance satisfactory
to you, to the effect that:
(i) Each of the Company and the Bank has been duly
incorporated and is validly existing as a corporation or
chartered trust company in good standing under the laws of the
Commonwealth of Massachusetts, with corporate and chartered
trust power and authority to own its properties and conduct
its business as described in the Prospectus, and the Company
has all requisite corporate power and authority to execute and
deliver the Guarantor Agreements and this Agreement and to
consummate the transactions contemplated thereby and hereby;
(ii) The Company has an authorized capitalization as
set forth in the Prospectus; and all of the issued shares of
capital stock of the Bank have been duly authorized and
validly issued, are fully paid and non-assessable and are
owned directly or indirectly by the Company, free and clear of
all liens, encumbrances, equities or claims;
(iii) To the best of such counsel's knowledge and
other than as set forth in the Prospectus, there are no
pending, threatened or contemplated legal or governmental
actions, suits or proceedings to which the Company or any of
its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject, which,
taking into account the likelihood of the outcome, the damages
or individually or in the aggregate, would reasonably be
expected to result in any material adverse change, or any
development involving a prospective material adverse change,
in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the
Company and its subsidiaries taken as a whole;
(iv) The execution and delivery by the Company of
this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary
corporate action on the part of the Company; and this
Agreement has been duly executed and delivered by the Company;
(v) The Securities conform to the descriptions
thereof in the Prospectus;
(vi) Each of the Guarantor Agreements has been duly
authorized, executed and delivered by the Company and
constitutes a valid and legally binding instrument,
11
other relief sought and other relevant factors, enforceable
against the Company in accordance with its terms, subject, as
to enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the
Debt Securities are entitled to the benefits provided by the
Indenture;
(vii) The issue and sale of the Securities being
delivered at such Time of Delivery by the Trust, the issue by
the Company of the Guarantee and the Debt Securities, the
execution and delivery of the Guarantor Agreements and this
Agreement and the compliance with all of the provisions of the
Guarantor Agreements and this Agreement and the consummation
of the transactions therein and herein contemplated will not
conflict with or result in any breach or violation of any of
the terms or provisions of, or constitute a default under, or
result in the creation or imposition of any security interest,
lien, charge or encumbrance upon any property or assets of the
Company or the Bank pursuant to, any indenture, mortgage, deed
of trust, loan agreement, contract or other agreement or
instrument known to such counsel to which the Company or the
Bank is a party or by which the Company or the Bank is bound
or to which any of the property or assets of the Company or
the Bank is subject, nor will such action result in any
violation of the provisions of the organizational documents
(including Articles of Organization or By-laws) of the Company
or the Bank or any statute or any order, rule or regulation
known to such counsel of any court or governmental agency or
body having jurisdiction over the Company, the Bank or any of
their properties;
(viii) No consent, approval, authorization, order,
registration or qualification of or with any court or
governmental agency or body is required for the issue and sale
of the Securities being delivered at such Time of Delivery or
the consummation by the Company or the Trust of the
transactions contemplated by the Guarantor Agreements or this
Agreement, except such as have been, or will have been prior
to such Time of Delivery, obtained under the Act and the Trust
Indenture Act, and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase
and distribution of the Securities by the Underwriters;
(ix) Neither the Company nor the Bank is in violation
of its organizational documents (including Articles of
Organization or By-laws) or in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it
is a party or by which it or any of its properties may be
bound, which, individually or in the aggregate, would
reasonably be expected to result in any material adverse
change, or any development involving a prospective material
adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries
taken as a whole;
(x) The statements set forth in the Prospectus under
the caption "Description of Capital Securities", "Description
of Guarantee", "Description of Junior Subordinated
Debentures", "Relationship Among the Capital Securities, the
Subordinated Debentures and the Guarantee", "Description of
the Capital Securities Guarantees" and "Relationship Among the
Capital Securities, the Corresponding Junior Subordinated
Debentures and the Capital Securities Guarantees", insofar as
they
12
purport to constitute a summary of the terms of the
Securities, the Guarantee and the Debt Securities, and under
the caption "Underwriting", insofar as they purport to
describe the provisions of the laws and documents referred to
therein, are accurate, complete and fair, in all material
respects;
(xi) Neither the Company nor the Trust is and, after
giving effect to the offering and sale of the Securities, will
be an "investment company" or an entity "controlled" by an
"investment company", as such terms are defined in the
Investment Company Act;
(xii) The documents incorporated by reference in the
Prospectus or any further amendment or supplement thereto
prior to such Time of Delivery (other than the financial
statements and related schedules and other financial and
accounting data therein, as to which such counsel need express
no opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all
material respects with the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder; and they have no reason to believe
that any of such documents, when such documents became
effective or were so filed, as the case may be, contained, in
the case of a registration statement which became effective
under the Act, 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, in the case of other documents which were filed under the
Exchange Act with the Commission, 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 when such documents
were so filed, not misleading; and
(xiii) The Registration Statement and the Prospectus
and any further amendment or supplement thereto prior to such
Time of Delivery (other than the financial statements and
related schedules and other financial and accounting data
therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the
requirements of the Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder; although
they do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, except for those
referred to in the opinion in subsection (x) of this section
7(c), they have no reason to believe that, as of its effective
date, the Registration Statement or any further amendment
thereto prior to such Time of Delivery (other than the
financial statements and related schedules and other financial
and accounting data therein, as to which such counsel need
express no opinion) 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, as of its date, the Prospectus or any
further amendment or supplement thereto prior to such Time of
Delivery (other than the financial statements and related
schedules and other financial and accounting data therein, as
to which such counsel need express no opinion) contained an
untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading or that, as of such Time of Delivery, the
Prospectus or any further amendment or supplement thereto
prior to such Time of Delivery (other than the financial
statements and related schedules and other financial and
accounting data therein, as to which such counsel need express
no opinion) contains an untrue statement of a material fact or
omits to state a material fact necessary to make the
statements therein, in the light of the
13
circumstances under which they were made, not misleading; and
they do not know of any amendment to the Registration
Statement required to be filed or of any contracts or other
documents of a character required to be filed as an exhibit to
the Registration Statement or required to be incorporated by
reference into the Prospectus or required to be described in
the Registration Statement or the Prospectus which are not
filed or incorporated by reference or described as required;
(d) Xxxxx and Xxxx, counsel for the Company, shall have
furnished to you their written opinion (a draft of such opinion is
attached as Xxxxx XX(c) hereto), dated as of such Time of Delivery, in
form and substance satisfactory to you, to the effect that:
(i) Each of the Company and the Bank is validly
existing as a corporation or chartered trust company in good
standing with the Secretary of State of the Commonwealth of
Massachusetts under the laws of the jurisdiction of its
incorporation, with corporate and chartered trust power and
authority to own its properties and conduct its business as
described in the Prospectus, and the Company has all requisite
corporate power and authority to execute and deliver the
Guarantor Agreements and this Agreement and to consummate the
transactions contemplated thereby and hereby;
(ii) The Company has an authorized capitalization as
set forth in the Prospectus; and all of the issued shares of
capital stock of the Bank have been duly authorized and
validly issued, are fully paid and non-assessable and are
owned directly or indirectly by the Company, free and clear of
all liens, encumbrances, equities or claims;
(iii) The execution and delivery by the Company of
this Agreement have been duly authorized by all necessary
corporate action on the part of the Company; and this
Agreement has been duly executed and delivered by the Company;
(iv) The Securities conform to the descriptions
thereof in the Prospectus;
(v) Each of the Guarantor Agreements has been duly
authorized, executed and delivered by the Company and
constitutes a valid and legally binding instrument,
enforceable against the Company in accordance with its
terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and
to general equity principles; and the Debt Securities are
entitled to the benefits provided by the Indenture;
(vi) The statements set forth in the Prospectus under
the caption "Description of Capital Securities", "Description
of Guarantee", "Description of Junior Subordinated
Debentures", "Relationship Among the Capital Securities, the
Subordinated Debentures and the Guarantee", "Description of
the Capital Securities Guarantees" and "Relationship Among the
Capital Securities, the Corresponding Junior Subordinated
Debentures and the Capital Securities Guarantees", insofar as
they purport to constitute a summary of the terms of the
Securities, the Guarantee and the Debt Securities, and under
the caption "Underwriting", insofar as they purport to
describe the provisions of the laws and documents referred to
therein, are accurate, complete and fair in all material
respects; and
(vii) The Registration Statement and the Prospectus
and any further amendment or supplement thereto prior to such
Time of Delivery (other than the
14
financial statements and related schedules and other
financial and accounting data therein, as to which such
counsel need express no opinion) comply as to form in all
material respects with the requirements of the Act and the
Trust Indenture Act and the rules and regulations of the
Commission thereunder; although they do not assume any
responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement or
the Prospectus, except for those referred to in the opinion
in subsection (x) of section 7(c), they have no reason to
believe that, as of its effective date, the Registration
Statement or any further amendment thereto prior to such
Time of Delivery (other than the financial statements and
related schedules and other financial and accounting data
therein, as to which such counsel need express no opinion)
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, as of its date, the Prospectus or any further
amendment or supplement thereto prior to such Time of
Delivery (other than the financial statements and related
schedules and other financial and accounting data therein,
as to which such counsel need express no opinion) contained
an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in
the light of the circumstances under which they were made,
not misleading or that, as of such Time of Delivery, the
Prospectus or any further amendment or supplement thereto
prior to such Time of Delivery (other than the financial
statements and related schedules and other financial and
accounting data therein, as to which such counsel need
express no opinion) contains an untrue statement of a
material fact or omits to state a material fact necessary to
make the statements therein, in the light of the
circumstances under which they were made, not misleading;
and they do not know of any amendment to the Registration
Statement required to be filed or of any contracts or other
documents of a character required to be filed as an exhibit
to the Registration Statement or required to be incorporated
by reference into the Prospectus or required to be described
in the Registration Statement or the Prospectus which are
not filed or incorporated by reference or described as
required;
(e) Xxxxxxxx, Xxxxxx & Xxxxxx, P.A., special Delaware Counsel
for the Trust, shall have furnished to you such written opinion (a
draft of such opinion is attached as Xxxxx XX(d) hereto), dated as of
such Time of Delivery, in form and substance satisfactory to you, to
the effect that:
(i) The Trust has been duly created and is validly
existing as a statutory business trust in good standing under
the Delaware Statutory Trust Act and, under the Trust
Agreement and the Delaware Statutory Trust Act, has the trust
power and authority to own its properties and conduct its
business, all as described in the Prospectus, 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
statutory trust have been made;
(ii) The Trust Agreement 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, and the terms of the Securities as
set forth in the Trust Agreement, to the extent they are
obligations of the Trust, are valid and binding obligations of
the Trust in accordance with the terms of the Trust Agreement,
all subject to the effect upon the Trust Agreement of (a)
bankruptcy, insolvency, moratorium, receivership,
reorganization, liquidation, fraudulent conveyance or transfer
and other
15
similar laws relating to or affecting the rights and remedies
of creditors generally, (b) 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 (c) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or
contribution;
(iii) Under the Trust Agreement and the Delaware
Statutory Trust Act, the Trust has the trust power and
authority to (a) execute and deliver this Agreement and to
perform its obligations under this Agreement, and (b) issue
and perform its obligations under the Securities and the
Common Securities;
(iv) Under the Trust Agreement and the Delaware
Statutory Trust Act, the execution and delivery by the Trust
of this Agreement and the performance by the Trust of its
obligations hereunder have been duly authorized by all
necessary trust action on the part of the Trust;
(v) The Securities have been duly authorized for
issuance under the Trust Agreement, and, when issued and
delivered against payment therefor as provided in this
Agreement and the Trust Agreement, will be validly issued and
fully paid and non-assessable, undivided beneficial interests
in the assets of the Trust; under the Trust Agreement and the
Delaware Statutory Trust Act, the issuance of the Securities
is not subject to preemptive rights; the Securities will be
entitled to the benefits of the Trust Agreement; the
Securityholders, 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;
provided that such counsel may note that the Securityholders
may be obligated, pursuant to the Trust Agreement, to (a)
provide indemnity and/or security in connection with and pay
taxes or governmental charges arising from transfers or
exchanges of Capital Securities Certificates (as defined in
the Trust Agreement) and the issuance of replacement Capital
Securities Certificates and (b) provide security and indemnity
in connection with requests of or directions to the Property
Trustee (as defined in the Trust Agreement) to exercise its
rights and remedies under the Trust Agreement;
(vi) The Common Securities of the Trust have been
duly and validly authorized by the Trust Agreement; and under
the Trust Agreement and the Delaware Business Trust Act, the
issuance of the Common Securities is not subject to preemptive
rights;
(vii) The issue and sale of the Securities and the
Common Securities by the Trust, the execution and delivery of
this Agreement by the Trust, the compliance by the Trust with
all of the provisions of the Securities, the Trust Agreement
and this Agreement, the purchase by the Trust of the Debt
Securities in the circumstances contemplated by the Trust
Agreement and the consummation of the transactions therein
contemplated do not violate (a) the Trust Agreement or the
Certificate of Trust of the Trust, or (b) any applicable
Delaware law, rule or regulation;
(viii) No authorization, approval, consent or order
of any Delaware court or Delaware governmental authority or
Delaware agency is required to be obtained by the Trust solely
in connection with the issuance and sale of the Securities and
the Common Securities; and
16
(ix) Assuming that the Trust derives no income from
or connected with sources within the State of Delaware and has
no assets, activities (other than having a Delaware trustee as
required by the Delaware Statutory Trust Act and filing
documents with the Delaware Secretary of State) or employees
in the State of Delaware and that the Trust is treated as a
grantor trust for federal income tax purposes, the
Securityholders (other than those holders of the Securities
who reside or are domiciled in the State of Delaware) will
have no liability for income taxes imposed by the State of
Delaware solely as a result of their participation in the
Trust, and the Trust will not be liable for any income tax
imposed by the State of Delaware.
In giving such opinion, Xxxxxxxx, Xxxxxx & Xxxxxx, P.A., may rely, as
to all matters governed by the laws of jurisdictions in which such counsel is
not qualified, upon opinions of other counsel, who shall be counsel satisfactory
to counsel for you, in which case the opinion shall state that they believe you
and they are entitled to rely on such opinions.
(f) Ropes & Gray, special tax counsel for the Company and the
Trust, shall have furnished to you its written opinion, dated as of
such Time of Delivery, in form and substance satisfactory to you, to
the effect that such firm confirms its opinion set forth in the
Prospectus under the caption "Certain United States Federal Income Tax
Considerations".
(g) On the date of this Agreement, at the effective date of
any post-effective amendment to the Registration Statement filed
subsequent to the date of this Agreement and also at each Time of
Delivery, the independent accountants who have certified the financial
statements of the Company and its subsidiaries included or incorporated
by reference in the Registration Statement shall have furnished to you
a letter or letters, dated the respective dates of delivery thereof, in
form and substance satisfactory to you, to the effect set forth in
Annex I hereto (the executed copy of the letter delivered to you on the
date of this Agreement is attached as Annex I(a) hereto and a draft of
the form of letter to be delivered on the effective date of any
post-effective amendment to the Registration Statement and as of each
Time of Delivery is attached as Annex I(b) hereto);
(h) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus any
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus, and (ii) since the
respective dates as of which information is given in the Prospectus
there shall not have been any change in the capital stock or long-term
debt of the Company or any of its subsidiaries (other than (A)
issuances of capital stock upon exercise of options and stock
appreciation rights, (B) upon earn-outs of performance shares, (C) upon
repayment of long-term debt in accordance with its terms, (D) upon
conversions of convertible securities, (E) issuances of capital stock
under deferred stock compensation plans, restricted stock programs and
saving-related stock purchase plans, in the case of (A) through (E)
above, which were outstanding on the date of the latest balance sheet
included or incorporated by reference into the Prospectus, and (F)
repurchases of the Stock in accordance with the Company's stock
repurchase program authorized by its Board of Directors) or any change,
or any development involving a prospective change, in or affecting the
general affairs, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries taken as a
whole, otherwise than as set forth or contemplated in the Prospectus,
the effect of which, in any such case described in clause
17
(i) or (ii), is in the judgment of the Representative so material and
adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Securities being delivered at
such Time of Delivery on the terms and in the manner contemplated in
the Prospectus;
(i) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's or the Bank's debt
securities or preferred stock or the Trust's outstanding securities by
any "nationally recognized statistical rating organization", as that
term is defined by the Commission for purposes of Rule 436(g)(2) under
the Act, and (ii) no such organization shall have publicly announced
that it has under surveillance or review, with possible negative
implications, its rating of any of the Company's or the Bank's debt
securities or preferred stock or the Trust's outstanding securities;
(j) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange (the
"Exchange"); (ii) a suspension or material limitation in trading in the
Company's securities on the Exchange; (iii) a general moratorium on
commercial banking activities declared by either Federal or New York or
Massachusetts State authorities or a material disruption in commercial
banking or securities settlement or clearance services in the United
States; (iv) the outbreak or escalation of hostilities involving the
United States or the declaration by the United States of a national
emergency or war; or (v) the occurrence of any other calamity or crisis
or any change in financial, political or economic conditions in the
United States or elsewhere, if the effect of any such event specified
in clause (iv) or (v) in the judgment of the Representative makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities being delivered at such Time of Delivery on
the terms and in the manner contemplated in the Prospectus;
(k) The Company has obtained and delivered to the Underwriters
copies of an agreement for those persons listed on Exhibit A hereto,
substantially to the effect set forth in Section 5(e) hereof in form
and substance satisfactory to you;
(l) The Company shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of prospectuses on
the New York Business Day next succeeding the date of this Agreement;
(m) The closing of the concurrent offerings of the Company's
(i) Common Stock, par value $1.00 per share and (ii) 6.75 % SPACES,
shall have occurred; and
(n) The Company and the Trust shall have furnished or caused
to be furnished to you at such Time of Delivery certificates of
officers of the Company and the trustees of the Trust satisfactory to
you as to the accuracy of the representations and warranties of the
Company and the Trust herein at and as of such Time of Delivery, as to
the performance by the Company and the Trust of all of their
obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (h) of
this Section and as to such other matters as you may reasonably
request.
8. (a) The Company and the Trust, jointly and severally, will indemnify
and hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue
18
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus and any other prospectus relating to the Securities,
or any amendment or supplement thereto to any of the foregoing, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that neither the Company nor the Trust shall be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary Prospectus,
any preliminary prospectus supplement, the Registration Statement, the
Prospectus and any other prospectus relating to the Securities, or any such
amendment or supplement thereto to any of the foregoing, in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through Xxxxxxx, Xxxxx & Co. expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company and
the Trust against any losses, claims, damages or liabilities to which the
Company or the Trust may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus and any other
prospectus relating to the Securities, or any amendment or supplement thereto to
any of the foregoing, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus and any other prospectus relating to the Securities, or any such
amendment or supplement thereto to any of the foregoing, in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through Xxxxxxx, Xxxxx & Co. expressly for use therein; and will reimburse the
Company and the Trust for any legal or other expenses reasonably incurred by the
Company or the Trust in connection with investigating or defending any such
action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to,
19
any pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is an
actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute, jointly and severally, to the amount paid
or payable by such indemnified party as a result of such losses, claims, damages
or liabilities (or actions in respect thereof) 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 from the offering of the
Securities to which such loss, claim, damage or liability (or action in respect
thereof) relates. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and the Trust on
the one hand and the Underwriters on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), 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 shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company and the Trust bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company and the Trust on
the one hand or the Underwriters on the other 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 subsection (d)
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
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), 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 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 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company and the Trust under this Section 8
shall be in addition to any liability which the Company or the Trust may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the
20
Act and each broker-dealer affiliate of any Underwriter; and the obligations of
the Underwriters under this Section 8 shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each trustee, officer and director of the Company
or the Trust and to each person, if any, who controls the Company or the Trust
within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Securities which it has agreed to purchase hereunder, you may in your
discretion arrange for you or another party or other parties to purchase such
Securities on the terms contained herein. If within thirty-six hours after such
default by any Underwriter you do not arrange for the purchase of such
Securities, then the Company shall be entitled to a further period of thirty-six
hours within which to procure another party or other parties satisfactory to you
to purchase such Securities on such terms. In the event that, within the
respective prescribed periods, you notify the Company that you have so arranged
for the purchase of such Securities, or the Company notifies you that it has so
arranged for the purchase of such Securities, you or the Company shall have the
right to postpone the Time of Delivery for such Securities for a period of not
more than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments to the Registration Statement or the Prospectus which in your opinion
may thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section with like effect as if
such person had originally been a party to this Agreement with respect to such
Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the number of such Securities which remains
unpurchased does not exceed one-eleventh of the number of all the Securities,
then the Company shall have the right to require each non-defaulting Underwriter
to purchase the number of Securities which such Underwriter agreed to purchase
hereunder and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Securities which such
Underwriter agreed to purchase hereunder) of the Securities of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate number of such Securities which
remains unpurchased exceeds one-eleventh of the number of all the Securities, or
if the Company shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Securities of a defaulting
Underwriter or Underwriters, then this Agreement shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter, the Trust or
the Company, except for the expenses to be borne by the Company, the Trust and
the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the Trust and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, the
Trust, or any trustee
21
or controlling person of the Trust, or the Company, or any officer or director
or controlling person of the Company, and shall survive delivery of and payment
for the Securities.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
the Company and the Trust shall not then be under any liability to any
Underwriter except as provided in Sections 6 and 8 hereof; but, if for any other
reason, the Securities are not delivered by or on behalf of the Trust as
provided herein, the Company and the Trust, jointly and severally, will
reimburse the Underwriters through you for all out-of-pocket expenses approved
in writing by you, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of the Securities not so delivered, but the Company and the Trust shall
then be under no further liability to any Underwriter except as provided in
Sections 6 and 8 hereof; provided, however; that all parties shall only be
responsible for their own out-of pocket expenses, including fees and
disbursements of counsel, if any Securities are not delivered by or on behalf of
the Company as provided herein for any of the following reasons: (i) a
suspension or material limitation in trading in securities generally on the
Exchange; (ii) a general moratorium on commercial banking activities declared by
either Federal or New York or Massachusetts State authorities or a material
disruption in commercial banking or securities settlement or clearance services
in the United States; (iii) the outbreak or escalation of hostilities involving
the United States or the declaration by the United States of a national
emergency or war or; (iv) the occurrence of any other calamity or crisis or any
change in financial, political or economic conditions in the United States or
elsewhere.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Xxxxxxx, Xxxxx & Co. on behalf of you.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representative in care of Xxxxxxx, Xxxxx &
Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Facsimile: (000) 000-0000,
Attention: Registration Department; and if to the Company or the Trust shall be
delivered or sent by mail, telex or facsimile transmission to the address or
facsimile number of the Company set forth in the Registration Statement,
Attention: Secretary; provided, however, that any notice to an Underwriter
pursuant to Section 8(c) hereof shall be delivered or sent by mail, telex or
facsimile transmission to such Underwriter at its address set forth in its
Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by you upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and the Trust and, to the extent
provided in Sections 8 and 10 hereof, the officers and directors of the Company,
the trustees of the Trust and each person who controls the Company, the Trust or
any Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. No purchaser of any of the Securities from
any Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
22
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
17. The Company and the Trust are each authorized, subject to
applicable law, to disclose any and all aspects of this potential transaction
that are necessary to support any U.S. federal income tax benefits expected to
be claimed with respect to such transaction, and all materials of any kind
(including tax opinions and other tax analyses) related to those benefits,
without the Underwriters imposing any limitation of any kind.
18. The obligations of the Company hereunder, as to the Securities to
be delivered at each Time of Delivery, shall be subject to the condition that
the closing of the concurrent offerings of the Company's (i) Stock and (ii)
6.75% SPACES, shall have occurred.
23
If the foregoing is in accordance with your understanding, please sign
and return to us eight counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof shall constitute a binding agreement between each of the Underwriters,
the Trust and the Company. It is understood that your acceptance of this letter
on behalf of each of the Underwriters is pursuant to the authority set forth in
a form of Agreement among Underwriters, the form of which shall be submitted to
the Company for examination upon request, but without warranty on your part as
to the authority of the signers thereof.
Very truly yours,
State Street Capital Trust II
By: /s/ Xxxxxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
Title: Senior Vice President,
Controller & Chief
Accounting Officer
State Street Corporation
By: /s/ Xxxxxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
Title: Senior Vice President,
Controller & Chief
Accounting Officer
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
By: /s/ Xxxxxxx, Xxxxx & Co.
------------------------------------
(Xxxxxxx, Xxxxx & Co.)
24
SCHEDULE I
Liquidation
Amount of
Optional
Liquidation Securities to
Amount of be Purchased
Firm Securities if Maximum
to be Option is
Underwriter Purchased Exercised
----------- ----------------- ----------------
Xxxxxxx, Xxxxx & Co. $ 60,000,000 $ 9,000,000
Credit Suisse First Boston Corporation (or any successor 60,000,000 9,000,000
thereto)
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx 60,000,000 9,000,000
Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated 60,000,000 9,000,000
Xxxxxxx Xxxxx Xxxxxx Inc. 60,000,000 9,000,000
----------------- ----------------
Total $ 300,000,000 $ 45,000,000
================= ================
25
EXHIBIT A
Xxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Xxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Xxxxxxxxx Xxxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxxx
X. Xxxxxxxxxxx Xxxxx
Xxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxx
Xxxxx X. Xxxx
Xxxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxx
Xxxxxx Xxx
Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxx
Xxxxxx Xxxxxxx Xxxxx
Xxxxxx X. Xxxxxxxx
26
