EXHIBIT 1
PURCHASE AGREEMENT
FLEETBOSTON FINANCIAL CORPORATION
(a Rhode Island corporation); and
FLEET CAPITAL TRUST VIII
(a Delaware statutory business trust)
20,000,000 Preferred Securities
7.20% Preferred Securities
(Liquidation Amount $25 Per Preferred Security)
Dated: March 1, 2002
Table of Contents
Page
SECTION 1. REPRESENTATIONS AND WARRANTIES
(a) Representations and Warranties by the Company and the Trust. .............4
(i) Compliance with Registration Requirements. ......................4
(ii) Incorporated Documents. .........................................5
(iii) Independent Accountants. ........................................5
(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. ...........................................7
(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
(b) Officers' Certificates. ..................................................9
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING
(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
(a) Compliance with Securities Regulations and Commission Requests. .........11
(b) Filing of Amendments. ...................................................11
(c) Delivery of Registration Statements. ....................................11
(d) Delivery of Prospectuses. ...............................................12
(e) Continued Compliance with Securities Laws. ..............................12
(f) Blue Sky Qualifications. ................................................12
(g) Rule 158. ...............................................................12
(h) DTC......................................................................13
(i) Use of Proceeds..........................................................13
(j) Restriction on Sale of Securities. ......................................13
(k) Reporting Requirements. .................................................13
SECTION 4. PAYMENT OF EXPENSES
(a) Expenses.................................................................13
(b) Termination of Agreement. ...............................................14
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS
(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. ...............................................17
(p) Approval of Listing......................................................18
SECTION 6. INDEMNIFICATION
(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
(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 VIII
(a Delaware statutory business trust)
20,000,000 Preferred Securities
7.20% Preferred Securities
(Liquidation Amount $25 Per Preferred Security)
PURCHASE AGREEMENT
March 1, 2002
Xxxxxxx Xxxxx Xxxxxx Inc.
Fleet Securities, Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
Prudential Securities Incorporated
UBS Warburg LLC
as Representatives of the several Underwriters
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Fleet Capital Trust VIII (the "Trust"), a statutory business trust
created under the Business 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 Xxxxxxx Xxxxx Xxxxxx Inc. ("Xxxxxxx Xxxxx
Barney"), Fleet Securities, Inc. ("Fleet"), Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated ("Xxxxxxx Xxxxx"), Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx
Xxxxxxx"), Prudential Securities Incorporated ("Prudential"), UBS Warburg LLC
("UBS Warburg") 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 Xxxxxxx
Xxxxx Barney, Fleet, Xxxxxxx Xxxxx, Xxxxxx Xxxxxxx, Prudential and UBS Warburg
are acting as Representatives (in such capacity, the "Representatives") with
respect to the issue and sale by the Trust and the purchase by the Underwriters,
acting severally and not jointly, of 7.20% 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
20,000,000 Initial Preferred Securities and all or part of the 3,000,000
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
Representatives deem 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 $515,463,925 aggregate principal amount of 7.20% Junior
Subordinated Debentures due 2032 (the "Initial Debentures") issued by the
Company and, if all or part of the Option Preferred Securities are purchased, up
to approximately an additional $77,319,600 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 Xxxxxx X.
XxXxxxx, Xxxxxxx X Xxxxxx and Xxxx X. Xxxxxxxxx, 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 Third Supplemental Indenture, to be dated as
of Closing Time (the "Third 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 Xxxxxxx Xxxxx Xxxxxx 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. The accountants who certified the
financial statements and supporting schedules included in the Registration
Statement are independent public accountants as required by the 1933 Act and the
1933 Act Regulations.
(iv) 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").
(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
3,000,000 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 March 8, 2002 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 Xxxxxxx Xxxxx
Xxxxxx 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 Xxxxxxx Xxxxx Barney, 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 Xxxxxxx Xxxxx Xxxxxx, 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 Xxxxxxx Xxxxx Barney 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 Xxxxx 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 Xxxxxxx Xxxxx Barney 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 Representatives, 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. Xxxxxxx
Xxxxx Xxxxxx, 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 Xxxxxxx Xxxxx Barney 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
Representatives 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 Representatives in The City of New York not later than
10:00 A.M. (Eastern time) on the business day prior to the Closing Time 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
Representatives 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 Representatives with copies of any such documents to, and consult
with, the Representatives 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 Representatives or counsel for the
Representatives 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
Representatives promptly after being transmitted for filing with the Commission.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to the Representatives and counsel for the Representatives, 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
Representatives, without charge, a conformed copy of the Registration Statement
as originally filed and of each amendment thereto (without exhibits) for each of
the Representatives. 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 Xxxxxxx Xxxxx Xxxxxx, 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 Representatives
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 Representatives 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 Representatives 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
Representatives 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
Representatives 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 Representatives 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
Representatives 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 Representatives 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 Representatives shall have received from PricewaterhouseCoopers
LLP a letter dated such date, in form and substance satisfactory to the
Representatives, together with signed or reproduced copies of such letter for
each of the 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 Representatives
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
Representatives 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
Representatives, 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 Representatives 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
Representatives, 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
Representatives, 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 Representatives 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 Representatives 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 Xxxxxxx Xxxxx
Barney), 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 Xxxxxxx Xxxxx Xxxxxx 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 Xxxxxxx Xxxxx Barney 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 Xxxxxxx Xxxxx Xxxxxx,
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 Representatives 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)
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
Representatives, impracticable or inadvisable to market the Preferred Securities
or to enforce contracts for the sale of the Preferred Securities, (iii) 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 Representatives, prejudice materially the success of the proposed issue,
sale or disposition of the Preferred Securities, or (iv) 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 Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
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 Representatives 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
Representatives shall be directed to Xxxxxxx Xxxxx Barney 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: /s/ Xxxx X. Xxxxxxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Assistant Treasurer
FLEET CAPITAL TRUST VIII
By: /s/ Xxxx X. Xxxxxxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxxxxxx
Regular Trustee
CONFIRMED AND ACCEPTED, as of the date first above written:
XXXXXXX XXXXX BARNEY INC.
FLEET SECURITIES, INC.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXX XXXXXXX & CO. INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED
UBS WARBURG LLC
By: Xxxxxxx Xxxxx Barney Inc.
By: /s/ Authorized Signatory
----------------------------------------------------
Authorized Signatory
For themselves and as Representatives of the several Underwriters named in
Schedule A hereto.
SCHEDULE A
Number of
Name of Underwriter Preferred Securities
--------------------------------------------------------------------- --------------------
Xxxxxxx Xxxxx Xxxxxx Inc. 2,585,000
Fleet Securities, Inc. 2,555,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 2,555,000
Xxxxxx Xxxxxxx & Co. Incorporated 2,555,000
Prudential Securities Incorporated 2,555,000
UBS Warburg LLC 2,555,000
X.X. Xxxxxxx & Sons, Inc. 300,000
Bear, Xxxxxxx & Co. Inc. 300,000
U.S. Bancorp Xxxxx Xxxxxxx Inc. 300,000
Wachovia Securities, Inc. 300,000
Advest, Inc. 150,000
CIBC World Markets Corp. 150,000
RBC Xxxx Xxxxxxxx Inc. 150,000
Deutsche Banc Alex. Xxxxx Inc. 150,000
Fidelity Capital Markets, a division of National Financial Services LLC 150,000
H&R Block Financial Advisors, Inc. 150,000
HSBC Securities (USA) Inc. 150,000
Xxxxx, Xxxxxxxx & Xxxxx, Inc. 150,000
McDonald Investments Inc., a KeyCorp Company 150,000
Xxxxxxx Xxxxx & Associates, Inc. 150,000
Xxxxxxxxx Xxxxxxxx, Inc. 150,000
Sandler O'Neil & Partners, L.P. 150,000
Xxxxxxx Xxxxxx & Co., Inc. 150,000
SunTrust Capital Markets, Inc. 150,000
Xxxxxx Xxxxxxx Incorporated 150,000
Xxxxx Fargo Securities, LLC 150,000
ABN AMRO Incorporated 40,000
BB&T Capital Markets, a division of Xxxxx & Xxxxxxxxxxxx, Inc. 40,000
Xxxxxxxx & Partners, L.P. 40,000
Comerica Securities, Inc. 40,000
Credit Suisse First Boston Corporation 40,000
X.X. Xxxxxxxx & Co. 40,000
Xxxxxxxxxx & Co. Inc. 40,000
Xxxxxx, Xxxxx Xxxxx, Incorporated 40,000
Fifth Third Securities, Inc. 40,000
Xxx-Xxxx, Xxxxxx Inc. 40,000
Gibraltar Securities Co. 40,000
Gruntal & Co., L.L.C 40,000
Xxxxxx & Company 40,000
J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc. 40,000
Xxxxxx Xxxxxxxxxx Xxxxx LLC 40,000
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated 40,000
Mesirow Financial, Inc. 40,000
Xxxxxx Xxxxxx & Company, Inc. 40,000
Xxxxxx Xxxxxxx & Co., Inc. 40,000
NatCity Investments, Inc. 40,000
Xxxxxx X. Xxxxx & Co. Incorporated 40,000
Xxxx, Xxxx & Co., LLC 40,000
SWS Securities, Inc. 40,000
TD Waterhouse Investors Services, Inc. 40,000
Xxxxxxxx Capital Partners, L.P. 40,000
The Xxxxxxxx Capital Group, L.P. 40,000
----------
Total..................................................20,000,000
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 business trust under the Delaware Act; 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; and the Trust has the
business trust power and authority to conduct its business, as described in the
Prospectus.
(ii) the Amended and Restated Declaration is a valid and binding
obligation of the Company and the Trustees, enforceable against the Company and
the Trustees in accordance with its terms, except to the extent that enforcement
thereof may be limited by (i) bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) general principles of equity (regardless of
whether enforceability is considered in a proceeding in equity or at law) and
except to the extent that the rights to indemnity and contribution contained
therein may be limited by state or securities laws or the public policy
underlying such laws.
(iii) the Preferred Securities have been duly authorized for issuance in
accordance with the Amended and Restated Declaration and, subject to the
qualifications set forth below, when certificates therefor in the form examined
by us are issued, executed and authenticated in accordance with the Amended and
Restated Declaration and delivered and paid for in accordance with the Purchase
Agreement, will be validly issued, fully paid and nonassessable undivided
beneficial interests in the assets of the Trust, will not be subject to
preemptive or other similar rights and will entitle the holders of the Preferred
Securities to the benefits of the Amended and Restated Declaration except to the
extent that enforcement of the Amended and Restated Declaration may be limited
by (i) bankruptcy, insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or other similar laws now
or hereafter in effect relating to creditors' rights generally and (ii) general
principles of equity (regardless of whether enforceability is considered in a
proceeding in equity or at law) and except to the extent that the rights to
indemnity and contribution contained therein may be limited by state or
securities laws or the public policy underlying such laws; and the holders of
the Preferred Securities 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 bring to your
attention, however, that the holders of Preferred Securities may be obligated,
pursuant to the Amended and Restated Declaration, to make payments, including
(i) to provide indemnity and/or security in connection with and pay taxes or
governmental charges arising from transfers of Preferred Securities and the
issuance of replacement Preferred Securities, and (ii) to provide security and
indemnity in connection with requests of or directions to the Institutional
Trustee to exercise its rights and powers under the Amended and Restated
Declaration.
(iv) the Common Securities have been duly authorized for issuance in
accordance with the Amended and Restated Declaration and, subject to the
qualifications set forth below, when certificates therefor in the form examined
by us are issued, executed and authenticated in accordance with the Amended and
Restated Declaration and delivered and paid for in accordance with the Purchase
Agreement, will be validly issued, fully paid and nonassessable undivided
beneficial interests in the assets of the Trust, will not be subject to
preemptive or other similar rights and will entitle the holder of the Common
Securities to the benefits of the Amended and Restated Declaration except to the
extent that enforcement of the Amended and Restated Declaration may be limited
by (i) bankruptcy, insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or other similar laws now
or hereafter in effect relating to creditors' rights generally and (ii) general
principles of equity (regardless of whether enforceability is considered in a
proceeding in equity or at law) and except to the extent that the rights to
indemnity and contribution contained therein may be limited by state or
securities laws or the public policy underlying such laws; and the holder of the
Common Securities 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.
(v) the issuance of the Preferred Securities is not subject to
preemptive or other similar rights under the Delaware Act or the Amended and
Restated Declaration.
(vi) the issuance of the Common Securities is not subject to preemptive
or other similar rights under the Delaware Act or the Amended and Restated
Declaration.
(vii) under the Amended and Restated Declaration and the Delaware Act,
the Trust has the requisite trust power and authority to execute and deliver the
Purchase Agreement, and to perform its obligations under the Purchase Agreement
and to consummate the transactions contemplated thereby. The Purchase Agreement
has been duly authorized, executed and delivered by the Trust.
(viii) the statements made in the Prospectus under the caption
"Description of the Preferred Securities" insofar as such statements constitute
summaries of Delaware law are accurate in all material respects.
Form of lock-up pursuant to Section 5(k)
Exhibit C
March 1, 2002
Xxxxxxx Xxxxx Xxxxxx Inc.
Fleet Securities, Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
Prudential Securities Incorporated
UBS Warburg LLC
As Representatives of the Several Underwriters
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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 VIII, a Delaware Statutory
business trust (the "Trust") understand that Xxxxxxx Xxxxx Xxxxxx Inc. ("Xxxxxxx
Xxxxx Barney"), Fleet Securities, Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, Xxxxxx Xxxxxxx & Co. Incorporated, Prudential Securities
Incorporated and UBS Warburg LLC, as representatives of the several initial
purchasers propose to enter into a Purchase Agreement (the "Purchase Agreement")
with the Company and the Trust, providing for the public offering of 20,000,000
of the Trust's 7.20% Preferred Securities (the "Preferred Securities"). In
connection with the foregoing, the Company will deposit in the Trust its 7.20%
Junior Subordinated Debentures due 2032 (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
Xxxxxxx Xxxxx Xxxxxx, 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: /s/ Authorized Signatory
--------------------------------------
Name:
Title:
FLEET CAPITAL TRUST VIII
By: /s/ Authorized Signatory
----------------------------------------
Name:
Regular Trustee
