EXHIBIT 10.b.i
The First National Bank of Boston
100 Federal Street
Boston, MA 02110
As of December 6, 1996
USTrust
40 Court Street
Boston, Massachusetts
Attention: Neal F. Finnegan
President and Chief Executive Officer
Re: Supplemental Loans, Loan Participations and Assignments
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Ladies and Gentlemen:
Reference is hereby made to that certain Purchase and Assumption
Agreement, dated as of June 18, 1996 (as amended or modified prior to the date
hereof, the "Purchase Agreement"), by and between The First National Bank of
Boston ("FNBB") and USTrust ("UST") and joined in for certain limited purposes
by Bank of Boston Corporation ("BKBC"). Terms defined in the Purchase Agreement
and used without definition herein shall have the same respective meanings
herein as in the Purchase Agreement.
Pursuant to the terms of the Purchase Agreement, FNBB has agreed, and
BKBC has agreed to cause BayBank, National Association ("BayBank"), (i) to
assign to UST on the BayBank Transfer Date certain interests in Supplemental
Loans (the "Assignments") and (ii) to grant to UST on the BayBank Transfer Date
certain participating interests in Supplemental Loans (the "Participations"), in
each case as more fully set forth in the Purchase Agreement and the Letter
Agreement, dated as of the date hereof, between FNBB and UST relating to the
BayBank Closing (the "BayBank Closing Side Letter"). In connection with such
transactions, the parties hereto hereby agree as follows:
1. FNBB hereby agrees to use reasonable efforts for a period of 30
days after the BayBank Transfer Date to obtain the consent of Panametrics, Inc.
in order to change UST's 49% Participation in the Supplemental Loan relating to
Panametrics, Inc. to an Assignment of a 49% interest in such Supplemental Loan
on terms substantially consistent with those contained in the Form of Assignment
and Acceptance attached hereto and incorporated herein as Exhibit A.
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2. In the event that FNBB continues to be a lender under the
Supplemental Loan relating to Fire Control Instruments, Inc. ("Fire Control") on
March 9, 1997, then UST's participating interest in such Supplemental Loan shall
be reduced from 100% to 49%; provided, however, that, in connection with such
reduction, FNBB agrees to use reasonable efforts to cause the borrower to
approve a change in UST's 49% Participation to an Assignment of a 49% interest
in such Supplemental Loan. FNBB hereby acknowledges and agrees that its
obligations under the first sentence of the third paragraph of Section 5(a) of
the Letter Agreement, dated as of November 8, 1996, between FNBB and UST
relating to the split closings of the sale of the Branches (the "Split Closing
Side Letter") apply to such Supplemental Loan to Fire Control; provided,
however, that notwithstanding the foregoing the parties hereto hereby agree that
the first sentence of the third paragraph of Section 5(a) of the Split Closing
Side Letter shall not apply to such Supplemental Loan, and FNBB shall not have
any obligation to grant to UST a replacement Assignment or Participation, upon
the repayment or prepayment of such Supplemental Loan from proceeds of a loan or
other extension of credit from UST or any Affiliate of UST.
3. FNBB hereby agrees to use reasonable efforts to determine, as soon
as practicable after the BayBank Transfer Date and in any event within 5
business days after the BayBank Transfer Date, whether the Supplemental Loans
with Ionics, Incorporated and/or Panametrics, Inc. are pledged by FNBB to any
other person or entity. In the event that FNBB determines that either such
Supplemental Loan is so pledged, then FNBB agrees to use reasonable efforts to
terminate such pledge, including, without limitation, substituting collateral
for such pledge. In the event that FNBB terminates such pledge with respect to
either Supplemental Loan, FNBB agrees to promptly notify UST of such
termination. In the event that FNBB is unable to terminate such pledge with
respect to either such Supplemental Loan within 15 business days after the
BayBank Transfer Date (whether by substitution of collateral or otherwise), then
FNBB agrees to repurchase UST's interest in any such Supplemental Loan remaining
pledged and to replace UST's interest in such Supplemental Loan with an interest
in a Replacement Loan (as defined in the applicable Assignment or Participation
agreement) in accordance with the terms of the applicable Assignment or
Participation agreement; provided that, for purposes of determining the timing
of such repurchase and replacement, the date of notice of such repurchase and
replacement shall be deemed to be the last day of the 15 day period referred to
above.
4. FNBB agrees to use reasonable efforts to, as soon as practicable
after the BayBank Closing Date, (a) provide UST with evidence reasonably
acceptable to counsel for UST indicating that the $9,800,000 total commitment
under the
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Supplemental Loan with HoltraChem, Inc. has been duly authorized by HoltraChem,
Inc. and (b) either (i) provide UST with evidence indicating that the maturity
of such Supplemental Loan has been duly extended or (ii) obtain an extension of
the maturity of such Supplemental Loan. In the event that FNBB is unable, within
15 business days after the BayBank Transfer Date (or, if requested by UST within
such 15 business day period, such additional period not to exceed 20 business
days), to (A) provide such evidence of due authorization of the total commitment
under such Supplemental Loan or (B) (i) provide such evidence of due extension
of the maturity of such Supplemental Loan or (ii) if applicable, obtain such
extension, then FNBB agrees to repurchase UST's interest in such Supplemental
Loan and to replace UST's interest in such Supplemental Loan with an interest in
a Replacement Loan (as defined in the applicable Assignment or Participation
agreement) in accordance with the terms of the applicable Assignment or
Participation agreement; provided that, for purposes of determining the timing
of such repurchase and replacement, the date of notice of such repurchase and
replacement shall be deemed to be the last day of the 15 day period (as the same
may be extended as set forth above) referred to above.
The parties further agree that in the event that FNBB is able, within
the 15 day period set forth above (as the same may be extended as set forth
above), to provide such evidence of due authorization and due extension of
maturity or, if applicable, extend such maturity, as described in the foregoing
paragraph, FNBB hereby agrees to use reasonable efforts for a period of 30 days
after the date on which FNBB provides such evidence of due authorization and due
extension of maturity or, if applicable, extend such maturity, to UST to obtain
the consent of HoltraChem, Inc. in order to change UST's 49% Participation in
the Supplemental Loan relating to HoltraChem, Inc. to an Assignment of a 49%
interest in such Supplemental Loan on terms substantially consistent with those
contained in the Form of Assignment and Acceptance attached hereto and
incorporated herein as Exhibit A.
5. The parties hereto hereby agree to cooperate with each other in good
faith to enter into, as soon as practicable and in any event within 10 business
days after the BayBank Transfer Date, (a) an Assignment with respect to a 49%
interest in the Supplemental Loan to Ariad Pharmaceuticals, Inc. ("Ariad") and
(b) mutually reasonably satisfactory arrangements, including, without
limitation, documentation reasonably acceptable to counsel to UST and FNBB, with
respect to all outstanding leases between BayBank and Ariad on terms
substantially similar to the terms of such Assignment or, if an assignment would
be prohibited or require the consent of Ariad under the terms of the applicable
lease documents, on terms substantially similar to the terms of the
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Participations, in each case, applied in the context of such leases. In the
event that such lease arrangements are not mutually agreed upon following such
good faith efforts, then FNBB agrees to replace such Assignment and such lease
arrangements with an interest in a Replacement Loan (as defined in such
Assignment agreement) in accordance with the terms of such Assignment agreement;
provided that, for purposes of determining the timing of such repurchase and
replacement, the date of notice of such repurchase and replacement shall be
deemed to be the last day of the 10 day period referred to above.
6. FNBB hereby agrees that UST shall be entitled, upon notice to FNBB
no later than 5:00 p.m., Boston time, on the day after the BayBank Transfer
Date, to elect to cause FNBB to repurchase UST's interest in the Supplemental
Loan to RWG Limited Partners, a Massachusetts Limited Partnership ("RWG") if UST
reasonabIy determines that adequate collateral is not or may not in the future
be available for such Supplemental Loan. In the event that UST so elects, FNBB
shall, on the Additional Residential Loan Transfer Date (as defined in the
BayBank Closing Side Letter) repurchase UST's interest in such Supplemental Loan
and transfer to UST residential loans of a type and quality reasonably the same
as the Additional Residentia1 Loans (as defined in the BayBank Closing Side
Letter) having an aggregate outstanding principal amount on such date
approximately equal to UST's share of the outstanding principal amount of the
Supplemental Loan to RWG on such date.
7. The parties hereto hereby agree that, in the event that FNBB
notifies UST by no later than 5:00 p.m., Boston time, on the day after the
BayBank Transfer Date, that it has reasonably determined that any of (a) the
Assignment with respect to Carlton Willard Home, Inc., (b) the Participation
with respect to RWG, or (c) the Participation with respect to Newell Properties,
Inc. are inconsistent with the terms of (i) Section 5(a) of the Split Closing
Side Letter or (ii) the loan documents for the applicable Supplemental Loan,
then the parties shall, as soon as practicable and in any event by close of
business on December 10, 1996, cooperate in good faith to modify such Assignment
or Participation in order to make such arrangements consistent with the terms of
Section 5(a) of the Split Closing Side Letter and the applicable loan documents.
In the event that such modification is not mutually agreed upon following such
good faith efforts, then FNBB agrees to repurchase UST's interest in such
Supplemental Loan and to replace UST's interest in such Supplemental Loan with
an interest in a Replacement Loan (as defined in the applicable Assignment or
Participation agreement) in accordance with the terms of the applicable
Assignment or Participation agreement; provided that, for purposes of
determining the timing of such repurchase and replacement, the date of notice of
such repurchase and
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replacement shall be deemed to be the date which is 10 business days after the
BayBank Transfer Date.
8. FNBB agrees to deliver to USTrust, by no later than 5:00 p.m.,
Boston time, on the day after the BayBank Transfer Date, the Attached Loan
Documents (as defined in the applicable Participation or Assignment agreement)
for (a) its Assignment with respect to Carlton Willard Home, Inc., (b) its
Participation with respect to RWG, and (c) its Participation with respect to
Newell Properties, Inc. The parties hereto hereby agree that FNBB's failure to
deliver such Attached Loan Documents prior to such time shall not be deemed to
be a violation of the terms of the applicable Participation or Assignment.
This letter agreement may be executed in any number of counterparts,
which shall together constitute but one and the same agreement. This letter
agreement shall for all purposes be governed by, and construed in accordance
with, the internal laws of The Commonwealth of Massachusetts. This letter
agreement shall take effect as a sealed instrument as of the date first herein
above written, shall be binding on the parties hereto and their respective
successors and assigns.
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Please acknowledge your agreement with the foregoing by signing the
enclosed copy of this letter in the place provided below.
Very truly yours,
THE FIRST NATIONAL BANK OF BOSTON
By: /s/ William M. Parent
-----------------------
Title:
ACCEPTED AND AGREED:
USTRUST
By:
------------------------
Title:
The undersigned hereby joins this Letter
Agreement for the sole purpose of
agreeing to cause the Assets and the
Assumed Liabilities to be transferred to
UST in accordance with the terms and
provisions of this Letter Agreement and
the Purchase Agreement.
BANK OF BOSTON CORPORATION
By: /s/ Peter J. Manning
-----------------------
Title:
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Please acknowledge your agreement with the foregoing by signing the
enclosed copy of this letter in the place provided below.
Very truly yours,
THE FIRST NATIONAL BANK OF BOSTON
By:
----------------------
Title:
ACCEPTED AND AGREED:
USTRUST
By: /s/ Eric R. Fischer
------------------------------
Title: Executive Vice President
The undersigned hereby joins this Letter
Agreement for the sole purpose of
agreeing to cause the Assets and the
Assumed Liabilities to be transferred to
UST in accordance with the terms and
provisions of this Letter Agreement and
the Purchase Agreement.
BANK OF BOSTON CORPORATION
By:
-----------------------------
Title:
THE FIRST NATIONAL BANK OF BOSTON
100 Federal Street
Boston, Massachusetts 02110
Dated as of November 8, 1996
USTrust
40 Court Street
Boston, Massachusetts 02108
Attention: Neal F. Finnegan
President and Chief Executive Offcer
Re: Amendments to Purchase and Assumption Agreement
-----------------------------------------------
Gentlemen:
Reference is made to the Purchase and Assumption Agreement, dated as of
June 18, 1996 (the "Purchase Agreement"), by and between USTrust, a
Massachusetts trust company ("UST"), and The First National Bank of Boston, a
national banking association ("FNBB"), and joined in for certain limited
purposes by Bank of Boston Corporation, a Massachusetts corporation. Capitalized
terms used herein and not otherwise defined herein have the meanings assigned
thereto in the Purchase Agreement or in a letter agreement between the parties
relating to the closing arrangements for the purchase of the Branches of even
date herewith.
The parties hereto hereby agree to amend the terms of the Purchase
Agreement as follows:
1. Additional Definitions. Section 1.1 of the Purchase Agreement is hereby
amended by inserting, in the appropriate places designated by alphabetical
order, the following new definitions:
"Merchant Credit Card Services" shall mean the so-called "Merchant
Credit Card" services provided to Branch Customers at the Branches.
"Night Deposit Services" shall mean services relating to night
deposits at the Branches.
"Silver Storage Agreements" shall mean those agreements relating to
so-called "silver storage" services at the Branches.
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"Wire Transfer Services" shall mean services provided to Branch
Customers relating to wire transfers from the Branches.
2. Amendments to Section 1.1 of the Purchase Agreement. Section 1.1 of the
Purchase Agreement is hereby amended by:
(i) amending the definition of "Excluded Deposits", by deleting
the word "and" at the end of clause (f), inserting,
immediately before the period at the end of clause (g), the
word "and" and the following new language:
(h) deposits which are booked or allocated to the Branches
owned by FNBB and were established by an "employer" pursuant
to a Keogh Plan. Seller acknowledges and agrees that Excluded
Deposits shall be excluded from the Deposit Liabilities for
purposes of calculating the 7% amount pursuant to Section
3.1(a) hereof at all times during the period referred to
therein.
(ii) amending the definition of "Related Commercial Products and Services",
by inserting, immediately after the phrase "relating to the Commercial
Loans" in the second line thereof, the following new phrase, "and,
regardless of whether such services are related to Commercial Loans,
all Merchant Credit Card Services, Night Deposit Services and Wire
Transfer Services"; and
(iii) amending the definition of "Safe Deposit Agreements", by inserting,
immediately after the word "Branches", the following new phrase, "and
Silver Storage Agreements".
3. Amendment to Section 3.3(a) of the Purchase Agreement. Section 3.3(a) of the
Purchase Agreement is hereby amended by adding the following sentence at the end
thereof:
The parties agree that Arthur Andersen LLP may act as
Purchaser's agent for purposes of verifying the Purchase Price
and Deposit Liabilities determination in accordance with this
section and shall have the same access to such work papers,
schedules and other supporting data of FNBB or BayBank with
respect to the Branches as Purchaser is entitled to for
purposes of such verification.
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4. Amendment to Section 3.3(b) of the Purchase Agreement. Section 3.3(b) of the
Purchase Agreement is hereby amended by deleting the word "fifteenth" in the
first line thereof and substituting the word "twentieth" in place thereof.
5. Amendment to Section 3.5(b) of the Purchase Agreement. Section 3.5(b) of the
Purchase Agreement is hereby amended by deleting the word "and" at the end of
clause (vi) and adding the word "and" at the end of clause (vii) and adding the
following new clause (viii):
(viii) Periodic fees related to the Assets and Assumed
Liabilities, including lock box fees, letter of credit annual
fees and credit line annual fees.
6. Amendment to Section 3.6 of the Purchase Agreement. Section 3.6 of the
Purchase Agreement is hereby amended by inserting a period after the words "the
provisions of this Agreement" in the third line thereof and deleting the
remainder of Section 3.6 in its entirety.
7. Amendment to Section 10.3(e) of the Purchase Agreement. The date "August 31,
1996" in Section 10.3(e) of the Purchase Agreement is hereby deleted and the
date "November 8, 1996" is hereby substituted in place thereof; provided,
however, that with respect to the West Roxbury Branch lease and the Third
Avenue, Waltham Branch lease, the date referred to in Section 10.3(e) shall
continue to be extended by the parties beyond November 8, 1996, until the
BayBank Closing Date, provided that there is a reasonable likelihood that FNBB
will obtain the consents of the landlords with respect to such Branch
properties.
8. Amendment to Section l5.2(a) of the Purchase Agreement. Section 15.2(a) of
the Purchase Agreement is hereby amended by deleting the reference to "12.4"
therein and substituting "16.2" in place thereof.
9. Amendment to Section 15.8 of the Purchase Agreement. Section 15.8 of the
Purchase Agreement is hereby amended by inserting, immediately before the period
at the end of the first sentence thereof, a semicolon and the following new
phrase:
provided, however, that this Section 15.8 shall not apply to
any negative Deposit to the extent that, on the Transfer Date,
Seller transfers to Purchaser (i) positive Deposit Liabilities
eligible for offset against such negative Deposits or (ii) a
credit line which would permit drawings, in the amount of the
negative Deposit by the applicable Branch Customers; and
provided further, that the deposit premium calculated pursuant
to Section 3.1(a) hereof shall be reduced to reflect any such
reduction in such positive Deposit Liabilities in accordance
with this Section 15.8.
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10. Amendment to Annex A to the Purchase Agreement. Paragraph 2 of Annex A to
the Purchase Agreement is hereby amended by deleting the last sentence of
Paragraph 2 in its entirety and inserting the following new sentence in place
thereof:
"Purchaser and Seller agree that, at Seller's expense (for the
increase and incremental employment taxes attributable to the
increase), the retention bonus shall be increased by 1.7% of
the base amount specified above, resulting in a total
retention bonus of 10% of such base amount."
11. Certain Transferred Deposits. UST acknowledges and agrees that, with its
knowledge and consent at the request of the applicable Branch Customer, or as
otherwise agreed to by the parties based on the fact that a customer has
relocated from the market area of the Branches or has a "home banking"
relationship with FNBB or BayBank, certain Deposits have been transferred by
FNBB and BayBank from the Branches to other bank branches of FNBB and BayBank
not being acquired by UST (all such deposit accounts delivered hereinafter
referred to as "Transferred Deposits"). UST acknowledges and agrees that such
transfers shall be deemed not to have been made in violation of the Purchase
Agreement. FNBB acknowledges and agrees that such Transferred Deposits shall be
excluded from the Deposit Liabilities for purposes of calculating the 7% amount
pursuant to Section 3.1(a) of the Purchase Agreement at all times during the
period referred to therein. As of the date hereof, FNBB represents that such
Transferred Deposits have not in the aggregate exceeded $8,000,000. FNBB and UST
also acknowledge and agree that, for purposes of calculating the 7% amount
pursuant to Section 3.1 (a) of the Purchase Agreement, the Deposit Liabilities
shall at all times during the period referred to therein include Deposit
Liabilities in accounts that have been or are transferred by FNBB or BayBank
into the Branches prior to the applicable Transfer Date.
12. Certain Related Comercial Products and Services. The parties acknowledge and
agree that certain accounts relating to (i) repurchase agreements with certain
customers of FNBB, having an aggregate balance of approximately $3 million as of
the date hereof and (ii) sweep arrangements with Commercial Loan customers known
as "BayBank Precision Sweep Accounts" maintained or allocated by BayBank at the
BayBank Branches, and having an aggregate balance of approximately $60 million
as of the date hereof, constitute Related Commercial Products and Services for
purposes of the Purchase Agreement and will be transferred to UST, together with
an amount equal to the aggregate amount due to such customers with respect to
such agreements and accounts, on the FNBB or BayBank Transfer Date, as
applicable; provided, however, that such repurchase agreements and BayBank
Precision Sweep Accounts shall not be deemed Deposit Liabilities for purposes of
computing the 7% amount under Section 3.1(a) of the Purchase Agreement and for
purposes of Sections 3.2 and 3.3 of the Purchase Agreement.
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13. Agreements as to Certain Branch Leases. Notwithstanding anything to the
contrary in the Purchase Agreement, the parties hereby agree as follows:
(i) West Roxburv Branch Lease. The parties hereby agree that (a) FNBB
shall assign and UST shall accept the Branch Lease for the BayBank
Branch located in West Roxbury and (b) the Purchase Price shall be
reduced by an amount equal to [$69,436.19], the present value of
one-half of the additional rental payments required by the landlord
after the BayBank Closing Date for the remainder of the current lease
term.
(ii) Third Avenue, Waltham Branch Lease. The parties hereby agree that
the Branch Lease for the BayBank Branch located at Third Avenue,
Waltham includes the lease of the office space located on the second
and third floors of the Third Avenue, Waltham Branch (the "Second and
Third Floor Lease") and that (a) FNBB shall assign and UST shall accept
the Third Avenue, Waltham Branch Lease, including the Second and Third
Floor Lease, (b) the Purchase Price shall be reduced by an amount equal
to $610,079.22, one-half the present value of the rental payments
required to be paid from the BayBank Closing Date for the remainder of
the current lease term for the Second and Third Floor Lease and (c)
after the Bay Bank Closing Date, UST shall, upon receipt thereof (in
the case of a sublease) or at the end of each month (in the case of use
by UST), pay FNBB an amount which is equal to one-half of any rental
payments received by UST if the Second and Third Floor Lease is
subleased to a third party or one-half of the fair market value, taking
into account the nature of any such utilization (e.g. retail, office or
storage) of the rental of that portion of the Second and Third Floor
Lease space, if any, utilized by UST or any of its Affiliates. UST
agrees to obtain the consent of FNBB prior to making any alterations or
improvements with respect to the Second and Third Floor Lease space
which consent, unless the alterations or improvements are made at any
time when the remaining term on the Second and Third Floor Lease is
less than two years and would result in an expense to FNBB pursuant to
the immediately succeeding sentence of an amount in excess of the
amount of the aggregate yearly rent under such lease, shall not be
unreasonably withheld or delayed. In the event that, with the consent
of FNBB, UST makes alterations or improvements to the Second and Third
Floor Lease space in connection with any sublease of such space to a
third party, FNBB agrees to reimburse UST for one-half of the expenses
incurred by UST in connection therewith (net of any portion of such
expenses paid by any other Person such as the owner of the sublease of
such space).
14. Agreement as to Certain "ATM Surrounds". Notwithstanding anything to the
contrary in the Purchase Agreement, the parties hereby agree that FNBB shall be
entitled, at its own expense, to remove all "surrounds" from the ATMs located at
the Branches; provided, however, that FNBB hereby agrees not to remove such
surrounds until the expiration of the ninety day period following the FNBB
Transfer Date, as applicable, or a
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reasonable time thereafter to permit UST to replace such "ATM Surrounds" at the
Branches; and provided further, that (i) upon the removal of any such "ATM
Surround" by FNBB from any Branch subject to a Branch Lease, UST shall promptly
replace such "ATM Surround," and (ii) to the extent any landlord consent is
required for such removal of any "ATM Surrounds", FNBB shall, at its expense,
obtain such consents and UST shall use reasonable efforts to assist FNBB in
obtaining such consents.
15. Agreement as to Branch Closing Times. The parties hereby agree that the
closing of banking business to the public at the FNBB Branches and the ATMs at
the FNBB Branches on the FNBB Closing Date shall be 4 p.m. and approximately 3
p.m., respectively. The parties hereby agree that the closing of banking
business to the public at the BayBank Branches and ATMs at the BayBank Branches
shall be 4 p.m. and 4 p.m., respectively.
16. Waiver of certain Purchaser Covenant in Section 15.2(a) of the Purchase
Agreement. FNBB acknowledges and agrees that UST shall distribute within three
(3) business days after the Closing to customers of FNBB whose deposit accounts
are being transferred to UST, an initial supply of new basic checks, deposit
tickets or other similar instruments and ATM cards. FNBB acknowledges and agrees
that the failure by UST to deliver such items at least seven (7) days prior to
the Transfer Date as prescribed by the Purchase Agreement shall not be deemed to
be a violation of the Purchase Agreement.
17. Agreement as to Merchant Credit Card Machines. FNBB hereby agrees to use all
reasonable efforts to cause BayBank to transfer to UST all of BayBank's interest
in certain Merchant Credit Card machines owned or leased by BayBank, in each
case at a price to be mutually agreed upon by the parties hereto.
18. Cash Management Services. Simultaneously herewith, the parties hereto are
entering into a Cash Management Services Agreement, pursuant to which FNBB has
agreed to provide certain cash management services to UST after the FNBB Closing
Date.
19. Advance Accounts. Notwithstanding anything in the Purchase Agreement to the
contrary, the parties hereto hereby agree that FNBB and BayBank may transfer out
of the applicable Branches to other branches of FNBB or BayBank not being
acquired by UST, any overdraft lines of credit which are more than sixty (60)
days delinquent, together with the deposit account to which such overdraft line
of credit relates. The parties acknowledge and agree that such transfers shall
be deemed not to have been made in violation of the terms of the Purchase
Agreement. FNBB acknowledges and agrees that deposit accounts transferred
pursuant to this Paragraph 19 shall be excluded from the Deposit Liabilities for
purposes of calculating the 7% amount pursuant to Section 3. l(a) of the
Purchase Agreement at all times during the period referred to therein.
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20. Certain Leased Equipment. Simultaneously herewith, BancBoston Leasing Inc.
is selling and UST Leasing Corporation is purchasing certain equipment owned by
BancBoston Leasing Inc. and leased to certain Commercial Loan customers.
21. Nonsolicitation Guidelines. Subsection (c) of the third sentence of Section
10.4 of the Purchase Agreement is hereby amended by deleting such subsection in
its entirety and inserting the following new subsection (c) in place thereof:
(c) respond to, or offer FNBB or BayBank products and for services to,
Branch Customers, including, without limitation, Branch Customers who
retain deposit accounts at FNBB or BayBank after the FNBB or BayBank
Transfer Date ("Split Customers") during or in response to unsolicited
in-person or telephonic inquiries by Branch Customers or Split
Customers with respect to banking or other financial services,
including without limitation, Commercial Loans; and
22. Agreement as to Certain Transitional Matters. Notwithstanding anything in
the Purchase Agreement to the contrary, the parties hereto hereby agree as
follows with respect to certain Deposit histories of the Branch Customers:
(i) In the case of any bona fide dispute between a Branch Customer and
UST concerning the servicing of a Deposit account by FNBB or BayBank
relative to the period prior to the transfer of such account to UST,
FNBB will provide or cause BayBank to provide to UST, at FNBB's or
BayBank's expense, as applicable, to the extent reasonably requested
and available, information and copies of documents relating to such
Deposit account in a timely manner which would comply with standard
banking practices and customs. UST agrees that it shall reimburse FNBB
or BayBank, as applicable, for all direct costs incurred by such
persons in connection with providing such information and/or copies to
the extent that UST would customarily charge a fee to the Branch
Customer in connection with UST's providing such information and/or
copies;
(ii) In the event that UST receives a subpoena or is otherwise
requested pursuant to legal process or judicial or administrative
proceedings to provide information and/or documents relating to the
servicing of a Deposit account by FNBB or BayBank prior to the transfer
of such account to UST, UST shall request that the party requesting
such information subpoena or request by legal process or judicial or
administrative proceedings that FNBB or BayBank, as applicable, provide
such information or documentation. In the event that the requesting
party refuses or is unable to subpoena or otherwise make such request
to FNBB or BayBank directly, then, at the request of UST, FNBB will
provide or cause BayBank to provide, at
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FNBB's or BayBank's own expense, to the extent available, such
information or documentation in a timely manner which would comply with
standard banking practices and customs; and
(iii) In the case of any inquiry by a Branch Customer relating to the
servicing of a Deposit account by FNBB or BayBank prior to the transfer
of such account to UST (but not relating to a bona fide dispute between
such Branch Customer and UST), or otherwise upon request by UST (except
to the extent provided in paragraphs (i) and (ii) above), FNBB agrees
to provide UST, to the extent reasonably requested and available, with
information and copies of pertinent documents relating to such account
in a timely manner which would comply with standard banking practices
and customs, and UST agrees to reimburse FNBB for FNBB's direct
expenses incurred in providing any such information and/or copies of
documents.
23. Miscellaneous. Except as expressly set forth herein, all terms and
conditions of the Purchase Agreement are hereby ratified and confirmed and shall
remain in full force and effect, and each party hereto expressly affirms all of
its obligations under the Purchase Agreement. This Letter Agreement may be
executed in one or more counterparts, all of which shall be considered one and
the same agreement, and this Letter Agreement shall become effective when one or
more counterparts have been signed by each of the parties hereto. This Letter
Agreement shall be governed by and construed in accordance with the laws of The
Commonwealth of Massachusetts (without reference to conflicts or choice of law
provisions).
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Please acknowledge your agreement with the foregoing by signing the
enclosed copy of this letter in the place provided below.
Very truly yours,
THE FIRST NATIONAL BANK OF BOSTON
By: /s/ William M. Parent
-------------------------
Title:
ACCEPTED AND AGREED:
USTRUST
By: /s/ James K. Hunt
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Title:
The undersigned hereby joins this Letter
Agreement for the sole purpose of
agreeing to cause the Assets and the
Assumed Liabilities to be transferred to
UST in accordance with the terms and
provisions of this Letter Agreement and
the Purchase Agreement.
BANK OF BOSTON CORPORATION
By: /s/ Peter J. Manning
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Title: