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EXHIBIT 1
BANKBOSTON CORPORATION
MEDIUM-TERM NOTES DUE
9 MONTHS OR MORE FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
November 25, 1997
MORGAN STANLEY & CO. INCORPORATED
BANCBOSTON SECURITIES INC.
BEAR, STEARNS & CO. INC.
CHASE SECURITIES INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
LEHMAN BROTHERS INC.
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
SALOMON BROTHERS INC
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036-8293
Dear Sir/Madam:
BankBoston Corporation, a Massachusetts corporation (the "Company"),
confirms its agreement with Morgan Stanley & Co. Incorporated, BancBoston
Securities Inc., Bear, Stearns & Co. Inc., Chase Securities Inc., Credit Suisse
First Boston Corporation, Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner &
Smith Incorporated and Salomon Brothers Inc (each referred to as "Agent" and
collectively referred to as the "Agents") with respect to the issue and sale by
the Company of its Senior Medium-Term Notes (the "Senior Notes") and
Subordinated Medium-Term Notes (the "Subordinated Notes") described herein (the
Senior Notes and the Subordinated Notes being collectively referred to as the
"Notes"). The Senior Notes are to be issued pursuant to an Indenture, dated as
of June 15, 1992 (the "Senior Indenture"), between the Company and Norwest Bank
Minnesota, National Association
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("Norwest" or the "Trustee"), as trustee. The Subordinated Notes are to be
issued pursuant to an Indenture, dated as of June 15, 1992, as supplemented by
the First Supplemental Indenture dated as of June 24, 1993 (the "Subordinated
Indenture" and, together with the Senior Indenture, the "Indentures"), between
the Company and Norwest, as trustee. As of the date hereof, the Company has
authorized the issuance and sale of up to U.S. $1,000,000,000 aggregate initial
offering price (or its equivalent, based upon the applicable exchange rate at
the time of issuance, in such foreign or composite currencies as the Company
shall designate at the time of issuance) of Notes with maturities of nine months
or more from their respective dates of issue to or through the Agents pursuant
to the terms of this Agreement.
This Agreement provides both for the sale of Notes by the Company to the
Agents as principal for resale to investors and other purchasers and for the
sale of Notes by the Company directly to investors (as may from time to time be
agreed to by the Company and the Agents), in which case the Agents will act as
agents of the Company in soliciting Note purchases.
The Company has filed with the Securities and Exchange Commission (the
"SEC") a registration statement on Form S-3 (No. 333-38135), including a
prospectus, for the registration of certain securities, including the Notes,
under the Securities Act of 1933 (the "1933 Act") and the offering thereof from
time to time in accordance with Rule 415 of the rules and regulations of the SEC
under the 1933 Act (the "1933 Act Regulations"). Such registration statement has
been declared effective by the SEC and each of the Indentures has been qualified
under the Trust Indenture Act of 1939 (the "1939 Act"). Such registration
statement (and any further registration statements which may be filed by the
Company for the purpose of registering additional Notes and in connection with
which this Agreement is included or incorporated by reference as an exhibit) and
the prospectus constituting a part thereof, and any prospectus supplements
relating to the Notes, including all documents incorporated therein by
reference, as from time to time amended or supplemented by the filing of
documents pursuant to the Securities Exchange Act of 1934 (the "1934 Act") or
the 1933 Act or otherwise, are referred to herein as the "Registration
Statement" and the "Prospectus", respectively, except that if any revised
prospectus shall be provided to the Agents by the Company for use in connection
with the offering of the Notes, whether or not such revised prospectus is
required to be filed by the Company pursuant to Rule 424(b) of the 1933 Act
Regulations, the term "Prospectus" shall refer to such revised prospectus from
and after the time it is first provided to the Agents for such use.
1. APPOINTMENT AS AGENTS.
(a) APPOINTMENT. Subject to the terms and conditions stated herein
and subject to the reservation by the Company of the right to sell Notes
directly on its own behalf or through an affiliate of the Company in those
jurisdictions where the Company or such affiliate is authorized to do so, the
Company hereby agrees that Notes will be sold exclusively to or through the
Agents except as otherwise described below. Each Agent is authorized to engage
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the services of any other broker or dealer in connection with the offer or sale
of the Notes purchased by such Agent as principal for resale to others but is
not authorized to appoint sub-agents. In connection with sales by an Agent of
Notes purchased by such Agent as principal to other brokers or dealers, such
Agent may allow any portion of the discount it has received in connection with
such purchase from the Company to such brokers or dealers. Each Agent is acting
in connection with the Notes individually and not collectively or jointly. The
Company agrees that, during the period the Agents are acting as the Company's
agents hereunder, unless otherwise agreed, the Company will not appoint other
agents (other than an affiliate of the Company) to act on its behalf, or to
assist it, in the placement of the Notes unless the Company has entered into an
agreement or agreements substantially similar to this Agreement with such agent
or agents and has notified the Agents prior to entering into any such
substantially similar agreement.
(b) SALE OF NOTES. The Company shall not sell or approve the
solicitation of purchases of Notes in excess of the amount which shall be
authorized by the Company from time to time or in excess of the principal amount
of Notes registered pursuant to the Registration Statement. The Agents will have
no responsibility for maintaining records with respect to the aggregate
principal amount of Notes sold, or of otherwise monitoring the availability of
Notes for sale, under the Registration Statement.
(c) PURCHASES AS PRINCIPAL. The Agents shall not have any obligation
to purchase Notes from the Company as principal, but the Agents may agree from
time to time to purchase Notes as principal. Any such purchase of Notes by an
Agent as principal shall be made in accordance with Section 3(a) hereof.
(d) SOLICITATIONS AS AGENTS. If agreed upon by an Agent and the
Company, such Agent, acting solely as an agent for the Company and not as
principal, will solicit purchases of the Notes. The Agent will communicate to
the Company, orally, each offer to purchase Notes solicited by such Agent on an
agency basis, other than those offers rejected by such Agent. Each Agent shall
have the right, in its discretion reasonably exercised, to reject any proposed
purchase of Notes, as a whole or in part, and any such rejection shall not be
deemed a breach of such Agent's agreement contained herein. The Company may
accept or reject any proposed purchase of Notes, in whole or in part. Each Agent
shall make reasonable efforts to assist the Company in obtaining performance by
each purchaser whose offer to purchase Notes has been solicited by the Agent and
accepted by the Company. Each Agent shall not have any liability to the Company
in the event any such agency purchase is not consummated for any reason. If the
Company shall default on its obligation to deliver Notes to a purchaser whose
offer it has accepted, the Company shall (i) hold the Agent harmless against any
loss, claim or damage arising from or as a result of such default by the Company
and (ii) notwithstanding such default, pay to the Agent any commission to which
it would be entitled in connection with such sale.
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(e) RELIANCE. The Company and the Agents agree that any Notes
purchased by the Agents shall be purchased, and any Notes the placement of which
an Agent arranges shall be placed by such Agent, in reliance on the
representations, warranties, covenants and agreements of the Company contained
herein and on the terms and conditions and in the manner provided herein.
2. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants to each Agent as of the date
hereof, as of the date of each acceptance by the Company of an offer for the
purchase of Notes (whether from the Agent as principal or through the Agent as
agent), as of the date of each delivery of Notes (whether to such Agent as
principal or through such Agent as agent) (the date of each such delivery to an
Agent as principal being hereafter referred to as a "Settlement Date"), and as
of any time that the Registration Statement or the Prospectus shall be amended
or supplemented or there is filed with the SEC any document incorporated by
reference into the Prospectus (each of the times referenced above being referred
to herein as a "Representation Date") as follows:
(i) DUE INCORPORATION. The Company is a corporation duly
organized, validly existing and in good standing under the laws of The
Commonwealth of Massachusetts with corporate power and authority under
such laws to own, lease and operate its properties and conduct its
business as described in the Prospectus; the Company is duly registered
as a bank holding company under the Bank Holding Company Act of 1956, as
amended.
(ii) SUBSIDIARIES. Each of BankBoston, N.A. (the "Bank") and
Rhode Island Hospital Trust National Bank ("Hospital Trust") is a duly
organized and validly existing national banking association under the
laws of the United States, continues to hold a valid certificate to do
business as such and has full power and authority to conduct its
business as such; (the Bank and Hospital Trust are referred to
collectively as the "Significant Subsidiaries"); each Significant
Subsidiary has the authority under its jurisdiction of organization to
own, lease and operate its properties and to conduct its business. The
Company does not have any subsidiaries which are material to its
business, except to the extent that one or more of the Significant
Subsidiaries may be deemed to be so material.
(iii) QUALIFICATION. The Company is duly qualified as a
foreign corporation, and each of the Significant Subsidiaries is duly
authorized, to transact business and is in good standing in each
jurisdiction in which it owns or leases property of a nature, or
transacts business of a type, that would make such qualification
necessary, except to the extent that the failure to so qualify or be in
good standing
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would not have a material adverse effect on the Company and its
subsidiaries, considered as one enterprise.
(iv) REGISTRATION STATEMENT AND PROSPECTUS. The Company meets
the requirements for use of Form S-3 under the 1933 Act and will meet
such requirements as of the applicable filing date as to any supplement
to the Prospectus. At the time the Registration Statement became
effective, the Registration Statement complied, and as of each
applicable Representation Date will comply, in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and
the 1939 Act and the rules and regulations of the SEC promulgated
thereunder. The Registration Statement, at the time it became effective,
did not, and at each time thereafter at which any amendment to the
Registration Statement becomes effective or any Annual Report on Form
10-K is filed by the Company with the SEC and as of each Representation
Date, 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. The Prospectus, as of the
date hereof does not, and as of each Representation Date will not,
include an untrue statement of a material fact or 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;
PROVIDED, HOWEVER, that the representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by the
Agents expressly for use in the Registration Statement or Prospectus. As
of each applicable Representation Date, the Indentures will comply in
all material respects with the requirements of the 1939 Act and the
rules and regulations of the SEC promulgated thereunder.
(v) INCORPORATED DOCUMENTS. The documents incorporated by
reference in the Prospectus pursuant to Item 12 of Form S-3 under the
1933 Act, at the time they were or hereafter are filed with the SEC,
complied or when so filed will comply, as the case may be, in all
material respects with the requirements of the 1934 Act and the rules
and regulations promulgated thereunder (the "1934 Act Regulations"),
and, when read together and with the other information in the
Prospectus, did not and will not include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were or are made, not
misleading.
(vi) FINANCIAL STATEMENTS. The consolidated financial
statements included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the consolidated financial
position of the Company and its subsidiaries as of the dates indicated
and the consolidated results of operations and cash flows of the Company
and its subsidiaries for the periods specified. Such financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a
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consistent basis throughout the periods involved, except as disclosed in
the notes to such financial statements. The financial statement
schedules, if any, included in the Registration Statement present fairly
the information required to be stated therein.
(vii) AUTHORIZATION AND VALIDITY OF THIS AGREEMENT, THE
INDENTURE AND THE NOTES. This Agreement has been duly authorized,
executed and delivered by the Company and, upon execution and delivery
by the Agents, will be a valid and legally binding agreement of the
Company; each of the Indentures has been duly authorized, executed and
delivered by the Company and, assuming each Indenture has been duly
authorized, executed and delivered by the Trustee, 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 the receivership, conservatorship and supervisory powers of
bank regulatory agencies generally as well as bankruptcy, insolvency,
reorganization, moratorium or other 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) and the
availability of equitable remedies, and except further as enforcement
thereof may be limited by (i) requirements that a claim with respect to
any Notes denominated other than in U.S. dollars (or a foreign currency
or currency unit judgment in respect of such claim) be converted into
U.S. dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law or (ii) governmental authority to limit,
delay or prohibit the making of payments outside the United States; the
Notes have been duly and validly authorized for issuance, offer and sale
pursuant to this Agreement and, when executed, authenticated and
delivered in the manner provided for in the applicable Indenture and
issued and paid for in accordance with the provisions of this Agreement,
the Notes will constitute valid and legally binding obligations of the
Company enforceable against the Company in accordance with their terms,
except as enforcement thereof may be limited by the receivership,
conservatorship and supervisory powers of bank regulatory agencies
generally as well as bankruptcy, insolvency, reorganization, moratorium
or other laws relating to or 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) and the availability of equitable
remedies, and except further as enforcement thereof may be limited by
(i) requirements that a claim with respect to any Notes denominated
other than in U.S. dollars (or a foreign currency or currency unit
judgment in respect of such claim) be converted into U.S. dollars at a
rate of exchange prevailing on a date determined pursuant to applicable
law or (ii) governmental authority to limit, delay or prohibit the
making of payments outside the United States; the Notes and the
Indentures will be substantially in the form heretofore delivered to the
Agents and conform in all material respects to all statements relating
thereto contained in the Prospectus; and each holder of Notes will be
entitled to the benefits of the applicable Indenture.
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(viii) MATERIAL CHANGES OR MATERIAL TRANSACTIONS. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein or
contemplated thereby and, except for normal recurring dividends on the
outstanding common stock and preferred stock of the Company, there has
not been (a) any material adverse change in the condition (financial or
otherwise), earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business, (b) any transaction
entered into by the Company or any subsidiary, other than in the
ordinary course of business, that is material to the Company and its
subsidiaries, considered as one enterprise, or (c) any dividend or
distribution of any kind declared, paid or made by the Company on its
capital stock.
(ix) NO DEFAULTS; REGULATORY APPROVALS. Neither the Company
nor any Significant Subsidiary is in default in the performance or
observance of any obligation, agreement, covenant or condition contained
in any contract, indenture, mortgage, loan agreement, note, lease or
other agreement or instrument to which it is a party or by which it may
be bound or to which any of its properties may be subject, except for
such defaults that would not have a material adverse effect on the
condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as
one enterprise. The execution and delivery of this Agreement and the
Indentures and the consummation of the transactions contemplated herein
and therein and in the Registration Statement, and compliance by the
Company with the terms of this Agreement and the Indentures, have been
duly authorized by all necessary corporate action on the part of the
Company and do not and will not result in any violation of the charter
or by-laws of the Company or of any Significant Subsidiary, and do not
and will not conflict with, or result in a breach of any of the terms or
provisions of, or constitute default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any Significant Subsidiary under, (a) any
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which the Company or any Significant Subsidiary is a party
or by which it may be bound or to which any of its properties may be
subject (except for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not have a material adverse effect on
the condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as
one enterprise) or (b) any existing applicable law, rule, regulation,
judgment, order or decree of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction over
the Company or any Significant Subsidiary or any of its properties. Each
authorization, approval, consent or license of any government,
governmental instrumentality or court, domestic or foreign (other than
under the 1933 Act, the 1939 Act and the securities or blue sky laws of
the various states), which is required for (A) the valid authorization,
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issuance, sale and delivery of the Notes or (B) the execution, delivery
or performance of this Agreement or the Indentures by the Company has
been received.
(x) LEGAL PROCEEDINGS; CONTRACTS. Except as disclosed in the
Prospectus, there is no action, suit or proceeding before or by any
government, government instrumentality or court, domestic or foreign,
now pending, or, to the knowledge of the Company, threatened against or
affecting the Company or any Significant Subsidiary that is required to
be disclosed in the Prospectus or that, in the final outcome, could, in
the judgment of the Company, result in any material adverse change in
the condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as
one enterprise, or that could materially and adversely affect the
properties or assets of the Company and its subsidiaries, considered as
one enterprise, or that could adversely affect the consummation of the
transactions contemplated in this Agreement; the aggregate liability or
loss, if any, resulting from the final outcome of all pending legal or
governmental proceedings to which the Company or any Significant
Subsidiary is a party or which affect any of its properties that are not
described in the Prospectus, including ordinary routine litigation
incidental to its business, would not have a material adverse effect on
the condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as
one enterprise; and there are no contracts or documents of a character
required to be described in the Registration Statement or the Prospectus
or to be filed as exhibits to the Registration Statement that are not
described and filed as required.
(xi) PROPERTIES. The Company and the Significant Subsidiaries
each has good and marketable title to all properties and assets
described in the Prospectus as owned by it, free and clear of all liens,
charges, encumbrances or restrictions, except such as (a) are described
in the Prospectus or (b) are neither material in amount nor materially
significant in relation to the business of the Company and its
subsidiaries, considered as one enterprise; all of the leases and
subleases material to the business of the Company and its subsidiaries,
considered as one enterprise, and under which the Company or any
Significant Subsidiary holds properties described in the Prospectus, are
in full force and effect, and neither the Company nor any Significant
Subsidiary has any notice of any material claim of any sort that has
been asserted by anyone adverse to the rights of the Company or any
Significant Subsidiary under any of the leases or subleases mentioned
above, or affecting or questioning the rights of such corporation to the
continued possession of the leased or subleased premises under any such
lease or sublease.
(xii) LICENSES. The Company and the Significant Subsidiaries
each owns or possesses or has obtained all material governmental
licenses, permits, certificates, consents, orders, approvals and other
authorizations necessary to lease or own, as the case may be, and to
operate its properties and to carry on its business as presently
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conducted, and neither the Company nor any Significant Subsidiary has
received any notice of proceedings relating to the revocation or
modification of any such licenses, permits, certificates, consents,
orders, approvals or authorizations that, in the aggregate, if the
subject of an unfavorable decision, ruling or finding, could materially
adversely affect the condition (financial or otherwise), earnings,
business affairs or business prospects of the Company and its
subsidiaries, considered as one enterprise.
(xiii) PATENTS; TRADEMARKS. The Company and the Significant
Subsidiaries each owns or possesses, or can acquire on reasonable terms,
adequate patents, patent licenses, trademarks, service marks and trade
names necessary to carry on their businesses as presently conducted, and
neither the Company nor any of the Significant Subsidiaries has received
any notice of infringement of or conflict with asserted rights of others
with respect to any patents, patent licenses, trademarks, service marks
or trade names that, in the aggregate, if the subject of an unfavorable
decision, ruling or finding, could materially adversely affect the
condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as
one enterprise.
(xiv) LABOR. To the best knowledge of the Company, no labor
problem exists with its employees or with employees of the Significant
Subsidiaries or is imminent that could adversely affect the Company and
its subsidiaries, considered as one enterprise, and the Company is not
aware of any existing or imminent labor disturbance by the employees of
any of its or the Significant Subsidiaries' principal suppliers,
contractors or customers that could be expected to materially adversely
affect the condition (financial or otherwise), earnings, business
affairs or business prospects of the Company and its subsidiaries,
considered as one enterprise.
(xv) DOING BUSINESS WITH CUBA. The Company has materially
complied and will comply with all applicable provisions of Florida H.B.
1771, codified as Section 517.075 of the Florida Statutes, 1987, as
amended, and all applicable regulations promulgated thereunder relating
to issuers doing business in Cuba.
(b) ADDITIONAL CERTIFICATIONS. Any certificate signed by any
director or officer of the Company and delivered to the Agents or to counsel for
the Agents in connection with an offering of Notes through an Agent as agent or
the sale of Notes to an Agent as principal shall be deemed a representation and
warranty by the Company to the Agents as to the matters covered thereby on the
date of such certificate and at each Representation Date subsequent thereto.
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3. PURCHASES AS PRINCIPAL; SOLICITATIONS AS AGENTS.
(a) PURCHASES AS PRINCIPAL. Unless otherwise agreed by an Agent and
the Company, Notes shall be purchased by the Agent as principal. Such purchases
shall be made in accordance with terms agreed upon by the Agent and the Company
with respect to such information (as applicable) as is specified in Exhibit A
hereto (which terms, unless otherwise agreed, shall be agreed upon orally, with
written confirmation prepared by the Agent and mailed or sent via facsimile
transmission to the Company). Each Agent's commitment to purchase Notes as
principal shall be deemed to have been made on the basis of the representations
and warranties of the Company herein contained and shall be subject to the terms
and conditions herein set forth. Each purchase of Notes, unless otherwise
agreed, shall be at a discount from the principal amount of each such Note
equivalent to the applicable commission set forth in Schedule I hereto. The
Agent may engage the services of any other broker or dealer in connection with
the resale of the Notes purchased as principal and may allow any portion of the
discount received in connection with such purchases from the Company to such
brokers and dealers. At the time of each purchase of Notes by an Agent as
principal, the Agent shall specify the requirements for the stand-off agreement,
officer's certificate, opinion of counsel and comfort letter pursuant to
Sections 4(j), 7(b), 7(c) and 7(d) hereof.
(b) SOLICITATIONS AS AGENTS. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, when agreed by the Company and an Agent, such Agent, as an agent of the
Company, will use its reasonable efforts to solicit offers to purchase the Notes
upon the terms and conditions set forth herein and in the Prospectus. All Notes
sold through an Agent as agent will be sold at 100% of their principal amount
unless otherwise agreed to by the Company and such Agent.
The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through the Agents, as agents, commencing
at any time for any period of time or permanently. Upon receipt of instructions
from the Company, the Agents will forthwith suspend solicitation of purchases
from the Company until such time as the Company has advised the Agents that such
solicitation may be resumed.
The Company agrees to pay each Agent a commission, in the form of a
discount, equal to the applicable percentage of the principal amount of each
Note sold by the Company as a result of a solicitation made by such Agent as set
forth in Schedule I hereto.
(c) ADMINISTRATIVE PROCEDURES. The purchase price, interest rate or
formula, maturity date and other terms of the Notes (as applicable) specified in
Exhibit A hereto shall be agreed upon by the Company and the applicable Agent
and set forth in a pricing supplement to the Prospectus to be prepared in
connection with each sale of Notes. Except as may be otherwise provided in such
supplement to the Prospectus, the Notes will be issued in denominations of
U.S.$1,000 or any larger amount that is an integral multiple of U.S.$1,000.
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Administrative procedures with respect to the sale of Notes shall be agreed upon
from time to time by the Agents, the Company and the Trustee (the "Procedures").
The Agents and the Company agree to perform the respective duties and
obligations specifically provided to be performed by them in the Procedures.
4. COVENANTS OF THE COMPANY.
The Company covenants with each Agent as follows:
(a) NOTICE OF CERTAIN EVENTS. The Company will notify the Agents
promptly (i) of the effectiveness of any amendment to the Registration
Statement, (ii) of the transmittal to the SEC for filing of any supplement to
the Prospectus, (iii) of the receipt of any comments from the SEC with respect
to the Registration Statement or the Prospectus, (iv) of any request by the SEC
for any amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for additional information, and (v) of the issuance by the
SEC of any stop order suspending the effectiveness of the Registration Statement
or the initiation of any proceedings for that purpose. The Company 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) NOTICE OF CERTAIN PROPOSED FILINGS. The Company will give the
Agents advance notice of its intention to file or prepare any additional
registration statement with respect to the registration of additional Notes, any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus (other than through (i) the incorporation of information by reference
or (ii) by an amendment or supplement providing solely for a change in the
interest rates of Notes or similar changes or an amendment or supplement which
relates exclusively to an offering of debt securities other than the Notes). The
Company will furnish the Agents with copies of any such additional registration
statement and any such amendment or supplement proposed to be filed or prepared
a reasonable time in advance of such proposed filing or preparation, as the case
may be, and will not file any such additional registration statement or
amendment or supplement or other documents in a form to which the Agents or
counsel for the Agents shall reasonably object.
(c) COPIES OF THE REGISTRATION STATEMENT AND THE PROSPECTUS. The
Company will deliver to the Agents as many signed and conformed copies of the
Registration Statement (as originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein, if
specifically requested by an Agent, and documents incorporated by reference in
the Prospectus) as the Agents may reasonably request. The Company will furnish
to the Agents as many copies of the Prospectus (as amended or supplemented) as
the Agents shall reasonably request so long as the Agents are required to
deliver a Prospectus in connection with sales or solicitations of offers to
purchase the Notes.
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(d) PREPARATION OF PRICING SUPPLEMENTS. The Company will prepare,
with respect to any Notes to be sold through or to the Agents pursuant to this
Agreement, a Pricing Supplement with respect to such Notes in a form previously
approved by the Agents and will file such Pricing Supplement pursuant to Rule
424(b)(3) under the 1933 Act not later than the close of business of the SEC on
the fifth business day after the date on which such Pricing Supplement is first
used.
(e) REVISIONS OF PROSPECTUS -- MATERIAL CHANGES. Except as otherwise
provided in subsection (k) of this Section 4, if at any time during the term of
this Agreement any event shall occur or condition exist as a result of which it
is necessary, in the opinion of counsel for the Agents and counsel for the
Company, to amend or supplement the Prospectus in order that the Prospectus will
not include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein not misleading in the
light of the circumstances existing at the time the Prospectus is delivered to a
purchaser, or if it shall be necessary, in the reasonable opinion of both such
counsel, to amend or supplement the Registration Statement or the Prospectus in
order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, prompt notice shall be given, and confirmed in writing, to the
Agents to cease the solicitation of offers to purchase the Notes in their
capacity as agents and to cease sales of any Notes the Agents may then own as
principal, and the Company will -promptly amend the Registration Statement and
the Prospectus, whether by filing documents pursuant to the 1934 Act, the 1933
Act or otherwise, as may be necessary to correct such untrue statement or
omission or to make the Registration Statement and Prospectus comply with such
requirements. The Agents shall, at such time as the Company shall have furnished
to the Agents an amended or supplemental Prospectus satisfactory to the Agents
and their counsel, resume solicitation of offers to purchase the Notes using the
Prospectus as so amended or supplemented.
(f) PROSPECTUS REVISIONS -- PERIODIC FINANCIAL INFORMATION. Except
as otherwise provided in subsection (k) of this Section 4, on or prior to the
date on which there shall be released to the general public interim financial
statement information related to the Company with respect to each of the first
three quarters of any fiscal year or preliminary financial statement information
with respect to any fiscal year, the Company shall cause the Prospectus to be
amended or supplemented to include or incorporate by reference financial
information with respect thereto and corresponding information for the
comparable period of the preceding fiscal year, as well as such other
information and explanations as shall be necessary for an understanding thereof
or as shall be required by the 1933 Act or the 1933 Act Regulations.
(g) EARNINGS STATEMENTS. The Company will make generally available
to its security holders as soon as practicable, but not later than 90 days after
the close of the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 under the 1933 Act) covering each
twelve month period beginning, in each case, not later than the first
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day of the Company's fiscal quarter next following the "effective date" (as
defined in such Rule 158) of the Registration Statement with respect to each
sale of Notes.
(h) BLUE SKY QUALIFICATIONS. The Company will endeavor, in
cooperation with the Agents, to qualify the Notes for offering and sale under
the applicable securities laws of such states and other jurisdictions of the
United States as the Agents may designate, and will maintain such qualifications
in effect for as long as may be required for the distribution of the Notes;
PROVIDED, HOWEVER, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation 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. The Company will file such statements and reports as may be required by
the laws of each jurisdiction in which the Notes have been qualified as above
provided. The Company will promptly advise the Agents of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Notes for sale in any such state or jurisdiction or the initiating or
threatening of any proceeding for such purpose.
(i) 1934 ACT FILINGS. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file promptly
all documents required to be filed with the SEC pursuant to Sections 13(a),
13(c), 14 or 15(d) of the 1934 Act.
(j) STAND-OFF AGREEMENT. If specified by the Agent in connection
with a purchase by it of Notes as principal, between the date of the agreement
to purchase such Notes and the Settlement Date with respect to such purchase,
the Company will not, without the prior written consent of the Agent who is a
party to such agreement, offer or sell, or enter into any agreement to sell, any
debt securities of the Company in the United States (other than the Notes that
are to be sold pursuant to such agreement and commercial paper in the ordinary
course of business).
(k) SUSPENSION OF CERTAIN OBLIGATIONS. The Company shall not be
required to comply with the provisions of subsections (e) or (f) of this Section
during any period from the time (i) the Agents shall have suspended solicitation
of purchases of the Notes in their capacity as agents pursuant to a request from
the Company and (ii) the Agents shall not then hold any Notes purchased as
principal pursuant hereto, until the time the Company shall determine that
solicitation of purchases of the Notes should be resumed or the Agents shall
subsequently purchase Notes from the Company as principal.
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5. CONDITIONS OF OBLIGATIONS.
The obligations of the Agents to purchase Notes as principal and to
solicit offers to purchase the Notes as agents of the Company, and the
obligations of any purchasers of the Notes sold through the Agents as agents,
will be subject to the accuracy of the representations and warranties on the
part of the Company herein and to the accuracy of the statements of the
Company's officers made in any certificate furnished pursuant to the provisions
hereof, to the performance and observance by the Company of all its covenants
and agreements herein contained and to the following additional conditions
precedent:
(a) LEGAL OPINIONS. On the date hereof, the Agents shall have
received the following legal opinions, dated as of the date hereof and in form
and substance satisfactory to the Agents:
(1) OPINION OF COMPANY COUNSEL. The opinion of Gary A.
Spiess, Esq., General Counsel of the Company, to the effect that:
(i) The Company is a corporation duly organized,
validly existing and in good standing under the laws of The
Commonwealth of Massachusetts with corporate power and authority
under such laws to own, lease and operate its properties and
conduct its business as described in the Registration Statement
and the Prospectus.
(ii) The Company is duly qualified to transact
business as a foreign corporation and is in good standing in
each jurisdiction in which it owns or leases property of a
nature, or transacts business of a type, that would make such
qualification necessary, except to the extent that the failure
to so qualify or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, considered
as one enterprise.
(iii) Each of the Bank and Hospital Trust is a duly
organized and validly existing national banking association
under the laws of the United States, continues to hold a valid
certificate to do business as such and has full power and
authority to conduct its business as such; and each Significant
Subsidiary has the authority under its jurisdiction of
organization to own, lease and operate its properties and to
conduct its business.
(iv) Each Significant Subsidiary is duly qualified to
transact business and is in good standing in each jurisdiction
in which it owns or leases property of a nature, or transacts
business of a type, that would make such qualification
necessary, except to the extent that the failure to so qualify
or be in
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good standing would not have a material adverse effect on the
Company and its subsidiaries, considered as one enterprise.
(v) The Company is duly registered under the Bank
Holding Company Act of 1956, as amended; and each Significant
Subsidiary is duly authorized to conduct such banking business
in each jurisdiction in which its banking business is conducted.
(vi) All of the outstanding shares of capital stock
of each Significant Subsidiary have been duly authorized and
validly issued and are fully paid and non-assessable; except for
directors' qualifying shares, all of such shares are owned by
the Company, directly or through one or more subsidiaries, free
and clear of any pledge, lien, security interest, charge, claim,
equity or encumbrance of any kind; and none of such shares was
issued in violation of the preemptive rights of any stockholder
of the Significant Subsidiaries.
(vii) This Agreement has been duly and validly
authorized, executed and delivered by the Company.
(viii) The Notes have been duly authorized and, when
the global certificates representing the Notes have been duly
executed, authenticated and delivered in the manner provided for
in the applicable Indenture, and issued and paid for in
accordance with the provisions of this Agreement, the Notes 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 the
receivership, conservatorship and supervisory powers of bank
regulatory agencies generally as well as bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting
enforcement of creditors' rights generally or by general equity
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law) and the availability of
equitable remedies, and except further as enforcement thereof
may be limited by (A) requirements that a claim with respect to
any Notes denominated other than in U.S. dollars (or a foreign
currency or foreign currency unit judgment in respect of such
claim) be converted into United States dollars at a rate of
exchange prevailing on a date determined pursuant to applicable
law or (B) governmental authority to limit, delay or prohibit
the making of payments in foreign currency or currency units or
payments outside the United States, and each holder of Notes
will be entitled to the benefits of the applicable Indenture.
(ix) Each Indenture has been duly authorized,
executed and delivered by the Company and, assuming the due
authorization, execution and delivery thereof by the Trustee,
constitutes a valid and binding obligation of the
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Company, enforceable against the Company in accordance with its
terms, except as enforcement thereof may be limited by the
receivership, conservatorship and supervisory powers of bank
regulatory agencies generally as well as by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting enforcement of creditors' rights generally and except
as enforcement thereof is subject to general equity principles
(regardless of whether enforcement is considered in a proceeding
in equity or at law) and the availability of equitable remedies,
and except further as enforcement thereof may be limited by (A)
requirements that a claim with respect to any Notes denominated
other than in U.S. dollars (or a foreign currency or foreign
currency unit judgment in respect of such claim) be converted
into United States dollars at a rate of exchange prevailing on a
date determined pursuant to applicable law or (B) governmental
authority to limit, delay or prohibit the making of payments in
foreign currency or currency units or payments outside the
United States; and each Indenture has been duly qualified under
the 1939 Act.
(x) The Registration Statement is effective under
the 1933 Act and, to the best knowledge of such counsel, 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 contemplated under the 1933 Act.
(xi) The Registration Statement and the Prospectus,
excluding the documents incorporated by reference therein, and
each amendment or supplement thereto (except for the financial
statements and other financial or statistical data included
therein or omitted therefrom, as to which such counsel need
express no opinion) as of their respective effective or issue
dates appear on their face to have been appropriately responsive
in all material respects to the requirements of the 1933 Act and
the 1933 Act Regulations.
(xii) The documents incorporated by reference in the
Prospectus (except for the financial statements and other
financial or statistical data included therein or omitted
therefrom, as to which such counsel need express no opinion, and
except to the extent that any statement therein is modified or
superseded in the Prospectus), as of the dates they were filed
with the SEC and as of the date hereof, appear on their face to
have been appropriately responsive in all material respects to
the requirements of the 1934 Act and the 1934 Act Regulations.
(xiii) Each authorization, approval, consent or license
of any government, governmental instrumentality or court,
domestic or foreign (other
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than under the 1933 Act, the 1939 Act and the securities or blue
sky laws of the various states), which is required for (A) the
valid authorization, issuance, sale and delivery of the Notes or
(B) the execution, delivery or performance of this Agreement or
the Indentures by the Company has been received.
(xiv) Such counsel does not know of any statutes or
regulations, or any pending or threatened legal or governmental
proceedings, required to be described in the Prospectus that are
not described as required, nor of any contracts or documents of
a character required to be described or referred to in the
Prospectus or to be filed as exhibits to the Registration
Statement that are not described, referred to or filed as
required.
(xv) The descriptions in the Prospectus of the
statutes, regulations, legal or governmental proceedings,
contracts and other documents therein described are accurate and
fairly discuss in all material respects the information required
to be shown.
(xvi) To the knowledge of such counsel, no default
exists in the performance or observance of any material
obligation, agreement, covenant or condition contained in any
contract, indenture, loan agreement, note, lease or other
agreement or instrument that is described or referred to in the
Prospectus or filed as an exhibit to the Registration Statement.
(xvii) The execution and delivery of this Agreement and
the Indentures, the consummation by the Company of the
transactions contemplated herein and therein and compliance by
the Company with the terms of this Agreement and the Indentures
do not and will not result in any violation of the charter or
by-laws of the Company or any Significant Subsidiary and do not
and will not conflict with, or result in a breach of any of the
terms or provisions of, or constitute a default under, or result
in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any Significant
Subsidiary under (a) any indenture, mortgage or loan agreement
or any other agreement or instrument known to such counsel, to
which the Company or any Significant Subsidiary is a party or by
which it may be bound or to which any of its properties may be
subject (except for such conflicts, breaches or defaults or
liens, charges or encumbrances that would not have a material
adverse effect on the condition (financial or otherwise),
earnings, business affairs or business prospects of the Company
and its subsidiaries, considered as one enterprise), (b) any
existing applicable law, rule or regulation (other than the
securities or blue sky laws of the various states, as to which
such counsel need express no opinion), or (c) any judgment,
order or decree of any government, governmental instrumentality
or court, domestic or foreign, having
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jurisdiction over the Company or any Significant Subsidiary or
any of its properties.
(2) OPINION OF COUNSEL TO THE AGENTS. The opinion of Brown &
Wood LLP, counsel to the Agents, covering the matters referred to in
subparagraph (1) under the subheadings (i) and (vii) to (xi), inclusive,
above.
(3) In giving their opinions required by subsection (a)(1)
and (a)(2) of this Section, Gary A. Spiess, Esq. and Brown & Wood LLP
shall each additionally state that nothing has come to their attention
that would lead them to believe that the Registration Statement, at the
time it became effective or, if an amendment to the Registration
Statement or an Annual Report on Form 10-K has been filed by the Company
with the SEC subsequent to the effectiveness of the Registration
Statement, then at the time such amendment became effective or at the
time of the most recent such filing, as the case may be, or at the date
hereof, contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact required to be stated therein
or necessary in order to make the statements therein not misleading or
that the Prospectus, as amended or supplemented at the date hereof, or
(if such opinion is being delivered in connection with the purchase of
Notes by an Agent as principal pursuant to Section 7(c) hereof) at the
date of any agreement by the Agent to purchase Notes as principal and at
the Settlement Date with respect thereto, as the case may be, included
or includes an untrue statement of a material fact or omitted or omits
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.
(b) OFFICERS' CERTIFICATE. At the date hereof, the Agents shall have
received a certificate, dated the date hereof, of the President or Vice
President or person holding a functional title of equivalent rank and the chief
financial or chief accounting officer of the Company, to the effect that (i)
since the respective dates as of which information is given in the Registration
Statement and the Prospectus or since the date of any agreement by an Agent to
purchase Notes as principal, there has not been 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) the
other representations and warranties of the Company contained in Section 2
hereof are true and correct with the same force and effect as though expressly
made at and as of the date of such certificate, (iii) the Company has performed
or complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the date of such certificate, and (iv) no
stop order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been initiated or threatened by
the SEC.
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(c) COMFORT LETTER. On the date hereof, the Agents shall have
received a letter from Coopers & Lybrand L.L.P., dated as of the date hereof and
in form and substance satisfactory to the Agents, to the effect that:
(i) They are independent public accountants with respect to
the Company and its subsidiaries within the meaning of the 1933 Act and
the applicable published 1933 Act Regulations.
(ii) In their opinion, the audited consolidated financial
statements and the related consolidated financial statement schedules of
the Company and its subsidiaries included or incorporated by reference
in the Company's most recently filed annual report on Form 10-K comply
as to form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations with respect
to registration statements on Form S-3 and the 1934 Act and the 1934 Act
Regulations with respect to annual reports on Form 10-K.
(iii) On the basis of procedures (but not an examination in
accordance with generally accepted auditing standards) consisting of a
reading of the minutes of all meetings of the stockholders and directors
of the Company and of the Bank and the minutes of meetings of the
Executive, Audit and Compensation and Board Governance Committees of the
Board of Directors of the Company from the date of the latest audited
consolidated financial statements of the Company, a reading of the
unaudited consolidated financial statements of the Company and its
subsidiaries included or incorporated by reference in each of the
Company's quarterly reports on Form 10-Q filed prior to the date hereof
and subsequent to the Form 10-K described in (ii) above, a reading of
the most recent consolidated financial statement of the Company, and
inquiries of certain officials of the Company and its subsidiaries
responsible for financial and accounting matters, all such inquiries and
procedures being carried out to a specified date not more than five
business days prior to the date of the letter, nothing came to their
attention that caused them to believe that: (A) the unaudited
consolidated financial statements included or incorporated by reference
in each quarterly report on Form 10-Q do not comply as to form in all
material respects with the applicable accounting requirements of the
1934 Act and the 1934 Act Regulations with respect to Form 10-Q, or (B)
such unaudited consolidated financial statements are not in conformity
with generally accepted accounting principles applied on a basis
substantially consistent with that of the audited consolidated financial
statements referred to above, except as disclosed in the notes to such
unaudited consolidated financial statements or as otherwise described in
such letter, or (C) there was any increase at the specified date in the
consolidated notes payable of the Company and its consolidated
subsidiaries or any increase in the number of outstanding shares of
common stock, perpetual preferred stock or other capital securities of
the Company acceptable to the Company's primary federal regulator, or
any decrease in the
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stockholder's equity of the Company, in each case as compared with the
amounts shown on the most recent balance sheet of the Company and its
subsidiaries included or incorporated by reference in the Registration
Statement, except in each case for changes, decreases or increases that
the Registration Statement discloses have occurred or may occur, or
which are disclosed in the letter, or (D) for the period from the date
of the latest consolidated balance sheet of the Company and its
subsidiaries included or incorporated by reference in the Prospectus to
such specified date, there was any decrease in the Company's
consolidated net interest revenue or increase in consolidated
non-interest expense, in each case as compared with the comparable
period in the preceding year, except in each case for any increases or
decreases that the Registration Statement discloses have occurred or may
occur, or which are disclosed in the letter.
(iv) Such letter shall further state that, in addition to
their examinations, inspections, inquiries and other procedures referred
to therein, they have performed such other procedures, specified by the
Agents, not constituting an audit, as they have agreed to perform and
report on with respect to certain amounts, percentages, numerical data
and other financial information in the most recently filed Form 10-K,
each Form 10-Q incorporated by reference in the Registration Statement,
the Prospectus and the exhibits to the Registration Statement or in
other documents incorporated by reference in the Prospectus, and have
compared certain of such amounts, percentages, numerical data and
financial information with, and have found such items to be in agreement
with or derived from, the detailed accounting and financial records of
the Company and its subsidiaries.
(d) OTHER DOCUMENTS. On the date hereof and on each Settlement Date,
counsel to the Agents shall have been furnished with such documents and opinions
as such counsel may reasonably require for the purpose of enabling such counsel
to pass upon the issuance and sale of Notes as herein contemplated and related
proceedings, or in order to evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of Notes as herein contemplated shall be satisfactory in
form and substance to the Agents and to counsel to the Agents.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement (or, at the
option of the Agent, any applicable agreement by an Agent to purchase Notes as
principal) may be terminated by the Agents by notice to the Company at any time
and any such termination shall be without liability of any party to any other
party, except that the covenant regarding provision of an earnings statement set
forth in Section 4(g) hereof, the provisions concerning payment of expenses
under Section 10 hereof, the indemnity and contribution agreements set forth in
Sections 8 and 9 hereof, the provisions concerning the representations,
warranties and agreements to survive delivery of
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Section 11 hereof, the provisions relating to governing law set forth in Section
14 and the provisions set forth under "Parties" of Section 15 hereof shall
remain in effect.
6. DELIVERY OF AND PAYMENT FOR NOTES SOLD THROUGH AN AGENT.
Delivery of Notes sold through an Agent as agent shall be made by the
Company to such Agent for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, the Agent shall promptly notify the Company and deliver
the Note to the Company, and, if the Agent has theretofore paid the Company for
such Note, the Company will promptly return such funds to the Agent. If such
failure occurred for any reason other than default by the applicable Agent in
the performance of its obligations hereunder, the Company will reimburse such
Agent on an equitable basis for its loss of the use of the funds for the period
such funds were credited to the Company's account.
7. ADDITIONAL COVENANTS OF THE COMPANY.
The Company covenants and agrees with each Agent that:
(a) REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. Each acceptance
by it of an offer for the purchase of Notes (whether to an Agent as principal or
through the Agent as agent), and each delivery of Notes to an Agent (whether to
an Agent as principal or through an Agent as agent), shall be deemed to be an
affirmation that the representations and warranties of the Company contained in
this Agreement and in any certificate theretofore delivered to the Agent
pursuant hereto are true and correct at the time of such acceptance or sale, as
the case may be, and an undertaking that such representations and warranties
will be true and correct at the time of delivery to the purchaser or its agent,
or to the applicable Agent, of the Note or Notes relating to such acceptance or
sale, as the case may be, as though made at and as of each such time (and it is
understood that such representations and warranties shall relate to the
Registration Statement and Prospectus as amended and supplemented to each such
time).
(b) SUBSEQUENT DELIVERY OF CERTIFICATES. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for a change in the interest
rates of Notes or similar changes, and, unless the Agents shall otherwise
specify, other than by an amendment or supplement which relates exclusively to
an offering of debt securities other than the Notes), (ii) there is filed with
the SEC any document incorporated by reference into the Prospectus (other than
any Current Report on Form 8-K relating exclusively to the issuance of debt
securities under the Registration Statement, unless the Agents shall otherwise
specify), (iii) (if required in connection with the purchase of Notes by an
Agent as principal) the Company sells Notes to an Agent as principal or (iv) if
the Company issues and sells Notes in a form not previously
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certified to the Agents by the Company, the Company shall furnish or cause to be
furnished to the Agents forthwith a certificate dated the date of filing with
the SEC of such supplement or document, the date of effectiveness of such
amendment, or the date of such sale, as the case may be, in form satisfactory to
the Agents to the effect that the statements contained in the certificate
referred to in Section 5(b) hereof which was last furnished to the Agents are
true and correct at the time of such amendment, supplement, filing or sale, as
the case may be, as though made at and as of such time (except that such
statements shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such time) or, in lieu of such
certificate, a certificate of the same tenor as the certificate referred to in
said Section 5(b), modified as necessary to relate to the Registration Statement
and the Prospectus as amended and supplemented to the time of delivery of such
certificate.
(c) SUBSEQUENT DELIVERY OF LEGAL OPINIONS. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for a change in the interest
rates of the Notes or similar changes or solely for the inclusion of additional
financial information, and, unless the Agents shall otherwise specify, other
than by an amendment or supplement which relates exclusively to an offering of
debt securities other than the Notes), (ii) there is filed with the SEC any
document incorporated by reference into the Prospectus (other than any Current
Report on Form 8-K, unless the Agent shall otherwise specify), (iii) (if
required in connection with the purchase of Notes by an Agent as principal) the
Company sells Notes to an Agent as principal or (iv) if the Company issues and
sells Notes in a form not previously certified to the Agents by the Company, the
Company shall furnish or cause to be furnished forthwith to the Agents and to
counsel to the Agents a written opinion of Gary A. Spiess, Esq., General Counsel
of the Company, or other counsel satisfactory to the Agents dated the date of
filing with the SEC of such supplement or document, the date of effectiveness of
such amendment, or the date of such sale, as the case may be, in form and
substance satisfactory to the Agents, of the same tenor as the opinion referred
to in Sections 5(a)(1) and 5(a)(3) hereof, but modified, as necessary, to relate
to the Registration Statement and the Prospectus as amended and supplemented to
the time of delivery of such opinion; or, in lieu of such opinion, counsel last
furnishing such opinion to the Agents shall furnish the Agents with a letter to
the effect that the Agents may rely on such last opinion to the same extent as
though it was dated the date of such letter authorizing reliance (except that
statements in such last opinion shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of delivery
of such letter authorizing reliance).
(d) SUBSEQUENT DELIVERY OF COMFORT LETTERS. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information or there is filed with the SEC any
document incorporated by reference into the Prospectus which contains additional
financial information, or (ii) (if required in connection with the purchase of
Notes by an Agent as principal) the Company sells Notes to an Agent as
principal, the Company shall cause Coopers & Lybrand L.L.P. forthwith to furnish
the Agents
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a letter, dated the date of effectiveness of such amendment, supplement or
document with the SEC, or the date of such sale, as the case may be, in form
satisfactory to the Agents, of the same tenor as the portions of the letter
referred to in clauses (i) and (ii) of Section 5(c) hereof but modified to
relate to the Registration Statement and Prospectus, as amended and supplemented
to the date of such letter, and of the same general tenor as the portions of the
letter referred to in clauses (iii) and (iv) of said Section 5(c) with such
changes as may be necessary to reflect changes in the financial statements and
other information derived from the accounting records of the Company.
8. INDEMNIFICATION.
(a) INDEMNIFICATION OF THE AGENTS. The Company agrees to indemnify
and hold harmless each Agent and each person, if any, who controls each Agent
within the meaning of Section 15 of the 1933 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), or the omission or
alleged omission therefrom of a material fact 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 the
Prospectus (or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary 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 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, if 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 the Agents)
reasonably incurred in investigating, preparing or defending against any
litigation, or 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 does not apply to any loss,
liability, claim, damage or expense to the extent arising out of an untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information
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furnished to the Company by the Agents expressly for use in the Registration
Statement (or any amendment thereto) or the Prospectus (or any amendment or
supplement thereto);
(b) INDEMNIFICATION OF COMPANY. Each Agent severally agrees to
indemnify and hold harmless the Company, its directors, each of its officers who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 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) or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Agent expressly for use in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto).
(c) GENERAL. Each indemnified party shall give prompt notice 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 which it may
have otherwise than on account of this indemnity agreement. An indemnifying
party may participate at its own expense in the defense of such action. In no
event shall the indemnifying parties be liable for the fees and expenses of more
than one counsel (in addition to any local 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.
9. CONTRIBUTION.
In order to provide for just and equitable contribution in circumstances
in which the indemnity agreement provided for in Section 8 hereof is for any
reason held to be unavailable to or insufficient to hold harmless the
indemnified parties although applicable in accordance with its terms, the
Company and the Agents shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by said indemnity
agreement incurred by the Company and the Agents, as incurred, in such
proportions that each Agent is responsible for that portion represented by the
percentage that the total commissions and underwriting discounts received by
such Agent to the date of such liability bears to the total sales price from the
sale of Notes sold to or through such Agent to the date of such liability, and
the Company is responsible for the balance; PROVIDED, HOWEVER, that (i) in no
case shall any Agent be liable or responsible for any amount in excess of the
total commissions and underwriting discounts received by such Agent to the date
of such liability and (ii) no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each person, if any, who
controls each Agent within the meaning of Section 15 of the 1933 Act shall have
the same rights to contribution as
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such Agent, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as the Company.
10. PAYMENT OF EXPENSES.
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) The preparation and filing of the Registration Statement and all
amendments thereto and the Prospectus and any amendments or supplements thereto;
(b) The preparation, filing and reproduction of this Agreement;
(c) The preparation, printing, issuance and delivery of the Notes,
including any fees and expenses relating to the use of book-entry notes;
(d) The fees and disbursements of the Company's accountants and
counsel, of the Trustee and its counsel, and of any Calculation Agent or
Exchange Rate Agent;
(e) The reasonable fees and disbursements of counsel to the Agents
incurred in connection with the establishment of the program relating to the
Notes and incurred from time to time in connection with the transactions
contemplated hereby;
(f) The qualification of the Notes under state securities laws in
accordance with the provisions of Section 4(h) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Agents in connection
therewith and in connection with the preparation of any Blue Sky Survey and any
Legal Investment Survey;
(g) The printing and delivery to the Agents in quantities as
hereinabove stated of copies of the Registration Statement and any amendments
thereto, and of the Prospectus and any amendments or supplements thereto;
(h) The preparation, printing, reproducing and delivery to the
Agents of copies of the Indenture and all supplements and amendments thereto;
(i) Any fees charged by rating agencies for the rating of the Notes;
(j) The fees and expenses incurred in connection with the listing of
the Notes on any securities exchange;
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(k) The fees and expenses, if any, incurred with respect to any
filing with the National Association of Securities Dealers, Inc.;
(l) Any advertising and other out-of-pocket expenses of the Agents
incurred with the approval of the Company; and
(m) The cost of providing any CUSIP or other identification numbers
for the Notes.
11. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company submitted pursuant
hereto or thereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Agents or any
controlling person of an Agent, or by or on behalf of the Company, and shall
survive each delivery of and payment for any of the Notes.
12. TERMINATION.
(a) TERMINATION OF THIS AGREEMENT. This Agreement (excluding any
agreement hereunder by an Agent to purchase Notes as principal) may be
terminated for any reason, at any time by either the Company or any of the
Agents as to itself, immediately upon the giving of 30 days written notice of
such termination to the other parties hereto.
(b) TERMINATION OF AGREEMENT TO PURCHASE NOTES AS PRINCIPAL. Any
Agent may terminate any agreement hereunder by such Agent to purchase Notes as
principal, immediately upon notice to the Company, at any time prior to the
Settlement Date relating thereto (i) if there has been, since the date of such
agreement or since the respective dates as of which information is given in the
Registration Statement, 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, or (ii) if there shall have occurred
any outbreak or escalation of existing hostilities or other national or
international calamity or crisis the effect of which on the financial markets of
the United States is such as to make it, in the judgment of such Agent,
impracticable to market the Notes or enforce contracts for the sale of the
Notes, or (iii) if trading in any securities of the Company has been suspended
by the SEC or the National Association of Securities Dealers, Inc., or if
trading generally on the New York Stock Exchange, the Boston Stock Exchange or
in the over-the-counter market shall have been suspended, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices for securities
have been required, by either of said exchanges or by order of the SEC any
exchange on which such securities are listed or any other governmental authority
with appropriate jurisdiction over such matters, or (iv) if a banking moratorium
shall have been
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declared by either Federal or New York authorities or if a banking moratorium
shall have been declared by the relevant authorities in the country or countries
of origin of any foreign currency or currencies in which the Notes are
denominated or payable, or (v) if the rating assigned by any nationally
recognized securities rating agency to any debt securities of the Company as of
the date of any applicable principal purchase shall have been lowered since that
date or if any such rating agency shall have publicly announced that it has
under surveillance or review, with possible negative implications, its rating of
any debt securities of the Company.
(c) GENERAL. In the event of any such termination, no party will
have any liability to any other party hereto, except that (i) the Agents shall
be entitled to any commission earned in accordance with the third paragraph of
Section 3(b) hereof, (ii) if at the time of termination (a) an Agent shall own
any Notes purchased by it as principal with the intention of reselling them or
(b) an offer to purchase any of the Notes has been accepted by the Company but
the time of delivery to the purchaser or his agent of the Note or Notes relating
thereto has not occurred, the covenants set forth in Sections 4 and 7 hereof
shall remain in effect until such Notes are so resold or delivered, as the case
may be, and (iii) the covenant set forth in Section 4(g) hereof, the provisions
of Section 10 hereof, the indemnity and contribution agreements set forth in
Sections 8 and 9 hereof, and the provisions of Sections 11, 14 and 15 hereof
shall remain in effect.
13. NOTICES.
Unless otherwise provided herein, all notices required under the terms
and provisions hereof shall be in writing, either delivered by hand, by mail or
by telex, telecopier or telegram, and any such notice shall be effective when
received at the address specified below.
If to the Company:
BankBoston Corporation
100 Federal Street
Boston, Massachusetts 02110
Attention: Kathleen M. McGillycuddy,
Executive Director Global Treasury
Fax: (617) 434-0501
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With a copy to:
BankBoston Corporation
100 Federal Street
Boston, Massachusetts 02110
Attention: Gary A. Spiess, General Counsel
Fax: (617) 434-7980
If to Morgan Stanley & Co. Incorporated:
Morgan Stanley & Co. Incorporated
1585 Broadway - 2nd Floor
New York, New York 10036
Attention: Manager--Continuously Offered Products
Fax: (212) 761-0780
With a copy to:
Morgan Stanley & Co. Incorporated
1585 Broadway - 34th Floor
New York, New York 10036
Attention: Peter Cooper--Investment Banking Information Center
Fax: (212) 761-0260
If to BancBoston Securities Inc.:
BancBoston Securities Inc.
100 Federal Street
M.S. 01-12-06
Boston, Massachusetts 02110
Attention: Daniel Richler
Fax: (617) 434-3709
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If to Bear, Stearns & Co. Inc.:
Bear, Stearns & Co. Inc.
245 Park Avenue - 4th Floor
New York, New York 10167
Attention: Medium-Term Note Desk
Fax: (212) 272-6227
If to Chase Securities Inc.:
Chase Securities Inc.
270 Park Avenue - 8th Floor
New York, New York 10017
Attention: Medium-Term Note Desk
Fax: (212) 834-6081
If to Credit Suisse First Boston Corporation:
Credit Suisse First Boston Corporation
11 Madison Avenue
New York, New York 10010
Attention: Short and Medium-Term Finance
Fax: (212) 325-8183
If to Lehman Brothers Inc.:
Lehman Brothers Inc.
3 World Financial Center - 12th Floor
New York, New York 10285
Attention: Medium-Term Note Department
Fax: (212) 528-1718
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If to Merrill Lynch & Co.:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower - 10th Floor
World Financial Center
New York, New York 10281-1310
Attention: MTN Product Management
Fax: (212) 449-2234
If to Salomon Brothers Inc:
Salomon Brothers Inc
7 World Trade Center
New York, New York 10048
Attention: Medium-Term Note Department
Fax: (212) 783-2274
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
14. GOVERNING LAW; FORUM.
This Agreement and all the rights and obligations of the parties shall
be governed by and construed in accordance with the laws of the State of New
York applicable to agreements made and to be performed in such State. Any suit,
action or proceeding brought by the Company against an Agent in connection with
or arising under this Agreement shall be brought solely in the state or federal
court of appropriate jurisdiction located in the Borough of Manhattan, The City
of New York.
15. PARTIES.
This Agreement shall inure to the benefit of and be binding upon the
Agents and the Company 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 parties hereto and their respective
successors and the controlling persons and officers and directors referred to in
Sections 8 and 9 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
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and exclusive benefit of the parties hereto and their respective successors and
said controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Notes shall be deemed to be a successor by reason merely of such
purchase.
16. COUNTERPARTS.
This Agreement may be executed in one or more counterparts and when a
counterpart has been executed by each party, all such counterparts taken
together shall constitute one and the same agreement.
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If the foregoing is in accordance with the Agents' understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument along with all counterparts will become a binding agreement
among the Agents and the Company in accordance with its terms.
Very truly yours,
BANKBOSTON CORPORATION
By:
-------------------------------------
Name:
Title:
Accepted:
MORGAN STANLEY & CO. INCORPORATED
By:
------------------------------
Name:
Title:
BEAR, STEARNS & CO. INC.
By:
------------------------------
Name:
Title:
CHASE SECURITIES INC.
By:
------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON CORPORATION
By:
------------------------------
Name:
Title:
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LEHMAN BROTHERS INC.
By:
------------------------------
Name:
Title:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
------------------------------
Name:
Title:
SALOMON BROTHERS INC
By:
------------------------------
Name:
Title:
BANCBOSTON SECURITIES INC.
By:
------------------------------
Name:
Title:
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EXHIBIT A
The following terms, if applicable, shall be agreed to by the applicable
Agent and the Company in connection with each sale of Notes:
Principal Amount: $_______
(or principal amount of foreign currency)
Original Issue Date:
Discount Note:
If Discount Note, specify Issue Price:
Interest Rate:
If Fixed Rate Note:
Interest Rate:
Interest Payment Dates:
If Floating Rate Note:
Interest Rate Basis or Bases:
Interest Category:
Initial Interest Rate:
Spread and/or Spread Multiplier, if any:
Initial Interest Reset Date:
Interest Reset Date(s):
Interest Payment Date(s):
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Rate Reset Period:
Interest Payment Period:
Calculation Agent:
Day Count Convention:
Exchange Rate Agent:
If LIBOR, specify LIBOR Reuters or LIBOR Telerate:
If CMT Rate, specify Designated CMT Telerate Page:
Designated CMT Maturity Index:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
If Repayable:
Optional Repayment Date(s):
Stated Maturity Date:
Purchase Price: ___%
Settlement Date and Time:
Authorized Denominations:
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Specified Currency (if currency is other than U.S. dollar):
Default Rate, if any:
Additional Terms:
Also, in connection with the purchase of Notes by an Agent as principal,
agreement as to whether the following will be required:
Officers' Certificate pursuant to Section 7(b) of the Distribution Agreement.
Legal Opinion pursuant to Section 7(c) of the Distribution Agreement.
Comfort Letter pursuant to Section 7(d) of the Distribution Agreement.
Stand-off Agreement pursuant to Section 4(j) of the Distribution Agreement.
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SCHEDULE I
As compensation for the services of the Agents hereunder, the Company
shall pay the applicable Agent, on a discount basis, a commission for the sale
of each Note equal to the principal amount of such Note multiplied by the
appropriate percentage set forth below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
- --------------- ----------------
From 9 months to less than 1 year................................ .125%
From 1 year to less than 18 months............................... .150
From 18 months to less than 2 years.............................. .200
From 2 years to less than 3 years................................ .250
From 3 years to less than 4 years................................ .350
From 4 years to less than 5 years................................ .450
From 5 years to less than 6 years................................ .500
From 6 years to less than 7 years................................ .550
From 7 years to less than 10 years............................... .600
From 10 years to less than 15 years.............................. .625
From 15 years to less than 20 years.............................. .700
From 20 years to 30 years........................................ .750
Greater than 30 years ........................................... *
- ----------
* As agreed to by the Company and the applicable Agent at the time of sale.