EXHIBIT 1
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FLEET FINANCIAL GROUP, INC.
(a Rhode Island corporation); and
FLEET CAPITAL TRUST II
(a Delaware statutory business trust)
[ ]
[ ]% Capital Securities
FORM OF PURCHASE AGREEMENT
Dated: December , 1996
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TABLE OF CONTENTS
PURCHASE AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1. Representations and Warranties. . . . . . . . . . . . . . . . 3
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY AND THE TRUST.. 3
(i) Compliance with Registration Requirements . . . . . 3
(ii) Incorporated Documents. . . . . . . . . . . . . . . 4
(iii) Independent Accountants . . . . . . . . . . . . . . 5
(iv) Financial Statements. . . . . . . . . . . . . . . . 5
(v) No Material Adverse Change in Business. . . . . . . 5
(vi) Good Standing of the Company. . . . . . . . . . . . 5
(vii) Good Standing of Subsidiaries . . . . . . . . . . . 5
(viii) Capitalization. . . . . . . . . . . . . . . . . . . 6
(ix) Capitalization; Descriptions. . . . . . . . . . . . 6
(x) Existence of Trust. . . . . . . . . . . . . . . . . 6
(xi) Common Securities.. . . . . . . . . . . . . . . . . 6
(xii) Authorization of Declaration. . . . . . . . . . . 7
(xiii) Guarantee Agreements. . . . . . . . . . . . . . . . 7
(xiv) Capital Securities. . . . . . . . . . . . . . . . . 7
(xv) Authorization of Indenture. . . . . . . . . . . . . 7
(xvi) Authorization of Debentures . . . . . . . . . . . . 8
(xvii) Authorization of Agreement. . . . . . . . . . . . . 8
(xviii) Absence of Defaults and Conflicts . . . . . . . . . 8
(xix) Absence of Labor Dispute. . . . . . . . . . . . . . 9
(xx) Absence of Proceedings. . . . . . . . . . . . . . . 9
(xxi) Accuracy of Exhibits. . . . . . . . . . . . . . . . 9
(xxii) Possession of Intellectual Property . . . . . . . . 9
(xxiii) Absence of Further Requirements . . . . . . . . . . 10
(xxiv) Possession of Licenses and Permits. . . . . . . . . 10
(xxv) Title to Property . . . . . . . . . . . . . . . . . 10
(xxvi) Compliance with Cuba Act. . . . . . . . . . . . . . 11
(xxvii) Investment Company Act. . . . . . . . . . . . . . . 11
(xxviii) Environmental Laws. . . . . . . . . . . . . . . . . 11
(xxix) Taxes . . . . . . . . . . . . . . . . . . . . . . . 11
(b) OFFICER'S CERTIFICATES. . . . . . . . . . . . . . . . . . . . 12
SECTION 2. Sale and Delivery to Underwriters; Closing. . . . . . . . . . 12
(a) CAPITAL SECURITIES. . . . . . . . . . . . . . . . . . . . . . 12
(b) PAYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(c) DENOMINATIONS; REGISTRATION . . . . . . . . . . . . . . . . . 13
i
SECTION 3. Covenants of the Company and the Trust. . . . . . . . . . . . 13
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS 13
(b) FILING OF AMENDMENTS. . . . . . . . . . . . . . . . . . . . . 13
(c) DELIVERY OF REGISTRATION STATEMENTS . . . . . . . . . . . . . 14
(d) DELIVERY OF PROSPECTUSES. . . . . . . . . . . . . . . . . . . 14
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS . . . . . . . . . . 14
(f) BLUE SKY QUALIFICATIONS . . . . . . . . . . . . . . . . . . . 15
(g) RULE 158. . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(h) USE OF PROCEEDS . . . . . . . . . . . . . . . . . . . . . . . 15
(i) RESTRICTION ON SALE OF SECURITIES . . . . . . . . . . . . . . 15
(j) REPORTING REQUIREMENTS. . . . . . . . . . . . . . . . . . . . 15
(k) FURNISH REPORTS . . . . . . . . . . . . . . . . . . . . . . . 16
(l) INTERIM FINANCIALS. . . . . . . . . . . . . . . . . . . . . . 16
SECTION 4. Payment of Expenses . . . . . . . . . . . . . . . . . . . . . 16
(a) EXPENSES. . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(b) TERMINATION OF AGREEMENT. . . . . . . . . . . . . . . . . . . 16
SECTION 5. Conditions of Underwriters' Obligations . . . . . . . . . . . 17
(a) EFFECTIVENESS OF REGISTRATION STATEMENT . . . . . . . . . . . 17
(b) OPINION OF COUNSEL FOR COMPANY. . . . . . . . . . . . . . . . 17
(c) OPINION OF COUNSEL FOR THE TRUST. . . . . . . . . . . . . . . 17
(d) OPINION OF COUNSEL FOR UNDERWRITERS . . . . . . . . . . . . . 17
(e) OFFICERS' CERTIFICATE . . . . . . . . . . . . . . . . . . . . 18
(f) ACCOUNTANT'S COMFORT LETTER . . . . . . . . . . . . . . . . . 18
(g) LOCK-UP AGREEMENTS. . . . . . . . . . . . . . . . . . . . . . 18
(h) MAINTENANCE OF RATING . . . . . . . . . . . . . . . . . . . . 19
(i) ADDITIONAL DOCUMENTS. . . . . . . . . . . . . . . . . . . . . 19
(j) TERMINATION OF AGREEMENT. . . . . . . . . . . . . . . . . . . 19
SECTION 6. Indemnification . . . . . . . . . . . . . . . . . . . . . . . 19
(a) INDEMNIFICATION OF UNDERWRITERS . . . . . . . . . . . . . . . 19
(b) INDEMNIFICATION OF TRUST, COMPANY, DIRECTORS AND OFFICERS . . 20
(c) ACTIONS AGAINST PARTIES; NOTIFICATION . . . . . . . . . . . . 20
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. . . . . . 21
SECTION 7. Contribution. . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 8. Representations, Warranties and Agreements to Survive Delivery 23
SECTION 9. Termination of Agreement. . . . . . . . . . . . . . . . . . . 23
(a) TERMINATION; GENERAL. . . . . . . . . . . . . . . . . . . . . 23
(b) LIABILITIES . . . . . . . . . . . . . . . . . . . . . . . . . 23
ii
SECTION 10. Default by One or More of the Underwriters. . . . . . . . . . 23
SECTION 11. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 12. Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 13. GOVERNING LAW AND TIME. . . . . . . . . . . . . . . . . . . . 24
SECTION 14. Effect of Headings. . . . . . . . . . . . . . . . . . . . . . 25
SCHEDULES
Schedule A - List of Underwriters. . . . . . . . . . . . . . . . . Sch A-1
Schedule B - List of Subsidiaries . . . . . . . . . . . . . . . . . Sch B-1
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel. . . . . . . . . . . . A-1
Exhibit B - Form of Opinion of Trust's Counsel. . . . . . . . . . . . . B-1
Exhibit C - Form of Lock-up Letter. . . . . . . . . . . . . . . . . . . D-1
iii
FLEET FINANCIAL GROUP, INC.
(a Rhode Island corporation)
FLEET CAPITAL TRUST II
(a Delaware statutory business trust)
[ ]
[ ]% Capital Securities
(Liquidation Amount $1000 Per Preferred Security)
PURCHASE AGREEMENT
December , 1996
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Fleet Capital Trust II (the "Trust"), a statutory business trust organized
under the Business Trust Act (the "Delaware Act") of the State of Delaware
(Chapter 38, Title 12 of the Delaware Code, 12 Del. C. Section Section 3801 ET
SEQ.) confirms its agreement with Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated ("Merrill Lynch") and each of the other Underwriters
named in Schedule A hereto (collectively, the "Underwriters", which term shall
also include any underwriter substituted as hereinafter provided in Section 10
hereof), for whom Merrill Lynch is acting as representative (in such capacity,
the "Representative"), with respect to the issue and sale by the Trust and the
purchase by the Underwriters, acting severally and not jointly, of the
respective numbers of [ ] % Capital Securities (liquidation amount $1000 per
preferred security) ("Capital Securities") set forth in said Schedule A. The
Capital Securities are more fully described in the Prospectus (as defined
below).
The Capital Securities will be guaranteed by Fleet Financial Group, Inc. (a
Rhode Island corporation) (the "Company"), to the extent set forth in the
Prospectus (as defined below), with respect to distributions and amounts payable
upon liquidation or redemption (the "Capital Securities Guarantee") pursuant to
the Capital Securities Guarantee Agreement (the "Capital Securities Guarantee
Agreement") to be dated as of Closing Time (as defined below) executed and
delivered by the Company and The First National Bank of Chicago (the "Guarantee
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Trustee"), a national banking association not in its individual capacity but
solely as trustee, for the benefit of the holders from time to time of the
Capital Securities. The Company and the Trust each understand that the
Underwriters propose to make a public offering of the Capital Securities as soon
as they deem advisable after this Agreement has been executed and delivered, and
the Declaration (as defined herein), the Indenture (as defined herein), and the
Capital Securities Guarantee Agreement have been qualified under the Trust
Indenture Act of 1939, as amended (the "1939 Act"). The entire proceeds from
the sale of the Capital Securities will be combined with the entire proceeds
from the sale by the Trust to the Company of its common securities (the "Common
Securities") guaranteed by the Company, to the extent set forth in the
Prospectus, with respect to distributions and amounts payable upon liquidation
or redemption (the "Common Securities Guarantee" and, together with the Capital
Securities Guarantee, the "Guarantees") pursuant to the Common Securities
Guarantee Agreement (the "Common Securities Guarantee Agreement" and, together
with the Capital Securities Agreement, the "Guarantee Agreements"), to be dated
as of Closing Time, executed and delivered by the Company for the benefit of the
holders from time to time of the Common Securities, and will be used by the
Trust to purchase the [ ] Junior Subordinated Deferrable Interest Debentures
due 2026 (the "Debentures") issued by the Company. The Capital Securities and
the Common Securities will be issued pursuant to the Amended and Restated
Declaration of Trust of the Trust, to be dated as of Closing Time (the
"Declaration"), among the Company, as Sponsor, The First National Bank of
Chicago, as institutional trustee (the "Institutional Trustee"), and First
Chicago Delaware Inc., as Delaware trustee (the "Delaware Trustee"), and Eugene
M. McQuade, Douglas L. Jacobs and John R. Rodehorst, as regular trustees (the
"Regular Trustees" and together with the Institutional Trustee and the Delaware
Trustee, the "Trustees"), and the holders from time to time of undivided
beneficial interests in the assets of the Trust. The Debentures will be issued
pursuant to an Indenture, to be dated as of Closing Time (the "Indenture"),
between the Company and The First National Bank of Chicago as trustee (the
"Indenture Trustee"), as supplemented by a Supplemental Indenture to be dated as
of Closing Time (the "Supplemental Indenture"), between the Company and the
Indenture Trustee. The Capital Securities, the Capital Securities Guarantee and
the Debentures are collectively referred to herein as the "Securities."
Capitalized terms used herein without definition have the respective meanings
specified in the Prospectus.
The Company and the Trust have filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-15435) covering the registration of the Securities under the Securities Act
of 1933, as amended (the "1933 Act"), including the related preliminary
prospectus or prospectuses. Promptly after execution and delivery of this
Agreement, the Company will either (i) prepare and file a prospectus in
accordance with the provisions of Rule 430A ("Rule 430A") of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations")
and paragraph (b) of Rule 424 ("Rule 424(b)") of the 1933 Act Regulations or
(ii) if the Company has elected to rely upon Rule 434 ("Rule 434") of the 1933
Act Regulations, prepare and file a term sheet (a "Term Sheet") in accordance
with the provisions of Rule 434 and Rule 424(b). The information included in
such prospectus or in such Term Sheet, as the case may be, that was omitted from
such registration statement at the time it became effective but that is deemed
to be part of such registration statement at the time it
2
became effective (a) pursuant to paragraph (b) of Rule 430A is referred to as
"Rule 430A Information" or (b) pursuant to paragraph (d) of Rule 434 is referred
to as "Rule 434 Information." Each prospectus used before such registration
statement became effective, and any prospectus that omitted, as applicable, the
Rule 430A Information or the Rule 434 Information, that was used after such
effectiveness and prior to the execution and delivery of this Agreement, is
herein called a "preliminary prospectus." Such registration statement,
including the exhibits thereto, schedules thereto, if any, and the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act, at the time it became effective and including the Rule 430A Information and
the Rule 434 Information, as applicable, is herein called the "Registration
Statement." Any registration statement filed pursuant to Rule 462(b) of the
1933 Act Regulations is herein referred to as the "Rule 462(b) Registration
Statement," and after such filing the term "Registration Statement" shall
include the Rule 462(b) Registration Statement. The final prospectus, including
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, in the form first furnished to the Underwriters for use in
connection with the offering of the Capital Securities is herein called the
"Prospectus." If Rule 434 is relied on, the term "Prospectus" shall refer to
the preliminary prospectus dated November 1, 1996 together with the Term Sheet
and all references in this Agreement to the date of the Prospectus shall mean
the date of the Term Sheet. For purposes of this Agreement, all references to
the Registration Statement, any preliminary prospectus, the Prospectus or any
Term Sheet or any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("EDGAR").
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (the "1934 Act") which is
incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY AND THE TRUST. The
Company and the Trust jointly and severally represent and warrant to each
Underwriter as of the date hereof, as of the Closing Time referred to in Section
2(c) hereof, and as of each Date of Delivery (if any) referred to in Section
2(b) hereof, and agrees with each Underwriter, as follows:
(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS. The Company [AND
THE TRUST] meet the requirements for use of Form S-3 under the 1933 Act.
Each of the
3
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of the
Company and the Trust, are contemplated by the Commission, and any request
on the part of the Commission for additional information has been complied
with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective and at the Closing Time, the Registration Statement, the Rule
462(b) Registration Statement, if any, and any amendments and supplements
thereto complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the 1939 Act
and the rules and regulations of the Commission under the 1939 Act (the
"1939 Act Regulations") and did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading. Neither the Prospectus nor any amendments or supplements
thereto, at the time the Prospectus or any such amendment or supplement was
issued and at the Closing Time, included or will include an untrue
statement of a material fact or omitted or will omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If Rule 434 is
used, the Company and the Trust will comply with the requirements of Rule
434. The representations and warranties in this subsection shall not apply
to statements in or omissions from the Registration Statement or Prospectus
made in reliance upon and in conformity with information furnished to the
Trust or the Company in writing by any Underwriter through Merrill Lynch
expressly for use in the Registration Statement or Prospectus.
Each preliminary prospectus and the prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectus delivered to the Underwriters for
use in connection with this offering was identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR,
except to the extent permitted by Regulation S-T.
(ii) INCORPORATED DOCUMENTS. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement and
the Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations") and, when read together
with the other information in the Prospectus, at the time the Registration
Statement became effective, at the time the Prospectus was issued and at
the Closing Time, did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
4
(iii) INDEPENDENT ACCOUNTANTS. The accountants who certified the
financial statements and supporting schedules included in the Registration
Statement are independent public accountants as required by the 1933 Act
and the 1933 Act Regulations.
(iv) FINANCIAL STATEMENTS. The financial statements included in
the Registration Statement and the Prospectus, together with the related
schedules and notes, present fairly the financial position of the Company
and its consolidated subsidiaries at the dates indicated and the statement
of operations, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout the
periods involved. The supporting schedules, if any, included in the
Registration Statement present fairly in accordance with GAAP the
information required to be stated therein. The selected financial data and
the summary financial information included in the Prospectus present fairly
the information shown therein and have been compiled on a basis consistent
with that of the audited financial statements included in the Registration
Statement.
(v) NO MATERIAL ADVERSE CHANGE IN BUSINESS. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein, (A) there
has been no material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business (a "Material Adverse
Effect"), (B) there have been no transactions entered into by the Company
or any of its subsidiaries, other than those in the ordinary course of
business, which are material with respect to the Company and its
subsidiaries considered as one enterprise, and (C) there has been no
dividend or distribution of any kind declared, paid or made by the Company
on any class of its capital stock.
(vi) GOOD STANDING OF THE COMPANY. The Company has been duly
organized and is validly existing as a corporation in good standing under
the laws of the State of Rhode Island and has corporate power and authority
to own, lease and operate its properties and to conduct its business as
described in the Prospectus and to enter into and perform its obligations
under this Agreement; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not result
in a Material Adverse Effect.
(vii) GOOD STANDING OF SUBSIDIARIES. Each subsidiary of the
Company has been duly organized and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its incorporation, has
corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Prospectus
5
and is duly qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect; except as
otherwise disclosed in the Registration Statement, all of the issued and
outstanding capital stock of each such subsidiary has been duly authorized
and validly issued, is fully paid and non-assessable and is owned by the
Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock of any subsidiary was issued in
violation of the preemptive or similar rights of any securityholder of such
subsidiary. The only subsidiaries of the Company are the subsidiaries
listed on Schedule B hereto.
(viii) CAPITALIZATION. The authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectus in the
column entitled "Actual" under the caption "Capitalization" (except for
subsequent issuances, if any, pursuant to this Agreement, pursuant to
reservations, agreements or employee benefit plans referred to in the
Prospectus or pursuant to the exercise of convertible securities or options
referred to in the Prospectus). The shares of issued and outstanding
capital stock of the Company have been duly authorized and validly issued
and are fully paid and non-assessable; none of the outstanding shares of
capital stock of the Company was issued in violation of the preemptive or
other similar rights of any securityholder of the Company.
(ix) CAPITALIZATION; DESCRIPTIONS. The Capital Securities, the
Common Securities, the Debentures, the Declaration, the Capital Securities
Guarantee Agreement and the Indenture conform in all material respects to
the descriptions thereof in the Prospectus under the captions "Description
of the Capital Securities," "Description of the Guarantee," "Description of
the Junior Subordinated Debentures," "Effect of Obligations Under the
Junior Subordinated Debentures and the Guarantee," and "Description of
Capital Stock" and will be in substantially the respective forms filed or
incorporated by reference, as the case may be, as exhibits to the
Registration Statement.
(x) EXISTENCE OF TRUST. The Trust has been duly created and is
validly existing in good standing as a business trust under the Delaware
Act with the power and authority to own property and to conduct its
business as described in the Prospectus and to enter into and perform its
obligations under this Agreement, the Capital Securities, the Common
Securities and the Declaration; the Trust is duly qualified to transact
business as a foreign corporation in good standing in each jurisdiction in
which such qualification is necessary, except to the extent that the
failure to so qualify would not have a Material Adverse Effect on the
Trust; and the Trust is not a party to or otherwise bound by any agreement
other than those described in the Prospectus.
(xi) COMMON SECURITIES. The Common Securities have been duly
authorized by the Declaration and, when issued and delivered by the Trust
to the Company in accordance with the terms of the Declaration and against
payment therefor as described
6
in the Prospectus, will be validly issued and (subject to the terms of the
Declaration) fully paid and nonassessable undivided beneficial interests in
the assets of the Trust; the issuance of the Common Securities is not
subject to preemptive or other similar rights; no holder thereof will be
subject to personal liability by reason of being such a holder; and at the
Closing Time, all of the issued and outstanding Common Securities of the
Trust will be directly owned by the Company free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity.
(xii) AUTHORIZATION OF DECLARATION. The Declaration has been duly
authorized by the Company and, when validly executed and delivered by the
Company and the Regular Trustees, and assuming the due authorization,
execution and delivery of the Declaration by the Delaware Trustee and the
Institutional Trustee, the Declaration will constitute a valid and binding
obligation of the Company and the Regular Trustees, enforceable against the
Company and the Regular Trustees in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(xiii) GUARANTEE AGREEMENTS. Each of the Common Securities
Guarantee Agreement and the Capital Securities Guarantee Agreement has been
duly authorized by the Company and, when validly executed and delivered by
the Company, and assuming due authorization, execution and delivery of the
Capital Securities Guarantee Agreement by the Guarantee Trustee, will
constitute a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(xiv) CAPITAL SECURITIES. The Capital Securities have been duly
authorized by the Declaration and, when authenticated in the manner
provided for in the Declaration and issued and delivered pursuant to this
Agreement against payment of the consideration set forth herein, will be
validly issued and (subject to the terms of the Declaration) fully paid and
nonassessable undivided beneficial interests in the assets of the Trust;
the issuance of the Capital Securities is not subject to preemptive or
other similar rights; and holders of Capital Securities will be entitled to
the same limitation of personal liability extended to stockholders of
private corporations for profit incorporated under the General Corporation
Law of the State of Delaware.
(xv) AUTHORIZATION OF INDENTURE. The Indenture has been duly
authorized by the Company and duly qualified under the 1939 Act, and, when
duly executed and
7
delivered by the Company and assuming the due authorization, executed and
delivery of the Indenture by the Indenture Trustee, will constitute a valid
and binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to 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).
(xvi) AUTHORIZATION OF DEBENTURES. The Debentures have been duly
authorized by the Company, and when executed, authenticated, issued and
delivered in the manner provided for in the Indenture and sold and paid for
as provided in this Agreement, the Debentures will constitute valid and
binding obligations of the Company entitled to the benefits of the
Indenture and enforceable against the Company in accordance with their
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(xvii) AUTHORIZATION OF AGREEMENT. This Agreement has been duly
authorized, executed and delivered by the Company and the Trust.
(xviii) ABSENCE OF DEFAULTS AND CONFLICTS. Neither the Company nor
any of its subsidiaries is in violation of its charter or by-laws or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which it or any of them may be bound, or to which any of the property or
assets of the Company or any subsidiary is subject (collectively,
"Agreements and Instruments") except for such defaults that would not
result in a Material Adverse Effect; and the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated herein and in the Registration Statement (including the
issuance and sale of the Capital Securities and the use of the proceeds
from the sale of the Capital Securities as described in the Prospectus
under the caption "Use of Proceeds", and compliance by the Company and the
Trust with their obligations hereunder have been duly authorized by all
necessary corporate action and do not and will not, whether with or without
the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined below)
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any subsidiary
pursuant to, the Agreements and Instruments (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not
8
result in a Material Adverse Effect), nor will such action result in any
violation of the provisions of the charter or by-laws of the Company or any
subsidiary or any applicable law, statute, rule, regulation, judgment,
order, writ or decree of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over the Company or any
subsidiary or any of their assets, properties or operations. As used
herein, a "Repayment Event" means any event or condition which gives the
holder of any note, debenture or other evidence of indebtedness (or any
person acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the
Company or any subsidiary.
(xix) ABSENCE OF LABOR DISPUTE. No labor dispute with the
employees of the Company or any subsidiary exists or, to the knowledge of
the Company, is imminent, and the Company is not aware of any existing or
imminent labor disturbance by the employees of any of its or any
subsidiary's principal suppliers, manufacturers, customers or contractors,
which, in either case, may reasonably be expected to result in a Material
Adverse Effect.
(xx) ABSENCE OF PROCEEDINGS. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company or the Trust, threatened, against or affecting the
Company or any subsidiary, which is required to be disclosed in the
Registration Statement (other than as disclosed therein), or which might
reasonably be expected to result in a Material Adverse Effect, or which
might reasonably be expected to materially and adversely affect the
properties or assets thereof or the consummation of the transactions
contemplated in this Agreement or the performance by the Company or the
Trust of its obligations hereunder; the aggregate of all pending legal or
governmental proceedings to which the Company or any subsidiary is a party
or of which any of their respective property or assets is the subject which
are not described in the Registration Statement, including ordinary routine
litigation incidental to the business, could not reasonably be expected to
result in a Material Adverse Effect.
(xxi) ACCURACY OF EXHIBITS. There are no contracts or documents
which are required to be described in the Registration Statement, the
Prospectus or the documents incorporated by reference therein or to be
filed as exhibits thereto which have not been so described and filed as
required.
(xxii) POSSESSION OF INTELLECTUAL PROPERTY. The Company and its
subsidiaries own or possess, or can acquire on reasonable terms, adequate
patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual property
(collectively, "Intellectual Property") necessary to carry on the business
now operated by them, and neither the Company nor any of its subsidiaries
has received any notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any
9
Intellectual Property or of any facts or circumstances which would render
any Intellectual Property invalid or inadequate to protect the interest of
the Company or any of its subsidiaries therein, and which infringement or
conflict (if the subject of any unfavorable decision, ruling or finding) or
invalidity or inadequacy, singly or in the aggregate, would result in a
Material Adverse Effect.
(xxiii) ABSENCE OF FURTHER REQUIREMENTS. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by the Company or the Trust of
its obligations hereunder, in connection with the offering, issuance or
sale of the Capital Securities hereunder or the consummation of the
transactions contemplated by this Agreement, except such as have been
already obtained or as may be required under the 1933 Act or the 1933 Act
Regulations or state securities laws.
(xxiv) POSSESSION OF LICENSES AND PERMITS. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them; the Company and its
subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not,
singly or in the aggregate, have a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except when
the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not have a
Material Adverse Effect; and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect.
(xxv) TITLE TO PROPERTY. The Company and its subsidiaries have
good and marketable title to all real property owned by the Company and its
subsidiaries and good title to all other properties owned by them, in each
case, free and clear of all mortgages, pledges, liens, security interests,
claims, restrictions or encumbrances of any kind except such as (a) are
described in the Prospectus or (b) do not, singly or in the aggregate,
materially affect the value of such property and do not interfere with the
use made and proposed to be made of such property by the Company or any of
its subsidiaries; and 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 of its subsidiaries holds properties
described in the Prospectus, are in full force and effect, and neither the
Company nor any 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 subsidiary under any of the leases or subleases mentioned above, or
affecting or questioning the rights of
10
the Company or such subsidiary to the continued possession of the leased or
subleased premises under any such lease or sublease.
(xxvi) COMPLIANCE WITH CUBA ACT. The Company and the Trust have
complied with, and is and will be in compliance with, the provisions of
that certain Florida act relating to disclosure of doing business with
Cuba, codified as Section 517.075 of the Florida statutes, and the rules
and regulations thereunder (collectively, the "Cuba Act") or is exempt
therefrom.
(xxvii) INVESTMENT COMPANY ACT. Neither the Company nor the Trust
is, and upon the issuance and sale of the Capital Securities as herein
contemplated and the application of the net proceeds therefrom as described
in the Prospectus neither will be, an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended (the "1940 Act").
(xxviii) ENVIRONMENTAL LAWS. Except as described in the Registration
Statement and except as would not, singly or in the aggregate, result in a
Material Adverse Effect, (A) neither the Company nor any of its
subsidiaries is in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of common
law or any judicial or administrative interpretation thereof, including any
judicial or administrative order, consent, decree or judgment, relating to
pollution or protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater, land surface
or subsurface strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, "Hazardous Materials") or to
the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Company and its subsidiaries have all
permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements, (C)
there are no pending or threatened administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigation or proceedings relating to any
Environmental Law against the Company or any of its subsidiaries and (D)
there are no events or circumstances that might reasonably be expected to
form the basis of an order for clean-up or remediation, or an action, suit
or proceeding by any private party or governmental body or agency, against
or affecting the Company or any of its subsidiaries relating to Hazardous
Materials or any Environmental Laws.
(xxix) TAXES. The Company and each of its subsidiaries have filed
all federal or state income and franchise tax returns required to be filed
and have paid all taxes shown thereon as due, and there is not material tax
deficiency which has been or is reasonably likely to be asserted against
the Company or any of its subsidiaries; all
11
material tax liabilities of the Company and its subsidiaries are adequately
provided for on the books of the Company and its subsidiaries.
(b) OFFICER'S CERTIFICATES. Any certificate signed by any officer of the
Company or the Trust delivered to the Representative or to counsel for the
Underwriters shall be deemed a representation and warranty by the Company or the
Trust, respectively, to each Underwriter as to the matters covered thereby.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING
(a) CAPITAL SECURITIES. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Trust agrees to sell to each Underwriter, severally and not jointly,
and each Underwriter, severally and not jointly, agrees to purchase from the
Company, at the purchase price of $1000 per Capital Security, the number of
Capital Securities set forth in Schedule A opposite the name of such
Underwriter, plus any additional number of Capital Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof, subject, in each case, to such adjustments among the
Underwriters as they in their sole discretion shall make to eliminate any sales
or purchases of fractional securities. As compensation to the Underwriters for
their commitments hereunder and in view of the fact that the proceeds of the
sale of the Capital Securities will be used to purchase the Debentures, the
Company hereby agrees to pay at the Closing Time to the Underwriters a
commission of $[ ] per Capital Security purchased by the Underwriters.
(b) PAYMENT. Payment of the purchase price for, and delivery of
certificates for, the Capital Securities shall be made at the offices of
Skadden, Arps, Slate, Meagher & Flom LLP, 919 Third Avenue, New York, New York
10022, or at such other place as shall be agreed upon by the Representative, the
Company and the Trust, at 9:00 A.M. (Eastern time) on the third (fourth, if the
pricing occurs after 4:30 p.m. (Eastern time) on any given day) business day
after the date hereof (unless postponed in accordance with the provisions of
Section 10), or such other time not later than ten business days after such date
as shall be agreed upon by the Representative, the Company and the Trust (such
time and date of payment and delivery being herein called "Closing Time").
Payment shall be made to the Trust by wire transfer of immediately
available funds to the order of the Trust, against delivery to the
Representative for the respective accounts of the Underwriters of certificates
for the Capital Securities to be purchased by them. It is understood that each
Underwriter has authorized the Representative, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for the Capital
Securities which it has agreed to purchase. Merrill Lynch, individually and not
as representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Capital Securities to be purchased by any
Underwriter whose funds have not been received by the Closing Time, but such
payment shall not relieve such Underwriter from its obligations hereunder.
12
(c) DENOMINATIONS; REGISTRATION. Certificates for the Capital Securities
shall be in such denominations and registered in such names as the
Representative may request in writing at least one full business day before the
Closing Time or the relevant Date of Delivery, as the case may be. The
certificates for the Capital Securities will be made available for examination
and packaging by the Representative in The City of New York not later than
10:00 A.M. (Eastern time) on the business day prior to the Closing Time or the
relevant Date of Delivery, as the case may be.
At Closing Time the Company will pay, or cause to be paid, the
commission payable at such time under this Section 2 to Merrill Lynch on behalf
of the Underwriters by wire transfer of immediately available funds.
SECTION 3. COVENANTS OF THE COMPANY AND THE TRUST. The Company and the
Trust jointly and severally covenant with each Underwriter as follows:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS.
The Company and the Trust, subject to Section 3(b), will comply with the
requirements of Rule 430A or Rule 434, as applicable, and will notify the
Representative immediately, and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement shall become
effective, or any supplement to the Prospectus or any amended Prospectus
shall have been filed, (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or
for additional information, and (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement
or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Capital
Securities for offering or sale in any jurisdiction, or of the initiation
or threatening of any proceedings for any of such purposes. The Company
and the Trust will promptly effect the filings necessary pursuant to Rule
424(b) and will take such steps as it deems necessary to ascertain promptly
whether the form of prospectus transmitted for filing under Rule 424(b) was
received for filing by the Commission and, in the event that it was not, it
will promptly file such prospectus. The Company and the Trust will make
every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest
possible moment.
(b) FILING OF AMENDMENTS. The Company and the Trust will give the
Representative notice of their intention to file or prepare any amendment
to the Registration Statement (including any filing under Rule 462(b)), any
Term Sheet or any amendment, supplement or revision to either the
prospectus included in the Registration Statement at the time it became
effective or to the Prospectus, whether pursuant to the 1933 Act, the 1934
Act or otherwise, will furnish the Representative with copies of any such
documents a reasonable amount of time prior to such proposed filing or use,
as the case may be, and will not file or use any such document to which the
Representative or counsel for the Underwriters shall object.
13
(c) DELIVERY OF REGISTRATION STATEMENTS. The Company has furnished
or will deliver to the Representative and counsel for the Underwriters,
without charge, signed copies of the Registration Statement as originally
filed and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to
be incorporated by reference therein) and signed copies of all consents and
certificates of experts, and will also deliver to the Representative,
without charge, a conformed copy of the Registration Statement as
originally filed and of each amendment thereto (without exhibits) for each
of the Underwriters. The copies of the Registration Statement and each
amendment thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(d) DELIVERY OF PROSPECTUSES. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus
as such Underwriter reasonably requested, and the Company and the Trust
hereby consent to the use of such copies for purposes permitted by the 1933
Act. The Company will furnish to each Underwriter, without charge, during
the period when the Prospectus is required to be delivered under the 1933
Act or the 1934 Act, such number of copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request. The Prospectus
and any amendments or supplements thereto furnished to the Underwriters
will be identical to the electronically transmitted copies thereof filed
with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Company and the
Trust will comply with the 1933 Act and the 1933 Act Regulations and the
1934 Act and the 1934 Act Regulations so as to permit the completion of the
distribution of the Capital Securities as contemplated in this Agreement
and in the Prospectus. If at any time when a prospectus is required by the
1933 Act to be delivered in connection with sales of the Capital
Securities, any event shall occur or condition shall exist as a result of
which it is necessary, in the opinion of counsel for the Underwriters or
for the Company or Trust, to amend the Registration Statement or amend or
supplement the Prospectus in order that the Prospectus will not include any
untrue statements of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the
light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of such counsel, at
any such time to amend the Registration Statement or amend or supplement
the Prospectus in order to comply with the requirements of the 1933 Act or
the 1933 Act Regulations, the Company and the Trust will promptly prepare
and file with the Commission, subject to Section 3(b), such amendment or
supplement as may be necessary to correct such statement or omission or to
make the Registration Statement or the Prospectus comply with such
requirements, and the Company will furnish to the Underwriters such number
of copies of such amendment or supplement as the Underwriters may
reasonably request.
14
(f) BLUE SKY QUALIFICATIONS. The Company and the Trust will each use
its best efforts, in cooperation with the Underwriters, to qualify the
Capital Securities for offering and sale under the applicable securities
laws of such states and other jurisdictions (domestic or foreign) as the
Representative may designate and to maintain such qualifications in effect
for a period of not less than one year from the later of the effective date
of the Registration Statement and any Rule 462(b) Registration Statement;
provided, however, that neither the Company nor the Trust shall be
obligated to file any general consent to service of process or to qualify
as a foreign corporation or as a dealer in securities in any jurisdiction
in which it is not so qualified or to subject itself to taxation in respect
of doing business in any jurisdiction in which it is not otherwise so
subject. In each jurisdiction in which the Capital Securities have been so
qualified, the Company and the Trust will file such statements and reports
as may be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from the
effective date of the Registration Statement and any Rule 462(b)
Registration Statement. The Company and the Trust will also supply the
Underwriters with such information as is necessary for the determination of
the legality of the Capital Securities for investment under the laws of
such jurisdictions as the Underwriters may request.
(g) RULE 158. The Company will timely file such reports pursuant to
the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(h) USE OF PROCEEDS. The Trust will use the proceeds received by it
from the sale of the Capital Securities in the manner specified in the
Prospectus under "Use of Proceeds." The Company will use the net proceeds
received by it from the sale of the Debentures in the manner specified in
the Prospectus under "Use of Proceeds."
(i) RESTRICTION ON SALE OF SECURITIES. During a period of 90 days
from the date of the Prospectus, neither the Company nor the Trust will,
without the prior written consent of Merrill Lynch, (i) directly or
indirectly, offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase or otherwise transfer or dispose of
any Capital Securities or Debentures (or any equity or debt securities
substantially similar to the Capital Securities or Debentures,
respectively). The foregoing sentence shall not apply to the Capital
Securities or Debentures to be sold hereunder.
(j) REPORTING REQUIREMENTS. The Company and the Trust, during the
period when the Prospectus is required to be delivered under the 1933 Act
or the 1934 Act, will file all documents required to be filed with the
Commission pursuant to the 1934 Act within the time periods required by the
1934 Act and the 1934 Act Regulations.
15
(k) FURNISH REPORTS. For and during the period ending three years
after the effective date of the Registration Statement, the Company will
furnish to the Underwriters copies of all reports and other communications
(financial or otherwise) furnished by the Company to its securityholders
generally and copies of any reports or financial statements furnished to or
filed by the Company with the Commission or any national securities
exchange on which any class of securities of the Company may be listed.
(l) INTERIM FINANCIALS. Prior to the Closing Date the Company will
furnish to the Underwriters, as soon as they have been prepared and are
available, a copy of any unaudited interim consolidated financial
statements of the Company for any period subsequent to the period covered
by its most recent financial statements included in the Registration
Statement and the Prospectus.
SECTION 4. PAYMENT OF EXPENSES. (a) EXPENSES. The Company will pay
all expenses incident to the performance of its and the Trust's obligations
under this Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of this Agreement, any Agreement among
Underwriters and such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Capital Securities,
(iii) the preparation, issuance and delivery of the certificates for the Capital
Securities to the Underwriters, including any stock or other transfer taxes and
any stamp or other duties payable upon the sale, issuance or delivery of the
Capital Securities to the Underwriters, (iv) the fees and disbursements of the
Company's and the Trust's counsel, accountants and other advisors, (v) the
qualification of the Capital Securities under securities laws in accordance with
the provisions of Section 3(f) hereof, including filing fees and the reasonable
fees and disbursements of counsel for the Underwriters in connection therewith
and in connection with the preparation of the Blue Sky Survey and any supplement
thereto, if any, (vi) the printing and delivery to the Underwriters of copies of
each preliminary prospectus, any Term Sheets and of the Prospectus and any
amendments or supplements thereto, (vii) the preparation, printing and delivery
to the Underwriters of copies of the Blue Sky Survey and any supplement thereto,
if any, (viii) the fees and expenses of any transfer agent or registrar for the
Capital Securities, (ix) the fees and expenses of the Indenture Trustee,
including the fees and disbursements of counsel for the Indenture Trustee in
connection with the Indenture and the Debentures, (x) the fees and expenses of
the Delaware Trustee and the Institutional Trustee, including the fees and
disbursements of counsel for the Delaware Trustee and Institutional Trustee in
connection with the Declaration and the Certificate of Trust, (xi) the fees and
expenses of the Guarantee Trustee, (xii) any fees payable in connection with the
rating of the Capital Securities and the Debentures and (xiii) the cost and
charges of qualifying the Capital Securities with the Depositary Trust Company.
(b) TERMINATION OF AGREEMENT. If this Agreement is terminated by the
Underwriters in accordance with the provisions of Section 5 or Section 9(a)(i)
hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
16
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of
the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company and the Trust contained in Section
1 hereof or in certificates of any officer of the Company or any subsidiary of
the Company or any Trustee delivered pursuant to the provisions hereof, to the
performance by the Company and the Trust of their respective covenants and other
obligations hereunder, and to the following further conditions:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, and any
request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the
Underwriters. A prospectus containing the Rule 430A Information shall have
been filed with the Commission in accordance with Rule 424(b) (or a post-
effective amendment providing such information shall have been filed and
declared effective in accordance with the requirements of Rule 430A) or, if
the Company has elected to rely upon Rule 434, a Term Sheet shall have been
filed with the Commission in accordance with Rule 424(b).
(b) OPINION OF COUNSEL FOR COMPANY. At Closing Time, the
Representative shall have received the favorable opinion, dated as of
Closing Time, of Edwards & Angell, counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other
Underwriters to the effect set forth in Exhibit A hereto and to such
further effect as counsel to the Underwriters may reasonably request.
(c) OPINION OF COUNSEL FOR THE TRUST. At Closing Time, the
Underwriters shall have received the favorable opinion, dated as of the
Closing Time, of Skadden, Arps, Slate, Meagher & Flom (Delaware), special
counsel to the Trust, together with signed or reproduced copies of such
letter for each of the Underwriters to the effect set forth in Exhibit B
hereto and to such further effect as counsel to the Underwriters may
reasonably request.
(d) OPINION OF COUNSEL FOR UNDERWRITERS. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of
Closing Time, of Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the
Underwriters, together with signed or reproduced copies of such letter for
each of the other Underwriters with respect to the validity of the
Preferred Securities, the Registration Statement, the Prospectus and other
related matters as the Underwriters may reasonably request. In giving such
opinion such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York, the federal law
of the United States and the General Corporation Law of the State of
Delaware, upon the opinions of counsel satisfactory to the Representative.
Such counsel may also state that, insofar as
17
such opinion involves factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the Company and its
subsidiaries and certificates of public officials.
(e) OFFICERS' CERTIFICATES. At Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectus, (A) any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and
the Representative shall have received a certificate of the President or a
Vice President of the Company and of the chief financial or chief
accounting officer of the Company, dated as of Closing Time, to the effect
that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1(a) hereof are true and correct
with the same force and effect as though expressly made at and as of
Closing Time, (iii) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or
prior to Closing Time, and (iv) no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or are contemplated by the
Commission; or (B) any material adverse change in the condition, financial
or otherwise, or in the earnings or business affairs of the Trust, and the
Representative shall have received a certificate of a Regular Trustee of
the Trust, dated as of Closing Time, to the effect that (i) there has been
no such material adverse change, (ii) the representations and warranties in
Section 1(a) hereof are true and correct with the same force and effect as
though expressly made at and as of Closing Time, (iii) the Trust has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to Closing Time, and (iv) to the best of
its knowledge after due inquiry, 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 Commission.
(f) ACCOUNTANT'S COMFORT LETTER. At closing time, the Representative
shall have received from KPMG Peat Marwick LLP ("KPMG") a letter dated such
date, in form and substance satisfactory to the Representative, together
with signed or reproduced copies of such letter for each of the other
Underwriters containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to
the financial statements and certain financial information contained in the
Registration Statement and the Prospectus.
(g) LOCK-UP AGREEMENTS. At the date of this Agreement, the
Representatives shall have received agreements substantially in the form of
Exhibit C hereto signed by the Company and the Trust.
(h) MAINTENANCE OF RATING. At Closing Time, the Capital Securities
shall be rated at least [ ] by Moody's Investors Service, Inc. and [ ] by
Standard & Poor's
18
Ratings Group, a division of McGraw-Hill, Inc., and the Company shall have
delivered to the Representative a letter dated the Closing Time, from each
such rating agency, or other evidence satisfactory to the Representative,
confirming that the Capital Securities have such ratings; and since the
date of this Agreement, there shall not have occurred a downgrading in the
rating assigned to the Capital Securities or any of the Company's other
securities by any "nationally recognized statistical rating agency", as
that term is defined by the Commission for purposes of Rule 436(g)(2) under
the 1933 Act, and no such organization shall have publicly announced that
it has under surveillance or review its rating of the Securities or any of
the Company's other securities.
(i) ADDITIONAL DOCUMENTS. At Closing Time counsel for the
Underwriters shall have been furnished with such documents and opinions as
they may require for the purpose of enabling them to pass upon the issuance
and sale of the Capital Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company and Trust in connection with the issuance and sale of
the Capital Securities as herein contemplated shall be satisfactory in form
and substance to the Representative and counsel for the Underwriters.
(j) TERMINATION OF AGREEMENT. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement may be terminated by the Representative by notice to the
Company at any time at or prior to Closing Time and such termination shall
be without liability of any party to any other party except as provided in
Section 4 and except that Sections 1, 6, 7 and 8 shall survive any such
termination and remain in full force and effect.
SECTION 6. INDEMNIFICATION.
(a) INDEMNIFICATION OF UNDERWRITERS. The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including the Rule 430A Information and the
Rule 434 Information, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
19
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Merrill Lynch), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (i) or (ii) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through Merrill Lynch expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(b) INDEMNIFICATION OF TRUST, COMPANY, DIRECTORS AND OFFICERS. Each
Underwriter 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 or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through Merrill Lynch expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties
20
shall be selected by Merrill Lynch, and, in the case of parties indemnified
pursuant to Section 6(b) above, counsel to the indemnified parties shall be
selected by the Company. An indemnifying party may participate at its own
expense in the defense of any such action; provided, however, that counsel to
the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a) (ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. CONTRIBUTION. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein; then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the offering
of the Capital Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions,
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Capital
Securities pursuant to this
21
Agreement shall be deemed to be in the same respective proportions as the total
net proceeds from the offering of the Capital Securities pursuant to this
Agreement (before deducting expenses) received by the Company and the total
underwriting discount received by the Underwriters, in each case as set forth on
the cover of the Prospectus, or, if Rule 434 is used, the corresponding location
on the Term Sheet, bear to the aggregate initial public offering price of the
Capital Securities as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriters on
the other hand shall be determined by reference to, among other things, whether
any such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Preferred Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number of Capital Securities set forth opposite their
respective names in Schedule A hereto and not joint.
22
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or the Trustees of the
Trust or any of its other subsidiaries submitted pursuant hereto, shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of any Underwriter or controlling person, or by or on behalf of the
Company, and shall survive delivery of the Capital Securities to the
Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
(a) TERMINATION; GENERAL. The Representative may terminate this
Agreement, by notice to the Company and the Trust, at any time at or prior to
Closing Time (i) if there has been, since the time of execution of this
Agreement or since the respective dates as of which information is given in the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States, any
outbreak of hostilities or escalation thereof or other calamity or crisis or any
change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Representative,
impracticable to market the Capital Securities or to enforce contracts for the
sale of the Capital Securities, or (iii) if trading in any securities of the
Company has been suspended or materially limited by the Commission of the New
York Stock Exchange, or if trading generally on the American Stock Exchange or
the New York Stock Exchange or in the Nasdaq National Market has been suspended
or materially limited, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices have been required, by any of said exchanges or by
such system or by order of the Commission, the National Association of
Securities Dealers, Inc. or any other governmental authority, or (iv) if a
banking moratorium has been declared by either Federal or New York authorities.
(b) LIABILITIES. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more
of the Underwriters shall fail at Closing Time or a Date of Delivery to purchase
the Capital Securities which it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), the Representative shall have the right,
within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Representative shall not
have completed such arrangements within such 24-hour period, then:
23
(a) if the number of Defaulted Securities does not exceed 10% of the
number of Capital Securities to be purchased on such date, each of the
non-defaulting Underwriters shall be obligated, severally and not jointly,
to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number
of Capital Securities to be purchased on such date, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement either the Representative or the Company shall have the right to
postpone Closing Time or the relevant Date of Delivery, as the case may be, for
a period not exceeding seven days in order to effect any required changes in the
Registration Statement or Prospectus or in any other documents or arrangements.
As used herein, the term "Underwriter" includes any person substituted for an
Underwriter under this Section 10.
SECTION 11. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representative at North Tower, World
Financial Center, New York, New York 10281-1201, attention of Syndicate
Operations; notices to the Trust shall be directed to it at The First National
Bank of Chicago, One North State Street, 9th Floor, Chicago, Illinois, attention
of Corporate Trust Administrator and notices to the Company shall be directed to
it at Fleet Financial Group, Inc., One Federal Street, Boston, Massachusetts,
02110, attention of General Counsel.
SECTION 12. PARTIES. This Agreement shall each inure to the benefit of
and be binding upon the Underwriters, the Company and the Trust and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters, the Company and the Trust and their respective successors
and the controlling persons and officers and directors referred to in Sections 6
and 7 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriters, the Company and
the Trust and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Capital
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
24
STATE OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. EFFECT OF HEADINGS. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
25
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company and the Trust a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters, the Company and the Trust in accordance with
its terms.
Very truly yours,
FLEET FINANCIAL GROUP, INC.
By:
------------------------
Name:
Title:
FLEET CAPITAL TRUST II
By:
------------------------
Name:
Title: Regular Trustee
By:
------------------------
Name:
Title: Regular Trustee
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By
-------------------------------------------------------------------
Authorized Signatory
For itself and as Representative of the other Underwriters named in Schedule A
hereto.
26
SCHEDULE A
Number of
Capital
Name of Underwriter Securities
------------------- ----------
Merrill Lynch, Pierce, Fenner & Smith
Incorporated . . . . . . . . . . . . . . . . . . . .
-------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -------
-------
Sch A-1
SCHEDULE B
List of subsidiaries
Sch B-1
Exhibit A
Form of opinion, dated as of Closing Time, of Edwards & Angell, counsel for
the Company and the Trust, substantially to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Rhode Island.
(ii) The Company has corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Registration Statement and to enter into and perform its obligations under
the Purchase Agreement.
(iii) The Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction where such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify
or to be in good standing would not result in a Material Adverse Effect.
(iv) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus in the column entitled "Actual"
under the caption "Capitalization"; the shares of issued and outstanding
Common Stock have been duly authorized and validly issued and are fully
paid and nonassessable; and none of the outstanding shares of capital stock
of the Company was issued in violation of the preemptive or other similar
rights of any securityholder of the Company.
(v) Each subsidiary of the Company has been duly incorporated
and is validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Registration Statement and is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, except where the
failure to so qualify or to be in good standing would not have a Material
Adverse Effect; except as described in the Registration Statement and
Prospectus, all of the issued and outstanding capital stock of each such
subsidiary has been duly authorized and validly issued, is fully paid and
nonassessable and is owned by the Company directly, free and clear of any
security interest, mortgage, pledge, lien, option, claim or other
encumbrance. None of the outstanding shares of capital stock of any
subsidiary was issued in violation of the preemptive or similar rights of
any securityholder of such subsidiary.
(vi) The Purchase Agreement has been duly authorized, executed
and delivered by each of the Company and the Trust.
A-1
(vii) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(viii) The Debentures have been duly authorized, executed and
delivered by the Company and when the Debentures have been duly
authenticated by the Indenture Trustee in accordance with theprovisions of
the Indenture and delivered to and paid for by the Trust, the Debentures
will constitute valid and binding obligations of the Company entitled to
the benefits of the Indenture and enforceable against the Company in
accordance with their terms, except as enforcement thereof may be limited
by bankruptcy, insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at law).
(ix) The Declaration has been duly authorized, executed and
delivered by the Company; and, assuming the due authorization, execution
and delivery of the Declaration by First Chicago Delaware Inc., The First
National Bank of Chicago and the Regular Trustees, the Declaration
constitutes a valid and binding obligation of the Company and is
enforceable against the Company in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(x) The Capital Securities have been duly authorized by the
Declaration and when issued, delivered and paid for in accordance with the
Purchase Agreement will represent fully paid and nonassessable undivided
beneficial interests in the assets of the Trust and will entitle the
holders thereof to the benefits of the Declaration, subject to the effect
upon the Declaration of (a) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent conveyance and other
similar laws relating to or affecting the rights and remedies of creditors
generally, (b) generally principles of equity, including applicable law
relating to fiduciary duties (regardless of whether considered and applied
in a proceeding in equity or at law), and (c) the effect to applicable
public policy on the enforceability of provisions relating to
indemnification or contribution.
A-2
(xi) Each of the Guarantee Agreements has been duly authorized,
executed and delivered by the Company, and is a valid and binding agreement
of the Company enforceable against the Company in accordance with their
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law)..
(xii) The Indenture, Capital Securities Guarantee and the
Declaration have each been duly qualified under the 1939 Act.
(xiii) The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act, 12
Del. C. Section 3801, Section ET SEQ. (the "Delaware Act").
(xiv) Under the Delaware Act and the Declaration, the Trust has
the power and authority to (a) execute and deliver, and to perform its
obligations under, the Purchase Agreement, (b) issue and perform its
obligations under the Capital Securities and the Common Securities and (c)
purchase and hold the Debentures.
(xv) The holders of outstanding shares of capital stock of the
Company are not entitled to any preemptive rights under the Certificate of
Incorporation or By-Laws of the Company or the law of Delaware to subscribe
for the Capital Securities or the Debentures.
(xvi) The Capital Securities, the Debentures, the Guarantee, the
Declaration, the Capital Securities Guarantee Agreement and the Indenture
conform as to legal matters in all material respects to the descriptions
thereof contained in the Prospectus.
(xvii) The Registration Statement, including any Rule 462(b)
Registration Statement, the Rule 430A Information and the Rule 434
Information, as applicable, the Prospectus, excluding the documents
incorporated by reference therein, and each amendment or supplement to the
Registration Statement and Prospectus, excluding the documents incorporated
by reference therein, as of their respective effective or issue dates
(other than the financial statements and supporting schedules included
therein or omitted therefrom, and the Trustee's Statement of Eligibility on
Form T-1 (the "Form T-1"), as to which we need express no opinion) complied
as to form in all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations.
(xviii) The documents incorporated by reference in the Prospectus
(other than the financial statements and supporting schedules included
therein or omitted therefrom, as to which we need express no opinion), when
they were filed with the Commission
A-3
complied as to form in all material respects with the requirements of the
1934 Act and the rules and regulations of the Commission thereunder.
(xix) The statements made in the Prospectus under the captions
"Description of the Capital Securities", "Description of the Guarantee",
"Description of the Junior Subordinated Debentures", "Effect of Obligations
Under the Junior Subordinated Debentures and the Guarantee", and
"Description of Capital Stock", insofar as such statements purport to
summarize certain provisions of the Capital Securities, the Common
Securities, the Debentures, the Capital Securities Guarantee, the
Indenture, the Declaration and the Certificate of Incorporation of the
Company, to the extent that they constitute matters of law or legal
conclusions, have been reviewed by such counsel and fairly summarize the
information required to be disclosed therein.
(xx) The issuance, sale and delivery by the Trust of the Capital
Securities and of the Common Securities, the execution and delivery by the
Trust of the Purchase Agreement, the purchase by the Trust of the
Debentures and the performance by the Trust of its obligations thereunder
does not (a) result in any violation of the Declaration or any Delaware
statute, order, rule or regulation of any Delaware court or other Delaware
governmental agency or body having jurisdiction over the Trust or any of
its properties or assets which are normally applicable to transactions of
the type contemplated by the Purchase Agreement, or (b) require the
approval of any such Delaware court or Delaware governmental agency or body
pursuant to applicable laws.
(xxi) Neither the Company nor the Trust is required to be
registered under the Investment Company Act of 1940, as amended.
(xxii) Except as disclosed in or specifically contemplated by the
Prospectus, to such counsel's knowledge, there are no outstanding options,
warrants or other rights calling for the issuance of, and no commitments,
obligations, plans or arrangements to issue, any shares of capital stock of
the Company or any security convertible into or exchangeable for capital
stock of the Company. All issued and outstanding stock options, if any,
relating to the Company's Common Stock have been duly authorized and
validly issued and the description thereof contained in the Prospectus is
accurate in all material respects.
(xxiii) To the best of our knowledge, there is not pending or
threatened any action, suit, proceeding, inquiry or investigation, to which
the Company or any subsidiary is a party, or to which the property of the
Company or any subsidiary is subject, before or brought by any court or
governmental agency or body, domestic or foreign, which might reasonably be
expected to result in a Material Adverse Effect, or which might reasonably
be expected to materially and adversely affect the properties or assets
thereof or the consummation of the transactions contemplated in the
Purchase Agreement or the performance by the Company of its obligations
thereunder.
A-4
(xxiv) To the best of our knowledge, there are no statutes or
regulations that are required to be described in the Prospectus that are
not described as required.
(xxv) All descriptions in the Registration Statement of contracts
and other documents to which the Company or its subsidiaries are a party
are accurate in all material respects; to the best of our knowledge, there
are no franchises, contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments required to be described or referred to
in the Registration Statement or to be filed as exhibits thereto other than
those described or referred to therein or filed or incorporated by
reference as exhibits thereto, and the descriptions thereof or references
thereto are correct in all material respects.
(xxvi) To the best of our knowledge, neither the Company nor any
subsidiary is in violation of its charter or by-laws and no default by the
Company or any subsidiary exists in the due performance or observance of
any material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
agreement or instrument that is described or referred to in the
Registration Statement or the Prospectus or filed or incorporated by
reference as an exhibit to the Registration Statement.
(xxvii) Such counsel has been orally advised by the Commission that
the Registration Statement was declared effective under the 1933 Act on
December __, 1996; any required filing of the Prospectus pursuant to Rule
424(b) under the 1933 Act has been made in the manner and within the time
period required by Rule 424(b) and, such counsel has been orally advised by
the Commission that no stop order suspending the effectiveness of the
Registration Statement has been issued by the Commission and, to such
Counsel's knowledge, no proceeding for that purpose is pending or
threatened by the Commission.
(xxviii) The Registration Statement, as of its effective date, and
the Prospectus, as of its date, appeared on their face to be appropriately
responsive in all material respects to the requirements of the 1933 Act and
the 1933 Act Regulations, except that in each case such counsel need not
express an opinion as to the financial statements, schedules and other
financial and statistical data included therein or excluded therefrom or
the exhibits to the Registration Statement, and such counsel need not
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and the Prospectus
except for those made under the captions "Description of Preferred
Securities", "Description of the Guarantee", "Description of the Junior
Subordinated Debentures", "Effect of Obligations Under the Junior
Subordinated Debentures and the Guarantee", and "Description of Capital
Stock" in the Prospectus insofar as they relate to provisions of documents
therein described.
(xxix) No filing with, authorization, approval, consent, license,
registration, qualification, decree or order of any court or governmental
authority or agency, domestic
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or foreign (other than under the 1933 Act and the 1933 Act Regulations,
which have been obtained, or as may be required under the securities or
blue sky laws of the various states, as to which we need express no
opinion) is necessary or required in connection with the issuance and sale
of the Capital Securities by the Trust to the Underwriters pursuant to the
Purchase Agreement, the performance by the Company and the Trust of their
respective obligations pursuant to the Purchase Agreement, the Indenture,
the Debentures, the Guarantees, the Declaration or the Capital Securities.
The execution, delivery and performance of the Purchase Agreement, the
Declaration, the Indenture, the Guarantee Agreements, the consummation by
the Company and the Trust of the transactions contemplated hereby and
thereby and in the Prospectus, the filing of the certificate of trust with
the Secretary of State of the State of Delaware, compliance by the Company
and the Trust with the terms of the foregoing and the application of the
sale of the Capital Securities as contemplated by the Prospectus do not and
will not conflict with or constitute a breach of, or a default or Repayment
Event (as defined in the Purchase Agreement) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any of its subsidiaries or the Trust pursuant
to, any contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any of its subsidiaries or the Trust is
a party or by which it or any of them may be bound, or to which any of the
property or assets of the Company or any of its subsidiaries or the Trust
is subject, nor will such action result in any violation of the provisions
of the charter or by-laws of the Company or any of its subsidiaries, or the
Declaration, or any applicable law, administrative regulation or
administrative or court decree.
(xxx) Except as set forth in the Prospectus, there are no persons
with written registration or other similar rights to have any securities
registered by the Company under the Registration Statement.
Additionally, in giving its opinion, such counsel shall state that such
counsel has participated in conferences with representatives of the
Underwriters, officers and other representatives of the Company and
representatives of the independent certified public accountants of the Company,
at which conferences the contents of the Registration Statement and the
Prospectus and related matters were discussed, and although such counsel does
not pass upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Prospectus (except and only to the extent as set forth in
paragraphs (xxviii) above), on the basis of the foregoing (relying as to
materiality to a large extent upon the discussions with and representations and
opinions of officers and other representatives of the Company), no facts have
come to the attention of such counsel which lead such counsel to believe that
the Registration Statement at the time it became effective contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
that the Prospectus, at the Representation Date (unless the term "Prospectus"
refers to a prospectus which has been provided to the Underwriters by the
Company for use in connection with the offering of the Capital Securities which
differs from the Prospectus on file at the Commission at the Representa-
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tion Date, in which case at the time it is first provided to the Underwriters
for such use) or at the Closing Time, included an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; PROVIDED that such counsel does not express any comment
with respect to the financial statements including the notes thereto and
supporting schedules, or any other financial and statistical data set forth or
referred to in the Registration Statement or the Prospectus.
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Exhibit B
Form of opinion, dated as of Closing Time, of Skadden, Arps, Slate, Meagher
& Flom (Delaware), special Delaware counsel for the Trust, substantially to the
effect that:
(i) the Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Act and has the trust power
and authority to conduct its business, all as described in the Prospectus.
(ii) assuming due authorization, execution and delivery of the
Declaration by the Company and the Trustees, the Declaration is a valid and
binding agreement of the Company and the Trustees, enforceable against the
Company and the Trustees, in accordance with its terms, subject to the effect
upon the Declaration of (i) bankruptcy, insolvency, moratorium, receivership,
reorganization, liquidation, fraudulent transfer or conveyance and other similar
laws relating to or affecting the rights and remedies of creditors generally,
(ii) principles of equity, including applicable law relating to fiduciary duties
(regardless of whether considered and applied in a proceeding in equity or at
law), and (iii) the effect of applicable public policy on the enforceability of
provisions relating to indemnification or contribution.
(iii) under the Declaration and the Delaware Act, the execution
and delivery of the Purchase Agreement by the Trust, and the performance by the
Trust of its obligations hereunder, have been duly authorized by all requisite
trust action on the part of the Trust.
(iv) the Capital Securities have been duly authorized by the
Declaration and upon issuance in accordance with the Declaration and the
Prospectus will be duly and validly issued and, subject to qualifications set
forth in this paragraph (iv), fully paid and non-assessable undivided beneficial
interests in the assets of the Trust. The holders of Capital Securities will be
entitled to the same limitation of personal liability extended to stockholders
of private corporations for profit organized under the General Corporation Law
of the State of Delaware. We note that the holders of Capital Securities may be
obligated pursuant to the Declaration (A) to provide indemnity and/or security
in connection with and pay taxes or governmental charges arising from transfers
or exchanges of Capital Security Certificates and the issuance of replacement
Capital Security Certificates, and (B) to provide indemnity and/or security in
connection with requests of or directions to the Institutional Trustee to
exercise its rights and powers under the Declaration.
(v) under the Declaration and the Delaware Act, the issuance of
the Capital Securities is not subject to preemptive rights.
(vi) the statements made in the Prospectus under the caption
"Description of the Capital Securities" insofar as such statements are
statements of Delaware law, such statements are fairly presented.
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[FORM OF LOCK-UP PURSUANT TO SECTION 5(g)]
Exhibit C
December , 1996
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated,
North Tower
World Financial Center
New York, New York 10281-1209
Re: Proposed Public Offering by Fleet Financial Group, Inc.
-------------------------------------------------------
Dear Sirs:
The undersigned, [Fleet Financial Group, Inc., a Rhode Island corporation
(the "Company")], [Fleet Capital Trust II, a Delaware Statutory business trust
(the "Trust")] understands that Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated ("Merrill Lynch") proposes to enter into a Purchase
Agreement (the "Purchase Agreement") with the Company and the Trust, providing
for the public offering of [ ] of the Trust [ ]% Capital Securities
("Capital Securities"). In connection with the foregoing, the Company will
deposit in the Trust its [ ]% Junior Subordinated Deferable Interest
Debentures due 2026 (the "Junior Subordinated Debentures"). In recognition of
the benefit that such an offering will confer upon the undersigned and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned agrees with each underwriter to be named in the
Purchase Agreement that, during a period of 90 days from the date of the
Purchase Agreement, the undersigned will not, without the prior written consent
of Merrill Lynch, directly or indirectly, (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant for the sale of, or otherwise
dispose of or transfer any Capital Securities, any security convertible into or
exchangeable into or exercisable for Capital Securities or Junior Subordinated
Debentures or any debt securities substantially similar to the Junior
Subordinated Debentures or equity securities substantially similar to the
Capital Securities, whether now owned or hereafter acquired by the undersigned
or with respect to which the undersigned has or hereafter acquires the power of
disposition, or file any registration statement under the Securities Act of
1933, as amended, with respect to any of the foregoing or (ii) enter into any
swap or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of Capital
Securities, any security convertible into or exchangeable into or exercisable
for Capital Securities or Junior Subordinated Debentures or any debt securities
substantially similar to the Junior Subordinated Debentures or equity securities
substantially similar to the Capital Securities, whether any such swap or
transaction is to be settled by
D-1
delivery of Capital Securities, Junior Subordinated Debentures or other
securities, in cash or otherwise.
Very truly yours,
FLEET FINANCIAL GROUP, INC.
By:
--------------------------------
Title:
-----------------------------
FLEET CAPITAL TRUST III
By:
--------------------------------
Name:
Title: Regular Trustee
By:
--------------------------------
Name:
Title: Regular Trustee
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