Exhibit 1(a)
FORM OF DEALER MANAGER AGREEMENT
December [ ], 1996
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281-1329
SMITH BARNEY INC.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
Fleet Capital Trust I (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 3801 ET.
SEQ.), pursuant to the Amended and Restated Declaration of Trust of the Trust,
to be dated as of the Exchange Date (as defined herein) (the "Declaration"),
among Fleet Financial Group, Inc. (the "Company"), as Sponsor, The First
National Bank of Chicago, as institutional trustee (the "Institutional
Trustee"), 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, proposes to
issue its % Trust Originated Preferred Securities-SERVICE MARK- ("TOPrS -
SERVICE MARK-") (the "Preferred Securities") in exchange for up to 11,000,000
depositary shares (the "Target Securities"), each representing 1/10 of a share
of Series 7.25% Perpetual Preferred Stock (liquidation preference equivalent to
$25 per depositary share) ("Preferred Stock") of the Company. The Preferred
Securities will be guaranteed (the "Guarantee") by the Company
- ---------------
- -SERVICE MARK- "Trust Originated Preferred Securities" and "TOPrS" are service
marks of Merrill Lynch & Co., Inc.
to the extent described in the Prospectus (as hereinafter defined). The
exchange described above is herein referred to as the "Exchange Offer" and any
exchange of Preferred Securities for Target Securities pursuant to the Exchange
Offer is herein referred to as an "Exchange". In connection with the Exchange
Offer, the Company will deposit in the Trust as trust assets its % Junior
Subordinated Deferrable Interest Debentures due , 2027 (the
"Debentures") as set forth in the Prospectus, to be issued pursuant to an
Indenture, dated December 11, 1996, 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 the Exchange Date (the "Supplemental
Indenture"), between the Company and the Indenture Trustee (collectively, the
"Indenture").
Each of the Company and the Trust hereby confirms its agreement with
Merrill Lynch & Co. and Smith Barney Inc. (the "Dealer Managers") as follows:
1. REGISTRATION STATEMENT, PROSPECTUS AND OFFERING MATERIALS. The
Company and the Trust have prepared and filed with the Securities and Exchange
Commission (the "Commission"), under the Securities Act of 1933, as amended (the
"Securities Act"), and the rules and regulations of the Commission promulgated
thereunder (the "Securities Act Regulations"), a registration statement on Form
S-4 covering the registration of the Preferred Securities, the Guarantee and the
Debentures, including the related preliminary prospectus, and will prepare and
file, on or prior to the effective date of such registration statement,
amendments to such registration statement, including a final prospectus. Each
prospectus used before the time such registration statement becomes effective is
herein called a "preliminary prospectus". Such registration statement,
including the exhibits thereto and any documents incorporated by reference
therein, as amended at the time it becomes effective or as thereafter amended or
supplemented from time to time, is herein called the "Registration Statement".
The final prospectus included in the Registration Statement (including any
documents incorporated in the prospectus by reference) is herein called the
"Prospectus", except that if the final prospectus furnished to the Dealer
Managers for use in connection with the Exchange Offer differs from the
prospectus set forth in the Registration Statement (whether or not such
prospectus is required to be filed pursuant to Rule 424 (b)), the term
"Prospectus" shall refer to the final prospectus furnished to the Dealer
Managers for such use. The terms "supplement" and "amendment" or "amend" as
used herein with respect to the Prospectus shall include all documents deemed to
be incorporated by reference in the Prospectus that are filed subsequent to the
date of the Prospectus and prior to the termination of the Exchange Offer by the
Company and the Trust with the Commission pursuant to the Securities Exchange
Act of 1934, as amended, and the rules and regulations of the Commission
promulgated thereunder (collectively, the "Exchange Act").
The Registration Statement, Prospectus and the related letters from
the Dealer Managers to securities brokers, dealers, commercial banks, trust
companies and other nominees, letters to beneficial owners of Target Securities,
letters of transmittal (the "Letters
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of Transmittal"), notices of guaranteed delivery (the "Notices of Guaranteed
Delivery") and any newspaper announcements, press releases and other offering
materials and information the Company may use or prepare, approve or authorize
for use in connection with the Exchange Offer, as amended or supplemented from
time to time, are herein collectively referred to as the "Offering Materials".
2. EXCHANGE OFFER; AGREEMENT TO ACT AS DEALER MANAGERS. (a) The
Company and the Trust intend to commence the Exchange Offer as soon as
practicable after the Registration Statement becomes effective under the
Securities Act by publicly announcing its commencement and by mailing, or
causing to be mailed on its behalf, copies of the Prospectus, the related
Letters of Transmittal and such of the other Offering Materials as is required
or as the Company and the Trust elect to each holder of Target Securities (the
date of the commencement of such distribution being herein called the
"Commencement Date").
(b) The Company hereby retains the Dealer Managers to advise the
Company and the Trust with respect to the terms and timing of the Exchange Offer
and to assist them in the preparation of the Offering Materials and retains and
authorizes the Dealer Managers to act as dealer managers and to assist the
Company and the Trust with the solicitation of Exchanges (each a "Solicitation"
and collectively the "Solicitations"). On the basis of the representations and
warranties and agreements of the Company and the Trust herein contained and
subject to and in accordance with the terms and conditions hereof and of the
Offering Materials, the Dealer Managers agree to advise the Company and the
Trust with respect to the terms and timing of the Exchange Offer, to assist them
in the preparation of the Offering Materials, to act as dealer managers in
connection with the Exchange Offer and to assist the Company and the Trust with
the Solicitations. The Dealer Managers agree to use their reasonable best
efforts to solicit Exchanges.
(c) The Company shall furnish the Dealer Managers, or cause the
transfer agent or registrar for the Target Securities (respectively, the
"Transfer Agent" and "Registrar") to furnish the Dealer Managers, as soon as
practicable after the date hereof (to the extent not previously furnished), with
cards or lists in reasonable quantities or copies thereof showing the names of
persons who were the holders of record or, to the extent available to the
Company, the beneficial owners of the Target Securities as of a recent date,
together with their addresses, and the number of shares of Target Securities
held by them. Additionally, the Company shall use its reasonable best efforts
to update, or to cause the Transfer Agent or Registrar to update, such
information from time to time during the term of this Agreement as may be
reasonably requested by the Dealer Managers. Except as otherwise provided
herein, the Dealer Managers agree to use such information only in connection
with the Solicitations. The Dealer Managers shall act hereunder as independent
contractors and nothing herein contained shall make the Dealer Managers agents
of the Company or any of its subsidiaries or the Trust in connection with any
Solicitation. Nothing contained in this Agreement shall constitute the Dealer
Managers partners of or joint venturers with the Company or any of their
subsidiaries or the Trust.
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(d) The Company and the Trust authorize the Dealer Managers to use
the Offering Materials in connection with the Solicitations and for such period
of time as any Offering Materials are required by law to be delivered in
connection therewith. The Dealer Managers shall not have any obligation to
cause any Offering Materials to be transmitted generally to the holders of the
Target Securities. The Dealer Managers agree not to give any written
information and not to make any representations to holders of the Target
Securities in connection with any Solicitation other than as contained in the
Offering Materials.
(e) The Company and the Trust authorize the Dealer Managers to
communicate with any information agent (the "Information Agent") or exchange
agent (the "Exchange Agent") appointed by the Company and/or the Trust to act in
such capacity in connection with the Exchange Offer with respect to matters
relating to the Exchange Offer.
(f) The Company and the Trust agree that any reference to the Dealer
Managers in any Offering Materials or in any newspaper announcement or press
release or other public document or communication is subject to the Dealer
Managers' prior consent, which consent shall not be unreasonably withheld.
3. COMPENSATION. (a) The Company hereby agrees to pay to the
Dealer Managers for services rendered and to be rendered by them in connection
with the Exchange Offer a fee (the "Management Fee") equal to [$ ] per share
of Target Securities validly submitted for exchange and not withdrawn in
connection with the Exchange Offer. The Management Fee shall be paid only if
the Exchange Offer is consummated, and shall be paid within one week of the
consummation of the Exchange Offer. The Management Fee shall be divided [ %]
to Merrill Lynch and [ %] to Smith Barney Inc. (as to each, its "Proportionate
Share").
(b) The Company agrees to pay, or cause to be paid to, each
soliciting dealer (including any Dealer Managers acting as a soliciting dealer)
whose name has been inserted in the space provided in the Letter of Transmittal
for that purpose a fee (the "Soliciting Dealer Fee") equal to [$ ] per share
of Target Securities validly submitted for exchange and not withdrawn in
connection with the Exchange Offer; provided, however, that no such fee shall be
paid with respect to Target Securities tendered, directly or indirectly, by
soliciting dealers for their own account and such fee shall not be remitted, in
whole or in part, to the beneficial owner of such Target Securities. The
Soliciting Dealer Fee shall be paid only if the Exchange Offer is consummated
and shall be paid to the soliciting dealers within one week of the consummation
of the Exchange Offer.
4. EXPENSES, REIMBURSEMENT. The Company agrees to reimburse the
Dealer Managers directly for all of their reasonable out-of-pocket expenses
incurred in connection with the Exchange Offer, including, without limitation,
the reasonable fees and expenses of the law firm acting as legal counsel for the
Dealer Managers.
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5. CERTAIN COVENANTS OF THE TRUST AND THE COMPANY. Each of the
Company and the Trust covenants jointly and severally with the Dealer Managers:
(a) To use reasonable efforts to cause the Registration Statement,
including any post-effective amendment thereto, to become effective and will
notify the Dealer Managers as soon as practicable and, if requested by the
Dealer Managers, will confirm the notice in writing, (i) when any post-effective
amendment to the Registration Statement shall have become effective, or any
supplement to the Prospectus or any amended Prospectus or any amended or
additional Offering Materials shall have been filed, (ii) of the receipt of any
comments from the Commission relating to the Exchange Offer, (iii) of any
request by the Commission to amend the Registration Statement or amend or
supplement the Prospectus or the other Offering Materials or for additional
information relating to the Exchange Offer and (iv) of (A) the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or (B) the issuance by the Commission of any order preventing or
suspending the use of any of the Offering Materials or (C) the suspension of the
qualification of the Preferred Securities for offering or sale in connection
with the Exchange Offer in any jurisdiction or (D) the institution or
threatening of any proceedings for any of such purposes or (E) the occurrence of
any event which could cause the Company or the Trust to withdraw, rescind,
terminate or modify the Exchange Offer or would permit the Company or the Trust
to exercise any right not to accept the Target Securities tendered pursuant to
the Exchange Offer. The Company and the Trust will make every reasonable effort
to prevent the issuance of any such stop order, the issuance of any order
preventing or suspending such use and the suspension of any such qualification
and, if any such order is issued or qualification suspended, to obtain the
lifting of such order or suspension at the earliest practicable time.
(b) Prior to the termination of the Exchange Offer, before amending
or supplementing the Registration Statement or the Prospectus, to furnish copies
of drafts to, and consult with, the Dealer Managers and their counsel within a
reasonable time in advance of filing with the Commission of any amendment or
supplement to the Registration Statement, the Prospectus or the other Offering
Materials. Neither the Company nor the Trust shall file any such amendment or
supplement to which the Dealer Managers shall reasonably object in writing;
PROVIDED, HOWEVER, that the foregoing shall not apply to any of the Company's
filings with the Commission required to be filed pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act, copies of which such filings the Company
will cause to be delivered to the Dealer Managers promptly after being
transmitted for filing with the Commission.
(c) To furnish promptly to each of the Dealer Managers, without
charge, one signed copy of the Registration Statement, all amendments thereto
and any other filing with the Commission in connection with the Exchange Offer,
whether filed before or after the Registration Statement becomes effective.
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(d) To furnish promptly to the Dealer Managers, without charge, from
time to time until the effective date of the Registration Statement, as many
copies of each preliminary prospectus as the Dealer Managers may reasonably
request, and the Company and the Trust hereby consent to the use of such copies
for purposes permitted by the Securities Act and the Exchange Act. The Company
will furnish promptly to the Dealer Managers, without charge, as soon as the
Registration Statement shall have become effective and during the period
mentioned in the second sentence of paragraph (e) below such number of copies of
the Prospectus and the other Offering Materials (as supplemented or amended) as
the Dealer Managers may reasonably request and will cause all amendments and
supplements filed with the Commission to be distributed to holders of Target
Securities as may be required by the Securities Act and the Exchange Act.
(e) To comply in all material respects with the Securities Act, the
Exchange Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), in connection with the Offering Materials, the Exchange Offer
and the transactions contemplated hereby and thereby, as applicable. If at any
time when the Prospectus is required by the Securities Act or Exchange Act to be
delivered in connection with any Solicitation or Exchange any event shall occur
or condition shall exist as a result of which it is necessary, in the reasonable
opinion of counsel for the Dealer Managers or counsel for the Company and the
Trust, to amend the Registration Statement or amend or supplement the Prospectus
or any other Offering Materials in order that the Prospectus or such other
Offering Materials will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements in the
Prospectus or such other Offering Materials, in the light of the circumstances
under which they were made, not misleading or if, in the reasonable opinion of
either such counsel, it shall be necessary to amend the Registration Statement
or amend or supplement the Prospectus or any other Offering Materials to comply
with the requirements of the Securities Act or Exchange Act, the Company and the
Trust will promptly prepare, file with the Commission, subject to Section 5(b)
of this Agreement, and furnish, at its own expense, to the Dealer Managers and
to the dealers (whose names and address will be furnished to the Company by the
Dealer Managers) to which Preferred Securities may have been exchanged, such
amendment or supplement as may be necessary to correct such untrue statement or
omission or to make the Registration Statement or the Prospectus or such other
Offering Materials comply with such requirements.
(f) To endeavor, in cooperation with the Dealer Managers, to qualify
the Preferred Securities for offering and sale in connection with the Exchange
Offer under the applicable securities or Blue Sky laws of such jurisdictions as
the Company and the Trust may elect and to maintain such qualifications in
effect for such time as may be required for the consummation of the Exchange
Offer; 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
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which it is not otherwise so subject;PROVIDED FURTHER that the Dealer Managers
shall not be obligated to solicittenders in jurisdictions where the Preferred
Securities are not qualified for offer and sale. The Company and the Trust
will file such statements and reports as may be required by the laws of each
jurisdiction in which the Preferred Securities have been qualified as above
provided.
(g) To make generally available to the holders of the Preferred
Securities and the Debentures as soon as practicable, but in any event not
later than 45 days after the end of the fiscal quarter of the Company during
which the first anniversary of the effective date of the Registration Statement
occurs (or 90 days in case the period covered corresponds to a fiscal year of
the Company) an earnings statement of the Company (in form complying with the
provisions of Rule 158 of the Securities Act) covering such twelve-month period.
(h) To use its reasonable best efforts to effect the listing of the
Preferred Securities on the New York Stock Exchange ("NYSE"), subject to
official notice of issuance, as soon as practicable after the date hereof.
(i) To timely file any report or other document required to be filed
by the Company or the Trust with the Commission pursuant to Section 13, 14 or 15
of the Exchange Act during the period of time referred to in the second sentence
of Section 5(e) hereof.
(j) Subject to Section 4(a) of this Agreement, to pay all costs and
expenses incurred in connection with the performance of its obligations in
connection with this Agreement and the Solicitations including, without
limitation, (i) the preparation, printing and filing of the Registration
Statement (including financial statements and exhibits), as originally filed and
as amended, the preliminary prospectuses, the Prospectus and the other Offering
Materials and any amendments or supplements to any of the foregoing, and the
cost of furnishing copies thereof to the Dealer Managers, (ii) the preparation
and distribution of this Agreement and any Blue Sky surveys and the printing of
certificates for the Preferred Securities, (iii) the distribution of the
Offering Materials to the holders of the Target Securities, (iv) the fees and
disbursements of counsel to the Company and the Trust, counsel to the Dealer
Managers and the Company's and the Trust's accountants, (v) the qualification of
the Preferred Securities under the applicable securities laws in accordance with
Section 5(f) of this Agreement and any filing for review of the Exchange Offer
with the NASD (including filing fees and fees and disbursements of counsel for
the Dealer Managers in connection with such filing with the NASD), (vi) the fees
and expenses of the Transfer Agent, the Registrar, the Trustees, the Indenture
Trustee (as defined herein), the trustee under the Guarantee (the "Guarantee
Trustee"), the Information Agent and the Exchange Agent and (vii) all other
costs and expenses incident to the Solicitations incurred by the Trust and the
Company and its subsidiaries. The Company agrees to pay all of the
aforementioned costs and expenses whether or not the Exchange Offer is
consummated.
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(k) To advise or cause the Exchange Agent to advise the Dealer
Managers at 5:00 P.M., New York City time, or as promptly as practicable
thereafter, daily (or more frequently if requested), by telephone or facsimile
transmission, as of 4:00 P.M. on such day with respect to Target Securities
tendered as follows:
(i) the number of shares of Target Securities validly tendered
represented by certificates physically held by the Exchange Agent (or for which
the Exchange Agent has received confirmation of receipt of book-entry transfer
of such Target Securities into the Exchange Agent's account at a Depository
Institution (as defined in the Prospectus) pursuant to the procedures set forth
in the Exchange Offer) on such day;
(ii) the number of shares of Target Securities represented by
Notices of Guaranteed Delivery on such day;
(iii) the number of shares of Target Securities properly
withdrawn on such day;
(iv) the cumulative number of shares of Target Securities in
categories (i) through (iii) above.
On the day following such oral communication, the Company shall
furnish or cause the Exchange Agent to furnish to the Dealer Managers a written
report confirming the above information which has been communicated orally. The
Company shall furnish or cause the Exchange Agent to furnish to the Dealer
Managers such reasonable information on the tendering holders of Targeted
Securities as may be requested from time to time.
(l) To give the Dealer Managers notice of any change of the
expiration time of the Exchange Offer (the "Expiration Time").
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE TRUST.
Each of the Company and the Trust jointly and severally represent and warrant to
and agrees with each of the Dealer Managers that:
(a) COMPLIANCE WITH REGISTRATION REQUIREMENTS. Each preliminary
prospectus filed as part of the Registration Statement as originally filed or as
part of any amendment thereto, or filed pursuant to Rule 424 of the Securities
Act, will comply when so filed, in all material respects, as to form with the
Securities Act and the Exchange Act; the Registration Statement at the time it
becomes effective and the Prospectus and any other Offering Materials, on the
Commencement Date and on the date on which the Company commences delivery of the
Preferred Securities for exchange of the Target Securities pursuant to the
Exchange Offer (such date, the "Exchange Date"), will comply, in all material
respects, as to form with the Securities Act and the Exchange Act; each part of
the Registration Statement when such part becomes effective will not contain,
and each such
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part, as amended, if applicable, will not contain, any 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; and as of the
Commencement Date and the Exchange Date, none of the Prospectus or the other
Offering Materials or any amendments or supplements to such Offering Materials
will contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this Section 6 (a) do not apply (A)
to statements or omissions made based upon and in conformity with information
supplied in writing by either of the Dealer Managers through Merrill Lynch,
Pierce, Fenner & Smith Incorporated expressly for use in the Registration
Statement, Prospectus, any other Offering Materials or any amendments or
supplements to any of the foregoing or (B) to that part of the Registration
Statement that constitutes the Statements of Eligibility and Qualification on
Form T-1 (the "Forms T-1") under the Trust Indenture Act of the trustee (the
"Indenture Trustee") under the Indenture (as defined herein), as institutional
trustee under the Declaration (as defined herein) and as trustee under the
Guarantee.
(b) 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 Exchange Act
and the rules and regulations of the Commission thereunder (the "Exchange Act
Regulations") and, when read together with the other information in the
Prospectus, at the time the Registration Statement became effective, at the date
hereof, at the time the Prospectus was issued and at the Exchange Date, 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.
(c) 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 Securities Act
and the Securities Act Regulations.
(d) 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
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and have been compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement.
(e) NO MATERIAL ADVERSE CHANGE IN BUSINESS. Since the respective
dates as of which information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, (A) there has been no material
adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business (a "Material Adverse Effect"), (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other than those in the
ordinary course of business, which are material with respect to the Company and
its subsidiaries considered as one enterprise, and (C) there has been no
dividend or distribution of any kind declared, paid or made by the Company on
any class of its capital stock, except for dividends paid by the Company in the
ordinary course of business consistent with past practice.
(f) GOOD STANDING OF THE COMPANY. Each of the Company and the
subsidiaries of the Company listed on Schedule A hereto, (the "Significant
Subsidiaries") has been duly incorporated and is validly existing as a
corporation or national banking association in good standing under the laws of
the jurisdiction in which it is chartered or organized, with full corporate
power and authority to own its properties and conduct its business as described
in the Prospectus; the Company is duly qualified to do business as a foreign
corporation under the laws of the State of New York and the laws of the
Commonwealth of Massachusetts; and neither the Company nor any Significant
Subsidiary is required to be qualified to do business as a foreign corporation
under the laws of any other jurisdiction, and the Company is duly registered as
a bank holding company under the Bank Holding Company Act of 1956, as amended.
(g) EXISTENCE OF TRUST. The Trust has been duly created and is
validly existing in good standing as a business trust under the Delaware Act, is
and will be treated as a "grantor trust" for federal income tax purposes under
existing law, has the business trust power and authority to conduct its business
as presently conducted and as described in the Prospectus, and is not required
to be authorized to do business in any other jurisdiction.
(h) ABSENCE OF DEFAULTS AND CONFLICTS. The execution and delivery by
the Company and the Trust of, and the performance by the Company and the Trust
of their obligations under, this Agreement, the execution and delivery by the
Company of, and the performance by the Company of its obligations under, the
Declaration, the Guarantee and the Indenture, the issuance and delivery by the
Trust of the Common Securities and Preferred Securities and the consummation of
the Exchange Offer and the fulfillment of the terms herein contemplated will not
conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under (in each case material to the Company and its
subsidiaries (including the Trust) considered as a whole or as to the Trust
separately), any
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indenture, mortgage, deed of trust, loan agreement, guarantee, lease, financing
agreement or other similar agreement or instrument to which the Company or any
of its subsidiaries (including the Trust) is a party or by which the Company or
any of its subsidiaries (including the Trust) is bound or to which any of the
property or assets of the Company or any of its subsidiaries (including the
Trust) is subject, nor will such actions result in any violation of the
provisions of the certificate of incorporation or by-laws of the Company or the
Declaration of the Trust, nor will such actions result in any violation (in each
case material to the Company and its subsidiaries (including the Trust)
considered as a whole or as to the Trust separately) of any statute or any
order, rule or regulation of any court or regulatory authority or other
governmental body having jurisdiction over the Trust or the Company or any of
its subsidiaries or any of their properties; and no consent, approval,
authorization or order of, or qualification with, any governmental body or
agency is required for, and the absence of which would materially affect, the
performance by the Company and the Trust of their obligations under this
Agreement, the issuance and delivery of the Preferred Securities and the
consummation of the Exchange Offer, except such approvals as will be obtained
under the Securities Act, the Exchange Act or the Trust Indenture Act and as may
be required by the securities or Blue Sky laws of the various states or the
securities laws of non-U.S. jurisdictions in connection with the Exchange Offer.
(i) COMMON SECURITIES. The Common Securities have been duly
authorized by the Declaration and, when issued and delivered by the Trust to the
Company in accordance with the terms of the Declaration and against payment
therefor as described in the Prospectus, will be validly issued and (subject to
the terms of the Declaration) fully paid and nonassessable undivided beneficial
interests in the assets of the Trust; the issuance of the Common Securities is
not subject to preemptive or other similar rights; no holder thereof will be
subject to personal liability by reason of being such a holder; and at the
Exchange Date, all of the issued and outstanding Common Securities of the Trust
will be directly owned by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
(j) AUTHORIZATION OF DECLARATION. The Declaration has been duly
authorized by the Company and duly qualified under the Trust Indenture Act and,
when validly executed and delivered by the Company and the Regular Trustees, and
assuming the due authorization, execution and delivery of the Declaration by the
Delaware Trustee and the Institutional Trustee, the Declaration will constitute
a valid and binding obligation of the Company and the Regular Trustees,
enforceable against the Company and the Regular Trustees in accordance with its
terms, except as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
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(k) GUARANTEE. The Guarantee has been duly authorized by the Company
and duly qualified under the Trust Indenture Act and, when validly executed and
delivered by the Company, and assuming due authorization, execution and delivery
of the Guarantee 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).
(l) PREFERRED SECURITIES. The Preferred Securities to be issued
pursuant to the Exchange Offer have been duly authorized by the Declaration and,
when authenticated in the manner provided for in the Declaration and issued and
delivered in exchange for Target Securities pursuant to the Exchange Offer and
this Agreement against payment of the consideration set forth herein, will be
validly issued and (subject to the terms of the Declaration) fully paid and
nonassessable undivided beneficial interests in the assets of the Trust; the
issuance of the Preferred Securities is not subject to preemptive or other
similar rights; and holders of Preferred Securities will be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit incorporated under the General Corporation Law of the
State of Delaware.
(m) AUTHORIZATION OF INDENTURE. The Indenture has been duly
authorized by the Company and duly qualified under the Trust Indenture Act and,
when duly executed and delivered by the Company and assuming the due
authorization, execution and delivery of the Indenture by the Indenture Trustee,
will constitute a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as enforcement thereof
may be limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or similar
laws affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to 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).
(n) AUTHORIZATION OF DEBENTURES. The Debentures to be deposited in
the Trust as trust assets in connection with the Exchange Offer have been duly
authorized by the Company, and when executed, authenticated and issued in the
manner provided for in the Indenture and delivered, sold and paid for pursuant
to the terms of the Exchange Offer and 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'
12
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).
(o) AUTHORIZATION OF AGREEMENT. This Agreement has been duly
authorized, executed and delivered by the Company and the Trust.
(p) ABSENCE OF PROCEEDINGS. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental agency
or body, domestic or foreign, now pending, or, to the knowledge of the Company
or the Trust, threatened, against or affecting the Company or any subsidiary,
which is required to be disclosed in the Registration Statement (other than as
disclosed therein), or which might reasonably be expected to result in a
Material Adverse Effect, or which might reasonably be expected to materially and
adversely affect the properties or assets of the Company and its subsidiaries
taken as a whole or the consummation of the transactions contemplated in this
Agreement or the performance by the Company or the Trust of its obligations
hereunder; the aggregate of all pending legal or governmental proceedings to
which the Company or any subsidiary is a party or of which any of their
respective property or assets is the subject which are not described in the
Registration Statement, including ordinary routine litigation incidental to the
business, could not reasonably be expected to result in a Material Adverse
Effect.
(q) POSSESSION OF LICENSES AND PERMITS. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the appropriate
federal, state, local or foreign regulatory agencies or bodies necessary to
conduct the business now operated by them, except for such Governmental Licenses
the absence of which would not cause a Material Adverse Effect; the Company and
its subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not, singly
or in the aggregate, have a Material Adverse Effect; all of the Governmental
Licenses are valid and in full force and effect, except when the invalidity of
such Governmental Licenses or the failure of such Governmental Licenses to be in
full force and effect would not have a Material Adverse Effect; and neither the
Company nor any of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such Governmental Licenses
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(r) 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.
13
(s) INVESTMENT COMPANY ACT. Neither the Company nor the Trust is,
and after giving effect to the consummation of the Exchange Offer 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").
7. INDEMNIFICATION AND CONTRIBUTION. (a) Each of the Company and
the Trust jointly and severally agrees: (A) to indemnify and hold the Dealer
Managers harmless against any loss, damage, expense, liability or claim (i)
which (1) with respect to the Registration Statement, is caused by any untrue
statement or alleged untrue statement of a material fact contained therein or
which is caused by the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or (2) with respect to the Offering Materials or in any
amendment or supplement thereto, is caused by any untrue statement or alleged
untrue statement of a material fact contained in such Offering Materials or
which is caused by the omission or alleged omission to state therein a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except, in any such
case, as to any of the Dealer Managers insofar as such loss, damage, expense,
liability or claim is caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to such Dealer
Manager furnished to the Company or the Trust in writing through Merrill Lynch,
Pierce, Fenner & Smith Incorporated expressly for use in the Registration
Statement or in such Offering Materials or (ii) which arises out of or is based
upon a withdrawal, rescission or modification of or a failure to make or
consummate the Exchange Offer; and (B) to indemnify and hold each of the Dealer
Managers harmless against any other loss, damage, expense, liability or claim
which otherwise arises out of or is related to this Agreement or the Exchange
Offer or the services provided by the Dealer Managers in connection with this
Agreement or the Exchange Offer, except to the extent any such loss, damage,
expense, liability or claim referred to in this clause (B) is found by a final
judgment of a court of competent jurisdiction to have resulted from such Dealer
Manager's gross negligence, bad faith or willful misconduct. The Company and
the Trust each jointly and severally agree to indemnify and hold each of the
Dealer Managers harmless against and reimburse each of the Dealer Managers for
any and all reasonable expenses (including reasonable legal fees and expenses)
as such expenses are incurred by it in connection with investigating, preparing
for or defending against any such loss, damage, expense, liability or claim,
whether or not resulting in any liability, whether or not such person is a named
party in connection therewith and whether or not such loss, damage, expense,
liability or claim results from action initiated or brought by or on behalf of
the Company or any of its subsidiaries (including the Trust), and any amount
paid in settlement of any litigation, commenced or threatened, or of any claim
whatsoever as set forth herein if such settlement is effected with the prior
written consent of the Company; PROVIDED, HOWEVER, with respect to clause (B)
above, that neither the Company nor the Trust shall be liable for any of the
foregoing expenses and any amounts previously paid shall be promptly repaid to
the extent that any
14
loss, damage, liability or claim is found by a final judgment of a court of
competent jurisdiction to have resulted from such Dealer Manager's gross
negligence, bad faith or willful misconduct. In the event that you become
involved in any capacity in any action, proceeding or investigation brought by
or against any person, including stockholders of the Company, in connection with
any matter referred to in this Agreement or arising out of the Exchange Offer
for which you would be entitled to indemnification pursuant to the preceding
sentence, the Company and the Trust also agree to indemnify and hold you
harmless against and to reimburse you for any amount paid in settlement of any
litigation commenced or threatened or of any claim whatsoever as set forth
herein if such settlement is effected with the written consent of the Company
and the Trust, which shall not be unreasonably withheld. The Company and Trust
also agree that none of the Dealer Managers shall have any liability (whether
direct or indirect, in tort, contract or otherwise) to the Company or any of its
subsidiaries (including the Trust) or its or their security holders or creditors
related to or arising out of this Agreement or the Exchange Offer or the
services provided by such Dealer Manager in connection with this Agreement or
the Exchange Offer, except (i) for failure to perform its obligations under this
Agreement, (ii) to the extent such liability is found by a final judgment of a
court of competent jurisdiction to have resulted from such Dealer Manager's
gross negligence, bad faith or willful misconduct or (iii) as expressly provided
in the next succeeding paragraph.
Each of the Dealer Managers agrees, severally and not jointly, to
indemnify and hold harmless the Company and the Trust to the same extent as the
foregoing indemnity from the Company and the Trust to the Dealer Managers
contained in Section 7(a)(A)(i) above, but only with reference to information
relating to the Dealer Managers furnished to the Company in writing through
Merrill Lynch, Pierce, Fenner & Smith Incorporated expressly for use in the
Registration Statement or the Offering Materials.
(b) Promptly after receipt by a person indemnified under this Section
7 of notice of any suit, action, proceeding or investigation with respect to
which an indemnified party may be entitled to indemnification hereunder, such
indemnified person shall notify the person against whom such indemnity may be
sought in writing of the commencement or the written assertion thereof; but the
omission so to notify such indemnifying person shall not relieve such
indemnifying person from any liability which it may have to such indemnified
person unless the indemnifying person has been materially prejudiced by such
omission. Following such notification, such indemnifying person may elect in
writing to assume the defense of such suit, action, proceeding or investigation
and, upon such election, such indemnifying person shall not be liable for any
legal costs subsequently incurred by such indemnified person (other than
reasonable costs of investigation and providing evidence) in connection
therewith, unless (i) such indemnifying person has failed to provide counsel
reasonably satisfactory to such indemnified person in a timely manner, (ii)
counsel which has been provided by such indemnifying person reasonably
determines that its representation of such indemnified person would present it
with a conflict of interest or (iii) such indemnified person reasonably
determines that there
15
may be legal defenses available to it which are different from or in addition to
those available to such indemnifying person. In the event of a determination
pursuant to clause (i), (ii) or (iii) above, such indemnified person shall be
entitled to retain separate counsel of their choice and the fees and expenses of
such separate counsel shall be borne by such indemnifying person. Such
indemnifying person shall not in any event be liable for the fees and expenses
of more than one separate firm of attorneys (in addition to any local counsel)
for all the Dealer Managers in any one action or group of related actions,
except as provided in the immediately preceding sentence. Whether or not such
indemnifying person shall have assumed the defense of any suit, action,
proceeding or investigation, the Company, the Trust, and the Dealer Managers
agree to cooperate in the defense thereof and shall furnish such records,
information and testimony, and attend such conferences, discovery proceedings,
hearings, trials and appeals, as may be reasonably requested in connection
therewith.
(c) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified person to the
extent provided under subsection (a) above in respect of any losses, damages,
expenses, liabilities or claims referred to therein, then the indemnifying
person shall contribute to the amount paid or payable by such indemnified person
as a result of such losses, damages, expenses, liabilities or claims (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and its subsidiaries (including the Trust) on the one hand and such
Dealer Manager on the other from the Exchange Offer or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) but also the relative fault of the Company and its subsidiaries
(including the Trust) on the one hand and such Dealer Manager on the other in
connection with any statements or omissions or any other matters which resulted
in such losses, damages, expenses, liabilities or claims, as well as any other
relevant equitable considerations. The relative benefits received by the
Company and its subsidiaries (including the Trust) on the one hand and such
Dealer Manager on the other shall be deemed to be in the same proportion as the
maximum aggregate liquidation preference of the Preferred Securities issuable
pursuant to the Exchange Offer bears to the maximum amount of fees payable to
such Dealer Manager. The relative fault of the Company and its subsidiaries
(including the Trust) on the one hand and such Dealer Manager on the other (i)
in the case of any untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact, shall be determined by
reference to, among other things, whether such statement or omission relates to
information supplied by the Company or any of its subsidiaries (including the
Trust) or their affiliates or such Dealer Manager, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission and (ii) in the case of any other action or omission,
shall be determined by reference to, among other things, whether such action or
omission was taken or omitted to be taken by the Company or any of its
subsidiaries (including the Trust) or their affiliates or by the Dealer Manager,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or
16
prevent such action or omission. The Company and the Dealer Managers agree that
it would not be just and equitable if contribution pursuant to this subsection
(c) were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to in this
subsection (c). Notwithstanding the provisions of this Section 7(c), no Dealer
Manager shall be required to contribute any amount in excess of the fee paid to
such Dealer Manager as provided in Section 3 hereof. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act of 1933, as amended) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
8. CONDITIONS TO DEALER MANAGERS' OBLIGATIONS. The obligations of
the Dealer Managers hereunder are subject as of the Commencement Date and as of
the Exchange Date to the accuracy of the representations and warranties of the
Company and the Trust contained herein or in certificates of any officer of the
Company or Trustee of the Trust delivered pursuant to the provisions hereof, to
the performance, in all material respects, by the Company and the Trust of their
obligations hereunder to be performed, and to the following additional
conditions:
(a) On the Commencement Date and the Exchange Date, the Registration
Statement shall have become effective under the Securities Act; no stop order
suspending the effectiveness of the Registration Statement shall be in effect,
and no proceedings for such purpose shall be pending before or, to the Company's
or the Trust's knowledge, threatened by the Commission.
(b) On the Commencement Date and the Exchange Date, since the
respective dates as of which information is given in the Prospectus as amended
or supplemented, there shall not have occurred any material adverse change, or
any development involving a prospective material adverse change, in or affecting
particularly the business or assets of the Company and its subsidiaries
considered as a whole, or any material adverse change in the financial position
or results of operations of the Company and its subsidiaries considered as a
whole, otherwise than as set forth or contemplated in the Prospectus as amended
or supplemented.
(c) The Dealer Managers shall have received on the Commencement Date
and the Exchange Date a certificate, dated such date and signed by an executive
officer of the Company, to the effect set forth in clause (b) above and to the
effect that the representations and warranties of the Company contained in this
Agreement are true and correct in all material respects as of such date and that
the Company has complied in all material respects with all of the agreements and
satisfied in all material respects all of the conditions on its part to be
performed or satisfied on or before such date. The officer signing and
delivering such certificate may rely upon the best of such officer's knowledge
as to proceedings threatened.
17
(d) On the Commencement Date and the Exchange Date, there shall not
have been since the respective dates as of which information is given in the
Registration Statement, any material adverse change, or any development
involving a prospective material adverse change, in the financial condition or
results of operations of the Trust.
(e) The Dealer Managers shall have received on the Commencement Date
and the Exchange Date a certificate, dated such date and signed by a trustee of
the Trust, to the effect set forth in clause (d) above and to the effect that
the representations and warranties of the Trust contained in this Agreement are
true and correct in all material respects as of such date and that the Trust has
complied in all material respects with all of the agreements and satisfied in
all material respects all of the conditions on its part to be performed or
satisfied on or before such date. The trustee signing and delivering such
certificate may rely upon knowledge as to proceedings threatened.
(f) On the Exchange Date and on the Commencement Date, the Dealer
Managers shall receive a signed opinion of Skadden, Arps, Slate, Meagher & Flom
(Delaware), special counsel for the Trust, dated as of such date, to the effect
that:
(i) the Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Act; all filings required
under the laws of the State of Delaware with respect to the creation and valid
existence of the Trust as a business trust have been made; and the Trust has the
trust power and authority to conduct its business, 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 obligation of the Company and the Trustees, enforceable against the
Company and the Trustees in accordance with its terms, except to the extent that
enforcement thereof may be limited by (i) bankruptcy, insolvency (including
without limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) general principles of equity (regardless of
whether enforceability is considered in a proceeding in equity or at law) and
except to the extent that the rights to indemnity and contribution contained
therein may be limited by state or securities laws or the public policy
underlying such laws;
(iii) under the Declaration and the Delaware Act, the Trust has
the requisite trust power and authority to execute and deliver this Agreement,
and to perform its obligations under this Agreement and in the Exchange Offer.
This Agreement has been duly authorized, executed and delivered by the Trust;
(iv) the Preferred Securities have been duly authorized for
issuance in accordance with the Declaration and, subject to the qualifications
set forth below, when certificates therefor in the form examined by us are
issued, executed and authenticated
18
in accordance with the Declaration and delivered and paid for in accordance with
this Agreement, will be validly issued, fully paid and non-assessable undivided
beneficial interests in the assets of the Trust and will entitle the holders of
the Preferred Securities to the benefits of the Declaration except to the extent
that enforcement of the Declaration may be limited by (i) bankruptcy, insolvency
(including without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of equity
(regardless of whether enforceability is considered in a proceeding in equity or
at law) and except to the extent that the rights to indemnity and contribution
contained therein may be limited by state or securities laws or the public
policy underlying such laws; and the holders of the Preferred Securities will be
entitled to the same limitation of personal liability extended to stockholders
of private corporations for profit organized under the General Corporation Law
of the State of Delaware. We bring to your attention, however, that the holders
of Preferred Securities may be obligated, pursuant to the Declaration, to make
payments, including (i) to provide indemnity and/or security in connection with
and pay taxes or governmental charges arising from transfers of Preferred
Securities and the issuance of replacement Preferred Securities, and (ii) to
provide security and indemnity in connection with requests of or directions to
the Institutional Trustee to exercise its rights and powers under the
Declaration;
(v) the issuance of the Preferred Securities is not subject to
preemptive or other similar rights under the Delaware Act or the Declaration;
and
(vi) the statements made in the Prospectus under the caption
"Description of the Preferred Securities" insofar as such statements constitute
summaries of Delaware law are accurate in all material respects.
(g) On the Exchange Date and on the Commencement Date (provided,
however, that the opinions in paragraphs (iv), (v), (vi) and (vii) below may be
appropriately modified with respect to the Commencement Date), the Dealer
Managers shall have received a signed opinion of Edwards & Angell, counsel for
the Company, dated as of such date, to the effect that:
(i) each of the Company and the subsidiaries of the Company
listed on Schedule A hereto, (the "Significant Subsidiaries") has been duly
incorporated and is validly existing as a corporation or national banking
association in good standing under the laws of the jurisdiction in which it is
chartered or organized, with full corporate power and authority to own its
properties and conduct its business as described in the Prospectus; the Company
is duly qualified to do business as a foreign corporation under the laws of the
State of New York; and neither the Company nor any Significant Subsidiary is
required to be qualified to do business as a foreign corporation under the laws
of any other jurisdiction, and the Company is duly registered as a bank holding
company under the Bank Holding Company Act of 1956, as amended;
19
(ii) All the outstanding shares of the capital stock of the
Significant Subsidiaries have been duly and validly authorized and issued and
are fully paid and (except as provided in 12 U.S.C. Section 55 in the case of
Fleet National Bank and Fleet Bank, National Association) nonassessable, and,
except as otherwise set forth in the Prospectus, all outstanding shares of
capital stock of the Significant Subsidiaries are owned by the Company, free and
clear of any perfected security interest and, to the knowledge of such counsel,
after due inquiry, any other security interests claims, liens or encumbrances;
(iii)this Agreement has been duly authorized by the Company and
has been duly executed and delivered by each of the Company and the Trust;
(iv) the Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights generally
and except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law);
(v) the Debentures have been duly authorized, executed and
delivered by the Company and when the Debentures have been duly authenticated by
the Indenture Trustee in accordance with the provisions of the Indenture and
delivered to and paid for by the Trust in exchange for the Target Securities and
money pursuant to terms of the Exchange Offer, the Debentures will constitute
valid and binding obligations of the Company entitled to the benefits of the
Indenture and enforceable against the Company in accordance with their terms,
except as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law);
(vi) the Declaration has been duly authorized, executed and
delivered by the Company; and, assuming the due authorization, execution and
delivery of the Declaration by First Chicago Delaware Inc. and The First
National Bank of Chicago, 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);
20
(vii) the Guarantee 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 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 Indenture, Guarantee and the Declaration have each
been duly qualified under the Trust Indenture Act;
(ix) the holders of outstanding shares of capital stock of the
Company are not entitled to any preemptive rights under the Articles of
Incorporation or By-Laws of the Company or the laws of the State of Rhode Island
to subscribe for the Preferred Securities or the Debentures;
(x) the documents incorporated by reference in the Prospectus or
any further amendment or supplement thereto made by the Company or the Trust
prior to the Exchange Date (other than the financial statements and supporting
schedules included therein or omitted therefrom, as to which such counsel need
express no opinion), when they were filed with the Commission complied as to
form in all material respects with the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder;
(xi) the statements made in the Prospectus under the captions
"Description of the Preferred Securities", "Description of the Preferred
Securities Guarantee", "Description of the Junior Subordinated Debentures",
"Description of the Preferred Stock and Depositary Shares" and "Relationship
Between the Preferred Securities, the Junior Subordinated Debentures and the
Preferred Securities Guarantee", insofar as such statements purport to summarize
certain provisions of the Preferred Securities, the Common Securities, the
Debentures, the Guarantee, the Indenture, the Declaration, the Preferred Stock,
the Depositary Shares and the Articles of Incorporation of the Company, to the
extent that they constitute matters of law or legal conclusions, have been
reviewed by such counsel and fairly summarize the information required to be
disclosed therein;
(xii) neither the issue and sale by the Trust of the Preferred
Securities, nor the consummation of the Exchange Offer and any other of the
transactions contemplated by this Agreement nor the fulfillment of the terms in
this Agreement will conflict with, result in a breach of, or constitute a
default under the charter or by-laws of the Company or the organizational
documents or Declaration of the Trust or the terms of any indenture or other
agreement or instrument known to such counsel and to which the Company or any of
its subsidiaries is a party or bound, or any order or regulation known
21
to such counsel to be applicable to the Company or any of its subsidiaries of
any governmental body or arbitrator having jurisdiction over the Company or any
of its subsidiaries;
(xiii) neither the Company nor the Trust is required to be
registered under the Investment Company Act of 1940, as amended;
(xiv) there is no pending or, to the best knowledge of such
counsel, threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the Company or any of its
subsidiaries, of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Prospectus, and there is no
franchise, contract or other document of a character required to be described in
the Registration Statement or Prospectus, or to be filed as an exhibit, which is
not described or filed as required;
(xv) such counsel has been orally advised by the Commission that
the Registration Statement was declared effective under the Securities Act on
December __, 1996; any required filing of the Prospectus pursuant to Rule 424(b)
under the Securities Act has been made in the manner and within the time period
required by Rule 424(b) and, such counsel has been orally advised by the
Commission that no stop order suspending the effectiveness of the Registration
Statement has been issued by the Commission and, no proceeding for that purpose
is pending or, to such Counsel's knowledge, threatened by the Commission;
(xvi) no consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation of the
transactions contemplated by this Agreement, except such as have been obtained
under the Securities Act and such as may be required under the blue sky laws of
any jurisdiction in connection with the purchase and distribution of the
Preferred Securities by the Dealer Managers and such other approvals (specified
in such opinion) as have been obtained;
(xvii) no holders of securities of the Company have rights to the
registration of such securities under the Registration Statement; and
(xviii) the Registration Statement, as of its effective date, and
the Prospectus, as of its date, appeared on their face to be appropriately
responsive in all material respects to the requirements of the Securities Act
and the Securities Act Regulations, except that in each case such counsel need
not express an opinion as to the financial statements, schedules and other
financial and statistical data included therein or excluded therefrom or the
exhibits to the Registration Statement, and such counsel need not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement and the Prospectus except for those made
under the captions "Description of the Preferred Securities", "Description of
the Preferred Securities
22
Guarantee", "Description of the Junior Subordinated Debentures", "Relationship
Between the Preferred Securities, the Junior Subordinated Debentures and the
Preferred Securities Guarantee", and "Description of the Preferred Stock and
Depositary Shares" in the Prospectus insofar as they relate to provisions of
documents therein described.
Additionally, in giving its opinion, such counsel shall state that
such counsel has participated in conferences with representatives of the Dealer
Managers, officers and other representatives of the Company and representatives
of the independent certified public accountants of the Company, at which
conferences the contents of the Registration Statement and the Prospectus and
related matters were discussed, and although such counsel does not pass upon and
does not assume any responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement and the Prospectus
(except and only to the extent as set forth in paragraphs (xviii) above), on the
basis of the foregoing (relying as to 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 or at the date hereof contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus, as of its date or the date of such opinion, included an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; PROVIDED that such counsel does not
express any comment with respect to the financial statements including the notes
thereto and supporting schedules, or any other financial and statistical data
set forth or referred to in the Registration Statement or the Prospectus.
In rendering such opinion, such counsel may indicate that they are
members of the bar of the State of Rhode Island and that they express no opinion
as to the laws of any jurisdiction other than the federal laws of the United
States and the laws of the State of Rhode Island. Such counsel may also state
that, insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of the Company and its
subsidiaries and certificates of public officials. In addition, such counsel
shall state that such counsel have participated in the preparation of the
Registration Statement, the Prospectus and the documents incorporated by
reference therein and no facts have come to such counsel's attention that leads
them to believe that the Registration Statement (including the documents
incorporated by reference therein pursuant to Item 11 of Form S-4) at the time
such Registration Statement became effective, or if an amendment to the
Registration Statement or an Annual Report on Form 10-K has been filed with the
Commission subsequent to the effectiveness of the Registration Statement, then
at the time such amendment became effective or at the time of the most recent
such filing, contained an untrue statement of a material fact omitted to state a
material fact required to be stated therein or necessary to make the statements
contained therein not misleading, or that the Prospectus as of its date and the
date of such opinion (including the documents incorporated
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by reference therein pursuant to Item 11 of Form S-4) or any amendment or
supplement thereto, contained or contains an untrue statement of a material fact
or omitted or omits to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, except that such counsel need express no
belief with respect to the financial statements and schedules and other
financial data included or incorporated by reference in the Registration
Statement, or the Prospectus or any amendment thereto or the Statement of
Eligibility on Form T-1 of the Trustee.
(h) On the Commencement Date and on the Exchange Date, the Dealer
Managers shall have received a signed opinion of Edwards & Angell, tax counsel
to the Trust, confirming their opinion under the caption "United States Federal
Income Taxation" in the Prospectus.
(i) The Dealer Managers shall have received the favorable opinion of
Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the Dealer Managers, dated
as of the Commencement Date and the Exchange Date, with respect to the validity
of the Preferred Securities, the Registration Statement, the Prospectus and
other related matters as the Dealer Managers may reasonably require. In giving
such opinion such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York and Delaware, and the
federal law of the United States, upon the opinions of counsel satisfactory to
the Dealer Managers. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company, trustees of the Trust and certificates
of public officials.
(j) On the Commencement Date, the Dealer Managers shall have received
from the Company's independent public accountants, in form and substance
reasonably satisfactory to the Dealer Managers and dated as of such date,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to dealer managers with respect to the financial
statements and certain financial information contained in or incorporated by
reference into the Prospectus.
(k) At the Exchange Date, the Dealer Managers shall have received
from the Company's independent public accountants, in form and substance
reasonably satisfactory to the Dealer Managers and dated as of such dates, to
the effect that such accountants reaffirm the statements made in the letter
furnished pursuant to Section 8(j).
(l) At the Exchange Date, the Preferred Securities shall have been
duly listed, subject to official notice of issuance, on the NYSE.
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(m) By the Exchange Date, the Company shall have entered into
appropriate agreements with the Information Agent and the Exchange Agent for
purposes of the Exchange Offer.
9. TERMINATION.
(a) This Agreement shall terminate upon the earliest to occur of (i)
the Exchange Date, (ii) the date on which the Dealer Managers give notice to the
Company and the Trust that any of the conditions specified in Section 8 have not
been fulfilled as of any date such conditions are required to be fulfilled
pursuant to Section 8 or (iii) the date on which the Company terminates or
withdraws the Exchange Offer for any reason (the earliest to occur of clauses
(i), (ii) or (iii) being referred to as the "Termination Date ").
(b) Notwithstanding termination of this Agreement pursuant to
subsection (a) of this Section 9, the obligations of the Company to compensate
and/or reimburse, as applicable, the Dealer Managers pursuant to Section 3, 4 or
5, the representations and warranties contained in Section 6 and the provisions
of Section 7 shall survive any termination of this Agreement.
10. 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 Dealer Managers shall
be directed to Merrill Lynch 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.
11. TOMBSTONE. The Company and the Trust acknowledge that the Dealer
Managers may, with the prior review and approval of the Company, which approval
shall not be unreasonably withheld, place an announcement in such newspapers and
periodicals as the Dealer Managers may choose, stating that the Dealer Managers
are or were acting as dealer manager and financial advisors to the Company and
the Trust in connection with the Exchange Offer. The costs relating to any such
tombstone shall be borne by the Dealer Managers.
12. SURVIVAL OF CERTAIN PROVISIONS. The representations, warranties,
indemnities and agreements of the Company and the Trust will remain operative
and in full force and effect regardless of any investigation made by or on
behalf of any of the Dealer Managers or any affiliate or controlling person
thereof and, subject to Section 9(b), will survive the consummation of the
Exchange Offer.
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13. GOVERNING LAW. This Agreement shall be construed in accordance
with and governed by the internal laws of the State of New York.
14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by different parties hereto on separate counterparts, each of
which counterparts, when so executed and delivered, shall be deemed to be an
original and all of which counterparts, taken together, shall constitute one and
the same Agreement.
15. SUCCESSORS. This Agreement is made solely for the benefit of the
Dealer Managers, the Company and the Trust and, to the extent expressed, the
parties indemnified pursuant to Section 7, and no other persons shall acquire or
have any right under or by virtue of this Agreement. Nothing in this Agreement,
expressed or implied, is intended to confer on any person other than the parties
hereto or their respective successors and assigns, and, to the extent expressly
set forth herein, the parties indemnified pursuant to Section 7 hereof, any
rights or remedies under or by reason of this Agreement. Without limiting the
generality of the foregoing, the parties acknowledge that nothing in this
Agreement, expressed or implied, is intended to confer on holders of the
securities of the Trust, the Company or any of its subsidiaries or creditors of
the Company or any of its subsidiaries or the respective successors and assigns
of such creditors, any rights or remedies under or by reason of this Agreement.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement among the Company, the Trust and the
Dealer Managers in accordance with its terms.
Very truly yours,
FLEET FINANCIAL GROUP, INC.
By:
-------------------------------------
FLEET CAPITAL TRUST II
By:
-------------------------------------
Name:
Title: Regular Trustee
By:
-------------------------------------
Name:
Title: Regular Trustee
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Confirmed and accepted as of
the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
SMITH BARNEY INC.
By: MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
--------------------------------
Authorized Signatory
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SCHEDULE A
LIST OF SIGNIFICANT SUBSIDIARIES
Fleet National Bank
Fleet Bank
Fleet Bank, National Association
29