Exhibit 1
FIRST UNION CAPITAL __
Trust Preferred Securities
(Liquidation amount $25 per Preferred Security)
guaranteed by
FIRST UNION CORPORATION
Underwriting Agreement
____________, 199__
To the Representatives named in Schedule I hereto of the Underwriters named in
Schedule II hereto
Dear Sirs:
First Union Capital __, a statutory business trust formed
under the laws of the State of Delaware (the "Trust") and First Union
Corporation a North Carolina corporation (the "Guarantor"), as depositor of the
Trust and as Guarantor under the Guarantee referred to herein, propose to sell
to the underwriters named in Schedule II hereto (the "Underwriters"), for whom
you are acting as representatives (the "Representatives"), the trust preferred
securities referred to in Schedule I hereto (the "Securities") in the aggregate
amount set forth in such Schedule I. The proceeds of the sale of the Securities
and of the common securities of the Trust (the "Common Securities") to be sold
by the Trust to the Guarantor are to be invested in the junior subordinated
deferrable interest debentures of the Guarantor (the "Subordinated Debentures")
referred to in Schedule I hereto, to be issued pursuant to a junior subordinated
indenture (the "Indenture") between the Guarantor and the trustee named in
Schedule I (the "Debenture Trustee"). The Securities will be guaranteed on a
subordinated basis by the Guarantor to the extent set forth in the guarantee
agreement referred in Schedule I hereto (the "Guarantee") between the Company
and the Guarantee trustee named in Schedule I (the "Guarantee Trustee").
1. Representations and Warranties. Each of the Guarantor and
the Trust jointly and severally represents and warrants to, and agrees with,
each Underwriter that:
(a) The registration statement (File No. 333-15743) (the
"registration statement") on Form S-3 in respect of the Securities, the
Subordinated Debentures and the Guarantee, including a prospectus
which, as supplemented, shall be used in connection with the sale of
the Securities, have been filed with the Securities and Exchange
Commission (the "Commission"), in the forms heretofore delivered to the
Representatives. The registration statement, as it may have been
amended prior to the date of this Agreement, has become effective under
the Securities Act of 1933, as amended (the "Act"). (The registration
statement, as amended to the date of this Agreement, is hereinafter
referred to as the "Registration Statement"; such prospectus (which
shall be in the form in which it has been most recently filed, or
transmitted for filing, with the Commission on or before the date of
this Agreement, as the same is proposed to be added to or changed), as
supplemented by a prospectus supplement relating to the Securities, the
Subordinated Debentures and the Guarantee, filed or transmitted for
filing with the Commission pursuant to Rule 424 under the Act and used
in connection with the sale of the Securities, is hereinafter referred
to as the "Prospectus"; and such prospectus supplement is hereinafter
referred to as the "Prospectus Supplement". Any reference herein to the
Registration Statement, a preliminary prospectus or the Prospectus
shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), on or before the date of this Agreement, and any reference
herein to the terms "amend", "amendment" or "supplement" with respect
to the Registration Statement or the Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act
deemed to be incorporated therein by reference after the date of this
Agreement.)
(b) The Registration Statement, at the time it became
effective, and any amendments thereof filed prior to the date hereof,
as of their respective effective dates, conformed in all material
respects to the requirements of the Act, the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and the respective rules
and regulations of the Commission thereunder; the Registration
Statement and the Prospectus, as of the date of the Prospectus
Supplement, and any amendments thereof and supplements thereto, as of
their respective effective or issue dates, will conform in all material
respects to the requirements of the Act, the Trust Indenture Act and
the respective rules and regulations of the Commission thereunder,
including, without limitation, compliance with the safe harbor
provisions of Rule 175 under the Act pertaining to "forward looking
statements", and no such document, as of such respective dates and, in
the case of the Prospectus and any amendments thereof or supplements
thereto, as of the Closing Date (as hereinafter defined), included or
will include any untrue statement of a material fact or omitted or will
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, provided that
the Guarantor and the Trust make no representations or warranties as to
(i) the Statements of Eligibility (Forms T-1) under the Trust Indenture
Act of the Debenture Trustee, the Property Trustee identified in
Schedule I and the Guarantee Trustee (the "Form T-1s") or (ii) the
information contained in or omitted from the Prospectus or any
amendment thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to the Guarantor and
the Trust by or on behalf of any Underwriter specifically for use in
connection with the preparation of the Prospectus or any amendment
thereof or supplement thereto.
(c) The Guarantor has been duly incorporated, is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and
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has all power and authority (corporate and other) necessary to own or
hold its material properties and to conduct its business substantially
in the manner in which it presently conducts such business.
(d) The Trust has been duly created and is validly existing as
a statutory business trust in good standing under the laws of the State
of Delaware with the power and authority (trust and other) to own its
property and conduct its business as described in the Registration
Statement and Prospectus, and the Trust has conducted and will conduct
no business other than the transactions contemplated by this Agreement
and the trust agreement among the Guarantor, as depositor, and the
trustees named therein (the "Trustees") (as amended and restated from
time to time, the "Trust Agreement") and described in the Prospectus;
the Trust is not a party to or bound by any agreement or instrument
other than this Agreement, the Trust Agreement and the agreements and
instruments contemplated by the Trust Agreement and described in the
Prospectus; the Trust has no liabilities or obligations other than
those arising out of the transactions contemplated by this Agreement
and the Trust Agreement and described in the Prospectus; and the Trust
is not a party to or subject to any action, suit or proceeding of any
nature.
(e) The Securities have been duly authorized, and, when
issued, delivered and paid for pursuant to this Agreement, will have
been duly and validly issued and fully paid and non-assessable
beneficial interests in the Trust entitled to the benefits of the Trust
Agreement, and the Securities will conform in all material respects to
the description thereof in the Prospectus; the Subordinated Debentures,
the Indenture, the Guarantee and the Trust Agreement each have been
duly authorized and, at the Closing Date (as defined in Section 3
hereof), will constitute a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to enforcement,
to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
Subordinated Debentures, the Indenture, the Guarantee and the Trust
Agreement will conform in all material respects to the descriptions
thereof in the Prospectus.
(f) The holders of the 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.
(g) The Trust has all power and authority necessary to execute
and deliver this Agreement and the Securities and to perform its
obligations hereunder and thereunder; the issue and sale of the
Securities and the Common Securities by the Trust, the purchase of the
Subordinated Debentures by the Trust and the compliance by the Trust
with all of the provisions of the Securities, the Trust Agreement and
this Agreement and the consummation of the transactions herein and
therein contemplated will not constitute a breach of or default under
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Trust is a party or by which the
Trust is bound or to which any of the property or assets of the Trust
is subject, nor will such action result in any violation of the
provisions of the Trust
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Agreement or any law, order, rule, regulation or decree of any court,
governmental agency or authority located in the United States having
jurisdiction over the Trust or any of its properties; and no consent,
authorization or order or, or filing or registration with, any court or
governmental agency or authority is required for the issue and sale of
the Securities and the Common Securities by the Trust, the purchase of
the Subordinated Debentures by the Trust or the consummation by the
Trust of the transactions contemplated by this Agreement or the Trust
Agreement except such as have been made or obtained or will be made or
obtained prior to the Closing Date and except such as may be required
under applicable state securities or "blue sky" laws.
(h) The Guarantor has all corporate power and authority
necessary to execute and deliver this Agreement, the Indenture, the
Subordinated Debentures, the Guarantee and the Trust Agreement and to
perform its obligations hereunder and thereunder; the execution,
delivery and performance of this Agreement, the Indenture, the
Subordinated Debentures, the Guarantee and the Trust Agreement by the
Guarantor and compliance with the provisions hereof and thereof by the
Guarantor will not constitute a breach of or default under, the
corporate charter or by-laws of the Guarantor, or any material
agreement, indenture or other instrument relating to indebtedness for
money borrowed to which the Guarantor is a party, or, to the best of
the Guarantor's knowledge, any law, order, rule, regulation or decree
of any court, governmental agency or authority located in the United
States having jurisdiction over the Guarantor or any property of the
Guarantor, which breach or default would be reasonably likely to have a
material adverse effect on the Guarantor and its subsidiaries taken as
a whole; and, no consent, authorization or order of, or filing or
registration with, any court or governmental agency or authority is
required for the execution, delivery and performance of this Agreement,
the Indenture, the Subordinated Debentures, the Guarantee and the Trust
Agreement by the Guarantor except such as have been made or obtained or
will be made or obtained on or before the Closing Date (as defined in
Section 3) and except such as may be required under applicable state
securities or "blue sky" laws.
(i) The Common Securities have been duly authorized and at the
Closing Date will have been duly and validly issued and fully paid and
non-assessable beneficial interests in the Trust and will conform in
all material respects to the description thereof contained in the
Prospectus; the issuance of the Common Securities is not subject to
preemptive or other similar rights; on the Closing Date, all of the
issued and outstanding Common Securities of the Trust will be directly
owned by the Guarantor, free and clear of all liens, encumbrances,
equities or claims; and the Common Securities and the Securities are
the only interests authorized to be issued by the Trust.
(j) Neither the Trust nor the Guarantor is or, after giving
effect to the offering and sale of the Securities, 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 "Investment Company Act").
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2. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Guarantor and the Trust agree that the Trust will sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase from the Trust,
at the purchase price set forth in Schedule I hereto, the number of Securities
set forth opposite such Underwriter's name in Schedule II hereto.
As compensation to the Underwriters for their commitments
hereunder, and in view of the fact that the proceeds from the sale of the
Securities will be used by the Trust to purchase the Subordinated Debentures,
the Guarantor on the Closing Date will pay by wire transfer of immediately
available funds to the Representatives, for the accounts of the several
Underwriters, the amount per Security set forth in Schedule I hereto in respect
of the Securities to be delivered by the Trust hereunder on the Closing Date.
3. Delivery and Payment. Delivery of and payment for the
Securities shall be made at the office, on the date and at the time specified in
Schedule I hereto, which date and time may be postponed by agreement between the
Representatives, the Trust and the Guarantor (such date and time of delivery of
and payment for the Securities being herein called the "Closing Date"). The
Securities to be purchased by each Underwriter hereunder will be represented by
one or more global Securities which will be deposited by or on behalf of the
Trust with The Depositary Trust Company ("DTC") or its designated custodian.
Delivery of the Securities shall be made by causing DTC to credit the Securities
to the account of the Representatives at DTC, for the respective accounts of the
several Underwriters, against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the Trust
in the manner and type of funds specified in Schedule I.
The Trust and the Guarantor agree to have the certificates
representing the Securities available for checking in New York, New York, on the
business day prior to the Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale as set forth in the
Prospectus.
5. Agreements. The Trust and the Guarantor jointly and
severally agree with the several Underwriters that:
(a) The Guarantor and the Trust will cause the Prospectus to
be filed, or transmitted for filing, with the Commission pursuant to
Rule 424 under the Act and will promptly advise the Representatives
when the Prospectus has been so filed or transmitted for filing, and
prior to the termination of the offering of the Securities to which
such Prospectus relates also will promptly advise the Representatives
(i) when any amendment to the Registration Statement has become
effective or any further supplement to the Prospectus has been so filed
or transmitted for filing, (ii) of any request by the Commission for
any amendment of the Registration Statement or the Prospectus or for
any additional information, (iii) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that
purpose, and (iv) of the receipt by
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the Guarantor or the Trust of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose. Each of the Guarantor and the Trust will use its best
efforts to prevent the issuance of any such stop order and, if issued,
to obtain as soon as possible the withdrawal thereof. The Guarantor and
the Trust will not file or transmit for filing any amendment to the
Registration Statement or supplement to the Prospectus unless they have
has furnished you a copy for your review prior to filing or
transmission for filing.
(b) If, at any time when a prospectus relating to the
Securities or the Subordinated Debentures is required to be delivered
under the Act, any event occurs as a result of which the Prospectus as
then amended or supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they
were made not misleading, or if it shall be necessary to amend or
supplement the Prospectus to comply with the Act or the rules and
regulations of the Commission thereunder, the Guarantor and the Trust
promptly will prepare and file or transmit for filing with the
Commission, subject to paragraph (a) of this Section 5, an amendment or
supplement which will correct such statement or omission or effect such
compliance.
(c) The Guarantor will make generally available to its
security holders and to the Representatives as soon as practicable, but
not later than 45 days after the end of the 12-month period beginning
at the end of the fiscal quarter of the Guarantor during which the
filing, or transmission for filing, of the Prospectus pursuant to Rule
424 under the Act occurs (except not later than 90 days after the end
of such period if such quarter is the last fiscal quarter), an earnings
statement (which need not be audited) of the Guarantor and its
subsidiaries, covering such 12-month period, which will satisfy the
provisions of Section 11(a) of the Act.
(d) Each of the Guarantor and the Trust will use its best
efforts to furnish in New York City to each of the Underwriters prior
to 10:00 a.m., New York City time, on the New York business day next
succeeding the date of this Agreement and from time to time, as many
copies of the Prospectus, each related preliminary prospectus
supplement and all amendments of and supplements to such documents as
may be reasonably requested.
(e) The Guarantor will pay all expenses incident to the
performance of each of its and the Trust's obligations under this
Agreement, and will pay the expenses of printing and filing all
documents relating to the offering and mailing and delivering such to
Underwriters and dealers, any filing fee incident to any required
review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Securities, all expenses in connection with
the qualification of the Securities for offering and sale under state
securities laws (including the fees and disbursements of counsel to the
Underwriters in connection with such qualification and the preparation
of the Blue Sky and legal investment surveys), any taxes payable in
connection with the sale and delivery of the Securities by the Trust to
the Underwriters, and any fees charged for rating the Securities.
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(f) Each of the Guarantor and the Trust will use its best
efforts to arrange for the qualification of the Securities for sale
under the laws of such jurisdictions as the Representatives may
designate, to maintain such qualifications in effect so long as
required for the distribution of the Securities and to arrange for the
determination of the legality of the Securities for purchase by
institutional investors; provided that the Guarantor shall not be
required to qualify to do business in any jurisdiction where it is not
now qualified or to take any action which would subject it to general
or unlimited service of process in any jurisdiction where it is not now
so subject.
(g) During the period beginning from the date of this
Agreement and continuing to and including the Closing Date, the
Guarantor will not offer, sell, contract to sell or otherwise dispose
of any of securities which are substantially similar to the
Subordinated Debentures or the Guarantee without the prior written
consent of the Representatives.
(h) The Guarantor will issue the Guarantee concurrently with
the issue and sale of the Securities as contemplated herein; and
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy of the representations and warranties on the part of each of the
Guarantor and the Trust contained herein as of the date hereof and the Closing
Date, to the accuracy of the statements of the Guarantor and the Trust made in
any certificates pursuant to the provisions hereof, to the performance by each
of the Guarantor and the Trust of its obligations hereunder and to the following
additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted and be pending or have been
threatened as of the Closing Date; and all requests for additional
information on the part of the Commission shall have been complied
with.
(b) The Guarantor shall have furnished to the Representatives
a certificate, dated the Closing Date, of the Guarantor, signed by the
principal financial or accounting officer of the Guarantor, to the
effect that, to the best of his knowledge after reasonable
investigation:
(i) The representations and warranties of the Guarantor
in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as
if made on the Closing Date and the Guarantor has complied
with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the
Closing Date, in all material respects;
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted and are pending or, to his
knowledge, have been threatened as of such date;
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(iii) Since the date of the most recent financial
statements included in the Prospectus, there has been no
material adverse change in the financial position, long-term
debt, stockholders' equity, results of operations or prospects
relating thereto of the Guarantor and its subsidiaries
consolidated, except as set forth in or contemplated by the
Prospectus; and
(iv) Since the date of this Agreement, (A) no
downgrading has occurred in the rating accorded the
Guarantor's unsecured debt securities or preferred stock as
described in Section 6(h)(i) and (B) no announcement has been
made with respect to any rating accorded the Guarantor's
unsecured debt securities or preferred stock as described in
Section 6(h)(ii).
(c) The Trust shall have furnished to the Representatives a
certificate, dated the Closing Date, of the Trust, signed by an
Administrative Trustee of the Trust, to the effect that, to the best of
such Trustee's knowledge after reasonable investigation:
(i) The representations and warranties of the Trust in
this Agreement are true and correct in all material respects
on and as of the Closing Date with the same effect as if made
on the Closing Date and the Trust has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date, in all
material respects; and
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted and are pending or, to such
trustee's knowledge, have been threatened as of such date.
(d) The Guarantor shall have furnished to the Underwriters the
opinion, dated the Closing Date, of Xxxxxx X. Xxxxxx, Xx., Executive
Vice President, Secretary and General Counsel of the Guarantor, to the
effect that:
(i) The Guarantor has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of North Carolina, with corporate power and
authority under such laws to own its properties and conduct
its business as described in the Prospectus;
(ii) The Subordinated Debentures have been duly
authorized, executed, issued and delivered and, assuming
authentication by the Debenture Trustee in the manner
contemplated in its certificate, constitute valid and legally
binding obligations of the Guarantor entitled to the benefits
provided by the Indenture; and the Subordinated Debentures and
the Indenture conform in all material respects to the
descriptions thereof in the Prospectus as amended or
supplemented;
(iii) The Indenture has been duly authorized, executed
and delivered by the Guarantor, has been duly qualified under
the Trust Indenture Act and constitutes a valid and legally
binding obligation of the Guarantor enforceable
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in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
(iv) The Guarantee has been duly authorized, executed
and delivered by the Guarantor, has been duly qualified under
the Trust Indenture Act and constitutes a valid and legally
binding obligation of the Guarantor enforceable in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors'
rights and to general equity principles;
(v) The Guarantor has all corporate power and authority
necessary to execute and deliver this Agreement, the
Indenture, the Subordinated Debentures, the Guarantee and the
Trust Agreement and to perform its obligations hereunder and
thereunder; this Agreement has been duly authorized, executed
and delivered by the Guarantor; the execution, delivery and
performance of this Agreement, the Indenture, the Subordinated
Debentures, the Guarantee and the Trust Agreement by the
Guarantor and compliance with the provisions hereof and
thereof by the Guarantor will not constitute a breach of or
default under, the corporate charter or by-laws of the
Guarantor, or any material agreement, indenture or other
instrument relating to indebtedness for money borrowed known
to such counsel to which the Guarantor is a party, or, to the
best of such counsel's knowledge, any law, order, rule,
regulation or decree of any court, governmental agency or
authority located in the United States having jurisdiction
over the Guarantor or any property of the Guarantor, which
breach or default would be reasonably likely to have a
material adverse effect on the Guarantor and its subsidiaries
taken as a whole; and no consent, authorization or order of,
or filing or registration with, any court or governmental
agency is required for the execution, delivery and performance
of this Agreement, the Indenture, the Subordinated Debentures,
the Guarantee or the Trust Agreement by the Guarantor except
such as may be required under applicable state securities or
"blue sky" laws or as have been duly made or obtained; and
(vi) The Securities have been duly authorized by the
Guarantor as Depositor on behalf of the Trust; the issue and
sale of the Securities and the Common Securities by the Trust,
the purchase of the Subordinated Debentures by the Trust and
the compliance by the Trust with all of the provisions of the
Securities, the Trust Agreement and this Agreement and the
consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute
a default under, any agreement or instrument to which the
Trust is a party or by which the Trust is bound or to which
any of the property or assets of the Trust is subject;
(vii) The Registration Statement has become effective
under the Act, and, to the best of the knowledge of such
counsel, no stop order suspending the
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effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or
are pending or threatened under the Act, and each part of the
Registration Statement, when such part became effective, any
amendments thereof filed prior to the date of this Agreement,
as of their respective effective dates, and the Registration
Statement and the Prospectus, as of the date of the Prospectus
Supplement, and each amendment thereof or supplement thereto,
as of their respective effective or issue dates, appeared on
their face to be appropriately responsive in all material
respects to the requirements of the Act, the Trust Indenture
Act and the respective rules and regulations of the Commission
thereunder; such counsel has no reason to believe that any
part of the Registration Statement, when such part became
effective, contained any untrue statement of a material fact
or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading, or that the Prospectus, as of the date of the
Prospectus Supplement, or any amendments thereof or
supplements thereto, as of their respective effective or issue
dates, contained any untrue statement of a material fact or
omitted to state any material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading, or that, as of the
Closing Date, either the Prospectus or any further amendment
or supplement thereto made by the Company prior to the Closing
Date contained any untrue statement of a material fact or
omitted to state any material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; it being understood that
such counsel need express no opinion as to the Form T-1s, as
to the financial statements or other financial data contained
in any part of the Registration Statement or the Prospectus,
as to any statements or omissions made in reliance upon or in
conformity with information furnished in writing to the
Guarantor and the Trust by or on behalf of an Underwriter for
use therein.
As to those matters which relate to the Debenture Trustee,
such counsel may rely upon the certificate or certificates of the
Debenture Trustee, and as to matters governed by New York law, upon the
opinion of Xxxxxxxx & Xxxxxxxx.
(e) Xxxxxxxx, Xxxxxx & Finger, special Delaware Counsel to the
Guarantor and the Trust, shall have furnished to the Underwriters an
opinion, dated the Closing 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 Business Trust Act, and all filings required under
the laws of the State of Delaware with respect to the creation
and valid existence of the Designated Trust as a business
trust have been made;
(ii) Under the Delaware Business Trust Act and the Trust
Agreement, the Trust has the power and authority to own
property and conduct its business, all as described in the
Prospectus;
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(iii) The Trust Agreement constitutes a valid and legally
binding obligation of the Guarantor and the Trustees,
enforceable against the Guarantor and the Trustees, in
accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity
principles;
(iv) Under the Delaware Business Trust Act and the Trust
Agreement, the Trust has the power and authority to (a)
execute and deliver this Agreement and to perform its
obligations under this Agreement, and (b) issue and perform
its obligations under the Securities and the Common
Securities;
(v) Under the Delaware Business Trust Act and the Trust
Agreement, the execution and delivery by the Trust of this
Agreement and the performance by the Trust of its obligations
hereunder, have been duly authorized by all necessary action
on the part of the Trust;
(vi) The Securities have been duly authorized by the
Trust and duly and validly issued and, subject to the
qualifications set forth herein, are fully paid and
nonassessable beneficial interests in the Trust and are
entitled to the benefits provided by the Trust Agreement; the
Securityholders, as beneficial owners of the Trust, 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;
provided that such counsel may note that the Securityholders
may be obligated, pursuant to the Trust Agreement, to (a)
provide indemnity and/or security in connection with and pay
taxes or governmental charges arising from transfers or
exchanges of Securities certificates and the issuance of
replacement Securities certificates and (b) provide security
and indemnity in connection with requests of or directions to
the Property Trustee (as defined in the Trust Agreement) to
exercise its rights and remedies under the Trust Agreement;
(vii) The Common Securities have been duly authorized by
the Trust and validly issued and are fully paid and
nonassessable beneficial interests in the Trust;
(viii) Under the Delaware Business Trust Act and the
Trust Agreement, the issuance of the Securities and the Common
Securities is not subject to preemptive rights;
(ix) The issuance and sale by the Trust of Securities
and the Common Securities, the execution, delivery and
performance by the Trust of this Agreement, the consummation
by the Trust of the transactions contemplated hereby and
compliance by the Trust with its obligations hereunder will
not violate (a) any of the provisions of the Certificate of
Trust of the Trust or the Trust Agreement, or (b) any
applicable Delaware law or administrative regulation;
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(x) Assuming that the Trust derives no income from or
connected with services provided within the State of Delaware
and has no assets, activities (other than maintaining the
Delaware Trustee (as defined in the Trust Agreement) and the
filing of documents with the Secretary of State of the State
of Delaware) or employees in the State of Delaware, no
authorization, approval, consent or order of any Delaware
court or governmental authority or agency is required to be
obtained by the Trust solely in connection with the issuance
and sale of the Securities and the Common Securities. In
rendering the opinion expressed in this paragraph (x), such
counsel need express no opinion concerning the securities laws
of the State of Delaware;
(xi) Assuming that the Trust derives no income from or
connected with services provided within the State of Delaware
and has no assets, activities (other than maintaining the
Delaware Trustee and the filing of documents with the
Secretary of State of the State of Delaware) or employees in
the State of Delaware, the Securityholders (other than those
holders of the Securities who reside or are domiciled in the
State of Delaware) will have no liability for income taxes
imposed by the State of Delaware solely as a result of their
participation in the Trust, and the Trust will not be liable
for any income tax imposed by the State of Delaware;
(f) Xxxxxxxx & Xxxxxxxx, special tax counsel to the Guarantor,
shall have furnished to the Representatives an opinion, dated the
Closing Date, to the effect that such firm confirms its opinion set
forth in the Prospectus under the caption "Certain Federal Income Tax
Consequences";
(g) The Representatives shall have received from Xxxxxxxx &
Xxxxxxxx, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to such matters as the Representatives
may reasonably require.
As to matters governed by North Carolina law, Xxxxxxxx &
Xxxxxxxx may rely upon the opinion of Xxxxxx X. Xxxxxx, Xx. delivered
pursuant to Section 6(c).
(h) KPMG Peat Marwick, as independent accountants of the
Guarantor, shall have furnished to the Representatives a letter, dated
as of the Closing Date, to the effect set forth in Schedule III hereto.
(i) Subsequent to the date hereof, there shall not have
occurred any change, or any development involving a prospective change,
in or affecting the financial position, long-term debt, stockholders'
equity or results of operations of the Guarantor and its consolidated
subsidiaries which the Representatives conclude, after consultation
with the Guarantor, in the judgment of the Representatives is so
material and adverse as to make it impractical or inadvisable to
proceed with the public offering or the delivery of the Securities as
contemplated by the Prospectus.
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(j) The Guarantor shall have furnished to the Representatives
such further information, certificates and documents as they may
reasonably request prior to the Closing Date.
(k) Subsequent to the date of this Agreement, (i) no
downgrading shall have occurred in the rating accorded the Guarantor's
unsecured debt securities or preferred stock by Standard & Poor's
Ratings Group or by Xxxxx'x Investors Service, Inc. and (ii) neither
such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating
of any of the Guarantor's unsecured debt securities or preferred stock.
(l) The Securities shall have been duly listed, subject to
notice of issuance, on the New York Stock Exchange.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and their counsel,
this Agreement and all obligations of the Underwriters hereunder may be
cancelled at, or at any time prior to, the Closing Date by the Representatives.
Notice of such cancellation shall be given to the Guarantor and the Trust in
writing or by telephone or telegraph confirmed in writing.
7. Indemnification and Contribution. (a) Each of the Guarantor
and the Trust agrees, jointly and severally, to indemnify and hold harmless each
Underwriter and each person who controls any Underwriter within the meaning of
either the Act or the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the registration statement or in any amendment thereof filed prior
to the date hereof, or in the Registration Statement or the Prospectus, or in
any amendment thereof or supplement thereto, or in any related preliminary
prospectus or preliminary prospectus supplement, or arise out of or are based
upon 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,
and agrees to reimburse each such indemnified party for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that (i) neither the Guarantor nor the Trust will be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Guarantor or the Trust by or on behalf of any
Underwriter through the Representatives specifically for use in the Prospectus
or any supplement thereto or any related preliminary prospectus or preliminary
prospectus supplement or of the Form T-1s, and (ii) such indemnity with respect
to any related preliminary prospectus or preliminary prospectus supplement shall
not inure to the benefit of any Underwriter (or any person controlling such
Underwriter) from
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whom the person asserting any such loss, claim, damage or liability purchased
the Securities which are the subject thereof if such person was not sent or
given a copy of the Prospectus (or the Prospectus as amended or supplemented),
excluding documents incorporated therein by reference, at or prior to the
confirmation of the sale of such Securities to such person in any case where
such delivery is required by the Act and the untrue statement or omission of a
material fact contained in such related preliminary prospectus or preliminary
prospectus supplement was corrected in the Prospectus (or the Prospectus as
amended or supplemented). This indemnity agreement will be in addition to any
liability which the Guarantor or the Trust may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Guarantor and the Trust, each of the Guarantor's directors, each of
the Guarantor's officers who signed the Registration Statement and each person
who controls the Guarantor or the Trust within the meaning of either the Act or
the Exchange Act, to the same extent as the foregoing indemnity from the
Guarantor and the Trust to each Underwriter, but only with reference to written
information furnished to the Guarantor and the Trust by or on behalf of such
Underwriter through the Representatives specifically for use in the Prospectus
or any supplement thereto or any related preliminary prospectus or preliminary
prospectus supplement. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under
Section 7(a) or (b) of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve the indemnifying party from any liability
which it may have to any indemnified party otherwise than under Section 7(a) or
(b). In case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided
that, if the defendants in any such action include both the indemnified party
and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under Section 7(a) or (b) for any legal or other expenses
subsequently incurred by such indemnified party (other than reasonable costs of
investigation) in connection with the defense thereof unless (i) the indemnified
party shall have employed separate counsel in connection with the assertion of
legal defenses in accordance with the proviso to the next preceding sentence (it
being understood, however, that the indemnifying party shall not be liable for
the expenses of more than one separate national counsel, approved by the
Representatives, representing the indemnified parties who are parties to such
action), (ii) the
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indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii).
(d) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Trust and the Guarantor on the one hand and
the Underwriters of the Securities on the other from the offering of the
Securities to which such loss, claim, damage or liability (or action in respect
thereof) relates. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Guarantor and the Trust on
the one hand and the Underwriters of the Securities on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Trust and the
Guarantor on the one hand and such Underwriters on the other shall be deemed to
be in the same proportion as the total net proceeds from such offering (before
deducting expenses) received by the Trust bear to the total underwriting
discounts and commissions received by such Underwriters. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Guarantor or the
Trust on the one hand or such Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Trust, the Guarantor and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection (d) 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 subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the applicable 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
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 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The
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obligations of the Underwriters of Securities in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations with respect to the Securities and not joint.
8. Termination. This Agreement shall be subject to termination
in the absolute discretion of the Representatives, by notice given to the
Guarantor and the Trust prior to delivery of and payment for the Securities, if
prior to such time (i) trading in securities generally on the New York Stock
Exchange shall have been suspended or materially limited, (ii) a general
moratorium on commercial banking activities in New York shall have been declared
by either Federal or New York State authorities, or (iii) there shall have
occurred any material outbreak or escalation of hostilities or other calamity or
crisis the effect of which on the financial markets of the United States is such
as to make it, in the reasonable judgment of the Representatives, impracticable
or inadvisable to proceed with the public offering or the delivery of the
Securities as contemplated by the Prospectus.
9. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Guarantor or its officers, of the Trust and of the Underwriters set forth in or
made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter, the Guarantor or
the Trust or any of the officers, directors or controlling persons referred to
in Section 7 hereof, and will survive delivery of and payment for the
Securities. The provisions of Sections 5(e) and 7 hereof shall survive the
termination or cancellation of this Agreement.
10. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors, heirs,
executors, administrators and the officers and directors and controlling persons
referred to in Section 7 hereof, and no other person will have any right or
obligation hereunder.
11. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
12. Counterparts; Notices. This Agreement may be signed in any
number of counterparts, each of which shall be deemed an original, which taken
together shall constitute one and the same instrument.
All notices hereunder shall be in writing or by telegram if
promptly confirmed in writing, and if to the Underwriters shall be sufficient in
all respects if delivered or sent by registered mail to the address of the
Representatives as set forth in Schedule I hereto; and if to the Guarantor or
the Trust shall be sufficient in all respects if delivered or sent by registered
mail to its address set forth in the Registration Statement, Attention:
Secretary; provided, however, that any notice to an Underwriter pursuant to
Section 7 (c) hereof shall be delivered or sent by registered mail to such
Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the
Guarantor by the Representatives upon request.
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13. Action by Underwriters. Any action under this Agreement
taken by the Underwriters jointly or by Xxxxxx Xxxxxxx & Co. Incorporated on
behalf of you as the Representatives will be binding upon all the Underwriters.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us four counterparts hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Trust, the Guarantor and the Underwriters.
Very truly yours,
FIRST UNION CAPITAL __
By__________________________
Title:
FIRST UNION CORPORATION
By__________________________
Title:
The foregoing Agreement is
hereby confirmed and
accepted as of the date
first above written.
By:
On behalf of the Underwriters
set forth in Schedule II
By: ______________________________
Name:
Title:
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SCHEDULE I
TITLE OF SECURITIES:
____% Cumulative Trust Preferred Capital Securities
NUMBER OF SECURITIES:
PRICE TO PUBLIC:
$25 per Security plus accrued Distributions, if any,
from _________, 199__
PURCHASE PRICE BY UNDERWRITERS:
$25 per Security plus accrued Distributions, if any,
from _________, 199__
UNDERWRITERS' COMPENSATION PER SECURITY:
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Immediately available funds by wire
AMOUNT OF COMMON SECURITIES:
TRUST AGREEMENT:
DESIGNATION OF SUBORDINATED DEBENTURES:
AGGREGATE PRINCIPAL AMOUNT OF SUBORDINATED DEBENTURES:
INDENTURE:
I-1
GUARANTEE:
CLOSING DATE:
_____________, 199__; 9:30 a.m. (Eastern Standard Time)
CLOSING LOCATION:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
NAME OF REPRESENTATIVES:
ADDRESS FOR NOTICES, ETC.:
Attn:
I-2
SCHEDULE II
Number of
Securities
to be
Underwriter Purchased
-----------------------------------------------
-----------------------------------------------
-----------------------------------------------
-----------------------------------------------
-----------------------------------------------
II-1
SCHEDULE III
Pursuant to Section 6(h) of the Underwriting Agreement, the
independent accountants of the Guarantor shall provide a comfort letter to the
effect that:
(i) They are independent certified public accountants with
respect to the Guarantor and its subsidiaries within the meaning of the Act and
the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules examined by them and included
or incorporated by reference in the Prospectus as amended or supplemented comply
as to form in all material respects with the applicable accounting requirements
of the Act or the Exchange Act, as applicable, and the published rules and
regulations thereunder;
(iii) On the basis of limited procedures, not constituting an
audit, consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Guarantor and its subsidiaries, inspection of the
minute books of the Guarantor and its subsidiaries since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus as amended or supplemented, inquiries of officials of the Guarantor
and its subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter, nothing came
to their attention that caused them to believe that:
(A) the unaudited consolidated statements of income,
consolidated balance sheets and consolidated statements of changes in
financial position included or incorporated by reference in the
Guarantor's most recent Quarterly Report on Form 10-Q incorporated by
reference in the Prospectus (if any) as amended or supplemented does
not comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act as it applies to Form 10-Q
and the related published rules and regulations thereunder or are not
in conformity with generally accepted accounting principles applied on
a basis substantially consistent with that of the audited consolidated
financial statements included or incorporated by reference in the
Guarantor's Annual Report on Form 10-K filed for the year ended
December 31, 1995;
(B) any unaudited financial data included in the Prospectus as
amended or supplemented as at any time, or for any period ending, after
the end of the latest interim period covered by a Quarterly Report on
Form 10-Q of the Guarantor or year ended for which the Guarantor has
filed an Annual Report on Form 10-K (whichever is more recent) (and any
data for any comparable prior period included therein) do not agree
with the corresponding amounts in the unaudited consolidated financial
statements from which such data are derived, or any such unaudited
financial data were not determined on a basis substantially consistent
with the basis for the corresponding amounts in the audited
consolidated financial statements included or incorporated by reference
in the Guarantor's Annual Report on Form 10-K filed for the year ended
December 31, 1995;
III-1
(C) the unaudited pro forma consolidated condensed financial
statements (if any) included or incorporated by reference in the
Prospectus do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the published rules
and regulations thereunder or the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of those
statements;
(D) as of a specified date not more than five days prior to
the date of delivery of such letter there have been any changes in the
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn outs of performance
shares and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest audited financial
statements included or incorporated by reference in the Prospectus as
amended or supplemented) or long-term debt of the Guarantor or any of
its subsidiaries, or any decreases in consolidated stock- holders'
equity, consolidated assets, consolidated deposits, or allowance for
loan losses of the Guarantor or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with amounts shown in the
latest balance sheet included or incorporated by reference in the
Prospectus as amended or supplemented except in each case for changes,
increases or decreases which the Prospectus as amended or supplemented
discloses have occurred or may occur or which are described in such
letter; and
(E) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus as
amended or supplemented to the end of the latest period for which
financial statements are available there were any decreases in
consolidated net interest income, net interest income after provision
for loan losses, or the total or per share amounts of net income of the
Guarantor or other items specified by the Representatives, or any
increases in any items specified by the Representatives, in each case
as compared with the comparable period of the preceding year and with
any other period of corresponding length specified by the
Representatives, except in each case for increases or decreases which
the Prospectus as amended or supplemented discloses have occurred or
may occur or which are described in such letter;
(iv) In addition to the examination referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures referred
to in subparagraph (iii) above, they have carried out certain specified
procedures, not constituting an audit, with respect to certain amounts,
percentages and financial information specified by the Representatives which are
derived from the general accounting records of the Guarantor and its
subsidiaries, which appear in the Prospectus as amended or supplemented
(excluding documents incorporated by reference), in exhibits to the Registration
Statement specified by the Representatives, or in documents incorporated by
reference in the Prospectus specified by the Representatives, and have compared
certain of such amounts, percentages and financial information with the
accounting records of the Guarantor and its subsidiaries and have found them to
be in agreement.
III-2
