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Exhibit 1.1
FIFTH THIRD
BANCORP
$750,000,000
6.250% Senior Notes due
2013
Underwriting
Agreement
April 23,
2008
Credit Suisse Securities (USA)
LLC,
Goldman, Sachs &
Co.,
Merrill Lynch, Pierce, Fenner &
Smith
Incorporated,
Morgan Stanley & Co.
Incorporated,
As Representatives of the
several Underwriters
named in Schedule I
hereto,
c/o Morgan Stanley & Co.
Incorporated,
1585 Broadway,
New York, New York
10036.
Ladies and Gentlemen:
Fifth Third Bancorp, an Ohio
corporation (the “ Company ”), proposes, subject
to the terms and conditions stated herein, to issue and sell to the
underwriters named in Schedule I (the “ Underwriters
”), for which Credit Suisse Securities (USA) LLC, Goldman,
Sachs & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated and Morgan Stanley & Co. Incorporated
are acting as representatives (the “ Representatives
”), $750,000,000 of the Company’s 6.250% Senior Notes
due 2013, referred to in Schedule II hereto (the “
Notes ”). The Notes will be issued pursuant to the
Senior Indenture (the “ Indenture ”), between
the Company and Wilmington Trust Company (the “
Trustee ”), to be entered into at or before the
Closing Date.
1. Representations and
Warranties . The Company represents and warrants to, and agrees
with, each Underwriter as follows:
(a) An automatic shelf
registration statement as defined under Rule 405 under the
Securities Act of 1933, as amended (the “ Securities
Act ”), on Form S-3 (File Nos. 333-141560) in respect of
the Notes has been filed with the Securities and Exchange
Commission (the “ Commission ”) and has been
declared effective by the Commission and any post-effective
amendment thereto became effective on filing or has been declared
effective by the Commission; no stop order suspending the
effectiveness of such
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registration statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under
the Securities Act, or any part thereof, has been issued, no
proceeding for that purpose has been initiated or, to the
Company’s knowledge, threatened by the Commission and no
notice of objection of the Commission to the use of such
registration statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act has been
received by the Company (the base prospectus filed as part of such
registration statement, in the form in which it has most recently
been filed with the Commission on or prior to the date of this
Agreement, is hereinafter called the “ Basic
Prospectus ”; any preliminary prospectus (including any
preliminary prospectus supplement) relating to the Notes filed with
the Commission pursuant to Rule 424(b) under the Securities
Act is hereinafter called a “ Preliminary Prospectus
”; the various parts of such registration statement,
including all exhibits thereto but excluding any Trustee’s
Statement of Eligibility on Form T-1 (each a “ Form
T-1 ”), and including any prospectus supplement relating
to the Notes that is filed with the Commission and deemed by virtue
of Rule 430B to be part of such registration statement, each
as amended at the time such part of the registration statement
became effective, are hereinafter collectively called the “
Registration Statement ”; the Basic Prospectus, as
amended and supplemented immediately prior to the Applicable Time
(as defined in Section 1(A)(c) hereof), is hereinafter called
the “ Pricing Prospectus ”; the form of the
final prospectus relating to the Notes filed with the Commission
pursuant to Rule 424(b) under the Securities Act in accordance
with Section 5(A)(a) is hereinafter called the “
Prospectus ”; any reference herein to the Basic
Prospectus, the Pricing Prospectus, any 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 under the Securities Act, as of the date
of such prospectus; any reference to any amendment or supplement to
the Basic Prospectus, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any post-effective
amendment to the Registration Statement, any prospectus supplement
relating to the Notes filed with the Commission pursuant to
Rule 424(b) under the Securities Act and any documents filed
under the Securities Exchange Act of 1934, as amended (the “
Exchange Act ”), and incorporated therein, in each
case after the date of the Basic Prospectus, such Preliminary
Prospectus or the Prospectus, as the case may be; any reference to
any amendment to the Registration Statement shall be deemed to
refer to and include any annual report of the Company filed
pursuant to Section 13(a) or 15(d) of the Exchange Act after
the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; and any
“issuer free writing prospectus” as defined in
Rule 433 under the Securities Act relating to the Notes is
hereinafter called an “ Issuer Free Writing Prospectus
”).
(b) No order preventing or
suspending the use of any Preliminary Prospectus or any Issuer Free
Writing Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in
all material respects to the requirements of the Securities Act and
the Trust Indenture Act of 1939, as amended (the “ Trust
Indenture Act ”), and the rules and regulations of the
Commission thereunder, and did not contain an untrue statement of a
material fact or omit to state a material fact
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required to be stated therein
or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided , however , that this representation and
warranty shall not apply to (i) the Form T-1 of the Trustee or
(ii) any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by
an Underwriter through the Representatives expressly for use
therein.
(c) For the purposes of this
Agreement, the “ Applicable Time ” is 3:30 P.M.
(New York City time) on the date of this Agreement; the Pricing
Prospectus as supplemented by the final term sheet prepared and
filed pursuant to Section 5(A)(a), taken together
(collectively, the “ Pricing Disclosure Package
”) as of the Applicable Time, did not include any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; and
each Issuer Free Writing Prospectus listed on Schedule II(a)
does not conflict with the information contained in the
Registration Statement, the Pricing Prospectus or the Prospectus
and each such Issuer Free Writing Prospectus, as supplemented by
and taken together with the Pricing Disclosure Package as of the
Applicable Time, did not include any untrue statement of a material
fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; provided ,
however , that this representation and warranty shall not
apply to statements or omissions made in an Issuer Free Writing
Prospectus in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through the
Representatives expressly for use therein.
(d) The documents
incorporated by reference in the Pricing Prospectus and the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects
to the requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder, and none of such documents 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; any further documents so filed and
incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder 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; provided , however
, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an
Underwriter through the Representatives expressly for use therein;
and no such documents were filed with the Commission since the
Commission’s close of business on the business day
immediately prior to the date of this Agreement and prior to the
execution of this Agreement, except as set forth on Schedule
II(b).
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(e) The Registration
Statement conforms, and the Prospectus and any further amendments
or supplements to the Registration Statement and the Prospectus
will conform, in all material respects to the requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder and do not and will not,
as of the applicable effective date as to each part of the
Registration Statement and as of the applicable filing date as to
the Prospectus and any amendment or supplement thereto, 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; provided , however
, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an
Underwriter through the Representatives expressly for use
therein.
(f) This Agreement has been
duly authorized, executed and delivered by the Company.
(g) The Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Ohio, with power and
authority (corporate and other) to own its material properties and
conduct its business substantially in the manner in which it
presently conducts its business, and has been duly qualified as a
foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction which requires
such qualifications, except for failures to be so qualified or be
in good standing that would not reasonably be expected to have a
material adverse effect on the financial condition,
stockholders’ equity or results of operations of the Company
and its subsidiaries, taken as a whole (a “ Material
Adverse Effect ”); and each subsidiary of the Company has
been duly organized or incorporated and is validly existing as a
bank or corporation in good standing under the laws of its
jurisdiction of incorporation, except for failures to be so
qualified or be in good standing that would not reasonably be
expected to have a material adverse effect on the financial
condition, stockholders’ equity or results of operations of
the Company and its subsidiaries, taken as a whole.
(h) The Company is duly
registered as a bank holding company and qualified as a financial
holding company under the Bank Holding Company Act of 1956, as
amended (the “BHC Act” ).
(i) The deposit accounts of
each of the bank subsidiaries of the Company are insured up to
applicable limits by the FDIC and no proceedings for the
termination or revocation of such insurance are pending or, to the
knowledge of the Company, threatened.
(j) The Company and each of
its “significant subsidiaries” (as such term is used in
Rule 1-02(w) of Regulation S-X under the Securities Act; each a
“ Significant Subsidiary ” and collectively, the
“ Significant Subsidiaries ”) are in compliance
with all laws administered by the Board of Governors of the Federal
Reserve System (the
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“Federal Reserve
Board” ), the Federal Deposit Insurance Corporation (
“FDIC” ) and any other federal or state bank
regulatory authorities (together with the Federal Reserve Board and
the FDIC, the “Bank Regulatory Authorities” )
with jurisdiction over the Company or any of its Significant
Subsidiaries, except for failures to be so in compliance that would
not reasonably be expected to have a Material Adverse Effect on the
current or future financial position, stockholders’ equity or
results of operations of the Company and its subsidiaries, taken as
a whole.
(k) The Company has an
authorized capitalization as set forth in the Prospectus, and all
of the issued shares of capital stock of the Company have been duly
and validly authorized and issued and are fully paid and
non-assessable; and all of the issued shares of capital stock of
each Significant Subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable
and (except for directors’ qualifying shares and except as
otherwise set forth in the Pricing Prospectus) are owned directly
or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims.
(l) The Notes have been duly
authorized by the Company, and, when issued, delivered and paid for
at the Closing Date as contemplated by the Pricing Prospectus, will
have been duly executed, authenticated, issued and delivered and
will constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture; the
Indenture has been duly authorized by the Company and, at the
Closing Date, the Indenture will be duly qualified under the Trust
Indenture Act and will constitute a valid and legally binding
instrument of the Company, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other laws of
general applicability relating to or affecting creditors’
rights and to general equity principles; and the Notes and the
Indenture will conform in all material respects to the descriptions
thereof in the Pricing Disclosure Package and the
Prospectus.
(m) This Agreement has been
duly authorized, executed and delivered by the Company.
(n) The issue and sale of the
Notes, the compliance by the Company with all of the provisions of
the Notes, the Indenture and this Agreement and the consummation of
the transactions herein and therein contemplated will not
constitute a breach of or default under, the Second Amended
Articles of Incorporation or Code of Regulations of the Company or
any of its Significant Subsidiaries, or any material agreement,
indenture or other instrument to which the Company or any of its
subsidiaries is a party, or, to the best of the Company’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 Company or any of its subsidiaries or
any property of the Company or any of its subsidiaries, which
breach or default would be reasonably likely to have material
adverse effect on the current or future financial position,
stockholders’ equity or results of operations of the Company
and its subsidiaries, taken as a whole, or on the ability of the
Company to perform its obligations hereunder or its obligations
under the Indenture.
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(o) No consent, approval,
authorization, filing with or order of any court or governmental
agency or body is required in connection with the transactions
contemplated herein, except such as have been obtained under the
Securities Act and the Trust Indenture Act and such as may be
required under the blue sky laws of any jurisdiction in connection
with the purchase and distribution of the Notes by the Underwriters
in the manner contemplated herein and in the Final
Prospectus.
(p) (i) Neither the Company
nor any of its Significant Subsidiaries has sustained since the
date of the latest audited financial statements included or
incorporated by reference in the Pricing Prospectus any material
loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Pricing
Prospectus; and (ii) since the respective dates as of which
information is given in the Registration Statement and the Pricing
Prospectus, there has not been any change in the capital stock or
long term debt of the Company or any of its Significant
Subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting
the general affairs, management, financial position,
stockholders’ equity or results of operations of the Company
and its Significant Subsidiaries, otherwise than as set forth or
contemplated in the Pricing Prospectus.
(q) The Company and its
Significant Subsidiaries have good and marketable title in fee
simple to all real property and good and marketable title to all
personal property owned by them, in each case free and clear of all
liens, encumbrances and defects except such as are described in the
Pricing Prospectus or such as do not materially affect the value of
such property and do not interfere with the use made and proposed
to be made of such property by the Company and its Significant
Subsidiaries; and any real property and buildings held under lease
by the Company and its Significant Subsidiaries are held by them
under valid, subsisting and enforceable leases with such exceptions
as are not material and do not interfere with the use made and
proposed to be made of such property and buildings by the Company
and its Significant Subsidiaries.
(r) The statements set forth
in the Pricing Prospectus and the Prospectus under the caption
“Description of Notes” insofar as they are descriptions
of contracts, agreements or other legal documents or describe
Federal statutes, rules and regulations, and under the caption
“Underwriting,” insofar as they purport to describe the
provisions of the documents referred to therein, constitute an
accurate summary of the matters set forth therein in all material
respects.
(s) Neither the Company nor
any Significant Subsidiaries is in violation or default of
(i) any provision of any of its Articles of Incorporation,
Code of Regulations, By-laws or other constitutive documents,
(ii) the terms of any indenture, contract, lease,
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mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which it is a party or bound
or to which its property is subject or (iii) any statute, law,
rule, regulation, judgment, order or decree of any court,
regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company
or such subsidiary or any of its properties, as applicable, which
violation or default would, in the case of clauses (ii) and
(iii) above, either individually or in the aggregate with all
other violations and defaults referred to in this paragraph (s),
reasonably be expected to result in a material adverse effect on
the financial condition, shareholders’ equity or results of
operations of the Company and its subsidiaries, taken as a
whole.
(t) The Company has filed all
foreign, federal, state and local tax returns that are required to
be filed or has requested extensions thereof and has paid all taxes
shown on such return or a notice of any taxing authority, fine or
penalty levied against it, to the extent that any of the foregoing
is due and payable, except for any such taxes shown on such notice,
assessment, fine or penalty that is currently being contested in
good faith and further except for failures to so file or pay that
would not reasonably be expected to have a material adverse effect
on the financial condition, stockholders’ equity or results
of operations of the Company and its Significant Subsidiaries,
taken as a whole.
(u) The Company is not
subject to any order of the Federal Reserve Board which, as of the
date hereof, prohibits the payment of dividends by any of its
subsidiaries.
(v) Other than as set forth
in the Pricing Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its Significant
Subsidiaries is a party or of which any property of the Company or
any of the Company’s subsidiaries is the subject which, if
determined adversely to the Company or any of its Significant
Subsidiaries, would, individually or in the aggregate, reasonably
be expected to have a material adverse effect on the financial
condition, stockholders’ equity or results of operations of
the Company and its Significant Subsidiaries, taken as a whole, or
on the ability of the Company to perform its obligations hereunder
or its obligations under the Notes, Indenture, or this Agreement;
and, to the best of the Company’s knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(w) The Company is not and,
after giving effect to the offering and sale of the Notes and the
application of the proceeds thereof, will not be an
“investment company,” as such term is defined in the
Investment Company Act of 1940, as amended (the “
Investment Company Act ”).
(x) (A) (i) At the time
of filing the Registration Statement, (ii) at the time of the
most recent amendment thereto for the purposes of complying with
Section 10(a)(3) of the Securities Act (whether such amendment
was by post-effective amendment, incorporated report filed pursuant
to Section 13 or 15(d) of the Exchange Act or form of
prospectus), and (iii) at the time the Company or any person
acting on its behalf (within
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the meaning, for this clause
only, of Rule 163(c) under the Securities Act) made any offer
relating to the Securities in reliance on the exemption of Rule 163
under the Securities Act, the Company was a “well-known
seasoned issuer” as defined in Rule 405 under the Securities
Act; and (B) at the earliest time after the filing of the
Registration Statement that the Company or another offering
participant made a bona fide offer (within the meaning of Rule
164(h)(2) under the Act) of the Notes, the Company was not an
“ineligible issuer” as defined in Rule 405 under the
Act.
(y) Deloitte &
Touche LLP, who have certified certain financial statements of the
Company and its Significant Subsidiaries, and have audited the
Company’s internal control over financial reporting and
management’s assessment thereof, are independent public
accountants as required by the Securities Act and the rules and
regulations of the Commission thereunder.
(z) The Company maintains a
system of internal control over financial reporting (as such term
is defined in Rule 13a-15(f) under the Exchange Act) that complies
with the requirements of the Exchange Act and has been designed by
the Company’s principal executive officer and principal
financial officer, or under their supervision, to provide
reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting
principles. The Company’s internal control over financial
reporting is effective and the Company is not aware of any material
weaknesses in its internal control over financial
reporting.
(aa) Since the date of the
latest audited financial statements included or incorporated by
reference in the Pricing Prospectus, there has been no change in
the Company’s internal control over financial reporting that
has materially affected, or is reasonably likely to materially
affect, the Company’s internal control over financial
reporting.
(bb) The Company has
established and maintains disclosure controls and procedures (as
such term is defined in Rule 13a-15(e) under the Exchange Act)
that comply with the requirements of the Exchange Act; such
disclosure controls and procedures have been designed to ensure
that material information relating to the Company, including its
consolidated subsidiaries, is made known to the Company’s
principal executive officer and principal financial officer by
others within those entities and such disclosure controls and
procedures are effective.
2. Purchase and Sale .
Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees
to issue and sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the
purchase price set forth in Schedule II, the principal amount of
Notes set forth opposite such Underwriter’s name in Schedule
I.
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3. Delivery and
Payment . Delivery of and payment for the Notes shall be made
at the office, on the date and at the time specified in Schedule II
hereto (such time and date are herein called the “ Time of
Delivery ”), which date and time may be postponed by
agreement between the Underwriters and the Company (such date and
time of delivery of and payment for the Notes being herein called
the “ Closing Date ”). The Notes to be purchased
by each Underwriter hereunder will be represented by one or more
global certificates representing the Notes that will be deposited
by or on behalf of the Company with The Depository Trust Company
(“ DTC ”) or its designated custodian. Delivery
of the Notes shall be made by causing DTC to credit the Notes to
the account of Morgan Stanley & Co. Incorporated at DTC,
for the respective accounts of the several Underwriters at DTC,
against payment by the several Underwriters through Morgan
Stanley & Co. Incorporated of the purchase price thereof
to or upon the order of the Company in the manner and type of funds
specified in Schedule II.
The Company agrees to have
the certificates representing the Notes available for checking in
New York City at the Closing Location specified in
Schedule II, on the business day prior to the Closing
Date.
4. Offering by
Underwriters . It is understood that the several Underwriters
propose to offer the Notes for sale as set forth in the Pricing
Disclosure Package and the Prospectus.
5. Agreements .
(A) General . The Company agrees with the several
Underwriters as follows:
(a) To prepare the Prospectus
in a mutually agreed form and to file such Prospectus pursuant to
Rule 424(b) under the Securities Act not later than the
Commission’s close of business on the second business day
following the date of this Agreement; to make no further amendment
or any supplement to the Registration Statement, the Basic
Prospectus or the Prospectus prior to such Time of Delivery unless
mutually agreed; to advise you, promptly after it receives notice
thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any amendment or
supplement to the Prospectus has been filed and to furnish you with
copies thereof; to prepare a final term sheet, containing solely a
description of the Notes, in a form set forth in Schedule III
hereto and to file such term sheet pursuant to Rule 433(d)
under the Securities Act within the time required by such Rule; to
file promptly all other material required to be filed by the
Company with the Commission pursuant to Rule 433(d) under the
Securities Act; for so long as the delivery of a prospectus (or in
lieu thereof, the notice referred to in Rule 173(a) under the
Securities Act) is required in connection with the offering and
sale of the Notes, to file promptly all reports and any definitive
proxy or information statements required to be filed by the Company
with the Commission pursuant to Section 13(a), 14 or 15(d) of
the Exchange Act; to advise you, promptly after the Company
receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been
filed with the Commission, of the issuance by the Commission of any
stop order suspending the effectiveness of the
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Registration Statement or any
part thereof or any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or other
prospectus in respect of the Notes, of any notice of objection of
the Commission to the use of the Registration Statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under
the Act, of the suspension of the qualification of the Notes for
offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the
Registration Statement or the Prospectus or for additional
information; and, for so long as the delivery of a prospectus is
required in connection with the offering and sale of the Notes (or
in lieu thereof, the notice referred to in Rule 173(a) under the
Securities Act), in the event of the issuance of any stop order or
of any order preventing or suspending the use of any Preliminary
Prospectus or other prospectus in respect of the Notes or
suspending any such qualification, to promptly use their best
efforts to obtain the withdrawal of such order; and in the event of
any such issuance of a notice of objection, promptly to take such
steps including, without limitation, amending the Registration
Statement or filing a new registration statement, at the
Company’s own expense, as may be necessary to permit offers
and sales of the Notes by the Underwriters (references herein to
the Registration Statement shall include any such amendment or new
registration statement).
(b) If required by
Rule 430B(h) under the Securities Act, to prepare a form of
prospectus in a mutually agreed form and to file such form of
prospectus pursuant to Rule 424(b) under the Securities Act
not later than may be required by Rule 424(b) under the
Securities Act; and to make no further amendment or supplement to
such form of prospectus except as mutually agreed.
(c) Promptly from time to
time to take such action as the Underwriters may reasonably request
to qualify the Notes for offering and sale under the securities
laws of such jurisdictions as the Underwriters may request and to
comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Notes,
provided that in connection therewith the Company shall not
be required to qualify to do business in any jurisdiction where it
is not now so qualified or take any action which would subject it
to general or unlimited service of process in any jurisdiction
where it is not now so subject.
(d) The Company will use its
reasonable best efforts to furnish to 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,
with written and electronic copies of the Prospectus in New York
City in such quantities as they may reasonably request,
provided that such request, including the delivery location
for such copies of the Prospectus is provided by such Underwriters
in a timely manner. If the delivery of a prospectus (or in lieu
thereof, the notice referred to in Rule 173(a) under the
Securities Act) is required at any time prior to the expiration of
nine months after the time of issue of the Prospectus in connection
with the offering or sale of the Notes and if at such time any
event shall have occurred as a result of which the Prospectus as
then
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amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such
Prospectus (or in lieu thereof, the notice referred to in
Rule 173(a) under the Securities Act) is delivered, not
misleading, or, if for any other reason it shall be necessary
during such same period to amend or supplement the Prospectus or to
file under the Exchange Act any document incorporated by reference
in the Prospectus in order to comply with the Securities Act, the
Exchange Act or the Trust Indenture Act, to notify you and upon
your request to file such document and to prepare and furnish
without charge to each Underwriter and to any dealer in securities
as many written and electronic copies as you may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus that will correct such statement or omission or effect
such compliance; and in case any Underwriter is required to deliver
a prospectus (or in lieu thereof, the notice referred to in
Rule 173(a) under the Securities Act) in connection with sales
of any of the Notes at any time nine months or more after the time
of issue of the Prospectus, upon your request but at the expense of
such Underwriter, to prepare and deliver to such Underwriter as
many written and electronic copies as you may request of an amended
or supplemented Prospectus complying with Section 10(a)(3) of
the Securities Act.
(e) To make generally
available to its securityholders and to the Underwriters as soon as
practicable, but in any event not later than sixteen months after
the effective date of the Registration Statement (as defined in
Rule 158(c) under the Securities Act), an earnings statement
(which need not be audited) of the Company and its Significant
Subsidiaries, complying with Section 11(a) of the Securities
Act and the rules and regulations thereunder (including, at the
option of the Company, Rule 158).
(f) During the period
beginning from the date of the Prospectus, and continuing to and
including the Closing Date, not to offer, sell, contract to sell,
or otherwise dispose of, directly or indirectly, any Notes (except
for (x) the Notes offered hereby and (y) any securities
to be offered in an exchange offer or similar transaction in
respect of the securities outstanding on the date hereof) or any
debt securities that are substantially similar to the Notes or any
securities that are convertible into or exchangeable for or that
represent the right to receive any of the foregoing except with the
prior written consent of the Representatives.
(g) To pay the required
Commission filing fees relating to the Notes within the time
required by Rule 456(b)(1) under the Securities Act without
regard to the proviso therein and otherwise in accordance with
Rules 456(b) and 457(r) under the Securities Act.
(h) To use the net proceeds
received from the sale of the Notes in the manner specified in the
Pricing Prospectus under the caption “Use of
Proceeds”.
(i) To pay all expenses
incident to the performance of each of its obligations under this
Agreement, and will pay or cause to be paid the following:
(i) the fees,
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FTB S ENIOR D
EBT 2008 – U NDERWRITING
AGREEMENT
disbursements and expenses of
its counsel and accountants in connection with the registration of
the Notes under the Securities Act and all other expenses in
connection with the preparation, printing, reproduction and filing
of the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, any Issuer Free Writing Prospectus and the
Prospectus and amendments and supplements thereto and the mailing
and delivering of copies thereof to the Underwriters and dealers;
(ii) the cost of printing or producing any Agreement among
Underwriters, this Agreement, the Blue Sky Memorandum, closing
documents (including any compilations thereof) and any other
documents in connection with the offering, purchase, sale and
delivery of the Notes; (iii) all expenses in connection with
the qualification of the Notes for offering and sale under state
securities laws, including the reasonable fees and disbursements of
counsel for the Underwriters in connection with such qualification
and in connection with the Blue Sky survey; (iv) the fees
charged by securities rating services for rating the Notes;
(v) filing fees incident to, and the reasonable fees and
disbursements of counsel for the Underwriters in connection with,
any required review by the Financial Industry Regulatory Authority
(“FINRA”) of the terms of the sale of the Notes;
(vi) the cost of preparing the Notes; (vii) the costs and
charges of any transfer agent or registrar or paying agent; and
(viii) all other costs and expenses incident to the
performance of its obligations hereunder that are not otherwise
specifically provided for in this paragraph. It is understood,
however, that, except as provided in this paragraph, and Sections 7
and 9 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, transfer taxes on
resale of any of the Notes by them, the cost of preparing and
distributing any term sheet prepared by any Underwriter, and any
advertising expenses connected with any offers they may
make.
(B) Free Writing
Prospectuses .
(a) (i) The Company
represents and agrees that, other than the final term sheet
prepared and filed pursuant to Section 5(A)(a) hereof, without
the prior consent of the Representatives, it has not made and will
not make any offer relating to the Notes that would constitute a
“free writing prospectus” as defined in
Rule 405;
(ii) Each Underwriter
represents and agrees that, without the prior consent of the
Company and the Representatives, other than one or more term sheets
relating to the Notes containing customary information and conveyed
to purchasers of the Notes, it has not made and will not make any
offer relating to the Notes that would constitute a free writing
prospectus; and
(iii) Any such free writing
prospectus the use of which requires consent under clauses (i)
and (ii) above and has been consented to by the Company and
the Representatives (including the final term sheet prepared and
filed pursua
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