Exhibit 1.1
SUNTRUST CAPITAL VIII
6.100% Trust Preferred
Securities
(liquidation amount $1,000 per
security)
fully and unconditionally guaranteed
by
SUNTRUST BANKS, INC.
Underwriting
Agreement
November 29,
2006
Goldman, Sachs &
Co.
SunTrust Capital Markets,
Inc.
Citigroup Global Markets
Inc.
As representatives of the several
Underwriters
named in Schedule I
hereto,
c/o Goldman, Sachs &
Co.,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
SunTrust Capital VIII, a statutory
trust created under the laws of the State of Delaware (the “
Trust ”), and SunTrust Banks, Inc., a Georgia
corporation (the “ Guarantor ”), as depositor of
the Trust and as Guarantor under the Guarantee referred to herein,
propose, subject to the terms and conditions stated herein, to sell
to you, the underwriters named in Schedule I (the “
Underwriters ”) 1,000,000 of the Trust’s 6.100%
Trust Preferred Securities, liquidation amount $1,000 per security,
referred to in Schedule II (the “ Trust Preferred
Securities ”). The proceeds of the sale of the Trust
Preferred Securities and of the common securities of the Trust (the
“ Trust Common Securities ”) to be sold by the
Trust to the Guarantor are to be invested in $1,000,010,000
principal amount of the Guarantor’s 6.100% Extendible Junior
Subordinated Notes (the “ Junior Subordinated Notes
”), to be issued pursuant to the Junior Subordinated
Indenture between the Guarantor and U.S. Bank National Association
(the “ Indenture Trustee, ” and such Junior
Subordinated Indenture, the “ Base Indenture ”),
as amended and supplemented by a second supplemental indenture
between the Guarantor and the Indenture Trustee (the “
Supplemental Indenture ” and, together with the Base
Indenture, the “ Indenture ”), each to be
entered into at or before the Closing Date.
Capitalized terms used herein and
not otherwise defined but that are defined in the Declaration of
Trust (as defined in Section 1(A)(g)), have the meanings
specified in the Declaration of Trust.
1. Representations and
Warranties . (A) Each of the Guarantor and the Trust
jointly and severally represents and warrants to, and agrees with,
each Underwriter as follows (except that the representation,
warranty and agreement in paragraph (d) of this
Section 1(A) is given only by the Guarantor and not by the
Trust):
(a) An “automatic shelf
registration statement” as defined under Rule 405 under
the Securities Act of 1933, as amended (the “ Act
”) on Form S-3 (File No. 333-137101) in respect of the
Trust Preferred Securities and the Junior Subordinated Notes, has
been filed with the Securities and Exchange Commission (the “
Commission ”) not earlier than three years prior to
the date hereof; pursuant to the Act, such registration statement,
and any post-effective amendment thereto, became effective on
filing; no stop order suspending the effectiveness of such
registration statement or any part thereof has been issued, no
proceeding for that purpose has been initiated or, to the
Guarantor’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 Act has been received by
the Guarantor or the Trust (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 Trust Preferred
Securities filed with the Commission pursuant to Rule 424(b)
under the 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 Trust Preferred Securities 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 Trust Preferred Securities filed with the
Commission pursuant to Rule 424(b) under the 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 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
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supplement relating to the Trust
Preferred Securities filed with the Commission pursuant to
Rule 424(b) under the 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 Guarantor 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 Act relating to the Trust Preferred
Securities 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 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 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 any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Guarantor by an Underwriter through the
Representatives expressly for use therein.
(c) For the purposes of this
Agreement, the “ Applicable Time ” is
4:30 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 Guarantor by an Underwriter through the
Representatives expressly for use therein.
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(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
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 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 Guarantor
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).
(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 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 Guarantor by an Underwriter through the
Representatives expressly for use therein.
(f) The Trust has been duly created
and is validly existing as a statutory trust in good standing under
the laws of the State of Delaware and at the Closing Date will have
the power and authority (trust and other) to own its property and
conduct its business as described in the Registration Statement,
the Pricing Disclosure Package and the Prospectus and to execute
and deliver and perform its obligations under the Other Trust
Transaction Agreements (as defined in paragraph (A)(g) of this
Section 1).
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(g) The Trust has conducted and will
conduct no business other than the transactions contemplated by
this Agreement and the Second Amended and Restated Declaration of
Trust in substantially the form previously provided to you and to
be entered into at or before the Closing Date among the Guarantor,
as Sponsor, U.S. Bank National Association, as Property Trustee,
U.S. Bank Trust National Association, as Delaware Trustee, and the
individuals named therein, as Administrative Trustees
(collectively, the “ Trustees ,” and such Second
Amended and Restated Declaration of Trust, the “
Declaration of Trust ”) and described in the Pricing
Prospectus and the Prospectus; the Trust is not, and at the Closing
Date will not be, a party to or bound by any agreement or
instrument other than this Agreement, the Declaration of Trust and
the Other Trust Transaction Agreements (as defined below); and the
Trust has no liabilities or obligations other than those arising
out of the transactions contemplated by this Agreement and the
Other Trust Transaction Agreements and described in the Pricing
Prospectus and the Prospectus. “ Other Trust Transaction
Agreements ” means the Certificate Depository Agreement
and the Expense Agreement.
(h) At the Closing Date, the Trust
Preferred Securities will have been duly authorized and, when
issued, delivered and paid for pursuant to this Agreement, will
have been duly and validly issued and will be fully paid and
non-assessable beneficial interests in the Trust entitled to the
benefits of the Declaration of Trust and the Trust Preferred
Securities will conform in all material respects to the description
thereof in the Pricing Disclosure Package and the
Prospectus.
(i) At the Closing Date, the Trust
Common Securities will have been duly authorized and will have been
duly and validly issued and will be fully paid and non-assessable
(subject to the qualifications described in the proviso to
Section 6(d)(vi)) beneficial interests in the Trust entitled
to the benefits of the Declaration of Trust and will conform in all
material respects to the description thereof contained in the
Pricing Disclosure Package and the Prospectus; the issuance of the
Trust Common Securities is not subject to preemptive or other
similar rights; at the Closing Date, all of the issued and
outstanding Trust Common Securities will be directly owned by the
Guarantor, free and clear of all liens, encumbrances, equities or
claims; and the Trust Common Securities and the Trust Preferred
Securities are the only beneficial interests in the Trust
authorized to be issued by the Trust.
(j) The holders of the Trust
Preferred Securities will be entitled to the same limitation on
personal liability that is extended to stockholders of private
corporations for profit organized under the General Corporation Law
of the State of Delaware.
(k) At the Closing Date, each Other
Trust Transaction Agreement (collectively with this Agreement, the
“ Trust Transaction Agreements ”) will
have
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been duly authorized, executed and
delivered by the Trust and will constitute a valid and legally
binding instrument of the Trust, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to
or affecting creditors’ rights and to general equity
principles; and the Trust Transaction Agreements will conform in
all material respects to the descriptions thereof contained in the
Pricing Disclosure Package and the Prospectus.
(l) This Agreement has been duly
authorized, executed and delivered by the Trust.
(m) At the Closing Date, the Trust
will have all power and authority necessary to execute and deliver
this Agreement, the Trust Preferred Securities, the Trust Common
Securities and the Other Trust Transaction Agreements, and to
perform its obligations hereunder and thereunder; the issuance by
the Trust of the Trust Preferred Securities and the Trust Common
Securities in accordance with the Declaration of Trust, the
purchase by the Trust of the Junior Subordinated Notes, and the
execution and delivery by the Trust of the Trust Transaction
Agreements and the performance by it of its obligations thereunder
will not (i) conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Guarantor or any of its
subsidiaries or the Trust is a party or by which the Guarantor or
any of its subsidiaries or the Trust is bound or to which any of
the property or assets of the Guarantor or any of its subsidiaries
or the Trust is subject, except as would not reasonably be expected
to have, individually or in the aggregate, a Material Adverse
Effect (as defined in paragraph (B)(b) of this Section 1)
or a material adverse effect on the consummation of the
transactions contemplated hereby; (ii) result in any violation
of the provisions of the Declaration of Trust, the Restated
Articles of Incorporation, as amended, or By-laws of the Guarantor
or (iii) result in any violation of any statute or any order,
rule or regulation of any court or governmental agency or body
having jurisdiction over the Guarantor or any of its subsidiaries
or the Trust or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the
execution, delivery and performance by the issue and sale of the
Trust Preferred Securities and the Trust Common Securities by the
Trust in accordance with the terms of the Declaration of Trust, the
purchase by the Trust of the Junior Subordinated Notes, or the
execution, delivery or performance by the Trust of any of the Other
Trust Transaction Agreements or the consummation by the Trust of
the transactions contemplated thereby, except such as have been
obtained under the Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Trust Preferred Securities by the
Underwriters.
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(n) The Trust is not and, after
giving effect to the offering and sale of the Trust Preferred
Securities will not 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
”).
(B) The Guarantor represents and
warrants to, and agrees with, each Underwriter that:
(a) Neither the Guarantor nor any 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 ”) 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, 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 of the Guarantor
or any of its Significant Subsidiaries (other than
(i) repurchases of common stock of the Guarantor pursuant to
the Guarantor’s Accelerated Share Repurchase program in an
amount up to the gross proceeds of the September 2006 public
offering of the Guarantor’s preferred stock and the October
2006 public offering of 5.853% Fixed-to-Floating Rate Normal
Preferred Purchase Securities by a trust subsidiary of the
Guarantor, (ii) other repurchases of common stock of the
Guarantor in an aggregate amount that is less than 1% of the number
of outstanding shares of common stock on the date hereof and
(iii) issuances or other transfers of capital stock in the
ordinary course of business pursuant to the Guarantor’s
employee benefit plans), any increase in the long-term debt of the
Guarantor and its subsidiaries, or any material adverse change, or
any development (other than the Financial Accounting Standards
Board’s Statement of Financial Accounting Standards
No. 158) involving a prospective material adverse change, in
or affecting the general affairs, management, financial position,
stockholders’ equity or results of operations of the
Guarantor and its subsidiaries taken as a whole, otherwise than as
set forth or contemplated in the Pricing Prospectus; SunTrust Bank
is a Significant Subsidiary, and no other subsidiary of the
Guarantor is a Significant Subsidiary.
(b) The Guarantor has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Georgia, 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,
with power and authority (corporate and other) to own its
properties and conduct its business as described in the Pricing
Prospectus, and has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the
laws
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of each other jurisdiction in which
it owns or leases properties or conducts any business so as to
require such qualification, except for such failures to be so
qualified or in good standing that would not reasonably be expected
to have, individually or in the aggregate, a material adverse
effect on the general affairs, management, financial position,
stockholders’ equity or results of operations of the
Guarantor and its subsidiaries taken as a whole (a “
Material Adverse Effect ”); and each Significant
Subsidiary of the Guarantor has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of its jurisdiction of incorporation.
(c) The Guarantor has an authorized
capitalization as set forth in the Pricing Prospectus, and all of
the issued shares of capital stock of the Guarantor 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 Guarantor have been duly and
validly authorized and issued, are fully paid and non-assessable
and (except for directors’ qualifying shares) are owned
directly or indirectly by the Guarantor, free and clear of all
liens, encumbrances, equities or claims.
(d) Each of the Administrative
Trustees is an employee of or affiliated with the Guarantor and, at
the Closing Date, the Declaration of Trust will have been duly
executed and delivered by each Administrative Trustee and will
constitute a valid and legally binding instrument of each
Administrative Trustee, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to
or affecting creditors’ rights and to general equity
principles.
(e) The Junior Subordinated Notes
have been duly authorized, 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
Guarantor entitled to the benefits provided by the Indenture; the
Indenture has been duly authorized and, at the Closing Date, the
Indenture, the Guarantee Agreement and the Declaration of Trust
will be duly qualified under the Trust Indenture Act and will
constitute a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors’ rights and
to general equity principles; and the Junior Subordinated Notes and
the Indenture will conform in all material respects to the
descriptions thereof in the Pricing Disclosure Package and the
Prospectus.
(f) Each of the Declaration of Trust
and the Guarantee Agreement (collectively, the “ Other
Guarantor Transaction Agreements ” and, together with
this Agreement, the Indenture and the Junior Subordinated Notes,
the “ Guarantor Transaction Agreements ”) has
been duly authorized by the Guarantor and, when
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executed and delivered at the
Closing Date, will constitute a valid and legally binding
instrument of the Guarantor, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to
or affecting creditors’ rights and to general equity
principles.
(g) This Agreement has been duly
authorized, executed and delivered by the Guarantor.
(h) The Guarantor has all power and
authority (corporate and other) necessary to perform its
obligations under the Guarantor Transaction Agreements; the
execution, delivery and performance of the Guarantor Transaction
Agreements, and compliance with the provisions thereof and the
consummation of the transactions herein and therein contemplated by
the Guarantor will not (i) conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Guarantor
or any of its subsidiaries is a party or by which the Guarantor or
any of its subsidiaries is bound or to which any of the property or
assets of the Guarantor or any of its subsidiaries is subject,
except as would not reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect or a material adverse
effect on the consummation of the transactions contemplated hereby;
(ii) result in any violation of the provisions of the
Declaration of Trust, the Restated Articles of Incorporation, as
amended, or By-laws of the Guarantor or (iii) result in any
violation of any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Guarantor or any of its subsidiaries or any of their properties;
and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or
body is required for the execution, delivery and performance by the
Guarantor of the Guarantor Transaction Agreements, except such as
have been obtained under the Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Trust Preferred Securities by the
Underwriters.
(i) Neither the Guarantor nor any of
its Significant Subsidiaries is in violation of its organizational
documents or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in
any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by which it
or any of its properties may be bound.
(j) The statements set forth in the
Pricing Prospectus and the Prospectus under the captions
“Description of the Trust Preferred Securities,”
“Description of the Junior Subordinated Notes,”
“Description of the Guarantee,”
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“Relationship among Trust
Preferred Securities, Junior Subordinated Notes and
Guarantee” and “Replacement Capital Covenant,”
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; the statements set
forth in the Pricing Prospectus and the Prospectus under the
caption “Certain United States Federal Income Tax
Consequences” and “ERISA Considerations,” insofar
as they purport to constitute a summary of matters of U.S. federal
income tax law or the U.S. Employee Retirement Income Security Act
of 1974, as amended, and regulations or legal conclusions with
respect thereto, constitute an accurate summary of the matters set
forth therein in all material respects.
(k) Other than as set forth in the
Pricing Prospectus, there are no legal or governmental proceedings
pending to which the Trust or the Guarantor or any of the
subsidiaries of the Guarantor is a party or of which any property
of the Trust or the Guarantor or any of the subsidiaries of the
Guarantor is the subject which is reasonably likely to be adversely
determined against the Trust or the Guarantor or any of the
subsidiaries of the Guarantor and, if determined adversely to the
Trust or the Guarantor or any of the subsidiaries of the Guarantor,
would individually or in the aggregate have a Material Adverse
Effect; and, to the Guarantor’s knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(l) The Guarantor is not and, after
giving effect to the offering and sale of the Trust Preferred
Securities and the application of the proceeds thereof, will not be
an “investment company,” as such term is defined in the
Investment Company Act.
(m)(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 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 Guarantor or any person
acting on its behalf (within the meaning, for this clause only, of
Rule 163(c) under the Act) made any offer relating to the
Trust Preferred Securities in reliance on the exemption of
Rule 163 under the Act, the Guarantor was a “well-known
seasoned issuer” as defined in Rule 405 under the Act
(“ Rule 405 ”); and (B) at the
earliest time after the filing of the Registration Statement that
the Guarantor or another offering participant made a bona fide
offer (within the meaning of Rule 164(h)(2) under the Act) of
the Trust Preferred Securities, the Guarantor was not an
“ineligible issuer” as defined in Rule 405 under
the Act.
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(n) Each of the Guarantor and its
subsidiaries own or possess or have obtained all material
governmental licenses, permits, consents, orders, approvals and
other authorizations necessary to lease or own, as the case may be,
and to operate their respective properties and to carry on their
respective businesses as presently conducted, except where the
failure to possess or obtain the same would not reasonably be
expected to have, individually or in the aggregate, a Material
Adverse Effect.
(o) PricewaterhouseCoopers LLP, who
have certified certain financial statements of the Guarantor and
its subsidiaries, and have audited the Guarantor’s internal
control over financial reporting and management’s assessment
thereof, are independent public accountants as required by the Act
and the rules and regulations of the Commission
thereunder.
(p) The Guarantor 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 Guarantor’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 Guarantor’s internal control over financial
reporting is effective and the Guarantor is not aware of any
material weaknesses in its internal control over financial
reporting. Except as disclosed in the Pricing Prospectus, 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 Guarantor’s internal control over financial
reporting that has materially affected, or is reasonably likely to
materially affect, the Guarantor’s internal control over
financial reporting, except such changes as, individually or in the
aggregate, would not reasonably be expected to have a Material
Adverse Effect.
(q) The Guarantor 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 Guarantor and its subsidiaries is made known to the
Guarantor’s principal executive officer and principal
financial officer by others within those entities; and such
disclosure controls and procedures are effective.
(r) To the Guarantor’s
knowledge, the operations of the Guarantor and its subsidiaries are
currently in compliance with applicable financial record keeping
and reporting requirements of the Currency and Foreign Transactions
Reporting Act of 1970, as amended, the money laundering statutes of
all United States jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any
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governmental agency in the United
States (collectively, the “ Money Laundering Laws
”), except where the failure to so comply would not
reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect; and no formal action, suit or proceeding
by or before any court or governmental agency, authority or body or
any arbitrator involving the Guarantor or any of its subsidiaries
with respect to the Money Laundering Laws is pending or, to the
knowledge of the Guarantor, threatened that would reasonably be
expected to have, individually or in the aggregate, a Material
Adverse Effect.
(s) None of the Guarantor, any of
its subsidiaries or, to the knowledge of the Guarantor, any
director, officer, agent, employee of the Guarantor or any of its
affiliates or any of its subsidiaries is currently subject to any
U.S. sanctions administered by the Office of Foreign Assets
Control of the U.S. Department of the Treasury (“ OFAC
”); and the Guarantor will not use the proceeds of the
offering of the Trust Preferred Securities or the Junior
Subordinated Notes hereunder, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or
other person or entity, for the purpose of financing the activities
of any person currently subject to any U.S. sanctions administered
by OFAC, it being acknowledged and agreed that the Guarantor
intends to use the proceeds of the offering to redeem outstanding
trust preferred securities from Cede & Co., Inc., which
holds such trust preferred securities as the registered holder of
such securities on behalf of the Depository Trust
Company.
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 II, the
number of Trust Preferred Securities set forth opposite such
Underwriter’s name in Schedule I.
As compensation to the Underwriters
for their commitments hereunder, and in view of the fact that the
proceeds from the sale of the Trust Preferred Securities will be
used by the Trust to purchase the Junior Subordinated Notes, the
Guarantor on the Closing Date will pay by wire transfer of
immediately available funds to Goldman, Sachs & Co., for
the accounts of the several Underwriters, the amount per Trust
Preferred Security set forth in Schedule II in respect of the
Trust Preferred Securities to be delivered by the Trust hereunder
on the Closing Date.
3. Delivery and Payment .
Delivery of and payment for the Trust Preferred Securities shall be
made at the office, on the date and at the time specified in
Schedule II (such time and date are herein called the “
Time of Delivery ”), which date and time may be
postponed by agreement between the Underwriters, the Trust and the
Guarantor (such date and time of delivery of and payment for the
Trust Preferred Securities being herein called the “
Closing Date ”). The Trust Preferred Securities to be
purchased by each Underwriter hereunder will be represented by one
or more global
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certificates representing the Trust Preferred
Securities that will be deposited by or on behalf of the Trust with
The Depository Trust Company (“ DTC ”) or its
designated custodian. Delivery of the Trust Preferred Securities
shall be made by causing DTC to credit the Trust Preferred
Securities to the account of Goldman, Sachs & Co. at DTC,
for the respective accounts of the several Underwriters at DTC,
against payment by the several Underwriters through Goldman,
Sachs & Co. of the purchase price thereof to or upon the
order of the Trust in the manner and type of funds specified in
Schedule II.
The Trust and the Guarantor agree to
have the certificates representing the Trust Preferred Securities
available for checking in New York, New York 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
Trust Preferred Securities for sale as set forth in the Pricing
Disclosure Package and the Prospectus.
5. Agreements . (A)
General . The Trust and the Guarantor jointly and severally
agree with the several Underwriters as follows (except that the
agreements in paragraphs (e), (i) and (j) of this
Section 5(A) are made only by the Guarantor and not by the
Trust):
(a) To prepare the Prospectus in a
form approved by you and to file such Prospectus pursuant to
Rule 424(b) under the 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 the Time of Delivery that
shall be disapproved by you promptly after reasonable notice
thereof; 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 Trust Preferred Securities and the Junior
Subordinated Notes, in a form set forth in Schedule III hereto and
to file such term sheet pursuant to Rule 433(d) under the Act
within the time required by such Rule; to file promptly all other
material required to be filed by the Trust or the Guarantor with
the Commission pursuant to Rule 433(d) under the Act; to file
promptly all reports and any definitive proxy or information
statements required to be filed by the Guarantor and (to the extent
not exempt under Rule 12h-5 under the Exchange Act) the Trust with
the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act and for so long as the delivery of a prospectus
(or in lieu thereof, the notice referred to in Rule 173(a)
under the Act) is required in connection with the offering and sale
of the Trust Preferred Securities; to advise you, promptly after
either the Trust or the Guarantor 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
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Prospectus has been filed with the
Commission, of the issuance by the Commission of any stop order or
of any order preventing or suspending the use of any Preliminary
Prospectus or other prospectus in respect of the Trust Preferred
Securities, 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 Trust Preferred Securities
or the Junior Subordinated 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, 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 Trust Preferred Securities 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 Guarantor’s own expense,
as may be necessary to permit offers and sales of the Trust
Preferred Securities 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 Act, to prepare a form of prospectus in a form approved
by you and to file such form of prospectus pursuant to
Rule 424(b) under the Act not later than may be required by
Rule 424(b) under the Act; and to make no further amendment or
supplement to such form of prospectus which shall be disapproved by
you promptly after reasonable notice thereof.
(c) Promptly from time to time to
take such action as the Underwriters may reasonably request to
qualify the Trust Preferred Securities and the Junior Subordinated
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 Trust Preferred Securities and the
Junior Subordinated Notes, provided that in connection
therewith the Guarantor shall not be required to qualify as a
foreign corporation where it is not now so qualified or to file a
general consent to service of process in any jurisdiction where it
is not now so subject.
(d) Prior to noon, New York City
time, on the New York business day next succeeding the date of this
Agreement and from time to time, to furnish the Underwriters with
written and electronic copies of the Prospectus in New York City in
such quantities as you may reasonably request, and, if the delivery
of a prospectus (or in lieu thereof, the notice referred to in
Rule 173(a) under the Act) is required at any time prior to
the expiration of nine months after the time of
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issue of the Prospectus in
connection with the offering or sale of the Trust Preferred
Securities or Junior Subordinated Notes and if at such time any
event shall have occurred as a result of which the Prospectus as
then 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 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 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 Act) in connection with
sales of any of the Trust Preferred Securities or Junior
Subordinated 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 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 Act), an earnings statement (which need not be audited)
of the Guarantor and its subsidiaries, complying with
Section 11(a) of the Act a
