Exhibit 1.1
WACHOVIA CAPITAL TRUST
IV
6.375% Trust Preferred
Securities
(liquidation amount $25 per security)
fully and unconditionally guaranteed
by
WACHOVIA CORPORATION
Underwriting
Agreement
February 8, 2007
Wachovia Capital Markets,
LLC
As representative (the
“Representative”) of the several
underwriters named in Schedule
I
Two Wachovia Center
301 South Tryon Street
Charlotte, North Carolina 28288
Ladies and Gentlemen:
Wachovia Capital
Trust IV, a statutory trust created under the laws of the State of
Delaware (the “ Trust ”), and Wachovia
Corporation, a North Carolina 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 the
underwriters named in Schedule I (the “ Underwriters
”) the Trust’s 6.375% Trust Preferred Securities,
liquidation amount $25 per security, referred to in Schedule II
(the “ Trust Preferred Securities ”). The Trust
Preferred Securities consist of (i) an aggregate of 32,000,000
Trust Preferred Securities (the “ Firm Securities
”) and (ii) at the election of the Underwriters, up to
an aggregate of 4,800,000 additional Trust Preferred Securities as
provided in Section 2 (the “ Optional Securities
”). The proceeds of the sale of the Firm 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 $800,010,000 principal amount of the
Guarantor’s 6.375% Extendible Long Term Subordinated Notes
(the “ LoTS SM
”), to be
issued pursuant to an indenture, dated as of February 1, 2006
(the “ Base Indenture ”), and a second
supplemental indenture (the “ Supplemental Indenture
” and, together with the Base Indenture, the “
Indenture ”), to be entered into at or before the
Closing Date (as defined in Section 3), each between the
Guarantor and U.S. Bank National Association, as trustee (the
“ Indenture Trustee ”). If the Underwriters
elect to purchase any Optional Securities, the proceeds thereof
shall are to be invested in additional LoTS
SM
having
an
aggregate principal amount equal to the
aggregate liquidation amount of such Optional
Securities.
Capitalized terms used herein and
not otherwise defined but that are defined in the Pricing
Prospectus (as defined in Section 1(A)(a)), have the meanings
specified in the Pricing Prospectus.
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 Nos.
333-140491) in respect of the Trust Preferred Securities and
related securities (including the LoTS SM
and the
Guarantee (collectively, the “ Related
Securities” )) 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; and no stop order suspending
the effectiveness of such registration statement or any part
thereof has been issued and no proceeding for that purpose has been
initiated or 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 prospectus filed as part of such registration statement,
in the form in which it was included in such registration statement
on the effective date of such registration statement, is
hereinafter called the “ Effective Date 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
after the Effective Date Prospectus is hereinafter called a “
Post-Effective Date Preliminary Prospectus
”; the various parts of such registration statement,
including all exhibits thereto but excluding 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 Effective Date
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 Effective Date Prospectus, the Pricing Prospectus, any
Post-Effective Date Preliminary Prospectus or the Prospectus shall
be deemed to refer to and include the documents incorporated by
reference therein pursuant to
-2-
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 Effective Date Prospectus, any
Post-Effective Date 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 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 Effective Date Prospectus, such
Post-Effective Date 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 Post-Effective Date Preliminary
Prospectus or any Issuer Free Writing Prospectus has been issued by
the Commission, and each of the Effective Date Prospectus and each
Post-Effective Date 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 Representative expressly for use
therein.
(c) For the purposes of this
Agreement, the “ Applicable Time ” is
3:55 p.m. (Eastern 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 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
-3-
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 Representative 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
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; for so
long as the delivery of a prospectus is required in connection with
the offering and sale of the Trust Preferred Securities (or in lieu
thereof, the notice referred to in Rule 173(a) under the Act), 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 Representative 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.
(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
Representative expressly for use therein.
-4-
(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 Prospectus and the Prospectus and to execute and
deliver and perform its obligations under the Trust Transaction
Agreements (as defined in paragraph (A)(g) of this
Section 1).
(g) The Trust has conducted and will
conduct no business other than the transactions contemplated by
this Agreement and the Amended and Restated Trust Agreement in
substantially the form previously provided to you and to be entered
into at or before the Closing Date among the Guarantor, as
depositor, 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
Amended and Restated Trust Agreement, the “ Trust
Agreement ”) 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 Trust Agreement and the Certificate Depository
Agreement (as defined in the Trust Agreement and, together with
this Agreement, the “ Trust Transaction Agreements
”); 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; and the Trust is not
a party to or subject to any action, suit or proceeding of any
nature and, to the best of the Guarantor’s and the
Trust’s knowledge, no such action, suit or proceeding is
threatened against the Trust or its property.
(h) At the Closing Date, the Firm
Securities, and at the Option Closing Date, the Optional
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
Trust Agreement, and the Firm Securities or the Optional
Securities, as the case may be, 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(f)(vi)) beneficial interests in the Trust entitled
to the benefits of the Trust Agreement 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
-5-
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, the
Certificate Depository Agreement will have 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, fraudulent transfer, reorganization, moratorium and
similar 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 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 Firm Securities, the Trust
Common Securities and the Certificate Depository Agreement and to
perform its obligations hereunder and thereunder; at the Option
Closing Date, the Trust will have all power and authority necessary
to execute and deliver the Optional Securities and to perform its
obligations thereunder; the issuance by the Trust of the Trust
Preferred Securities and the Trust Common Securities, the purchase
by the Trust of the LoTS SM
, and
the execution and delivery by the Trust of the Trust Transaction
Agreements and the performance by it of its obligations thereunder
will not result in any violation of or conflict with any law,
order, rule, regulation or decree of any court, governmental agency
or authority located in the United States having jurisdiction over
the Guarantor, the Trust or any of their properties; and no
consent, authorization or order of, or filing or registration with,
any court or governmental agency is required for the issue and sale
of the Trust Preferred Securities and the Trust Common Securities
by the Trust, the purchase by the Trust of the LoTS
SM
, or
the execution, delivery or performance by the Trust of Certificate
Depository Agreement or the consummation by the Trust of the
transactions contemplated thereby, 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.
(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
-6-
“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) The Guarantor has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation and 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.
(b) The Trust Agreement has been
duly authorized by the Guarantor, as depositor, and, at the Closing
Date, will have been duly executed and delivered by the Guarantor
and will constitute a valid and legally binding instrument of the
Guarantor, 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 Trust Agreement will conform
in all material respects to the description thereof in the Pricing
Disclosure Package and the Prospectus.
(c) Each of the Administrative
Trustees is an employee of or affiliated with the Guarantor and, at
the Closing Date, the Trust Agreement 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, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and
to general equity principles.
(d) The LoTS
SM
have
been duly authorized, and, when issued, delivered and paid for at
the Closing Date or the Option Closing Date, as the case may be, 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 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,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors’
rights and to general equity principles; and the LoTS
SM
and the
Indenture will conform in all material respects to the descriptions
thereof in the Pricing Disclosure Package and the
Prospectus.
-7-
(e) Each of the
Trust Agreement and the Guarantee (collectively, the “
Other Guarantor Transaction Agreements ” and, together
with this Agreement, the Indenture and the LoTS
SM
, the
“ Guarantor Transaction Agreements ”) has been
duly authorized by the Guarantor and, when 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,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors’
rights and to general equity principles.
(f) This Agreement has been duly
authorized, executed and delivered by the Guarantor.
(g) The Guarantor has all corporate
power and authority necessary to execute and deliver and to perform
its obligations under the Guarantor Transaction Agreements.
Compliance with the provisions thereof by the Guarantor will not
constitute a breach of or default under the corporate charter or
by-laws of the Guarantor, or, to the best of the Guarantor’s
knowledge, 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,
in each case, 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 by the Guarantor of the Guarantor Transaction
Agreements, except such as have been made or obtained or will be
made or obtained at or before the Closing Date and except such as
may be required under applicable state securities or “blue
sky” laws.
(h) (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 satisfied the conditions of being a
“well-known seasoned issuer” as defined in Rule 405
under the Act; 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.
-8-
(i) 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.
(j) 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.
(k) 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.
2. Purchase and Sale .
Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, (a) 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 Firm Securities set forth
opposite such Underwriter’s name in Schedule I and
(b) in the event and to the extent that the Underwriters shall
exercise the election to purchase Optional Shares, as provided
below, 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, such Underwriter’s pro rata share
(based on the respective maximum number of Optional Shares set
forth next to the Underwriters’ names in Schedule I) of that
portion of the total number of Optional Shares as to which such
election shall have been exercised on behalf of all the
Underwriters.
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 LoTS
SM
, the
Guarantor on the Closing Date and the Option Closing Date will pay
by wire transfer of immediately available funds to Wachovia Capital
Markets, LLC, for the accounts of the several Underwriters, the
amount per Trust Preferred Security set forth in Schedule II
in respect of the Trust
-9-
Preferred Securities to be delivered by the
Trust hereunder on the Closing Date or the Option Closing Date, as
the case may be.
3. Delivery and Payment .
Delivery of and payment for the Firm Securities shall be made at
the office, on the date and at the time specified in Schedule II,
which date and time may be postponed by agreement between Wachovia
Capital Markets, LLC, on behalf of the Underwriters, the Trust and
the Guarantor (such date and time of delivery of and payment for
the Firm Securities being herein called the “ Closing
Date ”). Delivery of and payment for the Optional
Securities, if any, shall be made in the manner and at the time and
date specified by the Representative in the written notice given by
the Representative of the Underwriters’ election to purchase
such Optional Securities, or at such other time and date as the
Representative and the Guarantor may agree upon in writing (such
date and time of delivery of and payment for the Optional
Securities being herein called the “ Option Closing
Date ”). The Trust Preferred Securities to be purchased
by each Underwriter hereunder will be represented by one or more
global certificates representing 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 Wachovia Capital Markets, LLC at DTC, for the respective
accounts of the several Underwriters at DTC, against payment by the
several Underwriters through Wachovia Capital Markets, LLC 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 Firm Securities and the
Optional 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 or the Option Closing Date, as the
case may be.
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.
The Trust hereby grants to each of
the Underwriters the right, which shall be deemed to be part of
this Agreement for all purposes, to purchase at their election up
to the number of Optional Securities set forth opposite the name of
such Underwriter in Schedule I on the terms referred to in
Section 3. Any such election to purchase Optional Securities
may be exercised by written notice from the Representative to the
Trust given within a period of 30 calendar days after the date of
this Agreement, setting forth the aggregate number of Optional
Securities to be purchased by all Underwriters and the date on
which such Optional Securities are to be delivered, as determined
by the Representative, but in no event earlier than the Closing
Date or, unless the Representative and the Guarantor otherwise
agree in writing, no earlier than two or later than ten business
days after the date of such notice.
-10-
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) and (g) of this
Section 5(A) are made only by the Guarantor and not by the
Trust):
(a) To prepare the Prospectus in a
mutually agreed form 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; for so long as the delivery of a prospectus is required
in connection with the offering and sale of Trust Preferred
Securities (or in lieu thereof, the notice referred to in Rule
173(a) under the Act), to make no further amendment or any
supplement to the Registration Statement or the Prospectus unless
they have furnished to you a copy for your review prior to filing
or transmission for filing of the same with or to the Commission;
for so long as the delivery of a prospectus is required in
connection with the offering and sale of Trust Preferred Securities
(or in lieu thereof, the notice referred to in Rule 173(a) under
the Act), 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 Securities, in a form approved by you 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; for so long
as the delivery of a prospectus is required in connection with the
offering and sale of Trust Preferred Securities (or in lieu
thereof, the notice referred to in Rule 173(a) under the Act),
to file promptly all reports and any definitive proxy or
information statements required to be filed by the Trust or
Guarantor with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
the Prospectus; 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 issuance by
the Commission of any stop order or of any order preventing or
suspending the use of the Effective Date Prospectus or any
Post-Effective Date Preliminary Prospectus or other prospectus in
respect of the 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 any of the Related Securities (as defined
in Section 1(A)(a)) 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
Trust Preferred
-11-
Securities (or in lieu thereof, the
notice referred to in Rule 173(a) under the Act), in the event of
the issuance of any stop order or of any order preventing or
suspending the use of the Effective Date Prospectus or
Post-Effective Date Preliminary Prospectus or other prospectus or
suspending any such qualification, to promptly use their reasonable
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 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 mutually agreed
form 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 except as mutually agreed.
(c) If by the third anniversary (the
“ Renewal Deadline ”) of the initial effective
date of the Registration Statement, the delivery of a prospectus is
required in connection with the offering and sale of Trust
Preferred Securities (or in lieu thereof, the notice referred to in
Rule 173(a) under the Act) and any of the Trust Preferred
Securities remain unsold by the Underwriters, the Trust and the
Guarantor will file, if they have not already done so and are
eligible to do so, a new automatic shelf registration statement
relating to the Trust Preferred Securities, in a form reasonably
satisfactory to you. If at the Renewal Deadline the Guarantor is no
longer eligible to file an automatic shelf registration statement,
the Trust and the Guarantor will, if they have not already done so,
file a new shelf registration statement relating to such unsold
Trust Preferred Securities, in a form reasonably satisfactory to
you and will use their commercially reasonable efforts to cause
such registration statement to be declared effective within
180 days after the Renewal Deadline. The Trust and the
Guarantor will take all other action reasonably necessary or
appropriate to permit the public offering and sale of the Trust
Preferred Securities to continue as contemplated in the expired
registration statement relating to the Trust Preferred Securities.
References herein to the Registration Statement shall include such
new automatic shelf registration statement or such new shelf
registration statement, as the case may be.
(d) If, at any time when a
prospectus relating to the Trust Preferred Securities or the
Related Securities 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
-12-
or supplement the Prospectus to
comply with the Act or the rules and regulations of the Commission
thereunder, after receiving notice or becoming aware of the
foregoing, 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(A), an amendment or
supplement that will correct such statement or omission or effect
such compliance.
(e) The Guarantor will make
generally available to its security holders and to the
Representative 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 and the rules and
regulations thereunder.
(f) Each of the Guarantor and the
Trust will use its reasonable 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 and all amendments of and supplements to the Prospectus
as may be reasonably requested, 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 Act) is required in connection with the
offering and sale of the Trust Preferred Securities or Related
Securities and if at the time of such offering or sale 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
