|
Exhibit 1.1
FIFTH THIRD CAPITAL TRUST
V
7.25% Trust Preferred
Securities
(liquidation amount $25 per
security)
fully and unconditionally
guaranteed, on a subordinated basis, by
FIFTH THIRD
BANCORP
Underwriting
Agreement
August 1, 2007
Citigroup Global Markets
Inc.,
Merrill Lynch, Pierce,
Fenner & Smith
Incorporated,
UBS Securities
LLC,
As
representatives of the several Underwriters
named in
Schedule I hereto,
c/o UBS Securities
LLC,
677 Washington
Boulevard,
Stamford,
Connecticut 06901.
Ladies and
Gentlemen:
Fifth Third Capital
Trust V, a statutory trust created under the laws of the State of
Delaware (the “ Trust ”), and Fifth Third
Bancorp, an Ohio corporation (the “ Guarantor
”), as sponsor 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 ”), for which
Citigroup Global Markets Inc., Merrill Lynch, Pierce,
Fenner & Smith Incorporated and UBS Securities LLC are
acting as representatives (the “ Representatives
”), $500,000,000 of the Trust’s 7.25% Trust Preferred
Securities, liquidation amount $25 per security, referred to in
Schedule II (the “ Firm Trust Preferred Securities
”) and, at the election of the Underwriters, up to 3,000,000
additional Trust Preferred Securities (the “ Optional
Trust Preferred Securities ”) (the Firm Trust Preferred
Securities and the Optional Trust Preferred Securities which the
Underwriters elect to purchase pursuant to Section 2 hereof
are herein collectively called 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 $500,010,000 principal
amount of the Guarantor’s 7.25% Junior Subordinated Notes due
2067 (the “ Junior Subordinated Notes ”), to be
issued pursuant to the Junior Subordinated Indenture, dated as of
March 20, 1997 (the “ Base Indenture ”),
between the Guarantor and Wilmington Trust Company (the “
Indenture Trustee ”), 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 ”), to be entered into at or before the
Closing Date. If the Underwriters
elect to purchase any
Optional Trust Preferred Securities, the proceeds thereof are to be
invested in additional Junior Subordinated Notes having an
aggregate principal amount equal to the aggregate liquidation
amount of such Optional Trust Preferred Securities.
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 “ Securities Act ”), on
Form S-3 (File Nos. 333-141560 and 333-141560-02) in respect of the
Trust Preferred Securities and the Junior Subordinated 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
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 Guarantor’s knowledge, threatened by the
Commission and no notice of objection of the Commission to the use
of such registration statement 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 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 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
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 Trust Preferred
Securities filed with the Commission pursuant to Rule 424(b)
under the Securities Act and any documents filed
-2-
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 Securities 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 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 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 Indenture Trustee or (ii) 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 11:10 A.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 or on behalf of any Underwriter 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
-3-
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 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 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 Guarantor by any 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).
(g) The Trust has conducted and will
conduct no business other than the transactions contemplated by
this Agreement and the 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,
Wilmington Trust Company, as Property Trustee, Wilmington Trust
Company, as Delaware Trustee, and the individuals named therein, as
Administrative Trustees (collectively, the “ Trustees
,” and such 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.
-4-
(h) At the Closing Date, the Firm Trust
Preferred Securities, and at the Option Closing Date, the Optional
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 Firm Trust Preferred
Securities or the Optional Trust Preferred 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(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 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 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 Firm Trust Preferred Securities, the Trust Common
Securities and the Other Trust Transaction Agreements, 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 Trust Preferred Securities and
to perform its obligations 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 material breach or violation of any of the terms or
provisions of, or constitute a default
-5-
under, any of the
Other Trust Transaction Documents or (ii) result in any
violation of any statute or any order, rule or regulation of any
court or governmental agency or body located in the United States
having jurisdiction over the Trust or any of its 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 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 hereby or thereby, except such as have
been obtained under the Securities 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.
(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) The Guarantor 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 Guarantor
and its subsidiaries, taken as a whole; and each subsidiary of the
Guarantor 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 Guarantor and its subsidiaries, taken as a whole.
(b) The Guarantor 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” ).
(c) The deposit accounts of each of the
bank subsidiaries of Fifth Third 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
Fifth Third, threatened.
(d) The Guarantor and each of its
“significant subsidiaries” (as such term is defined 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
-6-
laws administered
by the Board of Governors of the Federal Reserve System (the
“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 Guarantor 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 Guarantor and its subsidiaries, taken as a whole.
(e) The Guarantor has an authorized
capitalization as set forth in the 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 and except as
otherwise set forth in the Pricing Prospectus) are owned directly
or indirectly by the Guarantor, free and clear of all liens,
encumbrances, equities or claims.
(f) Each of the Administrative Trustees
is an employee of or affiliated with the Guarantor and, at each
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, fraudulent transfer,
reorganization, moratorium and other laws of general applicability
relating to or affecting creditors’ rights and to general
equity principles.
(g) The Junior Subordinated Notes have
been duly authorized by the Guarantor, 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,
the Declaration of Trust and the Guarantee Agreement (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, at the Closing Date, the Indenture, the Guarantee Agreement
and the Declaration of Trust each will be duly qualified under the
Trust Indenture Act 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 other laws of
general applicability relating to or affecting creditors’
rights and to general equity principles; and the Junior
Subordinated Notes, the Indenture and the Other Guarantor
Transaction Agreements will conform in all material respects to the
descriptions thereof in the Pricing Disclosure Package and the
Prospectus.
(h) This Agreement has been duly
authorized, executed and delivered by the Guarantor.
-7-
(i) The Guarantor has all power and
authority (corporate and other) necessary to execute and deliver
the Guarantor Transaction Agreements and to perform its obligations
thereunder; the execution, delivery and performance of the
Guarantor Transaction Agreements by the Guarantor and compliance
with the provisions hereof and thereof by the Guarantor will not
constitute a breach of or default under, the Second Amended
Articles of Incorporation or Code of Regulations of the Guarantor
or any of its Significant Subsidiaries, or any material agreement,
indenture or other instrument to which the Guarantor or any of its
subsidiaries 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 of its subsidiaries
or any property of the Guarantor 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
Guarantor and it subsidiaries, taken as a whole, or on the ability
of the Guarantor to perform its obligations hereunder or its
obligations under the Guarantor Transaction Agreements.
(j) 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 Trust Preferred Securities by the Underwriters
in the manner contemplated herein and in the Final
Prospectus.
(k) (i) Neither the Guarantor nor any of
its 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
Guarantor or any of its 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 Guarantor and its subsidiaries, otherwise than as set forth or
contemplated in the Pricing Prospectus.
(l) The Guarantor 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 Guarantor and its Significant
Subsidiaries; and any real property and buildings held under lease
by the Guarantor 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 Guarantor
and its Significant Subsidiaries.
-8-
(m) The statements set forth in the
Pricing Prospectus and the Prospectus under the captions “The
Trust,” “Description of the Trust Preferred
Securities,” “Description of the Junior Subordinated
Notes,” “Description of the Guarantee,”
“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.
(n) Neither the Guarantor nor any
subsidiary 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, 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
Guarantor 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 (n), reasonably be expected to result in a material
adverse effect on the financial condition, shareholders’
equity or results of operations of the Guarantor and its
subsidiaries, taken as a whole.
(o) The Guarantor 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 Guarantor and its subsidiaries, taken as a
whole.
(p) The Guarantor 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.
(q) 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 its
subsidiaries is a party or of which any property of the Trust or
the Guarantor or any of the Guarantors’ subsidiaries is the
subject which, if determined adversely to the Guarantor or any of
its subsidiaries, would individually or in the aggregate reasonably
be expected to have a material adverse effect on the financial
condition, stockholders’
-9-
equity or results
of operations of the Guarantor and its subsidiaries, taken as a
whole, or on the ability of the Guarantor to perform its
obligations hereunder or its obligations under the Guarantor
Transaction Documents; and, to the best of the Guarantor’s
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(r) 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.
(s) (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
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; 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.
(t) Deloitte & Touche 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
Securities Act and the rules and regulations of the Commission
thereunder.
(u) 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.
(v) 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
Guarantors’ internal control over financial reporting that
has materially affected, or is reasonably likely to materially
affect, the Guarantor’s internal control over financial
reporting.
(w) The Guarantor 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
-10-
Guarantor,
including its consolidated 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 Trust Preferred 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 Trust Preferred
Securities as provided below, the Guarantor and the Trust agree to
issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from
the Trust at the purchase price set forth in Schedule II hereto
that portion of the number of Optional Trust Preferred Securities
as to which such election shall have been exercised.
The Trust hereby
grants to the Underwriters the right to purchase at their election
up to the number of Optional Trust Preferred Securities set forth
opposite the name of such Underwriter in Schedule I hereto on the
terms referred to in the first paragraph of this Section 2 for
the sole purpose of covering sales of securities in excess of the
aggregate principal amount of Firm Trust Preferred Securities. Any
such election to purchase Optional Trust Preferred Securities may
be exercised by written notice from you to the Trust, given within
a period of 30 calendar days after the date of this Agreement,
setting forth the aggregate number of Optional Trust Preferred
Securities to be purchased and the date on which such Optional
Trust Preferred Securities are to be delivered, as determined by
you but in no event earlier than the First Time of Delivery (as
defined in Section (3) hereof) or, unless you and the Trust
otherwise agree in writing, earlier than two or later than ten
business days after the date of such notice.
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 UBS Securities LLC,
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 Firm 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
“ First 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 Firm Trust Preferred Securities being herein called the
“ Closing Date ”). Delivery with respect to the
Optional Trust Preferred Securities, if any, shall be made on the
date and at the time given by the Representatives of the
Underwriters’ election to purchase the Optional Trust
Preferred Securities, or at such other time and date as the
Representatives, the Trust and the Guarantor may agree upon in
writing (such time and date, if not the First Time of Delivery, is
herein called the “ Second Time of Delivery ”,
and each such time and date for delivery is herein called a “
Time of Delivery ”). The date and time of delivery of
and payment for the Optional Trust Preferred Securities is called
herein the “ Option Closing Date ”. The Trust
Preferred Securities to be purchased by each Underwriter
-11-
hereunder will be represented
by one or more global 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 UBS Securities LLC at DTC, for the
respective accounts of the several Underwriters at DTC, against
payment by the several Underwriters through UBS Securities 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 Trust
Preferred Securities available for checking in New York City 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.
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 (d), (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
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 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
Securities 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 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 Trust Preferred
Securities, 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; 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 Prospectus has been filed with the Commission, of the
issuance by the Commission of any stop order suspending the
effectiveness of the 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
Trust Preferred Securities, of any notice of objection of the
Commission to the use of the Registration Statement or any
post-effective amendment
-12-
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, 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 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 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 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 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 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 Guarantor 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 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 Securities Act) is delivered, not
misleading, or, if for
-13-
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 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 Securities Act.
(e)
|
