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Exhibit 1.1
SUNTRUST CAPITAL
IX
7.875% Trust Preferred
Securities
(liquidation amount $25 per
security)
fully and unconditionally
guaranteed by
SUNTRUST BANKS,
INC.
Underwriting
Agreement
February 26, 2008
Morgan Stanley & Co.
Incorporated
SunTrust Robinson Humphrey,
Inc.
Citigroup Global Markets Inc.
UBS Securities LLC
As Representatives of the
several Underwriters
named in Schedule I
hereto,
c/o Morgan Stanley & Co.
Incorporated,
1585 Broadway,
New York, New York 10036.
Ladies and Gentlemen:
SunTrust Capital IX, a
statutory trust created under the laws of the State of Delaware
(the “ Trust ”), and SunTrust Banks, Inc., a
Georgia corporation (the “ Guarantor ” or
“ Company ”), 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
”), 24,000,000 of the Trust’s 7.875% 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 pursuant to
Section 2 hereof, up to 3,600,000 additional Trust Preferred
Securities (the “ Optional Trust Preferred Securities
”, and together with the Firm Trust Preferred Securities, the
“ Trust Preferred Securities ”). The proceeds of
the sale of the Firm 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 $600,010,000 principal amount of the Guarantor’s
7.875% Junior Subordinated Notes due 2068 (the “ Junior
Subordinated Notes ”) (and up to an additional
$90,000,000 principal amount of the Junior Subordinated Notes if
the Underwriters elect to exercise the overallotment option), to be
issued pursuant to the Junior Subordinated Indenture, dated as of
October 25, 2006, 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 third
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 “ 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
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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 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 11:00 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
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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.
(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; 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
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Closing Date and the Option
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 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
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.
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(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 and
the Option 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,
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 and
the Option 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 and under this Agreement, the Firm Trust
Preferred Securities, the Trust Common Securities and the Other
Trust Transaction Agreements; 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, of the Guarantor or the 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,
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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.
(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 in an aggregate amount that is less than 1% of the
number of outstanding shares of common stock on the date hereof and
(ii) issuances or other transfers of capital stock in the
ordinary course of business pursuant to the Guarantor’s
employee benefit plans), any material increase in the long-term
debt of the Guarantor and 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 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
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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 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 by the Guarantor, and the Junior
Subordinated Notes to be issued on the Closing Date, when issued,
delivered and paid for at the Closing Date and the Junior
Subordinated Notes to be issued at the Option Closing Date, when
issued, delivered and paid for at the Option 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
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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 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, of the Guarantor or the 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
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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,” “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
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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.
(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 and Ernst & Young 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.
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(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 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.
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 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
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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 Morgan
Stanley & Co. Incorporated, 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 with respect to the Firm Trust Preferred Securities and on the
Option Closing Date with respect to the Optional Trust Preferred
Securities.
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 hereunder on the
Closing Date or the Option Closing Date 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 Morgan Stanley & Co.
Incorporated at DTC, for the respective accounts of the several
Underwriters at DTC, against payment by the several Underwriters
through Morgan Stanley & Co. Incorporated of the purchase
price thereof to or upon the order of the Trust in the manner and
type of funds specified in Schedule II.
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The Trust and the Guarantor
agree to have the certificates representing the Firm Trust
Preferred Securities or the Optional 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 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 (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 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
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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 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
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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 and the rules and regulations
thereunder (including, at the option of the Guarantor,
Rule 158).
(f) During the period
beginning from the date hereof, and continuing to and including the
date 30 days after the date hereof or such earlier time as you may
notify the Company, not to offer, sell, contract to sell, pledge,
grant any option to purchase, make any short sale or otherwise
dispose of, except as provided hereunder, any Trust Preferred
Security, any other beneficial interests in the assets of the Trust
(other than the Trust Common Securities), any similar security
issued by another trust or other limited purpose vehicle, or any
debt securities or preferred stock of the Guarantor, as the case
may be, that are substantially similar to the Trust Preferred
Securities or an
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