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Exhibit 1.1
$250,000,000
The Colonial BancGroup,
Inc.
8.875% Subordinated Notes
due 2038
Underwriting
Agreement
February 28,
2008
CITIGROUP
GLOBAL MARKETS INC
.
LEHMAN
BROTHERS INC .
MORGAN
STANLEY & CO .
INCORPORATED
UBS
SECURITIES LLC
WACHOVIA
CAPITAL MARKETS ,
LLC
As Representatives of the
several Underwriters
named in Schedule I
hereto
c/o Citigroup Global Markets
Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
The Colonial BancGroup, Inc.,
a Delaware corporation (the “ Company ”),
proposes to issue and sell $250,000,000 aggregate principal amount
of its 8.875% Subordinated Notes due 2038 (the “ Notes
”) to the several underwriters named on Schedule I hereto
(the “ Underwriters ”), for which Citigroup
Global Markets Inc., Lehman Brothers Inc., Morgan
Stanley & Co. Incorporated, UBS Securities LLC and
Wachovia Capital Markets, LLC are acting as representatives (the
“ Representatives ”). The Notes will
(i) have terms and provisions which are summarized in the
Disclosure Package as of the Applicable Time and the Prospectus
dated as of the date hereof (each as defined in Section 1(a)
hereof) and (ii) be issued pursuant to a Subordinated
Indenture dated as of March 1, 2008 (the “
Indenture ”) between the Company and The Bank of New
York Trust Company, N.A., as Trustee (the “ Trustee
”). This agreement (this “ Agreement ”) is
to confirm the agreement concerning the purchase of the Notes from
the Company by the Underwriters.
1. Representations,
Warranties and Agreements of the Company . The Company
represents and warrants to, and agrees with, each Underwriter
that:
(a) A registration statement
on Form S-3 in respect of the Notes (File No. 333-120166)
(i) has been prepared by the Company in conformity with the
requirements of the Securities Act of 1933, as amended (the “
Securities Act ”), and the rules and regulations (the
“ Rules and Regulations ”) of the Securities and
Exchange Commission (the “ Commission ”)
thereunder and (ii) has become effective under the Securities
Act. Copies of such registration statement and any amendment
thereto (excluding exhibits to such registration statement but
including all documents incorporated by reference in each
prospectus contained therein) have been delivered by the Company to
the Representatives; and no other document with respect
to
such registration statement or any such
document incorporated by reference therein has heretofore been
filed or transmitted for filing with the Commission. For purposes
of this Agreement, the following terms have the specified
meanings:
“ Applicable
Time ” means 3:00 p.m. (New York City time) on the date
of this Agreement;
“ Base
Prospectus ” means the base prospectus filed as part of
the Registration Statement, in the form in which it has most
recently been amended on or prior to the date hereof, relating to
the Notes;
“Disclosure
Package ” means, as of the Applicable Time, the most
recent Preliminary Prospectus, together with each Issuer Free
Writing Prospectus filed or used by the Company on or before the
Applicable Time and identified on Schedule II hereto, other than a
road show that is an Issuer Free Writing Prospectus under Rule 433
of the Rules and Regulations;
“ Effective Date
” means any date as of which any part of the Registration
Statement or any post-effective amendment thereto relating to the
Notes became, or is deemed to have become, effective under the
Securities Act in accordance with the Rules and Regulations
(including pursuant to Rule 430B of the Rules and
Regulations);
“ Final Term
Sheet ” means the term sheet prepared pursuant to
Section 5(a) of the Agreement and substantially in the form
attached in Schedule III hereto;
“ Issuer Free
Writing Prospectus ” means each “free writing
prospectus” (as defined in Rule 405 of the Rules and
Regulations) prepared by or on behalf of the Company or used or
referred to by the Company in connection with the offering of the
Notes, including the Final Term Sheet;
“ Preliminary
Prospectus ” means any preliminary prospectus relating to
the Notes, including the Base Prospectus and any preliminary
prospectus supplement thereto, included in the Registration
Statement or as filed with the Commission pursuant to Rule 424(b)
of the Rules and Regulations and provided to the Representatives
for use by the Underwriters;
“ Prospectus
” means the final prospectus relating to the Notes, including
the Base Prospectus and the final prospectus supplement thereto
relating to the Notes, as filed with the Commission pursuant to
Rule 424(b) of the Rules and Regulations and provided to the
Representatives for use by the Underwriters; and
“ Registration
Statement ” means, collectively, the various parts of the
above-referenced registration statement, each as amended as of the
Effective Date for such part, including any Preliminary Prospectus
or the Prospectus and all exhibits to such registration
statement.
Any reference to the “
most recent Preliminary Prospectus ” will be deemed to
refer to the latest Preliminary Prospectus included in the
Registration Statement or filed pursuant to Rule 424(b) of the
Rules and Regulations prior to or on the date hereof (including,
for purposes of this Agreement, any documents incorporated by
reference therein prior to or on the date of this Agreement). Any
reference to any Preliminary Prospectus or the Prospectus will be
deemed to refer to and include any documents incorporated by
reference therein pursuant to Form S-3 under the Securities Act as
of the date of such Preliminary Prospectus or the Prospectus, as
the case may be. Any reference to any amendment or supplement to
any Preliminary Prospectus or the Prospectus will be deemed to
refer to and include any document filed under the Securities
Exchange Act of 1934, as amended (the “ Exchange Act
”), after the date of such Preliminary Prospectus or the
Prospectus, as the case may be, and incorporated by reference in
such Preliminary Prospectus or the Prospectus, as the case may be;
and any reference to any amendment to the Registration Statement
will be deemed to include any annual report of the Company on Form
10-K filed with the Commission pursuant to Section 13(a) or
15(d) of the Exchange Act after the Effective Date that is
incorporated by reference in the Registration Statement.
(b) The Commission has not
issued any order preventing or suspending the effectiveness of the
Registration Statement or preventing or suspending the use of any
Preliminary Prospectus, any Issuer Free Writing Prospectus or the
Prospectus; and no proceeding for any such purpose or pursuant to
Section 8A of the Securities Act against the Company or
related to the offering has been instituted or threatened by the
Commission. The Commission has not issued any order directed to any
document incorporated by reference in the most recent Preliminary
Prospectus or the Prospectus, and no proceeding has been instituted
or threatened by the Commission with respect to any document
incorporated by reference in the most recent Preliminary Prospectus
or the Prospectus. The Commission has not notified the Company of
any objection to the use of the form of the Registration
Statement.
(c) The Company has not been,
and continues not to be, an “ineligible issuer” (as
defined in Rule 405 of the Rules and Regulations), at all times
relevant under the Securities Act in connection with the offering
of the Notes.
(d) The Registration
Statement conformed on the Effective Date and any amendment to the
Registration Statement filed after the date hereof will conform, in
all material respects to the requirements of the Securities Act and
the Rules and Regulations. The most recent Preliminary Prospectus
conforms on the date hereof, and the Prospectus, and any amendment
or supplement thereto, will conform as of its date and as of the
Closing Date, in all material respects to the requirements of the
Securities Act and the Rules and Regulations. The documents
incorporated by reference in the most recent Preliminary Prospectus
or 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, and any further
documents so filed and incorporated by reference in the Prospectus
or any further amendment or supplement thereto, when such documents
become effective or are filed with the Commission, as the case may
be,
will conform, in all material respects
to the requirements of the Securities Act or the Exchange Act, as
applicable, and the Rules and Regulations; and no such documents
have been filed with the Commission since the close of business of
the Commission on the Business Day immediately prior to the date
hereof.
(e) The Registration
Statement did not, as of the Effective Date, contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that no
representation or warranty is made as to information contained in
or omitted from the Registration Statement in reliance upon and in
conformity with written information furnished to the Company
through the Representatives by or on behalf of any Underwriter
specifically for inclusion therein (which information is specified
in Section 12 hereof).
(f) The Disclosure Package
did not, as of the Applicable Time, contain any untrue statement of
a material fact or omit to state any 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 no representation or
warranty is made as to information contained in or omitted from the
Disclosure Package in reliance upon and in conformity with written
information furnished to the Company through the Representatives by
or on behalf of any Underwriter specifically for inclusion therein
(which information is specified in Section 12
hereof).
(g) The Prospectus, and any
amendment or supplement thereto, will not, as of its date and on
the Closing Date, contain any untrue statement of a material fact
or omit to state any 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 no representation or warranty is
made as to information contained in or omitted from the Prospectus
in reliance upon and in conformity with written information
furnished to the Company through the Representatives by or on
behalf of any Underwriter specifically for inclusion therein (which
information is specified in Section 12 hereof).
(h) The documents
incorporated by reference in any Preliminary Prospectus or the
Prospectus did not, and any further documents incorporated by
reference therein will not, when filed with the Commission, contain
any untrue statement of a material fact or omit to state any
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.
(i) Each of the Company and
Colonial Bank, N.A. (the “Bank”) has been duly
incorporated or organized, as the case may be, and is validly
existing and in good standing as a corporation or other business
entity under the laws of its jurisdiction of incorporation or
organization, with all power and authority necessary to conduct the
business in which it is engaged or to own or lease its properties;
and each of the Company and the Bank is duly qualified to do
business and in good standing as a foreign corporation or other
business entity in each jurisdiction in which its ownership or
lease of property or the conduct of its business requires such
qualification, except where the failure to be so qualified or in
good standing would
not, individually or in the aggregate,
reasonably be likely to have a material adverse effect on
(i) the condition (financial or otherwise), results of
operations, earnings or business of the Company and its
subsidiaries taken as a whole or (ii) the ability of the
Company to perform obligations contemplated by the most recent
Preliminary Prospectus (a “ Material Adverse Effect
”). The Bank is the only Significant Subsidiary (as such term
is defined in Section 16 below) of the Company.
(j) The Company has been duly
registered as a bank holding company and qualified as a financial
holding company under the applicable provisions of the Bank Holding
Company Act of 1956, as amended. The Company and each of its
Subsidiaries (as such term is defined in Section 16 below) are
in compliance in all material respects with all applicable laws
administered by and regulations of the Board of Governors of the
Federal Reserve System (the “ Federal Reserve Board
”), the Federal Deposit Insurance Corporation (the “
FDIC ”), the Office of the Comptroller of the Currency
(the “ OCC ”) and any other federal or state
bank regulatory authority (collectively, the “ Bank
Regulatory Authorities ”) with jurisdiction over the
Company or any of its Subsidiaries, other than where such failures
to comply would not, individually or in the aggregate, reasonably
be likely to have a Material Adverse Effect. Neither the Company
nor any of its Subsidiaries is a party to any written agreement or
memorandum of understanding with, or a party to, any commitment
letter or similar undertaking to, or is subject to any order or
directive by, or is a recipient of an extraordinary supervisory
letter from, or has adopted any board resolutions at the request
of, any Bank Regulatory Authority which restricts materially the
conduct of its business, or in any manner relates to its capital
adequacy, its credit policies or its management, nor have any of
them been advised by any Bank Regulatory Authority that it is
contemplating issuing or requesting (or is considering the
appropriateness of issuing or requesting) any such order, decree,
agreement, memorandum of understanding, extraordinary supervisory
letter, commitment letter or similar submission, or any such board
resolutions.
(k) The Company has an
authorized equity capitalization as set forth in the most recent
Preliminary Prospectus and the Prospectus.
(l) All of the outstanding
shares of capital stock of the Bank have been duly authorized and
validly issued and are fully paid and nonassessable. Except as
disclosed in the most recent Preliminary Prospectus and the
Prospectus, all of the outstanding shares of capital stock of the
Bank are owned directly or indirectly by the Company, free and
clear of any claim, lien, encumbrance, security interest,
restriction upon voting or transfer, preemptive rights or any other
claim of any third party, except as would not, individually or in
the aggregate, reasonably likely to have a Material Adverse
Effect.
(m) This Agreement has been
duly authorized, executed and delivered by the Company.
(n) The Indenture has been
duly authorized, executed and delivered by the Company and is a
valid and binding agreement of the Company enforceable against the
Company in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization or
similar laws relating to or affecting creditors’
rights
generally and by general equitable
principles (regardless of whether such enforceability is considered
in a proceeding in equity or at law). The Indenture (i) has
been duly qualified under the Trust Indenture Act of 1939, as
amended (the “ Trust Indenture Act ”),
(ii) complies as to form with the requirements of the Trust
Indenture Act and (iii) conforms to the description thereof in
the most recent Preliminary Prospectus and the
Prospectus.
(o) The Notes have been duly
authorized by the Company and, when executed by the Company and
authenticated by the Trustee in accordance with the Indenture and
delivered to the Underwriters against payment therefor in
accordance with the terms of this Agreement, will be validly issued
and delivered, and will constitute valid and binding obligations of
the Company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms,
except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization or other similar laws relating to or
affecting the enforcement of creditors’ rights generally and
by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law),
and the Notes conform, or will conform, to the description thereof
in the Disclosure Package and the Prospectus.
(p) None of the execution or
delivery of this Agreement by the Company, the consummation of the
transactions contemplated hereby, the execution and delivery of the
Indenture and the Notes by the Company or compliance by the Company
with all of the provisions of this Agreement, the Indenture and the
Notes will result in a breach or violation of, or constitute a
default under, or result in the creation or imposition of any
claim, lien, encumbrance or security interest upon any property or
asset of the Company or any of its Subsidiaries under, (i) the
certificate of incorporation, by-laws, partnership agreement or
other constitutive documents of the Company or any of its
Subsidiaries, (ii) any loan agreement, indenture, mortgage,
deed of trust or other agreement or instrument to which the Company
or any of its Subsidiaries is a party or by which any of them is
bound or to which any of their properties is subject, or
(iii) any law or any rule, regulation, order or decree of any
governmental agency or body or court having jurisdiction over the
Company or any of its Subsidiaries or any of their respective
properties or assets, except in the case of clauses (ii) and
(iii) above where such conflict, breach, violation or default
would not, individually or in the aggregate, reasonably be likely
to have a Material Adverse Effect.
(q) Neither the filing of the
Registration Statement, the most recent Preliminary Prospectus or
the Prospectus nor the offer or sale of the Notes as contemplated
by this Agreement gives rise to any rights, other than those which
have been duly waived or satisfied, for or relating to the
registration of any securities of the Company.
(r) Neither the Company nor
any of its Subsidiaries (i) is in violation or breach of its
certificate of incorporation, by-laws, partnership agreement or
other constitutive documents, (ii) is in default, and no event
has occurred that, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of
any loan agreement, indenture, mortgage, deed of trust or other
agreement or instrument to which it is a party or by which it is
bound or to which any of its properties or assets is subject,
(iii) is in violation of any
law or any rule, regulation, order or
decree of any governmental agency or body or court having
jurisdiction over the Company or any of its Subsidiaries or its
respective property or assets or (iv) has failed to obtain any
license, permit, certificate, franchise or other governmental
authorization or permit necessary for the conduct of its business
or the ownership or holding of its property, except in the case of
clauses (ii), (iii) and (iv), to the extent any such
violation, breach, default or failure would not, individually or in
the aggregate, have a Material Adverse Effect.
(s) No consent, approval,
order or authorization of any governmental agency or body or court
is required in connection with the consummation of the transactions
contemplated by this Agreement, the Indenture or the Notes, except
for consents, approvals, orders and authorizations required under
the securities or “Blue Sky” laws of certain
jurisdictions, and except, further, for such consents, approvals,
orders and authorizations which have been obtained and are in full
force and effect.
(t) There is no contract or
document required to be described in the Registration Statement,
any Preliminary Prospectus or the Prospectus or to be filed as an
exhibit to the Registration Statement or to a document incorporated
by reference into the Registration Statement, any Preliminary
Prospectus or the Prospectus which is not described or filed as
required.
(u) Since the respective
dates as of which information is given in the most recent
Preliminary Prospectus and the Prospectus, there has not been any
change in the capital stock or long-term debt of the Company or any
of its Subsidiaries or any adverse change, or any development
involving a prospective adverse change, in or affecting the
condition (financial or otherwise), results of operations,
stockholders’ equity, properties, management, business or
prospects of the Company and its Subsidiaries taken as a whole, in
each case except as would not, individually or in the aggregate,
have a Material Adverse Effect.
(v) The financial statements
and the notes thereto included or incorporated by reference in the
most recent Preliminary Prospectus and the Prospectus present
fairly in all material respects the financial condition, results of
operations and cash flows of the entities purported to be shown
thereby at the dates and for the periods indicated and have been
prepared in accordance with generally accepted accounting
principles applied on a consistent basis throughout the periods
indicated and comply as to form in all material respects with the
Rules and Regulations, except as otherwise noted therein; and the
supporting schedules included or incorporated by reference in the
most recent Preliminary Prospectus and the Prospectus present
fairly in all materials respects the information required to be
stated therein.
(w) Since the respective
dates as of which information is given in the most recent
Preliminary Prospectus and the Prospectus, the Company has not
(i) incurred any liability or obligation, direct or
contingent, other than liabilities and obligations that were
incurred in the ordinary course of business, (ii) entered into
any material transaction not in the ordinary course of business or
(iii) declared or paid any dividend on its capital
stock.
(x) PricewaterhouseCoopers
LLP, which have certified certain financial statements of the
Company and its Subsidiaries, and which have audited the
Company’s internal control over financial reporting and
management’s assessment thereof, are an independent
registered public accounting firm as required by the Securities Act
and the Rules and Regulations and the rules and regulations of the
Public Company Accounting Oversight Board.
(y) Neither the Company nor
any of its Subsidiaries is, and on the Closing Date and, after
giving effect to the offering of the Notes and the application of
the proceeds therefrom as described under “Use of
Proceeds” in each of the most recent Preliminary Prospectus
and the Prospectus will be, an “investment company”
within the meaning of the Investment Company Act of 1940, as
amended.
(z) There is no litigation or
legal or governmental proceeding to which the Company or any of its
Subsidiaries is a party or to which any property or assets of the
Company or any of its Subsidiaries is subject or which is pending
or, to the knowledge of the Company, threatened against the Company
or any of its Subsidiaries which (i) if adversely determined,
would, individually or in the aggregate, result in a Material
Adverse Effect, except as disclosed in the most recent Preliminary
Prospectus and the Prospectus or (ii) is required to be
disclosed in the most recent Preliminary Prospectus and the
Prospectus and is not disclosed.
(aa) Neither the Company nor
any of its Subsidiaries has taken, directly or indirectly, any
action designed to cause or result in, or which might cause or
result in, the stabilization or manipulation of the price of the
Notes to facilitate the sale or resale of the Notes.
(bb) There is, and has been,
no failure on the part of the Company or any of the Company’s
directors or officers, in their capacities as such, to comply in
all material respects with the provisions of the Sarbanes-Oxley Act
of 2002 and the rules and regulations promulgated in connection
therewith.
(cc) The Company maintains a
system of internal control over financial reporting (as such term
is defined in Rule 13a-15(f) under the Exchange Act) sufficient to
provide reasonable assurance that (i) transactions are
executed in accordance with management’s general or specific
authorizations, (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain
accountability for assets, (iii) access to assets is permitted
only in accordance with U.S. management’s general or specific
authorization and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect thereto. As of
December 31, 2007, the Company’s internal control over
financial reporting was effective, and the Company is not aware of
any material weaknesses in its internal control over financial
reporting.
(dd) The Company 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.
(ee) The operations of the
Company and its Subsidiaries are and have been conducted at all
times in compliance with applicable financial recordkeeping and
reporting requirements of the Currency and Foreign Transactions
Reporting Act of 1970, as amended, the money laundering statutes of
all jurisdictions, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively,
the “ Money Laundering Laws ”) and no action,
suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of
its Subsidiaries with respect to the Money Laundering Laws is
pending or, to the knowledge of the Company, threatened.
(ff) Neither the Company nor
any of its Subsidiaries nor, to the knowledge of the Company, any
director, officer, agent, employee or affiliate of the Company 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.
Treasury Department (“ OFAC ”); and the Company
will not directly or indirectly use the proceeds of the offering,
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.
(gg) The statements set forth
in the most recent Preliminary Prospectus and Prospectus under the
captions (i) “Description of the Notes” and
“Plan of Distribution” insofar as they purport to
constitute a summary of the terms of the Notes and other documents
or securities referred to therein and (ii) under the caption
“ERISA Considerations” insofar as they purport to
describe the provisions of the laws and regulations referred to
therein, are accurate, complete and fair.
(hh) Upon issuance, the Notes
will qualify as Tier 2 capital of the Company (within the meaning
of and subject to the provisions of Appendix A to 12 C.F.R. Part
208).
For purposes of this
Section 1, as well as for Section 6 hereof, references to
“the most recent Preliminary Prospectus and the
Prospectus” or “the Disclosure Package and the
Prospectus” are to each of the most recent Preliminary
Prospectus or the Disclosure Package, as the case may be, and the
Prospectus as separate or stand-alone documentation (and not the
most recent Preliminary Prospectus or the Disclosure Package, as
the case may be, and the Prospectus taken together), so that
representations, warranties, agreements, conditions and legal
opinions will be made, given or measured independently in respect
of each of the most recent Preliminary Prospectus or the Disclosure
Package, as the case may be, and the Prospectus.
2. Purchase of the Notes
by the Underwriters . Subject to the terms and conditions and
upon the basis of the representations and warranties herein set
forth, the Company agrees to issue and sell to the Underwriters,
and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company, at a price equal to 96.85% of the
principal amount thereof, plus accrued interest, if any, from
March 6, 2008, the principal amount of the Notes set forth
opposite such Underwriter’s name in Schedule I
hereto.
3. Delivery of and Payment
for Notes . Delivery of the Notes will be made at the offices
of Mayer Brown LLP, 1675 Broadway, New York, New York, or at such
place or places as mutually may be agreed upon by the Company and
the Underwriters, at 10:00 A.M., New York City time, on
March 6, 2008 or on such later date not more than three
Business Days after such date as may be determined by the
Representatives and the Company (the “ Closing Date
”).
Delivery of the Notes will be
made to the Representatives by or on behalf of the Company against
payment of the purchase price therefor by wire transfer of
immediately available funds. Delivery of the Notes will be made
through the facilities of The Depository Trust Company unless the
Representatives will otherwise instruct. Delivery of the Notes at
the time and place specified in this Agreement is a further
condition to the obligations of each Underwriter.
4. Covenants of the
Company . The Company covenants and agrees with each
Underwriter that:
(a) The Company (i) will
prepare the Prospectus in a form approved by the Representatives
and file the Prospectus pursuant to Rule 424(b) of the Rules and
Regulations within the time period prescribed by such Rule;
(ii) will not file any amendment or supplement to the
Registration Statement or the Prospectus or file any document under
the Exchange Act before the termination of the offering of the
Notes by the Underwriters if such document would be deemed to be
incorporated by reference into the Prospectus, which filing is not
consented to by the Representatives after reasonable notice thereof
(such consent not to be unreasonably withheld or delayed);
(iii) will advise the Representatives, promptly after it
receives notice thereof, of the time when any amendment or
supplement to the Registration Statement, the most recent
Preliminary Prospectus or the Prospectus has been filed and will
furnish the Representatives with copies thereof; (iv) will
prepare the Final Term Sheet, substantially in the form of Schedule
III hereto and approved by the Representatives and file the Final
Term Sheet pursuant to Rule 433(d) of the Rules and Regulations
within the time period prescribed by such Rule; (v) will
advise the Representatives promptly after it receives notice
thereof, of the issuance by the Commission or any state or other
regulatory body of any stop order or any order suspending the
effectiveness of the Registration Statement, suspending or
preventing the use of any Preliminary Prospectus, the Prospectus or
any Issuer Free Writing Prospectus or suspending the qualification
of the Notes for offering or sale in any jurisdiction, of the
initiation or threatening of any proceedings for any such purpose
or pursuant to Section 8A of the Securities Act, of receipt by
the Company from the Commission of any notice of objection to the
use of the Registration Statement or any post-effective amendment
thereto or of any request by the Commission for the amending or
supplementing of the Registration Statement, the Prospectus or any
Issuer Free Writing Prospectus or for additional information; and
(vi) will use its best efforts to prevent the issuance of any
stop order or other such order or any such notice of objection and,
if a stop order or other such order is issued or any such notice of
objection is received, to obtain as soon as possible the lifting or
withdrawal thereof.
(b) The Company will prepare
and file with the Commission, promptly upon the request of the
Representatives, any amendments or supplements to the Registration
Statement, the Disclosure Package or the Prospectus which, in the
reasonable opinion of the Representatives and after consultation
with the Company, may be necessary or advisable in connection with
the offering of the Notes.
(c) The Company will furnish
to each of the Representatives and to counsel for the Underwriters
such number of conformed copies of the Registration Statement, as
originally filed and each amendment thereto (excluding exhibits
other than this Agreement), any Preliminary Prospectus, the Final
Term Sheet and any other Issuer Free Writing Prospectus, the
Prospectus and all amendments and supplements to any of such
documents (including any document filed under the Exchange Act and
deemed to be incorporated by reference in the Registration
Statement, any Preliminary Prospectus or the Prospectus), in each
case as soon as available and in such quantities as the
Representatives may from time to time reasonably
request.
(d) During the period in
which the Prospectus relating to the Notes (or in lieu thereof, the
notice referred to in Rule 173(a) of the Rules and Regulations) is
required to be delivered under the Securities Act, the Company will
comply with all requirements imposed upon it by the Securities Act
and by the Rules and Regulations, as from time to time in force, so
far as is necessary to permit the continuance of sales of, or
dealings in, the Notes as contemplated by the provisions of this
Agreement and by the Prospectus. If during such period, any event
occurs as a result of which the Disclosure Package or the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances then existing, not misleading, or if during such
period it is necessary to amend the Registration Statement or amend
or supplement the Disclosure Package or the Prospectus or file any
document to comply with the Securities Act, the Company will
promptly notify the Representatives and will, subject to
Section 4(a) hereof, amend the Registration Statement, amend
or supplement the Disclosure Package or the Prospectus, as the case
may be, or file any document (in each case, at the expense of the
Company) so as to correct such statement or omission or to effect
such compliance, and will furnish without charge to each
Underwriter as many written and electronic copies of any such
amendment or supplement as the Representatives may from time to
time reasonably request.
(e) As soon as practicable,
the Company will make generally available to its security holders
and the Underwriters an earnings statement satisfying the
requirements of Section 11(a) of the Securities Act and Rule
158 of the Rules and Regulations.
(f) The Company agrees,
whether or not this Agreement becomes effective or is terminated or
the sale of the Notes to the Underwriters is consummated, to pay
all fees, expenses, costs and charges in connection with:
(i) the preparation, printing, filing, registration, delivery
and shipping of the Registration Statement (including any exhibits
thereto), any Preliminary Prospectus, any Issuer Free Writing
Prospectus, the Prospectus and any amendments or supplements
thereto; (ii) the printing, producing, copying and delivering
this Agreement, the
Indenture, closing documents (including
any compilations thereof) and any other agreements, memoranda,
correspondence and other documents printed and delivered in
connection with the offering, purchase, sale and delivery of the
Notes; (iii) the services of the Company’s independent
registered public accounting firm; (iv) the services of the
Company’s counsel; (v) the qualification of the Notes
under the securities laws of the several jurisdictions as provided
in Section 4(l) hereof and the preparation, printing and
distribution of a Blue Sky Memorandum (including the related fees
and expenses of counsel to the Underwriters); (vi) any rating
of the Notes by rating agencies; (vii) any required review by
the Financial Industry Regulatory Authority of the terms of the
sale of the Notes (including related fees and expenses of counsel
to the Underwriters); (viii) the services of the Trustee and
any agent of the Trustee (including the fees and disbursements of
counsel for the Trustee); (ix) any “road show” or
other investor presentations relating to the offering of the Notes
(including, without limitation, for meetings and travel); and
(x) otherwise incident to the performance of its obligations
hereunder for which provision is not otherwise made in this
Section 4(f). It is understood, however, that, except as
provided in this Section 4(f) or Sections 7 and 9 hereof, the
Underwriters will pay all of their own costs and expenses,
including the fees and expenses of counsel to the Underwriters and
any advertising expenses incurred in connection with the offering
of the Notes. If the sale of the Notes provided for herein is not
consummated by reason of acts of the Company or changes in
circumstances of the Company pursuant to Section 9 of this
Agreement which prevent this Agreement from becoming effective, or
by reason of any failure, refusal or inability on the part of the
Company to perform any agreement on its part to be performed or
because any other condition of the Underwriters’ obligations
hereunder is not fulfilled or if the Underwriters decline to
purchase the Notes for any reason permitted under this Agreement
(other than by reason of a default by any of the Underwriters
pursuant to Section 9 or if the Underwriters terminate this
Agreement under Section 9 of this Agreement), the Company will
reimburse the Underwriters for all reasonable out-of-pocket
disbursements (including fees and expenses of counsel to the
Underwriters) incurred by the Underwriters in connection with any
investigation or preparation made by them in respect of the
marketing of the Notes or in contemplation of the performance by
them of their obligations hereunder.
(g) Until completion of the
distribution of the Notes, the Company will timely file all
reports, documents and amendments to previously filed documents
required to be filed by it pursuant to Section 12, 13(a),
13(c), 14 or 15(d) of the Exchange Act.
(h) The Company will apply
the net proceeds from the sale of the Notes as set forth in the
most recent Preliminary Prospectus and the Prospectus.
(i) Until the Closing Date,
the Company will not, without the prior written consent of the
Representatives, directly or indirectly, issue, sell, offer to
sell, grant any option for the sale of or otherwise dispose of, any
debt securities that are substantially similar to the Notes
(including, without limitation, with respect to the maturity,
currency, interest rate and other material terms of the
Notes).
(j) The Company will
cooperate with the Underwriters and with counsel to the
Underwriters in connection with the qualification of the Notes for
offering and sale by the Underwriters and by dealers under the
securities laws of such jurisdictions as the Underwriters may
designate and will file such consents to service of process or
other documents necessary or appropriate in order to effect such
qualification and to permit the continuance of sales and dealings
in such jurisdictions for as l
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