Floating Rate Notes Due March 20, 2009 TERMS AGREEMENT
Exhibit 1.1
NATIONAL CITY CORPORATION
Floating Rate Notes Due March 20, 2009
Dated: March 16, 2007
| To: | National City Corporation 0000 Xxxx Xxxxx Xxxxxx Xxxxxxxxx, Xxxx 00000-0000 |
| Re: | Underwriting Agreement dated March 10, 2004 |
Dear Sirs:
We understand that National City Corporation, a Delaware corporation (the “Company”), proposes
to issue and sell $600,000,000 aggregate principal amount of its senior debt securities (the
“Senior Debt Securities”). This Agreement is the Terms Agreement referred to in the underwriting
agreement dated March 10, 2004 (the “Underwriting Agreement”). Subject to the terms and conditions
set forth herein and in the Underwriting Agreement, as amended hereby, the Underwriter named below
(the “Underwriter”) agrees to purchase the principal amount of Senior Debt Securities set forth
opposite its name below at the purchase price set forth under “Purchase Price” below.
| Principal | ||||
| Amount of | ||||
| Name of | Debt | |||
| Underwriter | Securities | |||
Xxxxxx Xxxxxxx & Co. Incorporated |
$ | 600,000,000 | ||
The Senior Debt Securities shall have the following terms:
Title of securities: Floating Rate Notes Due March 20, 2009
Principal amount to be issued: $600,000,000
Senior or Subordinated: Senior
CUSIP: 635405 AT0
ISIN: US635405AT01
Common Code: N/A
Currency: U.S. Dollars
| Current ratings: | Xxxxx’x Investors Service, Inc.: A1 Standard & Poor’s Ratings Services: A |
Original issue date: March 23, 2007
Interest rate: Three month LIBOR plus 0.015%
Designated LIBOR page: Reuters 3000 Xtra service, page LIBOR01
LIBOR Currency: U.S. dollars
Initial interest rate: To be determined as if the original issue date were an interest reset date.
Interest payment dates: March 20, June 20, September 20 and December 20 of each year, commencing
June 20, 2007.
Interest reset period: Quarterly
Interest reset dates: March 20, June 20, September 20 and December 20 of each year, commencing
June 20, 2007.
Interest determination date: Two London Banking Days prior to the interest reset date. “London
Banking Day” means any day on which dealings in deposits in U.S. dollars are transacted in the
London interbank market.
Business Day convention: If any interest payment date, other than the date of maturity, falls on a
day that is not a Business Day, the interest payment date will be postponed to the next day that is
a Business Day, except if that Business Day is in the next succeeding calendar month, the interest
payment date will be the immediately preceding Business Day. If the date of maturity of the Senior
Debt Securities falls on a day that is not a Business Day, the payment of interest and principal
will be made on the next succeeding Business Day, and no interest on the Senior Debt Securities or
such payment will accrue for the period from and after the date of maturity. If any interest reset
date falls on a day that is not a Business Day, the interest reset date will be postponed to the
next day that is a Business Day, except if that Business Day is in the next succeeding calendar
month, the interest reset date will be the immediately preceding Business Day. “Business Day”
means any day, other than a Saturday or Sunday, that is neither a legal holiday (as defined in the
Senior Indenture, dated as of March 17, 2004, between the Company and The Bank of New York Trust
Company, N.A., as successor trustee to The Bank of New York, relating to the Senior Debt
Securities) nor a day on which banking institutions are authorized or required by law, regulation
or executive order to be closed in the City of New York.
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Day count convention: Actual/360
Date of maturity: March 20, 2009
Redemption provisions: None
Sinking fund requirements: None
Purchase Price: 100% of the principal amount of the Senior Debt Securities, plus accrued interest
from March 23, 2007
Listing requirement: None
Conversion provisions: None
Additional representations, if any: See Amendments to the Underwriting Agreement below.
Lock-up provisions: The Company may not issue, without the consent of the Underwriter, any other
debt securities between the date hereof and the Closing Time (as that term is defined in the
Underwriting Agreement).
Applicable Time: 4:27 p.m. on March 16, 2007.
Amendments to the Underwriting Agreement:
(a) Solely with respect to the Senior Debt Securities being purchased pursuant this Terms
Agreement, the Underwriting Agreement is amended as follows:
(i) Introduction; Defined Terms:
(1) References in the Underwriting Agreement to “The Bank of New York,”
“BONY” or the “Senior Trustee” shall be deemed to refer to “The Bank of New
York Trust Company, N.A. (as successor trustee to The Bank of New York)”.
(2) The sixth paragraph of the Underwriting Agreement is hereby deleted
in its entirety and replaced with the following:
“The Company has prepared and filed with the Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-3 (File No.333-104080) pursuant to
the Securities Act of 1933, as amended (the “1933 Act”), including a base prospectus
(the “Base Prospectus”), relating to the Offered Securities and the offering thereof
from time to time in accordance with Rule 415 of the rules and regulations of the
Commission under the 1933 Act (the “1933 Act Regulations”). Such registration
statement has been declared effective by the Commission. As provided in Section
3(a), a prospectus supplement reflecting the
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terms of the applicable Offered Securities, the terms of the offering thereof and
the other matters set forth therein will be prepared and filed pursuant to Rule
424(b) of the 1933 Act Regulations in connection with any offering of Offered
Securities. Any such final prospectus supplement, in the form first filed after the
date of the applicable Terms Agreement pursuant to Rule 424(b) of the 1933 Act
Regulations, is herein referred to as the “Prospectus Supplement.” Such
registration statement, as amended at the date of the applicable Terms Agreement,
including the exhibits thereto and the documents incorporated by reference therein
and any information deemed to be part thereof or included therein by Rule 430B of
the 1933 Act Regulations (the “Rule 430B Information”), is herein called the
“Registration Statement;” provided that, if the Company files a registration
statement with the Commission pursuant to Rule 462(b) of the 1933 Act Regulations
(the “Rule 462(b) Registration Statement”), then, after such filing, all references
to “Registration Statement” shall also be deemed to include the Rule 462(b)
Registration Statement. The Base Prospectus, as supplemented by the Prospectus
Supplement, is herein called the “Prospectus,” except that, if such Base Prospectus
is amended or supplemented on or prior to the date of any applicable Terms
Agreement, the term “Prospectus” shall refer to the Base Prospectus as so amended or
supplemented and as supplemented by the Prospectus Supplement. A “preliminary
prospectus” shall be deemed to refer to any preliminary prospectus supplement to the
Base Prospectus that describes the Offered Securities and the offering together with
the Base Prospectus. For purposes of this Agreement, all references to the
Registration Statement, the Prospectus, any preliminary prospectus or to any
amendment or supplement to any of the foregoing shall be deemed to include any copy
filed with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system (“XXXXX”); and all references in this Agreement to amendments or
supplements to the Registration Statement, Prospectus or any preliminary prospectus
shall be deemed to mean and include the filing of any document under the Securities
and Exchange Act of 1934 (the “1934 Act”) which is incorporated by reference in the
Registration Statement, Prospectus or preliminary prospectus, as the case may be.
The term “Issuer Free Writing Prospectus” means each issuer free writing prospectus
(as defined in Rule 433 of the 1933 Act Regulations) of the Company. The term
“Disclosure Package” shall mean (i) the Base Prospectus, including any preliminary
prospectus supplement, as amended or supplemented, (ii) the Final Term Sheet (as
defined in Section 3(e)) and any other Issuer Free Writing Prospectuses, if any,
identified in Schedule I to the applicable Terms Agreement, and (iii) any other free
writing prospectus that the parties hereto shall hereafter expressly agree in
writing to treat as part of the Disclosure Package. The term “Applicable Time”
shall mean the Applicable Time specified in the applicable Terms Agreement.”
(ii) Section 1 Representations and Warranties:
(1) The first sentence of Section 1(a) of the Underwriting Agreement is
deleted in its entirety and replaced with the following:
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“The Company represents and warrants to each of the Underwriters as of the date
hereof, as of the Applicable Time and as of the Closing Time referred to in Section
2(b) that:”
(2) The second and third paragraphs of Section 1(a)(i) of the
Underwriting Agreement are deleted in their entirety and replaced with the
following:
“The Registration Statement and any amendment thereto, at the Applicable Time, at
the Closing Time, at the time each became effective and at each deemed effective
date with respect to Underwriters pursuant to Rule 430B(f)(2) of the 1933
Regulations, (A) complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations, the Trust Indenture Act
of 1939, as amended (the “1939 Act”) , and the rules and regulations of the
Commission under the 1939 Act (the “1939 Act Regulations”) and (B) did not contain
and will not contain an untrue statement of a material fact and did not omit and
will not omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading. As of the applicable filing date as to
any Prospectus Supplement and any amendment or supplement thereto and at the Closing
Time, neither the Prospectus nor any amendment or supplement thereto included or
will include an untrue statement of a material fact or omitted or will omit to state
a material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading,
The Prospectus, each preliminary prospectus and the Base Prospectus filed as part of
the Registration Statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 424 under the 1933 Act, complied when so filed in all
material respects with the 1933 Act Regulations and each preliminary prospectus and
the Prospectus delivered to the Underwriters for use in connection with any offering
hereunder was substantively identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the extent permitted
by Regulation S-T.
At the Applicable Time, the Disclosure Package did not include an untrue statement
of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made,
not misleading.
Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent
times through the completion of the public offer and sale of the Offered Securities,
did not, does not and will not include any information that conflicted, conflicts or
will conflict with the information contained in the Registration Statement or the
Prospectus, including any document incorporated by reference therein and any
preliminary or other prospectus deemed to be a part thereof that has not been
superseded or modified.
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The representations and warranties in this subsection 1(a)(i) do not apply to
statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter expressly for
use in the Registration Statement, the Prospectus, any Issuer Free Writing
Prospectus or the Disclosure Package (or any amendments or supplements thereto).
At the Closing Time, the applicable Indenture, if any, will comply in all material
respects with the requirements of the 1939 Act and the 1939 Act Regulations.”
(3) Section 1(a)(ii) of the Underwriting Agreement is deleted in its
entirety and replaced with the following:
“The documents incorporated by reference or deemed to be incorporated in the
Prospectus or Disclosure Package pursuant to Item 12 of Form S-3 under the 1933 Act,
at the time they were or hereafter are filed with the Commission, complied in all
material respects with the requirements of the 1934 Act, and the rules and
regulations of the Commission thereunder (the “1934 Act Regulations”) and, when read
together and with the other information in the Prospectus or the Disclosure Package,
did not 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 in order to make the
statements therein, in the light of the circumstances under which they were made,
not misleading.”
(4) References to “the Registration Statement” in Sections 1(a)(iii),
(v), (vii), (viii), (xvii), (xix) of the Underwriting Agreement shall be
deemed to refer to “the Registration Statement, the Disclosure Package and
the Prospectus.”
(5) References to “the Registration Statement and the Prospectus” in
Section 1(a)(vi) of the Underwriting Agreement shall be deemed to refer to
“the Registration Statement, the Disclosure Package and the Prospectus.”
(6) References to “the Prospectus” in Section 1(a)(ix), (x) and (xiv)
of the Underwriting Agreement shall be deemed to refer to “the Disclosure
Package and the Prospectus.”
(7) The following subsections are inserted after Section 1(a)(xxi) of
the Underwriting Agreement:
“(xxii) (a) As of the date of the execution and delivery of the applicable Terms
Agreement (which was also the date that the Company or another offering participant
made the first bona fide offer (within the meaning of Rule 164(h)(2) of the 1933 Act
Regulations) of the Offered Securities), the Company was not an Ineligible Issuer
(as defined in Rule 405 of the 1933 Act Regulations).
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(xxiii) The Company and its consolidated subsidiaries employ disclosure controls and
procedures that are designed to ensure that information required to be disclosed by
the Company in the reports that it files or submits under the 1934 Act is recorded,
processed, summarized and reported, within the time periods specified in the
Commission’s rules and forms, and is accumulated and communicated to the Company’s
management, including its principal executive officer or officers and principal
financial officer or officers, as appropriate, to allow timely decisions regarding
disclosure.
(xxiv) The Company represents that it has not made, and agrees that, unless it
obtains the prior written consent of the Underwriters, it will not make, any offer
relating to the Offered Securities that constitutes or would constitute an Issuer
Free Writing Prospectus or that otherwise constitutes or would constitute a “free
writing prospectus” (as defined in Rule 405 under the Securities Act) or a portion
thereof required to be filed by the Company with the Commission or retained by the
Company under Rule 433 under the Securities Act; provided that the prior written
consent of Undewriters hereto shall be deemed to have been given in respect of the
Issuer Free Writing Prospectuses included in Schedule I hereto. Any such free
writing prospectus consented to by the Underwriters is hereinafter referred to as a
“Permitted Free Writing Prospectus”. The Company agrees that (i) it has treated and
will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer
Free Writing Prospectus, and (ii) has complied and will comply, as the case may be,
with the requirements of Rules 164 and 433 under the Securities Act applicable to
any Permitted Free Writing Prospectus, including in respect of timely filing with
the Commission, legending and record keeping.
(xxv) The Company is not and, after giving effect to the offering and sale of the
Offered Securities and the application of the proceeds thereof, will not be an
“investment company”, as such term is defined in, and that is required to register
under, the Investment Company Act of 1940, as amended.”
(iii) Section 3. Certain Covenants of the Company:
(1) The last sentence of Section 3(a)(i) of the Underwriting Agreement
is deleted in its entirety.
(2) The reference to “the Prospectus” in Section 3(b) of the
Underwriting Agreement shall be deemed to refer to “the Disclosure Package
or the Prospectus.”
(3) Section 3(c) of the Underwriting Agreement is deleted in its
entirety and replaced with the following:
“The Company will give you notice of its intention to file or prepare any amendment
to the Registration Statement (including any filing under Rule 462(b)), any Issuer
Free Writing Prospectus relating to the applicable Offered
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Securities or the terms of the offering thereof or any amendment, supplement or
revision to the Prospectus, whether pursuant to the 1934 Act, the 1933 Act or
otherwise, and will furnish you with copies of any such amendment or supplement or
Issuer Free Writing Prospectus or other document proposed to be filed a reasonable
amount of time prior to such proposed filing and will not file any such amendment or
supplement or Issuer Free Writing Prospectus or other document or use any such
prospectus (including an Issuer Free Writing Prospectus) to which you or counsel
shall reasonably object.”
(4) Section 3(e) of the Underwriting Agreement is deleted in its
entirety and replaced with the following:
“If at any time when the Prospectus is required by the 1933 Act to be delivered in
connection with sales of the Offered Securities, including in circumstances where
such requirement may be satisfied pursuant to Rule 172 of the 1933 Act Regulations,
any event shall occur or condition exist as a result of which it is necessary, in
the opinion of counsel for the Underwriters or counsel for the Company, to further
amend or supplement the Disclosure Package or the Prospectus in order that the
Disclosure Package or Prospectus will not include an untrue statement of a material
fact or omit to state any material fact necessary to make the statements therein not
misleading in the light of the circumstances existing at the Applicable Time, in the
case of the Disclosure Package, or at the time it is required to be delivered to a
purchaser (including in circumstances where such requirement may be satisfied
pursuant to Rule 172 of the 1933 Act Regulations), in the case of the Prospectus, or
if it shall be necessary, in the opinion of either such counsel, at any such time to
amend or supplement the Registration Statement, the Disclosure Package or the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company will, subject to Section 3(c), promptly prepare and file
with the Commission, such amendment or supplement, or such other documents filed
with the Commission pursuant to the 1934 Act or otherwise, as may be necessary to
correct such untrue statement or omission to make the Registration Statement, the
Disclosure Package or the Prospectus comply with such requirements. If at any time
when the Prospectus is required by the 1933 Act to be delivered in connection with
sales of the Offered Securities, including in circumstances where such requirement
may be satisfied pursuant to Rule 172 of the 1933 Act Regulations, there occurred or
occurs an event or development as a result of which an Issuer Free Writing
Prospectus conflicted or would conflict with the information contained in the
Registration Statement or the Prospectus or any document incorporated by reference
therein or any preliminary or other prospectus deemed to be part thereof that has
not been superceded, or included or would include an untrue statement of a material
fact or omitted or would omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances prevailing at that
subsequent time, not misleading, the Company will promptly notify the Underwriters
and will promptly amend or supplement, at its own expense, such Issuer Free Writing
Prospectus to eliminate or correct such conflict, untrue statement or omission. The
Company will prepare
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a final term sheet (the “Final Term Sheet”) reflecting the final terms of the
Securities substantially in form of Schedule I to the applicable Terms Agreement and
satisfactory to the Underwriters, and shall file such Final Term Sheet as an “issuer
free writing prospectus” pursuant to Rule 433 within the time period prescribed by
such rule; provided that the Company shall furnish the Underwriters with copies of
any such Final Term Sheet a reasonable amount of time prior to such proposed filing
and will not use or file any such document to which the Underwriters or counsel to
the Underwriters shall object.”
(5) Section 3(f) of the Underwriting Agreement is deleted in its
entirety and replaced with the following:
“The Company, during the period when the Prospectus is required to be delivered
under the 1933 Act, including in circumstances where such requirement may be
satisfied pursuant to Rule 172 of the 1933 Act Regulations, will file promptly all
documents required to be filed with the Commission pursuant to Section 13 or 14 of
the 1934 Act.”
(iv) Section 4. Payment of Expenses:
(1) The following is inserted at the end of Section 4(a) of the
Underwriting Agreement:
“the Prospectus, any preliminary prospectus and any amendments or supplements
thereto, and any Permitted Free Writing Prospectus.”
(2) The following is inserted at the end of Section 4(f) of the
Underwriting Agreement:
“the Prospectus, any preliminary prospectus and any amendments or supplements
thereto, and any Permitted Free Writing Prospectus.”
(v) Section 5. Conditions to Underwriters Obligations:
(1) Section 5(a)(iii) of the Underwriting Agreement is deleted in its
entirety and replaced with the following:
“There shall not have come to the attention of such of you as may be named in the
applicable Terms Agreement any facts that would cause such of you to believe that
(A) the Registration Statement at the time it became effective, or if an amendment
to the Registration Statement or an Annual Report on Form 10-K has been filed by the
Company with the Commission subsequent to the effectiveness of the Registration
Statement, then at the time of the most recent such filing, or as of the “new
effective date” with respect to the Underwriters pursuant to, and within the meaning
of, Rule 430B(f)(2), (B) the Disclosure Package, at the Applicable Time, or (C) the
Prospectus, as of the date it was issued, at the Closing Time or at the time it was
required to be delivered to a purchaser of the Offered Securities (including in
circumstances where such requirement may be satisfied
9
pursuant to Rule 172 of the 1933 Act Regulations), contained an untrue statement of
a material fact or omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made, not
misleading.”
(2) The following new Section 5(a)(iv) is inserted after Section
5(a)(iii) of the Underwriting Agreement:
“The Final Term Sheet, and any other material required to be filed by the Company
pursuant to Rule 433(d) of the 1933 Act Regulations, shall have been filed with the
Commission within the applicable time periods prescribed by such rule.”
(3) The reference to “the Rule 430A Information and the Rule 434
Information” in Section 5(b)(i)(J) of the Underwriting Agreement shall be
deemed to refer to “the Rule 430B Information.”
(4) The references to “the Prospectus” in Section 5(b)(i)(J) and (T) of
the Underwriting Agreement shall be deemed to refer to “the Disclosure
Package and the Prospectus.”
(5) The references to “the Prospectus” in Section 5(b)(i)(R) of the
Underwriting Agreement shall be deemed to refer to “the Disclosure Package
or the Prospectus.”
(6) The following is inserted after the second sentence of Section
5(b)(i)(Q) of the Underwriting Agreement:
“the Final Term Sheet, and any other Issuer Free Writing Prospectus required to be
filed by the Company pursuant to Rule 433(d) of the 1933 Act Regulations, has been
filed with the Commission within the applicable time periods prescribed by such
rule;”
(7) Section 5(b)(iii) of the Underwriting Agreement is deleted in its
entirety and replaced with:
“In giving their opinions required by subsections (b)(i) and (b) (ii), respectively,
of this Section, Xxxxx X. Xxxxxxx or such other counsel chosen by the Company and
Sidley Austin LLP shall each additionally state that nothing has come to their
attention that would cause them to believe that the Registration Statement (except
for financial statements and schedules and other financial data included or
incorporated by reference therein or omitted therefrom and the Form T-l, as to which
such counsel need make no statement) as of the time the Company filed its Annual
Report on Form 10-K for the year ended December 31, 2006 with the Commission or as
of the Applicable Time, contained any 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, that the Disclosure Package as of the Applicable
Time included an untrue statement of material fact
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or omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading or that the Prospectus, as of its date or at Closing Time, included or
includes an untrue statement of material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.”
(8) Section 5(d) of the Underwriting Agreement is deleted in its
entirety and replaced with the following:
“At the applicable Closing Time, you shall have received from Ernst & Young LLP a
letter dated such date, in form and substance satisfactory to you, to the effect
that (i) they are independent certified public accountants with respect to the
Company and its subsidiaries within the meaning of the 1933 Act and the applicable
published rules and regulations thereunder; (ii) in their opinion, the consolidated
financial statements and supporting schedules audited by them and included or
incorporated by reference in the Registration Statement comply as to form in all
material respects with the applicable accounting requirements of the 1933 Act and
the related published rules and regulations with respect to registration statement
Form S-3 and the 1934 Act and 1934 Act Regulations; (iii) based upon limited
procedures set forth in detail in such letter, nothing has come to their attention
which causes them to believe that (A) the unaudited financial statements and
supporting schedules of the Company and its subsidiaries included in the
Registration Statement and Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the 1934 Act and the 1934
Act Regulations or are not fairly presented in conformity with generally accepted
accounting principles applied on a basis substantially consistent with that of the
audited financial statements included in the Registration Statement, (B) at a
specified date not more than three days prior to the date of such letter, there has
been any change in the capital stock of the Company or any increase in the
consolidated long term debt of the Company and its subsidiaries or any decrease in
the total earning assets or total assets of the Company and its subsidiaries, in
each case as compared with the amounts shown in the most recent balance sheet
included in the Registration Statement or, during the period from a specified date
not more than three days prior to the date of such letter, there were any decreases,
as compared with the corresponding period in the preceding year, in net interest
income, net interest income after provision for loan loss, non-interest income, net
income or net income per share of the Company and its subsidiaries as compared with
the corresponding period in the preceding year except in all instances for changes,
increases or decreases which the Registration Statement and the Prospectus disclose
have occurred or may occur; and (iv) in addition to the examination referred to in
their opinions and the limited procedures referred to in clause (iii) above, they
have carried out certain specified procedures, not constituting an audit, with
respect to certain amounts, percentages and financial information which are included
in the Registration Statement and Prospectus and which are specified by you and have
found such amounts, percentages and
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financial information to be in agreement with the relevant accounting, financial and
other records of the Company and its subsidiaries identified in such letter.”
(vi) Section 6. Indemnification.
(1) The references to “any preliminary prospectus or the Prospectus” in
Sections 6(a)(i) and (iii) and 6(b)(i) of the Underwriting Agreement shall
be deemed to refer to “any preliminary prospectus, the Disclosure Package,
the Prospectus, any Issuer Free Writing Prospectus or any “issuer
information” filed or required to be filed pursuant to Rule 433(d) under the
1933 Act Regulations.”
(2) The reference to “the Rule 430A Information and the Rule 434
Information” in Section 6(a)(i) and (iii) and 6(b)(i) of the Underwriting
Agreement shall be deemed to refer to “the Rule 430B Information.”
(vii) Section 9. Termination of Agreement. The term “, Florida,” is inserted
after the term “Kentucky” in Section 9(a)(iii).
(viii) Section 16. No Advisory or Fiduciary Relationship. The following new
Section 16 is inserted after Section 15:
“The Company acknowledges and agrees that (a) the purchase and sale of the
Securities pursuant to this Agreement, including the determination of the public
offering price of the Securities and any related discounts and commissions, is an
arm’s-length commercial transaction between the Company, on the one hand, and the
several Underwriters, on the other hand, (b) in connection with the offering
contemplated hereby and the process leading to such transaction each Underwriter is
and has been acting solely as a principal and is not the agent or fiduciary of the
Company, or its stockholders, creditors, employees or any other party, (c) no
Underwriter has assumed or will assume an advisory or fiduciary responsibility in
favor of the Company with respect to the offering contemplated hereby or the process
leading thereto (irrespective of whether such Underwriter has advised or is
currently advising the Company on other matters) and no Underwriter has any
obligation to the Company with respect to the offering contemplated hereby except
the obligations expressly set forth in this Agreement, (d) the Underwriters and
their respective affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of the Company, and (e) the Underwriters
have not provided any legal, accounting, regulatory or tax advice with respect to
the offering contemplated hereby and the Company has consulted its own legal,
accounting, regulatory and tax advisors to the extent it deemed appropriate.”
(ix) Section 17. Free Writing Prospectuses. The following new Section 16 is
inserted after the new Section 15:
“The Underwriter represents and agrees that it has not made and, unless it has
obtained or obtains the prior consent of the Company, will not make any offer
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relating to the Offered Securities that would constitute a “free writing prospectus”
required to be filed with the Commission by the Company under Rule 433(d), but for
the action of the Underwriter, other than the Final Term Sheet.”
The following documents will be required at the Closing Time: Officers’ Certificate pursuant
to Section 5(c) of the Underwriting Agreement; Legal Opinions pursuant to Sections 5(b)(1), 5(b)(2)
and 5(b)(3) of the Underwriting Agreement; a Comfort Letter pursuant to Section 5(d) of the
Underwriting Agreement; and other documents pursuant to Section 5(e) of the Underwriting Agreement.
Each of the provisions of the Underwriting Agreement, as amended hereby, is incorporated
herein by reference in its entirety, and shall be deemed to be part of this Agreement to the same
extent as if such provisions had been set forth in full herein.
This Agreement shall be governed by the laws of the State of New York applicable to agreements
made and to be performed in said State.
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If the foregoing is in accordance with your understanding of the agreement between us and the
Company, please sign and return to us a counterpart hereof, whereupon this instrument, along with
all counterparts and together with the Underwriting Agreement, shall be a binding agreement between
the Underwriter named herein and the Company in accordance with its terms and the terms of the
Underwriting Agreement.
| Very truly yours, XXXXXX XXXXXXX & CO. INCORPORATED |
||||||
| By | /s/ Xxxxxxx Xxxxx | |||||
| Name: | Xxxxxxx Xxxxx | |||||
| Title: | Executive Director | |||||
| Confirmed and accepted as of
the date first above written: NATIONAL CITY CORPORATION |
||||
By:
|
/s/ Xxxxxx X. Xxxxxxxxxx | |||
Name: |
Xxxxxx X. Xxxxxxxxxx | |||
Title: |
Senior Vice President and Treasurer |
|||
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