Exhibit 1.1
500,000 PPS
SUNTRUST PREFERRED CAPITAL
I
5.853% Fixed-to-Floating Rate Normal
Preferred Purchase Securities
(liquidation amount $1,000 per
security)
fully and unconditionally guaranteed
by
SUNTRUST BANKS,
INC.
Underwriting
Agreement
October 18, 2006
Goldman, Sachs &
Co.
SunTrust Capital Markets,
Inc.
Lehman Brothers Inc.
As representatives of the several
Underwriters
named in Schedule I
hereto,
c/o Goldman, Sachs &
Co.,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
SunTrust Preferred Capital I, a
statutory trust created under the laws of the State of Delaware
(the “ Trust ”), and SunTrust Banks, Inc., a
Georgia corporation (the “ Guarantor ”), as
depositor of the Trust and as Guarantor under the Guarantee
referred to herein, propose, subject to the terms and conditions
stated herein, to sell to you, the underwriters named in Schedule I
(the “ Underwriters ”) 500,000 of the
Trust’s 5.853% Fixed-to-Floating Rate Normal Preferred
Purchase Securities, liquidation amount $1,000 per security,
referred to in Schedule II (the “ Normal PPS ”).
The proceeds of the sale of the Normal PPS 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 $501,000,000 principal amount of the Guarantor’s
Remarketable Junior Subordinated Notes due 2042 (the “
Junior Subordinated Notes ”), to be issued pursuant to
the Junior Subordinated Indenture 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
supplemental indenture between the Guarantor and the Indenture
Trustee (the “ Supplemental Indenture ” and,
together with the Base Indenture, the “ Indenture
”), each to be entered into at or before the Closing Date.
The Trust will
contemporaneously enter into (i) a Stock
Purchase Contract Agreement (the “ Stock Purchase Contract
Agreement ”) with the Guarantor, pursuant to which the
Trust will agree to purchase 5,010 Stock Purchase Contracts (each a
“ Stock Purchase Contract ”), each having a
stated amount of $100,000 and obligating the Trust to purchase from
the Guarantor, and the Guarantor to sell to the Trust, subject to
the terms hereof, one share of the Guarantor’s Perpetual
Preferred Stock, Series B, $100,000 liquidation preference per
share (the “ Preferred Stock ”), on the Stock
Purchase Date provided for (and as defined in) the Stock Purchase
Contract Agreement, and (ii) a Collateral Agreement (the
“ Collateral Agreement ”) with The Bank of New
York Trust Company, N.A., as collateral agent (the “
Collateral Agent ”), under which the Trust will
initially pledge the Junior Subordinated Notes to secure its
obligation to purchase Preferred Stock under the Stock Purchase
Contracts.
Capitalized terms used herein and
not otherwise defined but that are defined in the Pricing
Prospectus (as defined in Section 1(A)(a)), have the meanings
specified in the Pricing Prospectus.
1. Representations and
Warranties . (A) Each of the Guarantor and the Trust
jointly and severally represents and warrants to, and agrees with,
each Underwriter as follows (except that the representation,
warranty and agreement in paragraph (d) of this
Section 1(A) is given only by the Guarantor and not by the
Trust):
(a) An “automatic shelf
registration statement” as defined under Rule 405 under
the Securities Act of 1933, as amended (the “ Act
”) on Form S-3 (File No. 333-137101) in respect of the
Normal PPS and related securities (including the Capital PPS, the
Stripped PPS, the Junior Subordinated Notes, the Guarantee, the
Stock Purchase Contracts and the Preferred Stock (collectively, the
“ Related Securities ”)) has been filed with the
Securities and Exchange Commission (the “ Commission
”) not earlier than three years prior to the date hereof;
pursuant to the Act, such registration statement, and any
post-effective amendment thereto, became effective on filing; 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 Company’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 Normal PPS 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 Normal PPS that is filed
with
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the Commission and deemed by virtue
of Rule 430B to be part of such registration statement, each
as amended at the time such part of the registration statement
became effective, are hereinafter collectively called the “
Registration Statement ”; the Basic Prospectus, as
amended and supplemented immediately prior to the Applicable Time
(as defined in Section 1(A)(c) hereof), is hereinafter called
the “ Pricing Prospectus ”; the form of the
final prospectus relating to the Normal PPS 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 Normal PPS 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 Normal PPS 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 expressly for use
therein.
(c) For the purposes of this
Agreement, the “ Applicable Time ” is
4 P.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
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or omit to state any material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; and
each Issuer Free Writing Prospectus listed on Schedule II(a)
does not conflict with the information contained in the
Registration Statement, the Pricing Prospectus or the Prospectus
and each such Issuer Free Writing Prospectus, as supplemented by
and taken together with the Pricing Disclosure Package as of the
Applicable Time, did not include any untrue statement of a material
fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; provided ,
however , that this representation and warranty shall not
apply to statements or omissions made in an Issuer Free Writing
Prospectus in reliance upon and in conformity with information
furnished in writing to the Guarantor by 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; provided ,
however , that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Guarantor
by an Underwriter through the Representatives expressly for use
therein; and no such documents were filed with the Commission since
the Commission’s close of business on the business day
immediately prior to the date of this Agreement and prior to the
execution of this Agreement, except as set forth on Schedule
II(b).
(e) The Registration Statement
conforms, and the Prospectus and any further amendments or
supplements to the Registration Statement and the Prospectus will
conform, in all material respects to the requirements of the 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
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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 Closing Date will have
the power and authority (trust and other) to own its property and
conduct its business as described in the Registration Statement,
the Pricing Disclosure Package and the Prospectus and to execute
and deliver and perform its obligations under the Other Trust
Transaction Agreements (as defined in paragraph (A)(g) of this
Section 1).
(g) The Trust has conducted and will
conduct no business other than the transactions contemplated by
this Agreement and the Amended and Restated Declaration of Trust in
substantially the form previously provided to you and to be entered
into at or before the Closing Date among the Guarantor, as Sponsor,
U.S. Bank National Association, as Property Trustee, U.S. Bank
Trust National Association, as Delaware Trustee, and the
individuals named therein, as Administrative Trustees
(collectively, the “ Trustees ,” and such
Amended and Restated 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 Transaction Agreements (as defined in the Declaration of
Trust) (such other Transaction Agreements include the Stock
Purchase Contract Agreement and the Collateral Agreement and
collectively, are referred to as the “ Other Trust
Transaction Agreements ”); and the Trust has no
liabilities or obligations other than those arising out of the
transactions contemplated by this Agreement and the Other Trust
Transaction Agreements and described in the Pricing Prospectus and
the Prospectus.
(h) At the Closing Date, the Normal
PPS 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 Normal PPS will conform in all material respects
to the description thereof in the Pricing Disclosure Package and
the Prospectus.
(i) At the Closing Date, the Capital
PPS and the Stripped PPS will have been duly authorized and, if
issued and delivered in accordance with the Declaration of Trust,
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 Capital PPS and the
Stripped PPS when issued will conform in all material respects to
the descriptions thereof in the Pricing Disclosure Package and the
Prospectus.
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(j) 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 PPS are the only
beneficial interests in the Trust authorized to be issued by the
Trust.
(k) The holders of the Normal PPS,
and if and when issued the Capital PPS and Stripped PPS, 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.
(l) At the Closing Date, each Other
Trust Transaction Agreement (collectively with this Agreement, the
“ Trust Transaction Agreements ”) will have been
duly authorized, executed and delivered by the Trust and will
constitute a valid and legally binding instrument of the Trust,
enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, 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.
(m) This Agreement has been duly
authorized, executed and delivered by the Trust.
(n) The provisions of the Collateral
Agreement are effective to create in favor of the Collateral Agent
for the benefit of the Guarantor a valid security interest under
the Uniform Commercial Code as in effect in the State of New York
on the date hereof (the “ UCC ”) in all
“security entitlements” (as defined in
Section 8-102(a)(17) of the UCC and the Federal Book-Entry
Regulations) now or hereafter carried in or to the Junior
Subordinated Notes (other than the Junior Subordinated Notes
excluded from the definition of “Collateral” in the
Collateral Agreement) or treasury securities included in the
collateral account established pursuant to the Collateral Agreement
(the “ Pledged Securities Entitlements ”); and
the provisions of the Collateral Agreement are effective under the
UCC and the Federal Book-Entry Regulations to perfect the security
interest of the Collateral
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Agent for the benefit of the
Guarantor in the Pledged Security Entitlements. “ Federal
Book-Entry Regulations ” means (a) the federal
regulations contained in Subpart B (“ Treasury/Reserve
Automated Debt Entry System (TRADES) ” governing
Book-Entry Securities consisting of U.S. Treasury bonds, notes and
bills) and Subpart D (“ Additional Provisions ”)
of 31 C.F.R. Part 357, 31 C.F.R. Section 357.10 through
Section 357.14 and Section 357.41 through
Section 357.44 (including related defined terms in 31 C.F.R.
Section 357.2); and (b) to the extent substantially
identical to the federal regulations referred to in clause (a)
above (as in effect from time to time), the federal regulations
governing other Book-Entry Securities.
(o) At the Closing Date, the Trust
will have all power and authority necessary to execute and deliver
this Agreement, the PPS, the Trust Common Securities and the Other
Trust Transaction Agreements and to perform its obligations
hereunder and thereunder; the issuance by the Trust of the Normal
PPS and the Trust Common Securities, the Exchanges (as defined in
the Declaration of Trust) and the related issuances of Capital PPS
and Stripped PPS in accordance with the Declaration of Trust, the
purchase by the Trust of the Junior Subordinated Notes, the
purchase by the Trust of shares of Preferred Stock pursuant to the
Stock Purchase Contract Agreement, 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 below) 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, or 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, 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 Normal PPS and the
Trust Common Securities by the Trust, the Exchanges and the related
issuances of Capital PPS and Stripped PPS in accordance with the
terms of the Declaration of Trust, the purchase by the Trust of the
Junior Subordinated Notes, the purchase by the Trust of shares of
Preferred Stock pursuant to the Stock Purchase Contract Agreement
or the execution, delivery or performance by the Trust of any of
the Other Transaction Agreements or the consummation by the Trust
of the transactions contemplated thereby, except such as have been
obtained under the Act and such
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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 Normal PPS by the Underwriters.
(p) The Trust is not and, after
giving effect to the offering and sale of the Normal PPS 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 pursuant to
the Guarantor’s Accelerated Share Repurchase program in an
amount up to the gross proceeds of this offering and the September
2006 public offering of the Guarantor’s preferred stock,
(ii) other 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 (iii) issuances
or other transfers of capital stock in the ordinary course of
business pursuant to the Guarantor’s employee benefit plans),
any increase in the long-term debt of the Guarantor and its
subsidiaries, or any material adverse change, or any development
(other than the Financial Accounting Standards Board’s
Statement of Financial Accounting Standards No. 158) 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 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
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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, and, when issued, delivered and paid for
at the 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 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
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) The shares of Preferred Stock to
be issued by the Guarantor to the Trust under the Stock Purchase
Contracts on the Stock Purchase Date have been duly and validly
authorized and, when issued and delivered against
payment
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therefor as provided in the Stock
Purchase Contract Agreement and as provided in the
Guarantor’s Restated Articles of Incorporation, as amended,
will be duly and validly issued and fully paid and non-assessable
and will conform in all material respects to the descriptions
thereof contained in the Pricing Disclosure Package and the
Prospectus.
(g) Each of the Declaration of
Trust, the Guarantee Agreement, the Stock Purchase Contract
Agreement and the Collateral 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; and officers of the Guarantor have been authorized to
prepare and execute a Remarketing Agreement on behalf of the
Company and the Trust.
(h) This Agreement has been duly
authorized, executed and delivered by the Guarantor.
(i) The Guarantor has all power and
authority (corporate and other) necessary to execute and deliver
(1) the Remarketing Agreement and, (2) on the Stock
Purchase Date, certificates representing the Preferred Stock to be
then issued, and to perform its obligations under the Guarantor
Transaction Agreements, the Remarketing Agreement and the Preferred
Stock; the execution, delivery and performance of the Guarantor
Transaction Agreements, the Remarketing Agreement and the terms of
the Preferred Stock as established in the Guarantor’s
certificate of incorporation, as amended, once issued, by the
Guarantor 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, or 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,
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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 or the
Remarketing Agreement or issuance of the Preferred Stock in
accordance with the Stock Purchase Contract Agreement, 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 Normal PPS by the
Underwriters.
(j) Neither the Guarantor nor any of
its Significant Subsidiaries is in violation of its organizational
documents or in default in the performance or 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.
(k) The statements set forth in the
Pricing Prospectus and the Prospectus under the captions
“Description of the PPS,” “Description of the
Stock Purchase Contracts,” “Certain Other Provisions of
the Stock Purchase Contract Agreement and the Collateral
Agreement,” “Description of the Junior Subordinated
Notes,” “Description of the Guarantee,”
“Relationship among the PPS, Junior Subordinated Notes, Stock
Purchase Contracts and Guarantee” and “Description of
the Preferred Stock”, 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 U.S. 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.
(l) 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.
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(m) The Guarantor is not and, after
giving effect to the offering and sale of the Normal PPS and the
application of the proceeds thereof, will not be an
“investment company”, as such term is defined in the
Investment Company Act.
(n) (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
Normal PPS 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 Normal PPS,
the Guarantor was not an “ineligible issuer” as defined
in Rule 405 under the Act.
(o) 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.
(p) PricewaterhouseCoopers 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.
(q) 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
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materially affect, the
Guarantor’s internal control over financial reporting, except
such changes as, individually or in the aggregate, would not
reasonably be expect to have a Material Adverse Effect.
(r) 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.
(s) 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.
(t) 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 directly or indirectly use the
proceeds of the offering of the Normal PPS and Related Securities
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, 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 Normal PPS set forth opposite such Underwriter’s
name in Schedule I.
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As compensation to the Underwriters
for their commitments hereunder, and in view of the fact that the
proceeds from the sale of the Normal PPS 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 Goldman, Sachs & Co., for the accounts of the
several Underwriters, the amount per Normal PPS set forth in
Schedule II in respect of the Normal PPS to be delivered by
the Trust hereunder on the Closing Date.
3. Delivery and Payment .
Delivery of and payment for the Normal PPS 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 “ 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 Normal PPS being herein called
the “ Closing Date ”). The Normal PPS to be
purchased by each Underwriter hereunder will be represented by one
or more global certificates representing Normal PPS that will be
deposited by or on behalf of the Trust with The Depository Trust
Company (“ DTC ”) or its designated custodian.
Delivery of the Normal PPS shall be made by causing DTC to credit
the Normal PPS to the account of Goldman, Sachs & Co. at
DTC, for the respective accounts of the several Underwriters at
DTC, against payment by the several Underwriters through Goldman,
Sachs & Co. of the purchase price thereof to or upon the
order of the Trust in the manner and type of funds specified in
Schedule II.
The Trust and the Guarantor agree to
have the certificates representing the Normal PPS 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.
4. Offering by Underwriters .
It is understood that the several Underwriters propose to offer the
Normal PPS 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
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description of the Normal PPS and
Related Securities, 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 Normal PPS; 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 Normal PPS, 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 Normal
PPS or any of the Related Securities 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 Normal PPS 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 Normal PPS 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 Normal PPS and the Related Securities 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
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be necessary to complete the
distribution of the Normal PPS and the Related Securities, 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 Normal
PPS or Related Securities and if at such time any event shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made when such Prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) under the 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
