Exhibit 1.2
400,000 NORMAL APEX
NATIONAL CITY PREFERRED CAPITAL TRUST I
12.000% Fixed-to-Floating Rate Normal Automatic Preferred Enhanced
Capital Securities
(liquidation amount $1,000 per security)
fully and unconditionally guaranteed by
NATIONAL CITY CORPORATION
Underwriting Agreement
January 23, 2008
Goldman,
Sachs & Co.
85 Broad Street,
New York, New York 10004.
Ladies
and Gentlemen:
National
City Preferred Capital Trust I, a statutory trust created under the
laws of the State of Delaware (the “ Trust ”),
and National City Corporation, a Delaware 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, as the
underwriter (the “ Underwriter ”), the 12.000%
Fixed-to-Floating Rate Normal Automatic Preferred Enhanced Capital
Securities, liquidation amount $1,000 per security, of the Trust
that are specified in Schedule I (the “ Normal
APEX ”). The Normal APEX consist of (i) 400,000
Normal APEX (the “ Firm Normal APEX ”) and
(ii) and at the election of the Underwriter, up to an
additional 60,000 Normal APEX, as provided in Section 2 (the
“ Optional Normal APEX ”). The proceeds of the
sale of the Normal APEX 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 $400,100,000
principal amount (or up to $460,100,000 principal amount if the
Underwriter exercises in full its option to purchase Optional
Normal APEX) of the Guarantor’s Remarketable Junior
Subordinated Notes due 2043 (the “ Junior Subordinated
Notes ”), to be issued pursuant to the Junior
Subordinated Indenture, dated as of November 3, 2006, between
the Guarantor and The Bank of New York Trust Company, N.A. (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 ”), to be entered into on or before
the First Time of Delivery. 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 4,001
Stock Purchase Contracts (or up to 4,601 Stock Purchase Contracts
if the Underwriter exercises in full its option to purchase
Optional Normal APEX) (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
thereof, one share of the Guarantor’s Non-Cumulative
Perpetual Preferred Stock, Series E, $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
Wilmington Trust Company, 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, the 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 Nos. 333-148769 and 333-148769-03) in
respect of the Normal APEX and related securities (including the
Capital APEX, the Stripped APEX, 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
Guarantor’s knowledge, threatened by the Commission and no
notice of objection of the Commission to the use of such
registration statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Act has been received by
the Guarantor or the Trust (the base prospectus filed as part of
such registration statement, in the form in which it has most
recently been filed with the Commission on or prior to the date of
this Agreement, is hereinafter called the “ Basic
Prospectus ”; any preliminary prospectus (including any
preliminary prospectus supplement) relating to the Normal APEX
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 APEX that is filed with the Commission and deemed by virtue
of Rule 430B to be part of such registration statement, each as
amended at the time such part of the registration statement became
effective, are hereinafter collectively called the “
Registration Statement ”; the Basic Prospectus, as
amended and supplemented immediately prior to the Applicable Time
(as defined in Section 1(A)(c)), is hereinafter called the
“ Pricing Prospectus ”; the form of the final
prospectus relating to the Normal APEX 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
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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 APEX 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 APEX 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 the Underwriter expressly for use
therein.
(c) For the purposes of this
Agreement, the “ Applicable Time ” is 4:20 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 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 I(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 the Underwriter expressly
for use therein.
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(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 the Underwriter 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 I(b).
(e) The Registration Statement
conforms, and the Prospectus and any further amendments or
supplements to the Registration Statement and the Prospectus will
conform, in all material respects to the requirements of the Act
and the Trust Indenture Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to each part of the Registration Statement and as
of the applicable filing date as to the Prospectus and any
amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; provided , however , that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Guarantor by the Underwriter 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 each Time of Delivery 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
Transaction Agreements, as defined in the Trust Agreement (for
purposes of this Agreement, the “ Trust Transaction
Agreements ”).
(g) The Trust has conducted and will
conduct no business other than the transactions contemplated by
this Agreement and the Amended and Restated Trust Agreement in
substantially the form previously provided to you and to be entered
into at or before the First Time of Delivery among the Guarantor,
as Sponsor, The Bank of New York Trust Company, N.A., as Property
Trustee, BNYM (Delaware), as Delaware Trustee, and the individuals
named therein, as Administrative Trustees (collectively, the
“ Trustees ,” and such Amended and Restated
Trust Agreement, the “ Trust Agreement ”)
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and described
in the Pricing Prospectus and the Prospectus; the Trust is not, and
at each Time of Delivery will not be, a party to or bound by any
agreement or instrument other than this Agreement, the Trust
Agreement and the other Trust Transaction Agreements; and the Trust
has no liabilities or obligations other than those arising out of
the transactions contemplated by the Trust Transaction Agreements
and described in the Pricing Prospectus and the Prospectus.
(h) At each Time of Delivery, the
Normal APEX 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
Trust Agreement, and the Normal APEX will conform to the
description thereof in the Pricing Disclosure Package and the
Prospectus.
(i) At each Time of Delivery, the
Capital APEX and the Stripped APEX will have been duly authorized
and, if issued and delivered in accordance with the Trust
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 Trust Agreement, and the Capital APEX and
the Stripped APEX when issued will conform to the descriptions
thereof in the Pricing Disclosure Package and the Prospectus.
(j) At the First Time of Delivery,
the Trust Common Securities will have been duly authorized and will
have been duly and validly issued and will be fully paid (subject
to the qualifications described in the proviso to
Section 6(d)(vi)) beneficial interests in the Trust entitled
to the benefits of the Trust Agreement and will conform 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 each Time of
Delivery, 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 APEX are the only beneficial interests in the
Trust authorized to be issued by the Trust.
(k) The holders of the Normal APEX,
and if and when issued the Capital APEX and Stripped APEX, 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 each Time of Delivery,
each Trust Transaction Agreement 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 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.
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(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 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 each Time of Delivery, the
Trust will have all power and authority necessary to execute and
deliver the APEX, the Trust Common Securities and the Trust
Transaction Agreements and to perform its obligations thereunder;
the issuance by the Trust of the Normal APEX at each Time of
Delivery and the Trust Common Securities at the First Time of
Delivery, the Exchanges (as defined in the Trust Agreement) and the
related issuances of Capital APEX and Stripped APEX in accordance
with the Trust Agreement, the purchase by the Trust of the Junior
Subordinated Notes at each Time of Delivery, 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, whether with or without the giving
of notice or lapse of or both, conflict with or constitute a breach
or violation of, or default or Repayment Event under or result in
the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Trust or the Guarantor or any
subsidiary of the Guarantor pursuant to any material contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or any other agreement or instrument to which the Trust or
the Guarantor or any such subsidiary is a party or by which it or
any of the them may be bound, or to which any of the property or
assets of the Trust or Guarantor or any such subsidiary is subject
(except for the creation of a continuing first priority security
interest in and to the Collateral, as defined and contemplated
under the Collateral Agreement to be entered into among the
Guarantor, the Collateral Agent (in that and in other capacities)
and the Issuer Trust on or before the First Time of Delivery), nor
will such action result in any violation of the provisions of the
Amended and Restated Certificate of Incorporation, as amended, or
First Restatement of By-laws of the Guarantor or the Trust
Agreement or other organizational documents of the Trust or any
subsidiary, or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction
over the Guarantor, the
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Trust or any
subsidiary of the Guarantor or any of their properties, assets or
operations; and no filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of,
any court or governmental authority or agency, domestic or foreign
(other than under the Securities Act, which have been obtained, or
as may be required under the securities or Blue Sky laws of the
various states) is necessary or required in connection with the
execution, delivery and performance by the issue and sale of the
Normal APEX and the Trust Common Securities by the Trust, the
Exchanges and the related issuances of Capital APEX and Stripped
APEX in accordance with the terms of the Trust Agreement, 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 Trust Transaction Agreements
or the consummation by the Trust of the transactions contemplated
thereby, except such as have been obtained under the Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the
Normal APEX by the Underwriter. As used herein, a “
Repayment Event ” means any event or condition that
gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder’s behalf)
the right to require the repurchase, redemption or repayment of all
or a portion of such indebtedness by the Guarantor, the Trust or
any subsidiary of the Guarantor.
(p) The Trust is not and, after
giving effect to the offering and sale of the Normal APEX 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, the
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;
and together with National City Bank, 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, other
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) the repurchases of
common stock of the Guarantor in an aggregate amount that is less
than 1% of the number of outstanding shares of common stock on the
date hereof and (ii) issuances or other transfers of capital
stock in the ordinary course of business pursuant to the
Guarantor’s employee benefit plans), any increase in the
long-term debt of the Guarantor and its subsidiaries, or any
material adverse change, or any development that is reasonably
likely to involve a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the
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Trust or the
Guarantor and the consolidated subsidiaries of the Guarantor
considered as one enterprise, whether or not arising in the
ordinary course of business, other than as set forth or
contemplated in the Pricing Prospectus.
(b) The Guarantor has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware, is duly
registered as a bank holding company under the Bank Holding Company
Act of 1956, as amended, with corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Pricing Prospectus, and has been duly qualified as
a foreign corporation to transact business and is in good standing
in each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or to
be in good standing would not, individually or in the aggregate,
have a Material Adverse Effect.
(c) Each Significant Subsidiary has
been duly organized and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation, and has corporate power and authority to own, lease
and operate its properties and to conduct its business as described
in the Pricing Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good
standing would not have a Material Adverse Effect; except as
otherwise disclosed in the Registration Statement, all of the
issued and outstanding capital stock of each such Significant
Subsidiary has been duly authorized and validly issued, is fully
paid and non-assessable (subject to the provisions of
Section 55 of Title 12 of the United States Code in the case
of Significant Subsidiaries that are national banking associations
or similar provisions applicable to other depository institution
subsidiaries or the Guarantor under the laws of the respective
jurisdictions in which they are organized) and, except for any
director’s qualifying shares, is owned by the Guarantor,
directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity;
none of the outstanding shares of capital stock of any Significant
Subsidiary was issued in violation of the preemptive or similar
rights of any securityholder of such Significant Subsidiary; and
100% of its capital stock, other than any director’s
qualifying shares, is owned by the Guarantor, directly or through
subsidiaries, free and clear of any mortgage, pledge, lien,
encumbrance, claim or equity.
(d) The authorized, issued and
outstanding capital stock of the Guarantor is as set forth in the
Pricing Prospectus (except for subsequent issuances, if any
pursuant to reservations, agreements or employee benefit, employee
stock purchase or dividend reinvestment plans referred to in the
Pricing Prospectus or pursuant to the exercise of convertible
securities or options referred to in the Pricing Prospectus, as
described in the Pricing Prospectus), and all of the issued and
outstanding shares of capital stock of the Guarantor have been duly
authorized and validly issued and are fully paid and
non-assessable; all of the issued and outstanding shares of capital
stock of each Significant Subsidiary of the Guarantor have been
duly authorized and validly issued, are fully paid and
non-assessable and (except for directors’ qualifying shares)
are owned directly or
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indirectly by
the Guarantor, free and clear of all liens, encumbrances, equities
or claims; and none of the outstanding shares of capital stock of
the Guarantor was issued in violation of the preemptive or other
similar rights of any securityholder of the Guarantor.
(e) Each of the Administrative
Trustees is an employee of the Guarantor or one of its affiliates
and, at each Time of Delivery, the Trust Agreement 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.
(f) The Junior Subordinated Notes
have been duly authorized, and, when issued, delivered and paid for
at each Time of Delivery 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 each Time of Delivery,
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 to the
descriptions thereof in the Pricing Disclosure Package and the
Prospectus.
(g) 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 therefor
as provided in the Stock Purchase Contract Agreement and as
provided in the Guarantor’s Amended and Restated Certificate
of Incorporation, as amended, will be duly and validly issued and
fully paid and non-assessable and will conform to the descriptions
thereof contained in the Pricing Disclosure Package and the
Prospectus.
(h) Each of the Trust Agreement, 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 First Time of Delivery, 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
Guarantor and the Trust.
(i) This Agreement has been duly
authorized, executed and delivered by the Guarantor.
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(j) 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 Amended
and Restated 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, whether with or without the giving of
notice or lapse of or both, conflict with or constitute a breach or
violation of, or default or Repayment Event under or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Trust or the Guarantor or any subsidiary
of the Guarantor pursuant to any material contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or
any other agreement or instrument to which the Trust or the
Guarantor or any subsidiary of the Guarantor is a party or by which
it or any of the them may be bound, or to which any of the property
or assets of the Trust or Guarantor or any such subsidiary is
subject (except for the creation of a continuing first priority
security interest in and to the Collateral, as defined and
contemplated under the Collateral Agreement to be entered into
among the Guarantor, the Collateral Agent (in that and in other
capacities) and the Issuer Trust on or before the First Time of
Delivery), nor will such action result in any violation of the
provisions of the Amended and Restated Certificate of
Incorporation, as amended, or First Restatement of By-laws of the
Guarantor or the Trust Agreement or other organizational documents
of the Trust or any subsidiary, or any applicable law, statute,
rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Guarantor, the Trust or any
subsidiary of the Guarantor or any of their properties, assets or
operations; and no filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of,
any court or governmental authority or agency, domestic or foreign
(other than under the Securities Act, which have been obtained, or
as may be required under the securities or Blue Sky laws of the
various states) is necessary or required in connection with the
execution, delivery and performance by the Guarantor of the
Guarantor Transaction Agreements or the Remarketin
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