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EXHIBIT 1.1
PRIVATEBANCORP
CAPITAL TRUST IV
[3,000,000]
___% Trust Preferred Securities
($25
liquidation amount per security)
guaranteed
by
PRIVATEBANCORP,
INC.
FORM OF UNDERWRITING AGREEMENT
May 15, 2008
STIFEL,
NICOLAUS & COMPANY, INCORPORATED
RBC
CAPITAL MARKETS CORPORATION
ROBERT
W. BAIRD & CO. INCORPORATED
As
representatives of the several Underwriters
named
in Schedule I hereto
c/o
Stifel, Nicolaus & Company, Incorporated
One
Financial Plaza
501
North Broadway
St.
Louis, Missouri 63102
Ladies
and Gentlemen:
PRIVATEBANCORP
CAPITAL TRUST IV, a Delaware statutory trust (the
“Trust”), and PrivateBancorp, Inc., a Delaware
corporation (the “Company”), propose to issue and
sell to the several underwriters named in Schedule I hereto
(the “Underwriters”), for which Stifel, Nicolaus
& Company, Incorporated, RBC Capital Markets Corporation
and Robert W. Baird & Co. Incorporated are acting as
representatives (collectively, the
“Representatives”), [___]% preferred securities
($25 liquidation amount per security) of the Trust (the
“Trust Preferred Securities”). The
Trust and the Company propose to sell to the several
Underwriters (a) [3,000,000] of the Trust Preferred Securities
(the “Firm Securities”) and, (b) for the sole
purpose of covering over-allotments in connection with the
sale of the Trust Preferred Securities, at the option of the
Underwriters, up to an additional [450,000] of the Trust
Preferred Securities (the “Option
Securities”). The Trust, the Company and the
Underwriters agree that up to ____________ of the Firm
Securities (the “Reserved Securities”) shall be
reserved for sale by the
Underwriters
to certain eligible officers, directors and employees of the
Company and its subsidiaries (“Reserved Securities
Participants”), as part of the distribution of the Firm
Securities by the Underwriters, subject to the terms of this
Agreement, the applicable rules, regulations and
interpretations of the Financial Industry Regulatory Authority
(“FINRA”) and all other applicable laws, rules and
regulations. To the extent that such Reserved
Securities are not orally confirmed for purchase, and subject
to an agreement to purchase, by such eligible officers,
directors and employees by the end of the first business day
after the date of this Agreement, such Reserved Securities may
be offered to the public as part of the public offering
contemplated hereby. To the extent described in the
Prospectus (as defined herein), the Firm Securities and the
Option Securities will be guaranteed by the Company on a
junior subordinated basis with respect to distributions and
amounts payable upon liquidation or redemption (the
“Guarantee”), pursuant to the guarantee agreement,
dated as of the Closing Date (the “Guarantee
Agreement”), between the Company and Wilmington Trust
Company, as guarantee trustee for the benefit of the Holders
(as defined therein).
The
entire proceeds to the Trust from the sale of the Firm
Securities will be combined with the entire proceeds from the
sale by the Trust to the Company of its common securities (the
“Trust Common Securities”) to purchase
$[75,010,000] aggregate principal amount of [__]% junior
subordinated debentures of the Company due June 15, 2068 (the
“Debentures”) issued by the Company pursuant to a
junior subordinated indenture, to be dated as of the Closing
Date (as defined herein), and the first supplemental indenture
thereto, to be dated as the Closing Date (together, the
“Indenture”), between the Company and Wilmington
Trust Company, a Delaware banking corporation, as trustee (the
“Indenture Trustee”). If the
Underwriters elect to purchase any Option Securities, the
entire proceeds to the Trust from the sale thereof will be
used to purchase additional Debentures having an aggregate
principal amount equal to the aggregate liquidation amount of
such Option Securities. The Trust Preferred
Securities, the Option Securities, the Guarantee and the
Debentures are hereinafter referred to collectively as the
“Securities.” The Securities will be
issued pursuant to the amended and restated declaration of
trust of the Trust, to be dated as of the Closing Date (the
“Trust Agreement”), among the Company, as sponsor,
Wilmington Trust Company, as property trustee (in such
capacity, the “Property Trustee”), Wilmington
Trust Company, as Delaware trustee (in such capacity, the
“Delaware Trustee”), and Larry D. Richman, Dennis
L. Klaeser and Christopher J. Zinski, as administrative
trustees (collectively, the “Administrative
Trustees” and, together with the Property Trustee and
the Delaware Trustee, the “Issuer
Trustees”). The Debentures will be purchased
by the Trust from the Company pursuant to the terms of the
Trust Agreement. This Agreement, the Guarantee
Agreement, the Indenture and the Trust Agreement are
hereinafter referred to collectively as the “Operative
Documents.”
The
Trust, the Company and the Underwriters confirm their
agreements concerning the purchase and sale of the
Securities.
1. The
Trust and the Company, jointly and severally, represent and
warrant to, and agree with, each of the Underwriters that, as
of the date hereof and as of the Closing Date and each Option
Closing Date, if any:
(a) An
“automatic shelf registration statement” (as
defined in Rule 405 under the Securities Act of 1933, as
amended (the “Securities Act”)) on Form S-3 (File
Nos. 333-150767 and 333-150767-01) in respect of the
Securities (the “Initial Registration Statement”)
has been filed by the Company and the Trust with the
Securities and Exchange Commission (the
“Commission”) pursuant to the Securities Act; the
Initial Registration Statement and any post-effective
amendment thereto, each in the form heretofore delivered to
you, became effective on filing with the Commission in such
form; no other registration statement or amendment thereto
has heretofore been filed with the Commission with respect to
the Securities; no stop order suspending the effectiveness of
the Initial Registration Statement or any post-effective
amendment thereto has been issued, no proceeding for that
purpose has been initiated or threatened by the Commission,
any request on the part of the Commission for additional
information from the Trust or the Company has been satisfied
in all material respects and no notice of objection of the
Commission to the use of the Initial Registration Statement
or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Securities Act has been received by the
Company or the Trust; the prospectus filed as part of the
Initial Registration Statement, in the form in which it was
included in such registration statement on the effective date
of the Registration Statement, is hereinafter called the
“Effective Date Prospectus”; any preliminary
prospectus (including any preliminary prospectus supplement)
relating to the Securities filed with the Commission pursuant
to Rule 424(b) under the Securities Act after the Effective
Date Prospectus is hereinafter called a “Preliminary
Prospectus”; the various parts of the Initial
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 Securities 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 Initial Registration Statement became
effective, are hereinafter collectively called the
“Registration Statement”; the Effective Date
Prospectus, as amended and supplemented (including, without
limitation, by the Preliminary Prospectus) immediately prior
to the Applicable Time (as defined in Section 1(a)(iii)
hereof), is hereinafter called the “Pricing
Prospectus”; the form of the final prospectus relating
to the Securities filed with the Commission pursuant to Rule
424(b) under the Securities Act in accordance with Section
5(a) is hereinafter called the “Prospectus”; any
reference herein to the Effective Date 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 Securities Act, as of the date of
such prospectus; any reference to any amendment or supplement
to the Effective Date 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 Securities filed with
the Commission pursuant to Rule 424(b) under the Securities
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
Effective Date 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 Company 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;
any
“issuer
free writing prospectus” as defined in Rule 433 under
the Securities Act relating to the Securities is hereinafter
called an “Issuer Free Writing Prospectus”); and
all references to the Registration Statement, the Effective
Date Prospectus, any Preliminary Prospectus, the Pricing
Prospectus, the Prospectus, any Issuer Free Writing Prospectus
or any amendment or supplement to any of the foregoing shall
be deemed to include the copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and
Retrieval system (“EDGAR”);
(b) (1) at
the respective times the respective parts of the Registration
Statement and any post-effective amendments thereto became
effective and at the Closing Date (as defined herein) (and, if
any Option Securities are purchased, at each Option Closing
Date) (as defined herein)), the Registration Statement and any
amendments and supplements thereto complied or will comply in
all material respects with the requirements of the Securities
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 and will
not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and
(2) at the time of the filing thereof and at the Closing Date
(and, if any Option Securities are purchased, at each Option
Closing Date), none of the Effective Date Prospectus, any
Preliminary Prospectus, the Prospectus and 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; provided that the representations
and warranties in clauses (1) and (2) above shall not apply to
statements in or omissions from the Registration Statement,
the Effective Date Prospectus, any Preliminary Prospectus or
the Prospectus made in reliance upon and in strict conformity
with information furnished to the Company in writing by any
Underwriter through the Representatives expressly for use
therein, it being understood and agreed that the only such
information provided by any Underwriter is that described as
such in Section 9(b) hereof. No order preventing or
suspending the use of any Preliminary Prospectus, the Pricing
Prospectus or any Issuer Free Writing Prospectus has been
issued by the Commission.
Each
Preliminary Prospectus, Pricing Prospectus, Issuer Free
Writing Prospectus and the Effective Date Prospectus filed as
part of the Initial Registration Statement as originally filed
or as part of any amendment thereto, or filed pursuant to Rule
424 under the Securities Act, complied when so filed in all
material respects with the requirements of the Securities Act,
the Trust Indenture Act and the rules and regulations
thereunder, and each Preliminary Prospectus, Pricing
Prospectus and Issuer Free Writing Prospectus and the
Effective Date Prospectus delivered to the Underwriters for
use in connection with this offering was identical to the
electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted
by Regulation S-T;
(c) For
the purposes of this Agreement, the “Applicable
Time” is ____: ____ __.m. (Eastern time) on the date of
this Agreement; the Pricing Prospectus as supplemented by the
Issuer Free Writing Prospectuses and other documents listed in
Schedule II hereto, taken together (collectively, the
“Pricing Disclosure Package”) as of the Applicable
Time, did not
include
any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading; and each Issuer Free Writing
Prospectus listed on Schedule II hereto 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 strict conformity with information
furnished in writing to the Company 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, complied in all
material respects with the requirements of the Securities 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;
for so long as the delivery of a prospectus is required in
connection with the offering and sale of the Securities (or in
lieu thereof, the notice referred to in Rule 173(a) under the
Securities Act), 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 comply in all material respects with the requirements
of the Securities 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 strict conformity with information furnished in writing
to the Company 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;
(e) The
Trust has filed a registration statement pursuant to the
Exchange Act, to register the Trust Preferred Securities, and
such registration statement was declared effective upon the
filing thereof.
(f) (1)
(A) At the time of the filing of the Initial Registration
Statement, (B) at the time of the most recent amendment
thereto for the purposes of complying with Section 10(a)(3) of
the Securities 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 (C) at the time the Company or any person
acting on its behalf (within the meaning, for this clause
only, of Rule 163(c) under the Securities Act) made any offer
relating to
the Securities
in reliance on the exemption of Rule 163 under the Securities
Act, the Company satisfied the conditions of being a
“well-known seasoned issuer” as defined in Rule
405 under the Securities Act; and (2) at the earliest time
after the filing of the Registration Statement that the
Company or another offering participant made a bona fide offer
(within the meaning of Rule 164(h)(2) under the Securities
Act) of the Trust Preferred Securities, the Company was not an
“ineligible issuer” as defined in Rule 405 under
the Securities Act;
(g) 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, with power and authority to own, lease and
operate its properties and conduct its business as described
in the Pricing Prospectus and the Prospectus and to enter into
and perform its obligations under the Operative Documents and
to issue and perform its obligations under the Securities and
the Trust Common Securities; the Trust is not required to
qualify to do business in any other jurisdiction; the Trust
has conducted and will conduct no business other than the
transactions contemplated by this Agreement and the Trust
Agreement; the Trust is not a party to or otherwise bound by
any material agreement other than those described in the
Pricing Prospectus and the Prospectus; the Trust is and will,
under current law, be classified for United States federal
income tax purposes as a grantor trust and not as an
association taxable as a corporation; the Trust has no
liabilities or obligations other than those arising out of the
transactions contemplated by this Agreement and the other
agreements described in the Pricing Prospectus and the
Prospectus; and the Trust is not a party to or subject to any
action, suit or proceeding of any nature and, to the best of
the Company’s and the Trust’s knowledge, no such
action, suit or proceeding is threatened against the Trust or
its property;
(h) The
Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of
Delaware, with power and authority (corporate and other) to
own, lease and operate its properties and conduct its business
as described in the Pricing Prospectus and the Prospectus and
to enter into and perform its obligations under the Operative
Documents, 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 where the failure so to
qualify or be in good standing would not have a a material
adverse effect on the business, assets, properties, condition
(financial or otherwise), results of operations or prospects
of the Company and its Subsidiaries taken as a whole (a
“Material Adverse Effect”);
(i) Each
significant subsidiary (as such term is defined in Rule 1-02
of Regulation S-X) of the Company (each a
“Subsidiary”) has been duly incorporated (or
organized) and is validly existing as a corporation, bank or
other organization in good standing under the laws of the
jurisdiction of its incorporation (or organization), with
power and authority to own, lease and operate its properties
and conduct its business as described in the Pricing
Prospectus and the Prospectus, and has been duly qualified as
a foreign corporation (or other organization) for the
transaction of business and is in good standing under the laws
of each other jurisdiction in which its owns or leases
properties or conducts any business so as to require such
qualification, except where the failure so to qualify or be in
good standing would not have a Material Adverse Effect; all of
the issued and outstanding capital stock (or other ownership
interests) of each
Subsidiary
has been duly and validly authorized and issued, is fully paid
and non-assessable and is owned by the Company, directly or
through Subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance or claim, except that the
shares of capital stock of each of The PrivateBank and Trust
Company (“PrivateBank”), The PrivateBank
(“PrivateBank St. Louis”), The PrivateBank
(“PrivateBank Michigan”), The PrivateBank
(“PrivateBank Georgia”), and The PrivateBank, N.A.
(“PrivateBank Wisconsin”) have been pledged
pursuant to the terms of that certain Amended and Restated
Loan and Subordinated Debenture Purchase Agreement, dated as
of September 29, 2005, between the Company and LaSalle Bank
National Association, as amended;
(j) The
Company has an authorized capitalization as of March 31, 2008
as set forth in the Pricing Prospectus and the Prospectus
under the section captioned “Capitalization”, and
all of the issued and outstanding shares of capital stock of
the Company have been duly and validly authorized and issued,
are fully paid and non-assessable and conform to the
descriptions thereof contained in the Pricing Prospectus and
the Prospectus; and, except for certain preemptive rights held
by GTCR Golder Rauner II, L.L.C and its affiliates as
described in the Prospectus under the section captioned
“Description of Capital Stock –Series A Junior
Nonvoting Preferred Stock – Preemptive Rights”,
none of the issued and outstanding shares of capital stock of
the Company are subject to any preemptive or similar
rights;
(k) The
Firm Securities and Option Securities have been duly and
validly authorized and, when issued and delivered to and paid
for by the Underwriters in accordance with the terms of the
Trust Agreement and this Agreement, will be duly and validly
issued and fully paid and non-assessable beneficial interests
in the Trust, entitled to the benefits of the Trust Agreement,
and will conform to the descriptions thereof contained in the
Pricing Prospectus and the Prospectus; and the issuance of
such Securities is not subject to any preemptive or similar
rights;
(l) The
Trust Common Securities have been duly and validly authorized
and, when issued and delivered to and paid for by the Company
in accordance with the terms of the Trust Agreement, will be
duly and validly issued and fully paid and non-assessable
beneficial interests in the Trust, entitled to the benefits of
the Trust Agreement, and will conform to the descriptions
thereof contained in the Pricing Prospectus and the
Prospectus; and the issuance of such Securities is not subject
to any preemptive or similar rights;
(m) The
Debentures have been duly and validly authorized by the
Company and, when delivered to and paid for by the Trust in
accordance with the terms of the Trust Agreement, will be duly
and validly authenticated, issued and delivered, will conform
to the descriptions thereof contained in the Pricing
Prospectus and the Prospectus and will constitute valid and
binding obligations of the Company, entitled to the benefits
of the Indenture enforceable against the Company in accordance
with its terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws relating to creditors’ rights
generally or by general equitable principles (whether
considered
in
an action at law or in equity); and the issuance of the
Debentures is not subject to any preemptive or similar rights
other than as set forth in the Pricing Prospectus and the
Prospectus;
(n) Each
Operative Document has been duly authorized, executed and
delivered by each of the Trust and the Company, as applicable,
and constitutes a valid and binding obligation of each of the
Trust and the Company, as applicable, enforceable against each
in accordance with its terms, except as the enforceability
thereof and hereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to
creditors’ rights generally or by general equitable
principles (whether considered in an action at law or in
equity) and except as the rights to indemnification and
contribution hereunder may be limited by federal or state
securities laws;
(o) Each
of the Trust Agreement, the Indenture and the Guarantee
Agreement has been duly qualified under the Trust Indenture
Act;
(p) Each
of the Administrative Trustees is an officer and employee of
the Company and has been duly authorized by the Company to
execute and deliver the Trust Agreement;
(q) The
issue and sale of the Securities by the Trust and the Company,
the execution and delivery of each of the Operative Documents
by each of the Trust and the Company and the compliance by
each of the Trust and Company with all of the provisions of
the Operative Documents and the consummation of the
transactions contemplated therein will not 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 Trust, the Company or any of the
Subsidiaries is a party or by which the Trust, the Company or
any of the Subsidiaries is bound or to which any of the
property or assets of the Trust, the Company or any of the
Subsidiaries is subject, nor will such action result in any
violation of the provisions of the certificate of trust or
Trust Agreement of the Trust or certificate or articles of
incorporation or by-laws (or other organization documents) of
the Company or any of the Subsidiaries or any statute or any
order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Trust, the Company or any
of the Subsidiaries or any of their properties; and no
consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency
or body is required for the issue and sale of the Securities
or the consummation by the Trust or the Company of the
transactions contemplated by any Operative Document, except
such as have been made or obtained under the Securities Act
and the Trust Indenture Act and from the Nasdaq Stock Market
relating to the listing of the Securities
thereon;
(r) Ernst
& Young LLP, which has certified certain financial
statements of the Company and the Subsidiaries, is an
independent registered public accounting firm as required by
the Securities Act, the Exchange Act and the rules and
regulations thereunder.
(s) The
consolidated financial statements and schedules (including the
related notes) of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement, the
Pricing Prospectus and the Prospectus comply in all material
respects with the requirements of the Securities Act and
present fairly the consolidated financial condition, results
of operations, stockholders equity and cash flows of the
Company and the Subsidiaries on the basis stated therein at
the respective dates or for the respective periods to which
they apply; such statements and related schedules and notes
have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the
periods involved, except as disclosed therein; the selected
financial data and the summary financial data included or
incorporated by reference in the Registration Statement, the
Pricing Prospectus and the Prospectus present fairly the
information shown therein and have been compiled on a basis
consistent with that of the consolidated financial statements
included or incorporated by reference in the Registration
Statement, the Pricing Prospectus and the Prospectus; and the
pro forma financial statements of the Company and the
Subsidiaries and the related notes thereto included or
incorporated by reference in the Registration Statement, the
Pricing Prospectus and the Prospectus present fairly the
information shown therein, have been prepared in accordance
with the Commission’s rules and guidelines with respect
to pro forma financial statements and have been properly
compiled on the bases described therein, and the assumptions
used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the
transactions and circumstances referred to
therein;
(t) Since
the date of the most recent financial statements of the
Company included or incorporated by reference in the
Registration Statement, the Pricing Prospectus and the
Prospectus (1) there has not been any material loss or
interference with the business of the Company or any
Subsidiary 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,
(2) there has not been any change in the capital stock (other
than capital stock issued pursuant to the exercise of options
or pursuant to inducement equity awards made under the
Company’s existing equity plans) or long-term debt of
the Company or any of the Subsidiaries, (3) there has not been
any material adverse change, or any development involving a
prospective material adverse change, in or affecting the
general affairs, business, prospects, management, financial
position, stockholders’ equity or results of operations
of the Company and the Subsidiaries, considered as one
enterprise, (4) there have been no transactions entered into
by, and no obligations or liabilities, contingent or
otherwise, incurred by the Company or any of the Subsidiaries,
whether or not in the ordinary course of business, which are
material to the Company and the Subsidiaries, considered as
one enterprise, and (5) there has been no dividend or
distribution (other than regularly scheduled quarterly
dividend payments on the Company’s common stock and
preferred stock) of any kind declared, paid or made by the
Company on any class of its capital stock, in each case,
otherwise than as set forth or contemplated in the
Registration Statement, the Pricing Prospectus and the
Prospectus;
(u) The
Trust is not (1) in violation of its certificate of trust,
declaration of trust or the Trust Agreement or (2) in
violation of any law, ordinance, administrative or
governmental rule or regulation applicable to the
Trust;
(v) Neither
the Company or any of the Subsidiaries is (1) in violation of
its certificate or articles of incorporation or bylaws (or
other organization documents), as applicable, (2) in violation
of any law, ordinance, administrative or governmental rule or
regulation to which it is subject, (3) in violation of any
decree of any court or governmental agency or body to which it
is subject, or (4) in default in the performance of any
obligation, agreement or condition contained in any bond,
debenture, note or any other evidence of indebtedness or in
any agreement, indenture, lease or other instrument to it is a
party or by which it or any of its properties may be bound,
except, in the case of clauses (2), (3) and (4), for any such
violation or default that would not, individually or in the
aggregate, have a Material Adverse
Effect;
(w) Each
of the Company and each Subsidiary has good and marketable
title to all real and personal property owned by it, in each
case free and clear of all liens, encumbrances and defects
except those that (1) are described in the Pricing Prospectus
and the Prospectus, (2) do not materially affect the value of
such property and do not interfere with the use made and
proposed to be made of such property by the Company or any
Subsidiary, or (3) could not reasonably be expected,
individually or in the aggregate, to have a Material Adverse
Effect. Any real property and buildings held under
lease by the Company or any Subsidiary are held under valid,
subsisting and enforceable leases with such exceptions as are
not material and do not interfere with the use made and
proposed to be made of such property and buildings by the
Company or any Subsidiary;
(x) Other
than as set forth in the Pricing Prospectus and the
Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of the Subsidiaries is a
party or of which any property of the Company or any of the
Subsidiaries is the subject which, if determined adversely to
the Company or the Subsidiary, individually or in the
aggregate, would have or may reasonably be expected to have a
Material Adverse Effect, or would prevent or impair the
consummation of the transactions contemplated by this
Agreement, or which are required to be described in the
Registration Statement or the Pricing Prospectus; and, to the
best of the Company’s knowledge, no such proceedings are
threatened or contemplated by governmental authorities or
others;
(y) The
Company and the Subsidiaries possess all permits, licenses,
approvals, consents and other authorizations (collectively,
“Permits”) issued by the appropriate federal,
state, local or foreign regulatory agencies or bodies
necessary to conduct their businesses as currently being
conducted, except where the failure to obtain or possess any
Permit would not, individually or in the aggregate, have a
Material Adverse Effect; the Company and the Subsidiaries are
in compliance with the terms and conditions of all such
Permits and all of the Permits are valid and in full force and
effect, except, in each case, where the failure so to comply
or where the invalidity of such Permits or the failure of such
Permits to be in full force and effect, individually or in the
aggregate, would not have a Material Adverse Effect; and
neither the
Company
nor any Subsidiary has received any notice of proceedings
relating to the revocation or material modification of any
such Permits, except such revocations or modifications which
would not, individually or in the aggregate, have a Material
Adverse Effect;
(z) The
Company and the Subsidiaries own or possess, or can acquire on
reasonable terms, all licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems
or procedures), trademarks, service marks and trade names,
patents and patent rights (collectively “Intellectual
Property”) material to carrying on each of their
respective businesses as described in the Pricing Prospectus,
and neither the Company nor any Subsidiary has received any
correspondence relating to any Intellectual Property or notice
of infringement of or conflict with asserted rights of others
with respect to any Intellectual Property which would render
any Intellectual Property invalid or inadequate to protect the
interest of the Company and the Subsidiaries and which
infringement or conflict (if the subject of any unfavorable
decision, ruling or finding) or invalidity or inadequacy,
individually or in the aggregate, would have or may reasonably
be expected to have Material Adverse Effect;
(aa) No
labor dispute with the employees of the Company or any of the
Subsidiaries exists, or, to the knowledge of the Company, is
imminent or has been threatened, in each case, which may
reasonably be expected to have a Material Adverse
Effect.
(bb) The
Company and the Subsidiaries are insured by insurers of
recognized financial responsibility against such losses and
risks and in such amounts as the Company believes are
sufficient to protect the Company and the Subsidiaries;
neither the Company nor any Subsidiary (1) has been refused
any insurance coverage sought or applied for or (ii) has
reason to believe that it will not be able (A) to renew its
existing insurance coverage as and when such coverage expires
or (B) to obtain similar coverage from similar insurers as may
be necessary to continue its business at a cost that would not
have a Material Adverse Effect;
(cc) The
Company and each of the Subsidiaries have made and keep books,
records and accounts, which, in reasonable detail, accurately
and fairly reflect the transactions and dispositions of the
assets of the Company and the Subsidiaries;
(dd) The
Company maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (1)
transactions are executed in accordance with
management’s general or specific authorizations; (2)
transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for
assets; (3) access to assets is permitted only in accordance
with management’s general or specific authorization; and
(4) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences;
(ee) Since
the date of the latest audited financial statements included
or incorporated by reference in the Pricing Prospectus, (a)
the Company has not been advised of
(1) any
significant deficiencies in the design or operation of
internal controls that could adversely affect the ability of
the Company and each of its Subsidiaries to record, process,
summarize and report financial data, or any material
weaknesses in internal controls and (2) any fraud, whether or
not material, that involves management or other employees who
have a significant role in the internal controls of the
Company and each of its Subsidiaries, and (b) since that date,
there has been no change in the Company’s internal
control over financial reporting that has materially affected,
or is reasonably likely to materially affect, the
Company’s internal control over financial
reporting;
(ff) The
Company maintains disclosure controls and procedures (as such
term is defined in Rule 13a-15(e) of the Exchange Act) that
comply with the requirements of the Exchange Act in all
material respects;
(gg) All
United States federal income tax returns of the Company and
the Subsidiaries required by law to be filed have been filed,
and all taxes shown by such returns or that were
otherwise assessed by the Internal Revenue Service and are due
and payable have been paid, except with respect to those
assessments against which appeals have been or will be
promptly taken (or which are otherwise being contested in good
faith) and as to which adequate reserves have been provided.
The Company and the Subsidiaries have filed all other tax
returns that are required to have been filed by them pursuant
to applicable foreign, state, local or other law, except
insofar as the failure to file such returns, individually or
in the aggregate, would not result in a Material Adverse
Effect, and have paid all taxes due pursuant to such returns
or pursuant to any assessment received by the Company or any
Subsidiary except for such taxes, if any, as are being
contested in good faith and as to which adequate reserves have
been provided. The charges, accruals and reserves
on the books of the Company and the Subsidiaries in respect of
any income and corporation tax liability for any years not
finally determined are adequate to meet any actual or, to the
Company’s knowledge, threatened assessments or
re-assessments for additional income tax for any years not
finally determined;
(hh) There
are no statutes, regulations, documents or contracts of a
character required to be described in the Registration
Statement or the Pricing Prospectus or to be filed as an
exhibit to the Registration Statement which are not described
or filed as required;
(ii) Neither
the Company nor any of the Subsidiaries is in violation of any
statute or any rule, regulation, decision or order of any
governmental agency or body or any court, domestic or foreign,
relating to the use, production, disposal or release of
hazardous or toxic substances or relating to the protection or
restoration of the environment or human exposure to hazardous
or toxic substances (collectively, “environmental
laws”), owns or operates any real property contaminated
with any substance that is subject to any environmental laws,
is liable for any off-site disposal or contamination pursuant
to any environmental laws, or is subject to any claim relating
to any environmental laws, which violation, contamination,
liability or claim, individually or in the aggregate, would
have a Material Adverse Effect; and the Company is not aware
of any pending investigation which might lead to such a
claim;
(jj) Each
employee benefit plan, within the meaning of Section 3(3) of
the Employee Retirement Income Security Act of 1974, as
amended (“ERISA”), that is maintained,
administered or contributed to by the Company or any
Subsidiary for employees or former employees of the Company
and its affiliates has been maintained in compliance with its
terms and the material requirements of any applicable
statutes, orders, rules and regulations, including but not
limited to ERISA and the Internal Revenue Code of 1986, as
amended (the “Code”), except to the extent that
failure to so comply, individually or in the aggregate, would
not have a Material Adverse Effect. No prohibited
transaction, within the meaning of Section 406 of ERISA or
Section 4975 of the Code has occurred with respect to any such
plan excluding transactions effected pursuant to a statutory
or administrative exemption;
(kk) None
of the Company, any of the Subsidiaries, the Trust or to the
best knowledge of the Company and the Trust, any director,
officer, agent, employee or other person associated with or
acting on behalf of the Company, any of the Subsidiaries or
the Trust, has (i) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense
relating to political activity; (ii) made any direct or
indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds, (iii)
violated or is in violation of any provision of the Foreign
Corrupt Practices Act of 1977, or (iv) made any bribe,
unlawful rebate, payoff, influence payment, kickback or other
unlawful payment;
(ll) There
are no persons with registration rights or other similar
rights to have securities registered pursuant to the
Registration Statement or otherwise registered by the Trust or
the Company under the Securities Act;
(mm) Neither
the Trust nor the Company has distributed, or prior to the
later to occur of the Closing Date (as defined in Section 4
hereof) and completion of distribution of the Securities will
distribute, any offering materials in connection with the
offering and sale of the Securities, other than the Pricing
Prospectus, the Prospectus and, subject to compliance with
Section 6 hereof, any Issuer Free Writing Prospectus]; and
neither the Trust nor the Company has taken, or will take,
directly or indirectly, any action designed to cause or result
in, or which constitutes or might reasonably be expected to
constitute, the stabilization or manipulation of the price of
any security of the Trust or the Company to facilitate the
sale or purchase of the Securities;
(nn) The
statistical and market and industry-related data included or
incorporated by reference in the Pricing Prospectus and the
Prospectus are based on or derived from sources which the
Company believes to be reliable and accurate or represent the
Company’s good faith estimates that are made on the
basis of data derived from such sources, and the Company has
obtained the written consent to the use of such data from
sources to the extent required;
(oo) Any
certificate signed by any Administrative Trustee or officer of
the Company delivered to the Underwriters or to counsel for
the Underwriters shall be deemed a
representation
and warranty by the Trust or the Company, as applicable, to
the Underwriters as to the matters covered
thereby;
(pp) Neither
the Trust nor the Company is, and upon the issuance and sale
of the Securities and the Common Securities as contemplated
herein and the application of the net proceeds therefrom as
described in the Pric
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